                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 16a0112p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 HENRY HILL; JEMAL TIPTON; DAMION TODD; BOBBY           ┐
 HINES; KEVIN BOYD; BOSIE SMITH; JENNIFER               │
 PRUITT; MATTHEW BENTLEY; KEITH MAXEY;                  │
 GIOVANNI CASPER; JEAN CARLOS CINTRON; NICOLE           │
 DUPURE; DONTEZ TILLMAN,                                 >      No. 13-2661/2705
                                                         │
             Plaintiffs-Appellees/Cross-Appellants,      │
                                                         │
                                                         │
         v.
                                                         │
                                                         │
 RICK SNYDER, in his official capacity as Governor │
 of the State of Michigan; DANIEL H. HEYNS, in his │
 official capacity as Director, Michigan Department │
 of Corrections; THOMAS R. COMBS, in his official │
 capacity as Chair, Michigan Parole Board, jointly │
 and severally,                                          │
                                                         │
             Defendants-Appellants/Cross-Appellees.
                                                         │
                                                         ┘
                          Appeal from the United States District Court
                       for the Eastern District of Michigan at Ann Arbor.
                   No. 5:10-cv-14568—John Corbett O’Meara, District Judge.

                                  Argued: January 21, 2015

                              Decided and Filed: May 11, 2016

                   Before: MERRITT, STRANCH, and DONALD, Circuit Judges.

                                     _________________

                                         COUNSEL

ARGUED: B. Eric Restuccia, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellants/Cross-Appellees. Deborah LaBelle, Ann Arbor, Michigan,
for Appellees/Cross-Appellants. ON BRIEF: Margaret A. Nelson, Joseph T. Froehlich,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellants/Cross-Appellees. Deborah LaBelle, Ann Arbor, Michigan, Brandon J. Buskey,
Steven M. Watt, Ezekiel R. Edwards, AMERICAN CIVIL LIBERTIES UNION



                                               1
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FOUNDATION, New York, New York, Daniel S. Korobkin, Michael J. Steinberg, AMERICAN
CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Appellees/Cross-
Appellants.
                                      _________________

                                            OPINION
                                      _________________

       JANE B. STRANCH, Circuit Judge. This long-running case returns us to the difficult
topic of juvenile crime and punishment. Our return, however, is to a new legal landscape, one
defined by the Supreme Court’s developing jurisprudence recognizing that the unique
characteristics of youth matter in determining the propriety of their punishment. This case began
when Michigan charged and tried the named plaintiffs as adults for acts they committed while
under the age of 18. Each received a conviction for first-degree murder and a mandatory
sentence of life in prison. Michigan laws in place at the time rendered anyone convicted of first-
degree murder ineligible for parole, meaning that the plaintiffs in this case effectively received
mandatory sentences of life in prison without the possibility of parole for acts they committed as
children.

       Plaintiffs filed suit in federal district court in 2010 challenging, among other things, the
constitutionality of the Michigan statutory scheme that barred them from parole eligibility. Since
that time, at least three important legal events have come to pass. First, the Supreme Court held
in Miller v. Alabama, 132 S. Ct. 2455 (2012), “that mandatory life without parole for those under
the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel
and unusual punishments.’” Id. at 2460. Second, Michigan amended its juvenile offender laws
in light of Miller, but made some of those changes contingent upon either the Michigan Supreme
Court or the United States Supreme Court announcing that Miller’s holding applied retroactively.
See Mich. Comp. Laws Ann. §§ 769.25, 769.25a (2014). And, third, the United States Supreme
Court recently held in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that Miller’s prohibition
on mandatory life without parole for juvenile offenders is indeed retroactive.

       The district court wisely (and presciently) reached the conclusion that Miller should
apply retroactively when it ruled on the parties’ cross-motions for summary judgment in 2013.
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That conclusion also drove the district court’s issuance of an injunctive order against defendants
requiring compliance with Miller. In light of the legal changes described above, however, and
for the reasons that follow, we VACATE the challenged district court orders and REMAND for
the district court to address these issues under the legal landscape established by Montgomery v.
Louisiana, Miller v. Alabama, and this opinion.

