Separation of Powers and Juvenile Life Without Parole



In Commonwealth ex. Rei. Johnson V Halloway, 42 PA (6 Wright) 446 (1862), the  Pennsylvania  Supreme  Court  declared  that  an  act  which  provided  for  a gradual reduction  in  a person's  prison  term  based  on  good  behavior  was  a  violation  of the separation of powers doctrine, and therefore, unconstitutional.  The court noted that the "whole" judicial power was "vested" in the judicial branch. It asserted, "[n]ot a fragment of [the judicial power] belongs to the legislature." ld at 448.

The Supreme Court expressly noted that "[t]he trial, conviction, and sentencing of criminals are judicial duties...." ld at 448. This was a further reinforcement of the principles announced  in  Greenough V Greenough, 11 PA  (1 Jones)  489 (1849)  in which  the supreme  court  noted  that  under  the  separation  of  powers  doctrine,  the  legislature's function was to enact laws; the judiciary's role was to interpret the laws; and the executive was entrusted to execute the laws. The court concluded  that the inherent powers of the judicial branch were distributed  by the Pennsylvania  Constitution in such a way that the legislature could not exercise any judicial power.  ld at 494.

In 1949 the court, in Leahey V Farrell, 66 A.2d 577 (PA 1949), considered  the issue of whether the regulation of the compensation  of court employees by the legislature was an unconstitutional invasion of the powers of the judiciary. Justice Stirone, writing the opinion for the court, noted that the legislature may not encroach upon the judiciary in the administration  of justice. Justice Stirone noted that there were general areas where thelegislature could not act because those areas involved exclusive  judicial functions. For example, he indicated that the legislature could not overrule a judicial decision, direct a statute  to be construed  in  a certain  way,  grant  a new  trial,  or  change  the  effect  of judgments of decrees previously rendered.

The most significant modification of the separation of powers doctrine occurred in 1968 when the ninety-four year old state constitution was amended by a limited constitutional convention. The section that the court previously relied on for the separation of powers principle essentially remained  unchanged. However,  Article V, section 1O(a) was  added  granting  to  the  Supreme  Court  general  supervisory  and  administrative authority over the judicial branch. Article V, section 10(c) was also added, granting the Supreme Court the power to enact rules governing all aspects of the judicial branch.

The first case the state supreme court decided after the 1968 amendment was Commonwealth  V Sutley, 378 A.2d 780 (PA 1977). The court considered the issue of whether an amended act that mandated the judicial branch to resentence criminals who had been convicted under the prior act was unconstitutional.  Justice Nix, writing for the majority of the court, held that this statute violated the separation of powers doctrine because the legislature required the court to open a final judgment based on the newly passed statute. ld at 788.

The Pennsylvania Supreme Court has essentially adopted two approaches when determining whether a legislative act violates the state constitution under the separation of powers doctrine. First, the court determines whether the law conflicts with any court declared  rule or decree.  Second, the court considers  whether the statute in any way affects the judicial branch.

In Commonwealth  V Sorrell, 456 A.2d 1326 (PA 1982), the cour:t considered the issue of whether a statute that granted the Commonwealth an absolute right to a jury trial was  unconstitutional.  The  court ·emphasized  that  this  statute  conflicted  with court sanctioned Rule of Criminal Procedure 1101, which entrusted the decision to grant the defendant a nonjury trial to the trial judge. Because this law conflicted with a court rule, it would  have  been unconstitutional under  Article V before it was  amended  in 1968. Therefore, the decision in Sorrell was consistent with prior Supreme Court decisions that interpreted the separation of powers doctrine.

The separation of powers doctrine in Pennsylvania has evolved into a powerful check on legislative action. The doctrine originally permitted legislative acts to affect the judicial branch as long as these acts did not interfere with the administration of justice. What is at stake instantly is an attempt to resentence individuals through a sentence that does not exist for convictions entered prior to June 24, 2012.


