The “No Second Chances” Transcript

Is life behind bars reversible when a ruling changes the law? Read what Dahlia Lithwick discussed on her latest episode of Amicus.

We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 28, in which Slate’s Dahlia Lithwick sits down with  Slate contributor Robert J. Smith, a visiting scholar at the University of Texas at Austin School of Law and co-author of an amicus brief in Montgomery v. Louisiana.

If prosecution for witchcraft has been deemed unconstitutional, what should courts do about people already imprisoned for that offense? That was a hypothetical posed by Justice Stephen Breyer this week during arguments in Montgomery v. Louisiana. In this episode of Amicus, Dahlia Lithwick discusses Montgomery and an earlier ruling by the Supreme Court that threw out mandatory sentences of life without parole for juvenile offenders. Lithwick and Smith consider whether it should apply retroactively to the hundreds of people still serving those sentences.

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We’re a little delayed in posting this episode’s transcript—apologies. This is a lightly edited transcript and may differ slightly from the edited podcast.

Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s podcast about the U.S. Supreme Court. I’m Dahlia Lithwick, Slate Supreme Court correspondent. If you’re a regular listener to this podcast, you know that I am a huge believer in the principle that everyone, I mean everyone, can get a lot out of listening to oral argument at the Supreme Court. It’s just not as complicated as you think it is. But, this past Tuesday in a case called Montgomery v. Louisiana, the issue before the court, while it was fairly simple, was really complicated.

So complicated, we almost didn’t hear about the core issue we want to talk about today. Now, the question before the court was pretty clear. In 2012, the Supreme Court decided that mandatory life without parole sentences for juvenile killers were unconstitutional. The issue in Montgomery is simply whether that applies retroactively to juveniles who were sentenced long before.

In this particular case, the juvenile in question is 69-year-old Henry Montgomery, who’s been in jail for a killing he committed 52 years ago. We didn’t talk about Montgomery or even juvenile killers much this week because the court was engaging in this battle royal over technical roadblocks. Have a listen to Richard Bernstein, the oral advocate that was appointed to the court to explain why the court shouldn’t even be hearing this appeal.

Richard Bernstein: In today’s case, there is no jurisdiction of that question, because the point of section 1257 is to enforce the supremacy clause.

And the supremacy clause states that when, “the laws of the United States,” apply, “the judges,” and these are the key words, “in every state shall be bound thereby.”

Lithwick: Confused? You’re not alone. Stay tuned. We’ve invited Professor Robert J. Smith, a frequent Slate contributor, a visiting scholar at the University of Texas at Austin School of Law, and formerly an assistant professor at the University of North Carolina School of Law.

Rob Smith co-authored an amicus brief in the Montgomery case along with several other notable law professors, including Charles Ogletree of Harvard. In that brief, they essentially urge the court to consider doing away with all life without parole sentences for juveniles, calling all of them unconstitutional. So, Rob Smith, welcome to Amicus.

Robert Smith: Thank you for having me, Dahlia.

Lithwick: So, let’s start at the beginning, Rob.

Help me make sure that I’m making this clearer and not murkier for our listeners. Here are the facts as I know them. In 2012, in a case called Miller v. Alabama, the high court ruled that automatic life without parole sentences for juveniles who committed their crimes before they were 18 violated the Eighth Amendment. Correct?

Smith: That’s correct.

Lithwick: This doesn’t mean that a life without parole sentence cannot be imposed by a judge when they’re sentencing. It simply means that the judge has to carefully consider all sorts of factors.

What kind of factors are we thinking about?

Smith: The kind of facts that you’d think about are things like, because this person isn’t an adult yet, is it somebody who’s going to change over time? You might look at some factors that are about the crime itself. Maybe if a crime is particularly planned—that might be one thing. Or it might be that the person acted in an impulsive way. They were scared, they reacted quickly; it was clearly something that happened in a way that was unplanned.

So, the basic point is, we want to think about all these circumstances of the offense. We want to think about who the person actually is that we’re sentencing life without parole. Are there characteristics about that person, when we look at them, that might transform their lives over time? I think what the court basically wants to do is to say very, very, very few juveniles, if any, are so clear about—when they’re 14, 15, 16—that they’re never going to turn into productive members of society.

