The U.S. Supreme Court on Monday refused to take up a Pennsylvania case in which the state’s high court chose not to make retroactive a law banning mandatory prison terms of life without parole for juvenile offenders.
The rejection is a blow to advocates for as many as 500 inmates across the commonwealth who were sentenced to mandatory life terms before they turned 18, as well as to as many as 2,000 others across the country who were watching to see what might happen if the Supreme Court had heard arguments on Cunningham v. Pennsylvania.
Still, hope remains among attorneys and academics watching the issue, as they believe the U.S. Supreme Court ultimately will have to decide the issue.
“Because [judicial reviews] are discretionary, the court will often pick the case very carefully — even if it wants to address the issue,” said Cara Drinan, who teaches at the Columbus School of Law at Catholic University of America. “It will wait until the issue is ripe and presented just the right way.”
Across the country, state supreme courts are split on the issue. Thus far, six states — Illinois, Texas, Louisiana, Mississippi, Iowa and Massachusetts — have found that Miller is retroactive. Just three — Pennsylvania, Michigan and Minnesota — have found that it is not.
Ms. Drinan suspects the high court is waiting for a full split among the federal circuits before taking it up.
Most of the cases thus far at the federal level, she said, are in early stages, although four U.S. circuit courts — the Second, Third, Fourth and Eighth — have said petitioners are allowed to move forward with claims seeking resentencing under Miller, while the Fifth and Eleventh have said they cannot.
In October, the Pennsylvania Supreme Court, in a 4-3 decision in Cunningham, found that the precedent established in the 2012 U.S. Supreme Court case of Miller v. Alabama does not apply retroactively. The court said it only applies for new cases within the system.
In the Miller case, the the high court found that mandatory life terms for juveniles are unconstitutional. It set out a new sentencing procedure to determine if a life penalty is appropriate, requiring a sentencing judge to consider a juvenile's age, level of maturity, family and home environment, as well as the extent of participation in the crime, impact of family and peer pressure, as well as the possibility of rehabilitation.
In the Pennsylvania case, Ian Cunningham, who was 17 at the time, was found guilty of second-degree murder during a robbery in Philadelphia in 2002. Following the Miller decision, he filed an appeal with the state Supreme Court asking that the decision be applied retroactively.
But in its opinion, the state Supreme Court found that the change to the law laid out by Miller is only procedural — and not substantive — which means that it cannot be applied retroactively.
“While the [U.S. Supreme] court could have been more explicit in its language, as a matter of fairness, it needs to be retroactively applied,” Ms. Drinan said.
She agrees that the issue of changing how a sentencing proceeding is done may sound like it is simply a part of “procedure,” the outcome of Miller making mandatory life terms no longer permissible is a substantive change.
Pennsylvania has more juvenile lifers than any other state, according to the Campaign for the Fair Sentencing of Youth. In Allegheny County, there are about four dozen who have been convicted as juveniles. Philadelphia has more than 250.
Those who follow the U.S. Supreme Court were not surprised that review was denied in the Cunningham case, because it takes such a fraction of the thousands of petitions submitted each year, as few as 100 from as many as 8,000 petitions filed, Ms. Drinan said.
But they agree that it ultimately will be decided.
Hugh Burns, who heads the appellate unit for the Philadelphia district attorney’s office and wrote and argued against retroactivity in the Cunningham case, was satisfied by the state Supreme Court decision.
“Eventually, they’ll have to address the merits of the issue because of the split,” he said. “Maybe they just don’t want to do it now.”
Emily Keller, a staff attorney at the Juvenile Law Center who worked on the Cunningham case, said that the U.S. Supreme Court might be waiting to see if the lower federal courts resolve the issue.
“It’s slowly starting to percolate through the district courts and circuit courts,” Ms. Keller said. “Justice shouldn’t depend on the arbitrary date a conviction became final.”
There now are hundreds of federal habeas petitions in the three district courts in Pennsylvania already pending seeking retroactivity, she said.
Among them is one from Jeffrey Cristina, who is serving a mandatory life prison term after being found guilty of second-degree murder in 1976. He was one of the first juvenile lifers in Allegheny County to seek review under Miller and was to have a resentencing hearing before Common Pleas Judge Anthony M. Mariani in April 2013. However, the district attorney's office objected, so the case continues to make its way through the appeals process.
Steve Townsend, who represents Christina, who has never had a single misconduct during his nearly 39 years of incarceration with the Pennsylvania Department of Corrections, was again disappointed in the decision not to take the case Monday.
“At some point in time, they’re going to have to address the issue,” Mr. Townsend said.
“For Cristina, I don’t think it’s over. His appeal isn’t final so there’s still light at the end of the tunnel.”
Paula Reed Ward: email@example.com or 412-263-2620. First Published June 9, 2014 12:37 PM