Supreme Court Update: Miller v. Alabama (10-9646) and Dorsey v. United States (11-5682)

June 26, 2012 Supreme Court Update

Greetings, Court Fans!

We're back with some reading to pass the time while the bookmakers continue to handicap the odds on the Affordable Care Act's survival. We offer two significant criminal decisions cases for your reading pleasure: Miller v. Alabama (10-9646), holding that juvenile homicide offenders cannot automatically be sentenced to life without the possibility of parole; and Dorsey v. United States (11-5682), concluding that the 2010 Fair Sentencing Act applies to offenses committed before but sentenced after the Act's effective date.

In Miller v. Alabama (10-9646), consolidated with Jackson v. Hobbs (10-9647), the Court extended a line of cases that began in 2005 with Roper v. Simmons, which held that the Eighth Amendment barred capital punishment for people who commit murders while minors. In 2010, following Roper, the Court held in Graham v. Florida that juvenile offenders could not be sentenced to life without parole for non-homicide offenses. Miller and Jackson involved 14-year-old convicted murderers who both received mandatory minimum sentences of life without parole. Their habeas appeals raised the question of whether, in light of Roper and Graham and the "evolving standards of decency" analysis applicable to Eighth Amendment claims, sentencing juvenile offenders to mandatory sentences of life without parole amounts to cruel and unusual punishment.

In a fairly narrow ruling, the Court answered yes to that question. Justice Kagan wrote for the Court, joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor. The Court noted that the case touched on both the Roper line, which concerns whether punishments are proportionate – as the Eighth Amendment requires – based on the culpability of juveniles as a class, and a second line of cases, beginning with Woodson v. North Carolina (1976), finding that capital punishment may not be imposed mandatorily, but only after consideration of a defendant's characteristics and the details of the offense. Roper and Graham established – based on common sense as well as science and social science – that "children are constitutionally different from adults for purposes of sentencing" because of (1) their lack of maturity, which leads to recklessness and impulsivity; (2) their susceptibility to negative influences and pressures and inability to extricate themselves from crime-producing settings; and (3) their lack of "well formed" characters and possession of "less fixed" traits. Because of their diminished culpability and their capacity for reform, they are "less deserving of the most severe punishments." And Graham made clear that "youth matters in determining the appropriateness of a lifetime of incarceration without the possibility of parole." But the Alabama and Arkansas mandatory sentencing schemes at issue in Miller and Jackson did not allow the sentencer to consider a juvenile offender as an individual, and instead subjected juveniles to the same mandatory life-without-parole sentence an adult offender would face. That, according to the majority, "contravenes Graham's (and also Roper's) foundational principle: that imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children."

Graham also likened life-without-parole sentences for juveniles to the death penalty itself, noting that the sentence is especially harsh for juveniles, who will likely serve more years and greater proportions of their lives in prison than adult offenders. That analogy implicated the Woodson line, which invalidated mandatory capital punishment and requires individualized sentencing – including consideration of mitigating factors such as youth – when the death penalty is imposed. The Court found that Graham's reasoning and the Woodson line together showed the flaws of mandatory life-without-parole sentences for juvenile homicide offenders, because mandatory schemes preclude sentencers from considering an offender's age and related characteristics. "Under these schemes, every juvenile will receive the same sentence as every other – the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile (including these two 14-year-olds) will receive the same sentence as the vast majority of adults committing similar homicide offenses – but really, as Graham noted, a greater sentence than those adults will serve." As a result, the Court held, the Eighth Amendment forbids sentencing schemes that mandate life without parole for juvenile offenders, regardless of the offense. The Court did not, however, reach the petitioner's broader, alternative argument: that life without parole – even if not mandatory – is cruel and unusual punishment when imposed on a juvenile offender. That question remains for another day; for now, sentencers may still impose the penalty, but after considering "how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison."

Justice Breyer, joined by Justice Sotomayor, filed a separate concurrence to add that, if Arkansas prosecutors intend on remand to seek a life-without-parole sentence for petitioner Jackson, the sentencer will need to determine whether the youth – who was convicted on an aiding and abetting theory for the murder of a store employee during a botched robbery – killed or intended to kill the victim. This reasoning flows from Graham, which observed that "when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability." It was this "twice diminished moral culpability" that forbade life-without-parole sentences for juvenile offenders in non-homicide cases, and the concurrence would extend the logic to felony murder cases – a position bolstered by Eighth Amendment case law banning capital punishment for adults convicted on aiding and abetting theories.

The Chief Justice, joined by Justices Scalia, Thomas, and Alito, offered the first of three dissents, contending that the Court improperly invoked the Eighth Amendment's ban on cruel and unusual punishment to prohibit a punishment that even the majority did not characterize as unusual, inasmuch as some 2,000 prisoners nationwide are serving mandatory life-without-parole sentences for murders they committed as juveniles, and both the federal government and most states impose such sentences. Nor did the Chief see any objective evidence in legislative enactments that the "evolving standards of decency that mark the progress of a maturing society" – a principle guiding Eighth Amendment analysis – favored greater leniency toward youthful offenders in this context. He also noted that Graham observed "a line ‘between homicide and other serious violent offenses against the individual'" – a line he believes the majority erased. He bemoaned that the Court's opinion might be "merely a way station on the path to further judicial displacement of the legislative role in prescribing appropriate punishment for crime" – with discretionary life-without-parole sentences for juveniles a possible next target.