That we can lock them up and throw away the key. Most people are going to change enough that we should at least reconsider the question of whether they can reintegrate into society at a later point. You know, years, maybe decades down the line.

Lithwick: The important thing to understand after Miller in 2012 is that it doesn’t mean that courts can’t impose life without parole.

It means they have to just look really carefully at the factors you’ve described. What Miller leaves open is this question of whether this is just a case that is going to change the rules going forward, or whether it’s what we in Constitution-speak call retroactive, right? Whether every single person who’s ever been given a mandatory life without parole sentence is eligible to have a new hearing, to have a new parole hearing, to have a new sentencing, something that allows the judge to do what the judge didn’t do in the first instance.

Is that about right?

Smith: That’s correct.

Lithwick: So, here’s where we are. I think my math is right, but you’ll let me know. Since Miller came down in 2012, 14 state supreme courts have simply ruled that Miller applies retroactively. The Supreme Court is silent, so the states decide. Seven state supreme courts say, no, it doesn’t. And we have states that have passed sentencing laws that seem to be applying Miller retroactively.

We have a lot of action in the state courts. Henry Montgomery in 2012 says, “Hey, I’ve been in jail since I was a kid. I want a new hearing.” Now, can you tell us a little bit about what he’s accused of and why maybe race, and his youth, and all sorts of other factors that the judge might have looked at did not come into play at his sentencing?

Smith: Sure. So, I think the first thing to think about when you think of Montgomery is that Henry Montgomery is 69 years old right now.

The question that we ask now about if your trial was today is who were you when you committed this crime? The answer was Henry Montgomery was a kid at the time who was skipping school. When he was skipping school, a police officer comes up to him, and in a panic he shoots the police officer, which is obviously a terrible thing to do.

But it’s not sort of a premeditated murder. He didn’t plan on killing anybody. It really, by all accounts, is something which is just an impulsive reaction. One thing that you would look at today if you were sentencing him is, you know, this crime reflects some sort of impulsivity, something that is common to juveniles generally. But if you look at who Henry Montgomery is as a person, you’d also realize that not only was he then 17 years old, he’s a high school student, but he’s also somebody who has a diminished culpability in the sense that he has a low IQ score, right?

He’s somebody that if he were subject to the death penalty, he might be able to get it. Or, it would be close, because his intellectual functioning is so low. None of those things are considered when Henry Montgomery is tried now decades ago, a half century ago, like they would be if he were tried today. All the jury did is say, yes, this guy—this kid—killed a police officer.

Once that finding was made, Henry Montgomery was serving life without the possibility of parole. I think one thing that you mentioned is that Louisiana today might have its problems with race relations, but Louisiana 50 years ago in 1963—remember Lyndon Johnson was the president when this guy was tried and sentenced to life without parole. At that time, there was this backdrop of racial tension.

There were reports from the media that there are cross burnings in the town. The press referred to him in ways that were highly inflammatory. At the time, he’s not sentenced to life without parole. At the time, he’s actually given the death penalty. Then only later, when the Supreme Court says, Hey, juveniles can’t get a death penalty, is he given life without parole. I think that just shows you what a different time it was in Louisiana 50 years ago than it is today.

That’s kind of the whole point of giving people a shot at a possibility of parole, and not automatically imposing a life sentence. Fifty years later it turns out people often are very, very, very different people, like Mr. Montgomery is today. He’s worked in prison. He’s sort of been a coach and helped other inmates. He’s somebody who’s really transformed his life over the course of 50 years.

Lithwick: So, Rob, I hate to do this to you, because this is the part where people glaze over.

But I wonder if you could explain how the court usually goes about deciding this pretty technical doctrinal question of whether a case is retroactive or not. In other words, before we can look at Henry Montgomery’s life and all of the factors you just laid out, the court is going to need to make a decision about whether Miller was a case that was forward-looking or backward-looking. So, how does the court usually approach that?

Smith: Absolutely. So, first, the default rule is that the decision will not be retroactive. Most of the time, the decision will not be retroactive. It will only apply going forward. But the two exceptions to that are first, if the court finds that this new rule has actually said that the government cannot prohibit a certain type of conduct, or that a particularly severe sentence is no longer available when a person commits the same crime today that they were convicted of committing before.

