WINONA M. FLETCHER v. STATE OF ALASKA
Court of Appeals No. A-11802
Trial Court No. 3AN-11-12161 CI
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
May 12, 2023
No. 2745
The text of this opinion can be corrected before the opinion is published in the Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
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OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge.
Appearances: Whitney G. Glover (briefing) and Marcelle K. McDannel (oral argument), Assistant Public Advocates, and Chad Holt, Public Advocate, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Wollenberg, Judge, and Suddock, Senior Superior Court Judge.*
Judge ALLARD.
* Sitting by assignment made pursuant to
In Miller, the Court identified three key characteristics that distinguish children from adults.2 First, children lack maturity and have an underdeveloped sense of responsibility, “leading to recklessness, impulsivity, and heedless risk-taking.”3 Second, children are more vulnerable to pressure from family and peers and “lack the ability to extricate themselves from horrific, crime-producing settings.”4 And third, a child‘s character is not as well-formed as an adult‘s, and as a result, a child‘s actions are “less likely to be ‘evidence of irretrievabl[e] deprav[ity].‘”5 The Court held that these distinctive attributes — which are based on common experience as well as science and social science research — “diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.”6
This case requires us to examine the meaning of these declarations as applied to a fourteen-year-old girl who committed three undeniably terrible crimes and
Accordingly, we reverse the superior court‘s dismissal of Fletcher‘s post-conviction relief application and we remand this case to the superior court so that the parties may further litigate the question of retroactivity.
Background facts and prior proceedings
In 1985, when Fletcher was fourteen years old, she and her nineteen-year-old boyfriend, Cordell Boyd, forced their way into an occupied residence at gunpoint in order to commit an armed robbery. While inside, they killed all three occupants of the home: sixty-nine-year-old Tom Faccio, seventy-year-old Ann Faccio, and Ann Faccio‘s sister, seventy-five-year-old Emilia Elliot. Fletcher shot Ann Faccio and Emilia Elliot, and Boyd shot Tom Faccio.7
The juvenile waiver hearing
Following Fletcher‘s arrest, the State filed a petition to waive juvenile jurisdiction over Fletcher. An extensive waiver hearing was then held in front of Superior Court Judge Karl S. Johnstone to determine whether Fletcher would be tried in
Five mental health professionals who had evaluated Fletcher testified as to her amenability to treatment within the six-year period. Four out of the five experts expressed pessimism about Fletcher‘s amenability to treatment within the statutory period, although each expressed the possibility that progress could occur in someone so young. The fifth expert, Dr. Deborah Geeseman, testified that she believed “there is some probability that . . . with intensive and structured treatment [Fletcher] will be amenable to treatment [by the age of twenty].”
Fletcher‘s mother, Susan Schubert, testified regarding Fletcher‘s unstable and traumatic upbringing. According to Schubert, Fletcher had experienced sexual, physical, and emotional abuse from the key adults in her life — including Schubert, Schubert‘s boyfriend, and her maternal grandmother and step-grandfather. Fletcher was also subjected to a chaotic living environment marked by frequent moves, alcoholism, and illegal drug use.
Schubert testified that Boyd became sexually involved with Fletcher when Fletcher was thirteen years old.9 Schubert was evicted from her residence shortly after
Schubert testified that Fletcher told her that it was Boyd‘s idea to shoot the victims. A counselor from McLaughlin Youth Center, where Fletcher was detained, similarly testified that Fletcher told her that Boyd “was the one person that truly cared about her and loved her” and that she “did what he told her to do.”
However, Boyd testified against Fletcher at the juvenile waiver hearing, painting a different picture. By that time, Boyd had reached a plea agreement with the State. The plea agreement reduced his charges to two counts of second-degree murder and one count of first-degree murder. As part of that plea agreement, Boyd was required to testify at Fletcher‘s waiver hearing, at any trial, and at sentencing.
At the juvenile waiver hearing, Boyd stated that Fletcher showed little reluctance to participate in the crimes. According to Boyd, it was Fletcher‘s idea to shoot the victims. Based on Boyd‘s testimony, the superior court found that Fletcher “was not forced, coerced, induced, or under influence by Boyd when she shot Ann Faccio and Emilia Elliott.”
Ultimately, the court found that Fletcher would not be amenable to treatment before the age of twenty, and she could therefore be prosecuted as an adult. Soon afterward, a grand jury indicted Fletcher on three counts of first-degree murder.
The sentencing hearing
One month after this Court affirmed the superior court‘s juvenile waiver decision,10 Fletcher, then fifteen years old, entered a no contest plea to two counts of first-degree murder and one count of second-degree murder. Fletcher faced a sentencing
The sentencing hearing was held before a different judge, Superior Court Judge Victor D. Carlson. At the hearing, the prosecutor argued that the court should impose the maximum sentence and that Fletcher “should never see the light of day” again. The prosecutor stated that she “[could not] explain how someone by the age of fourteen becomes as evil as Winona Fletcher was but that‘s just the way she is.” The prosecutor also argued that the court should not give any weight to Fletcher‘s age and should treat her as an adult:
She has to be treated like an adult, she‘s been waived to adult court, she‘s got to be treated the same way as Mr. Boyd and she‘s got to be viewed as an adult committing this crime. The fact that she was fourteen at the time does not merit a lesser punishment. Our society in general does not view it as necessarily a mitigating factor that she is younger.
The prosecutor stated that “[t]here [were] no Court of Appeals decisions that [said] once a juvenile is waived that the court somehow . . . should treat them more leniently than an adult murderer in the same situation.”
Fletcher‘s attorney noted that Judge Johnstone had only decided that Fletcher could not be rehabilitated in six years — not that she could never be rehabilitated. Fletcher‘s attorney asked the court to give Fletcher “a chance to show someone somewhere down the road that she has changed” by making her eligible for parole when she was forty or fifty years old.
