FROM THE DREW COUNTY CIRCUIT COURT [NO. 22CR-96-34-1B]
HONORABLE SAM POPE, JUDGE
& Benca, by: Jessica Duncan Johnston; and Jeff
Rosenzweig, for appellant.
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., and Christian Harris, Ass't Att'y
Gen., for appellee
DAN KEMP, Chief Justice
Derrick Lynell Harris appeals from the Drew County Circuit
Court's order denying him a resentencing hearing and
imposing a sentence of life with parole eligibility pursuant
to the Fair Sentencing of Minors Act of 2017
(FSMA). We reverse and remand.
1996, Harris was found guilty by a Drew County jury of
capital murder. The capital-murder statute in effect at the
time of Harris's offense provided for a sentence of
either death or life imprisonment without parole.
See Ark. Code Ann. § 5-10-101(c) (Supp.
1995). Because Harris was fifteen years
when he committed the crime, he was ineligible for the death
penalty. See Thompson v. Oklahoma, 487 U.S. 815, 838
(1988) (plurality opinion) (holding that the Eighth and
Fourteenth Amendments to the United States Constitution
prohibit the execution of a person who was under sixteen
years of age at the time of his or her offense). Thus, he was
sentenced to a mandatory term of life imprisonment without
the possibility of parole. See Harris v. State, 331
Ark. 353, 961 S.W.2d 737 (1998) (affirming conviction and
2012, the Supreme Court of the United States held that the
Eighth Amendment prohibits a sentencing scheme that requires
life in prison without the possibility of parole for juvenile
offenders. Miller v. Alabama, 567 U.S. 460, 479
(2012). Harris petitioned for writ of habeas corpus under
Miller, and the Jefferson County Circuit Court
issued the writ in 2016. The circuit court vacated
Harris's mandatory sentence of life without parole and
remanded for resentencing. On remand, and pursuant to the
FSMA, the Drew County Circuit Court summarily resentenced
Harris to life imprisonment with the possibility of parole
after thirty years.
contends that the FSMA does not apply to him, and therefore,
he is entitled to resentencing pursuant to this court's
decisions in Jackson v. Norris, 2013 Ark. 175, 426
S.W.3d 906, and Kelley v. Gordon, 2015 Ark. 277, 465
S.W.3d 842. Further, he raises numerous constitutional
challenges to the FSMA. We begin with a discussion of
pertinent case law and legislative enactments.
25, 2012, the Supreme Court handed down its decision in
Miller v. Alabama and a companion case from
Arkansas, Jackson v. Hobbs. Each case involved a
fourteen-year-old offender convicted of murder and sentenced
to mandatory life in prison without parole. Relying on its
line of precedent holding that certain punishments are
disproportionate when applied to juveniles,  the Court held
that mandatory life without parole for juvenile offenders
violates the Eighth Amendment's prohibition on
"cruel and unusual punishments." Miller,
567 U.S. at 465. The Court explained that
[m]andatory life without parole for a juvenile precludes
consideration of his chronological age and its hallmark
features-among them, immaturity, impetuosity, and failure to
appreciate risks and consequences. It prevents taking into
account the family and home environment that surrounds
him-and from which he cannot usually extricate himself-no
matter how brutal or dysfunctional. It neglects the
circumstances of the homicide offense, including the extent
of his participation in the conduct and the way familial and
peer pressures may have affected him. Indeed, it ignores that
he might have been charged and convicted of a lesser offense
if not for incompetencies associated with youth-for example,
his inability to deal with police officers or prosecutors
(including on a plea agreement) or his incapacity to assist
his own attorneys. And finally, this mandatory punishment
disregards the possibility of rehabilitation even when the
circumstances most suggest it.
Id. at 477-78 (internal citations omitted).
Accordingly, the Court held that defendants who committed
homicide crimes as juveniles and faced a sentence of life
without parole were entitled to a sentencing hearing that
would permit the judge or jury to consider the individual
characteristics of the defendant and the individual
circumstances of the crime as mitigating factors for a lesser
sentence. Id. at 489. Because the mandatory
life-without-parole sentencing schemes in Alabama and
Arkansas violated the Eighth Amendment's ban on cruel and
unusual punishment, the Court reversed the judgments of this
court and the Alabama Court of Criminal Appeals and remanded
the cases for further proceedings. Id.
remand in Jackson v. Norris,  we rejected the
State's argument that the Eighth Amendment violation
could be cured by severing the capital-murder statute,
Arkansas Code Annotated section 5-10-101(c) (Repl. 1997), to
provide for a sentence of life with parole. 2013 Ark. 175,
426 S.W.3d 906. We explained that the imposition of that
sentence would not allow for consideration of Miller
evidence. Id., 426 S.W.3d 906. Instead, we severed
language from the statute "so that, for juveniles
convicted of capital murder, all that remain[ed] [was] that
capital murder is a Class Y felony." Id., at
7-8, 426 S.W.3d at 910. We remanded the case for a sentencing
hearing at which Jackson could present Miller
evidence for consideration and instructed that Jackson's
sentence must fall within the discretionary sentencing range
for a Class Y felony, which is ten to forty years or life.
Id. at 9, 426 S.W.3d at 911 (citing Ark. Code Ann.
§ 5-4-401(a)(1) (Repl. 1997)); see also Whiteside v.
