June 27, 2012
Will some (many?) juve murderers taken off death row by Roper now also get the benefit of Miller?
I keep thinking about the roughly 2000+ juvenile murderers now in US prisons whose LWOP sentences have been thrown into constitutional doubt by the Supreme Court's Miller Eighth Amendment ruling. I am sure it will be fascinating (and will be discussed a lot on this blog) just whether, when and how many of these defendants benefit from the Miller decision. (Many of these defendants, as this March 2012 report from The Sentencing Project highlights on page 7, are in their 40s having already served decades in prisons and a few are actually senior citizens.)
As the question in the title of this post reveals, one especially notable subset of juvenile murderers came to mind for me today: the roughly six dozen juvenile murderers who had been sentenced to death and were on death row in 2005 when the Supreme Court in Roper declared juvenile murderers categorically ineligible for the sentence of death. The Death Penalty Information Center has this webpage providing this overview of the juve murderers who were on death row at the time of Roper:
As of December 31, 2004, 71 persons were on death row for juvenile crimes.... Although all were ages 16 or 17 at the time of their crimes, their current ages range from 18 to 43. They were under death sentences in 12 different states and had been on death row from 4 months to 24 years. Texas had by far the largest death row for juvenile offenders, holding 29 (40%) of the national total....
All of the juvenile offenders who were on death row are male... Over three-quarters of these cases involved 17 year old offenders, and two-thirds of them were offenders of color. In contrast, 81% of the victims were adults. Over two-thirds of the victims are white, and half are females.
The DPIC's case summaries of all the juve capital defendants and their crimes does not include any information about when or how these defendants were resentenced after Roper. For a variety of reasons, I doubt that all these juvenile murderers who got off death row due to Roper were given mandatory LWOP sentences. But I also would guess that some were, and thus wonder if some of these defendants might get (another) resentencing after Miller and perhaps now get even a lower sentence.
Recent posts on Miller ruling and its potential impact:
- All juvenile defendants get narrow procedural Eighth Amendment win in Miller
- Issue-spotting the mess sure to follow Miller's narrow (procedural?) ruling
- Guest-post from Professor Mark Osler: "Miller on the ground in Michigan"
- Basic mandatory juve LWOP head-count in light of Miller
- Data and resources to gear up for the coming Miller meshugas
UPDATE: I have just seen this AP article from Mississippi discussing this group of offenders and a state-based claim that once-capital defendants do not get now the benefit of Miller:
Mississippi corrections officials initially said 56 inmates were in custody who were sentenced when they were 18 or younger, but said Tuesday some inmates had multiple counts and the actual number is 46 serving capital murder sentences.
"It is our position that it will not affect those capital murder cases where the death penalty was sought and the jury returned a sentence of life without parole," Hood said in a statement Tuesday. "This is because the jury at that separate sentencing hearing took into consideration those factors that the United States Supreme Court held must be considered before a life without parole sentence can be imposed.
In cases that are pending on direct appeal, where a life without parole sentence was imposed, Hood said his office will file a motion for resentencing based on the Supreme Court ruling. "Where juvenile defendants who were previously sentenced to life without parole and their sentences have already been affirmed, we expect they will file a motion for post-conviction relief based on this intervening decision," Hood said.
At any resentencing, Hood said the trial judge "may consider those factors identified by the Supreme Court and then may resentence them to life without parole or life, which means that they will be eligible for parole at age 65."
June 27, 2012 at 10:18 PM | Permalink
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When Roper abolished the death penalty for juveniles, Texas' law allowing LWOP (for juvies and adults) had only just taken effect Sept. 1, 2005. The Governor commuted their sentences not to LWOP, which didn't exist as a sentencing option when their crimes were committed, but to life WITH possibility of parole, which in TX means they're parole eligible after 30 years.
So in Texas, at least, since you said we'd had the largest group affected by Roper, there's zero crossover between youth affected by Roper and Miller. Your mileage may vary in states that already had LWOP on the books before 2005.
Posted by: Gritsforbreakfast | Jun 28, 2012 7:03:53 AM
Do you believe anyone will get a re-sentencing after Miller? This new rule doesn't seem to fit either of the Teague exceptions.
Posted by: Guest | Jun 28, 2012 9:13:49 AM
I think, Guest, that some (many?) STATE courts may in fact be somewhat eager (as a matter of state constitutional law or state procedural law) to give effect to Miller to help long-ago sentences juve murderers through resentencings even if it is decided that Teague does not require federal courts to give Miller retroactive effect. I also think this issue will be litigated in a lot of different settings with possibly lots of different outcomes.
Posted by: Doug B. | Jun 28, 2012 9:28:29 AM
This is the level of reasoning to expect from State AGs, at least in the death belt states. It is similar to the kinds of arguments made to try to evade Graham (for example, in my limited experience, I've seen multiple pleadings asserting that the availability of Governor's clemency made a sentence not-LWOP, despite that argument being *specifically rejected* in Graham). I get that there is an irony to Roper-reliefees being eligible under Miller (given Roper's reference to LWOP as a sufficient alternative). But to say that Miller's requirement is satisfied b/c the jury considered mitigation, despite having *no authority to impose a less-than-LWOP sentence* is ridiculous and essentially interposition and a borderline unethical refusal to abide by the supremacy clause (assuming that these folks have all taken an oath to uphold both the state and federal constitutions).
Posted by: Anon | Jun 28, 2012 11:56:47 AM
Personally, I hope there will be lots of re-sentencing hearings, the better to put on display what's been the truth all along: It wasn't just that those opposed to the DP for juveniles wanted no executions, and it's not just that those opposed to LWOP for juveniles wanted no life-long sentences.
It's that they oppose any serious punishment of any kind for juvenile killers. Brain development, dontcha know.
One other benefit of re-sentencings is that they will pull the curtain back on what, specifically, these poor youngsters have done. That the ideological defense bar is incapable of revulsion at sadistic murder doesn't mean that a similar disability afflicts juries.
Posted by: Bill Otis | Jun 28, 2012 4:22:03 PM