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June 26, 2012

Washington struggling with the high costs of keep defender case loads from being too high

This interesting new AP article from Washington, headlined "Limit on public-defenders' caseloads puts strain on cities," reports on the practical challenges confronting a state that is trying reasonably to limit caseload for public defenders. Here are the details:

Officials in cities across Washington state say that even as they're trying to find ways to cut budgets, new guidelines from the state Supreme Court will force them to cough up more money for people who are accused of crimes but can't afford their own attorneys.

By a 7-2 vote this month, the justices adopted new case limits for public defenders — lawyers appointed to represent poor defendants. The standards say that beginning in September 2013, public defenders should not handle more than 300 to 400 misdemeanor cases or 150 felony cases a year, limits designed to make sure the lawyers have enough time to devote to their clients and ensure those defendants are getting their constitutional right to an attorney.

The caseloads have been especially high in city courts that handle misdemeanors, with public defenders sometimes taking on 1,000 or more cases annually. Now, city officials busy preparing next year's budgets basically have two options: Provide more money to law firms that represent poor defendants or charge fewer people with crimes....

Some city attorneys and public defenders share another concern that instead of paying more for public defense, cities will grant contracts to less experienced, cheaper lawyers or those willing to certify that they're meeting the standards even when they're not.

The state Bar Association had previously set similar caseload limits, but they were little enforced. The Supreme Court's adoption gives them new teeth, and requires lawyers who represent indigent clients to certify quarterly that they're meeting the standards....

The high court acknowledged the financial burden the ruling would place on cities and counties but said the move is essential in guaranteeing that everyone has adequate legal representation. The workloads of public defenders have long been an issue. The cities of Burlington and Mount Vernon are being sued by the American Civil Liberties Union of Washington, which says the two lawyers hired to handle misdemeanor cases took on more than 2,100 cases in 2010 alone, and rarely if ever met with their clients or investigated cases.

U.S. District Judge Robert Lasnik said evidence suggests that the appointment of public defenders in those cities is "little more than a sham." The cities deny that the plaintiffs' rights were violated and said that even if the public defenders were incompetent or overworked, the cities aren't liable....

"If a case is important enough to prosecute, it's important enough to defend, and the Constitution says they have to be defended competently," says Bob Boruchowitz, director of the Defender Initiative at Seattle University Law School. "It's long past time for everybody in the criminal justice system to stop tolerating the unfair treatment of poor people."...

In Yakima, City Attorney Jeff Cutter is thinking about changing the way his office files charges. Instead of having police officers charge people with misdemeanors, the officers would send their case files to the City Attorney's Office, which would then determine which cases should be prosecuted. That would cut the number of cases being filed overall, but could increase the work for his prosecutors.

June 26, 2012 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Data and resources to gear up for the coming Miller meshugas

Map-bugPerhaps because the Supreme Court's Miller ruling yesterday is already making me a bit meshuge, I was inspired to reach into my small knowledge of Yiddish to come us with the right word, meshugas, to describe that I think we will be seeing in lower courts as they try to give effective to Miller's holding and implications for past, present and future cases.   As I have explained in this post for general purposes, and as Mark Osler has added in this post for Michigan, and as Scott Henson has observed in this post at Grits for Texas, and as Tamar Birckhead has done in this big summary post at JJB, there are a lot of question that are sure to confront and challenge lower courts (and advocates) in the wake of Miller.  Here I want to spotlight point to existing resources to help observers, lower courts and advocates find their way through.

1.  The Campaign for the Fair Sentencing of Youth appears at this link to have the most up-to-date and user-friendly resource here for figuring out what states have how many juvenile offenders currently serving LWOP sentences.   And the intro to a helpful national map begins with this introduction: "[T]welve states either forbid JLWOP or presently have no such juvenile offenders that we know of serving that sentence. The states that currently prohibit JLWOP are: Alaska, Colorado, Kansas, Kentucky, Montana, New Mexico, and Oregon. The states where there are no people known to be serving JLWOP are: Maine, New Jersey, New York, Vermont, and West Virginia. There is also no one known to be serving a JLWOP sentence in the District of Columbia. The federal government does sentence youth to LWOP — there are currently at least 36 people serving JLWOP in federal prison."

2. Human Right Watch’s US Program has lots of reports and data on juve LWOP in the United States, much of which is collected on this webpage.