Reformation of the draconian policies that allowed the state to either execute, or sentence to death by incarceration, individuals under the age of 18, began in 2005 when the United States Supreme Court decided Roper V Simmons; 543 U.S. 551, 125 S.Ct 1183, 161 L.Ed.2d 1 (2005).

Roper established that because juveniles (those under the age of 18) have lessened  culpability  they  are  less  deserving . of  the  most  severe  punishments. As compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility; they "are more vulnerable or susceptible to negative influences and outsidepressures, including peer pressure"; and their characters are "not well formed". Roper, 543 U.S. at 569-70.

The Court noted that juvenile offenders cannot reliably be classified as among the worst offenders while recognizing that a juvenile is not absolved of responsibility  for his actions, only that his transgression "is not as morally reprehensible  as that of an adult". Thompson VOklahoma, 487 U.S. 815, 835, 108 S.Ct 2687, 101 L.Ed.2d 702 (1988). It was held that imposition of the death penalty on offenders younger than 18 violated the Eighth Amendment's cruel and unusual punishment clause.

The next step in the evolution of saving juveniles from draconian sentencing practices came in 2010 when the United States Supreme Court held that the Eighth Amendment bars the imposition of a sentence of life without parole for juveniles convicted of nonhomicide offenses. In Graham V Florida, 560 U.S. 48, 130 S.Ct 2011, 176 L.Ed.2d

825 (2010), the Court built on the rationale of Roper stating that, when compared to an adult convicted of murder, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.

The Court concluded that penological theory was not adequate to justify life without parole for juvenile nonhomicide offenders. The conclusion that such a sentencing practice is  cruel  and  unusual  was  based  on  the  limited  culpability  of  juvenile  nonhomicide offenders and the severity of life without parole sentences. A bright line rule was deemed necessary to prevent the possibility that life without parole sentences would be imposed on  juvenile  nonhomicide   offenders  who  are  not  sufficiently  culpable   to  merit  that punishment. Because "[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood", those who were below that age when theoffense was committed may not be sentenced to life without parole for a nonhomicide offense. Roper VSimmons,  543 U.S. 551,574, 125 S.Ct 1183, 161 L.Ed.2d 1 (2005).

The Court in Graham did not require a State to guarantee eventual freedom to ajuvenile offender convicted of a nonhomicide offense. It merely prohibits a State from predetermining, by a life without parole sentence, that such an offender wil.l never be fit to return to society. A State was required to give juveniles convicted of nonhomicide offense some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.

Having already established that the distinctive attributes of youth diminish the penological justification for imposing the harshest sentences on juvenile offenders in Roper and Graham,  the United States Supreme Court, in Miller V Alabama, 567 U.S._, 132 S.Ct 2455, 183 L.Ed.2d 407 (2012), held it was unconstitutional for a state to impose a mandatory sentence of life without parole on individuals under the age of 18 who are convicted of homicide offenses. It should be noted that it is the mandatory nature of the sentence, not the sentence itself, the Court held to be unconstitutional.

A   mandatory  sentence  of  life  without  parole  for  a  juvenile  precludes  any consideration  of  chronological  age  and  its  hallmarks  - among  them  immaturity, impetuosity, and failure to appreciate risks or consequences. It does not permit the sentence to take into account the family and home life that surrounds the offender; such a   sentence  neglects  the  circumstances  of  the  homicide,  including  the  extent  of participation in the offense and the way familial and peer pressures may have affected the offender. By making youth irrelevant to imposition of a mandatory sentence of life without parole, the risk is too great that the sentence will be disproportionate. Additionally,such a sentence completely disregards the possibility of rehabilitation even when circumstances make it a likely outcome.

The  Supreme  Court  concluded,  based  on  rationale  espoused  in  Roper  and Graham concerning a child's diminished culpability and heightened capacity for change, that sentencing juveniles to life without parole will be uncommon.


In response to the United States Supreme Court decision in Miller  V Alabama, 567 U.S. _, 132 S.Ct 2455, 183 L.Ed.2d  407 (2012), the Pennsylvania  Legislature passed a statute specifically aimed at juvenile first and second degree murder.  (2012, Oct. 25, 2012, P.L. 1655,  o. 204 §2, Immediately Effective).