So, for example, in the mid-2000s, the Supreme Court said that in a death penalty case, a person who is a juvenile when they’ve committed their homicide can no longer be sentenced to death. And so, that rule would apply to every defendant, no matter when they were convicted, because we’re saying that the option of sentencing you to death is no longer available. So, the first question is, is it conduct that no longer can be sentenced or could be sentenced the same way?

The second way you can get to retroactivity is if we say, look, this rule is so important. It goes to the fundamental fairness of a trial. It’s a rule that we understand that ordered liberty requires that this rule applies to the trial. Then you can have a retroactive decision. But in practice, those two things are relatively rare. Most of the new cases don’t apply going backwards.

Lithwick: So, Rob, I want to play for you for a minute, this is Justice Breyer at oral argument this week. He’s talking to Richard Bernstein, who has been appointed by the Court to say the Court does not even have jurisdiction to here this case, shouldn’t be mucking about in Montgomery in the first place. And Breyer, in effect he says, “Well, what are we doing? This guy is in jail. Why can’t we let him out?” So, let’s listen.

Justice Breyer: Is there anything you can say? Because I could say, which witch is being a witch? There were some people in Salem who were imprisoned for being a witch. And lo and behold, in 1820 it was held by this Court that that violated the Constitution.

Lithwick: Rob, is Breyer trying to find a way to say, look, we just have to hear Montgomery’s case because we’re holding him in a jail and the thing that we are holding him for is no longer constitutional? Is that the gist of this question?

Smith: I think Justice Breyer is trying desperately to find a way to say that there’s a federal question here that the court can decide. In order for there to be jurisdiction for the court to hear the case, the state court had to decide some federal question. I think what Justice Breyer is trying to do is saying, if there’s something that’s so bad, we’re holding somebody that’s a witch. Like, clearly somebody who our superstitions—our hysteria—leads us to believe should be incarcerated.

But now we know better. We’ve seen the light. We understand that you just don’t incarcerate witches for being witches. Then surely the courts have to be able to reach in and decide those cases. And I think the best answer against Justice Breyer’s point is that sure, they can reach and decide those cases, when that case gets to federal court. They just can’t reach in and decide the case in state court, if they’re talking about whether or not retroactivity applies.

Lithwick: Going to that same question of whether there is a federal constitutional issue here, I just want to play, as a counterpoint to what we’ve just talked about with Breyer, a moment of Justice Scalia, who is going all kinds of crazy on Kyle Duncan. Kyle Duncan represents the state of Louisiana. He says, actually, the court does have jurisdiction. I want to be clear, the court has jurisdiction. But Montgomery, you know, should not get resentenced.

But let’s just listen to this audio of Justice Scalia just completely ferociously making the point that you just made, Rob, which is, we don’t hear cases before their time.

Kyle Duncan: So, it seems to us that as a practical matter this Court ought to weigh in—it’s going to weigh in sooner or later. It’s going to weigh in either in a federal habeas case or from a state court.

Justice Scalia: We weigh in when we have jurisdiction. You think that doesn’t matter at all?

Kyle Duncan: No, of course jurisdiction matters, Justice Scalia. We just, of course—

Justice Scalia: Okay. So, what you just said doesn’t really make much sense.

Kyle Duncan: Well, I think it makes sense—

Justice Scalia: Let’s get in there quickly whether we have jurisdiction or not. You’re not saying that, are you?

Kyle Duncan: Well, no. We’re not saying that.

Justice Scalia: Okay.

Kyle Duncan: We’re not saying that. We’re saying it’s a federal issue—

Lithwick: So, I want to talk to you for a minute about the brief that you and a bunch of other concerned lawyers filed in this case. But maybe before I do that, Rob, can you just give us a number for how many people would be affected? How many mandatory juvenile life without parole sentences are on the line here?

So that we can kind of can get our heads around how many—I want to say juveniles, but some of them are 69. But how many people are we talking about here?

Smith: So, when the court decides Miller, and again during oral argument in Montgomery, they’re throwing the number around, 2,000 people. But the reality is that we no longer know what that number is. It’s significantly less than 2,000— that’s the best estimate because states have decided that Miller applies retroactively.

Some states have begun to do new sentencing hearings. Other states have once allowed nine of them three years ago that allowed life without parole sentences no longer allow it at all. So, that’s decreased the population. The reality is it’s significantly less than 2,000, but 2,000 is sort of the outer limit.