3.  The University of San Francisco Center for Law and Global Justice has a lot of resources collected via its Project to Juvenile Life Without Parole, including a webpage providing a Resource Guide and Brief Bank and links to Lawyers and Advocacy groups in individual states.

I am sure there are many more good resources now and soon to be developed to help track and assess the coming Miller meshugas.  I urge readers to add links to helpful sites and materials in the comments below and/or to send them my way for updated posting.

June 26, 2012 in Assessing Miller and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (4) | TrackBack

Questioning forceful (but suspect) claims by the varied Miller dissents: the Roberts/textualism numbers

Though I still have tons of questions about what the new Eighth Amendment SCOTUS Miller ruling will come to mean (opinion here, basic questions here and here and here), I now have some first thoughts on the three intriguing Miller dissents.  Though covering some overlapping grounds (and overlapping votes), I think it is fair to short-hand these dissents using their authors and main themes: (1) the Roberts/textualism dissent, (2) the Thomas/originalism dissent, and (3) the Alito/legislative judgment dissent. 

Notably, the relatively short Miller majority opinion (perhaps wisely) does not very deeply engage with all the points made in the dissenting opinions, but there is a lot of interest and force in these dissents.  However, though seemingly forceful in various ways, I see a suspect judgment or assertion or conclusion at the heart of each dissent.  In a series of three posts, I hope to explain briefly the suspect foundation in each of these dissents.  I will start here by questioning number-crunching in the Roberts/textualism dissent in Miller.

Chief Justice Roberts' lead Miller dissent, which was signed by all the dissenters, rests on a forceful textual point set forth in these two sentences at the end of first paragraph: "The pertinent law here is the Eighth Amendment to the Constitution, which prohibits 'cruel and unusual punishments.'  Today, the Court invokes that Amendment to ban a punishment that the Court does not itself characterize as unusual, and that could not plausibly be described as such."  Though I see much force and wisdom in the Chief's concern for the term "unusual" in any interpretion of the Eighth Amendment, I think a careful and sober assessment of the data makes it quite "plausible" to characterize the sentences at issue in Miller as unusual.

First, if we focus just on Kuntrell Jackson's case before SCOTUS, it seems quite "unusual" for a teenage accomplice to a felony with no clear intent to kill and no significant criminal history to be subject to a mandatory LWOP sentence.  Though data here can be slippery, there are probably hundreds (if not thousands) of teens each year who are accomplices to felonies in which someone is killed and I suspect very few of these teenage felony-murder accomplices in any given year get a mandatory LWOP.  (Many of the teen accomplices without a criminal history, I would bet, are not even arrested or charged with murder, let alone brought into the adult system and subject to a mandatory LWOP sentence.) 

There has been, roughly speaking, about 40 years of modern LWOP sentencing, which in turn has resulted in a total of about 2500 juve killers with LWOP sentences (of which about 2000 were imposed manditorily).  I would be surprised if more than 20 of these juve LWOPers are just teenage felony-murder accomplices without a significant criminal history like Kuntrell Jackson.  Because one could (very conservatively) guess that there have been 20,000 teenage felony-murder accomplices over the last four decades, Kuntrell Jackson's sentence is fairly considered a 1 in 1000 event.  It seems quite appropriate (and surely "plausible") to describe such a rare event as "unusual." 

Of course, ever the careful and effectively dissenter, the Chief Justice does not really take on whether Kuntrell Jackson's sentence is "unusual" (and his Graham concurrence leads me to think he might have been inclined to join a very narrow opinion that just struck down Jackson's mandatory sentence, perhaps with emphasis on mens rea points stressed in Justice Breyer's concurrence).  Rather, the heart of the Chief's dissent is his complaint is that the majority in Miller has used the Eighth Amendment to "ban a punishment" (i.e., mandatory LWOP for any and all teen killers) that is not "unusual."  But, even with this wider framing, I am not sure the numbers concerning the frequency of mandatory LWOP are as compelling as the Chief suggests.

Again, as to the frequency of the sentence, we have gone 40 years to get roughly 2000 mandatory juve LWOP sentences imposed, meaning we average over this period roughly 50 such sentences per year.  In footnote 1 of his dissent, the Chief notes than DOJ statistics indicate that 1,170 juves were arrested for serious homicide in 2009.  Taking just these numbers on their face, one could assert that a juve killer getting a mandatory LWOP sentence is roughly a 1 in 23 event.  I think it is possible (and surely "plausible") to describe a 1 in 23 event as "unusual," though surely reasonable minds could differ on this front.  (To use a sports metaphor, I think it would be reasonable to say it is "unusual" when the New York Mets win the World Series, even though they have done so twice in the last 45 years.)

