New Resource for Miller Cases

Earlier this year, the Supreme Court of the United States issued its opinion in Montgomery v. Louisiana, 193 L. Ed. 2d 599, 622 (2016), which made the holding of Miller v. Alabama, 183 L. Ed. 2d 407, 424 (2012), retroactive. Miller, of course, held that mandatory life without parole sentences for juvenile defendants violate the Eighth Amendment ban on cruel and unusual punishment. However, Miller also laid the groundwork for the Court’s determination in Montgomery that a discretionary life without parole sentence also violates the Eighth Amendment “for a child whose crime reflects ‘unfortunate yet transient immaturity.’” Montgomery, 193 L. Ed. 2d at 619 (quoting Miller, 567 U.S. at ___, 183 L. Ed. 2d at 424).

The decisions in Miller and Montgomery have already affected North Carolina and will continue to influence juvenile delinquency and criminal cases in this state for years to come. Soon after the decision in Miller was issued, the North Carolina General Assembly enacted a statutory scheme for sentencing juvenile defendants convicted of first-degree murder. Under the new statutory scheme, trial judges retain the ability to impose discretionary life without parole sentences for those defendants. North Carolina is also one of only two states in which 16- and 17-year-olds charged with crimes are prosecuted in adult criminal court. Under a separate law, cases in which a juvenile court judge finds probable cause to believe that a 13-, 14-, and 15-year-old committed first-degree murder are also automatically transferred to adult criminal court. In light of the Supreme Court’s ruling that Miller is retroactive, as well as unique aspects of North Carolina law that funnel juveniles to superior court, there will be many cases across the state that will result in sentencing hearings to determine whether defendants who were juveniles at the time of a murder should receive sentences of life in prison with or without parole.

To help attorneys prepare for these hearings, a working group of attorneys from the Office of the Juvenile Defender, the Office of the Capital Defender, the Office of the Appellate Defender, and North Carolina Prisoner Legal Services has developed a handout entitled, “Strategies for Litigating Miller Cases.” The handout provides advice for obtaining mitigating evidence, a description of the research that influenced Miller and Montgomery, a discussion of constitutional arguments against life without parole sentences, and much more. The handout also provides hyperlinks to sample motions and other resources that will aid attorneys as they defend their clients in these cases.

If you are retained or appointed to handle a retroactive sentencing hearing or a case involving a new first-degree murder charge against a juvenile client, please be sure to review the handout, which is available on the Appellate Defender website. In addition, if you are interested in joining a listserv about Miller issues, please send an email to David Andrews, Assistant Appellate Defender, at The listserv will enable attorneys in the working group to post new appellate court decisions on Miller issues and provide a forum for questions on Miller cases. Finally, please stay tuned for announcements on training events for Miller cases. Over the next several months, the working group will develop presentations on Miller issues and will work to share those presentations to attorneys across the state.

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 clients in criminal, juvenile delinquency, and involuntary commitment appeals to the Court of Appeals of North Carolina and the Supreme Court of North Carolina.

Constitutional Claims in the Wake of Montgomery v. Louisiana

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


Montgomery v. Louisiana: Retroactivity and Reinforcement

On January 26, 2016 the United States Supreme Court determined in Montgomery v. Louisiana 577 U.S. ___ (2016) that the decision of Miller v. Alabama, 567 U.S. ___ (2012) applies retroactively to juveniles who are currently serving life without parole sentences. Miller held that, even for convictions of first-degree murder, mandatory sentences of life without the possibility of parole are unconstitutional for juveniles (i.e., defendants who were under the age of 18 at the time of the offense). The result of this decision was that many states, including North Carolina,1 changed their statutes to create an opportunity for parole for juveniles serving life sentences. When Miller was first handed down, it was unclear from the Court’s decision whether the holding could be applied retroactively to defendants currently serving sentences of life without the possibility of parole. Montgomery clarified that the Miller decision can be applied retroactively and may lead to the review of sentences for former juveniles currently incarcerated under life sentences in North Carolina and around the country.

Beyond the direct impact of Montgomery, attorneys should take note of the Supreme Court’s consistent theme of adolescent development and criminal culpability. The decision in Montgomery marks the fifth time in ten years the Court has declared “kids are different.”2 Specifically in Montgomery Justice Kennedy contrasts “transient immaturity” to “irreparable corruption,” reinforcing the idea that criminal responsibility for the accused under 18 should be considered on an individual basis.

While Montgomery, Miller, Graham and Roper focus on punishment, the same analysis can be applied further in juvenile and criminal proceedings. Both juvenile and adult defenders should make this contrast a go-to strategy in their playbook. For any clients under the age of 18, defenders should consider how developmental advocacy strengthens their case. For example, does your client’s age and/or development impact capacity to proceed in the case? Is there a specific intent element to the charge that is vitiated due to a lack of ability to form the intent? How is incarceration really “getting the intention” of the youth, while imprinting permanent, negative physical and emotional experiences?

For more information on Montgomery and its potential impact, please see the following link.

1 N.C.G.S. 15A-1340.19A, -1340.19B, -1340.19C
2 Roper v. Simmons, 543 U.S. 551 (2005) (eliminating the death penalty for juveniles), Graham v. Florida, 560 U.S. ___ (2010) (eliminating life without parole for non-homicides for juveniles), J.D.B. v. North Carolina, 564 U.S. ___ (2011) (age is a factor in determining whether a juvenile is “in custody” under Miranda), Miller v. Alabama, 567 U.S. ___ (2012)


Eric Zogry is the ‎Juvenile Defender at Office of the Juvenile Defender, Office of Indigent Defense Services in Raleigh. To contact Eric Zogry and learn more about the Office of the Juvenile Defender visit