Constitutional Claims in the Wake of Montgomery v. Louisiana

February 05, 2016   |   David Andrews

Earlier this week, Eric Zogry blogged about the United States Supreme Court decision in Montgomery v. Louisiana, 577 U.S. ___ (2016), which made the holding of Miller v. Alabama, 567 U.S. ___ (2012) retroactive. The upshot of the decision is that approximately 79 inmates in North Carolina need to be re-sentenced. But how should those sentencing hearings work? Just after the United State Supreme Court issued its decision in Miller, the North Carolina General Assembly passed “An Act to Amend the State Sentencing Laws to Comply with the United States Supreme Court Decision in Miller v. Alabama.” By its terms, the Act applies to “any sentencing hearings held on or after” July 12, 2012. So it would appear to apply to sentencing hearings for defendants entitled to relief under Montgomery v. Louisiana. The Act also permits defendants to present mitigating circumstances to the court including, among other things, the defendant’s age at the time of the murder, immaturity, and exposure to familial or peer pressure. The Act then directs the sentencing court to consider the mitigating circumstances and determine whether, “based upon all the circumstances of the offense and the particular circumstances of the defendant, the defendant should be sentenced to life imprisonment with parole instead of life imprisonment without parole.”

Defense attorneys rightfully view the decision in Montgomery v. Louisiana as a victory for defendants who were sentenced to life without parole for first-degree murder convictions that arose when the defendants were juveniles. But the case for these defendants is not that simple. Look carefully at the Act and you’ll see at least two arguments that defendants who are entitled to sentencing hearings after Montgomery v. Louisiana should make before they are sentenced under the Act. These two arguments, which are described below, are also the subject of an appeal that is currently pending in the North Carolina Court of Appeals.

 I. Cruel and Unusual Punishment

The first argument to consider is an Eighth Amendment claim that the Act contains a presumption favoring sentences of life without parole. According to the Act, the sentencing judge must determine whether the juvenile should be sentenced to life in prison with parole “instead of” life in prison without parole. The use of the phrase “instead of” indicates that the default sentence under the Act is a sentence of life without parole. Further, the Act puts the burden on the defendant to demonstrate circumstances that would reduce the sentence. In other words, there is no burden on the State to present aggravating factors that would support the more severe sentence of life without parole – a sentence that the United States Supreme Court has stated should be “uncommon.”

 II. Due Process

The second argument to consider is a claim that the Act violates Due Process because it fails to provide meaningful guidance to sentencing judges on how to choose a sentence. The Act does not indicate how the sentencing judge should weigh the mitigating circumstances before deciding on a sentence. Instead, the judge must simply “consider” the mitigating circumstances in determining the sentence. Additionally, there is a risk that the sentencing judge could use mitigating circumstances to justify a sentence of life without parole. For example, although the juvenile might present evidence of good grades to show the potential for rehabilitation, the sentencing judge might rely on that evidence to support a sentence of life without parole on the ground that the juvenile had the ability to appreciate the risks and consequences of his conduct.


It is imperative that defense attorneys assigned to represent defendants at sentencing hearings under Montgomery v. Louisiana carefully consider these and other constitutional arguments before the hearings are scheduled. Appellate courts routinely state that constitutional issues that are not raised in superior court “will not be considered for the first time on appeal.” State v. Lloyd, 354 N.C. 76, 86-87 (2001). If these constitutional arguments are not made in superior court and the sentencing judge imposes a sentence of life without parole, appellate courts will not consider these arguments on appeal.


David Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services. OAD staff attorneys represent indigent criminal defendants on their appeals to the North Carolina Court of Appeals and the North Carolina Supreme Court. He can be reached by email at