Lithwick: That’s a good way to begin talking about your brief, which really urges the court to find that the Eighth Amendment is always going to be violated when you sentence a youthful offender to life without parole. It seems to me that at least half of that argument is based on doing the kind of counting you just did for us.

Smith: Yeah. When the court looks at whether or not a punishment practice violates the Constitution, one of the most important questions it asks is, is there a national consensus against this practice?

So, the court will look at a couple things. They’ll say, well, what are legislatures doing? Are we formally authorizing life without parole sentences? What we’ve found is that nine states in the last three years, which is an incredible number of states for anybody who follows legislation of any kind. Nine different states prohibiting life without parole is an incredible number. So, the court will look at those nine states and they’ll also look at the six states before the case Miller was deciding.

So, a total of 15 states that just flat out ban life without parole in their statute. But then the court also says, okay, even if you have juvenile life without parole on the books, are you actually using it in practice? If you ask, “Are you actually using it in practice?”, it turns out there’s another dozen, or even 13 states, that really don’t use it. There are just very few people, or nobody, that are serving life without parole sentences for crimes that were committed when they were juveniles.

Or there are states that just allow life without parole sentences on the books, but for very narrow offenses. Like, the killing of a police officer might be just really offense. But we don’t allow it in any other circumstance. So, the court looks at these things and says, look, in general the country has really moved away, and quickly, from the idea that life without parole is an appropriate sentence for a juvenile. Just to be clear, I should say life without the possibility of parole.

What we ask for in our brief is not that any person ever be released from prison. Our point is that the best time to make a decision about whether or not a juvenile is going to eventually become a person who’s transformed their lives, that’s redeemed themselves, and can be safely released from prison is not at the time of trial when the person is 13 or 14 years old. It’s many years or decades later when somebody like Henry Montgomery is 69 years old and we can look backwards over what they’ve actually done in their life, instead of trying to look in our crystal ball and predict the future.

Lithwick: It’s probably important here that one of the things you write in your brief is that at this point there are only in fact nine states that are responsible for 82 percent of all these life without parole sentences, right?

Smith: I think that’s a major factor, right. Because what it’s showing is, is that these sentences are concentrated.

They’re not only concentrated in this handful of states. If you look deeper, there are just a handful of counties. It’s five or six counties that are responsible for like 20 percent, right? One in every five juvenile life without parole sentences are in like five counties in the United States. So, Philadelphia County, for example, right, has almost 10 percent. It’s like 9 percent of all of the juvenile life without parole sentences in the United States.

So, when you say, OK, well there are 1,000, or there are 2,000 people serving life without parole sentences for crimes they committed as a juvenile. Then you realize that they’re not spread evenly throughout the country, but almost one in every ten is from Philadelphia County. It becomes clear just how antiquated this practice is. Most of the rest of the country, either in law or in practice, has just totally abandoned the idea that we should take kids and we should sentence to die in prison without ever giving them an opportunity at a later point to show that they’re no longer the same person they were all those years earlier.

Lithwick: And maybe, Rob, just for the philosophical piece that we haven’t really touched on here—it seems to me what undergirds so much of this debate, is so many of these mandatory life without parole sentences come about as a result of the war on crime, the “get tough” law and order movement.

The notion that there are these teenage super predators out there on the streets. These are kind of antiquated ideas, right?

Smith: Yeah. So, if you look at sort of the trajectory of when the United States is actually sentencing juveniles to life without parole, the spike, a gigantic spike, is really in the mid-1990s. Mid to late 1990s.

That’s a time where you turn on your radio or your television and there are commentators and academics, and they’re saying there are crack babies. And, oh my God, this crime is going to spill out from the inner city to your neighborhood. And then, it’s like, well, it’s not just these terrible drugs like crack that are going to spill out in your neighborhood, it’s really these kids. These kids are super predators. They’re a new breed of kid that we’ve never, ever seen before. Of course, all the depictions of who the super predators are black.

It becomes this really racist idea that black kids are scary, that they’re unapologetic psychopaths, and that they’re never going to be able to change. And it turns out that it’s just hysteria that’s going on. If you go back to the counties that are sentencing people to juvenile life without parole, a lot of these counties are places where you have a sort of a high core African American population.

