Brian K. Williams, Appellant,
v.
United States, Appellee.
Argued
June 5, 2018
Appeal
from the Superior Court of the District of Columbia
(FEL-5400-90) (Hon. Harold L. Cushenberry, Jr., Trial Judge)
Mikel-Meredith Weidman, Public Defender Service, with whom
Samia Fam, Public Defender Service, was on the brief, for
appellant.
Sharon
A. Sprague, Assistant United States Attorney, with whom
Jessie K. Liu, United States Attorney, Channing D. Phillips,
United States Attorney at the time of initial briefing, and
Elizabeth Trosman, Suzanne Grealy Curt, Angela N. Buckner,
Patricia A. Heffernan, and Eric Hansford, Assistant United
States Attorneys, were on the brief, for appellee.
Before
Glickman, Thompson, and Easterly, Associate Judges.
OPINION
GLICKMAN, ASSOCIATE JUDGE
Dissenting
opinion by Associate Judge Easterly at page 45.
Appellant
Brian Williams is serving a sentence of 62 years to life in
prison for two murders and other offenses committed when he
was 17 years of age. He appeals from the denial of a motion
collaterally challenging the constitutionality of his
conviction and sentence pursuant to D.C. Code § 23-110
(2012 Repl.) Appellant contends his sentence is "de
facto" life without parole ("LWOP") and
therefore unconstitutional and subject to correction under
the Supreme Court's decisions in Miller v.
Alabama[1] and Montgomery v.
Louisiana.[2] Miller held that "mandatory
life [imprisonment] without parole for those under the age of
18 at the time of their crimes violates the Eighth
Amendment's prohibition on cruel and unusual
punishments."[3] In so holding, as Montgomery
subsequently clarified, Miller "bar[red] life
without parole . . . for all but the rarest of juvenile
offenders, those whose crimes reflect permanent
incorrigibility."[4] All other offenders who were juveniles at
the time of their crimes are entitled to "some
meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation."[5]
Montgomery further held that this is a substantive
rule of constitutional law that applies retroactively to
prisoners whose sentences were final when Miller was
decided.[6] Such prisoners, the Court held, "must
be given the opportunity to show their crime did not reflect
irreparable corruption; and, if it did not, their hope for
some years of life outside prison walls must be
restored."[7] Accordingly, because the sentencing court
in the present case did not find appellant to be permanently
incorrigible, he asks us to vacate his sentence and remand
his case for resentencing.
The
United States concedes that an aggregate term-of-years
sentence for multiple offenses qualifies as "de
facto" LWOP for purposes of Miller and
Montgomery if it precludes parole consideration for
a period of time clearly exceeding the defendant's
natural life expectancy.[8] The government argues, however, that
the holdings of Miller and Montgomery are
inapplicable to this case because they apply only to
mandatory LWOP sentences (i.e., only when the
sentencing court has no discretion to sentence the offender
to less than LWOP or its equivalent), and not to
discretionary LWOP sentences such as the sentence
appellant received. There is a conflict in the lower courts
over this issue, and on March 18, 2019, the Supreme Court
granted the petition for certiorari in Mathena v.
Malvo to settle it.[9] As we explain in this opinion, our
disposition of this appeal makes it unnecessary to await the
Supreme Court's ultimate decision in Malvo. We
can assume, without deciding, that the Eighth Amendment
principles enunciated in Miller and
Montgomery apply regardless of whether the LWOP
sentence is "mandatory" or
"discretionary."
The
government also disputes appellant's claim that his
aggregate sentence rendered him ineligible for parole for as
long as, or longer than, his life expectancy. This is a
factual question that the record before us does not resolve,
though the period of appellant's ineligibility for parole
does appear to be close to his expected life
span.[10] For purposes of this appeal, we may
assume, without deciding, that appellant's sentence as
imposed was "de facto" LWOP.
The
government's primary argument on appeal is that appellant
is not entitled to the resentencing relief he requests, even
assuming the applicability of Miller and
Montgomery, because the Council of the District of
Columbia has legislatively remedied the claimed Eighth
Amendment infirmity in his sentence by making him eligible
for release from prison well before his current
parole-eligibility date. We agree with the government on this
latter point.
Montgomery
held that Miller violations may be remedied
legislatively by allowing juvenile offenders who received
LWOP sentences "to be considered for parole, rather than
by resentencing them."[11] Although the District
prospectively abolished parole almost two decades ago, the
Council adopted a comparable remedy for unconstitutional LWOP
sentences in the Incarceration Reduction Amendment Act of
2016 (the "IRAA").[12] The IRAA permits a defendant
who has served at least 20 years of imprisonment for an
offense committed before his 18th birthday to apply to the
court (instead of to a parole board) for relief from his
sentence in light of his lesser culpability as a juvenile and
his maturation and rehabilitation in prison. Because we
conclude that the IRAA provides appellant with the requisite
"meaningful opportunity" to obtain release from
prison well before the end of his natural life expectancy
based on his maturation and rehabilitation, we deny his
request for a resentencing.
I.
On
March 11, 1990, appellant and three other men armed
themselves with pistols and a shotgun and carried out a plan
to rob two cocaine dealers. During the robbery, the two
unarmed dealers were shot and killed while lying face down on
the floor, and the wife of one of the victims was assaulted.
The conspirators got away with 17 ounces of cocaine, which
they divided up among themselves. When appellant was
arrested, he told police he was at home with his girlfriend
on the night of the murders; he later urged his girlfriend to
lie to the grand jury in support of that alibi.
