Retroactivity sounds like a really boring legal subject. Until you learn that some 2,000 people serving terms of life without parole could have a shot at release if the Supreme Court rules that a 2012 decision is retroactive.
Three years ago, the court struck down state laws that imposed a mandatory and automatic sentence of life without parole on juvenile murderers. The decision clearly applied prospectively, and many states changed their laws to comply. But what about those juvenile killers sentenced to mandatory life without parole before 2012? Does the decision apply to them too? That was the question before the Supreme Court on Tuesday.
The case was brought by 70-year-old Henry Montgomery, who has spent 53 years in Louisiana's notorious Angola prison for a murder he committed when he was 17.
His lawyers argue that unlike juveniles sentenced now, Montgomery had no chance a half-century ago to show that there were mitigating circumstances that would justify a sentence less than life without parole. In fact, the state could only impose a mandatory life term, whereas now a defendant can get a sentence that is significantly shorter.
Montgomery's lawyers maintain that such a huge change in the law should be retroactive and apply to the 2,100 juvenile killers, like Montgomery, who, according to experts, were automatically sentenced to life without parole before 2012.
The state of Louisiana disagrees, noting that a life without parole sentence is valid even today if, after a sentencing hearing, the defendant is deemed incorrigible and dangerous enough. Therefore, the state says, the 2012 decision is not a big enough structural change to justify applying it retroactively.
Inside the Supreme Court chamber on Tuesday, the retroactivity question devolved into a debate over whether the court has jurisdiction over this question at all. Because Montgomery and the state of Louisiana agree that the Supreme Court does have that authority, the justices appointed lawyer Richard Bernstein to argue the opposite point of view. Bernstein clearly had some supporters, particularly among the conservative justices.
That prompted Justice Stephen Breyer to wonder how the court would treat people imprisoned for witchcraft, for example, if they were still in prison decades after prosecution for those activities had been ruled unconstitutional.
The jurisdictional question so dominated the argument, with Justices Antonin Scalia and Samuel Alito leading the charge, that finally Chief Justice John Roberts suggested that the lawyers might want to address the merits of the case — namely the retroactivity. By then, Montgomery's lawyer, Mark Plaisance, had finished his argument, and Deputy Solicitor General Michael Dreeben, representing the federal government, was midway through his argument time.
Dreeben gratefully grasped at the chief justice's invitation to switch direction. He said that the court's 2012 decision should be retroactive because the ruling went "far beyond" mere procedural changes and required states to adopt new sentencing options that included penalties less severe than life without parole.
He noted that the Supreme Court itself, in striking down mandatory life without parole for juvenile killers three years ago, found the penalty was often "disproportionate" and that the sentence was not consistent with "the mitigating characteristics of youth" the court has recognized repeatedly.
Justice Ruth Bader Ginsburg asked whether any states have treated the court's 2012 decision as retroactive.
Dreeben replied that 10 have provided either sentencing hearings or parole hearings for juvenile killers sentenced to life without parole prior to 2012. The defendants in those states have "almost uniformly" received sentences that are "significantly shorter than life," he said.
Next up was Louisiana's lawyer, Kyle Duncan, arguing against retroactivity. To require sentencing hearings would "distort" the system because the witnesses who could testify about the juvenile and his crime are often dead, he said, and important records are no longer available.
But there's no distortion if you just have a parole hearing, interjected Justice Anthony Kennedy, who could prove a decisive vote in the case.
Justice Elena Kagan, the author of the 2012 decision, noted that it requires a range of penalties, upper and lower. "The range is important," she said. "It's not just the top end." And providing that range, in place of an automatic life term, is the kind of major change in sentencing structure that would make the court's 2012 decision retroactive, she suggested.
It's unclear whether a majority of the court agrees with that assessment. A decision is expected later in the court term.