The newly enacted statute distinguishes between defendants convicted of first- degree murder and second-degree murder. It further divides punishment  for those who were younger than fifteen years of age at the time of the offense and those fifteen years of age and over. The statute removes the mandatory imposition of a life sentence without parole for both degrees of murder but permits such a sentence upon conviction of first- degree murder after a court considers factors the legislature, based on Miller, outlined as relevant to such determination. There is no sentence of life without parole for an individual under the age of 18 convicted of second-degree murder.

Pursuant to 18 Pa.C.S. §1102.1, an individual who was under the age of 18 at the time of the offense, who is convicted of second-degree  murder, shall be sentenced as follows:

(1) A person who at the time of commission of the offense was 15 years of age or older shall be sentenced to a term of imprisonment the minimum of which shall be at least 30 years to life.

(2) A person who at the time of the commission of the offense was under 15 years of age shall be sentenced to a term of imprisonment  the minimum of which shall be at least 20 years to life.

18 Pa.C.S. §1102.1(c).

The  statute  further  provides  that  a  sentencing  court  may  impose  a minimum' sentence greater than that provided. 18 Pa.C.S. §1102.1(e).The key point is the removal of life imprisonment  without parole for a second-degree murder conviction for those under 18 years of age. The text of the statute states that it applies to individuals convicted after June 24, 2012 despite being enacted on October 25, 2012 with an immediate effective date. This may be the legislature's attempt to inform the judicial branch they intend for the statute to be retroactive  or it may just be tied to the Miller  decision being delivered on June 25, 2012. In either event, it would have no effect on any case on direct appeal as those cases would not be final.

One of the first cases to appeal based on the Miller decision was Commonwealth V Batts, 66 A.3d 285 (PA 2013). Appellant Batts, who was 14 years old at the time of the offense, which occurred in 2006, and under pressure from an older gang member, was convicted on a charge of first-degree  murder, and sentenced to a mandatory term of life imprisonment.   The  Pennsylvania   Supreme   Court  held,  that  on  direct  appeal,  the appropriate  remedy for a constitutional  violation occurring when a trial court imposes a mandatory life without possibility of parole sentence upon a 14 year old juvenile for a first- degree murder conviction was a remand for a new sentencing hearing after which the trial court, after considering  the factors detailed in Miller, could impose a life sentence either with or without parole.

The trial court, following the remand, again imposed  a sentence of life without parole,  finding  significant  that Batts  was  influenced  by  an older  gang  member.  The Superior Court, in Commonwealth  V Batts, 125 A.3d 33 (Pa. Super. 2015) held such sentence to be appropriate. So much for the rare instance rationale set forth by the United States Supreme Court.

In Commonwealth  V Devon Knox,  50 A.3d 732 (Pa. Super. 2012),  the court heard the case of a 17 year old convicted of second-degree murder who had been sentenced to a mandatory term of life imprisonment without the possibility of parole. The court vacated the sentence and remanded the case, which was on direct appeal, for resentencing  pursuant  to  the  Miller   decision.  Following  the  remand,  the  trial  court sentenced the 17 year old pursuant to the newly enacted 18 Pa.C.S. §1102.1(c)(2)  and imposed a term of years to life.

The remaining question for Pennsylvania  courts was what to do about the over 400 individuals who were serving unconstitutional sentences but whose sentences had become  final.  Commonwealth  V  Cunningham,  81 A.3d  1 (PA  2013)  attempted  to ascertain the answer by questioning whether Miller should be_ applied to individuals whose judgments of sentence were final at the time of Miller's  announcement. In a decision that surprised very few, the Pennsylvania Supreme Court abdicated its responsibility and held that Miller was not retroactive.

The Superior Court piled on when, in Commonwealth V Seskey, 86 A.3d 237 (Pa. Super. 2014), it held that the Miller decision did not permit the assertion of an otherwise time-barred Eighth Amendment claim under the PCRA exception for petitions asserting newly created and retroactively applicable constitutional rights. That was about to change.

