On January 25, 2016, four years after the major shift that Miller v. Alabama created in juvenile law, the Supreme Court did it again. In a 6-3 decision in Montgomery v. Louisiana, SCOTUS greatly impacted the landscape of juvenile law along with the lives of hundreds of individuals sentenced to a lifetime of prison as young people. The court ruled that Miller retroactively gives juvenile offenders the ability to show that they are “not beyond rehabilitation to become a law-abiding individual” at the time of sentencing.

The much-anticipated present change in juvenile law altered the landscape of the firm stance taken in Miller on June 25, 2012 pertaining to the incarceration of juvenile offenders. At that time, SCOTUS held that sentencing a juvenile homicide offender to life in prison without the possibility of parole was in violation of the Eighth Amendment’s Cruel and Unusual Punishment Clause. The Court’s stance in Miller rounded out a trio of Supreme Court decisions setting up key sentencing protections for juvenile offenders, the first decision was Roper v. Simmons in 2005. In Roper, the Court held that the application of capital punishment and the death penalty was a violation of the Eighth Amendment as applied to juvenile sentencing. Graham v. Florida, decided in 2010, protected juveniles convicted of non-homicidal offenses from being sentenced to life in prison without the possibility of parole under the Eighth Amendment. Continuing its protective trend under the umbrella of the Eighth Amendment, SCOTUS extended the protection identified in Graham to juvenile homicide offenders in Miller.

Read on to learn more about the Miller decision, the changes the Court made on January 25, 2016 in Montgomery v. Louisiana, and what is in store for juvenile offenders sentenced to life without parole prior to June 25, 2012.

A Tale of Tried Teens: Miller v. Alabama

In November 1999, a 14-year-old Kuntrell Jackson (Teen #1) decided to accompany two friends to rob a video store. On the way to the store, Jackson learned that one of his friends had concealed and brought with him a sawed off shot gun in his coat sleeve. Jackson made the decision to stay outside of the store when his friends went in. Ultimately, the store clerk refused to give the young boys the money they demanded and she was shot and killed.

Under Arkansas law, 14-year-old Jackson was charged as an adult for capital felony murder and aggravated robbery. He was convicted of both crimes. A motion was filed to transfer the case to juvenile court, but was subsequently denied by the court and affirmed on appeal. Further, a habeas corpus petition was filed on his behalf after the Roper decision, but was dismissed. While the ruling was on appeal, SCOTUS made the Graham decision. The Arkansas Supreme Court affirmed the dismissal based on both Roper and Graham.

Subsequently, 14-year-old Evan Miller (Teen #2), a troubled young boy bouncing in and out of foster homes who had attempted suicide four times already, was about to have his life changed. Miller and his friend followed Cole Cannon, a drug dealer, to his trailer where they smoked marijuana and played drinking games. When Cannon passed out, the boys stole his wallet and took out $300 to split, but Cannon woke up and a fight ensued. Miller struck Cannon repeatedly with a baseball bat. The boys came back later and lit the trailer on fire, ultimately killing Cannon. Pursuant to Alabama law, Miller had to be charged as a juvenile, but the District Attorney was granted a transfer to adult court. Miller was charged and convicted of murder in the course of arson, which carries a mandatory minimum of life without parole. The Alabama Court of Criminal Appeals confirmed the sentence and the Alabama Supreme Court denied review.

The Supreme Court of the United States granted certiorari and agreed to review both cases together, as one.

In its rationalization, the Court immediately established that children are “constitutionally different from adults for purposes of sentencing” in the sense that they have diminished culpability and have a greater capacity for reform in the future. Further, the Court emphasized key points from Roper and Graham, identifying that children lack maturity and appreciation for responsibility leading to potential reckless behavior and are more vulnerable and impressionable by negative influences. Therefore, a fundamental difference exists when analyzing adult culpability for sentencing purposes and children. For Eighth Amendment purposes, the Court viewed age as a relevant factor for sentencing.

The Court ultimately held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.”

Montgomery v. Louisiana

Now, for the case that was just decided in 2016, we need to flash back to 1963 when 17-year-old Henry Montgomery killed a deputy sheriff in East Baton Rouge, Louisiana. Montgomery was found guilty and sentenced to death. Shortly thereafter, the Louisiana Supreme Court reversed his conviction finding that the public nature of the trial and public prejudice prevented Montgomery from having a fair trial.

