MILLER/JACKSON IS FULLY RETROACTIVE
In Miller v. Alabama/Jackson v. Hobbs, 132 S. Ct. 2455 (2012), the Supreme Court
banned mandatory life-without-parole sentences for juveniles. This ban is fully retroactive.
The Supreme Court itself applied it retroactively in Jackson v. Hobbs, a case on collateral
review. The Court’s decision to grant relief in Jackson requires that the ban on mandatory
juvenile life-without-parole sentences be applied to all collateral cases. The Court also relied
on Eighth Amendment cases that created fully retroactive bans on certain death and lifewithout-parole sentences. Miller/Jackson’s ban on mandatory life-without-parole sentences
for children is no different from these cases. In addition, the Supreme Court’s ruling made
clear that, like its previous juvenile sentencing cases, the rule in Miller/Jackson fits into the
first exception enunciated in Teague v. Lane, 489 U.S. 288 (1989), and is therefore
retroactive. Finally, this Court is entitled to find that Miller/Jackson is retroactive under state
law. Danforth v. Minnesota, 522 U.S. 264 (2008). For all of these reasons, the State’s
argument that Miller/Jackson does not apply retroactively is without merit.
I.
The Supreme Court’s Reversal of Kuntrell Jackson’s Sentence Makes Its Ban
on Mandatory Life-Without-Parole for Juveniles Retroactive.
The Supreme Court has long held that when it applies a new rule of constitutional law
to a case on collateral appeal, that rule necessarily applies retroactively to all such cases.
Teague, 489 U.S. at 316 (“We . . . refuse to announce a new rule in a given case unless the
rule would be applied retroactively to the defendant in the case and to all others similarly
situated.”); see Penry v. Lynaugh, 492 U.S. 302, 313 (1989) (noting that under Teague,
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Supreme Court will not apply a new rule to a case on collateral review unless that rule
applies retroactively to all cases on collateral review), abrogated on other grounds by Atkins
v. Virginia, 536 U.S. 304 (2002).
In Miller/Jackson, the Court banned mandatory life-without-parole sentences for
juveniles, 132 S. Ct. at 2475, and applied that ruling to reverse Kuntrell Jackson’s sentence,
id. at 2475. Jackson’s conviction became final in 2004, Jackson v. State, 194 S.W.3d 757
(Ark. 2004), and his case reached the Supreme Court after the Arkansas Supreme Court
affirmed the dismissal of Jackson’s state petition for habeas corpus. Jackson v. Norris, 2011
Ark. 49 (Ark. 2011), cert. granted sub nom Jackson v. Hobbs, 132 S. Ct. 538 (2011). In
reversing the judgment of the Arkansas Supreme Court, the Supreme Court applied the ban
on mandatory life-without-parole sentences for juveniles retroactively to a case on collateral
review. By granting relief in Jackson, the Court made its ban on mandatory life-withoutparole for juveniles fully retroactive to all defendants on collateral review. Teague, 489 U.S.
at 309 (“[O]nce a new rule is applied to the defendant in the case announcing the rule,
evenhanded justice requires that it be applied retroactively to all who are similarly
situated.”); see also Griffith v. Kentucky, 479 U.S. 314, 323 (1987) (“[S]elective application
of new rules violates the principle of treating similarly situated defendants the same.”). See
Teague, 489 U.S. at 316 (holding that creation of new rule in habeas case requires that rule to
be “applied retroactively to all defendants on collateral review”); see also Tyler v. Cain, 533,
U.S. 656, 668 (2001) (O’Connor J. concurring) (explaining that Supreme Court need not
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expressly hold new rule to be retroactive, but retroactivity may be “logically dictate[d]”).1
1
The Courts of Appeals have viewed Justice O’Connor’s concurrence in Tyler as
being elucidative of the majority’s opinion. See, e.g., Cannon v. Mullin, 297 F.3d 989, 99394 & n.3 (10th Cir. 2002) (noting that Justice O’Connor’s concurrence provided necessary
fifth vote in Tyler and citing her description of standard for establishment of retroactivity by
“strict logical necessity”); In re Turner, 267 F.3d 225, 228 (3d Cir. 2001) (“[Justice
O’Connor’s] reasoning adds to our understanding of the impact of Tyler.”); Forbes v. United
States, 262 F.3d 143, 145 n.4 (2d Cir. 2001) (per curiam) (noting that Justice O’Connor’s
concurrence was “necessary to achieve a majority” in Tyler).
