Colby Smith, 18, left, and Evan Miller, 17, pleaded not guilty to a 2003 capital murder and robbery charge in 2006. The pair are accused of killing a 52-year-old man, robbing him of $350 and a baseball card collection, then setting fire to his mobile home in 2003.
EVAN MILLER—Sentenced to life without parole for a murder committed when he was 14, his case ended in a U.S. Supreme Court ruling striking down harsh mandatory sentences for juveniles. (AP Photo/The Decatur Daily, Clyde Stancil)

Less than half of the 28 states affected by a 2012 U.S. Supreme Court decision banning mandatory sentences of life in prison without parole for juvenile murderers have reformed their laws.

And of the 13 states that have made legislative changes in response to Miller v. Alabama, only four—Delaware, North Carolina, Washington and Wyoming—allow resentencing for their existing juvenile life-without-parole populations, according to a study by The Sentencing Project in Washington, which does sentencing policy research and reform advocacy.

Miller struck down the mandatory federal and state sentences for juveniles who committed homicides before they were 18. The 5-4 court, led by Justice Elena Kagan, held that that the sentence “prevents those meting out punishment from considering a juvenile’s ‘lessened culpability’ and greater ‘capacity for change,’ and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties.”

Kagan wrote that she expected that “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” And, she added, “Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

The high court in Miller did not say whether its decision was retroactive and whether an estimated 2,100 juveniles already sentenced to life without parole could be resentenced. The justices have declined twice, without comment, in the present term to hear cases raising the retroactivity issue.

“We don’t know a whole lot of what is actually happening with those cases,” said Ashley Nellis, senior research analyst for the project. “They could get either a review of their sentence or they could go before the parole board immediately for review. We don’t know if there is any real consistency across the states.”

However, what those juveniles who were sentenced before Miller should get is “another day in court,” she said. “Obviously, their sentences have been ruled unconstitutional, and the whole thrust of the ruling was that they weren’t given individualized review. To just slap another sentence on them is repeating the same mistake.”

Some state courts have addressed the retroactivity question, according to the study. State supreme courts in Illinois, Iowa, Massachusetts, Mississippi, Nebraska and Texas have ruled that Miller applies retroactively, while state high courts in Louisiana, Minnesota and Pennsylvania have ruled it does not. Cases on that question are pending in supreme courts in Alabama, Colorado, Florida and North Carolina.

The 13 states that have changed their laws in response to Miller imposed new minimum sentences on juvenile murderers that must be served before parole review. Those sentences range from 25 years in Delaware, North Carolina and Washington to 40 years in Nebraska and Texas.

An extremely long minimum sentence, the study says, could ignore the intent of the Supreme Court decision. “To sentence young people into their elderly years amounts to a determination that some offenders permanently lack the capacity to change, which violates the spirit, if not the letter, of both Supreme Court rulings,” it says.

Nellis said she and her colleagues were “overwhelmingly disappointed” by the pace of change in the states during the past two years. “The ruling was pretty straightforward, in our view, and the states seem to have come up with any number of ways to stall.”

She suggested that the large population of juveniles sentenced to life without parole might be behind the reluctance to act within some states.

At the time of the high court’s Miller ruling, more than 2,500 prisoners were serving life without parole for juvenile-committed homicides, the study reports, and two-thirds of those sentences occurred in just five states: Pennsylvania, Michigan, Florida, California and Louisiana.

The 13 states that have made legislative changes since Miller are Arkansas, Delaware, Florida, Hawaii, Louisiana, Michigan, Nebraska, North Carolina, Pennsylvania, South Dakota, Texas, Washington and Wyoming.

The 15 states that have not made legislative changes are Alabama, Arizona, Connecticut, Idaho, Illinois, Iowa, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, Ohio, Vermont and Virginia.

Twelve states and the District of Columbia ban life without parole for juvenile murderers. Those states are Alaska, Colorado, Kansas, Kentucky, Montana, New Mexico, Oregon, Hawaii, Massachusetts, Texas, West Virginia and Wyoming.

Contact Marcia Coyle at mcoyle@alm.com.