STATE OF OREGON, Pеtitioner on Review, v. JUSTIN ALAN LINK, Respondent on Review.
(CC 01FE0371AB) (CA A163518) (SC S066824)
Supreme Court of Oregon
March 4, 2021
367 Or 625 | 482 P3d 28
Argued and submitted March 12, 2020; decision of Court of Appeals reversed, judgment of circuit court affirmed March 4, 2021
Defendant moved for an order declaring that the 2001 sentencing scheme applicable to his conviction for aggravated murder violates Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution, as construed by the United States Supreme Court in Miller v. Alabama, 567 US 460, 132 S Ct 2455, 183 L Ed 2d 407 (2012). The trial court denied that motion, and sentenced defendant to “life imprisonment” with a minimum of 30 years without the possibility of parole pursuant to
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
En Banc
On review from the Court of Appeals.*
Benjamin Gutman, Solicitor General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ellen F. Rosenblum, Attorney General.
Marc D. Brown, Chief Deputy Defender, Office of Public Defense Services, Salem, argued the cause and filed the
brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.
Andy Simrin, Andy Simrin PC, Portland, filed the brief for amicus curiae Seth Edwin Koch.
Sara Kobak, Schwabe, Williamson & Wyatt, P.C., Portland, filed the brief for amici curiae American Civil Liberties Union of Oregon, American Civil Liberties Union Foundation, and Youth, Rights & Justice. Also on the brief were Kelly Simon, American Civil Liberties Union of Oregon, Steven M. Watt, American Civil Liberties Union Foundation, and Angela Sherbo and Christa Obold Eshleman, Youth, Rights & Justice.
Crystal Maloney, Brooklyn, New York, filed the brief for amici curiae Oregon Justice Resource Center and Oregon Criminal Defense Lawyers Association.
GARRETT, J.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
GARRETT, J.
I. AGGRAVATED MURDER SENTENCING SCHEME
We begin with a brief overview of the 2001 scheme under which defendant was sentenced.
A. Initial Sentencing
In 2001, aggravated murder was defined as murder “which is committed under, or accompanied by,” certain aggravating circumstances.
For a defendant convicted of aggravated murder,
Thus, a juvenile convicted of aggravated murder could be sentenced to “life imprisonment without the possibility of release or parole” or “life imprisonment.” The choice between those sentences was made following a sentencing proceeding pursuant to
Depending on whether the defendant waived his or her jury right, either the court or the jury would determine whether there were sufficient mitigating circumstances to warrant a sentence of “life imprisonment” under
B. Conversion of Sentence
Because some of defendant‘s arguments on review concern the nature of the murder-review hearing process, we next discuss that process in some detail, keeping our focus on the statutes and rules that apply to a crime committed in 2001. At a murder-review hearing, the board determines whether the prisoner‘s sentence shall be converted to “life imprisonment with the possibility of parole, release to post-prison supervision or work release.”
“(1) The inmate‘s involvement in correctional treatment, medical care, educational, vocational or other training in the institution which will substantially enhance his/her capacity to lead a law-abiding life when released;
“(2) The inmate‘s institutional employment history;
“(3) The inmate‘s institutional disciplinary conduct;
“(4) The inmate‘s maturity, stability, demonstrated responsibility, and any apparent development in the inmate personality which may promote or hinder conformity to law;
“(5) The inmate‘s past use of narcotics or other dangerous drugs, or past habitual and excessive use of alсoholic liquor;
“(6) The inmate‘s prior criminal history, including the nature and circumstances of previous offenses;
“(7) The inmate‘s conduct during any previous period of probation or parole;
“(8) The inmate does/does not have a mental or emotional disturbance, deficiency, condition or disorder predisposing them to the commission of a crime to a degree rendering them a danger to the health and safety of the community;
“(9) The adequacy of the inmate‘s parole plan including community support from family, friends, treatment providers, and others in the community; type of residence, neighborhood or community in which the inmate plans to live;
“(10) There is a reasonable probability that the inmate will remain in the community without violating the law, and there is substantial likelihood that the inmate will conform to the conditions of parole.”
OAR 255-032-0020 (2001). If the board agrees by unanimous vote “that the prisoner is capable of rehabilitation and that the terms of the prisoner‘s confinement should be changed to life imprisonment with the possibility of parole,” the board “shall” enter an order converting the sentence.
The murder-review hearing is conducted “in the manner prescribed for a contested case hearing under
In the event that defendant‘s sentence is converted to life with the possibility of parole, the parties have not addressed in detail what would happen next; that question is affected by statutes and administrative rules that have changed in part since the 2001 date of the crime in this case. However, in its briefing and at oral argument, the state has taken the position that, either at the murder-review hearing or “shortly thereafter” at a “parole hearing,” the board will determine defendant‘s “sentence term” pursuant to the “matrix system.” See
Furthermore, according to the state, the board would set defendant‘s release date based on the sentence term and the date of the crime. In other words, the sentence term would “start” on the date of the crime and “end” when the sentence term expires. See, e.g., Janowski/Fleming v. Board of Parole, 349 Or 432, 456, 245 P3d 1270 (2010) (explaining that the petitioner‘s presumptive sentence under the matrix system had already expirеd). Thus, the board can theoretically set a prison term that makes a prisoner immediately available for parole.
Once the release date is set, the defendant is entitled to be released on that date unless the board finds, at
an exit-interview hearing, “that the prisoner engaged in serious misconduct during confinement” and postpones the release date. See
In sum, at the murder-review hearing, the board will determine whether defendant is “likely to be rehabilitated within a reasonable period of time.” If so, the board is required to convert defendant‘s sentence to life with the possibility of parole. According to the state, at that point or “shortly thereafter,” the board will establish defendant‘s sentence term pursuant to the matrix system and set defendant‘s release date. Defendant then is entitled to release on that date unless the board determines that one of three statutory reasons justifies postponing release. However, according to the state, defendant will be able to seek review of the board‘s subsequent decisions.
II. FACTS
Defendant was charged in 2001 with numerous crimes after he and a group of friends stole a car and sought to conceal that act by murdering the car‘s owner. He was
P3d 936 (2009) (Link II); State v. Link, 260 Or App 211, 317 P3d 298 (2013) (Link III).
