Strong Cert Candidate in the Supreme Court, May Counsel Delay in Pending Juvenile “Equivalent to Life” Sentences in States like Maryland.

By Michael Wein

The United States Supreme Court has before it, a case out of the Supreme Court of Missouri, Bostic v. Dunbar, that may affect similar pending cases in state and federal courts.  This includes the case in the Maryland Court of Appeals of Matthew McCullough v. Maryland, which had oral arguments in February. 

The Supreme Court, in Graham v. Florida, 560 U.S. 48 (2010) and later decisions interpreting Graham, held that juveniles under 18 years old at the time of the offense, charged with non-murder offenses and originally sentenced to a mandatory life sentence, were entitled to be potentially resentenced with “some realistic opportunity to obtain release before the end of that [life] term.” Id. at 82. However, not all questions involving Graham, have been answered.  In Maryland for example, a marathon oral argument before the Maryland Court of Appeals, on February 6, 2018, had three separate but related arguments on Graham’s application to juvenile cases in Maryland, including McCullough which involves the same legal issues as Bostic, with slightly different facts such as 100 years before the juvenile can potentially be released, instead of 112 years.[i]

The case of Bostic v. Dunbar, Petition # 17-912, is pending Certiorari from the Supreme Court of Missouri’s decision, with the U.S. Supreme Court’s Certiorari Conference presently scheduled for April 20, 2018. The question, as posed in a Certiorari Petition, was as follows:

In Graham v. Florida, this Court held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” 560 U.S. 48, 82 (2010). The question presented is whether States can bypass that rule by sentencing a juvenile offender who did not commit homicide to a term-of-years sentence under which he will die in prison, because he will not be eligible for parole until he is 112 years old.

As a matter of unsurprising Supreme Court practice (as many state Attorney Generals routinely do in cases seeking review in the United States Supreme Court), the Missouri Attorney General’s office filed a “Waiver of Right to Respond” on January 2, 2018.). Since that time, however, a number of developments have occurred making it an increasingly good candidate for Certiorari grant.  These developments were presaged by the American Civil Liberty Union (ACLU)’s interest in writing the Petition for Writ of Certiorari, co-authored by the Missouri ACLU, ACLU Foundation in New York, and Professor David Cole, National Legal Director of the ACLU in Washington, D.C.

First was an Amicus Brief filed on January 25, 2018, of “[f]ormer Judges, Prosecutors, And Law Enforcement Officers.”   As noted in a online investigative news journal discussing the case, included in the former judge category,  was the sentencing judge in Petitioner Bostic’s case.  Judge Evelyn Baker thus: (1) explained on the record at the original trial that the immature juvenile who displayed no empathy or responsibility for his actions would never be released from jail, (2) in the news article Judge Baker was asked and discussed her viewpoints on the case and belief that Mr. Bostic no longer displays the same immaturity that led to the equivalent to life sentence she meted 20 years earlier,  and (3)  subsequently discovered the pending Certiorari petition and unusually agreed to be part of an amicus brief filed with the Supreme Court on Mr. Bostic’s behalf.  Thus, while Judge Baker noted her unequivocal intention that Mr. Bostic, who was16 years old at the time of his significant armed robberies for the 241-year sentence equal to at least 112 years before parole was possible in Missouri for Mr. Bostic, would be a life sentence.  However with Mr. Bostic now 39, Judge Baker has since thought better of her position.

Second, the United States Supreme Court, prior to the Certiorari Conference scheduled for February 16, 2018, had issued a “Call for Response” (CFR) on February 13, 2018.   This indicates the interest of at least one Supreme Court justice, and essentially required the State of Missouri to provide a Response within 30 days.   With the CFR, and the rescheduled Certiorari conference two months later, there was an additional amicus brief filed with the Supreme Court on March 15, 2018, by:

[S]eventy-five former judges, current and former prosecutors, law enforcement officers, juvenile justice officials, corrections officers, and probation officers. They include former Court of Appeals judges, a former state Supreme Court justice, two former U.S. Solicitors General [Kenneth Starr and Donald B. Verrilli], a former Acting U.S. Attorney General, a former F.B.I. Director, thirteen current elected prosecutors from across the country, and five former U.S. Attorneys

The Response itself  by Missouri, does not disagree that there is a significant “split” by courts as to the legal issue in Bostic, pending in McCullough and other similar cases nationwide. They do creatively argue a state procedural rule related to the Missouri Supreme Court’s summary denial of an earlier habeas petition, makes Bostic a poor vehicle.  However, this was discussed in the Reply Petition as being inaccurate and an overreading.

