For the Defense - Volume 2, Issue 2 - 2017 - 20
committed homicide "preclude[s] a sentencer
from taking account of an offender's age and
the wealth of characteristics and circumstances
attendant to it."10 The Court held that LWOP in
juvenile homicide cases could only be imposed
after conducting an individualized sentencing
hearing. Further, even after such a hearing,
LWOP should only be imposed in the rarest of
circumstances.11
Miller did not address the question of retroactivity of the decision. Within a few years after
Miller, many states' supreme courts concluded
that the holding in Miller did not apply retroactively.12 This is the position that Pennsylvania's
Supreme Court held in Commonwealth v.
Cunningham.13 Courts that held that Miller was
not retroactive reasoned that Miller had simply
provided a new rule of criminal procedure for
future cases.14 Other states, however, decided
that Miller established a new substantive rule of
sentencing that would require resentencing of
pre-Miller juvenile cases where the defendants
received mandatory LWOP.15 Indeed, in 2014,
the United States District Court of the Eastern
District of Pennsylvania decided, in Songster
v. Beard16 that, contrary to the Pennsylvania
Supreme Court's ruling in Cunningham, a retroactive application of Miller was required. The
Commonwealth appealed to the Third Circuit
Court of Appeals.17 While the appeal was pending, SCOTUS made its decision in Montgomery.18
The Third Circuit then remanded Songster's
case "for proceedings not inconsistent with
Montgomery,"19 and in August 2016, the Eastern
District of Pennsylvania granted Songster's
habeas petition and ordered that Songster be
resentenced.20
Pennsylvania now faces the task of addressing requests for resentencing from nearly five
hundred JLWOP inmates. Currently, Pennsylvania
law is unclear about the reach of Montgomery,
especially regarding second-degree murder
cases and concerning applicable maximum and
minimum alternative sentences.21 Whatever the
resolution of those matters, Pennsylvania courts
will be compelled to consider the issues at the
heart of the Miller and Montgomery requirements: individualized resentencing that takes
into account developmental and psychological
factors with the potential for mitigation.
20
For The Defense | Vol. 2, Issue 2
Relevant Factors in
Montgomery Resentencing
Miller and at least two Pennsylvania cases offer
trial court judges and attorneys guidance on the
nature of the evidence to be considered at a resentencing hearing. Soon after the Miller decision, the
Pennsylvania Supreme Court in Commonwealth v.
Batts (hereinafter "Batts")22 defined a minimum
standard for developmental factors in mitigation
that should be considered at a Miller resentencing
hearing. Most recently, the U.S. District Court for
the Eastern District of Pennsylvania in Songster v.
Beard23 offered instructions consistent with Miller
and significant clarification related to resentencing. Here we briefly describe those Miller factors
before offering suggestions about the role of
experts when providing evidence regarding these
factors.24 Rooting these suggestions in the language of the law, we hope that defense attorneys
will share this article with retained experts.
Factor 1: Miller identified adolescents'
"chronological age and its hallmark features-
among them, immaturity, impetuosity, and failure
to appreciate risks and consequences"25 and the
propensity for juveniles' decisions and actions to
reflect immature "recklessness, impulsivity and
heedless risk-taking."26 Batts clarified that the trial
court should also consider "his emotional maturity
and development ... his drug and alcohol history
... his mental health history."27
Factor 2: Miller referred to youths' greater
social dependency as a central factor to consider.
Adolescents "are more vulnerable . . . to negative
influences and outside pressures," including from
their family and peers; they have limited "contro[l]
over their own environment" and lack the ability
to extricate themselves from horrific, crime-producing settings."28 Batts elaborated that trial
courts should consider the individual's "family,
home and neighborhood environment [and] his
past exposure to violence."
Factor 3: Miller required courts to consider "the
circumstances of the homicide offense, including
the extent of [the individual's] participation in the
conduct and the way familial and peer pressures
may have affected him."29 Related to this factor,
Batts also said the trial court should consider the
individual's "extent of participation in the crime."
Factor 4: The Miller court noted that an
adolescent's potential for rehabilitation must be
Table of Contents for the Digital Edition of For the Defense - Volume 2, Issue 2 - 2017
For the Defense - Volume 2, Issue 2 - 2017 - 1
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For the Defense - Volume 2, Issue 2 - 2017 - 52
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