Montgomery’s Messy Trifecta

By Douglas A. Berman

Montgomery v. Louisiana 1 is a dynamic and multifaceted Supreme Court ruling sure to engender plenty of extended analysis—and plenty of lower- court litigation—in the years to come. In this short commentary, I seek only to spotlight the import and impact of Montgomery arriving at the Court at the intersection of three conceptually challenging and jurisprudentially opaque areas of law.

First, Montgomery came to the Court as an Eighth Amendment case requiring the Justices to struggle yet again with the counter-majoritarian question of what limits the Cruel and Unusual Punishments Clause puts on government powers to impose certain sentences on certain defendants for certain crimes. Second, Montgomery came to the Court as a retroactivity case requiring the Justices to struggle with the practical question of how new constitutional rules are to apply to old and seemingly settled criminal judgments. Third, Montgomery became a federalism case because the Justices, when granting certiorari review, added the jurisdictional question of whether the Court even had authority to review how Louisiana had implemented the Supreme Court’s prior decisions on Eighth Amendment and retroactivity issues.

Each of these three areas of law—Eighth Amendment limits on sentences, retroactivity of new constitutional rules, and federal review of state criminal adjudications—are so intricate and so important that my aspirations here are quite modest. Specifically, my goal in the next few pages is to explain my concern that the biggest accomplishment of the majority opinion in Montgomery was achieving a messy trifecta: I fear that, through one relatively short opinion, the Supreme Court managed to make each of these areas of law significantly more conceptually challenging and jurisprudentially opaque than they already were.

Eighth Amendment messiness in Montgomery

I have previously written about the unique and fundamental line-drawing challenges posed by the Eighth Amendment given that most legislatively authorized sentences must be constitutionally sound, and yet a few such sentences must potentially cross an ethereal line that demarcates a punishment as unconstitutionally “cruel and unusual.”2 Eighth Amendment rulings, which regularly split the justices five to four, have long been controversial and can often be convoluted: a prominent commentator once described the Supreme Court’s Eighth Amendment work “a jurisprudential train wreck” 3 and the Court has itself admitted that “our precedents in this area have not been a model of clarity.” 4

The Supreme Court recently opened a notable new chapter in its Eighth Amendment jurisprudence via its juvenile sentencing rulings in Graham v. Florida 5 and Miller v. Alabama.6 Read together, Graham and Miller paint a puzzling picture of the Eighth Amendment’s limits on government sentencing powers: in Graham, the Court adopted a one-size-fits-all substantive rule to prohibit juvenile offenders from ever receiving a life-without-parole (LWOP) sentence for any non-homicide offenses; in Miller, the Court stressed “individualized sentencing” Eighth Amendment procedural rules to prohibit legislatures from applying one-size-fits-all mandatory LWOP sentencing statutes to juvenile homicide offenders.

Not surprisingly given the many substantive and procedural issues raised but left unresolved by Graham and Miller, 7 there was considerable uncertainty and many conflicting rulings in lower courts concerning exactly whether, when and how a juvenile offender may be sentenced to life without parole even before the Supreme Court took up Miller retroactivity issues in Montgomery.8 But the majority opinion in Montgomery turns the already puzzling Eighth Amendment picture of Graham and Miller into a jurisprudential M.C. Escher painting largely because, as Justice Scalia observed in his Montgomery dissent, “the majority is not applying Miller, but rewriting it.” 9

Before Montgomery, the seemingly clearest aspect of Miller was to make a particular procedure essential before juvenile murderers could be sentenced to life without parole. In the Miller Court’s own words: “Our decision does not categorically bar a penalty for a class of offenders or type of crime . . . it mandates only that a sentencer follow a certain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty.”10 In setting forth this procedural requirement for LWOP sentencing, though, Miller left unclear what substantive factors might still permit a sentencer to deem a juvenile murderer sufficiently culpable and corrupt to still be punished with life in prison. But the Montgomery opinion does a jurisprudential 180º: the Montgomery majority asserts that Miller “did more than require a sentencer to consider a juvenile offender’s youth before imposing life without parole” because “[e]ven if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” 11 According to Montgomery, Miller in fact did categorically decree “life without parole an unconstitutional penalty for a class of defendants because of their status—that is, juvenile offenders whose crimes reflect the transient immaturity of youth.”12 So, thanks to the way the Montgomery opinion spins the meaning of Miller, it now would seem the Eighth Amendment does in fact make a particular substantive factor essential before any juvenile murderer can ever be sentenced to life without parole—namely there must be a substantive finding that juvenile’s murder did not reflect “transient immaturity.” In setting forth this new substantive Eighth Amendment requirement for LWOP sentencing of juvenile murderers, though, Montgomery made far less clear just what procedures the Constitution requires when a sentencer is seeking to assess a juvenile’s maturity at the time of a murder.