In the second direct appeal proceeding, the Court of Appeals remanded the case for resentencing. Link III, 260 Or App at 217. On remand, defendant moved for an order declaring the aggravated-murder sentencing scheme unconstitutional. Specifically, defendant argued that the sentencing scheme violated Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution, as construed by the United States Supreme Court in Miller v. Alabama, 567 US 460, 132 S Ct 2455, 183 L Ed 2d 407 (2012) (holding that the Eighth Amendment prohibits a mandatory sentence of life without parole for juveniles who commit homicide offenses).
The trial court rejected defendant‘s argument that the statutory scheme is categorically unconstitutional and denied the motion. The court then explained that, pursuant to a written stipulation between the parties, to comply with Miller and Montgomery v. Louisiana, 577 US 190, 136 S Ct 718, 193 L Ed 2d 599 (2016), the court would conduct an “evidentiary hearing to determine as a matter of law, whether [d]efendant is ineligible for a sentence of life without the possibility of parole.” The state would “bear the burden of proof to show by a preponderance of the evidence that [d]efendant is eligible for a true[-]life sentence.”
At the evidentiary hearing, the trial court heard testimony from fact witnesses regarding defendant‘s actions surrounding the murder; from family members who described defendant‘s early childhood and adolescent years; and from state corrections employees who described defendant‘s conduct during his years of incarceration. In addition, the court heard from three expert witnesses: (1) Dr. Bonnie Nagel, a neuropsychologist; (2) Dr. James Garbarino, a developmental psychologist; and (3) Dr. Alexander Duncan, a clinical and forensic psychologist.
After the hearing, the trial court concluded that the evidence was insufficient to show that defendant “is the rare juvenile offender whose crime reflects irreparable corruption or irretrievable depravity so extensive that rehabilitation is impossible.” The court cited United States Supreme Court
decisions recognizing a “juvenile‘s diminished culpability and heightened capacity for change,” and noted “the progression of science in the area of adolescent development,” as evidenced by the testimony of the three expert witnesses.9
The court then made several findings regarding defendant‘s involvement in and actions after the murder, his childhood,10 and his actions immediately after being arrested for murder.11 The trial court also made favorable
Turning to the expert witness testimony, the trial court found that Dr. Duncan had concluded that defendant “likely had the onset of conduct disorder around age 13,” but that he “does not have an antisocial personality disorder, nor has [d]efendant exhibited any signs of antisocial behavior in the past 13 years.” Dr. Duncan also concluded
that defendant had not “displayed any features of an adult personality disorder.” Finally, Dr. Duncan concluded that defendant‘s “risk for recidivism and violence is low for both the short and long term.”
Similarly, Dr. Garbarino concluded that it was evident that defendant “was psychоlogically maltreated as a child” and that he likely experienced Type 2 trauma, which “involves chronic, repeated traumatic experiences.” However, Dr. Garbarino opined that defendant‘s “prosocial tendencies exhibited during incarceration suggest [d]efendant was not irreparably damaged as a result of abuse during childhood and adolescence.”
The court then explained that there was “extensive evidence from which to conclude that [d]efendant‘s juvenile conduct disorder has not developed into an antisocial personality disorder. The 180 degree change in [d]efendant‘s behavior is consistent with the expected timing of the physical development of the regulatory prefrontal cortex.” Thus, although defendant‘s conduct prior to his arrival at EOCI “was horrendous and is unforgivable,” that conduct “was a reflection of unfortunate yet transitory immaturity.” Accordingly, the trial court determined that defendant could not be sentenced to life without the possibility of parole.
At a subsequent sentencing hearing, the trial court sentenced defendant to life imprisonment with a minimum of 30 years without the possibility of parole pursuant to
Defendant appealed a third time, reiterating his argument that his sentence of “life imprisonment” under
As discussed in more detail below, 367 Or at 651-52, a divided panel of the Court of Appeals agreed that
sentencing, culminating in Miller, as prohibiting a sentencing court from imposing “the state‘s most severe penalties on a juvenile offender without regard for the unique qualities of youth that might make imposition of that sentence inappropriate,” and concluded that a sentence of life imprisonment is such a sentence. Link IV, 297 Or App at 157-88. The Court of Appeals further noted that defendant had “abandoned” his reliance on Article I, section 16, of the Oregon Constitution and it did not address the constitutionality of defendant‘s sentence under that provision. Id. at 131, 132 n 2.
The state petitioned for review, which we allowed.
III. DISCUSSION
A. Arguments under Article I, Section 16, of the Oregon Constitution
We allowed review to consider the state‘s argument that the Court of Appeals reached
Article I, section 16, of the Oregon Constitution states that “[c]ruel and unusual punishments shall not be inflicted, but аll penalties shall be proportioned to the offense.” Defendant argued to the trial court that Article I, section 16, prohibits his sentence of “life imprisonment” under
As this court has explained, adjudication “resolves legal and factual issues framed by litigants.” State v. McDonnell, 329 Or 375, 389, 987 P2d 486 (1999) (emphasis added). Consistent with that idea of adjudication, courts “embrace[] the preservation requirement,” Peeples v. Lampert, 345 Or 209, 220, 191 P3d 637 (2008), and, accordingly, “generally confine their judgments to the issues that the litigants have raised and submitted for decision,” McDonnell, 329 Or at 390. See also ORAP 5.45(4)(a) (“Each assignment of error must demonstrate that the question or issue presented by the assignment of error timely and properly was raised and preserved in the lower court.“); ORAP 9.20(2) (“If review is not so limited, the questions before the Supreme Court include all questions properly before the Court of Appeals ***“). To that end, this court generally only considers an issue if it is first “presented to the trial court,” Peeples, 345 Or at 219, and the issue is “briefed or
argued on appeal,” see Stanfield v. Laccoarce, 284 Or 651, 659, 588 P2d 1271 (1978).15
Just as an issue that was not preserved at the trial court ordinarily is not amenable to consideration by the Court of Appeals, issues that were not raised in a party‘s brief to the Court of Appeals ordinarily will not be considered by this court. State v. Lacey, 364 Or 171, 180 n 4, 431 P3d 400 (2018), cert den, US, 139 S Ct 1590 (2019) (declining to address state constitutional argument, in part, because issue was not raised in the Court of Appeals); State v. Hamilton, 348 Or 371, 376 n 4, 233 P3d 432 (2010) (noting that the issue was not properly before this court, in part, because defendant did not raise it in the Court of Appeals). This court, in particular, adheres tо the preservation requirement not only to ensure that parties have had fair opportunities to raise and respond to arguments at earlier stages of litigation, but because this court‘s process of resolving legal issues benefits from the consideration given to those issues by the Court of Appeals in its own opinions. See, e.g., State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988) (explaining that it is “important to efficient judicial procedures that the positions of the parties be clearly presented to the initial tribunal and on appeal“).
