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COMMISSION RECOMMENDATIONS
1. The Commission recommends that the General Assembly expand the applicability of Part 2A of G.S. Chapter 15A, Article 81B, to include other Class A homicide offenses.
Because the holding in Miller v. Alabama applies to any homicide offense for which LWOP is mandated for a juvenile offender, the Subcommittee recommends amending Part 2A to include the Class A homicide offense of murder of an unborn child in G.S. 14-23.2(b)(1), as well as future homicide offenses classified by the General Assembly as Class A felonies.
2. The Commission finds that there is a non-homicide offense (Willful injury by use of a nuclear, biological, or chemical weapon of mass destruction, G.S. 14-288.22(a)) and a status offense that mandate a sentence of life imprisonment without parole, in violation of the rulings in Miller v. Alabama and Graham v. Florida.
In Graham v. Florida, the U.S. Supreme Court held that the Eighth Amendment prohibits a sentence of LWOP for a non-homicide offense committed by a juvenile under 18 years of age. North Carolina law currently mandates LWOP for the Class A felony non-homicide offense of willfully injuring another by use of a nuclear, biological, or chemical weapon of mass destruction in G.S. 14-288.22(a), as well as for Class B through E felonies (homicide and non-homicide) committed by an offender who has attained violent habitual felon status pursuant to G.S. 14-7.7 to -7.12. The Commission wishes to alert the General Assembly to these provisions and their conflict with Miller and Graham.
3. The Commission recommends that the General Assembly ask the Attorney General and the Office of the Juvenile Defender or other appropriate entity to provide opinions on the issue of whether the holding of Miller v. Alabama should be applied retroactively.
In reviewing the provisions of SB 635, members discussed the possible retroactive effect of Miller on the 89 juvenile offenders sentenced to mandatory LWOP whose cases were final prior to June 15, 2012. The Commission recognizes that the Supreme Court left the issue unresolved but did provide retroactive relief to the petitioner in Jackson v. Hobbs, the companion case to Miller. The Commission further recognizes the General Assembly’s authority to provide legislatively for the retroactive application of G.S. Chapter 15A, Article 81B, Part 2A. In order to obtain information on both sides of the issue, the Commission recommends that the General Assembly request formal opinions on retroactivity from the appropriate state agencies.