McGee v. State, No. F-2015-393 (Ok. Ct. Crim. App. Dec. 2, 2016)Defendant, age 17 at the time of the offense, was convicted after a jury trial of first-degree malice afterthought murder.  The jury assessed punishment at life imprisonment without the possibility of parole, and the trial judge imposed the sentence accordingly.  On appeal, defendant argued, inter alia, that his LWOP sentence violated the Eighth Amendment under Miller and Montgomery because there was no jury finding of “permanent incorrigibility” or “irreparable corruption” as required to impose such a sentence.  The Court of Criminal Appeals agreed.

It rejected the State’s argument that Miller and Montgomery apply to mandatory LWOP sentences only, explaining: “There is no genuine question that the rule in Miller as broadened in Montgomery rendered a life without parole sentence constitutionally impermissible, notwithstanding the sentencer’s discretion to impose a lesser term, unless the sentencer takes into account how children are different and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”  It went on: “Montgomery makes clear that Miller’s distinction between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption are factors in the sentencing equation for any juvenile facing life without parole.”  Therefore, both Miller and Montgomery applied to defendant’s discretionary LWOP sentence.

Here, although the trial included “significant information concerning [defendant’s] youth, substance abuse and social background, the majority of the mitigating evidence was not pertinent to deciding whether McGee’s crime reflected only transient immaturity or whether his crime reflected permanent incorrigibility and irreparable corruption.”  The jury, therefore, did not have the opportunity to consider defendant’s age and hallmark features, such as immaturity and impetuosity, the incompetencies associated with youth, and the prospect of rehabilitation.  Nor was there any evidence presented about adolescent brain development and its effect on behavior and capacity to consider consequences.  Therefore, the court concluded, defendant’s sentence violated Miller.

In considering the appropriate remedy, the court determined that the executive commutation process would not suffice: “the opportunity to seek a sentence commutation through a procedure largely without evidentiary rules, with no right to obtain expert assistance or testimony, no cross-examination, compulsory process, or the assistance of counsel cannot meaningfully enforce Miller’s prohibition.” Instead, “Miller requires a sentencing trial procedure conducted before the imposition of the sentence, with a judge or jury fully aware of the constitutional line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption.”  Vacated and remanded for resentencing for the jury “to determine whether the crime reflects [defendant’s] transient immaturity, or an irreparable corruption and permanent incorrigibility warranting the extreme sanction of life imprisonment without parole.”