Preservation is a pragmatic doctrine, and defendant is correct that, in some cases, this court has considered the fact “that certain parallel provisions of the state and federal constitutions are identical in meaning” when determining whether an issue was preserved at trial. State v. Walker, 350 Or 540, 551, 258 P3d 1228 (2011). As such, we have rejected a “hard-and-fast rule” that a litigant always must articulate distinct arguments under the state and federal constitutions, explaining instead that the “appropriate focus” is
“whether a party has given opponents and the trial court enough information to be able to understand the contention and to fairly respond to it. The necessity of fleshing out a contention with more developed or detailed analysis will
depend on the circumstances and the nature of the issue that has been raised.”
Id. at 551-52. In other words, when parallel constitutional provisions are at issue, a party is not necessarily required to develop separate and distinct arguments under both constitutions in the trial court to preserve both issues for review on appeal. However, a party still must frame its argument in a way that gives notice to the trial court and opponents that it is advancing its claim under both constitutional sources.
In his brief at the Court of Appeals, defendant raised two assignments of error: (1) “The trial court erred in imposing a life sentence on defendant, a juvenile offender,” and (2) “The trial court erred in imposing a 30-year mandatory minimum sentence on defendant, a juvenile.” Defendant‘s arguments in support of those assignments of error make clear that the sole source of authority on which he drew was the Eighth Amendment.
First, the brief includes numerous statements that the sentencing scheme “violates the Eighth Amendment to the United States Constitution,” but it includes no comparable assertion that the sentencing scheme violates Article I, section 16 (or the state constitution generally).
Second, defendant‘s appellate brief said nothing to assert or imply that the Eighth Amendment and Article I, section 16, impose substantively identical prohibitions such that the legal arguments that defendant advanced under the former should also bear on the latter. He did not cite case law for any proposition as to Article I, section 16. Throughout the argument section of his brief, defendant mentioned Article I, section 16, only once, to observe that that provision is nearly identical to the cruel-and-unusual-punishment provision in Iowa‘s constitution.16 But, that single reference was part of defendant‘s argument that State v. Lyle, 854 NW2d 378 (Iowa 2014), is instructive regarding the
contours of the Eighth Amendment, despite being decided under the Iowa Constitution. And, in noting that similarity, defendant did not explain why that similarity mattered for purposes of Article I, section 16. Thus, in context, that single reference to Article I, section 16, did not put the
The state observed in its responsive brief at the Court of Appeals that defendant did “not contend that the sentence of life imрrisonment with a 30-year minimum term violates Article I, section 16, of the Oregon Constitution, either on its face or as applied to him.” Defendant did not file a reply brief contesting that point. At oral argument, the state reiterated its understanding that defendant was not making an argument under Article I, section 16. Again, defendant did not contest that point. In light of the foregoing, we agree with the Court of Appeals that defendant did not raise an Article I, section 16, argument in that court.
Defendant next argues that this court should address his Article I, section 16, argument regardless of preservation concerns. Defendant argues that, in State v. Kennedy, 295 Or 260, 266-67, 666 P2d 1316 (1983), this court articulated a “preference” for considering “whether a statute violates the state constitution before embarking on similar, but potentially unnecessary, analysis under the federal constitution.” See also Sterling v. Cupp, 290 Or 611, 614, 652 P2d 123 (1981) (articulating the “first things first” doctrine); State v. Clark, 291 Or 231, 233 n 1, 630 P2d 810 (1981), cert den, 454 US 1084 (1981) (explaining that even if defendant abandoned his state constitutional argument, the rationale underlying the “first things first” doctrine weighed in favor of considering such argument).
It is true that this court has frequently stated a preference for resolving disputes under state law, including the state constitution, if possible. On the other hand, it is a bedrock principle of appellate jurisprudence that courts generally should decide cases as framed by the parties’ properly raised and preserved arguments. The interplay between the “first things first” doctrine and jurisprudential principles such as preservation is a difficult and important
issue that has not received systematic treatment by this court.17 Nevertheless, despite what was said in Sterling and Clark, the trend in this court‘s case law in recent decades has been decidedly against reaching unpreserved arguments under state law. See State v. Selness/Miller, 334 Or 515, 523-24, 540, 542, 54 P3d 1025 (2002) (concluding that the defendants had waived an as-applied challenge under the state constitution before concluding that the defendants’ state facial challenge, as well as their federal double jeopardy challenges, failed); Stelts v. State of Oregon, 299 Or 252, 258, 701 P2d 1047 (1985) (declining to address the state constitutional argument before addressing federal constitutional argument because no developed argument under the state constitution was presented); State v. Farber, 295 Or 199, 207 n 10, 666 P2d 821 (1983), cert den, 464 US 987 (1983) (noting that the court would not consider the state constitutional issue before considering the federal constitutional issue because the state constitutional issue was not briefed); Jack L. Landau, Of Lessons Learned and Lessons Nearly Lost: The Linde Legacy and Oregon‘s Constitutional Law, 43 Willamette L Rev 251, 260 (2007) (discussing this court‘s practice of proceeding to federal constitutional law questions without first determining whether state constitutional law is dispositive).
We do not rule out the possibility that, in a future case, this court may find prudential reasons to address an unpreserved question of state law in addition to, or in lieu of, a federal question. But the procedural history of this case counsels against doing that here. Defendant raised a state constitutional claim at the trial court and then, for unknown reasons, did not do so at the Court of Appeals. The state specifically noted in its response brief and during oral argument at that court that defendant was not raising a state constitutional claim. Defendant had repeated opportunities to refute the state‘s position if he believed it was incorrect, and he
we do not see a prudential justification for allowing defendant to revive his state constitutional claim now. Moreover, defendant identifies none, other than his invocation of the “first things first” doctrine—which, in our recent case law, has not been enough to lead us to reach unpreserved claims. Accordingly, we dеcide as a prudential matter not to address the merits of the Article I, section 16, argument, and we proceed to defendant‘s argument under the Eighth Amendment.