The court‘s sentencing remarks were fairly cursory. The court acknowledged that, according to an updated evaluation from one of the experts, Fletcher
And that‘s what leaves me with the finding that your rehabilitation is very, very unlikely because I don‘t know what it is that you would be rehabilitated over or for or from or to what you would be rehabilitated. Because of your essential lack of a criminal record I had to look at that very carefully because rehabilitation is a very important factor in anyone who is young and especially in someone as young as you. But I essentially can‘t find evidence that you would become rehabilitated because I don‘t know what is wrong today.
In accordance with these remarks, the court prioritized the other Chaney factors — reaffirmation of societal norms, protection of the public, and deterrence of others — over rehabilitation.12
The court originally stated that it was sentencing Fletcher to consecutive terms of 99 years of imprisonment for each count. But the court later modified Fletcher‘s sentence to three consecutive 45-year terms — for a composite sentence of 135 years — to conform to the court‘s intent that Fletcher be eligible for discretionary parole at age sixty. According to the court, it was “important for prison administration that there be some glimmer of hope and people at age sixty are always different than they are at age sixteen and so forth.”
Fletcher‘s first post-conviction relief application
Two days after Fletcher was sentenced, the Anchorage Daily News reported that, in a jailhouse interview, Boyd had recanted his testimony from the waiver hearing
Several months later, Boyd told Fletcher‘s attorney that he had lied during his testimony at the waiver hearing, that he was the person primarily responsible for the murders, and that he had told Fletcher what to do. Fletcher‘s attorney took no contemporaneous action in Fletcher‘s case based on this new information.
Approximately two decades later, in 2005, the United States Supreme Court decided Roper v. Simmons.13 In Roper, the Supreme Court held that the cruel and unusual punishment clause of the
Following the Supreme Court‘s decision in Roper, Fletcher filed a post-conviction relief application, alleging that the new developments in juvenile brain research, together with Boyd‘s recantation, had altered the opinions of the mental health professionals who previously evaluated her. Fletcher argued that this new evidence would have caused the court to deny the State‘s motion to waive juvenile jurisdiction, which would have deprived the superior court of jurisdiction to enter her convictions. (Fletcher‘s first post-conviction relief attorney only attacked the waiver hearing; she did not directly challenge the sentence Fletcher received in adult court.)
In support of her petition, Fletcher‘s attorney offered updated opinions from three of the psychologists who had evaluated Fletcher prior to the juvenile waiver hearing. Each indicated, in light of the new evidence and contrary to their earlier opinions, that they would have found Fletcher‘s amenability to treatment within the statutorily prescribed period to be a least somewhat more likely than they previously had opined.
One of the psychologists provided a substantially more favorable view, stating that “had the new juvenile brain development research, as well as Mr. Boyd‘s new statement, been available to me at the time I evaluated [Fletcher], this data would have affected my findings, inferences based on those findings, and ultimate opinion.”
The superior court dismissed Fletcher‘s first post-conviction relief application on the pleadings, ruling inter alia that Fletcher had waived any defects in the juvenile waiver proceeding by pleading no contest to the adult criminal charges. This Court affirmed that procedural ruling.18 Because the dismissal was procedural, the new psychological reports were never considered on their merits.
During the pendency of Fletcher‘s appeal from the denial of her first post-conviction relief application, the United States Supreme Court decided Graham v. Florida.19 In Graham, the Court held that the
Fletcher‘s second (and current) post-conviction relief application
Following Graham, Fletcher filed a second application for post-conviction relief. This second post-conviction relief application is the subject of this appeal. Relying on the Supreme Court‘s decision in Graham, Fletcher argued that her sentence constituted cruel and unusual punishment under the federal and state constitutions because it did not provide a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”24
The State filed a motion to dismiss, arguing that Fletcher‘s second application for post-conviction relief was time-barred, procedurally barred (because the issues could have been raised in her prior application for post-conviction relief), and successive.
Before taking action on the State‘s motion to dismiss, the court stayed further proceedings pending a decision by the United States Supreme Court in Miller v. Alabama, a third case regarding juvenile sentencing.25
In Miller, the Supreme Court extended the reasoning underlying Graham to juveniles who have been convicted of homicide crimes, noting that nothing about the characteristics of juveniles relied on in Graham was “crime-specific.”26 The Court therefore concluded that “the
Following the issuance of Miller, Fletcher filed an amended post-conviction relief application that developed and set forth Fletcher‘s constitutional claims with greater specificity. Fletcher‘s amended application alleged that her sentence violated the state and federal constitutional prohibitions on cruel and unusual punishment because (1) her 135-year sentence was the functional equivalent of life without parole, and (2) her sentence was imposed without adequate consideration of her youth and the attendant characteristics of youth, as required by Miller.
The superior court subsequently dismissed Fletcher‘s application for post-conviction relief on the pleadings, agreeing with the State that the application was procedurally barred and that Fletcher was not entitled to a resentencing under Miller.
The superior court ruled first that Fletcher‘s application was procedurally barred because it was a successive application.30 The court acknowledged that there might be a due process exception to the statutory prohibition against successive applications in cases where a new rule of law created a constitutional infirmity in the defendant‘s sentence. But the court concluded that such a due process exception would not apply in Fletcher‘s case because Fletcher‘s constitutional claims failed on their merits.
The court concluded that Fletcher‘s constitutional claims failed on their merits for a number of reasons: First, the court assumed that Miller would not be applied retroactively. (This assumption was incorrect. In 2016, the United States Supreme Court issued Montgomery v. Louisiana, in which the Court held that its holding in Miller was retroactive.31) Second, the superior court ruled that Miller only applied to sentences that mandate life without the possibility of parole, and Fletcher did not receive a mandatory life without parole sentence. The court acknowledged that Miller had been applied by other courts to discretionary and de facto life sentences, but the court ruled that Fletcher did not receive a de facto life sentence because she was eligible for discretionary parole at age sixty. Lastly, the court ruled that, even assuming that the precepts of Miller applied to Fletcher‘s case, Fletcher was not entitled to any relief because she had already received a Miller-compliant sentencing hearing “where Fletcher‘s individual characteristics were considered under the Chaney factors.”