Put simply, Montgomery made an already messy Eighth Amendment jurisprudence concerning the sentencing of juvenile offenders even messier.

Retroactivity messiness in Montgomery

Though Eighth Amendment doctrines have always been conceptually challenging and jurisprudentially opaque, they arguably are simple compared to the Supreme Court’s modern jurisprudence concerning whether, when and how new rules of constitutional law are to apply to old and seemingly settled criminal judgments. Indeed, the Supreme Court was essentially compelled to take up the issue of Miller’s retroactivity because lower courts had split at least three or four different ways when trying to figure out, based on complicated and conflicting Supreme Court retroactivity precedents, whether juvenile defendants sentenced long ago to LWOP under mandatory sentencing statutes must now all get the benefit of the new constitutional rules set forth in the Miller decision.

Retroactivity doctrines have been distinctly difficult to assess and unpack in part because of an enduring uncertainty concerning their legal foundation: throughout a half-century as Justices were continuously “confounded by what Justice Harlan called the ‘swift pace of constitutional change,”13 it was never clear whether the Supreme Court’s varied retroactivity pronouncements were based on constitutional provisions and principles or were interpretations of habeas statutes enacted by Congress or were expressions of the common-law equitable powers of federal courts. In the relatively recent case of Danforth v. Minnesota, 14 however, the Supreme Court seemed to clarify that its modern Teague v. Lane 15 framework for federal retroactivity analysis does not bind state courts because these doctrines are properly understood as “an exercise of [the Supreme] Court’s power to interpret the federal habeas statute.” 16

But, yet again, the majority in Montgomery made unclear what little previously seemed relatively clear: in the course of explaining why there was jurisdiction to consider how Louisiana state courts were applying Teague , the Supreme Court declared that some (but perhaps not all) of its retroactivity jurisprudence has a constitutional foundation:

The Court now holds that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. Teague’s conclusion establishing the retroactivity of new substantive rules is best understood as resting upon constitutional premises. That constitutional command is, like all federal law, binding on state courts. This holding is limited to Teague’s first exception for substantive rules; the constitutional status of Teague’s exception for watershed rules of procedure need not be addressed here. 17

In other words, despite the Court’s seemingly clear prior statement in Danforth that “Teague is based on statutory authority that extends only to federal courts applying a federal statute, [and thus] cannot be read as imposing a binding obligation on state courts,”18 the majority opinion in Montgomery ruled expressly (1) that Teague’s requirement of “retroactivity of new sub – stantive rules is . . . binding on state courts,” 19 and that (2) its retroactivity for watershed rules of procedure may or may not be binding on state courts.

Put simply, Montgomery made already messy retroactivity doctrines even messier.

Federalism Messiness in Montgomery

Neither the state of Louisiana, nor obviously the defendant in Montgomery who filed a certiorari opinion, questioned the jurisdictional authority of the Supreme Court to review how Louisiana had implemented the Supreme Court’s prior decisions on the Eighth Amendment and retroactivity issues. Presumably Louisiana did not dispute the authority of Supreme Court review because (1) it was clear that the Louisiana Supreme Court had chosen to adopt, for state-law purposes, the federal Teague doctrine, and (2) in Michigan v. Long, 20 the Supreme Court had decided that, whenever a state court’s decision rests primarily on federal law, it was jurisdictionally proper for the Supreme Court to review how the state court resolved the federal-law issue. But even though Louisiana did not question the jurisdictional basis for U.S. Supreme Court review of the decision by the Supreme Court of Louisiana, the justices added this question when granting certiorari review: “Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama?”

