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November 9, 2011

Notable early prediction on what SCOTUS will do with juve LWOP in Jackson and Miller

As first noted here, this last Monday the Supreme Court grant cert in two cases, Miller v. Alabama and Jackson v. Hobbs (which comes from Arkansas), involving life without parole sentences imposed on two defendants convicted of murders committed when they were only 14-years-old.   In this Boston Globe commentary about the cases, which is headlined "Supreme Court should rule against JLWOP," Professor James Alan Fox has this notable prediction about these cases:

If I were a betting man, I would wager heavily that the petitioners will indeed prevail.  In earlier cases before it, the Court has ruled that executing juveniles is unconstitutional as is life without parole for non-homicide juvenile cases.  In both instances, the Court was convinced that teenagers are different from adults in terms of emotional maturity and cognitive development, making them less culpable no matter how heinous the crime. Clearly, “adult time for adult crime” is little more than a catchy slogan.

In my view, the question is not so much whether the Court will overturn the sentences given Jackson and Miller, but how broadly the ruling will apply.  The Court could limit its decision to the youngest of defendants rather than all juveniles.  It also could apply its ruling to a narrow set of circumstances, such as only felony-murder, joint ventures, or cases with compelling mitigation.

This prediction and follow-up question seem spot-on to me, and I would add the predictive observation that not just Justice Kennedy, but also Chief Justice Roberts, are likely to prove to be key swing votes determining the outcome and scope of the decisions in Jackson and Miller

A few recent related posts on Jackson and Miller and related issues:

November 9, 2011 at 04:34 PM | Permalink

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"It also could apply its ruling to a narrow set of circumstances, such as only felony-murder, joint ventures, or cases with compelling mitigation."

That could be a reason for deciding the two cases differently.

If by "felony-murder" he means cases where murder is found without intent to kill, that doesn't help Miller.

"Joint ventures" are not inherently mitigated. One party can have lesser culpability where he acts under the domination of the other or is found guilty on a "law of parties" type theory, but again that doesn't help Miller.

"Compelling mitigation" also doesn't help Miller, as there isn't any mitigation that even comes close to outweighing the brutality of this crime.

Posted by: Kent Scheidegger | Nov 9, 2011 4:48:36 PM

The fact that the perpetrator was 14 years old; had been so mistreated up to that point by a physically abusive father that he and his sibs had removed from the father's custody; that the perpetrator had repeatedly attempted suicide rather than face his father's abuse; that both the perpetrator's parents were drug addicts and had utter failed in their parental obligations -
None of that information sufficiently mitigates the crime to something less than life without parole?

Posted by: defense attorney | Nov 9, 2011 5:09:50 PM

Quick reaction: I don't see how the Court - under any circumstance - could rule JLWOP (for homicide/felony murder/mandatory) unconstitutional as applied to children 15-17 in Miller/Jackson. Every question on which the Court granted Cert. is limited to 14 and under, the very young, and both briefs speak explicitly to young adolescents as distinct/opposed to 15-17 year old teens. Not that I don't believe Graham should be extended to include homicide crimes for ALL juveniles, but I think the strength of these two cases (and the reason the court was willing to grant cert so close to Graham) derives from their limited scope (primarily the younger age category).

I am currently drafting commentary for publication - hopefully within the week - on the Georgetown Law Journal's blog, on the topic.

Posted by: Scott Hechinger | Nov 9, 2011 6:46:35 PM

I know that what I say here makes no difference but I find the whole line of reasoning behind these cases to be psychologically untrue. The problem is that minors mature at different rates. Some 14 yo behave like 18 while other 14 act like they are 10. So if one has an interest in substantial justice drawing a line at fourteen is the definition of arbitrary and capricious. I know that one can say the same thing about 18 being the age of majority but in terms of child development there is a huge difference between the rate of develop between 18-19 and between 14-15.

Scott may be entirely correct in his legal analysis. But to me such analysis is without any scientific foundation whatsoever.

Posted by: Daniel | Nov 9, 2011 7:30:50 PM

Daniel: "The problem is that minors mature at different rates. Some 14 yo behave like 18 while other 14 act like they are 10."

Unfortunately, everyone is painted with the same broad brush, which is one problem with our justice system where juve's are concerned - treating kids like adults, regardless of their actions, has become the norm. The hypocrisy is unbelievable.

Posted by: Huh? | Nov 10, 2011 2:17:02 AM

"...the Court was convinced that teenagers are different from adults in terms of emotional maturity and cognitive development, making them less culpable no matter how heinous the crime."

Again, ignoramuses are setting national policy. The adolescent brain is superior to that of the adult brain. IQ test performance peaks at 16. And the adolescent brain has the greatest ability to change behavior in response to learning from punishment.

National policy is being made by special ed students on the Supreme Court, mental cripples, who believe they are brighter than others with research and investigative abilities, such as state legislatures. The Congress needs to rein in its mad dog, the Supreme Court. It is out of control.

Posted by: Supremacy Claus | Nov 10, 2011 8:19:20 AM

SC:

If the following statement is true: "the adolescent brain has the greatest ability to change behavior in response to learning from punishment" then LWOP is not the way to go. Because if you are put in prison with no way out, other than death, what is the motivation for changing one's behavior?

Posted by: k | Nov 10, 2011 8:29:15 AM

If one goes back to age 3, most of these criminals are behaving the same way as at age 30, with perhaps greater frequency from higher energy levels and greater impulsivity. The lawyer protects these ultra-violent criminals because they generate lots of government make work. So these criminal coddling decisions are not wrongheaded out of kindness, but out of self-dealing bad faith.