This appeal followed.
Shortly after Fletcher filed this appeal, the United States Supreme Court issued Montgomery v. Louisiana, which settled the question of whether Miller was retroactive. In Montgomery, the Court held that Miller announced a new substantive constitutional rule that applies retroactively to cases on collateral review.32 The Court also clarified that the rule in Miller was about more than simply taking a juvenile‘s age into account.33 As the Court explained, “Even if a court considers a child‘s age before sentencing him or her to a lifetime in prison, that sentence still violates the
The Montgomery Court also expounded upon the importance of the individualized hearing requirement established in Miller:
A hearing where “youth and its attendant characteristics” are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not. The hearing does not replace but rather gives effect to Miller‘s substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.[36]
Instead, citing to a Wyoming statute that made all juvenile homicide offenders eligible for parole after 25 years, the Court held that a Miller violation may be remedied “by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.”38 The Court indicated that it was leaving to the states “the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.”39
The response to Miller by state legislatures and state courts
As alluded to in the beginning of this opinion, the Miller line of cases has altered the landscape of juvenile sentencing practices across the country.40 In response to Miller, the majority of state jurisdictions have enacted legislative reforms designed to implement the constitutional mandates of Miller and the related cases. Various state courts have also issued decisions applying — and, at times, extending — the
State legislative reforms
In 2013, less than a year after Miller was issued, the Wyoming legislature enacted a statute that eliminated life without parole sentences for juvenile offenders in Wyoming.41 The Wyoming statute also made the maximum penalty for juvenile offenders convicted of first-degree murder a life sentence with parole eligibility after serving 25 years.42 (This is the same statute that the United States Supreme Court later referred to approvingly in Montgomery.43) The following year, the West Virginia legislature passed similar legislation, eliminating life without parole for juvenile offenders and enacting legislation that made all juvenile offenders tried as adults eligible for parole after serving 15 years.44
In total, at least fifteen states have enacted legislation that has eliminated life without parole sentences for juvenile offenders and legislation that makes juvenile offenders, including juvenile offenders convicted of first-degree murder and capital offenses, automatically eligible for parole or resentencing after serving a set amount of time.
There are also at least five jurisdictions that have enacted “second look” statutes that allow all juvenile offenders to apply for resentencing after they have served a specific period of time. For example, the District of Columbia allows juvenile offenders to move for resentencing after they serve 15 years.48 Maryland and North Dakota allow juveniles to apply for resentencing after serving 20 years, while Florida requires juveniles to serve 25 years before being eligible to move for resentencing, and Delaware requires 30 years.49
Thus, under the various state legislation, the amount of time that a juvenile convicted of homicide must serve before being eligible for parole or resentencing varies from a low of 15 years to a high of 40 years, with the majority of these jurisdictions setting parole (or resentencing) eligibility between 20 and 30 years.50
State court decisions
The state courts have also been active in implementing the core constitutional principles of Miller, particularly in jurisdictions where there have not been comprehensive legislative reforms.
Some state courts have read Miller‘s holding narrowly to apply only to mandatory sentences that are formally designated “life without parole” sentences.58
However, many state courts have applied Miller to discretionary sentences and to term-of-years sentences that are the functional equivalent of a life without parole sentence.
The initial question is whether a sentence stated as a term of years for a juvenile offender can ever be regarded as a sentence of life without parole for purposes of the Eighth Amendment. It seems a matter of common sense that the answer must be “yes.” Otherwise, the Eighth Amendment proscription against cruel and unusual punishment in the context of a juvenile offender could be circumvented simply by stating the sentence in numerical terms that exceed any reasonable life expectancy rather than labeling it a “life” sentence. The vast majority of state supreme courts to
consider this question agree that a sentence stated as a term of years, or as a life sentence with parole after a specified number of years, can fall within the scope of Graham or Miller as a de facto sentence of life without parole.60
Although the majority of state courts have relied on the Eighth Amendment to expand the protections of Miller to term-of-years sentences that qualify as the functional equivalent of a life without parole sentence, some state courts have also relied on their state constitutions to interpret and implement Miller.
