IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEMPIS SONGSTER : CIVIL ACTION

:

v. : NO. 04-5916

:

JEFFREY A. BEARD, DAVID :

DIGUGLIELMO, THE DISTRICT :

ATTORNEY OF PHILADELPHIA :

and THE ATTORNEY GENERAL OF :

PENNSYLVANIA :

MEMORANDUM OPINION

Savage, J. August 17, 2016

Kempis Songster, like all other juveniles in Pennsylvania who were sentenced to life

without parole after having been convicted of murder, has never been afforded a

constitutionally required individualized sentencing hearing. Now, as mandated by Miller

v. Alabama, 567 U.S. __, 132 S. Ct. 2455 (2012) and Montgomery v. Louisiana, 577 U.S.

___, 136 S. Ct. 718 (2016), he must be resentenced, taking into consideration the factors

peculiar to his youthful status at the time of the offense and original sentencing.

Granting Songster’s § 2254 habeas petition and disagreeing with the Pennsylvania

Supreme Court, we held the Miller holding that a mandatory life without parole sentence 1

for a juvenile homicide defendant is unconstitutional must be applied retroactively to cases

on collateral review. Songster v. Beard, 35 F. Supp. 3d 657, 661 (E.D. Pa. 2014). We

ordered Songster be resentenced. The Commonwealth of Pennsylvania appealed to the

Third Circuit Court of Appeals. Songster v. Beard, C.A. No. 12-3941. While the appeal

was pending, the United States Supreme Court, in Montgomery v. Louisiana, 136 S. Ct.

In Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), the Pennsylvania Supreme Court held

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that Miller did not apply retroactively.

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718 (2016), held that Miller applied retroactively to defendants whose cases were on state

collateral review. Pursuant to the parties’ agreement, the Third Circuit remanded

Songster’s case to us “for proceedings not inconsistent with Montgomery.” Songster v.

Secretary Pa. Dep’t of Corr., ____ F. App’x ___, No. 12-3941, 2016 WL 1019244 (3d Cir.

Mar. 15, 2016).

We shall grant Songster’s habeas petition and order the state court to resentence

him. The sentencing hearing must be conducted within the framework of Miller and

Montgomery. The sentencing court must adhere to the process dictated by these cases.

That means the court must consider the rationale for treating juveniles differently from

adults and then account for those differences in determining an individualized,

proportionate sentence. 

The Resentencing Framework and Requirements

The Miller court found “three significant gaps between juveniles and adults”: (1) the

juveniles’ “lack of maturity and an underdeveloped sense of responsibility”; (2) their

vulnerability “to negative influence and outside pressures” which limit “control over their

own environment,” resulting in “lack of ability to extricate themselves from horrific, crimeproducing settings”; (3) their unformed character and traits that militate against a finding

of “irretrievable depravity.” Miller, 132 S. Ct. at 2464 (citing and quoting Graham v. Florida,

560 U.S. 48, 68 (2010); Roper v. Simmons, 543 U.S. 551, 569-70 (2005)). The Miller court

relied on common sense and “developments in psychology and brain science” which

demonstrated “transient rashness, proclivity for risks, and inability to assess

consequences.” Id. at 2464-65. Based upon these factors, “children are constitutionally

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different from adults for purposes of sentencing.” Montgomery, 136 S. Ct. at 733. Thus,

juveniles must be treated differently from adults in sentencing. Miller, 132 S. Ct. at 2469. 

In recognition of these differences between juveniles and adults, the sentencing

court must consider factors unique to juveniles. These include the juvenile’s chronological

age and with it his immaturity, impulsivity, failure to appreciate the risks and consequences

of his actions; his family and home environment; the extent of his participation in the

homicide; the role of familial and peer pressure; his inability to deal with the police,

prosecutor and his own attorney; and, significantly, the possibility of rehabilitation. Id. at

2468. 

None of these factors were taken into account when Songster was sentenced. Now,

they must be.

There is no question that resentencing a defendant decades after a conviction

presents a difficult, time-consuming and fact-intensive task. Yet, it is a task that must be

undertaken if we are to remain faithful to the devotion to individualized sentencing and to

take into account, as Miller mandates, how children are different from adults.

Accounting for the factors informing choices the defendant made when he

committed the offense and the forces that influenced his immature decision-making will

vary in each case. The passage of time, fading memories, long-gone witnesses and

missing records make accurately presenting a picture of the defendant at the time of his

offense difficult. But, it is not impossible. The parties and the sentencing court can call

upon appropriate experts to opine on the defendant’s mental and psychological condition,

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and his level of maturity at the time of the offense. Indeed, expert testimony may be

necessary.

Of all the factors, the potential for reform is the most critical. The other factors may

explain how and why the juvenile acted when he committed the offense. The rehabilitation

factor tells us how he has acted more recently and helps predict how he will act in the

future. It addresses the question of whether the defendant is beyond reform and is

incorrigible.

Miller and Montgomery emphasize the importance of the potential for reform and

rehabilitation in sentencing juveniles. Thus, the sentencing hearing must give the

defendant “some meaningful opportunity to obtain release based on demonstrated maturity

and rehabilitation.” Miller, 132 S. Ct. at 2469 (quoting Graham, 130 S. Ct. at 2030).

The science has shown that juveniles have a diminished sense of culpability and a

greater potential for reform. Their immaturity is transient. Montgomery, 136 S. Ct. at 734. 

They have the capacity for positive change and development. Id. 