Moreover, and perhaps more important, the Chief has fudged the numbers here a bit when referencing the 1,170 juves arrested for serious homicide in 2009, because juve homicides are way down compared to just a decade ago.  Once again, data here can be slippery, but I think it is fair to say there were on average much closer to 2000 juve homicides per year over the last 40 years.  Using 2000 as the denominator, the odds of a juve killer getting a mandatory LWOP is now a 1 in 40 event.  Something that happens only 2.5% of the time seems to me to be "unusual."

This all said, the Chief Justice is certainly on solid ground that a mandatory LWOP sentence for a juve killer is not as unusual as the juve LWOP nonhomicide sentences at issue in Graham.  But, critically, the text of the Eighth Amendment does not demand that a punishment be "very unusual" to be unconstitutional, it only demands that a punishment be "unusual."  Further still, I do not think this number crunching holds the secret to unlocking an idealized modern Eighth Amendment jurisprudence.  But, as will be my goal in all my posts in this series on the Miller dissents, I just want to flag the reality that a key forceful claim in this lead dissent can be viewed as suspect when fully unpacked.

June 26, 2012 in Assessing Graham and its aftermath, Data on sentencing, Jackson and Miller Eighth Amendment cases, Who Sentences? | Permalink | Comments (20) | TrackBack

"15 Law Professors Call on Senate to Investigate Office of U.S. Pardon Attorney"

The title of this post is the heading of this new press release from Families Against Mandatory Minimums, which gets started this way:

Today, a group of 15 leading constitutional and sentencing law academics and law professors issued a letter asking Senate Judiciary Committee leaders to hold a hearing to investigate allegations of misconduct by the Office of the Pardon Attorney (OPA).  In particular, the letter asks the committee to examine current pardon attorney Ronald Rodgers’ alleged “withholding of critical information from the President” and of “troubling racial disparities in the pattern of grants and denials of clemency.”

The letter was prompted by recent articles by ProPublica investigative journalist Dafna Linzer in The Washington Post, which revealed serious problems in the way the pardon attorney’s office handles clemency requests.  Late last year, a story documented what appears to be a disturbing racial disparity in pardon grants.  Then, a May 13 article told the story of Clarence Aaron, who is serving a life sentence and was denied a commutation by President George W. Bush after Rodgers allegedly misrepresented facts about his case to White House counsel.

The full text of the letter (with the names of all the signatories) is available for download below, and here are excerpts:

As criminal and constitutional law professors with an interest in sentencing and corrections, we write to urge you to convene a hearing at your earliest convenience to examine the Office of the Pardon Attorney’s conduct with regard to applicants for sentence commutations.  Recent revelations about the workings of that office convince us that further investigation is called for....

The President’s pardon power is unique; it is in many instances the only route to justice available for federal prisoners who genuinely merit consideration for early release. The Pardon Attorney is the gatekeeper for the thousands who apply for clemency each year.

Virtually the only governmental check on the pardon power of the president is the ability of the Congress to investigate its use. While Congress properly plays no role in the actual consideration of clemency petitions, there is a duty of oversight relating to the operation of this office. Pursuant to that important duty, we urge you to convene a hearing at your earliest convenience, and will offer whatever help we can.

Download 062612 Law Professor Letter OPA

Regular readers will not be surprised to learn that I am strongly supportive of the spirit of this letter, but they may be surprised to learn that my name is not at the bottom of it.  Though I welcome a congressional investigation of the OPA, I strongly favor that the President (or Congress through whatever constitutional means) wholly abolish the OPA because I do not think it appropriate or sound that an office within the US Department of Justice plays any gatekeeping role in the clemency process.

I certainly believe and hope the current OPA could do a much better job than its modern track record and investigative reports indicate.  I also believe and hope that a congressional investigation could prod OPA toward useful reforms.  But rather than just urge investigation and reform of the status quo, I favor more significant structural changes such as, e.g., the creation of a clemency czar and/or a clemency office/council working inside the White House rather than inside the Justice Department.  I worry that calls to investigate the work and workings of the OPA suggest the appropriateness of (and thus indirectly support) having an office inside DOJ serving as a clemency gatekeeper.