                                       I. BACKGROUND

       A description of the underlying litigation—and of the intervening changes in federal and
state law—is necessary to understand the current legal landscape in this case and our reasons for
remanding to the district court.

       A. Pleadings & Motion to Dismiss

       In 2010, nine original plaintiffs—all of whom were juvenile offenders who had been
convicted of first-degree murder under section 316 of Michigan’s penal code—filed the instant
lawsuit against Michigan state officials pursuant to 42 U.S.C. § 1983. Plaintiffs alleged that
certain “Michigan laws, policies and practices” relevant to their sentences “violate[d] the Eighth
and Fourteenth Amendments of the United States Constitution and customary international law.”
Specifically, plaintiffs pointed to penal code section 316, which mandates a life sentence for
anyone convicted of first-degree murder, see Mich. Comp. Laws Ann. § 750.316(1) (2010) (“A
person who commits any of the following is guilty of first degree murder and shall be punished
by imprisonment for life. . . .”), and section 234 of the Michigan corrections code, which
excludes those convicted under penal code section 316 from the Michigan Parole Board’s
jurisdiction, rendering them ineligible for parole as a matter of state law, see Mich. Comp. Laws
Ann. § 791.234(6) (“A prisoner sentenced to imprisonment for life for [first degree murder in
violation of Michigan penal code section 316] is not eligible for parole[.]”).

       Defendants filed an answer followed by a motion to dismiss, arguing that plaintiffs’
claims were procedurally barred and that they had “fail[ed] to state a claim under the Eighth
Amendment’s prohibition against cruel and unusual punishment, the Fourteenth Amendment’s
due process guarantees, [or] customary international law.” The district court granted in part and
denied in part defendants’ motion on July 15, 2011, holding that the applicable statutes of
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limitation barred all but one of the nine named plaintiffs—Keith Maxey—from seeking relief,
and that Maxey had stated a claim for Eighth Amendment violations but not for violations of the
Fourteenth Amendment or international law. Accordingly, the district court dismissed all of the
plaintiffs’ claims except for Maxey’s Eighth Amendment claim. Plaintiffs filed an amended
complaint in February 2012 that, as relevant here, added four new plaintiffs: Giovanni Casper,
Jean Carlos Cintron, Nicole Dupure, and Dontez Tillman. All four, like Maxey, were juvenile
offenders convicted of first-degree murder serving mandatory life sentences while ineligible for
parole, and all four joined Maxey’s Eighth Amendment challenge to Michigan’s statutory
scheme.

       B. Miller v. Alabama

       On June 25, 2012, less than six months after plaintiffs filed their amended complaint, the
United States Supreme Court decided Miller v. Alabama and the landscape of this litigation
shifted, recognizing the constitutional concerns raised by plaintiffs. In Miller, two 14-year-old
Alabama offenders challenged the constitutionality of their mandatory sentences to life
imprisonment without the possibility of parole, and the Supreme Court held for the first time
“that the Eighth Amendment[’s prohibition on cruel and unusual punishment] forbids a
sentencing scheme that mandates life in prison without possibility of parole for juvenile
offenders.” 132 S. Ct. at 2469. The Court explained that “[b]y making youth (and all that
accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses
too great a risk of disproportionate punishment.” Id. The Court noted, moreover, that while
sentencing courts were not completely foreclosed from sentencing juvenile offenders to life
without parole—so long as they first considered “children’s diminished culpability and
heightened capacity for change” and other attendant characteristics of youth, id.—such a
sentence would likely only be appropriate for “the rare juvenile offender whose crime reflects
irreparable corruption.” Id. (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)).