3
The Court was fully aware that it was applying its ban on mandatory juvenile lifewithout-parole sentences retroactively. See Miller/Jackson, 132 S. Ct. 2461 (describing
procedural history of Jackson’s state habeas corpus petition); id. at 2477 (Breyer, J.
concurring) (discussing possible findings in Jackson’s case on remand); see also id. (Roberts,
C.J. dissenting) (noting more than 2000 prisoners are serving mandatory juvenile lifewithout-parole sentences).2 Indeed, if the Court did not intend for Miller/Jackson to apply
retroactively, it would have announced its ban on mandatory juvenile life-without-parole
sentences only in Miller, a case on direct appeal. Compare Graham v. Collins, 506 U.S.
461, 466-67 (1993) (refusing to grant relief in collateral case because granting relief would
require announcement of new rule of constitutional law), with Johnson v. Texas, 509 U.S.
350, 352-53 (1993) (noting that defendant raising same issue as petitioner in Graham was
entitled to ruling on merits because issue was raised on direct review).
The Supreme Court reversed Kuntrell Jackson’s mandatory juvenile life-withoutparole sentence. That it did so means its ban on mandatory juvenile life-without-parole
2
The dissenters were especially critical of the Miller/Jackson Court’s ruling because
they perceived its impact would be to invalidate existing mandatory juvenile life-withoutparole sentences in order to make these sentences more rare. 132 S. Ct. at 2481 (Roberts,
C.J. dissenting) (“[T]he Court’s gratuitous prediction [that mandatory juvenile life-withoutparole sentences would be uncommon] appears to be nothing other than an invitation to
overturn life without parole sentences imposed by juries and trial judges.”) (emphasis
added); id. at 2486 (Thomas, J. dissenting) (“The Court had, thus, gone from merely divining
the societal consensus of today to shaping the societal consensus of tomorrow.”) (internal
quotations omitted); id. at 2490 (Alito, J. dissenting) (“[W]hat the majority is saying is
members of society must be exposed to the risk that these convicted murderers, if released
from custody, will murder again.”).
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sentences is fully retroactive to all defendants on collateral review. The full retroactive
application of Miller/Jackson to cases on collateral review therefore was announced by the
decision itself.
II.
The Court Relied on Precedent That is Fully Retroactive.
In creating a ban on mandatory juvenile life-without-parole sentences, the Court relied
on cases prohibiting juvenile death sentences, juvenile life-without-parole sentences for
nonhomicide offenders, and mandatory death sentences. These Eighth Amendment decisions
all are fully retroactive. Miller/Jackson rule barring mandatory juvenile life- without-parole
sentences under the Eighth Amendment is likewise fully retroactive.
The Court’s ban on mandatory juvenile life-without-parole sentences flowed from two
strands of precedent: (1) categorical bans on juvenile death sentences and juvenile lifewithout-parole for nonhomicide crimes; and (2) the ban on mandatory death sentences.
Miller/Jackson, 132 S. Ct. at 2463-64. In the first strand of precedent, the Court drew a
direct line from earlier cases that “specially focused on juvenile offenders, because of their
lesser culpability.” Id. The first such case was Roper v. Simmons, 543 U.S. 551, 569 (2005),
which prohibited the death penalty for juveniles. Roper, like Jackson, was a state postconviction case, id. at 559-60, and was fully retroactive. See Loggins v. Thomas, 654 F.3d
1204, 1206 (11th Cir. 2011) (noting Roper applied retroactively to case on collateral review);
Lee v. Smeal, 447 F. App’x 357, 359 n.2 (3d Cir. 2011) (unpublished) (same); Horn v.
Quarterman, 508 F.3d 306, 308 (5th Cir. 2007); LeCroy v. Sec'y, Florida Dept. of Corr., 421
5
F.3d
1237,
1239
(11th
Cir.
2005)
(same);
Sharikas
v.
Kelly,
1:07CV537CMHTCB, 2008 WL 6626950 (E.D. Va. Apr. 7, 2008)
(unpublished) (noting that Roper is retroactive on collateral review);
Holly v. Mississippi, 3:98CV53-D-A, 2006 WL 763133 (N.D. Miss. Mar.
24, 2006) (unpublished) (applying Roper retroactively to case on collateral review);
Little v. Dretke, 407 F. Supp. 2d 819, 824 (W.D. Tex. 2005) (same); Baez Arroyo v. Dretke,
362 F. Supp. 2d 859, 883 (W.D. Tex. 2005) (same), aff’d sub nom Arroyo v. Quarterman,
222 F. App’x 425 (5th Cir. 2007) (unpublished); Sims v. Commonwealth, 233 S.W.3d 731,
733 (Ky. Ct. App. 2007) (“Roper must be given retroactive application in all those cases in
which a sentence of death was imposed upon a defendant who was under the age of 18 at the
time he committed the crime.”); Duncan v. State, 925 So. 2d 245, 252 (Ala. Crim.
App. 2005) (applying Roper retroactively).