Then you have these white flight suburbs. So, it’s kind of like donut jurisdiction with the white flight suburbs outside of it. St. Louis is a good example of this. It’s one of the sort of high-use counties. You just have this gigantic racism that’s coming from that outer ring suburb into the core. You see it not just in juvenile life without parole. I mean, you see it playing out now in Ferguson with the protests after the police shooting there. You see it in death penalty cases, where the prosecutors are striking all of the black jurors.

These counties have real problems. It’s not with racial disparities, but with racism. Juvenile life without parole is one manifestation of those problems.

Lithwick: Now, Rob, it cannot fail to escape your notice that we have now talked about juvenile life without parole more than the court did when they heard Montgomery being argued on Tuesday.

I think I want to just ask you, given the high, high barriers—the fact that it looked like the court was very concerned that they just did not have jurisdiction to hear this case, and the sense that maybe even if they could, this wasn’t a good candidate for retroactivity—is this a issue going to get resolved, do you think, in this term? And we never let listeners bet on what guests tell us. But do you foresee this being the case that resolves this life without parole, mandatory life without parole, for juveniles questions once and for all?

Smith: The problem with all predictions, which is why we shouldn’t decide that somebody can never be redeemed when their 13 or 14 years old, is that it’s really difficult to see into the future. But one thing I can say is that it looks like, like you said, the court is having a really hard time around several issues. The first is, do we even have jurisdiction to decide this question at all?

I think that’s a close call, right? Then, you move to the next question, which is, if we have the ability to decide this case, then should we hold that this case is retroactive and it applies to everybody who’s currently serving life without parole for a homicide that they committed when they were a juvenile? That seems to be an easier question that the answer is yes, but it’s still close. It’s a debatable question. You see the justices have some discomfort with it.

But even if you decided those two terribly complicated questions, both of which have side effects outside of the context of juvenile life without parole, and the jurisdiction question doesn’t even have the benefit of being fully briefed by all of the parties, you have these complicated messy questions, we’re still left with the same problem. Which is, some juveniles are getting life sentences. Because in a trial, if it happens today—if you go back and you say this is retroactive, and in Louisiana Montgomery gets a new trial today, right?

It’s one thing because he’s 69 years old. But for a new juvenile that’s 14 years old today, all Miller requires is that we go and say, hey, you’re a juvenile, you have these mental health problems, you have intellectual disability. Or, you’re actually a pretty good kid, but this looks like it’s an outlier, so we should predict 40 years later what’s going to happen to you. But it doesn’t say, hey, you know what? We don’t have the ability to make these kind of crystal ball predictions today.

So, we’re still left with the same problem. And so, for me, and what we’re trying to say in the Ogletree brief is, you have these complicated questions of jurisdiction and retroactivity, and even if you solve them, we still have a real constitutional problem with life without parole. So, what you should do instead is you should call for additional briefing in this case and say, is juvenile life without parole an unconstitutional sentence? Period. Right? Do you always have to give juveniles at some point years or decades down the line an ability to show that they have transformed their lives and they can reenter into society?

We think that’s the easier path, and you know, we hope the court takes that route.

Lithwick: Rob Smith is a frequent Slate contributor and a visiting scholar at the University of Texas at Austin School of Law. He’s formerly an assistant professor at the University of North Carolina School of Law, and co-authored an important Amicus brief in the Montgomery case. Rob Smith, thank you so much for joining us this week on what was certainly the most technical and head-spinning edition and Amicus.

Smith: Thank you.

Lithwick: That just about does it for this week’s episode of Amicus. And we would love to hear your thoughts on today’s episode. Our email address is We read all our your mail, and we do our best to respond. And we really love your letters, and we thank you. We also love reading the reviews that you leave on our iTunes page, and you can always add your own thoughts there by searching for Amicus in the iTunes store and clicking the ratings and reviews tab.

Your reviews are a really great way to let other folks find out about the podcast. You can listen to all of our past episodes at And if you’re a Slate Plus member, you’ll find transcripts there as well. Thank you as always to the Virginia Foundation for the Humanities, where our show is produced. Our producer is Tony Field, and Andy Bowers is our executive producer.

Amicus is part of the Panoply network. Check out our entire roster of podcasts at I’m Dahlia Lithwick, and we’ll be back with you soon for another edition of Amicus.