For the Defense - Volume 2, Issue 3 - 2017 - 8

With regard to the presumption, the Court
found that U.S. Supreme Court precedent established a link between the "basic" fact that an
offender is under 18 when he committed the
crime and the "ultimate" fact that he is capable
of rehabilitation and his crime was the result of
"transient immaturity." A faithful application of
Miller therefore required a presumption against
juvenile LWOP.
With regard to the standard of proof, the
Court noted that the "preponderance of the evidence" and "clear and convincing" standards traditionally apply in civil cases. In contrast, proof
"beyond a reasonable doubt" is the criminal standard. The gravity of the liberty interest at stake
and the Supreme Court's directive that the finding of incorrigibility be made with near certainty
required the adoption of the "beyond a reasonable doubt" standard. The Court also imposed a
requirement that the Commonwealth provide reasonable notice of its intent to pursue a juvenile
LWOP sentence.
Finally, with regard to expert testimony, the
Court stated that it was "difficult to conceive of a

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For The Defense | Vol. 2, Issue 3

case where the Commonwealth would not proffer
expert testimony and where the sentencer would
not find expert testimony necessary." Nevertheless, the Court declined to impose a requirement
for expert testimony as a matter of law. Instead,
the sentencing court would address this issue on a
case-by-case basis.

Practice Tips

Argue every factor under Miller
and 18 Pa.C.S. § 1102.1(d),
but emphasize rehabilitation.

In Miller v. Alabama, the Supreme Court articulated a series of factors to consider for a possible
juvenile LWOP sentence: (a) the juvenile's age at
the time of the offense; (b) his diminished culpability and capacity for change; (c) the circumstances of the crime; (d) the extent of his participation in the crime; (e) his family, home, and
neighborhood environment; (f) his emotional
maturity and development; (g) the extent that
familial and/or peer pressure may have affected
him; (h) his past exposure to violence; (i) his drug
and alcohol history; (j) his ability to deal with the
police; (k) his capacity to assist his attorney; (l) his
mental health history; and (m) his potential for
rehabilitation.
The Pennsylvania General Assembly outlined a similar series of factors in 18 Pa.C.S.
§ 1102.1(d), which was enacted after Miller.
However, some of the Miller factors are noticeably absent from § 1102.1(d).13 Nonetheless,
the Pennsylvania Supreme Court requires the
sentencing court to consider all Miller factors
before imposing a juvenile LWOP sentence. 14
Therefore, defense counsel will want to address
all of the Miller factors to make the best possible argument.
The emphasis should always be on the offender's capacity for rehabilitation. A juvenile LWOP
sentence is unconstitutional unless the judge finds
beyond a reasonable doubt that the offender is
"permanently incorrigible." Every "Miller" and
§ 1102.1(d) factor should be argued in light of
this paramount consideration: the juvenile defendant's capacity for rehabilitation, regardless of
the egregiousness of the offense.

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Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 3 - 2017