Perhaps unsurprisingly, in written arguments to the Supreme Court, both Louisiana and the United States stressed that Michigan v. Long provided an appropriate and sufficient basis for the Supreme Court to review how a state court applied federal retroactivity doctrines. 21 But rather than rely on this seemingly uncontroversial ground for its jurisdiction, the Montgomery majority opinion decided it could and should base jurisdiction on the previously discussed flip-flops concerning (1) the nature of the new Eighth Amendment constitutional rule set out in Miller (calling it substantive rather than procedural), and (2) the foundation for all of federal retroactivity jurisprudence (calling it based on the Constitution rather than just an interpretation of federal habeas statutes). To the extent that the Montgomery majority was eager to rewrite Eighth Amendment laws and retroactivity doctrines, its decision to rest jurisdiction on these fronts is arguably not all that consequential. But, especially given that many parts of the majority opinion in Montgomery reads like jurisprudential sleight of hand in light of existing precedents, it is curious and ultimately puzzling that the Supreme Court was not content to rely on more modest grounds to answer the jurisdictional question it created for itself when taking up the case.

Though the ultimate basis the Supreme Court gave for its jurisdiction in Montgomery might seem merely a matter of legal semantics, new significant federalism issues might arise now that the Court has stated that the “retroactivity of new substantive rules is best understood as resting upon constitutional premises.” 22 In particular, if constitutional provisions and principles serve as the basis for some or all of the Supreme Court’s retroactivity doctrines, whether Congress is permitted to restrict federal court’s authority to review the lawfulness of state criminal judgments through revisions of federal habeas statutes becomes far more debatable. Before Montgomery, the Supreme Court and lower federal courts have generally upheld various limits imposed by Congress on the authority of federal courts to review state convictions and sentences. After Montgomery, these rulings and all doctrines limiting federal court review of settled state convictions and sentences are now open to new scrutiny.

Put simply, Montgomery made already messy federalism doctrines concerning federal review of state criminal judgments and procedures even messier.

I wish to conclude by noting, perhaps ironically, that I authored an amicus brief advocating for the outcome the Supreme Court reached in Montgomery, though based in large part on my view that Teague doctrines ought not apply when only a sentence rather than a final conviction is being subject to collateral attack. 23 Thus, my criticisms of the Supreme Court’s work in Montgomery are focused entirely on its means rather than its ends. Nevertheless, as a long-time student of Supreme Court doctrines regarding Eighth Amendment limits on sentences, retroactivity of new constitutional rules, and federal review of state criminal adjudications, I cannot help but now lament that the Montgomery Court managed to make each of these areas of law significantly more conceptually challenging and jurisprudentially opaque than they already were.


NOTES 1. 136 S. Ct. 718 (2016). 2. See Douglas A. Berman, Graham and Miller and the Eighth Amendment’s Uncertain Future , Criminal Justice (magazine), Winter 2013, at 19. 3. Benjamin Wittes, What Is “Cruel and Unusual”? , Pol’y Rev ., no. 134, Dec.2005–Jan. 2006, at 16. 4. Lockyer v. Andrade, 538 U.S. 63, 72 (2003). 5. 130 S. Ct. 2011 (2010). 6. 132 S. Ct. 245 (2012). 7. See Berman, supra note 1, at 19-21; Craig S. Lerner, Sentenced To Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases , 20 G eo . M aso N l. r ev . 25 (2012) 8. See. e.g., Berman, supra note 1, at 19-21; Cara H. Drinan, Misconstruing Graham & Miller , 91 w ash . u . l . r ev . 785 (2014). 9. 136 S. Ct. at 743 (Scalia, J., dissenting). 10. Miller , 132 S. Ct. at 2471. 11. 136 S. Ct. at 734. 12. Id. 13. Montgomery , 136 S. Ct. at 737 (Scalia, J., dissenting, quoting Pickelsimer v. Wainwright, 375 U.S. 2, 4 (1963) (dissenting opinion)). 14. 552 U.S. 264 (2008). 15. 489 U.S. 288 (1989). 16. Danforth , 552 U.S. at 278 17. Montgomery , 136 S. Ct. at 729. 18. Danforth , 552 U.S. at 278-79. 19. Montgomery , 136 S. Ct. at 729. 20. 463 U.S. 1032 (1983). 21. See Brief for State of Louisiana, Montgomery v. Louisiana, No. 14-280 (2015); Brief for the United States as Amici Curae in Support of Petitioner, No. 14-280 (2015). 22. Montgomery , 136 S. Ct. at 729. 23. See Brief for Douglas Berman as Amicus Curae in Support of Petitioner, No. 14-280 (2015).


Douglas A. Berman is the Robert J. Watkins/Procter & Gamble Professor of Law at The Ohio State University Moritz College of Law.