In State v. Ragland, issued just over a year after Miller, the Iowa Supreme Court relied on both the Eighth Amendment and
[T]he rationale of Miller, as well as Graham, reveals that the unconstitutional imposition of a mandatory life-without-parole sentence is not fixed by substituting it with a sentence with parole that is the practical equivalent of a life sentence without parole. Oftentimes, it is important that the spirit of the law not be lost in the application of the law. This is one such time.62
The defendant in Ragland had originally been sentenced to a mandatory life without parole sentence.63 However, after Miller was issued, the governor of Iowa
The spirit of the constitutional mandates of Miller and Graham instruct that much more is at stake in the sentencing of juveniles than merely making sure that parole is possible. In light of our increased understanding of the decision making of youths, the sentencing process must be tailored to account in a meaningful way for the attributes of juveniles that are distinct from adult conduct.66
On the same day that it issued Ragland, the Iowa Supreme Court also issued State v. Null and State v. Pearson.67 In Null, the court held that Miller applied to a 75-year aggregate term-of-years sentence that required the defendant to serve at least 52.5 years before becoming eligible for parole.68 And in Pearson, the court held that a sentence that required a juvenile convicted of non-homicide crimes to serve 35 years
A year later, the Iowa Supreme Court relied on its independent state constitutional analysis to extend Miller protections to all juvenile sentences, regardless of their length. In State v. Lyle, the court struck down all mandatory minimum sentences as they applied to juvenile offenders on the ground that the mandatory nature violated the principles of Miller as interpreted under the
Our constitution demands that we do better for youthful offenders — all youthful offenders, not just those who commit the most serious crimes. Some juveniles will deserve mandatory minimum imprisonment, but others may not. A statute that sends all juvenile offenders to prison for a minimum period of time under all circumstances simply cannot satisfy the standards of decency and fairness embedded in article I, section 17 of the Iowa Constitution.71
Two years later, in State v. Sweet, the Iowa Supreme Court again relied on its state constitutional prohibition against cruel and unusual punishment to categorically ban all life without parole sentences for juvenile offenders under Iowa law, reasoning that trial courts should not be required “to predict future prospects for maturation and rehabilitation when highly trained professionals say such predictions are impossible.”72
In a later follow-up to Diatchenko I, the Massachusetts Supreme Judicial Court issued Diatchenko II, in which it held, under its state constitution, that juvenile offenders tried as adults were constitutionally entitled to the assistance of counsel and expert funds at their parole hearings.78
The New Jersey Supreme Court has similarly relied on its state constitution to interpret and implement the constitutional principles underlying Miller. In State v. Zuber, the New Jersey Supreme Court held that the term-of-years sentences of two juveniles constituted de facto life without parole sentences under both the Eighth Amendment and
Miller‘s command that a sentencing judge “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” applies with equal strength to a sentence that is the practical equivalent of life without parole. Defendants who serve lengthy term-of-years sentences that amount to life without parole should be no worse off than defendants whose sentences carry that formal designation. The label alone cannot control; we decline to elevate form over substance.81
Various amici filed briefs in Zuber, arguing that the New Jersey Supreme Court should adopt either “a thirty-year maximum period of parole ineligibility as a uniform rule for juvenile offenders,” “a bright-line rule that would allow juveniles to petition for resentencing and release at a point no later than thirty years into their sentences,” or sentence review “within ten to fifteen years of the offense and at regular intervals afterward.”82 The court declined to adopt any of these approaches, deferring to the New Jersey legislature on that question.83 The court nevertheless noted that other state legislatures had enacted similar reforms and it encouraged the New Jersey legislature to examine the issue “[t]o avoid a potential constitutional challenge in the future.”84
However, when the New Jersey legislature failed to act, the New Jersey Supreme Court took further action under its state constitution. In State v. Comer, the New Jersey Supreme Court addressed the sentences of two juveniles who had been resentenced under Miller and Zuber — Comer, who was one of the two juveniles in
The two juveniles appealed their sentences, arguing that their sentences were unconstitutional under Miller and Zuber.88 On appeal, the New Jersey Supreme Court emphasized the changing landscape of juvenile sentencing, focusing on the legislative reforms that had taken place in other states and the sentences that most juvenile offenders had received following their resentencing after Miller.89 The court ultimately concluded that these “sources and trends all suggest that a 30-year parole bar does not conform to contemporary standards of decency.”90 After holding that the
The court explained that, under this procedure, the judge would be required to consider the Miller factors at the hearing on the petition, and the judge would have the benefit of information about the juvenile‘s behavior in prison and any rehabilitative
Two other state courts have also expanded the Miller holding under their state constitutions. In State v. Bassett, the Washington Supreme Court relied on “a clear trend of states rapidly abandoning or curtailing juvenile life without parole sentences” to eliminate life without parole sentences for juveniles in Washington, holding that such sentences constitute cruel punishment under
The United States Supreme Court‘s decision in Jones v. Mississippi
In 2021, while Fletcher‘s appeal was still pending before this Court, the United States Supreme Court issued Jones v. Mississippi, its fifth decision involving juvenile sentencing.97
In Jones, the Court reaffirmed the central principles underlying its prior decisions.98 That is, the Court reaffirmed that children are different than adults for purposes of sentencing and that “youth matters in sentencing.”99 The Court also made clear that it was not overruling Miller or Montgomery, and that a sentence of life without parole remained disproportionate and unconstitutional under the Eighth Amendment when applied to juvenile offenders whose crimes reflect unfortunate but transient immaturity.100
The Jones Court nevertheless narrowed the broad federal constitutional mandate that many state courts had interpreted Miller and Montgomery as instituting. The defendant in Jones argued — in line with the holdings reached by many state and federal courts — that Miller required a sentencing court to provide an on-the-record
The Jones Court offered four reasons for reading Miller narrowly. First, the Court concluded that an on-the-record sentencing explanation was unnecessary because, according to the Court, “if the sentencer has discretion to consider the defendant‘s youth, the sentencer necessarily will consider the defendant‘s youth.”103
Second, the Court emphasized that neither Miller nor Montgomery had expressly stated that an on-the-record sentencing explanation and/or a finding of permanent incorrigibility was required before a sentence of life without parole could lawfully be imposed.104
Third, the Court pointed out that requiring an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility would be inconsistent with the Court‘s death penalty cases, which have not required such explanations. As the Court explained:
In a series of capital cases over the past 45 years, the Court has required the sentencer to consider mitigating circumstances when deciding whether to impose the death penalty. But the Court has never required an on-the-record sentencing explanation or an implicit finding regarding those mitigating circumstances.105
According to the Court, there is no reason for an on-the-record sentencing explanation in death penalty cases, because one can again assume that “the sentencer will necessarily consider relevant mitigating circumstances.”106 The Court therefore concluded that if “[a] sentencing explanation is not necessary to ensure that the sentencer in death penalty cases considers the relevant mitigating circumstances[,] [i]t follows that a sentencing explanation is likewise not necessary to ensure that the sentencer in juvenile life-without-parole cases considers the defendant‘s youth.”107
Lastly, the Court asserted that “an on-the-record sentencing explanation with an implicit finding of permanent incorrigibility is not dictated by any historical or contemporary sentencing practice in the States.”108 The Court acknowledged that judges will “often” provide an on-the record explanation, particularly when imposing a lengthy sentence.109 The Court also acknowledged that many states required such an on-the-record explanation.110 But the Court noted that this requirement was not universal among
The Jones Court emphasized, however, that the states were still free to impose their own additional procedural requirements:
States may categorically prohibit life without parole for all offenders under 18. Or States may require sentencers to make extra factual findings before sentencing an offender under 18 to life without parole. Or States may direct sentencers to formally explain on the record why a life-without-parole sentence is appropriate notwithstanding the defendant‘s youth. States may also establish rigorous proportionality or other substantive appellate review of life-without-parole sentences. All of those options, and others, remain available to the States.113
Indeed, as the Court recognized, many states had already responded to Miller and
Because Fletcher was sentenced pursuant to a discretionary sentencing scheme, Fletcher does not have a federal constitutional claim for relief
With the issuance of Jones v. Mississippi, any federal constitutional claim that Fletcher may have had under Miller is now foreclosed. Unlike the life without parole sentence in Miller, Fletcher‘s 135-year sentence (with normal statutory eligibility for parole) was not mandated by law. That is, the sentencing court had the discretion to sentence Fletcher to a term of imprisonment that was higher or lower than the sentence she received.115 Under Jones, the existence of that sentencing discretion was both “necessary and constitutionally sufficient” to ensure the constitutionality of her sentence for purposes of the federal constitution.116 We therefore conclude that Fletcher does not have an Eighth Amendment claim for resentencing.