Judges have self-dealt, unfair, lawless immunities from tort liability. The foreseeability of repeated violence by the coddled criminal is similar to that of planetary orbits. Tort liability is a valid substitute for violence, but not available to victims of judge carelessness. Therefore, violent self-help against judges by the families of future murder victims loosed by these decisions has full moral, intellectual, and policy justifications.

Posted by: Supremacy Claus | Nov 10, 2011 8:31:23 AM

What amazes me about these cases and Roper v. Simmons is that they all go up to SCOTUS without any record development regarding the theory that juveniles do not appreciate the criminality of their conduct because of an alleged lack of brain development. The court in Roper cited references from biased amicus briefs to support their conclusion. Put simply, all of these cases are going up to SCOTUS without any testimony. This is not the way that the court should be deciding these important cases. These cases offer the example of judicial activism in its most naked form.

Posted by: justice seeker | Nov 10, 2011 10:18:44 AM

"The hypocrisy is unbelievable."

What SCOTUS has said is that we are going to replace one social ill for another social ill because in their judgment that's the lesser of two evils. I don't have an inherent problem with that normative judgment; I might even when pressed agree with it. But I have real difficult problem with Constitutionalizing that normative judgment.

I can swallow the distinction between over 18 and under 18 simply because that is the age of majority that has been well-established for a long time. But drawing distinctions between 14 and 15 year olds and making a bight line rule about it is making stuff up unabashedly from fantasy land untethered to any long-standing cultural perception. The social argument is bogus. The fundamental purpose of a constitution is not to put a stick in the river of time, measure its depth, and proclaim that true for all eternity. Even if I agree that under 14 should not be executed I don't think that SCOTUS has the right to force that judgment down the throat of posterity. I see that as an abuse of power that not only creates disrespect for the court but ultimately undermines the rule of law in a democratic society.

Posted by: Daniel | Nov 10, 2011 11:38:32 AM

From the state court decision in Miller:

Moreover, the circumstances of Miller's crime do not indicate that his crime falls within a category of less culpable offenses. Here, Miller and his accomplice beat Cannon with a bat until he was unable to get up. After rendering Cannon unable to get up, Miller placed a sheet over Cannon's head and stated, "Cole, I am God, I've come to take your life." Miller then set Cannon's trailer on fire. Cannon, still alive, asked, "Why are y'all doing this to me?" Cannon eventually died from smoke inhalation. This intentional and horrendous crime could have, but for Miller's age, made him eligible for a sentence of death in Alabama....

Miller has already received a discount on punishment by virtue of his age. No, "abuse excuse" evidence with no connection to the crime does not outweigh the aggravation.

Posted by: Kent Scheidegger | Nov 10, 2011 1:32:53 PM

Unfortunately, Daniel even though you "can swallow the distinction between over 18 and under 18 simply because that is the age of majority that has been well-established for a long time" Congress cannot. The age drinking age in this country is 21 because Congress aided by the madd mothers holds federal highway money hostage if a particular state would lower the drinking age to say 18. Who knows how much other federal blackmail is based on Congress' idea of the age of majority. On this veterans/rememberance day recall that you can fight and die for the USA but can't have legal drink until you are 21.

Posted by: ? | Nov 10, 2011 7:49:50 PM

@?

But I actually think that illustrates my point quite well. I can understand from the perspective of administrative efficiency why society needs to set a bright line rule for voting or drinking. It's not possible to perform a psychological analysis on every 16 year old to determine if they have the maturity to vote or to drink. That doesn't mean that I agree with the specific age but I understand the needs for a bright line rule.

On the other hand, the number of teenagers that kill are so excruciatingly small that this cuts against the need for a "bright line" rule. Seriously, America needs a bight line constitutional rule to deal with the 100 out of 75 million children that kill; it just seems bizarre. If you cannot evaluate the individualized risk then upon what basis can you evaluate the social risk of such a tiny cohort. The whole risk-based approach in Graham v. Florida is so contrary to any rational understanding of the scientific disciplines that I something think The Great Claus is right when he calls SCOTUS drunken madmen.

I've said this in years past about Atkins. SCOTUS has view of mental development that frankly is medieval. When it comes to teenagers one shouldn't presume they are mature and one shouldn't presume they are immature; the law shouldn't presume anything at all. With teenagers you have to go and find out on a case by case basis. That's the only approach that's true to life.

Posted by: Daniel | Nov 11, 2011 12:36:40 AM

Whatever brain development happens, it happens to all of us. It does not account for the murders committed. These idiot Justices have no common sense. Whatever the brain differences between these murderers and normal people will not change over time. All subsequent murders committed by these murderers protected by the lawyer to generate government make work jobs are the sole responsibility of the Justices. The families of the future victims of these murderers have every justification to retaliate against these Justices because their future crimes have the foreseeability of planetary orbits. The Justices should have tort liability to the estates of future victims, as a valid substitute for violence.

Posted by: Supremacy Claus | Nov 11, 2011 9:00:31 AM

If a Justice were to be beaten up, in street justice, would most people cheer or decry that? Only lawyers and and other government dependent make work employees would be upset. These Justices are hateful, biased, anti-victim, lawyer rent seekers. They have primary responsibility for the utter failure of every self-stated goal of every law subject. Rent seeking is a synonym for armed robbery. All should be impeached for their decisions, not for any collateral gotcha corruption. Replace them with members of the Virginia jury pool, or even puking bums from the gutter for an immediate upgrade in logic, common sense, and clarity of decision writing.

Posted by: Supremacy Claus | Nov 11, 2011 9:06:30 AM

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