After Roper, the Supreme Court banned life-without-parole sentences for juvenile
nonhomicide offenders in Graham v. Florida, 130 S. Ct. 2011 (2010). Graham too is fully
retroactive to cases on collateral review. See, e.g., In re Sparks, 657 F.3d 258, 262 (5th Cir.
2011) (holding Graham was made retroactive on collateral review); Bonilla v. State, 791
N.W.2d 697, 700-01 (Iowa 2010) (holding Graham applies retroactively); see also In re
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Evans, 449 Fed. App’x 284 (4th Cir. 2011) (per curiam) (unpublished) (noting Government
“properly acknowledged” Graham applies retroactively on collateral review); Kleppinger v.
State, 81 So. 3d 547, 550 (Fla. Dist. Ct. App. 2012) (applying Graham on collateral review);
Manuel v. State, 48 So. 3d 94, 97 (Fla. Dist. Ct. App. 2010) (same); State v. Dyer, 77 So. 3d
928, 929 (La. 2012) (same); Rogers v. State, 267 P.3d 802, 804 (Nev. 2011) (noting that
district court properly applied Graham retroactively). Both Graham and Roper were
retroactive because they created substantive rules that “prohibit[ ] a certain category of
punishment for a [certain] class of defendants because of their status or offense.” Sparks,
657 F.3d at 262 (quoting Penry, 492 U.S. at 330 (alterations in Sparks)).
In the second strand of precedent, the Supreme Court relied on cases prohibiting
mandatory death sentences. Miller/Jackson at 2463-65 (citing Woodson v. North Carolina,
428 U.S. 280 (1976) (plurality opinion) and Lockett v. Ohio, 438 U.S. 586 (1978)). The
Court also cited Sumner v. Shuman, 483 U.S. 66 (1987), a federal habeas corpus case that
extended Woodson’s ban on mandatory death sentencing and is fully retroactive. See
Campbell v. Blodgett, 978 F.2d 1502, 1512-13 (9th Cir. 1992) (determining merits of
Shuman claim in case that became final two years before Shuman decided); Thigpen v.
Thigpen, 926 F.2d 1003, 1005 (11th Cir. 1991) (noting death
sentence set aside on Shuman grounds in federal habeas corpus case);
McDougall v. Dixon, 921 F.2d 518, 530-31 (4th Cir. 1990) (determining merits of Shuman
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claim in case that became final four years before Shuman decided).
The mandatory death penalty cases make clear that these sentences violated the Eighth
Amendment because they were a uniquely harsh type of sentence. Woodson, 428 U.S. at 293
(citing consensus of jurisdictions rejecting mandatory death sentences as “unduly harsh and
unworkably rigid”); Roberts v. Louisiana, 428 U.S. 325, 332 (1976) (noting “unacceptable
severity of the common-law rule of automatic death sentences”). Courts have similarly
recognized the unique, qualitative difference between mandatory death sentences and other
mandatory sentences in rejecting Eighth Amendment challenges to mandatory non-capital
sentences for adults. See Harmelin v. Michigan, 501 U.S. 957, 995 (1991);3 United States v.
Brucker, 646 F.3d 1012, 1018 n.4 (7th Cir. 2011) (rejecting Woodson challenge to mandatory
minimum sentence of 120 months imprisonment).
Miller/Jackson itself specifically
recognized that, like mandatory death sentences, mandatory life-without-parole is a unique
sentence that is unduly harsh when imposed on a juvenile. 132 S. Ct. at 2468 (noting
mandatory life-without-parole will impose a “greater sentence” on children than on the vast
3
The Miller/Jackson Court dispelled any ambiguity about whether it was establishing
a ban on a particular, unique sentence when it rejected the States’ contention that in order to
invalidate Miller’s and Jackson’s mandatory life-without-parole sentences, the Court would
have to overturn Harmelin. Harmelin held that the mandatory nature of a sentence does not
render it cruel and unusual. 501 U.S. at 995. The Court did nothing to upset this precedent,
but rather restated what it had held “on multiple occasions[,] that a sentencing rule
permissible for adults may not be so for children.” Miller/Jackson, 132 S. Ct. at 2470. The
Court further analogized to the death penalty cases: “[I]f (as Harmelin recognized), ‘death is
different,’ children are different too.” Id. The Court made clear that its ruling addressed a
particular type of punishment – mandatory life-without-parole – that could not be imposed on
a specific class of defendants – children. Therefore its ruling banned a specific punishment
as cruel and unusual.
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majority of adults); cf. id. at 2479 (Roberts, C.J. dissenting) (“The sentence at issue is
statutorily mandated life-without-parole.”). As such, the Court recognized that mandatory
life-without-parole sentences for juveniles are cruel and unusual. Id. at 2475 (“[T]he
mandatory sentencing schemes before us violate . . . proportionality, and so the Eighth
Amendment’s ban on cruel and unusual punishment.”).