But this does not end our analysis. Fletcher also raises a state constitutional claim under
Why we conclude that the Alaska Constitution requires Alaska courts to affirmatively consider a juvenile offender‘s youth and the attendant characteristics of youth before sentencing a juvenile offender tried as an adult to a sentence of life without parole or its functional equivalent
We interpret the
Both the state and federal prohibitions against cruel and unusual punishment encompass “the basic ‘precept of justice that punishment for crime should be graduated and proportioned’ to both the offender and the offense.”124 This precept requires the court to look at both the nature of the offender as well as the nature of the
In Miller and Montgomery, the United States Supreme Court distinguished between two different categories of juvenile offenders.126 The first category included “the vast majority of juvenile offenders”127 whose crimes, because of the distinctive attributes of youth, reflected only “unfortunate yet transient immaturity.”128 The second category involved those “rare” juvenile offenders whose crime reflected “irreparable corruption.”129 The Miller Court held (and the Montgomery Court further clarified) that a life without parole sentence would violate the Eighth Amendment‘s prohibition against cruel and unusual punishment when imposed against the first category of juvenile offenders (the “transient immaturity” juveniles).130 In contrast, a life without parole
This categorization of juvenile offenders into two groups — the “transient immaturity” juveniles for whom a sentence of life without parole would violate the Eighth Amendment and the “irreparable corruption” juveniles whose life without parole sentences would not violate the Eighth Amendment — survives Jones.133 As the Court expressly stated in Jones, “Today‘s decision does not overrule Miller or Montgomery.”134 And in a footnote, the Jones Court quoted the following passage from Montgomery:
That Miller did not impose a formal factfinding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment.135
Thus, the constitutional question before us in this case is not whether sentencing a juvenile offender whose crime reflects transient immaturity to life without
Instead, the question before us is whether the
We conclude that the
First, the federalist concerns that led to the restrained approach adopted by Jones are not at issue when state courts are determining the scope and meaning of their own independent state constitutions.141 Indeed, as already explained, Jones largely rests on the assumption that individual states will adopt (or in many cases have already
Second, unlike the federal death penalty law cited in Jones, Alaska law has a well-established tradition of requiring on-the-record sentencing explanations and meaningful appellate review of criminal sentences. This tradition is itself grounded in two state constitutional provisions:
Numerous decisions of the Alaska Supreme Court and this Court have therefore emphasized the importance of an on-the-record sentencing explanation. In Perrin v. State, for example, the Alaska Supreme Court stressed that “a thorough explanation for the sentence imposed by the trial judge” not only assisted in facilitating appellate review but also helped “promote respect for the law by . . . increasing the fairness of the sentencing process.”147 The supreme court noted that “a good sentence is one which can be reasonably explained,” and that there were numerous independent reasons for requiring such on-the-record explanations.148 This Court later summarized those reasons in Houston v. State:
[A] full explanation of a sentencing decision contributes to the rationality of the sentence, facilitates the reviewing
court‘s evaluation of the propriety of the sentence, and fosters public confidence in the criminal justice system. A full explanation may also aid the correctional authorities and have therapeutic value in assisting the defendant to accept his sentence without bitterness.149
The contents of the on-the-record sentencing explanation are also constitutionally based. When the
Within the ambit of this constitutional phraseology are found the objectives of rehabilitation of the offender into a noncriminal member of society, isolation of the offender from society to prevent criminal conduct during the period of confinement, deterrence of the offender himself after his release from confinement or other penological treatment, as well as deterrence of other members of the community who might possess tendencies toward criminal conduct similar to that of the offender, and community condemnation of the individual offender, or in other words, reaffirmation of societal norms for the purpose of maintaining respect for the norms themselves.152
Thus, Alaska has a strong tradition of requiring on-the-record sentencing explanations to ensure that sentences are imposed constitutionally and in accordance with Alaska law. Given this tradition and history, we conclude that a similar requirement should apply in cases where a juvenile offender is sentenced to life without parole (or its functional equivalent). That is, we conclude that, although a sentencing court need not recite the Miller factors by rote before sentencing a juvenile to the functional equivalent of a life without parole sentence, the sentencing court‘s remarks, and the record as a whole, must clearly show that the court has properly considered the defendant‘s youth
We note that Alaska law already requires sentencing judges to carefully consider a youthful offender‘s age and potential for rehabilitation. In Riley v. State, this Court held that it was “particularly important in first-degree murder cases involving youthful first offenders that rehabilitation and individual deterrence . . . be accorded careful scrutiny and appropriate weight.”158 We have since cited Riley for the principle that courts must affirmatively consider a person‘s youth at sentencing, and we have remanded cases for resentencing in situations where the record was not clear that the defendant‘s youth had been properly considered.159 Our holding today — that the Alaska
Why we conclude that the constitutional principles underlying Miller apply equally to sentences that are the functional equivalent of life without parole