On January 25, 2016, the United States Supreme Court held that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires  state  collateral  review  courts  to  give  retroactive  effect  to  that  rule.  In Montgomery VA/abama, _U.S._, J3S.Ct ISB,t f3L.Ed.2d .fo/9(2016), the Court opined that under the Supremacy Clause of the Constitution, state collateral review courts have no greater power than federal habeas courts to mandate that a prisoner continue to suffer punishment barred by the Constitution. If a state collateral proceeding is open to a claim controlled by federal law, the state court has a duty to grant the relief that federal law requires.

Having finally established that over 400 individuals are entitled to raise, and have heard, claims that they are serving unconstitutional sentences, the question remains as to how correction of the situation may be accomplished without violating the separation of powers doctrine in Pennsylvania.


· Pennsylvania's approach to sentencing for homicides has changed very little over the years. Prior to 1974, homicide was divided into two degrees, first and second. First­ degree murder was a deliberate, premeditated and intentional murder, punishable by either death or life imprisonment. Second-degree murder was considered to be all other types of murder and was punishable by up to 20 years imprisonment.

In 1974 Pennsylvania amended the homicide statute (1974, March 26, P.L. 213, No. 416, §4, lmmed. Effective), creating the current degrees of homicide. First-degree murder was still subject to either the death penalty or life imprisonment. Second-degree murder was defined as any murder while the defendant was engaged as a principal or anaccomplice in the perpetration of a felony. It became known as "felony murder" and was punishable by life imprisonment. The amendment created the new offense of third-degree murder,  classified  as  all  other  types  of  murder  (formerly  second-degree)  and  was punishable  by up to 20 years imprisonment. The sentences  for the various degrees  of homicide  remained  static until 1995 when the . Pennsylvania  Legislature  increased  the sentence for third-degree murder from a maximum sentence of 20 years imprisonment to a maximum sentence of 40 years imprisonment.

The courts of Pennsylvania  have never held that life sentences imposed for either first or second-degree murder convictions are anything but mandatory minimums. Castle V Pennsylvania  Board of Probation  and Parole,  544 A.2d 625 (Pa. Cmwlth. 1989), appeal denied, 567 A.2d 653 (PA 1989); Commonwealth  V Yount, 615 A.2d 1316 (Pa. Super. 1992), appeal denied, 651 A.2d 538 (PA 1994). The mandatory nature of these sentences is further reinforced by the Pennsylvania Parole Board's grant of authority to release individuals on parole.

The parole board is specifically prohibited from releasing on parole any individual serving a sentence of life imprisonment. The on!y exception to this prohibition is when the Board of Pardons has commuted a sentence of life imprisonment  to a term of years. 61

Pa.C.S.  §6137(a)(3).  As a result of the statutory scheme  in this state, Pennsylvania  is facing the problem of having over 400 individuals serving unconstitutional sentences with no valid sentence available for the convictions entered in those cases.

There are two viable constitutional  solutions to this conundrum.  First, a solution that will allow the judicial branch  to maintain control over the outcome of these cases involves the lesser-included offense doctrine. In the past, when a sentence has been held to be unconstitutional, the courts merely went to the lesser available sentence. In the case of juveniles sentenced to a mandatory sentence of life imprisonment without parole for first or second-degree murder, there is no lesser sentence that may be imposed. The statute passed in 2012 (18 Pa.C.S. §1102.1), dealing with sentences for juveniles convicted of first or second-degree murder, may not be utilized to sentence any juvenile with a conviction that became final prior to the effective date of such statute. Commonwealth V Sutley, 378 A.2d 780 (PA 1977).