Post-sentencing rehabilitation takes on added significance in the resentencing

process. Unlike the other factors, it presents the most up-to-date information about the

offender’s history and characteristics. It is highly relevant to his amenability to

rehabilitation. It informs the assessment of whether the offender is permanently

incorrigible or irreparably corrupt, placing him into the “rarest of juvenile offender” status

deserving of life imprisonment. It is a factor that removes much of the guess work from

predicting whether the offender is capable of being rehabilitated.

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Since his conviction, Songster has been in prison where his conduct and

amenability to rehabilitation have been revealed to prison authorities. His conduct since

he has been incarcerated is a significant factor to be considered. Ironically, the sentencing

court will be in a better position to assess Songster’s potential for rehabilitation than a court

would have been twenty-nine years earlier at the time of his conviction. 

After considering the defendant as an individual and “as a unique study in the

human failings that sometimes mitigate, sometimes magnify, the crime and the punishment

to ensue,” the sentencing judge must impose a sentence that is proportionate. United

States v. Pepper, 131 S. Ct. 1229, 1240 (2011). Thus, “punishment should fit the offender

and not merely the crime.” Id. (quoting Williams v. New York, 337 U.S. 241, 247 (1949)).

In Pennsylvania, the sentencing judge must fix both the minimum and the maximum

of the term of imprisonment after an individualized hearing taking into consideration all

relevant facts. Routinely fixing the maximum of each sentence at life contradicts a sense 2

of proportionality and smacks of categorical uniformity. A sentencing practice that results

in every juvenile’s sentence with a maximum term of life, regardless of the minimum term,

does not reflect individualized sentencing. Placing the decision with the Parole Board, with

its limited resources and lack of sentencing expertise, is not a substitute for a judicially

imposed sentence. Passing off the ultimate decision to the Parole Board in every case

reflects an abdication of judicial responsibility and ignores the Miller mandate. 

Montgomery made clear that a life sentence is reserved for the rarest of the

permanently incorrigible or irreparably corrupt juveniles. Montgomery, 136 S. Ct. at 734.

 The minimum can not exceed one-half the maximum. 42 Pa.C.S. § 9756(b)(1). 2

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Fixing the maximum sentence at life permits the Parole Board to deny parole, effectively

working to imprison the defendant for the duration of his life. As long as the Parole Board

has the authority to refuse to grant parole, life without parole remains a possibility

regardless of the individual’s peculiar situation. If the sentencing court finds that the

defendant is not corruptible and not incorrigible, it must impose a maximum sentence less

than life to reflect that finding. It can not avoid determining whether the defendant is

irreparably corrupt and permanently incorrigible.

No one can doubt that there are defendants who should be released immediately 

after a weighing of all the factors. There are those whose rehabilitation will be beyond

question. In those instances, the sentencing court can not discharge its responsibility by

passing the decision to the Parole Board.

Defendants, some now graying adults, should not be required to suffer delay and

another proceeding before gaining the freedom they already deserve had the sentencing

judge conducted a thorough sentencing hearing applying the principles prescribed by Miller

and Montgomery. 

The Pennsylvania Dilemma

In Pennsylvania, the sentencing court is faced with a dilemma. The statute which

applied in Songster’s case has been declared unconstitutional. The new statute does not

apply to him. Therefore, there is no statutory sentencing scheme that applies to those

juveniles who were convicted of first degree murder prior to June 25, 2012. 

Only the Pennsylvania Legislature can establish the penalty for a crime. 18 Pa.C.S.

§ 107(b). After the Supreme Court declared the sentencing scheme providing a life

without parole sentence unconstitutional, the Legislature was required to enact a penalty

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statute that satisfied Miller. It did. 18 Pa.C.S. § 1102.1(a). However, the new statute

applies only to individuals convicted after June 24, 2012. The Legislature specifically noted

that the new statute did not apply retroactively. 

Because there is no statute establishing the penalty for those juveniles who were

convicted of first degree murder prior to the passage of the new penalty statute, the Parole

Board cannot act. It is powerless to parole a person serving a life sentence. 61 Pa. Stat.

§ 331.21 (1941). Additionally, the Parole Board can only grant parole after the minimum

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term of imprisonment has expired. Because there is no statutory maximum sentence, there

is no minimum term in the case of a juvenile who had been convicted of first or second

degree murder in Pennsylvania before June 25, 2012. Therefore, parole is not an option

and the Parole Board can play no role in executing the new sentence.

If parole is unavailable, the resentencing court’s only option may be a flat sentence

imposed after conducting the constitutionally mandated sentencing hearing. There is no

statutory authority for imposing a minimum sentence for a person convicted of first degree

murder. Commonwealth v. Manning, 435 A.2d 1207, 1212 n.5 (Pa. 1981); Castle v. Pa.

Bd. of Probation and Parole, 554 A.2d 625, 628 (Pa. Commw. 1989).4

It is not our role to interpret Pennsylvania law in these circumstances. We do not

attempt to usurp the authority of the state court to impose the sentence it deems

 This is the statute in effect at the time of Songster’s conviction. The current statute is 3

61 Pa.C.S. § 6137(a)(1), which is no different.

 Of course, the sentencing court may fashion a sentence that includes a period of less 4

restrictive custody to start after release from prison, such as at a reentry placement or half-way

house. These alternatives may provide the necessary time and assistance to reintegrate

offenders who have been out of the mainstream for decades.

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appropriate so long as it adheres to the constitutionally mandated requirements as set forth

in Miller and Montgomery. 

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