For the Defense - Vol. 7, Issue 2 - 31

were imposed upon juveniles, which states had banned
imposition of the death penalty upon juveniles, and what
was the national trend. The Supreme Court also examined
scientific research that demonstrated that the juvenile
brain is not fully developed until about 25 years of age.
In 2010 in Graham, the United States Supreme Court
held that it was a violation of the Eighth Amendment to
sentence a juvenile to life imprisonment for non-homicide
crimes. Graham was sentenced to life imprisonment for a
violation of his burglary probation. In Florida, they take
probation violations quite seriously. Justice Kennedy
reversed Graham's life sentence. In doing so, the Court
held:
A State is not required to guarantee eventual
freedom to a juvenile offender convicted of a
nonhomicide crime. What the State must do,
however, is give defendants like Graham some
meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation. It
is for the State, in the first instance, to explore
the means and mechanisms for compliance. It
bears emphasis, however, that while the Eighth
Amendment prohibits a State from imposing
a life without parole sentence on a juvenile
nonhomicide offender, it does not require the
State to release that offender during his natural
life. Those who commit truly horrifying crimes
as juveniles may turn out to be irredeemable,
and thus deserving of incarceration for the
duration of their lives. The Eighth Amendment
does not foreclose the possibility that persons
convicted of nonhomicide crimes committed
before adulthood will remain behind bars for
life. It does prohibit States from making the
judgment at the outset that those offenders
never will be fit to reenter society.9
In Miller, the Supreme Court extended the Graham
holding to bar the imposition of mandatory life
sentences for juveniles convicted of murder. The Court
grounded its holding in the physical science and social
science that shows fundamental differences between
juveniles and adults. The Court recognized that " youth is
more than a chronological fact. It is a time of immaturity,
irresponsibility, impetuousness[,] and recklessness. It is a
moment and condition of life when a person may be most
susceptible to influence and to psychological damage.
And its signature qualities are all transient. " 10
The Court
in Miller reiterated its analysis from Roper and Graham
" that those [scientific] findings - of transient rashness,
proclivity for risk, and inability to assess consequences -
both lessened a child's 'moral culpability' and enhanced
the prospect that, as the years go by and neurological
development occurs, his 'deficiencies will be reformed.' " 11
The Court noted that none of what Graham " said about
children - about their distinctive (and transitory) mental
traits and environmental vulnerabilities - is crimespecific. " 12
Accordingly,
the Court emphasized " that the
distinctive attributes of youth diminish the penological
justifications for imposing the harshest sentences on
juvenile offenders, even when they commit terrible
crimes. " 13
2012 to 2021 - Batts I to Montgomery to Batts II
Though the parties had already filed briefs in Batts I, the
Pennsylvania Supreme Court on December 6, 2011, held
the matter open pending the Supreme Court's decision in
Miller. The Miller decision issued on June 25, 2012, and
two weeks later, on July 9, 2012, the Pennsylvania Supreme
Court ordered filing of supplemental briefs and the
matter placed on the September argument list. A month
later, on August 6, 2012, the Pennsylvania Supreme Court
granted review in Cunningham to review the question of
Miller's retroactivity. In fact, the Pennsylvania Supreme
Court decided that Miller's retroactivity was so urgent that
it included the following in its order granting review:
This matter is to be listed for argument at
the next scheduled session, with an expedited
briefing schedule. Appellant's brief is due August
24, 2012; appellee's brief is due September 7,
2012. No reply briefs will be accepted. Given the
expedited schedule, no briefing extensions will
be entertained.14
That the Pennsylvania Supreme Court required that
Appellant's
brief in Cunningham be filed 2½ weeks
after review was granted, gave the Commonwealth
two weeks to respond, precluded the filing of a reply
brief, and warned that there would be no briefing
extensions permitted, demonstrated the importance the
Pennsylvania Supreme Court felt to provide immediate
guidance to the lower courts regarding on the impact of
Miller on Pennsylvania law.15
After all, Pennsylvania had
521 juvenile lifers, the most in the country, with Michigan
a distant second at 363.16
The Pennsylvania Supreme Court provided part of
that guidance to the lower courts the following year
when it decided Batts I. Under Pennsylvania law, a
person convicted of first- or second-degree murder must
be given a mandatory life sentence. Batts had argued
that as applicable to juveniles, Miller had invalidated
Pennsylvania's entire mandatory life sentencing scheme
for first- and second-degree murder. He contended that
the only remaining viable sentencing statute was that
for third degree murder. The Pennsylvania Supreme
Court rejected that argument. The Pennsylvania Supreme
Court examined the two relevant statutes dealing with
life sentences: 61 Pa.C.S.A. § 6137(a)(1), which barred
the Parole Board from granting parole for those inmates
Vol. 7, Issue 2 l For The Defense 31
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