At
appellant's trial in January 1992, the jury returned a
verdict of guilty on fourteen counts, including multiple
counts of first-degree felony murder while armed. This court
affirmed appellant's convictions in 1995 and remanded the
case for vacatur of those convictions that were subject to
merger.[13] This was done, and on July 28, 1995, the
trial judge sentenced appellant to an aggregate sentence of
62 years to life in prison.[14] Appellant was seventeen years
old when he committed the offenses. According to the Bureau
of Prisons, he will not be eligible for parole until 2048,
when he will be 75 years old.
On
April 6, 2015, appellant filed a pro se motion
presenting the claim that his sentence was unconstitutional
under Miller because it was equivalent to a sentence
of life without parole.[15] The government opposed the motion. On
May 9, 2016, the trial judge ruled that appellant was not
entitled to relief. The judge rejected appellant's Eighth
Amendment claim on the grounds that he had not sentenced
appellant under a statute mandating a life sentence without
the possibility of parole and that he had taken
appellant's youth into account.[16]Appellant timely noticed
this appeal.[17]
II.
The
Eighth Amendment prohibits the infliction of "cruel and
unusual punishments."[18] In the years since appellant
was sentenced, the Supreme Court issued a series of four
decisions applying this prohibition to the sentencing of
offenders who were juveniles when their crimes were
committed.
In the
first of these decisions, Roper v. Simmons,
[19]
the Court held that the Cruel and Unusual Punishments Clause
of the Eighth Amendment prohibits imposition of the death
penalty on an offender who was younger than 18 when he
committed a capital crime. In so ruling, the Court set forth
the premises for concluding that the most severe punishments
are, or may be, disproportionately harsh when applied to
juveniles because of their lessened culpability and greater
prospects for maturation and rehabilitation. The Court
identified "[t]hree general differences between
juveniles under 18 and adults demonstrat[ing] that juvenile
offenders cannot with reliability be classified among the
worst offenders."[20] First, as compared to adults,
juveniles have "a lack of maturity and an underdeveloped
sense of responsibility," causing them to act more
impulsively and recklessly; second, juveniles are more
vulnerable or susceptible to outside pressures and negative
influences, "including peer pressure"; and third,
they are more amenable to correction and reformation because
their characters are "not as well formed" and their
personality traits are "more transitory, less
fixed."[21] While these characteristics may not be
true of every juvenile under 18, the Court recognized that
"[i]t is difficult even for expert psychologists to
differentiate between the juvenile offender whose crime
reflects unfortunate yet transient immaturity, and the rare
juvenile offender whose crime reflects irreparable
corruption."[22]
In the
three decisions following Roper, the Court turned
from the death penalty to consider the constitutionality of
sentencing juveniles to what it called "the second most
severe penalty permitted by law, "[23] life
imprisonment without parole. The Court recognized this to be
"especially harsh punishment for a juvenile [who] will
on average serve more years and a greater percentage of his
life in prison than an adult offender."[24] It came to
the conclusion in these cases that LWOP sentences are almost
always disproportionately severe and constitutionally
impermissible for offenders under 18 years of age because of
their diminished culpability and greater receptivity to
rehabilitation, and the dubiousness of making at the time of
sentencing an "irrevocable judgment" that a
juvenile offender is "incorrigible" and
"forever will be a danger to
society."[25]
In
Graham, the first case in the LWOP trilogy, the
Court held that for any "juvenile offender who did not
commit homicide[, ] the Eighth Amendment forbids the sentence
of life without parole" without exception.[26] When a
juvenile is sentenced to life for a non-homicide crime, the
State must give him or her what the Court called a
"meaningful" and "realistic opportunity to
obtain release before the end of that
term."[27] Two years later, the Court declared in
Miller that "Graham's reasoning
implicates any life-without-parole sentence imposed on a
juvenile, even as its categorical bar relates only to
nonhomicide offenses."[28] Although Graham had
not absolutely proscribed LWOP sentences for juvenile
homicide offenders, Miller held that the Eighth
Amendment forbids a sentencing scheme under which LWOP is
mandatory for any class of juvenile offenders,
because "[b]y making youth (and all that accompanies it)
irrelevant to imposition of that harshest prison sentence,
such a scheme poses too great a risk of disproportionate
punishment."[29] The Court declared that before imposing
life without parole on a juvenile offender in any homicide
case, the sentencer is required "to take into account
how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in
prison."[30]
In the
third case, Montgomery, the Court clarified that
"Miller . . . did more than require a sentencer
to consider a juvenile offender's youth before imposing
life without parole. . . . Even if a court considers a
child's age before sentencing him or her to a lifetime in
prison, that sentence still violates the Eighth Amendment for
a child whose crime reflects 'unfortunate yet transient
immaturity.'"[31]Montgomery described
Miller's retroactive "substantive
holding" as being "that life without parole is an
excessive sentence for children whose crimes reflect
transient immaturity."[32] Miller thus
"bar[red] life without parole . . . for all but the
rarest of juvenile offenders, those whose crimes reflect
permanent incorrigibility."[33]
In line
with the government's concession in this case, numerous
courts have understood Miller (and Graham)
to apply not only to sentences that literally impose
imprisonment for life without the possibility of parole, but
also to lengthy term-of-years sentences (for one offense or
for multiple offenses in the aggregate) that amount to
"de facto" life without parole because they
foreclose the defendant's release from prison for all or
virtually all of his expected remaining life
span.[34] We agree with that understanding.
Although
Miller addressed only mandatory LWOP sentencing
schemes, many courts have read it, especially after
Montgomery, as equally applicable to discretionary
LWOP sentences.[35] We apprehend that the recent grant of
certiorari in Malvo means the Supreme Court is
likely to clarify whether the constitutional principles
articulated in Miller and Montgomery apply
to discretionary as well as mandatory LWOP sentences imposed
on juvenile homicide offenders. For present purposes, we may
assume arguendo an affirmative answer to that
question; the answer makes no difference to our analysis and
disposition of the present appeal.