B. Eighth Amendment
This case implicates four United States Supreme Court decisions addressing the requirements that the Eighth Amendment imposes on the sentencing of juveniles. We begin with an overview of those four cases and this court‘s decisions applying them. We then turn to the Court of Appeals decision below. Link IV, 297 Or App 126. Finally, we address defendant‘s arguments on review.18
1. Eighth Amendment and categorical sentencing limitations for juveniles
The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”19 The Supreme Court
has construed the prohibition of cruel and unusual punishment as requiring that the punishment for a crime “be graduated and proportioned to both the offender and the offense.” Miller, 567 US at 469 (quotation marks omitted).
Eighth Amendment proportionality cases fall into two general classifications: (1) “challenges to the length of term-of-years sentences given all the circumstances in a particular case” and (2) “categorical rules to define Eighth Amendment standards.” Graham v. Florida, 560 US 48, 59-60, 130 S Ct 2011, 176 L Ed 2d 825 (2010). “The [second] classification in turn consists of two subsets, one considering the nature of the offense, the other considering the characteristics of the offender.” Id. at 60. But in each of those subsets, the Court has generally taken the following approach:
“The Court first considers ‘objective indicia of society‘s standards, as expressed in legislative enactments and state practice,’ to determine whether there is a national consensus against the sentencing practice at issue. Next, guided by ‘the standards elaborated by controlling precedents and by the Court‘s own understanding and interpretation of the Eighth Amendment‘s text, history, meaning and purpose,’ the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution.”
Id. at 61 (citations omitted). In that second part of the analysis, the Court considers “the culpability of the offenders at issue in light of their crimes and characteristics,” “the severity of the punishment in question,” and “whether the challenged sentencing
In this case, defendant does not invoke the first category of proportionality challenge—that is, he does not argue that a sentence of at least 30 years in prison before any possibility of parole arises is substantively unconstitutional for a person who committed a crime like defendant committed. Instead, he makes the second type of proportionality challenge: he contends that the Eighth Amendment
categorically prohibits the type of sentencing scheme at issue here. Specifically, he contends that
First, in Roper, the Court held that the Eighth Amendment categorically prohibits the death penalty for juvenile offenders. 543 US at 575. The Court explained that, “[b]ecause the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force.” Id. at 568 (emphasis added). Specifically, the Eighth Amendment limits the death penalty “to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.‘” Id. (quoting Atkins v. Virginia, 536 US 304, 319, 122 S Ct 2242, 153 L Ed 2d 335 (2002)). The Court then explained that juveniles have “diminished culpability” because they typically possess three characteristics that distinguish them from adults: (1) juveniles have a “lack of maturity and an undeveloped sense of responsibility,” resulting in “impetuous and ill-considered actions and decisions“; (2) “juveniles are more vulnerable or susceptible to negative influences and outside pressures“; and (3) the “personality traits of juveniles are more transitory, less fixed.” Id. at 569-71. For those reasons, the Court explained, “the penological justifications for the death penalty apply to [juveniles] with lesser force than to adults.” Id. at 571. Accordingly, the Court concluded that “the death penalty is [a] disproportionate punishment for offenders under 18.” Id. at 575.
Shortly thereafter, in Graham, the Supreme Court held that the Eighth Amendment prohibits a sentence of life without parole (or “true life“) for a juvenile who commits a nonhomicide offense. 560 US at 82. The Court began by noting that ”Roper established that because juveniles have lessened culpability they are less deserving of the most severe punishments.” Id. at 68. It then said that “defendants who do not kill, intend to kill, or foresee that life will be taken
are categorically less deserving of the most serious forms of punishment than are murderers.” Id. at 69. From those premises, the Court concluded that, “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has twice diminished moral culpability.” Id.
The Court then noted that “life without parole is ‘the second most severe penalty permitted by law.‘” Id. (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and concurring in the judgment)). Key to the Court‘s reasoning in Graham was its observation that, although the death penalty is ““unique in its severity and irrevocability,’ *** life without parole sentences share some characteristics with death sentences that are shared by no other sentences.” Id. (quoting Gregg v. Georgia, 428 U.S. 153, 187 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) (emphases added)). Like the death penalty, a sentence of life without parole “alters the offender‘s life by a forfeiture that is irrevocable. It deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency—the remote possibility of which
Finally, the Court reasoned that the penological theories behind punishment (retribution, deterrence, incapacitation, and rehabilitation) are “not adequate to justify life without parole for juvenile nonhomicide offenders.” Id. at 74. That determination, along with “the limited culpability of juvenile nonhomicide offenders[] and the severity of life without parole sentences,” led the Court to conclude that life without parole for nonhomicide juvenile offenders is cruel and unusual. Id. (emphasis added).
Having held in Graham that the
The Court took from Roper and Graham the principle that, because an offender‘s juvenile status is relevant to the
Finally, in Montgomery, the Court held that Miller had announced a substantive rule of constitutional law that applied retroactively:
“Because Miller determined that sentencing a child to life without parole is excessive for all but ‘the rare juvenile offender whose crime reflects irreparable corruption,’ it rendered life without parole an unconstitutional penalty for ‘a class of defendants because of their status‘—that is, juvenile offendеrs whose crimes reflect the transient immaturity of youth. As a result, Miller announced a substantive rule of constitutional law. Like other substantive rules, Miller is retroactive
***”
577 U.S. at 208 (citations omitted).
The Court then considered how to give Miller retroactive effect. The Court explained that a state can remedy a Miller violation “by permitting juvenile homicide offenders to be considered for parole.” Id. at 212. The Court explained that “[a]llowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the
In sum, the Court has held that the
2. This court‘s interpretation of Miller‘s breadth
Since Miller and Montgomery, this court has twice confronted the issue of which sentences, if any, other than mandatory life-without-parole are subject to Miller‘s individualized-sentencing requirement. First, in Kinkel v. Persson, 363 Or. 1, 3-4, 417 P.3d 401 (2018), cert den, ___ U.S. ___, 139 S. Ct. 789 (2019), this court considered whether Miller prohibited “an aggregate sentence of slightly less than 112 years” for a petitioner who, at the age of 15, committed four counts of murder and 26 counts of attempted murder. The petitioner argued that Miller barred such an aggregate sentence because it was “the functional equivalent of a life sentence without the possibility of parole.” Id. at 3. He contended that “the number and nature of his offenses should not be a factor in striking an
We rejected that argument, explaining that the “holdings in Miller and Graham do not compel the categorical rule that [the] petitioner urge[d]“:
“The question in Miller was whether a juvenile who had committed a single homicide could be sentenced to life imprisonment without the possibility of parole for that crime. Graham is similarly limited. In that case, the question was whether a juvenile convicted of a single nonhomicide offense could be sentenced to life without parole. The Court neither considered nor decided in Miller and Graham how the categorical limitations that it announced for a single sentence for one conviction would apply to an aggregate sentence for multiple convictions.