The case was retried and the jury returned a verdict of “guilty without capital punishment,” which required the sentence to be life without the possibility of parole.

Flash forward to when Henry Montgomery is 69-years-old. He has spent the last 53 years in custody and behind bars, even facing the emotional journey that comes with being sentenced to death at one point. Up until 2012, Henry Montgomery was prepared to die in prison until a little bit of hope cloaked in the form of Miller v. Alabama surfaced to light.

Most relevant to Montgomery’s case is the fact that the Miller decision noted the importance of youth and age on an offense: “by making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, mandatory life without parole poses too great a risk of disproportionate punishment.” Thus, the disconnect between a juvenile offense and the harsh punishments of life in prison without the opportunity for parole created cruel and excessive penalties for individuals unable to fully understand the culpability of their actions.

Following the Miller decision, Montgomery filed a motion for collateral review on the basis that life without parole for a juvenile offender constituted an illegal sentence. The trial court denied Montgomery’s motion on the ground that the Miller Court did not make a decision that was to be applied retroactively–or applied to cases that were conducted and offenders that had received final sentences prior to June 25, 2012. The Louisiana Supreme Court subsequently denied Montgomery’s application for a supervisory writ.

Upon review by the Supreme Court, they held that Miller was, in fact, retroactive, stating “like other substantive rules, Miller is retroactive because it necessarily carr[ies] a significant risk that a defendant – here, the vast majority of juvenile offenders – faces a punishment that the law cannot impose upon him.” The Court recognized the grave risk in disproportionate sentencing for which detention may be in violation of the Constitution on January 25, 2016.

How Does This Affect Other Juvenile Homicide Offenders?

The Supreme Court’s ruling on January 25, 2016 opened the door to hundreds of miracles. While it did not give all juveniles sentenced to prison for life without parole prior to June 25, 2012 a free pass, it gave them the right to re-sentencing hearings, if they are able to provide proof of rehabilitation, change, and evidence of good behavior during their time behind bars. It will be up to the states to review the case and make a decision as to whether the individual may be released or resentenced under the new Supreme Court holding.

This ruling was considered a win for juvenile law advocates who have been fighting to give a second chance at life to those individuals that entered prison as young teens and have only know life as an incarcerated person for twenty, thirty, even fifty years. They were overjoyed at the victory in the form of applicable retroactivity.

However, it does not come without criticism. Since the Supreme Court reviewed the case from a state court and took a moment to note that Montgomery has, in fact, turned his life around in the last 53 years, they did not and could not rule on that basis. The state controls his release. While Montgomery is likely to be released or in some way benefit from this case outcome, other juvenile inmates could be in trouble if Louisiana amends its state laws regarding post-conviction relief. Louisiana could flex its state muscle and amend its laws to prohibit post-conviction review of cases based on federal, rather than state law. In that case, any individual within that state that was sentenced to life in prison without parole as a juvenile would not have access to a resentencing hearing. Currently, Pennsylvania, Louisiana, and Michigan have the highest amount of juveniles sentences to life without parole. Only time will tell what action Louisiana and other states with similar laws will opt to do.

Resources

Primary

Supreme Court of the United States: Montgomery v. Louisiana

Additional

Cornell University Law School – Legal Information Institute: Miller v. Alabama 

Cornell University Law School – Legal Information Institute: Romper v. Simmons

Cornell University Law School – Legal Information Institute: Graham v. Florida

SCOTUSblog: Further Limit on Life Sentences for Youthful Offenders

 MLive: The Supreme Court Just Gave Juvenile Lifers a Shot at Parole

 Juvenile Law Center: Montgomery v. Louisiana

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

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Some say a paper cut is the most painful thing in the world. Others would vouch for bullet wounds. Many men moan that a swift kick in the pants trumps it all. Who’s right? No one. Pain is notoriously difficult to assess because many factors play a part in the overall sensation. But that hasn’t stopped us from trying to understand its secrets with new technology.

Functional magnetic resonance imaging (fMRI) allows us to peep inside a brain in action to see what processes and pathways light up during sensation. Pain-specific work with fMRI technology inches closer to a possible objective assessment of pain by carefully studying what happens in the brain during a painful event. This possible objective assessment of pain offers more than just proof that you’re in more pain than your friend with a paper cut. It could change the way we prescribe medications and alter the way we practice law–especially in personal injury cases.