Importantly,
the Supreme Court's three LWOP decisions do not
proscribe, and impose no restrictions on, sentencing juvenile
offenders to "life with the possibility of
parole."[36] The Court emphasized that the Eighth
Amendment does not require States "to guarantee eventual
freedom" to juvenile offenders who are ineligible for
LWOP sentences.[37] The Eighth Amendment demands only that
those offenders be afforded "some meaningful opportunity
to obtain release based on demonstrated maturity and
rehabilitation."[38] The corollary is that, consistent
with the Constitution, "[t]hose prisoners who have shown
an inability to reform will continue to serve life
sentences."[39] Thus, providing a "meaningful"
opportunity for reformed juvenile offenders to secure release
from prison remedies the unconstitutionality of an LWOP
sentence barred by Miller by turning it into a
sentence that is constitutional because release is
realistically possible after all.
The
Court did not define what constitutes a
"meaningful" opportunity to obtain release;
essentially the only guidance it provided on that score was
to say that "prisoners like Montgomery [a juvenile
homicide offender serving an LWOP sentence] must be given the
opportunity to show their crime did not reflect irreparable
corruption; and, if it did not, their hope for some years of
life outside prison walls must be
restored."[40]
The
Court left it up to the States, "in the first instance,
to explore the means and mechanisms for compliance" with
this duty[41] and to "develop[] appropriate ways
to enforce the constitutional restriction upon [their]
execution of sentences."[42] It made clear in
Montgomery that juvenile offenders serving
unconstitutional LWOP sentences did not need to be
resentenced to cure the Eighth Amendment violation in their
sentences:
Giving Miller retroactive effect, moreover, does not
require States to relitigate sentences, let alone
convictions, in every case where a juvenile offender received
mandatory life without parole. A State may remedy a
Miller violation by permitting juvenile homicide
offenders to be considered for parole, rather than by
resentencing them. . . . Allowing 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 Eighth
Amendment."[43]
As an
example of a sufficient remedial alternative to resentencing,
the Court cited a Wyoming statute making juvenile homicide
offenders eligible for parole after 25 years.[44]
The
Council of the District of Columbia responded to the
constitutional imperatives declared in Graham,
Miller, and Montgomery by passing the
Incarceration Reduction Amendment Act of 2016 (the
"IRAA").[45] The IRAA went into effect on April 4,
2017. It bans LWOP sentences and eliminates mandatory minimum
prison terms for all offenders who were under 18 years of age
when they committed their crimes.[46] In addition, the IRAA
establishes a sentence review procedure intended to comply
with the Supreme Court's LWOP decisions by ensuring that
all juvenile offenders serving lengthy prison terms have a
realistic, meaningful opportunity to obtain release based on
their diminished culpability and their maturation and
rehabilitation.
The
sentence review procedure is set forth in Section 306 (b) of
the IRAA.[47]The Council modeled it on legislation
enacted in Florida and Delaware and under consideration in
Congress.[48] It provides that "[n]otwithstanding
any other provision of law," the sentencing "court
may reduce a term of imprisonment imposed upon a defendant
for an offense committed before the defendant's 18th
birthday" if the defendant "has served at least 20
years in prison" without having become eligible for
release on parole.[49] This relief is available regardless of
whether the imposed period of imprisonment without parole
violated the Eighth Amendment under Graham and
Miller. [50]
A
defendant may apply for such relief by motion and submit
supporting affidavits and documentation, and the court is
required to hold a hearing on the motion.[51] At the
hearing, the defendant and his counsel "shall be given
an opportunity to speak on the defendant's behalf"
and may be permitted to introduce evidence.[52]
The
IRAA allows the court to reduce the term of imprisonment if
it finds that "the defendant is not a danger to the
safety of any person or the community and that the interests
of justice warrant a sentence
modification."[53] This standard, in conjunction with the
requirement that the defendant must have served at least 20
years of his prison term, is essentially equivalent to the
standard for granting parole.[54] The 20-year waiting period is
consistent with the 25-year waiting period for parole
eligibility that the Supreme Court deemed constitutionally
acceptable in Montgomery.