“It follows that the holdings in Miller and Graham do not dictate the result when a juvenile is convicted of multiple murders and attempted murders, as [the] petitioner was.”
Id. at 19-20 (footnotes and citation omitted). We then concluded that the “reasoning in Graham and Miller permits consideration of the nature and the number of a juvenile‘s crimes in addition to the length of the sentence that the juvenile received and the general characteristics of juveniles in determining whether a juvenile‘s
In White v. Premo, 365 Or. 1, 12-15, 443 P.3d 597 (2019), cert dismissed sub nom Kelly v. White, ___ U.S. ___, 140 S. Ct. 993 (2020), this court held that Miller‘s individualized-sentencing requirement applies to a term-of-years sentence that is the “functional equivalent” of life without parole. There, the petitioner had been sentenced to a determinate sentence of 800 months for one murder conviction. Id. at 12. In post-conviction proceedings, the petitioner argued that, “although that sentence was not explicitly a sentence to life without parole, it is a sentence that exceeds his life expectancy and is the functional equivalent of such a sentence and subject to the protections of Miller.” Id.. The superintendent responded by first arguing that, because the “petitioner was sentenced to a term of years and not to life, Miller does not apply.” Id.. And, “even if some determinate sentences may be subject to Miller, [the] petitioner‘s sentence [was] not so long as to make it certain that he will die in prison.” Id.. In support of that later position, the superintendent noted that the petitioner was “eligible for good-time credit and possibly other forms of relief that could reduce his nearly 67-year sentence to 54 years.” Id..
We rejected the superintendent‘s first argument, noting that most courts that have addressed the limits of Miller “have understood the inquiry to focus, not on the label attached to a sentence, but on whether its imposition would violate the principles that the Court sought to effectuate.” Id. at 12-13. And, because we saw no penological justification for treating a sentence that was the “functional equivalent of life” differently, we concluded that Miller applied to such a sentence. Id. at 13.
We then turned to the question of whether the petitioner‘s sentence was, in fact, “functionally equivalent to a life sentence.” Id. at 14. Assuming without deciding that good-time credit was a proper consideration when determining the contours of the petitioner‘s sentence, we noted that, even accounting for good-time credit, the petitioner would still be required to “serve at least 54 years and [would] be released, at the earliest, when he is 68 years old.” Id. at 15. We then concluded that “a sentence in excess of 50 years” was “sufficiently lengthy” to require a Miller individualized-sentencing analysis. Id.. However, we emphasized that we had not been presented in that case with a developed argument that “a sentence in excess of 50 years would leave a particular juvenile offender with a meaningful opportunity for release” and, thus, was not the functional equivalent of life without parole. Id. (emphasis added). Therefore, we noted that our holding did not “foreclose” such a future argument. Id.
In sum, this court has held that Miller does not foreclose consideration of the number and nature of a juvenile‘s crimes when considering whether an aggregate sentence of slightly less than 112 years is constitutionally disproportionate. Kinkel, 363 Or. at 20. And this court has concluded that Miller‘s individualized-sentencing requirement applies to sentences for single homicide offenses that are “functionally equivalent” to life without parole. White, 365 Or. at 13-15.
3. Application
Here, defendant was sentenced to “life imprisonment” under
Defendant takes a different tack. On review, defendant argues that the sentence he received was, in fact, a mandatory life-without-parole sentence despite being labeled otherwise; thus, in his view, his sentence violates Miller under a straightforward application of that case. Before turning to defendant‘s argument, we address the Court of Appeals’ rationale.
a. The Court of Appeals’ interpretation of Miller in Link IV
The issue on review turns on what the Supreme Court meant in Miller when it said that individualized sentencing is required before a state‘s “most severe penalties” are imposed on juveniles. The Court of Appeals majority reasoned that, when the Miller Court discussed Graham‘s and Roper‘s “foundational principle” that juveniles must be treated differently in sentencing, the Court did not “explicitly” limit that principle to “death, or life without parole” sentences. Link IV, 297 Or. App. at 134 (quotation marks omitted). Rather, it was grounded “within the broader category of ‘a State‘s most severe penalties.‘” Id. (quoting Miller, 567 U.S. at 474). Thus, according to the Court of Appeals majority, “the threshold question in considering whether the principles оf Roper, Graham, and Miller apply at juvenile sentencing is this: Does the case involve the imposition of the state‘s most severe penalties against a juvenile defendant?” Id. at 136 (emphasis in Link IV). “And, when the sentence is among the most severe, the secondary question becomes whether the statutory sentencing scheme for a juvenile offender fulfills the constitutional duty to fully consider youth in sentencing.” Id. at 136-37.
The majority then applied that analytical framework, first concluding that a sentence of “life imprisonment” under
In a dissenting opinion, Judge Tookey wrote that Miller and Montgomery apply to a sentence of “life without parole under a mandatory sentencing scheme that precludes the defendant from ‘present[ing] mitigation evidence to justify a less severe sentence.‘” Id. at 167 (Tookey, J., dissenting) (quoting Montgomery, 577 U.S. at 194 (brackets in Link IV)). To determine if that threshold is met, “the nature of the sentencing practice at issue, and the penological justifications for the sentence being imposed, must be evaluated to determine if the sentence is analogous to those that have been deemed the ‘most severe’ by the Supreme Court.” Id. at 169. And, the dissent concluded, “life imprisonment” under
On review, the state argues that the Court of Appeals majority incorrectly applied Miller. According to the state, the context of Miller, Roper, and Graham make clear that, when the Court in Miller referred to the “most severe” or “harshest penalties,” it meant the death penalty and true-life sentences. Thus, the individualized-sentencing requirement applies only to those sentences or their functional equivalents, of which “life imprisonment” under
As noted above, the holding in Miller rested on the “confluence” of Roper and Graham and the death penalty cases requiring individualized sentencing. Miller, 567 U.S. at 470. Beginning with Roper and Graham, the Court first emphasized that those cases “establish that children are constitutionally different from adults for purposes of sentencing” because “juveniles have diminished culpability and greater prospects of reform.” Id. at 471.