       C. Cross-Motions for Summary Judgment & Subsequent Orders

       In August 2012, two months after the Supreme Court’s decision in Miller, the parties in
the instant case filed cross-motions for summary judgment. Plaintiffs, relying on Miller, argued
that section 234(6) of Michigan’s corrections code—which barred plaintiffs from eligibility for
Nos. 13-2661/2705                   Hill, et al. v. Snyder, et al.                  Page 5


parole—was unconstitutional as applied to juveniles and asked the court for declaratory and
injunctive relief that would require Michigan to provide them with a meaningful and realistic
opportunity for release. Defendants, for their part, insisted that Miller did not apply retroactively
to plaintiffs and, even if it did, that the district court lacked authority to dictate the sentencing
and parole procedures of the State.        The district court granted-in-part and denied-in-part
plaintiffs’ motion and denied defendants’ cross-motion in an opinion issued on January 30, 2013.
Specifically, the court held that: (1) Miller applied to plaintiffs; (2) Michigan’s statute barring
plaintiffs from parole eligibility was unconstitutional under Miller and the Eighth Amendment;
and (3) plaintiffs were entitled to some form of equitable relief from the challenged parole
statute. In order to determine what form of relief was most appropriate, the court directed the
parties to provide supplemental briefing addressing “the procedures that [the] court may
equitably put in place to ensure that Plaintiffs receive a fair and meaningful opportunity to
demonstrate that they are appropriate candidates for parole.”

       It appears that defendants interpreted the district court’s ruling to apply only to the named
plaintiffs in the instant action and took the position that the State remained free to enforce the
challenged parole statute against any other juvenile offenders convicted of first-degree murder.
In response to plaintiffs’ motion for clarification, the district court issued an order on
August 12, 2013, stating that its January ruling declaring section 234(6) of the Michigan
corrections code unconstitutional was intended to apply to “every person convicted of first-
degree murder in the State of Michigan as a juvenile . . . who was sentenced to life in prison”
without the possibility of parole, not just the named plaintiffs in this case. The court also
addressed a motion for class certification that plaintiffs had filed as an alternative to their motion
for clarification; in so doing, the district court relied on precedent from the Ninth and Second
Circuits to support its conclusion that “[p]laintiffs are not required to bring a class action to
obtain declaratory or injunctive relief applicable to other similarly situated individuals.” The
court therefore denied plaintiffs’ motion for class certification as moot in light of its ruling on the
scope of its January order.

       In November 2013, the district court issued an injunctive order that lies at the heart of the
parties’ dispute on appeal. Plaintiffs alleged that defendants were continuing to enforce the
Nos. 13-2661/2705                   Hill, et al. v. Snyder, et al.                  Page 6


challenged parole statue against them and were depriving plaintiffs of access to rehabilitation
programs based on their purported ineligibility for parole. The district court held a status
conference to address plaintiffs’ concerns and afterward, on November 26, 2013, the court issued
an “Order Requiring Immediate Compliance with Miller” directing defendants to take certain
specified actions related to considering all juvenile offenders sentenced to mandatory life in
prison for parole.

       Cross-Appeals and Stays

       Defendants filed a notice of appeal on December 5, 2013. They also asked the district
court to stay its injunctive order pending appeal, but the district court denied their request.
Something of a procedural morass followed, as plaintiffs moved to dismiss defendants’ appeal
for lack of jurisdiction, defendants moved this court for a stay of the district court’s injunctive
order, and plaintiffs filed a protective cross-appeal. A three-judge panel of this court denied
plaintiffs’ motion to dismiss and granted defendants’ motion for a stay. Defendants then moved
to dismiss plaintiffs’ cross-appeal for lack of jurisdiction, and that motion is still pending.

       Changes to Michigan Law

       In 2014, while the parties continued to litigate this appeal, the Michigan legislature
passed Public Act No. 22 in response to the Supreme Court’s holding in Miller that mandatory
life without parole for juvenile offenders is unconstitutional. See 2014 Mich. Pub. Act 22.
Specifically, the legislature created two new statutory provisions regarding juvenile offender
sentencing: sections 25 and 25a of chapter IX of the Michigan code of criminal procedure. See
Mich. Comp. Laws Ann. §§ 769.25, 769.25a (2014). Section 25 applies to juvenile offenders
who committed certain enumerated offenses—including first-degree murder under section 316 of
the penal code which, as explained, carries a mandatory life sentence—and who were convicted
after Miller or whose cases were still pending or subject to appeal as of June 25, 2012, the date
Miller was decided. Section 25 requires prosecutors to file motions if they intend to seek new
sentences of life without parole for these juvenile offenders and provides for court hearings to
determine whether or not such a sentence is appropriate under Miller in each individual’s case.
See Mich. Comp. Laws Ann. § 769.25(6) (“If the prosecuting attorney files a motion under
subsection (2), the court shall conduct a hearing on the motion as part of the sentencing process.
Nos. 13-2661/2705                   Hill, et al. v. Snyder, et al.               Page 7