In the previous section, we used the concepts of “a life without parole sentence” and “the functional equivalent of a life without parole sentence” interchangeably. We did so because we agree with the vast majority of state courts that have held that the constitutional principles underlying Miller apply equally to sentences that are the functional equivalent of a life without parole sentence.160
The more difficult question, in our view, is how to define when a sentence qualifies as the functional equivalent of a life without parole sentence. To answer this question, we turn first to Graham, which held that juveniles convicted of non-homicide crimes may not receive a life without parole sentence because such a sentence would
Therefore, a sentence that does not provide a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” qualifies as a de facto life without parole sentence for purposes of Graham. Moreover, the same definition should apply under Miller, which expressly held that there was nothing about Graham‘s reasoning that was “crime-specific.”163 Thus, under Miller, a sentence that does not provide a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” is unconstitutional when imposed on a juvenile offender convicted of homicide whose crime reflects “unfortunate yet transient immaturity” rather than “irreparable corruption.”164
However, neither Graham nor Miller defined what qualifies as a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” In
Initially, some state courts looked to life expectancy tables to define what type of sentence qualifies as a functional life without parole sentence for purposes of Miller. Under this approach, a sentence qualifies as the functional equivalent of a life without parole sentence when the date that the juvenile offender becomes eligible for parole (or the date the offender will be released if there is no parole eligibility) exceeds
But this approach has been heavily criticized.169 As various courts have noted, gender and racial disparities can affect projected life expectancies, and this can lead to disparate sentencing based on the offender‘s race or gender — an outcome that
Moreover, the problem with using life expectancy tables is not solved by trying to adapt the tables to the offender‘s specific characteristics. As the California Supreme Court noted in People v. Contreras,
[E]ven if there were a legally and empirically sound approach to estimating life expectancy, it must be noted that a life expectancy is an average. In a normal distribution, about half
of a population reaches or exceeds its life expectancy, while the other half does not. . . . An opportunity to obtain release does not seem “meaningful” or “realistic” within the meaning of Graham if the chance of living long enough to make use of that opportunity is roughly the same as a coin toss.172
For all of these reasons, many courts have eschewed the use of life expectancy tables in this context, concluding that the determination of whether the principles of Miller or Graham apply in a given case should not “turn on the niceties of epidemiology, genetic analysis, or actuarial sciences in determining precise mortality dates.”173
Instead, some courts have interpreted the “meaningful opportunity to obtain release” language in Graham to mean that the release itself must be “meaningful” in terms of the remaining quality of the juvenile‘s life.174 As the California Supreme Court noted in Contreras, “the language of Graham suggests that the high court envisioned
As part of this approach, two state courts looked to the United States Sentencing Commission‘s designation of 470 months (39.17 years) as a “life sentence” to create their thresholds. In Bear Cloud v. State, the Wyoming Supreme Court cited the Commission‘s designation and then held that the defendant‘s aggregate sentence which made him parole eligible after serving 45 years constituted a de facto life without parole
Lastly, some courts have looked to legislative enactments for guidance. In People v. Buffer, for example, the Illinois Supreme Court relied on post-Miller legislation enacted in Illinois to set the threshold at 40 years.180 Likewise, in Comer, the New Jersey Supreme Court based its 20-year second-look period, in part, on juvenile sentencing statutes in New Jersey.181
Most recently, in State v. Booker, the Tennessee Supreme Court held that Miller applied to a mandatory sentence of 60 years with parole eligibility after serving 51 years.182 Surveying legislative enactments across the country, the court concluded that “Tennessee is a clear outlier in its sentencing of juvenile homicide offenders,” because the vast majority of jurisdictions (thirty-six states) allow juvenile offenders to
With these different approaches in mind, we now turn to the question of whether Fletcher‘s sentence qualifies as a de facto life without parole sentence — that is, whether her sentence qualifies as the type of sentence that can only be lawfully imposed on a “irreparabl[y] corrupt[]” juvenile offender after proper consideration of the offender‘s youth and its attendant characteristics.
Why we conclude that Fletcher‘s sentence qualifies as a de facto life without parole sentence
As previously explained, Fletcher received a sentence of 135 years to serve, with normal eligibility for discretionary parole.185 This means that Fletcher will be
In its order dismissing Fletcher‘s second post-conviction relief application, the superior court ruled that Fletcher‘s sentence — 135 years to serve (with normal eligibility for parole) — was not a de facto life sentence for purposes of Miller and its progeny because Fletcher would be eligible to be considered for discretionary parole release at the age of sixty.
On appeal, Fletcher argues that her sentence should be considered a de facto life without parole sentence because there is little reason to believe that the parole board would release her on discretionary parole at her first parole hearing, regardless of her demonstrated maturity and rehabilitation. Indeed, Fletcher argues that her eligibility for discretionary parole should not be considered at all when assessing whether her sentence qualifies as a de facto life sentence because (according to Fletcher) Alaska‘s current system for discretionary parole does not provide a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” for juvenile offenders convicted of homicide.
