77057 Amicus Journal No.28_46967 Amicus Newsletter revised 22/08/2012 16:20 Page 8
U.S.A. Focus
U.S. Supreme Court Strikes Down
Mandatory Life Without Parole for
Juvenile Murderers
Mark George, Q.C.*
On 25th June 2012, the United States Supreme Court
held in the case of Miller v. Alabama that a
sentencing scheme that
mandates a sentence of
life without parole (LWOP)
for juvenile offenders
(both aged 14 at the date
of conviction) who commit
murder breaches the Eighth
Amendment’s prohibition
against cruel and
unusual punishments and
was
accordingly
unconstitutional. A
sentence of life without
parole for juvenile
offenders who commit murder breaches the Eighth
Amendment’s prohibition against cruel and unusual
punishments and is accordingly unconstitutional.
This decision is a welcome affirmation of the
principles established first in the decision of the
Supreme Court in Roper v. Simmons, 543 U.S. 551
(2005), which outlawed the death penalty for
juveniles convicted of capital murder, and Graham
v. Florida, 130 S.Ct. 2011 (2010), in which the
Supreme Court held that a sentence of life without
parole for a juvenile
who committed a nonhomicide crime also
violated the Eighth
Amendment.
developed than adults, and their traits “less fixed,”
their actions are less likely to be “evidence of
irretrievable depravity.”
The Graham case insisted
that youth matters when
determining the propriety
of
a
lifetime
of
incarceration without the
possibility of parole. The
mandatory
penalty
schemes at issue in the two
cases
prevented
the
sentencer from considering
youth and from assessing
whether the law’s harshest
term of imprisonment
was a proportionate punishment for a juvenile
offender.
A sentence of life without
parole for juvenile offenders
who commit murder breaches
the Eighth Amendment’s
prohibition against cruel and
unusual punishments and is
accordingly unconstitutional.
Amicus members Professor Julian Killingley, solicitor
Hannah Gorman, and Mark George, Q.C., all assisted
with research and the drafting of an amicus curiae
brief which was filed on behalf of a number of
international bodies, including the Bar Human
Rights Committee and the Law Society of England
and Wales. The amicus curiae brief was filed in
support of the main
petition and argued the
international
perspective in respect
of
sentencing
of
juveniles as well as
citing the law in
England and Wales on
the
sentencing
of
juveniles convicted of
murder. The same three
co-authors
were
involved in the drafting
of a similar amicus curiae brief in Graham v. Florida
in 2009, and in 2005, Amicus associates drafted an
amicus curiae brief in Roper v. Simmons, on behalf
of the European Union and Members of the
International Community.
Amicus members Professor Julian
Killingley, solicitor Hannah Gorman,
and Mark George, Q.C., assisted
As in the two preceding with research and the drafting of
cases, the Supreme
an amicus curiae brief which was
Court recognised that
children have to be
filed on behalf of a number of
treated
differently
international bodies.
from
adults
in
sentencing, that they
lack maturity and have an under-developed sense of
responsibility, and are less able to extricate
themselves from horrific crime-producing settings.
Crucial to the issue of rehabilitation, the Court held
that because the characters of children are less well-
* Barrister, Garden Court North Chambers, Manchester.
8
28 Amicus Journal (2012)
77057 Amicus Journal No.28_46967 Amicus Newsletter revised 22/08/2012 16:20 Page 9
Mark George, Q.C.*
Death penalty litigation is so1 fraught with
difficulties and hard luck stories that it makes a
pleasant change when the courts do the right thing
and give a judgment that truly reflects the justice of
the cause.
In Issue 22 of the Amicus Journal in 2010 I wrote
about the case of Cory Maples, an inmate on death
row in Alabama who has just been refused federal
habeas corpus relief in a case which cried out for
justice. Maples had been represented pro bono in
post conviction proceedings by two attorneys at a
large New York firm, Sullivan & Cromwell. A lawyer
in Alabama had been retained but he made it clear
that he would do no more than facilitate the
admission of the New York attorneys to practice in
the state and would do no actual work on the case.
In between filing a petition under Alabama Rule 32
on Maples’ behalf for post conviction relief in late
2001 and the court’s decision in May 2003 denying
the petition, the two attorneys had left Sullivan &
Cromwell. Both had taken up employment that
prevented them from continuing to act on Maples’
behalf. The attorneys never notified the Alabama
courts of their withdrawal.
The letter to Sullivan & Cromwell containing the
decision of the Alabama courts denying relief in May
2003 was returned to the court unopened. As a
result Maples, in ignorance of the absence of his
lawyers, missed the 42-day deadline for filing an
appeal against state court’s
decision. He was only
alerted to the problem
when
the
Alabama
Assistant Attorney General
wrote to Maples himself
pointing out the missed
deadline but also informing
him that he still had four
weeks in which to file a
federal habeas petition. Rapid attempts were then
made by other attorneys at Sullivan & Cromwell to
try to rectify their error but first the state courts
and then the federal courts all denied Maples relief,
stating in essence that since the attorneys were
acting as his agents Maples was fixed with
responsibility for their mistakes. None of the courts
involved seemed particularly troubled by the fact
that this was a capital case and that Maples faced
execution. The U.S. Supreme Court granted
certiorari to decide whether the facts of Maples’
case established cause adequate to excuse the
procedural default in missing the state appeal
deadline.