At the hearing, the trial court shall consider the factors listed in Miller v. Alabama . . . and may
consider any other criteria relevant to its decision, including the individual’s record while
incarcerated.”). If, however, the prosecution does not file a motion within the designated time
period, “the court shall sentence the [juvenile offender] to a term of years . . . for which the
maximum term shall be not less than 60 years and the minimum term shall be not less than
25 years or more than 40 years.” Mich. Comp. Laws Ann. §§ 769.25(4), (9).

       Section 25a, meanwhile, clarifies that “the procedures set forth in section 25 . . . do not
apply to any case that is final for purposes of appeal on or before June 24, 2012”—i.e., any
conviction that was final before Miller. Mich. Comp. Laws Ann. § 769.25a(1). Instead, and as
relevant here, section 25a states that:

       If the state supreme court or the United States supreme court finds that the
       decision of the United States supreme court in Miller v. Alabama . . . applies
       retroactively to all defendants who were under the age of 18 at the time of their
       crimes, and that decision is final for appellate purposes, the determination of
       whether a sentence of imprisonment for a violation set forth in section 25(2) of
       this chapter [including first-degree murder under section 316 of the penal code]
       shall be imprisonment for life without parole eligibility or a term of years as set
       forth in section 25(9) of this chapter shall be made by the sentencing judge or his
       or her successor as provided in this section.

Mich. Comp. Laws Ann. § 769.25a(2).            Section 25a goes on to provide time frames for
resentencing this category of juvenile offenders. Prosecuting attorneys would have “180 days
after the date the supreme court’s decision becomes final” to “file motions for resentencing in all
cases in which the prosecuting attorney will be requesting the court to impose a sentence of
imprisonment for life without the possibility of parole.”             Mich. Comp. Laws Ann.
§ 769.25a(4)(b). If such a motion were filed, “[a] hearing on the motion shall be conducted as
provided in section 25[.]” Id. In the absence of such a motion, however, section 25a provides
that “the court shall sentence the [juvenile offender] to a term of imprisonment for which the
maximum term shall be 60 years and the minimum term shall be not less than 25 years or more
than 40 years.” Mich. Comp. Laws Ann. § 769.25a(4)(c).

       In August 2015, the Michigan Court of Appeals heard a challenge to section 25 and
declared the new state statutory scheme unconstitutional in part. See People v. Skinner, ---
Nos. 13-2661/2705                  Hill, et al. v. Snyder, et al.                Page 8


N.W.2d ---, No. 317892, 2015 WL 4945986, at *12–20 (Mich. Ct. App. Aug. 20, 2015). In
particular, the court held that in order to resentence a juvenile offender “to life without parole,
. . . a jury” and not a judge “must make findings on the Miller factors as codified at
MCL 769.25(6) to determine beyond a reasonable doubt whether the juvenile’s crime reflects
irreparable corruption.” Id. at *19. Skinner was not appealed to the Michigan Supreme Court,
and the State of Michigan has conceded in subsequent litigation that Skinner is binding authority.
See People v. Zuniga, No. 324157, 2016 WL 620137, at *2 (Mich. Ct. App. Feb. 16, 2016).

       Montgomery v. Louisiana

       Returning to the instant litigation, this court issued an order on October 29, 2015 holding
this case in abeyance pending the Supreme Court’s decision in Montgomery v. Louisiana. We
explained that “[t]he Supreme Court recently heard oral argument in Montgomery v. Louisiana
. . . concerning whether Miller v. Alabama . . . adopts a new substantive rule that applies
retroactively on collateral review to juveniles whose convictions were final when Miller was
decided” and, consequently, that Montgomery might “have a significant effect on these appeals”
as many of the named plaintiffs’ convictions were final before Miller.