In
determining whether sentence modification is warranted, the
court is required to consider "[t]he defendant's age
at the time of the offense;" "[w]hether the
defendant has "demonstrated maturity, rehabilitation,
and a fitness to reenter society;" and "[t]he
diminished culpability of juveniles as compared to that of
adults, and the hallmark features of youth, including
immaturity, impetuosity, and failure to appreciate risks and
consequences, which counsel against sentencing them to a
lifetime in prison[.]"[55] The statute goes on to
identify a number of specific factors bearing on the
defendant's maturation, rehabilitative progress and
amenability to reform, that the court must consider,
including:
(2) The nature of the offense and the history and
characteristics of the defendant;
(3) Whether the defendant has substantially complied with the
rules of the institution to which he or she has been confined
and whether the defendant has completed any educational,
vocational, or other program, where available;
* * *
(7) Any reports of physical, mental, or psychiatric
examinations of the defendant conducted by licensed health
care professionals;
(8) The defendant's family and community circumstances at
the time of the offense, including any history of abuse,
trauma, or involvement in the child welfare system;
(9) The extent of the defendant's role in the offense and
whether and to what extent an adult was involved in the
offense.[56]
The
IRAA requires the court to issue a written opinion
"stating the reasons for granting or denying the
application[.]"[57] This requirement of a written opinion
helps to ensure the effectiveness of appellate review, which
is for abuse of discretion.[58] If the court grants the
application, it shall proceed to resentence the defendant
under the sentencing regime that originally governed his
sentence.[59] If a defendant's initial motion for
a reduced sentence is denied, the IRAA provides the defendant
with two further opportunities to obtain release. The
defendant may file a second sentence reduction motion after
five years; if that motion too is denied, he may file a third
such motion after another five years. If that third motion is
denied as well, no further motions under the IRAA are
permitted.[60]
Although
review under the IRAA is not denominated
"resentencing," it would seem to equate to a
resentencing in all but name. However we characterize it, the
IRAA sentence review procedure provides a realistic,
meaningful opportunity for all prisoners serving LWOP
sentences for juvenile offenses to obtain release and
"some years of life outside prison walls" based on
demonstrated maturity and rehabilitation. For example, the
court could render a prisoner in appellant's
circumstances (one serving an indeterminate sentence)
eligible for parole much earlier (or, indeed, immediately) by
lowering the minimum terms imposed for each count of
conviction and/or making his individual sentences run
concurrently instead of consecutively; or the court could
alter his sentence in various other ways and even reduce it
to time served, effecting the prisoner's prompt release,
based on its determination of his reformation and suitability
for such relief. For prisoners serving determinate
term-of-years sentences, the IRAA empowers the court to grant
early release more directly by simply reducing the length of
the prison term. The IRAA's provision of this opportunity
for release does all the Supreme Court has said is necessary
in its juvenile LWOP cases for such sentences to pass muster
under the Eighth Amendment, for it was only the previous
unavailability of such an opportunity that caused those
sentences to contravene that Amendment. The IRAA thus
furnishes a sufficient remedy for Miller violations.
Because this remedy is available to appellant - in fact, we
are informed that he already has applied in Superior Court
for modification of his sentence pursuant to the IRAA - his
§ 23-110 claim is now moot. The sentence appellant is
serving is now equivalent, for Eighth Amendment purposes, to
a life sentence with parole eligibility - a sentence the
Eighth Amendment permits.
Appellant
and our dissenting colleague nonetheless assert that because
the IRAA does not require parole consideration directly, it
leaves the original, presumptively unconstitutional LWOP
sentences "in place" and unaltered. E.g.,
post at 47, 49, 68, 78, 79, 81. Perhaps that is so as a
purely formal matter, but it is not so in reality or from the
perspective of satisfying the requirements of the Eighth
Amendment. There is no constitutional magic in the word
"parole." In reality, the IRAA fundamentally
transformed every LWOP sentence imposed in Superior Court for
crimes committed by juvenile offenders, by effectively
converting each such sentence into one with multiple
realistic and meaningful possibilities of release while the
offender still has years of life left. What was presumptively
unconstitutional in those sentences therefore was not left
"in place"; it was superseded by a new procedure
providing all that the Eighth Amendment requires.
Simply
put, by enacting the IRAA, the Council legislatively modified
what were life sentences without the possibility of parole,
changing them all into life sentences with a
constitutional equivalent of parole. While the judicial
hearing contemplated by the IRAA is not identical in all
respects to a parole hearing, it serves the same purpose and
requires judges to do what appellant would have parole boards
do: consider whether defendants ostensibly sentenced to life
in prison for crimes committed as juveniles have earned back
their liberty by demonstrating their capacity for
reformation. The dissent objects that while parole provides
the opportunity for outright release from prison to those
found to deserve it, the IRAA only provides the opportunity
for a reduction of sentence to deserving prisoners.
Post at 47, 68-70. But this is quibble; the
distinction the dissent draws between release and sentence
reduction is of no constitutional significance, for as
explained earlier, sentence reduction is an effective means
for the court to provide for release.
The
dissent further objects that the IRAA judicial review
procedure places the burden of proof on the defendant to show
that he has reformed, rather than requiring the government to
prove that his crime reflects permanent incorrigibility.
Post at 73 n.22. This objection, which equally could
be leveled against parole hearings, misapprehends what the
Supreme Court held in Miller and
Montgomery. Under those cases, a judicial prediction
of permanent incorrigibility is necessary only to support the
denial of any meaningful opportunity for release based on
demonstrated maturation and rehabilitation. The IRAA,
however, provides exactly that opportunity. Consequently, as
Montgomery states, the burden is indeed on the
prisoner to "demonstrate the truth of
Miller's central intuition - that children who
commit even heinous crimes are capable of
change."[61]
The
Supreme Court has repeatedly emphasized that it is the
opportunity for eventual release, not the
actuality of eventual release, that the Eighth
Amendment demands. Life sentences for juvenile offenders are
not in themselves unconstitutional, nor do they require any
finding of incorrigibility to be constitutional, so long as
the requisite opportunity for release exists. The
Constitution does not guarantee that juvenile offenders will
be released eventually or require a finding of
incorrigibility as a condition of withholding release from
those who fail to reform.
Furthermore,
the Supreme Court did not say, nor in our view did it imply,
that a parole hearing is the only constitutionally
acceptable remedial alternative to vacating and relitigating
the sentence ab initio.[62] While in
Montgomery the Supreme Court gave Wyoming's
parole statute (allowing parole consideration after 25 years)
as an example of an acceptable approach, the Court explicitly
left it up to the States to devise appropriate procedures to
vindicate the Eighth Amendment's requirements in this
area.[63] If, as the Court held in
Montgomery, the Eighth Amendment permits a State to
remedy unconstitutional LWOP sentences by legislatively
providing the opportunity for early release by a parole
board, then surely the Eighth Amendment permits a State to
remedy unconstitutional LWOP sentences by legislatively
providing the opportunity for early release by a court. To
reject the latter alternative simply because it is not
denominated "parole" is to exalt form over
substance without any grounding in Eighth Amendment
jurisprudence.