Pennsylvania Supreme Court decisions in Commonwealth V McKenna, 383 A.2d 174 (PA 1978) and Commonwealth  VMoody, 382 A.2d 442 (PA 1977) invalidated the death penalty resulting in a sentence of life imprisonment being imposed in its stead. The Court was able to do this because a sentencing alternative existed for the primary conviction. With no sentencing alternative available, at the time of the offense, the co_urts must vacate the conviction and sentence pursuant to the lesser-included offenses. For example, a juvenile convicted of second-degree murder in 1976 could now be sentenced to a 10 to 20 year term of imprisonment for third-degree murder, and the court would be free to impose a consecutive sentence for the underlying felony (e.g. 10- 20 years for Burglary), as it would no longer be an element of second-degree murder. An individual so sentenced would have an aggregate sentence of 20 to 40 years imprisonment, which would expire in 2016. A 16 year old convicted in 1976 would be 56 years old at the expiration of such a sentence, an age that, by all studies, he or she would pose no threatif released.

Sentencing  in  this  manner  would,  however,  become  more  onerous  for  any conviction from 1995, when punishment for third-degree murder was increased, until October 25, 2012, when the current juvenile sentencing scheme became effective. Using the same 16 year old as in the previous example, the sentence imposed in 1995 may be 20 to 40 years for thir -degree murder with a consecutive sentence of 10 to 20 years for Burglary. The aggregate sentence would be 30 to 60 years imprisonment resulting in the 16-year-old  becoming  parole  eligible  at age  46 in 2025.  A secondary  benefit  of this solution would be to limit the number of individuals subject to immediate release thereby alleviating any additional strain on the parole board should their involvement become necessary.

In 2005, the General Assembly's Joint State Govern.ment Commission issued the Report of the Advisory Committee on Geriatric and Seriously Ill inmates. In that report, which was the result of the 2002 Senate Concurrent Resolution No. 149, a subcommittee acknowledged that any attempt to apply changes to sentencing laws retroactively would be unlikely to pass constitutional muster. (Report, at Pg. 85). This would seem to apply to 18 Pa.C.S. §1102.1 as enacted in October 2012.

The   second,   and  probably   most  efficacious,   solwtion  involves  the   use  of commutation from the Governor. At one time commutation was used extensively in Pennsylvania with a success rate of 99% not returning to prison if commuted after age

50. The primary benefit to utilizing the commutation  process to correct the juvenile re­ sentencing problem is the availability of some supervision after release. While it may be extremely  time  consuming   given  the  current  backlog  of  commutation   applicationscurrently pending before the Pardons Board, it removes any appeal of the sentence once granted since an individual must request commutation.


When  the  United  States  Supreme  Court  held  that mandatory  sentences  of life imprisonment without parole were unconstitutional when imposed  upon juveniles,  over 400   individuals   in  Pennsylvania   were  suddenly   sent  to  incarceration   limbo.  Their sentences not only became invalid, but there were no sentences available for the primary offense  for  which  they  were  convicted.  The  Pennsylvania  Legislature  corrected  the absence  of  such  sentence  by  enacting  18  Pa.C.S.  §1102.1,  which  only  applies  to individuals  whose sentences were not final by the effective date of the statute. (October 25, 2012).

Any individual  with a judgment  of sentence that was final on the effective date of the  statute  may not be sentenced  pursuant  to that statute because  the separation  of powers  doctrine  prohibits  the  legislature  from  enacting  any law that  would  affect the finality  of any judgment  entered  by the judicial branch.  Pennsylvania's  Supreme Court has consistently  upheld  the separation  of powers  so it is now squarely  on the judicial branch  of government,  unless the Governor  of Pennsylvania  acts, to creatively correct the current situation regarding juveniles serving unconstitutional sentences in the Commonwealth of Pennsylvania.

The purpose  of this article  was to point  to the problems  created  by the United States Supreme Court's ruling in Miller and to suggest possible solutions. What has been suggested  herein are not the only solutions that may be available, they are merely oneperson's perception of what may be the fairest and most equitable way to correct the problem. It will ultimately be the courts who decide what to do with the over 400 individuals waiting for a chance to return to society and their families.

Researched and written by Guy Bicking, a legal reference aide at SCI Huntingdon. He is a non-juvenile life sentenced individual with close to 30 years served. Comments and suggestions are welcome and can be addressed to Guy Bicking, AS - 1243, 1100 Pike Street, Huntingdon, PA 16654-1112.