       The Supreme Court issued its opinion in Montgomery v. Louisiana, 136 S. Ct. 718
(2016), in late January 2016. Like the district court in the instant case, the Supreme Court
concluded that Miller’s constitutional holding is indeed retroactive:

Because Miller determined that sentencing a child to life without parole is excessive for all but
the rare juvenile offender whose crime reflects irreparable corruption, it rendered life without
parole an unconstitutional penalty for a class of defendants because of their status—that is,
juvenile offenders whose crimes reflect the transient immaturity of youth. As a result, Miller
announced a substantive rule of constitutional law. Like other substantive rules, Miller is
retroactive because it necessarily carr[ies] a significant risk that a defendant—here, the vast
majority of juvenile offenders—faces a punishment that the law cannot impose upon him.

Montgomery, 136 S. Ct. at 734 (alteration in original) (citations omitted). The Supreme Court
further explained that “[a] conviction or sentence imposed in violation of a substantive rule is not
just erroneous but contrary to law and, as a result, void.” Id. at 731. Thus, the Court observed,
Nos. 13-2661/2705                   Hill, et al. v. Snyder, et al.                 Page 9


“[i]t follows, as a general principle, that a court has no authority to leave in place a conviction or
sentence that violates a substantive rule, regardless of whether the conviction or sentence became
final before the rule was announced.” Id. Put another way, “[t]here is no grandfather clause that
permits States to enforce punishments the Constitution forbids.” Id.

       In Montgomery, the Supreme Court once again recognized “that ‘children are
constitutionally different from adults for purposes of sentencing.’” Id. at 733 (quoting Miller,
132 S. Ct. at 2464). The Court also expressed concern that “Miller’s conclusion that the
sentence of life without parole is disproportionate for the vast majority of juvenile offenders
raises a grave risk that many are being held in violation of the Constitution.” Id. at 736.
Regarding remedies for these likely widespread violations, the Supreme Court noted that “[a]
State may remedy a Miller violation by permitting juvenile homicide offenders to be considered
for parole, rather than by resentencing them.” Id.; see also id. (“Giving Miller retroactive effect,
moreover, does not require States to relitigate sentences, let alone convictions, in every case
where a juvenile offender received mandatory life without parole.”).             “Extending parole
eligibility to juvenile offenders does not impose an onerous burden on the States,” the Court
explained, “nor does it disturb the finality of state convictions.” Id. “Those prisoners who have
shown an inability to reform will continue to serve life sentences. The opportunity for release
will be afforded to those who demonstrate the truth of Miller’s central intuition—that children
who commit even heinous crimes are capable of change.” Id. Indeed, the Court concluded,
juvenile offenders sentenced to mandatory life without parole “must be given the opportunity to
show their crime did not reflect irreparable corruption; and if it did not, their hope for some years
of life outside prison walls must be restored.” Id. at 736–37.

                                           DISCUSSION
       Following the Supreme Court’s issuance of Montgomery, both parties filed letters with
this court addressing the impact of Montgomery on this case.               Defendants suggest that
Montgomery’s holding on Miller’s retroactivity triggers section 25a, meaning that “all of the
named plaintiffs here, as well as all juvenile offenders convicted of first-degree murder whose
cases were final in Michigan at the time of Miller, will be subject to resentencing” in accordance
with that statute. Consequently, defendants insist that “plaintiffs’ federal case is now moot and
Nos. 13-2661/2705                  Hill, et al. v. Snyder, et al.                Page 10


should be dismissed.” Plaintiffs disagree, arguing that Michigan’s legislative fix “is not a
facially sufficient remedy” for what everyone appears to agree are Miller violations in the wake
of Montgomery, and asserting that “this Court should affirm and remand for the [district] court to
enforce its order requiring the state to propose a mechanism that provides a meaningful
opportunity for release for youth serving mandatory life without parole sentences in Michigan.”
It is worth noting that the parties appear to agree on at least one thing post Montgomery:
plaintiffs’ mandatory sentences to life in prison with no hope of parole cannot stand. See
Montgomery, 136 S. Ct. at 731 (“[A] court has no authority to leave in place a conviction or
sentence that violates a substantive rule [of constitutional law], regardless of whether conviction
or sentence became final before the rule was announced.”).