Other
States have enacted judicial sentence review procedures
similar to that in the IRAA to provide juvenile offenders
receiving life or long term-of-years prison sentences with
the meaningful opportunity to obtain release mandated by
Graham and Miller.[64] For example, Fla. Stat.
§ 921.1402 allows an offender serving such a sentence to
apply for judicial review after 25 years and requires the
sentencing court to hold a hearing on the application to
determine "whether the sentence should be modified"
in light of the offender's demonstrated maturity and
rehabilitation. The Florida Supreme Court held that this
provision satisfies Miller's requirement that
juvenile offenders be given a meaningful opportunity for
future release from incarceration.[65] In other words, the Court
deemed the statutory provision of IRAA-type judicial review
to be equivalent to the provision of parole review for
purposes of complying with the Eighth Amendment as construed
in Miller and Montgomery.[66]
In
support of its counter-factual theme that the IRAA cannot
remedy an unconstitutional LWOP sentence because it leaves
that sentence unaltered, the dissent relies on, and largely
echoes, a pre-Montgomery decision of the California
Supreme Court, People v. Gutierrez.[67] In that case,
the Court held that the potential for relief under
California's "recall and resentencing"
statute[68] - a statute similar, though not
identical, to the IRAA - was not an adequate remedy for an
LWOP sentence imposed on a juvenile offender pursuant to a
statute that established an unconstitutional presumption in
favor of life without parole.[69] The rationale articulated in
Gutierrez, like that of the dissent in this case, is
undermined by Montgomery's subsequent holding
that Miller violations can be cured without
resentencing by providing the offender with the opportunity
for release from prison based on a showing of maturation and
rehabilitation.[70] When the California Supreme Court
addressed the recall and resentencing statute after
Montgomery was decided, in In re Kirchner,
[71]
it articulated a different rationale for concluding that the
statutory remedy was insufficient to remedy a Miller
violation. Specifically, the Court found the statute
inadequate because, by its terms, it makes resentencing
"unavailable to some juvenile offenders who are serving
sentences that contravene Miller," and it fails
to "require consideration of all relevant evidence
bearing on the Miller factors . . . as part of the
resentencing inquiry."[72] The IRAA differs from the
California law; it is subject to neither of these defects.
Ultimately,
even if a few other State courts have rejected their
States' judicial review mechanisms as an alternative to
resentencing juvenile offenders serving unconstitutional LWOP
sentences, that is of little moment. In Montgomery,
the Supreme Court held that resentencing is not the only
acceptable means of remedying the Eighth Amendment violation,
and that it suffices for a State to make consideration for
release on parole meaningfully available to such offenders in
lieu of resentencing them. The critical question before us,
therefore, is how judicial review under the IRAA compares
with parole consideration. We think it compares quite
favorably.
We
certainly do not see that the judicial hearing required by
the IRAA is inferior to a parole hearing from the
defendant's point of view, or in terms of meeting the
concerns expressed in Miller and Montgomery
that the differences between children and adults be taken
fully into account to avoid disproportionately harsh
sentences for juvenile offenders. The IRAA judicial hearing
is superior to a parole hearing in those respects, for one
reason because the IRAA explicitly requires judges to give
individualized consideration to the factors specific to
juveniles that "counsel against sentencing them
to a lifetime in prison."[73] In addition, the formal
judicial hearing envisioned by the IRAA provides defendants
significant procedural guarantees, in contrast to the
"minimal" procedures that the Constitution requires
in parole proceedings.[74] These include a fuller opportunity to
present relevant evidence (and, by implication, to challenge
the government's evidence) with the assistance of
counsel, [75] and a written, structured decision by
the judge that is subject to more stringent constitutional
and statutory requirements and is more fully reviewable on
appeal.[76]
Appellant
objects that the IRAA commits the motion for reduction of
sentence to the judge's discretion "with no guidance
to judges about how to weigh the enumerated
factors."[77] Even if this were so, the Supreme Court
did not suggest in Montgomery that the Eighth
Amendment requires such precision to guide
parole[78] or any other procedure for remedying a
Miller violation. It is common for decisions of
constitutional magnitude to be based on a judge's
discretionary consideration of multiple factors without
preordained weights assigned to them; many such decisions are
not amenable to such advance fine-tuning, and sentence
reduction in this context is surely one of them. The factors
to be considered are too many and vary too greatly from
individual to individual for any predetermined formula to
govern their weighing and balancing, and rigid adherence to
such a formula would run counter to the essence of the
evaluation of each juvenile's unique characteristics,
degree of culpability, and prospects for reformation required
by the Eighth Amendment.
We
reject appellant's assertions that judicial review in the
IRAA context is therefore "illusory" and that
"[a]s long as a judge holds an IRAA hearing, allows the
defendant to present evidence, and issues a written order,
the refusal to reduce a sentence that should never have been
imposed will be, for all practical purposes,
unreviewable."[79] The judge is obligated to accord the
prisoner a fair hearing and to make findings and conclusions
supported by the record with respect to the pertinent factors
enumerated in the IRAA. Thus, the judicial exercise of
discretion, in an IRAA proceeding as in other areas, is
reviewable for compliance with constitutional and other legal
requirements and for abuse under well-established standards
of reasonableness;[80] it is far more amenable to review, we
would add, than a parole board decision to deny parole.
Although (as appellant points out) this court has observed
that "[g]enerally, sentences within statutory limits are
unreviewable aside from constitutional considerations,
"[81] that observation has little bearing
here, where not only are "constitutional
considerations" and the Supreme Court's articulation
of the relevant requirements of the Eighth Amendment at the
forefront, but also the IRAA itself clearly sets forth the
criteria that the court must consider.