The problem facing the Supreme Court was that
generally a state prisoner’s habeas claims may not
be entertained in federal court when (a) ‘a state
court [has] declined to address [those] claims
because the prisoner has failed to meet a state
procedural requirement’ and (b) ‘the state judgment
rests on independent and adequate state procedural
grounds.” However, the bar to federal review may
be lifted, if the prisoner can demonstrate a case for
the [procedural] default [in state court] and actual
prejudice as a result of the alleged violation of
federal law.”2
Cause for a procedural default exists where
“something external to the petitioner, something
that cannot fairly be attributed to him . . . ‘impeded
[his] efforts to comply with the State procedural
rule.’”3 Negligence on the part of a prisoner’s post
conviction attorney does not qualify as “cause.”4
This is because the attorney is the prisoner’s agent
and under well settled
principles of agency law
the principle bears the risk
of negligent conduct on
the part of his agent.5 This
applies when a petitioner’s
post conviction counsel
misses a filing deadline.
The petitioner is bound by
the oversight and cannot
rely on it to establish cause for the procedural
default. The majority in the Supreme Court stated
that nothing in their judgment was intended to
displace this general rule.
As a result Maples, in
ignorance of the absence of
his lawyers, missed the 42-day
deadline for filing an appeal
against state court’s decision.
* Barrister, Garden Court North Chambers, Manchester.
23 Amicus Journal (2012)
9
U.S.A. Focus
“A Perfect Storm of Misfortune” – The
Case of Cory Maples Reaches the U.S.
Supreme Court
77057 Amicus Journal No.28_46967 Amicus Newsletter revised 22/08/2012 16:20 Page 10
U.S.A. Focus
The way around that problem for the Supreme Court
was the concept of abandonment. The Court
reasoned that a completely different situation arises
when an attorney abandons his client without
notice and thereby occasions the default. In that
situation the Court held that the principal-agent
relationship is severed and the attorney no longer
acts, or fails to act, as the client’s representative.
The Court referred to its recent decision in Holland
v. Florida,6 in which the Supreme Court considered
that lawyer abandonment would justify equitable
tolling of the one year deadline prescribed by 28
U.S.C. §2244(d), for filing a federal habeas petition.
In light of that decision, the Supreme Court held
that under agency principles a client cannot be
charged with the acts or omissions of an attorney
who has abandoned him. The Court then moved on
to consider whether in fact Maples had been
abandoned by his attorneys.
The Court observed that the New York attorneys had
moved from their firm in the summer of 2002 some
nine months before the decision of the Alabama trial
court denying Maples Rule 32 relief. By failing to
observe the Alabama rule requiring them to seek the
trial court’s permission to withdraw, they had in
fact lulled Maples into thinking that he was still
represented by them at that time. Maples’ other
lawyer, the Alabama-based attorney had also
abandoned him; indeed according to the majority
opinion he had not even begun to represent Maples.
When he received a copy of the state court order he
had not even tried to contact the New York lawyers
to check that they had also received the order.
Furthermore, the fact that the Assistant AttorneyGeneral wrote directly to Maples was entirely
consistent with the view that the state accepted
that at the time Maples had no lawyers acting for
10
him and had indeed been abandoned. In those
“unusual circumstances” the Supreme Court held
that there was indeed cause for the procedural
default.
Maples had been “disarmed by
extraordinary circumstances quite beyond his
control.” The case would be remanded for further
proceedings. Concurring in the opinion, Justice
Alito sad that Maples had been engulfed by “a
veritable perfect storm of misfortune.”
The decision was by a substantial majority of the
court with seven justices supporting the decision
and only the usual suspects - Scalia and Thomas dissenting. Indeed Scalia’s dissenting opinion is
based on a very half-hearted attempt to claim that
Maples was still represented if not by the individual
lawyers at Sullivan & Cromwell then at least by the
firm itself and failing that there was the attorney in
Alabama allegedly acting on his behalf. Indeed,
when Scalia states that “one suspects that today’s
decision is motivated in large part by an
understandable sense of frustration with the State’s
refusal to waive Maples’ procedural default in the
interest of fairness,” that “understandable sense of
frustration” was not merely confined to the
majority but even extended to him.
1
Walker v. Martin, 562 U.S.__,__ (2011) (slip op., at 7)
(quoting Coleman v. Thompson, 501 U.S. 722, at
2
Id. at 750; see Wainwright v. Sykes, 433 U.S. 72,
3
Coleman, 501 U.S., at 753 (quoting Murray v.
Carrier, 477 U.S. 478, 488 (1986); emphasis in
729-730 (1991)
84-85 (1977).
original).
4
5
6
Coleman, 501 U.S., at 753.
Id. at 753-754.
560 U.S.__ (2010)
23 Amicus Journal (2012)