       The district court has not yet had an opportunity to consider the legislative changes
wrought by Michigan Public Act No. 22—portions of which the Michigan courts have already
declared unconstitutional, see Skinner, 2015 WL 4945986 at *12–20—or the Supreme Court’s
guidance in Montgomery. Nor has it been able to address whether its injunctive order might co-
exist with these authorities or, if not, how the order might be revised to do so. Moreover, even if
defendants were correct that these changes in the legal landscape could be said to effectively
moot plaintiffs’ claims regarding section 234(6) of Michigan’s correctional code, “in instances
where [a case’s] mootness is attributable to a change in the legal framework governing the case,
and where the plaintiff may have some residual claim under the new framework that was
understandably not asserted previously,” the Supreme Court has counseled that the best “practice
is to vacate the judgment and remand for further proceedings in which the parties may, if
necessary, amend their pleadings or develop the record more fully.” Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 482 (1990). We find this the proper procedure to follow.

       After careful consideration of the substantive issues at stake, the current procedural
posture of this case, and the significant intervening legal changes described above, we vacate the
district court’s challenged orders and remand with instructions to provide the parties leave to
amend their pleadings and to supplement the record as needed, particularly with respect to the
current statutory scheme governing plaintiffs’ sentences and eligibility for parole. We vacate the
court’s prior orders to enable the court to address remedies in the context of the new legal
Nos. 13-2661/2705                   Hill, et al. v. Snyder, et al.                 Page 11


landscape and because it is necessary in light of our instructions to allow the parties leave to
amend the pleadings. If, for example, plaintiffs file a second amended complaint directly
challenging Michigan’s 2014 legislative fixes, there may be no question that the eight plaintiffs
the district court previously dismissed are entitled to pursue such a claim.

       We also recognize that there is some confusion regarding this circuit’s precedent on
whether or not class certification is required to extend declaratory and injunctive relief to non-
plaintiffs. In Craft v. Memphis Light, Gas & Water Division, 534 F.2d 684 (6th Cir. 1976), we
affirmed the district court’s denial of a motion for class certification, stating that a ruling on the
individual plaintiff’s claim for relief would “‘accrue to the benefit of others similarly situated’
and, consequently . . . ‘[n]o useful purpose would be served by permitting this case to proceed as
a class action[.]’” Id. at 686 (citation omitted). We distinguished Craft, however, in Ball v.
Wagers, 795 F.2d 579 (6th Cir. 1986).          There we reversed a denial of class certification,
explaining that “denying class certification after [an] extensive, unexplained delay in this case,
which ultimately led to the mooting of the named plaintiffs’ claims, renders the [Craft] ‘lack of
need’ rationale relied upon by the magistrate and the district court unpersuasive.” Ball, 795 F.2d
at 581. We further noted that the claims presented in Ball “may be the kind that could evade
judicial review absent a class certification[,]” and we remanded with instructions for the district
court to reconsider whether or not class certification was appropriate.          Id.   In Tesmer v.
Granholm, 333 F.3d 683 (6th Cir. 2003) (en banc), we seemingly distanced ourselves from Craft
yet again, holding that “[d]eclaratory judgment is effective as to only the plaintiffs who obtained
it” and that “[w]hen a class has not been certified, the only interests of concern are those of the
named plaintiffs.” Id. at 701. But the Supreme Court reversed Tesmer for lack of standing, see
Kowalski v. Tesmer, 543 U.S. 125, 134 (2004), and our circuit has yet to revisit the subject.
Based on our class certification jurisprudence subsequent to Craft, on remand the district court
should reconsider whether class certification may indeed be necessary and appropriate in this
case, particularly in light of defendants’ apparent history of refusing to apply the court’s orders
to anyone other than the named plaintiffs.
Nos. 13-2661/2705                Hill, et al. v. Snyder, et al.             Page 12


                                       CONCLUSION
       Montgomery and Miller make clear that courts may not impose mandatory life sentences
without parole on juvenile offenders regardless of when an offender’s conviction became final.
For the foregoing reasons, we VACATE the district court’s orders and REMAND with
instructions to grant the parties leave to amend the pleadings and supplement the record.
Defendants’ motion to dismiss plaintiffs’ cross-appeal is DENIED AS MOOT.