Finally,
appellant objects that the availability of IRAA relief
evaporates after three unsuccessful tries, creating the
possibility that a defendant whose sentence violated
Miller would have to spend his entire life in prison
even if he eventually might, on a fourth (or later) attempt,
have been able to demonstrate that he is rehabilitated and
deserving of release. Appellant states that, in contrast,
District of Columbia prisoners who are eligible for parole
may be reconsidered for parole on an annual basis. That may
be so, but as the government rejoins, when the Supreme Court
said States could remedy Miller violations by
permitting the defendant to be considered for parole, it did
not describe what the parole scheme had to look like or imply
that it needed to be as generous as the District's scheme
in providing repeated opportunities for parole
reconsideration. Parole practices and procedures are not
uniform throughout the United States; some jurisdictions
restrict the frequency or number of parole hearings quite
significantly, as much or more than the restriction on
sentence reduction motions set by the IRAA.[82] And
appellant's argument that three chances are not enough to
provide a meaningful opportunity to attain demonstrable
maturity and rehabilitation is unpersuasive, given that the
prisoner has twenty years in which to make progress before he
can take the first of those chances, another five years in
which to make further progress before he can take the second
chance, and yet another five years before he can take his
third chance. Moreover, the prisoner can wait to move for
reduction of his sentence if he needs more time to make the
showing of his rehabilitation and suitability for return to
society. That a prisoner may fail to reform over the course
of at least thirty years and may file motions that are
premature does not mean he has been denied what the Eighth
Amendment requires.[83]
For the
foregoing reasons, we affirm the Superior Court's denial
of appellant's § 23-110 motion for relief from his
sentence, without prejudice to his right to seek a reduction
of his sentence pursuant to the IRAA.
So
ordered.
Easterly, Associate Judge, dissenting:
In
1992, Brian Williams was sentenced to an aggregate term of at
least six decades in prison for a double murder and related
crimes he committed at age 17. Although he was resentenced in
1995, his minimum term of incarceration is still 62 years.
Pursuant to his 1995 sentence, Mr. Williams remains in prison
today and will not become eligible to be released from prison
until he is 79 years old-at or very near the end of his life.
Mr. Williams is serving a sentence that violates his rights
under the Eighth Amendment. He is entitled to habeas relief.
In a
trio of decisions-Graham v. Florida, 560 U.S. 48
(2010), Miller v. Alabama, 567 U.S. 460 (2012), and
Montgomery v. Louisiana, 136 S.Ct. 718 (2016)-the
Supreme Court interpreted the Eighth Amendment to generally
bar sentences that condemn juvenile offenders to die in
prison; only an exceptionally rare subset who are both
convicted of homicide and proven irreparably corrupt may be
so sentenced. In Montgomery, the Court clarified
that this Eighth Amendment right not to be sentenced to die
in prison is a substantive right; that it renders
unconstitutionally imposed sentences void and unenforceable;
and that it must be retroactively enforced in state court
habeas proceedings. The Majority Opinion alternately assumes
and agrees that whether a juvenile offender's sentence to
die in prison is mandatory or discretionary, eponymous or de
facto, the juvenile offender's Eighth Amendment rights
are implicated. I would so hold. Moreover, because life
expectancy statistics endorsed by both Mr. Williams and the
government project that Mr. Williams will die in his mid to
late 70s, I would hold that Mr. Williams' 62-year
sentence is unconstitutional and void and grant him the
habeas relief to which he is entitled under D.C. Code §
23-110: a new, constitutionally-compliant sentence.
Yet the
Majority Opinion rejects Mr. Williams' entitlement to a
new, lawful sentence and affirms the trial court's denial
of his § 23-110 motion. My colleagues in the Majority
conclude that, even if Mr. Williams' sentence was
unconstitutional at the time it was imposed, his request for
habeas relief in the form of resentencing has been
"moot[ed]" by the enactment of D.C. Code §
24-403.03, a provision of the Incarceration Reduction
Amendment Act of 2016 (IRAA). They reason that D.C. Code
§ 24-403.03-which authorizes a court to review a
juvenile offender's sentence no earlier than twenty years
after its imposition, to consider a nonexclusive list of
factors, and then to determine solely in its discretion
whether to reduce the sentence-"effectively
convert[ed]" Mr. Williams' unconstitutional sentence
into a constitutional one by giving Mr. Williams all he is
entitled: an opportunity for release. For multiple reasons, I
cannot agree.
First,
it is wrong to say that the violation of a substantive right
is cured solely with a procedural remedy. Mr. Williams'
right under the Eighth Amendment not to be sentenced to die
in prison is not fulfilled by giving him access to sentence
review under D.C. Code § 24-403.03. It is fulfilled by
giving him a constitutional sentence-one that gives him
"hope for some years of life outside prison walls."
Montgomery, 136 S.Ct. at 737.
Second,
it is wrong to say Mr. Williams' unconstitutional
sentence has been "effectively" fixed by D.C. Code
§ 24-403.03 and only remains in place "as a purely
formal matter." It is no mere formality that the only
basis for Mr. Williams' current imprisonment is the 1995
sentencing order that requires him to spend the rest of his
life in prison. This sentencing order is entirely unchanged
by the existence of a statutory procedure that only allows a
juvenile offender at a future point in time to request
sentence review-as opposed to authorizing him, after service
of a minimum sentence term, to request release. Indeed, under
the Majority Opinion's logic, the existence of any future
sentence review procedure would relegitimize the practice,
condemned in Graham and Miller, of
sentencing juvenile offenders to die in prison without
ensuring at the outset that they meet the strict
constitutional criteria for imposition of such sentences.
