SCOTUS ruling leaves 17 year old capital murderers in sentencing limbo

The US Supreme Court today ruled that life without parole for juveniles is unconstitutional when the sentence is mandatory. (See initial coverage from SCOTUSBlog and from Sentencing Law & Policy here, here, here, and here.) At first blush, Grits thought the case might not affect Texas since we abolished life without parole (LWOP) for juveniles in 2009. But at the Texas District and County Attorneys User Forum, Shannon Edmonds raised a valid point: "since current Texas law eliminates death for 17-year-olds, leaving LWOP as the only option, isn't it 'mandatory' under current law?"

The issue arises because the age of majority in Texas is 17, whereas the feds consider youth juveniles until they're 18. Edmonds suggested that as a result of today's ruling, "the Legislature will have to pass a life-with-parole carve-out for 17yo killers, as they previously did for capital murderers under 17yo back in 2009." A prosecutor from Hidalgo County concurred with Edmonds, but wondered what happens between now and then:

It appears that we now have a capital murder offense for which both punishments under the Penal Code, a death sentence and LWOP, have now been held unconstitutional when the defendant was 17 or younger at the time of offense commission. I don't think that it is possible to impose some other sentence for capital murder that is not authorized under the Penal Code. So my question becomes what are our options until the Legislature meets in January? Are we left with proceeding on a murder charge and trying to obtain a lengthy sentence as our only option at this point?

Good question. I'm not a lawyer, but offhand it strikes me as correct that there are presently no constitutional sentences on the books in Texas for a 17-year old convicted of capital murder. They're not eligible for the juvenile max sentence (which makes them parole eligible after 40 years), and both the death penalty and life without parole have been taken off the table by the US Supreme Court. That leaves the only apparent option seeking a "life" sentence for "regular" murder, which in Texas makes one eligible for parole after 30 years. For the time being, at least until the Legislature meets again, that must suffice as justice.

There's one other possible impact of today's ruling in Texas: After the state made life without parole the only alternative to the death penalty for capital murderers in 2005, a handful of juveniles were given that sentence after being tried as adults, a situation that ended when the Lege in 2009 made juvenile capital murderers parole eligible after 40 years. So the question arises, will those juveniles be eligible for re-sentencing, or will this be treated as a procedural change that is not retroactive? States around the country will face the same question in the coming weeks and months, some on a much larger scale than Texas, which has just a few such cases.

MORE (6/26): An editorial in the Austin Statesman gave these additional details about Texas juveniles sentenced to LWOP between 2005 and 2009:

Thus, 27 juveniles who were convicted of capital murder as adults between 2005, when the U.S. Supreme Court banned the death penalty for juveniles, and the passage of the new 2009 law are sitting in prison without any chance for parole. Monday's ruling should lead to new punishment hearings for these individuals. ...

In Texas, 10 inmates were younger than 16 at the time they committed their crimes.

AND MORE: The Texas Tribune speculates whether the Governor may commute sentences for the 27 Texas inmates sentenced to LWOP as juveniles:

After the Supreme Court in 2005 decided that the death penalty for juveniles was unconstitutional, Gov. Rick Perrycommuted the sentences for 28 17-year-olds on death row. All 28 were given life sentences with the possibility of parole in 40 years.

After Monday's ruling, the state is still determining what action to take. “The Governor’s Office is working with the Attorney General, the Board of Pardons and Paroles, prosecutors and the Texas Department of Criminal Justice to determine how many individuals may be affected by this ruling and what the appropriate steps will be for Texas going forward,” Josh Havens, a spokesman for the governor’s office, said in a statement.

Jason Clark of the Texas Department of Criminal Justice said his office began preparing soon after the court’s announcement, and identified the 27 convicts in anticipation of any requests from the attorney general or governor’s offices.