Justice Thomas penned the second dissent, which Justice Scalia joined. He wrote to explain that neither of the lines of cases on which the majority relied – one categorically prohibiting certain punishments for certain classes of offenders, the other requiring individualized sentencing in the capital punishment context – was consistent with the original understanding of the Eighth Amendment's cruel and unusual punishment clause. He contended that the clause was meant to prohibit torturous methods of punishment, and did not contain a "proportionality principle." Thus, it does not "authorize courts to invalidate any punishment they deem disproportionate to the severity of the crime or to a particular class of offenders." Nor does it matter that imposition of a punishment is mandatory or discretionary: Thomas noted that the Court had previously declined, in Harmelin v. Michigan (1991), to extend an individualized sentencing requirement beyond the death penalty context. The moral question of who deserves a particular method of punishment, in Justice Thomas's view, should be left to legislatures.

Finally, Justice Alito, also joined by Justice Scalia, issued his own dissent. He, too, complained that the "evolving standards of decency" rubric abandoned the original meaning of the cruel and unusual punishment clause. But he noted that, at least in the past, the Court has divined evolving standards from objective indicia of society's moral standards, such as tallying positions taken by state legislatures to find evidence of a national consensus and determining the frequency with which a particular punishment, even if permitted, is actually imposed. In Justice Alito's view, the Court abandoned the search for legislative consensus or other objective indicia as well as the longstanding principle that the death penalty should be treated differently from non-capital punishments. He charged that "[o]ur Eighth Amendment case law is now entirely inward looking. . . . Future cases may extrapolate from today's holding, and this process may continue until the majority brings sentencing practices into line with whatever the majority views as truly evolved standards of decency. . . . Unless our cases change course, we will continue to march toward some vision of evolutionary culmination that the Court has not yet disclosed."

Next, in Dorsey v. United States (11-5682), consolidated with Hill v. United States (11-5721), the Court was asked to consider whether the less severe mandatory minimum sentences for crack cocaine offenses enacted in 2010 in the Fair Sentencing Act apply to offenses committed prior to, but sentenced after, the effective date of the Act. In a 5-4 decision, with Kennedy again joining the Court's liberal wing, the Court held that it does.

For decades, federal drug law treated crimes involving crack cocaine as more serious than those involving powder cocaine. Defendants convicted of crack offenses were subject to the same mandatory minimums as defendants convicted of powder cocaine offenses for distributing just one-hundredth the quantity of drugs. In 2010, after decades of harsh criticism from law enforcement, legal academia, and the federal sentencing commission, Congress enacted the Fair Sentencing Act to reduce the disproportionate sentences and the perceived racial bias of the drug laws. The Act softened (though it did not eliminate) the disparity in sentencing between the drugs by increasing the quantity of crack cocaine necessary to subject an offender to a mandatory minimum sentence. The Act, however, was silent as to whether it applied to offenses committed prior its effective date.

The Justices split on the question of what is required to find that Congress has impliedly repealed a former statute. Justice Breyer, writing for the majority, found that the structure, language, and purpose of the Fair Sentencing Act all showed a "clear indication" of Congress' intent to have the more lenient sentences apply to pre-Act offenses. First, the Fair Sentencing Act was adopted against the background of the 1984 Sentencing Reform Act, which regulates all federal sentencing. Under the Reform Act, defendants are sentenced based on the guidelines in effect at the time of sentencing, not the date of the offense. Second, the Fair Sentencing Act granted emergency authority to the Sentencing Commission to "achieve consistency with other guideline provisions and applicable law" as soon as practicable, reflecting Congress' intent to subject pre-Act offenders to the provisions of the Act. Third, the Court noted that applying the pre-Act mandatory minimums would create disparities of a kind that Congress sought to eliminate. For instance, two defendants sentenced for the same crime on the same day could be sentenced to radically different terms if one had committed his crime before the Act, and the other had committed his crime after the Act. This would be at odds with "Congress' basic efforts to achieve more uniform, more proportionate sentences." Finally, the Court concluded that because Congress had determined the pre-Act sentences were too harsh, it would violate Congress' intent to subject defendants sentenced after the Act to a punishment legislators no longer found appropriate.

Justice Scalia dissented, joined by the Chief and Justices Thomas and Alito. The dissenters agreed that the right approach to the question of statutory interpretation was to inquire into Congress' intent, but would have held that a statute is only impliedly repealed when the "plain import" of the language in the new statute directly conflicts with the old statute, a standard the dissenting justices did not believe was met in this case.

On a side note, it appeared at first blush that the case might have been resolved easily by application of a 1871 general saving statute, 1 U.S.C. § 109, which dictates that "the repeal of any statute shall not have the effect to release or extinguish any penalty. . . unless the repealing Act shall so expressly provide." But all nine Justices reiterated the Court's longstanding position that § 109 cannot require express repeal as the only means of amendment. As Justice Scalia explained in his dissent, "express-statement requirements. . . are ineffective. . . [b]ecause one legislature cannot abridge the powers of a succeeding legislature." It is up to Congress to repeal, modify or expand statutes, and they may do so either through express or implied modification.

Don't blink – we'll be back very soon with more.

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400