The Court then noted that, although ”Graham‘s flat ban on life without parole applies only to nonhomicide crimes, and the Court took care to distinguish those offenses from murder, based on both moral culpability and consequential harm[,] *** none of what it said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime specific.” Id. at 473. Therefore, ”Graham‘s reasoning implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” Id. (emphasis added). Notably, the Court did not suggest at that point in its Miller opinion that Graham‘s reasoning applied to sentences other than life without parole.
Turning to the sentencing schemes at hand, the Miller Court explained that they failed to account for the qualities of youth:
“the mandatory penalty schemes at issue *** prevent the sentencer from taking account of these central considerations. By removing youth from the balance—by subjecting a juvenile to the same life-without-parole sentence applicable to an adult—these laws prohibit a sentencing authority from assessing whether the law‘s harshest term of imprisonment proportionally punishes a juvenile offender. That contravenes Graham‘s (and also Roper‘s) foundational principle: that imposition of a State‘s most severe penalties on juvenile offenders cannot proceed as though they were not children.”
Id. at 474 (emphasis added).
However, the Court‘s analysis did not end with that defect. The Court also cited Graham‘s likening of “life-without-parole sentences imposed on juveniles to the death penalty itself.” Id.. Specifically, the Court drew on that part of Graham that treated a “juvenile life sentence as analogous to capital punishment,” thus implicating the Court‘s line of precedent “demanding individualized sentencing when imposing the death penalty.” Id. at 475 (quotation marks omitted). And, importantly, that line of precedent established that a mitigating factor that a sentencer must be able to consider when imposing the death penalty is “the ‘mitigating qualities of youth.‘” Id. at 476 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).
Thus,
“In light of Graham‘s reasoning, [the death penalty] decisions too show the flaws of imposing mandatory life-without-parole sentences on juvenile homicide offenders. Such mandatory penalties by their nature, preclude a sentencer from taking account of an offender‘s age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as evеry other—the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. *** In meting out the death penalty, the elision of all of those differences would be strictly forbidden. And once again, Graham indicates that a similar rule should apply when a juvenile confronts a sentence of life (and death) in prison.”
From the foregoing, we understand the Court in Miller to have drawn on two distinct principles to conclude that a mandatory life-without-parole sentence cannot be applied to juveniles. One of them is what has been described as ”Graham‘s (and also Roper‘s) foundational principle“—that is, that “imposition of a State‘s most severe penalties on juvenile offenders cannot proceed as though they were not children.” Miller, 567 U.S. at 474. The second is the Court‘s clearly articulated view in Graham that life without parole for juveniles is akin to the death penalty. Id. at 474-75. And, because of that similarity, the issue in Miller, in turn, implicated the Court‘s death penalty cases demanding individualized sentencing when imposing that sentence. Id.. Neither of those two principles can be severed from the Court‘s analysis.
Thus, the reasoning that the Supreme Court has embraced regarding the categorical unconstitutionality of certain types of sentences for juveniles is anchored to the premise that a “true-life” sentence applied to juveniles is similar to the death penalty in ways that make it cruel and unusual to impose such a sentence without individualized procedures. It is in that light that we interpret the Court‘s reference in Miller to a state‘s “most severe penalties.” The most natural reading of that phrase, in context, is as shorthand for the two types of sentences the Court had considered in Roper, Graham, and Miller: the death penalty, and life without parole. In other words, we understand the phrase “most severe penalties” in Miller to have an objective meaning: those two penalties. The Court of Appeals majority, by contrast, gave that language a relative meaning, requiring individualized sentencing before a state imposes any penalty that could be characterized as among that state‘s most severe. Because that interpretation would unmoor the
Montgomery supports our conclusion. In Montgomery, the Court considered whether Miller announced a procedural rule or a substantive rule, i.e., one that “‘forbids criminal punishment of certain primary conduct or prohibits a certain category of punishment for a class of defendants because of their status or offense.‘” 577 U.S. at 206 (internal quotation marks omitted). The Court began by explaining Miller‘s reasoning: “the penological justifications for life without parole collapse in light of the distinctive attributes of youth” to such an extent that “mandatory life-without-parole sentences for children pos[e] too great a risk of disproportionate punishment.” Id. at 208 (brackets in Montgomery; quotation marks omitted; emphasis added). However, the Miller Court did not hold that life without parole is disproportionate for all juveniles; it held that life without parole is disproportionate for those juveniles whose crimes reflect the “transient immaturity of youth.” Id.. And, “to separate those juveniles who may be sentenced to life without parole from those who may not,” the Miller court imposed a procedural requirement, i.e. the individualized-sentencing requirement. Id. at 210 (emphases added). However, the Montgomery Court explained that
That understanding is also reflected in Montgomery‘s discussion of how to give Miller retroactive effect. The court noted that a state will not have to relitigate a sentence “in every case where a juvenile offender received mandatory life without parole. A State mаy remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” Id. at 212 (emphasis added). By framing Miller as applying to “mandatory life without parole,” Montgomery is consistent with the view that Miller‘s sweep does not extend further.
Defendant, like the Court of Appeals majority, downplays the significance of Montgomery because that case arose in the posture of collateral review, rather than direct appeal. See Link IV, 297 Or. App. 155-56. We recognize that, in crafting remedies on collateral review, the Court weighs concerns that may not be applicable on direct appeal, such as the “burden on the States” in providing a remedy and disturbing the “finality of state convictions.” See, e.g., Montgomery, 577 U.S. at 212 (considering those concerns). Nevertheless, Montgomery is replete with language that is at least consistent with, if it does not compel, the view that Miller is limited to life-without-parole sentences.