To win a personal injury case, victims must prove that their injury resulted in damages like pain and suffering. You can easily find evidence to support that you’re in pain, but try to apply a price tag and it gets tricky. How do you put a value on pain if you can’t know exactly what the person feels other than what they say? Enter the fMRI pain scan, which provides tangible evidence of a victim’s pain and suffering.

The technology’s critics argue that we have too much to learn about fMRI pain scans before we allow them in court as a valid measure of pain. Proponents wonder if the sophisticated new technology could usurp otherwise primitive methods of assessing pain.

Here’s what you need to know about the intersection of pain, brain, and law to decide your stance.

Pain and the Brain

Pain blinds some people, sending them to bed at the first flutterings of a headache. Yet professional athletes and exercise fanatics actually find it manageable, and even exciting. Some can even meditate their way to a weakened perception of pain. Individual differences like these make pain assessment a jungle, especially when you’re shooting for precision worthy of the courtroom.

Despite these differences, researchers hope we might be able to measure pain more precisely because all human pain begins with a universal neurological process.

Say you’re stung by a bee. The moment that stinger pops through your skin, nerve cells called nociceptors send alert signals racing through your spinal cord and up to your brain. The brain then decides how to react to the alert signals. It activates your motor pathways so you automatically swat the bee away and releases endorphins and other chemicals to help you regulate and reduce the pain you feel. The same process happens in everyone, but the specific competence of your own personal brain circuits and systems determines exactly how you experience the pain. That’s why your friend can brush aside the same bee sting that makes you wail.

How do we assess pain now?

As individuals, the way we evaluate our own pain muddies up assessments. When we feel pain, we want to tell everyone how it makes us feel, which is sometimes like…well, you get the picture. We immediately react to pain with guttural and meaningless expletives like “ouch!” and many other choice words. When prompted, we might be able to describe our pain as “dull” or “sharp,” but these methods could benefit from more precision.

The way professionals evaluate our pain isn’t too much better.  A doctor will usually ask you to rank your pain on a scale of one to ten and then point to the emoticon the best represents your state of mind.

If you’re trying to win a personal injury case with nothing but a number five and a half-frowny face to prove your pain and suffering, you might not see the best results. Wouldn’t it be better if they could just plug you into a machine that described your pain in terms of brain waves instead of your unreliable human emotions and descriptors?

That’s why many believe fMRIs hold the key to objective assessment of pain and would lead to more fair court outcomes.

What fMRIs Teach Us About Pain

All roads leading to pain travel the same neural pathways and fMRIs let us watch those pathways in action. There must be something from those processes we can measure.

A few years ago, researchers from multiple universities came one step closer to pain assessment by finding a marker pattern specific to physical pain stable enough for interpretation. Even if someone can’t talk (like a baby), the pattern they discovered would help us understand their pain using brain scans. The marker distinguished physical pain from other aversive events, meaning they can use brain scans to measure the actual pain experienced as a result of stimulus instead of the clouded emotional judgment that comes with it.

The discovery accelerated understanding and interpretation of fMRI brain scans.

Implications in the Law

We’ve just started to explore the intersection of neuroscience with law–aptly named neurolaw–and the treasure trove of evidence to be found in it.

In the Supreme Court decision in Roper v. Simmons, brain scans revealed distinct differences between adult and juvenile brains in briefs submitted to the court. The court eventually ruled against the use of the juvenile death penalty in that case. On the other hand, judges have ruled against fMRI-based lie detection in the 2010 case, U.S. v. Semrau.

Since many personal injury cases settle outside of court, it’s difficult to find a personal injury case using brain scans that has actually been tried in a courtroom. However, in Carl Koch & Tracee Koch vs. Western Emulsions Inc, a truck driver named Carl Koch sued past employer, Western Emulsions, for damages from a melted asphalt-induced wrist burn. A year after the injury, Koch was still in pain.

The case involved a face off between neuroscientists. Koch’s neuroscientist tested him with a method she developed that distinguishes real, chronic pain from imagined pain by hooking him up to the scanner and lightly tapping both of his wrists to see the different fMRI readings produced by each. The neuroscientist in the Western Emulsions corner disputed the evidence produced by the tests, saying that the mere expectation of pain could have produced the same results.