More remarkably, the State of Missouri weakly contends that the case is a poor vehicle “[b]ecause Bostic will become eligible for parole in extreme old age (age 112), this case does not present a particularly helpful vehicle to guide lower courts on this question either. Under any of these decisions, 112 years is the high end of the range.”   This is absolutely true from the perspective that only one verified male older than 112 is currently alive today (Masazou Nonaka of Japan, born 7/25/1905).[ii] Thus, Missouri argues Certiorari should be denied, distinguishing between Mr. Bostic’s sentence which would be a life sentence for all but about one male per billion people, and on “the high end of the range.”

However, the primary legal issue, involves the entrenched court split, if even the basic concept of a “years” but not “life” sentence applies to the Eighth Amendment violations as contemplated in Graham.  Thus, the Supreme Court’s grant would be helpful to establish the underlying principle, first of Eighth Amendment relief being possible, before second getting into the trickier issue of where to draw the line on what counts as essentially equivalent to the life sentences discussed in Graham.  Even though the “line” of where to draw the unconstitutional inference that a long “years” sentence is equivalent to a “life” sentence, poses an intriguing question for the Supreme Court, should the Court grant Certiorari, where this line should be drawn would no doubt be argued by the parties and amici.   It almost certainly applies to Petitioner Bostic who would be 112 years old, but only if there is any such line, something the lower Courts do not agree on.  Such concerns could be invoked when the sentencing court’s unequivocal intention was to provide a life sentence (as Judge Baker explained at sentencing on the Record), as well as perhaps considerations of the nationwide mean life expectancy in the United States, which at the time of Mr. Bostic’s sentence in 1997 was about 76 years.

This is important, as the Supreme Court’s Majority opinion in Graham by Justice Kennedy discussed.

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.  Graham, 560 U.S. at 75.

As far as the Maryland Court of Appeals examining McCullough and similar pending cases in the United States is concerned, whether the Supreme Court will grant Certiorari will likely be resolved in the next two months.   The date of the re-scheduled Certiorari conference is presently April 20, 2018, though it is not unusual for cases to be “relisted” at least once for conferences, prior to Certiorari being actually granted.  However, it’s very likely that whether the Supreme Court grants Certiorari will be decided no later than the last United States Supreme Court Certiorari conference in June 2018, though more likely no later than May.  In addition to Maryland which is pending, both New Mexico and California in the past 6 weeks recently joined the Majority view that Graham applies to some “years” sentences.  See Ira v. Janecka, 2018 WL 1247219 (N.M. March 9, 2018); People v. Contreras, 4 Cal. 5th 349 (Cal. Feb. 26, 2018). These cases and others in the pipeline, will likely still be pending while the Supreme Court deliberates on Bostic.

Bostic’s pending Certiorari petition should have a negligible effect on the Court of Appeals’ timing in McCullough, if Certiorari is denied. If the petition is denied, it may just delay a decision in McCullough by a month or two, as the Maryland Court awaits to see if Certiorari was first granted. This will be well before the self-enforced deadline that the Maryland Court of Appeals has for providing decisions in the same Term of appellate cases, of August 31, 2018.  If Certiorari is granted, however, it would permit the United States Supreme Court to opine on the legal issue first. From there it would be preferable for the Maryland Court of Appeals to await any decision on the Eighth Amendment Federal Constitutional issue, rather than have a likely “GVR” (Grant, Vacate, and Reverse), on the Maryland Court’s decision. See, e.g. Briscoe v. State, 422 Md. 384, 390 (2011) (Noting in case decided October 24, 2011, that the legal issue involving interpretation of the Fourth Amendment’s good-faith exception to the exclusionary rule, was “in material respect identical to an issue then pending certiorari review in the Supreme Court [which issued its opinion] on June 16, 2011…”) Thus, it may be prudent for the Maryland Court of Appeals to first see if the United States Supreme Court is willing to examine the 8th Amendment Constitutional issue through a Certiorari grant in Bostic in the next 2 months.   This will likely be determinative of the pending case of McCullough, or if not determinative, will provide guidance to the Court that will be determinative and judicially efficient, including asking counsel in McCullough to submit supplemental briefing in response to the Supreme Court’s ruling.

Michael Wein, Esquire’s practice focuses on appellate and trial litigation.  He can be reached at

[i] McCullough v. Maryland, has the following Questions Presented:

Issues – Criminal Procedure – 1) Does the reasoning of Graham v. Florida, 560 U.S. 48 (2010), and its progeny apply to a 100-year sentence that is the aggregate of shorter sentences for multiple crimes committed during the same incident? 2) If so, did the 100-year sentence in this case afford the juvenile nonhomicide offender the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” required by Graham? 3) May challenges to parole policies be raised as a Motion to Correct an Illegal Sentence?

 [ii]  Mr. Nonaka this week was officially confirmed by Guinness Book of World Records as the oldest man alive, and is apparently the 22nd  oldest verified male alive in modern times He credits his longevity to bathing in hot springs and eating sweets like cake. This author wishes Mr. Nonaka many more years of good health.

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