This argument deserves serious consideration. In Jackson v. State, the Alaska Supreme Court held that a sentencing court should not consider a defendant‘s
Given the concern expressed in Jackson that considering a defendant‘s eligibility for discretionary parole may lead to an excessive sentence under Chaney because release on discretionary parole is too speculative, there is a similar concern that considering a juvenile offender‘s eligibility for discretionary parole may lead to an
In recognition of similar concerns, a number of state legislatures have instituted changes to their discretionary parole systems as they apply to juvenile offenders to ensure that the parole procedures provide the constitutionally-mandated “meaningful opportunity to obtain release” that Graham and Miller require. In addition to setting universal parole eligibility dates for juvenile offenders, these jurisdictions have adopted special procedures for juvenile offenders and have modified their statutory requirements so that they focus more on the mitigating aspects of a defendant‘s youth and less on the overall seriousness of the crime.193
For example, West Virginia has enacted a statute that directs the parole board to provide juveniles with a “meaningful opportunity to obtain release” and requires the parole board to consider “the diminished culpability of juveniles as compared to that of adults, the hallmark features of youth, and any subsequent growth and increased
Some of these legislative reforms have also included additional procedural protections for juvenile offenders in the parole process. For example, Connecticut, Illinois, and Oregon require that counsel be appointed for all indigent juvenile offenders for their parole hearings.197 Other states like California and Colorado created comprehensive programs for young offenders that allow earlier possibilities for release than their underlying parole programs.198
In addition, deficiencies in state parole systems have led some state courts to discount the significance of early parole eligibility dates when determining what type of sentence qualifies as a de facto life without parole sentence under Miller. In State v. Thomas, for example, a New Jersey appellate court held that a juvenile offender‘s sentence “evolved into” the functional equivalent of a life without parole sentence after the parole board repeatedly denied the offender‘s application for discretionary parole.201 The defendant in Thomas committed two murders when he was seventeen years old and was originally sentenced to a life sentence with the possibility of parole after 13 years.202
Concluding that the defendant‘s constitutional rights were “not satisfied by periodic parole hearings, which do not consider the Miller factors and do not provide a constitutionally sufficient procedure and forum to adjudicate the important Federal and State constitutional issues presented,” the New Jersey court held that the defendant‘s sentence had “evolved into” the practical equivalent of a life without parole sentence, and the defendant was therefore entitled to the resentencing remedy for Miller violations adopted by the New Jersey Supreme Court in Comer.207 Under this remedy, the
When viewed against the backdrop of these various legislative reforms and state court decisions, it is not clear that Alaska‘s current system of discretionary parole provides juvenile offenders such as Fletcher a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Unlike some other jurisdictions, there have been no legislative reforms to the Alaska parole statutes in response to Miller. There is therefore nothing in the current statutes that requires the Alaska Parole Board to treat defendants who committed their crimes when they were juveniles any differently than defendants who committed their crimes when they were adults. Nor is there anything that requires the parole board to evaluate the Miller factors or to take the differences between children and adults into account when evaluating whether to release a defendant on discretionary parole. And there are no provisions in the statutes for ensuring indigent juvenile offenders have access to counsel.
There are also potential problems with Alaska‘s statutory criteria for discretionary parole when applied to juvenile offenders tried as adults. Under
[T]he focus of the decision whether to release a juvenile offender on parole under Graham-Miller cannot be the heinousness of the underlying offense. . . . [F]rom the beginning of the development of its recent application of cruel and unusual punishment concepts to juveniles, the Supreme Court has emphasized that “[a]n unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth.” As emphasized by Justice Kennedy in plain language, “[C]hildren who commit even heinous crimes are capable of change.” Thus, even in cases where the juvenile offender has been waived into adult court because of the seriousness of the underlying crime, most offenders are redeemable. Instead of focusing on the underlying crime, parole authorities must focus on the dynamic factors of the development of youth and the high likelihood of maturity and rehabilitation.209
We recognize that, while there is nothing requiring the Alaska Parole Board to treat juvenile offenders differently, there is also nothing preventing the parole board from applying the Miller factors and de-emphasizing the seriousness of the offense in cases involving juvenile offenders. Indeed, in Bonilla, the Iowa Supreme Court upheld Iowa‘s parole system as facially constitutional partly because the parole board reassured
Here, the record does not contain such reassurances from the Alaska Parole Board. But this is, in large part, because of the procedural posture of this case. Fletcher‘s post-conviction relief application was dismissed on the pleadings before the State was required to file a response to her constitutional claims. Moreover, unlike the defendant in the New Jersey case, Fletcher has yet to go through the discretionary parole process, and there is no factual record from which to judge the constitutionality of the parole board‘s policies and procedures when applied to juvenile offenders.
Possible solutions to this problem would be to remand this case for further litigation on this issue or to delay any resolution of Fletcher‘s case until she has gone through at least one discretionary parole hearing.211 However, we conclude that we need not solve this problem here because we also conclude that Fletcher‘s 135-year sentence qualifies as a de facto life without parole sentence, even accounting for her eligibility for parole after serving 45 years.
We conclude that a sentence that allows an opportunity for release only after 45 years is a de facto life without parole sentence based primarily on the changing landscape of juvenile sentencing practices post-Miller. In determining whether a sentence constitutes cruel and unusual punishment, we are required to exercise our independent judgment and to look at “the evolving standards of decency that mark the
Today, as a result of post-Miller legislative enactments, all juvenile offenders in at least eighteen states and the District of Columbia are eligible for parole or resentencing after serving between 15 and 40 years.215 Indeed, within these jurisdictions, the vast majority (sixteen of eighteen) require a juvenile to serve no more than 20-30 years before becoming eligible for parole or resentencing.216 Significantly,
Lastly, our conclusion is consistent with the reasoning adopted by many state courts that a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” must mean more than just the possibility of a “geriatric release.”224 In 2016, the Alaska legislature enacted a “geriatric release” parole statute
Having determined that Fletcher‘s sentence qualifies as a de facto life sentence, we now turn to the superior court‘s alternative grounds for denying relief to Fletcher - (1) that her original sentencing qualified as a Miller-compliant sentencing; and (2) that her constitutional claims were procedurally barred because she was raising them in a successive application. Lastly, we will address the question of retroactivity, which has not been previously addressed by the parties.