State, 2013 Ark. 176, 426 S.W.3d 917 (reversing juvenile
offender's capital-murder sentence and remanding to the
circuit court for resentencing within the discretionary
statutory-sentencing range for a Class Y felony and directing
that a sentencing hearing be held for presentation and
consideration of Miller evidence).
Jackson obtained relief, other "Miller
defendants" sought resentencing. The State took the
position that Miller did not apply retroactively to
cases on collateral review. We disagreed, and in Kelley
v. Gordon, 2015 Ark. 277, 465 S.W.3d 842, cert.
denied, 136 S.Ct. 1378 (2016), we held that, as a matter
of "fundamental fairness and evenhanded justice, "
Miller applied to all juvenile offenders convicted
of capital murder. Id. at 7, 465 S.W.3d at 846. In
doing so, we stated that Gordon was entitled to the same
relief from his unconstitutional sentence as Jackson
received-namely, a sentencing proceeding at which he will
have the opportunity to present Miller evidence.
Id., 465 S.W.3d at 846. Consequently, we affirmed
the circuit court's order vacating Gordon's
life-without-parole sentence and reinvesting the sentencing
court with jurisdiction to hold a new sentencing hearing
under Miller. Id., 465 S.W.3d at 846.
this court decided Gordon, the Supreme Court
resolved a split of authority and held that
Miller's prohibition on mandatory life without
parole for juvenile offenders is retroactive to cases on
collateral review. Montgomery v. Louisiana, 136
S.Ct. 718 (2016). The Court noted that giving Miller
retroactive effect "does not require States to
relitigate sentences . . . in every case where a juvenile
offender received mandatory life without parole."
Id. at 736. Rather, the Court indicated that states
could "remedy a Miller violation by permitting
juvenile homicide offenders to be considered for parole,
rather than by resentencing them." Id.
of the Arkansas General Assembly
the Supreme Court handed down its decision in
Miller, the Arkansas General Assembly has twice
revised the punishment authorized for juveniles convicted of
capital murder. In 2013, the legislature passed Act 1490,
which provided for two alternative sentences for a juvenile
convicted of that offense: life imprisonment without parole
or life with the possibility of parole after serving a
minimum of twenty-eight years' imprisonment. See
Act of Apr. 22, 2013, No. 1490, §§ 2-3, 2013 Ark.
Acts 6587, 6588-89. Act 1490 did not apply retroactively.
Id. § 1, 2013 Ark. Acts at 6588.
Following the Supreme Court's Montgomery
decision, the legislature passed the FSMA to "eliminate
life without parole as a sentencing option for minors and to
create more age-appropriate sentencing standards in
compliance with the United States Constitution for minors who
commit serious crimes." See Act of Mar. 20,
2017, No. 539, § 2(c), 2017 Ark. Acts 2615, 2617. The
FSMA authorizes only one punishment for juvenile offenders
convicted of capital murder: life with the possibility of
parole after serving a minimum of thirty years'
imprisonment. See FSMA § 3 (codified at Ark.
Code Ann. § 5-4-104(b) (Supp. 2017)), and § 6
(codified at Ark. Code Ann. § 5-10-101(c) (Supp. 2017)).
In addition, the parole-eligibility provision of the FSMA
states that it "applies retroactively to a minor whose
[first-degree murder or capital-murder] offense was committed
before he or she was eighteen (18) years of age, including
minors serving sentences of life, regardless of the original
sentences that were imposed." FSMA § 13 (codified
at Ark. Code Ann. § 16-93-621(a)(2)(B) (Supp. 2017)).
The Act provides that all juvenile offenders sentenced to
imprisonment are entitled to a parole-eligibility hearing at
which the parole board shall take into consideration, among
other things, Miller evidence and evidence of
rehabilitation. Id. (codified at Ark. Code Ann.
§ 16-93-621(b) (Supp. 2017)). The emergency clause of
the FSMA states that "more than one hundred persons in
Arkansas are entitled to relief" under the
Miller and Montgomery decisions and that
the Act is "immediately necessary in order to make those
persons eligible for parole." FSMA § 14.
Proceedings in Harris's Case
summarized the relevant juvenile-sentencing law, we turn to
the proceedings in Harris's case. As previously noted,
following the issuance of a writ of habeas corpus, the
Jefferson County Circuit Court vacated Harris's
life-without-parole sentence and remanded the case to the
Drew County Circuit Court for resentencing. The resentencing
hearing was set for May 2017. On March 22, 2017, two days
after the FSMA was passed, the State filed a "Motion to
Discontinue Resentencing." The State argued that the
FSMA "retroactively established" parole eligibility
for Harris and other similarly situated minors sentenced to
life imprisonment without parole for capital murder. The
State further argued that, because Harris's parole
eligibility would be calculated by the FSMA, the issue of
resentencing was moot. Finally, the State contended that the
prior order vacating Harris's original sentence should be
filed a response to the State's motion and argued that he
was entitled to a resentencing hearing under this court's
precedent in Jackson and Gordon because he
was similarly situated to the defendants in those cases. He
contended that the retroactive parole-eligibility provision
of the FSMA was inapplicable to him because his life sentence
had been vacated and he currently had no sentence of
imprisonment to which parole eligibility could attach. Harris
further contended that the substantive penalty provision of
the FSMA for ...