Numerous other courts have grappled with Miller‘s application and have reached varying conclusions. However, the great majority of jurisdictions of which we are aware have concluded that Miller‘s individualized-sentencing requirement applies only to a life-without-parole sentence or the functional equivalent. See, e.g., People v. Franklin, 63 Cal. 4th 267, 276, 279-80, 370 P.3d 1053, 1060, 1062, cert den, ___ U.S. ___, 137 S. Ct. 573 (2016) (explaining that “a juvenile may not be sentenced to the functional equivalent of [life without parole] for a homicide offense without the protections outlined in Miller,” but concluding that a Miller claim did not arise because the defendant was not serving the functional equivalent of life without parole); People v. Tate, 352 P.3d 959, 970 (Colo. 2015) (explaining that, if life without parole was determined to be unconstitutional under Miller for the defendant on remand, then life with the possibility of parole was the “appropriate sentence but also constitutional,” because ”Miller does not go so far as to declare [life with the possibility of parole] unconstitutional as applied to juveniles“); State v. Michel, 257 So. 3d 3, 7 (Fla. 2018), cert den, ___ U.S. ___, 139 S. Ct. 1401 (2019) (holding that Miller‘s individualized-sentencing requirement does not apply to a sentence of life with the possibility of parole after 25 years); Commonwealth v. Okoro, 471 Mass. 51, 58, 26 N.E.3d 1092, 1099 (2015) (explaining that, when read as a whole, ”Miller‘s requirement of individualized sentencing was limited to instances where a state seeks to impose life in prison without parole eligibility on a juvenile” (emphasis in original)); Lewis v. State, 428 S.W.3d 860, 863, cert den, 574 U.S. 901 (Tex. Crim. App. 2014) (”Miller does not entitle all juvenile offenders to individualized sentencing. It requires an individualized hearing only when a juvenile can be sentenced to life without the possibility of parole.“).22
While a few jurisdictions have concluded that Miller‘s individualized-sentencing
In sum, we conclude that the Miller individualized-sentencing requirement applies only when imposing a sentence of life without parole on juvenile offenders. Thus, the first step to determine whether a sentence comports with Miller is to determine whether the sentence is life without parole (or the functional equivalent). If the answer is yes, then the second question is whether the sentencing scheme comports with Miller‘s individualized-sentencing requirement. Thus, we turn to the first step of that inquiry: whether a sentence of “life imprisonment” under
b. Defendant‘s argument
Defendant, joined by amicus Koch, argues that the categorical rule announced in Miller
We reject that argument, which is essentially the same as one that we rejected in White. Even if defendаnt is correct that the proper focus is on the nature of the sentence at the time the sentence is imposed,25 at the time “life imprisonment” under
Defendant next argues that the sentencing scheme imposes the functional equivalent of life without parole because it does not provide a meaningful opportunity for release. We understand defendant to argue that the sentencing scheme does not provide a meaningful opportunity for release because it does not provide the sentencer or the board with the authority to do the type of individualized sentencing required by Miller. That argument, however, presumes the very thing in dispute, which is whether the individualized-sentencing requirement applies to a sentence of “life imprisonment” under
Defendant‘s more substantial argument is that the murder-review hearing is not a “meaningful opportunity for release” because that hearing, itself, cannot result directly in release; rather, it can rеsult only in a conversion of a sentence of “life imprisonment” under
Defendant accurately describes the mechanics of the statutory scheme, but his argument fails to show that the scheme does not provide a “meaningful opportunity to obtain release.” That phrase has its origins in Graham, which, as discussed above, held that life without parole for juvenile nonhomicide offenders is cruel and unusual punishment. 560 U.S. at 82. In reaching that holding, the Court explained that, while the
“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. TheEighth 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.”
Id. at 75 (emphasis added).
Additionally, in explaining why a life-without-parole sentence shared some characteristics with death sentences, the Court noted that such a sentence “deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency—the remote possibility of which does not mitigate the harshness of the sentence.” Id. at 69-70. In doing so, the Court cited Solem v. Helm, 463 U.S. 277, 300-01, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), where the Court discussed the difference between parole and commutation when considering the constitutionality of a life-without-parole sentence. Specifically, the court, in Solem, explained that
“As a matter of law, parole and commutation are different concepts, despite some surface similarities. Parole is a regular part of the rehabilitative process. *** The law generally specifies when a prisoner will be eligible to be considered for parole, and details the standards and procedures applicable at that time. Thus, it is possible to predict, at least to some extent, when parole might be granted. Commutation, on the other hand, is an ad hoc exercise of executive clemenсy. A governor may commute a sentence at any time for any reason without reference to any standards.”
Id. (citations omitted).
In Montgomery, the Court provided further guidance about what constitutes a meaningful opportunity to obtain release when it explained how states can remedy a Miller violation. 577 U.S. at 212. The Court explained that a Miller violation may be remedied “by permitting juvenile homicide offenders to be considered for parole.” Id.. Consideration for parole, explained the Court, “ensures that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the
Graham, Solem, and Montgomery provide important guidance regarding the meaning of the phrase “some meaningful opportunity to obtain release.” From Graham, we know that such opportunity must allow for consideration of the defendant‘s “demonstrated maturity and rehabilitation,” and, from Montgomery, we know that such opportunity must consider whether the crime the defendant committed reflected “irreparable corruption and, if it did not, their hope for some years of life outside prison walls must be restored.” However, Graham also instructs that a “meaningful opportunity” does not have to
With that in mind, we reject defendant‘s argument that the sentencing scheme does not provide a meaningful opportunity to obtain release. As the state observes, the scheme establishes “concrete legal standards” that entitle defendant to convert his sentence to a life with the possibility of parole when certain conditions are met. Specifically, the state points to the “likelihood of rehabilitation” standard set forth in
The administrative rules further illuminate how the board will apply the “likelihood of rehabilitation” standard. In making that determination, the board is guided by
Moreover, the “likelihood of rehabilitation” standard set forth in
For the foregoing reasons, we are not persuaded that Oregon‘s sentencing scheme, which affords juvenile offenders who have served a term of 30 years the opportunity to convert their sentence to one with the possibility of parole, deрrives juvenile offenders of a meaningful opportunity for release and,
We are mindful however, of the uncertainty regarding what may happen to defendant after a murder-review hearing. Neither party‘s briefing on review has meaningfully addressed the parole-release process that would follow if defendant‘s sentence is converted. However, we make the following observations.