Third,
it is wrong to say that § 24-403.03's
twenty-years-in-the-future, discretionary sentence review
procedure protects the substance of Mr. Williams' Eighth
Amendment rights, even belatedly. This statute, which was
never intended as a Montgomery fix, does not require
a court to discern if a juvenile offender is one of those
rare few incorrigibles who may be lawfully sentenced to die
in prison, much less require it to resentence a corrigible
juvenile offender to something less than life imprisonment.
Thus, as a statutory matter, a corrigible juvenile offender
unconstitutionally sentenced to die in prison could seek
review under § 24-403.03, be denied discretionary
relief, and remain subject to an unconstitutional sentence.
Unquestionably,
the Supreme Court in Montgomery gave states
flexibility in curing the violation of juvenile
offenders' substantive rights under the Eighth Amendment.
States do not have to individually "relitigate"
now-void sentences to life imprisonment; they may instead
categorically replace juvenile offenders'
unconstitutional sentences to die in prison with parolable or
lesser term-of-years sentences. But the Council of the
District of Columbia has not done this, and the flexibility
the Supreme Court gave the states does not authorize the
District's courts to hold unconstitutional sentences in
place and rely on a years-in-the-future, discretionary
sentence review mechanism like D.C. Code § 24-403.03 as
a constitutional cure-all. Our court will stand alone in the
nation in holding that it does.
By
withholding from Mr. Williams the relief that he is due-a
new, constitutionally-compliant sentence-the Majority Opinion
flouts the Supreme Court's directives, renders our habeas
review inadequate, and negatively distinguishes us from other
jurisdictions. The denial of Mr. Williams' § 23-110
motion should be reversed, not affirmed.
I.
Because Mr. Williams' Substantive Rights Under
the Eighth Amendment Were Violated, He Is Entitled to Habeas
Relief.
A.
Juvenile Offenders Have a Substantive Eighth Amendment Right
Not to be Sentenced To Die in Prison.
In a
trilogy of cases, Graham, Miller, and
Montgomery, the Supreme Court held that the Eighth
Amendment generally prohibits sentencing juveniles to die in
prison. For juveniles who commit nonhomicide offenses, life
without parole sentences are barred entirely, per
Graham. Ante at 13. For the vast majority
of juveniles who commit homicide offenses, life without
parole sentences are likewise barred, per Miller and
Montgomery; such sentences are authorized only in
the exceptionally rare case where the government has proved
that the juvenile is irreparably corrupt. Id. at
14-15. These limits on juvenile sentencing are founded in a
recognition that juveniles are developmentally distinct and
thus "constitutionally different from adults."
Montgomery, 136 S.Ct. at 733 (quoting
Miller, 567 U.S. at 471). Because juveniles are both
less culpable for their behavior and more receptive to
rehabilitation, their criminal conduct is in all likelihood
the product of "unfortunate yet transient
immaturity." Montgomery, 136 S.Ct. at 734
(quoting Miller, 567 U.S. at 479); see also
ante at 15. Accordingly, there is almost never a
legitimate penological justification to sentence juvenile
offenders to die in prison. They must receive sentences that
give them "hope for some years of life outside prison
walls."[1] Montgomery, 136 S.Ct. at 737.
The
Supreme Court's opinion in Montgomery is the
culmination of its Eighth Amendment jurisprudence to date
regarding the sentencing of juvenile offenders, and
understanding its holding-that the Eighth Amendment
substantively proscribes all sentences that condemn juvenile
offenders to die in prison (excepting those of homicide
offenders proved before sentencing to be incorrigible)-is
critical to the correct analysis of Mr. Williams'
appeal.[2] Like Mr. Williams, Mr. Montgomery was
taken into custody at age 17 for a homicide offense and was
sentenced to die in prison. After his conviction was final,
he sought to challenge his sentence on Eighth Amendment
grounds in state habeas proceedings. Whether he could prevail
on this claim in post-conviction proceedings turned on
whether the Supreme Court's decision in Miller
constituted "a new substantive rule of constitutional
law"-i.e., a "rule[] prohibiting a certain category
of punishment for a class of defendants because of their
status or offense"-that retroactively applied to his
sentence. 136 S.Ct. at 728-29.
To
answer this question, the Court in Montgomery first
confirmed that the retroactivity rules set forth in
Teague v. Lane, 489 U.S. 288 (1989) (requiring
retroactive application of all substantive constitutional
rules, but not all procedural constitutional rules), applied
in state collateral review proceedings. 136 S.Ct. at 729-32.
The Court explained that these retroactivity rules were
themselves constitutionally compelled under the Supremacy
Clause because "[a] conviction or sentence imposed in
violation of a substantive rule is not just erroneous but
contrary to law and, as a result, void." Id. at
731. A state court engaged in collateral review consequently
has no authority to leave in place a conviction or sentence
that violates a substantive rule. . . . A penalty imposed
pursuant to an unconstitutional law is no less void because
the prisoner's sentence became final before the law was
held unconstitutional. There is no grandfather clause that
permits States to enforce punishments the Constitution
forbids.
Id. In short, the Court determined that "[i]n
adjudicating claims under its collateral review procedures[,
] a State may not deny a controlling right asserted under the
Constitution . . . ." Id. at 732.
The
Court then confirmed that its Eighth Amendment bar on
sentencing juvenile offenders to die in prison is a
substantive rule.[3] 136 S.Ct. at 734. The Court explained
that although Miller "did not bar a punishment
for all juvenile offenders, as the Court did in
Roper or Graham[, ]" it "did bar
life without parole . . . for all but the rarest of juvenile
offenders, those whose crimes reflect permanent
incorrigibility." Id. at 734. The recognition
in Miller that there might be some subset of
juveniles for whom life without parole "could be a
proportionate sentence" was immaterial. Id.