Ultimately, the judge allowed the scan as evidence and the case settled for more than Western Emulsions originally offered. Koch benefited from evidence provided by the brain scan, but many critics echo the dissenting neuroscientist’s concerns about fMRIs in the courtroom.

What are the problems with fMRIs in court?

Cautious critics serve up many reasons why fMRI scans should not yet be allowed in court. Here are some of the top arguments.

Brain Scans Can Sway a Jury

Evidence shows that neuroscientific evidence interferes with a person’s ability to interpret logic. People receive poor arguments with open minds when they’re backed with illogical neurological evidence. It seems that the mere presence of neurological evidence satisfies people into credulity.

Many Lawsuits Deal with Chronic Pain, a More Difficult Study Than Acute Pain

Scientists breeze through the study of acute pain with fMRIs. Acute pain results immediately from a stimulus. If you’re hooked up to a scanning machine and researchers prod you with a hot poker, there’s no doubt about what action causes the pain patterns in the scan. Most people pursuing personal injury lawsuits aren’t hooked up to machines at the time of their accidents. Chronic pain that comes after the accident often mingles with other issues, like depression, which might interfere with neurological scans and make it harder to attribute to one specific cause.

The Technology is New and Untested

Despite numerous discoveries, neuroscientists still disagree on the reliability of pain scans.

Many believe even the expectation of pain or a slight tilt of the head is enough to skew the results of an fMRI pain scan. Even simply blurting out “ow” has an effect on pain. In a National University of Singapore study, researchers had people sink their hands into alarmingly cold water. People who allowed themselves to say “ow” withstood the pain longer than the silent ones. They believe the effort of forming the expletive might be enough to interfere slightly with brain activities dealing with perception of pain and lessen the effect. Fluctuations like this lead people to question the validity of the scans and demand years of tests before admitting them as evidence.

The Scans Can Be Tricked by Your Emotions

In the NPR story above, David Linden, a neuroscientist at Johns Hopkins University, explains that two different brain systems process the feeling of pain. One system looks at pain with nothing but logic, evaluating where the pain came from and if the sensation burns, stabs, or aches. The other, more emotional, system tells us how to feel as a result of the pain. He also explains that emotions can steer your perception of pain. Negative emotions can make pain feel more intense. Torturers have used this fact to their advantage to make their victims’ pain worse by mixing emotions like humiliation in with already excruciating torture methods. This suggests pliability in a person’s reaction that could twist fMRI scan results.

How will we assess pain in the future?

During the nomination hearing for Chief Justice John Roberts in 2005, then-Senator Joe Biden posed a prescient,yet rhetorical, question:

“Can brain scans be used to determine whether a person is inclined toward criminality or violent behavior?”

His question centered on violent behavior, but now we can replace the last phrase with many other possible scenarios. Can brain scans be used to determine how much pain a person feels? As the technology becomes more widespread, more courts will surely face this question. Pain assessments and pain scans have further to go before they become a precise and trusted method, but they’re on the way. It’s exciting and scary to think of the ways our brain activity might be interpreted in another ten years.

Resources

Primary

New England Journal of Medicine: An fMRI-Based Neurologic Signature of Physical Pain

Journal of Cognitive Neuroscience: The Seductive Allure of Neuroscience Explanations

Additional

NPR: Pain Really is All in Your Head and Emotion Controls Intensity

Telegraph: Saying ‘Ow’ Really Can Ease Pain

Slate: Neuroscientists: Mercenaries in the Courtroom

WebMD: MRI Shows People Feel Pain Differently

Wall Street Journal: Doctors’ Challenge: How Real is That Pain?

All Law: Two Ways to Calculate a Pain and Suffering Settlement

Brainfacts: Neurolaw: Neuroscience in the Courtroom

Duke: Proof and Evaluation of Pain and Suffering in Personal Injury Litigation

Nature: Neuroscience in court: The painful Truth

Ashley Bell

Ashley Bell communicates about health and wellness every day as a non-profit Program Manager. She has a Bachelor’s degree in Business and Economics from the College of William and Mary, and loves to investigate what changes in healthy policy and research might mean for the future. Contact Ashley at staff@LawStreetMedia.com.

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