Accordingly, the ban on mandatory juvenile life-without-parole sentences flows
directly from the Court’s fully retroactive rules in Roper, Graham, and the mandatory death
penalty cases. The Court’s reliance on Shuman, a case retroactively barring mandatory
imposition of the death penalty, leaves no question that Miller/Jackson applies retroactively
to mandatory juvenile life-without-parole sentences.4
III.
Miller/Jackson is Fully Retroactive Under Teague.
4
The fact that the Court left open the possibility that a juvenile could be resentenced to
life-without-parole on remand does not alter the retroactivity analysis for the same reason
that the Court’s mandatory death penalty cases are retroactive despite the fact that individuals
who received mandatory death sentences could have been resentenced to death.
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In Teague v. Lane, the Supreme Court held5 that a new rule will be applied
retroactively only if it places “certain kinds of primary, private conduct beyond the power of
the criminal law to proscribe” or (2) creates a procedure “implicit in the concept of ordered
liberty.” Teague, 489 U.S. at 310-11. Under Teague, the Court will not apply or announce a
new rule in a case on collateral review unless it falls into one of these two exceptions. See
Penry, 536 U.S. at 313. Thus, by applying its ban on mandatory juvenile life-without-parole
sentences in Jackson, the Court made clear that Miller/Jackson is retroactive under one of the
Teague exceptions.
The ban on mandatory juvenile life-without-parole announced in Miller/Jackson falls
within Teague’s first exception because, as the Court explained in Penry, the first exception
includes rules that “prohibit[] a certain category of punishment for a class of defendants
because of their status or offense.” Penry, 492 U.S. at 330. Miller/Jackson prohibits a
particular punishment (mandatory life-without-parole) for a class of defendants (juveniles)
because of their child status. It fits squarely within Teague’s first exception.
Further, like Roper and Graham, multiple cases “necessarily dictate retroactivity of
the new rule” announced in Miller/Jackson. See Tyler, 533 U.S. at 666. In Justice
O’Connor’s formulation, “[I]f we hold in Case One that a particular type of rule applies
retroactively to cases on collateral review and hold in Case Two that a given rule is of that
particular type, then it necessarily follows that the given rule applies retroactively to cases on
5
This rule was stated in a plurality opinion in Teague, later adopted by the majority of
the Court in Penry.
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collateral review.” Id. at 668-69 (O’Connor, J. concurring). The Court held in Penry (Case
One) that a rule prohibiting a category of punishment for a class of defendants applies
retroactively to cases on collateral review. 492 U.S. at 330.
The Court in Miller/Jackson (Case Two) held that its rule banning mandatory lifewithout-parole sentences for juveniles is of that particular type, just like the rules announced
in Roper and Graham. In each of these circumstances, the Supreme Court prohibited a
particular punishment for juveniles, thereby announcing a rule that applies retroactively
based on its previous holding in Penry. See Tyler, 533 U.S. at 669 (O’Connor, J.
concurring); Sparks, 657 F. 3d at 262 (“By the combined effect of the holding of Graham
itself and the first Teague exception, Graham was therefore made retroactive on collateral
review by the Supreme Court as a matter of logical necessity under Tyler.”). The Court held
in Miller/Jackson, as it did in Roper and Graham, that “the Constitution itself deprives the
State of the power to impose a certain penalty[,]” namely mandatory life-without-parole, on
juveniles. Penry, 492 U.S. at 330. This rule fits squarely within Teague’s first exception and
is fully retroactive.
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IV.
This Court May Also Apply Miller/Jackson Retroactively Under Danforth v.
Minnesota.
Further, this Court is empowered to apply Miller/Jackson retroactively under state
law. In Danforth v. Minnesota, 522 U.S. 264 (2008), the Supreme Court made clear that
federal law does not limit the state courts’s authority to provide retroactive remedies even if a
rule is deemed non-retroactive under Teague. Id. at 282. If a new rule is found not to apply
retroactively under Teague, that “does not imply that there was no right and thus no violation
of that right at the time of trial – only that no remedy will be provided in federal habeas
courts.” Id. at 291 (emphasis added). The states remain free to “give broader retroactive
effect to [the Supreme] Court’s new rules . . . in state postconviction proceedings.” Id. at
289.
For all of the reasons discussed above, Miller/Jackson plainly entitles individuals to
relief on federal habeas, and therefore must be applied to all individuals on collateral review.
Teague, 489 U.S. at 316. But this Court has ample additional authority to provide a remedy
to individuals seeking review of their sentences in state court.
V.
Conclusion
The Supreme Court already applied Miller/Jackson retroactively in a case on collateral
review. The law now requires that it be applied retroactively to all individuals similarly
situated.
Any further analysis of the retroactivity question yields the same result:
Miller/Jackson’s ban on mandatory life-without-parole sentences is fully retroactive.
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