Rather,
[l]ike other substantive rules, Miller is
retroactive because it necessarily carr[ies] a significant
risk that a defendant-here, the vast majority of juvenile
offenders-faces a punishment that the law cannot impose upon
him.
Id. (internal quotation marks omitted); see also
id. ("Before Miller, every juvenile
convicted of a homicide offense could be sentenced to life
without parole. After Miller, it will be the rare
juvenile offender who can receive that same
sentence.").[4]
Having
confirmed that Mr. Montgomery's sentence as a juvenile
offender to die in prison was unconstitutional under
Miller and void under Teague, the Court
reversed the Louisiana Supreme Court's affirmance of Mr.
Montgomery's sentence, id. at 737, and on
remand, that court directed that Mr. Montgomery be
resentenced in compliance with Miller, see State
v. Montgomery, 194 So.3d 606, 606-07 (La. 2016). Mr.
Williams suffered the same Eighth Amendment violation as Mr.
Montgomery and he is entitled to the same relief.
B.
Mr. Williams' Substantive Sentencing Rights Under the
Eighth Amendment Were Violated.
Just
like Mr. Montgomery's sentence, Mr. Williams'
sentence violates the Eighth Amendment bar on sentencing
juvenile offenders to die in prison. The only distinction
between the two cases is that Mr. Williams received a life
sentence by virtue of an aggregation of sentences the trial
court imposed in its discretion. As the Majority Opinion
acknowledges, the trial court never took any evidence or made
any finding that Mr. Williams was irreparably corrupt so as
to authorize the imposition of such a sentence consistent
with the Eighth Amendment.[5]
In line
with the government's concession and the decisions of
numerous other state courts, the Majority Opinion agrees that
Miller (and Graham) "apply not only to
sentences that literally impose imprisonment for life without
the possibility of parole, but also to lengthy term-of-years
sentences (for one offense or for multiple offenses in the
aggregate) that amount to 'de facto' life without
parole because they foreclose the defendant's release
from prison for all or virtually all of his expected
remaining life span." Ante at 15-16. The
Majority Opinion further assumes without deciding that
Miller and Montgomery apply to Mr.
Williams' sentence to die in prison even though it was
not mandatorily imposed. Id. at 18. But my
colleagues in the Majority unnecessarily sidestep a
determination that Mr. Williams was unconstitutionally
sentenced based on its assessment that we do not possess the
facts to resolve with sufficient precision whether Mr.
Williams' period of ineligibility for parole under his
aggregate sentence is "close to his expected life
span." Id. at 5. We know all we need to know in
this case to make this determination.
The
Majority Opinion acknowledges that Mr. Williams was sentenced
to an aggregate of 62 years to life in prison for offenses he
committed at age 17. Ante at 8. In his pro se §
23-110 motion, Mr. Williams argued that this sentence
condemned him to die in prison. He relied on his
understanding that "[t]he life expectancy for a black
man is in [his] 70s." In its Opposition to Mr.
Williams' § 23-110 motion, the government did not
contest his assertion and, as Centers for Disease Control and
Prevention (CDC)[6] statistics cited by both Mr. Williams and
the government on appeal demonstrate, Mr. Williams was
correct.[7]
Mr.
Williams is now 46 years old. According to the CDC,
45-year-old men[8]in the United States are expected to live
an additional 34.2 years (to age 79.2); this figure drops to
31.4 years (76.4) for "Black" men and drops again
to 31.2 years (76.2) for "non-Hispanic Black
men."[9] This figure would presumably drop even
lower if the CDC further disaggregated data for non-Hispanic
Black men, like Mr. Williams, who are living in
prison.[10] Contrast these life expectancy figures
with one number-79-the age Mr. Williams, incarcerated at 17,
would have to reach to become eligible for parole under his
aggregate minimum sentence of 62 years.[11]See
ante at 8 & n.14.
Thus if
the question is whether Mr. Williams' aggregate minimum
sentence gives him any "hope for some years of life
outside prison walls," Montgomery, 136 S.Ct. at
737, the honest answer is no.[12] The government's argument
to the contrary is premised on a distorted understanding of
what it means to have a sentence that gives some
"hope" of living "some years of [one's]
life outside prison." Id. It argues that
"even when parole eligibility takes decades-beyond a
person's average life expectancy-the possibility
of parole means that the offender still has some hope for
release" (emphasis in original). But the possibility of
being released on parole beyond one's life expectancy if
one is so lucky as to beat the odds of death does not give a
defendant "hope" in the sense that the Supreme
Court, focused on juveniles' corrigibility and ability to
learn to become productive members of society, meant in
Montgomery. [13]
On the
record before us, we must conclude that Mr. Williams'
Eighth Amendment right as a juvenile offender not to be
sentenced to die in prison was violated.
C.
Mr. Williams Is Entitled to Habeas Relief Under D.C. Code
§ 23-110.
Mr.
Williams is in precisely the same position as Mr. Montgomery
before he prevailed in the Supreme Court. Mr. Williams is
being held in prison pursuant to a life without parole
sentence that violates the Eighth Amendment, and he has been
wrongly denied habeas relief. As the Supreme Court explained
in Mr. Montgomery's case, a juvenile offender's
unconstitutional sentence to die in prison is void. See
Section I.A supra. Such a sentence is without legal
force "from the start"; it is "a
nullity." Brown v. United States, 795 A.2d 56,
61 (D.C. 2002) (considering a sentencing challenge under the
Double Jeopardy Clause); see also, e.g.,
Veal, 784 S.E.2d at 409-11 (concluding that
appellant's sentence, imposed in violation of
Miller and Montgomery, is not merely
"voidable," but "void"). The Supreme
Court further held in Mr. Montgomery's case that the
Louisiana courts reviewing his state collateral review
petition were obligated ...