Bob CollinsU.S. Supreme Court Justice Antonin Scalia, in a typical condescending dissent of the majority, nonetheless raises some good questions in his dissent today of the court’s decision to apply a ban on life terms for juveniles retroactively.
The court ruled in the case of Henry Montgomery, killed a sheriff’s deputy in 1963 when he was 17.
Under the court’s direction, lower courts will now have to consider whether is “incorrigible” enough to warrant a lifetime in prison.
What makes Scalia’s dissent worth discussion is the likelihood that sometime soon, the U.S. Supreme Court will strike down the death penalty as cruel and unusual punishment.
But have no fear. The majority does not seriously expect state and federal collateral-review tribunals to engage in this silliness, probing the evidence of “incorrigibility” that existed decades ago when defendants were sentenced.
What the majority expects (and intends) to happen is set forth in the following not-so-subtle invitation: “A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.”
Of course. This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders. The Court might have done that expressly (as we know, the Court can decree anything), but that would have been something of an embarrassment.
After all, one of the justifications the Court gave for decreeing an end to the death penalty for murders (no matter how many) committed by a juvenile was that life without parole was a severe enough punishment. How could the majority—in an opinion written by the very author of Roper—now say that punishment is also unconstitutional? The Court expressly refused to say so in Miller.
So the Court refuses again today, but merely makes imposition of that severe sanction a practical impossibility.And then, in Godfather fashion, the majority makes state legislatures an offer they can’t refuse: Avoid all the utterly impossible nonsense we have prescribed by simply “permitting juvenile homicide offenders to be considered for parole.”
A judge in Minnesota got around all of that a few weeks ago when he resentenced a person who was a juvenile when he killed three people at the Seward Market in 2010.
The killer’s original sentence of life without parole was modified. Instead, the judge gave Mahdi Hassan Ali a chance of parole after 30 years for each of the counts of murder, but ordered the sentences served consecutively so he’ll never be released from prison.
Related: What’s the Point of a Supreme Court Dissent? (The Nation)