As noted earlier in this opinion, generally the board‘s parole-release decisions are controlled by
We further understand that, under the board‘s matrix rules, the board may have the choice among several presumptive sentence terms, up to and including life. The state has acknowledged that possibility and represented that defendant will have opportunities for further judicial review if he is unsatisfied with the results of those further administrative proceedings. Based on the parties’ arguments and the record before us, we cannot ascertain exactly what parole-release procedures the board may follow if defendant‘s sentence is converted. Defendant has not developed an argument that those procedures will deprive him of a meaningful opportunity for release (e.g., by resulting in a lengthy presumptive term). Moreover, a conclusion at this stage that the sentencing scheme is categorically unconstitutional because of the possibility that the board might act, a decade or more from now, in a way that extends defendant‘s period of incarceration—even for life—would be difficult to reconcile with the Supreme Court‘s admonition that a meaningful opportunity does not mean a guarantee.
At the same time, if a sentencing scheme is to survive
For the foregoing reasons, we conclude that defendant has not established that the statutory scheme denies him a meaningful opportunity for release. Therefore, the sentence that defendant received is not the functional equivalent of life without parole. It follows that defendant has failed to establish that Miller‘s individualized-sentencing requirement applies to a sentence of “life imprisonment” under
The decision of the Court of Appeals is reversed. The order of the circuit court is affirmed.
Notes
However, the issue on which we granted review, as framed by the trial court and Court of Appeals briefing, is whether a sentence of “life imprisonment” under
However, even though we held that consideration of the number and nature of the petitioner‘s crimes was permissible, we did note that “[i]t might be possible to uphold [the] petitioner‘s sentence against an
See also State v. Vera, 235 Ariz. 571, 578, 334 P.3d 754, 761 (Ariz. Ct. App. 2014), cert den, 577 U.S. 854 (2015) (explaining that life with the possibility of parole after 25 years is “consistent with the ‘meaningful opportunity’ for release contemplated by Miller and Graham“); State v. Delgado, 323 Conn. 801, 810-11, 151 A.3d 345, 351-52 (2016) (“The eighth amendment, as interpreted by Miller, does not prohibit a court from imposing a sentence of life imprisonment with the opportunity for parole for a juvenile homicide offender, nor does it require the court to consider the mitigating factors of youth before imposing such a sentence. Rather, under Miller, a sentencing court‘s obligation to consider youth related mitigating factors is limited to cases in which the court imposes a sentence of life, or its equivalent, without рarole.” (Emphases in original; internal citations omitted.)); James v. U.S., 59 A.3d 1233, 1236-39 (D.C. 2013) (explaining that a mandatory minimum of 30 years without parole did not “fit into the Miller category” because it was not a mandatory life-without-parole sentence, but also noting that the mandatory nature of the sentence did not violate Miller or Graham because the legislature had taken youth into account when enacting the statute at issue); State v. Tran, 138 Hawai‘i 298, 305, 307, 378 P.3d 1014, 1021, 1023 (Haw. Ct. App. 2016) (explaining that ”Miller does not require individualized sentencing or consideration of the mitigating factors of youth in every case involving a juvenile offender, but only where a sentence of life imprisonment without parole is imposed on a juvenile offender,” and also explaining that Graham “did not bar the imposition of mandatory penalties on juvenile offenders or require a court to consider the mitigating factors of youth at the time it imposed [a] sentence“); State v. Shanahan, 165 Idaho 343, 350-52, 445 P.3d 152, 159-61, cert den, ___ U.S. ___, 140 S. Ct. 545 (2019) (explaining that “the rationale of Miller applies to life sentences without the possibility of parole and their functional equivalents,” before concluding that life without parole eligibility for 35 years was not the functional equivalent to life without parole); State v. Brown, 300 Kan. 542, 564, 331 P.3d 781, 797 (2014) (explaining that Miller‘s rationale did not make a mandatory life-with-parole sentence unconstitutional); State v. Vang, 847 N.W.2d 248, 262 (Minn. 2014) (”Miller did not hold that a juvenile homicide offender could not be sentenced to life imprisonment with the possibility of release. Instead, Miller held more narrowly that ‘a judge or jury must have the opportunity to consider mitigating circumstances’ before imposing a sentence of life in prison without the possibility of release on a juvenile.” (Emphases in original.)); Steilman v. Michael, 389 Mont. 512, 519-22, 407 P.3d 313, 319-20 (2017), cert den, ___ U.S. ___, 138 S. Ct. 1999 (2018) (concluding that a sentence was not de facto life without parole; therefore, it was not subject to Miller‘s individualized-sentencing requirement); State v. Nollen, 296 Neb. 94, 119-20, 892 N.W.2d 81, 98, cert den, ___ U.S. ___, 138 S. Ct. 165 (2017) (holding that a sentence of 90-years to life with the possibility of parole after 45 years did not violate Miller or Graham
because it was nоt life-without-parole sentence, but also because the sentencing court “considered the traditional sentencing factors, along with the mitigating factors set forth” by statute); State v. Jefferson, 252 N.C. App. 174, 177, 798 S.E.2d 121, 123, cert den, ___ U.S. ___, 138 S. Ct. 1169 (2018) (“the Supreme Court has not indicated the individualized sentencing required in Miller extends to sentences beyond life without parole“); Commonwealth v. White, 193 A.3d 977, 983 (Pa. Super. Ct. 2018), rev den, 215 A.3d 3 (2019) (explaining that Miller‘s individualized-sentencing requirement did not apply when imposing a 35-years-to-life sentence); State v. Smith, 428 S.C. 417, 421, 836 S.E.2d 348, 350 (2019) (holding that the
See State v. Patrick, ___ N.E.3d ___, 2020 WL 7501940, at *7 (Ohio 2020) (explaining that Miller applied to a sentence of life with the possibility of parole); State v. Houston-Sconiers, 188 Wash. 2d 1, 18-21, 391 P.3d 409, 418-420 (2017) (concluding that Miller applies to juveniles sentenced to 26- and 31-year prison terms for robberies); see also Lyle, 854 N.W.2d at 400 (relying on Roper, Graham, and Miller to conclude all mandatory minimum sentences of imprisonment for youthful offenders are unconstitutional under the state constitution).