In its order dismissing Fletcher‘s second application for post-conviction relief, the superior court ruled that Fletcher was not entitled to resentencing because Fletcher had already received “the kind of individualized, case- and person-specific sentencing endorsed by the Supreme Court in Miller.” We do not agree that Fletcher‘s sentencing complies with the dictates of Miller, as interpreted through our state constitution.
The central principle of Miller is that “youth matters” and “children are constitutionally different than adults for purposes of sentencing.”227 But in Fletcher‘s case, the prosecutor affirmatively argued at Fletcher‘s sentencing that, having been waived into adult court, fourteen-year-old Fletcher should be treated no differently than an adult who committed the same crimes. The sentencing judge did not voice any disagreement with the prosecutor‘s position, and the judge‘s cursory remarks at sentencing provide little reason to believe that the judge took proper account of Fletcher‘s youth and its attendant characteristics when he sentenced Fletcher. To the contrary, the judge appeared to treat the attributes of youth as aggravating factors, concluding that Fletcher was “very, very unlikely” to be rehabilitated because the judge did not know “what it is that [Fletcher] would be rehabilitated” from.228
Among the juvenile-specific factors that the judge should have considered were the fact that juveniles have a “lack of maturity and an underdeveloped sense of responsibility,” that they “are more vulnerable . . . to negative influences and outside
On appeal, the State cites to the juvenile waiver hearing, which was much more extensive than the sentencing hearing, and the State argues that the waiver judge‘s findings support an implicit finding of “irreparable corruption.” But the juvenile waiver hearing must be distinguished from the sentencing hearing. The only question before the waiver judge was whether Fletcher was amenable to treatment in the next six years, before she reached the age of twenty. Notably, none of the expert psychiatrists who evaluated Fletcher prior to the juvenile waiver hearing opined that she was irredeemable or “irreparabl[y] corrupt[].” While four of the five experts expressed pessimism about Fletcher‘s rehabilitation in the short-term, each expressed the possibility that progress could occur in someone so young. Moreover, three of those experts now agree that their opinions would need to be modified in light of Boyd‘s recantations and the more recent developments in neuroscience that underpin the holdings of Roper, Graham, Miller, and Montgomery.
Why we conclude that Fletcher‘s constitutional claim is not procedurally barred
The superior court also dismissed Fletcher‘s second application for post-conviction relief because it concluded that it was procedurally barred as a successive application.230
As an initial matter, we note that juvenile defendants in other jurisdictions have not faced the procedural obstacles Fletcher has faced. Instead, courts in other jurisdictions have generally treated a defendant‘s claim that their sentence is unconstitutional under Miller and Montgomery as a claim that their sentence is illegal -
But Fletcher did not argue that her sentence constitutes an illegal sentence under
Accordingly, we reject the State‘s contention that Fletcher could have brought her state constitutional claim based on Miller before Miller was decided, and we conclude that due process requires an exception to the statutory bar against successive applications in this case.
The retroactivity question
The only remaining question to be decided is whether the state constitutional holding in this case is retroactive to cases like Fletcher‘s that are on collateral review.
In its order dismissing Fletcher‘s post-conviction relief, the superior court incorrectly assumed that Miller was not retroactive to cases on collateral review. As already explained, this assumption proved to be incorrect when the United States
Unlike federal law, which allows for retroactive application of a ruling on collateral review only if the new rule is substantive or is a “watershed” procedural rule that implicates the fundamental fairness of the criminal proceeding or the fundamental accuracy of the fact-finding process,237 Alaska law determines whether a ruling is completely retroactive by applying the test set out in Judd v. State.238 This three-factor test requires the court to evaluate: “(a) the purpose to be served by the new standards; (b) the extent of the reliance by law enforcement authorities on the old standards; and (c) the effect on the administration of justice of a retroactive application of the new
We conclude that it would be premature for us to resolve the retroactivity question without additional litigation and input from the parties. Neither party addresses the question of retroactivity in their briefing - most likely because their briefs were written prior to the issuance of Jones when it appeared that the retroactivity ruling in Montgomery would govern any remedy Fletcher was entitled to under the federal constitution. Post-Jones, however, it is clear that Fletcher does not have a right to resentencing under the federal constitution and the retroactivity holding in Montgomery does not directly apply to Fletcher‘s case. We therefore conclude that a remand is required so that the parties may litigate whether the state constitutional rule articulated here is retroactive under the Judd test.
Conclusion
For all the foregoing reasons, we AFFIRM the dismissal of Fletcher‘s federal constitutional claim but we REVERSE the dismissal of Fletcher‘s state constitutional claim and we remand this case to the superior court for further litigation of the retroactivity question and a resentencing for Fletcher, should this retroactivity question be decided in Fletcher‘s favor.
Notes
We also note that there are nine additional jurisdictions that still allow certain juvenile offenders to be sentenced to life without parole, but these states set parole eligibility for all other juvenile offenders at 35 years or less. See
Criminal administration shall be based upon the following: the need for protecting the public, community condemnation of the offender, the rights of victims of crimes, restitution from the offender, and the principle of reformation.
In 2019, the legislature eliminated mandatory parole for defendants convicted of first- and second-degree murder and increased the amount of time such defendants must serve before becoming eligible to be considered for discretionary parole. FSSLA 2019, ch. 4, §§ 104, 107, 118. Currently, a defendant convicted of first-degree murder committed on or after July 9, 2019 is ineligible for mandatory parole and must serve two-thirds of their sentence before they are eligible to be considered for release on discretionary parole. See