June 26, 2012 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

New Vera Institute of Justice publication on race, ethnicity and prosecutorial decision-making

Via an e-mail this morning, I received news of this notable new publication from the Prosecution and Racial Justice Program of the Vera Institute of Justice which "surveys the literature on the relationship of race and ethnicity to prosecutorial decision making." Here is more about this new publication from the e-mail I received:

Do Race and Ethnicity Matter in Prosecution? — a review of 34 empirical studies on the relationship of race and ethnicity to prosecutorial decision making published between 1990 and 2011 in peer-reviewed journals — analyzes research that previously has been accessible primarily to scholars.  The PRJ review, written for a broad audience, is intended to encourage additional research on this critical subject.

“No other actor in the criminal justice system drives case outcomes as profoundly as the prosecutor,” PRJ director Whitney Tymas writes in her introductory note.  “Nevertheless, empirical research analyzing racial impacts of prosecutors’ routine choices on the thousands of defendants and victims with whom they interact daily has been scarce.”

Among the review’s key findings: Defendants’ and victims’ race appear to affect prosecutorial decisions.

  • Most of the 34 studies reviewed found influences on case outcomes, even when other legal and extra-legal factors are taken into account.
  • The effect of race and ethnicity on prosecutorial decision making is inconsistent.
  • As compared to whites, it is not always blacks or Latinos and Latinas who receive more punitive treatment.

June 26, 2012 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

"Crime, Punishment, and the Psychology of Self-Control"

The title of this post is the title of this new paper by Rebecca E. Hollander-Blumoff now available via SSRN. Here is the abstract:

Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control.  This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment.

Two important broad insights come from examining this psychological research.  First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will.  The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place.  Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions.  That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.”  The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided.

June 26, 2012 in Offender Characteristics, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (7) | TrackBack

June 25, 2012

SCOTUS grants cert to clarify when an error qualifies as "plain"

As reported here at SCOTUSblog, among the copious cert grants was a single federal criminal procedure case which will resolve a circuit split on when an error is qualifies as "plain" for federal appellate review.  Here are the details with link via SCOTUSblog:

Henderson v. U.S. (Granted )

Docket: 11-9307
Issue(s): Whether, when the governing law is unsettled at the time of trial but settled in the defendant’s favor by the time of appeal, an appellate court reviewing for “plain error” should apply Johnson v. United States’s time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should apply the Ninth Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have adopted.

Certiorari stage documents:

June 25, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Basic mandatory juve LWOP head-count in light of Miller

This article by Warren Richey for the Christian Science Monitor reviews the basics of the Supreme Court's work today in Miller and provides this quick accounting of the number of sentences obviously thrown into question by the ruling:

Currently about 2,500 individuals are serving life without parole prison sentences for crimes committed when they were younger than 18 years old. Of those, roughly 2,000 of the sentences were mandatory.

These numbers sound about right to me (these are the numbers bandied about by the Chief Justice in his dissent), though I would be grateful to see/hear a more precise accounting from anyone in the know.

Interestingly, the two states with the most juvenile offenders who received mandatory LWOP sentences appear to be Pennsylvania (with nearly 450, I believe) and Michigan (with nearly 350, I believe). Neither of these states have typically been on the cutting edge of Eighth Amendment litigation front-lines in recent years, and it will now be very interesting to watch when and how state courts (and lower federal courts) deal with the coming Miller-inspired litigation.

Other states with lots of mandatory juve LWOP defendants worth watching include California, Florida, Louisiana, Missouri and Illinois, all of which have, I believe, at least 100 defendants serving state LWOP sentences for crimes committed when they were younger than 18 years old.  [UPDATE:  Kent rightfully indicates in the comments that California's LWOP sentences are discretionary (though I have heard them called presumptive, raising another possible litigation front.]  Another two dozen states also have more than a handful defendants serving state LWOP sentences for juve crimes, and it is certainly possible (even likely?) that states with a smaller number of problematic JLWOP cases after Miller will be quicker to hear and resolve new Eighth Amendment claims.

June 25, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Guest-post from Professor Mark Osler: "Miller on the ground in Michigan"

I am pleased to be able to provide the first what I hope might become a series of guest-posts from various folks on what the Supreme Court's work today in Miller v. Alabama  (opinion here, basics here, questions here) might mean in various jurisdictions in various setting. Kudos to Professor Mark Osler for getting me the first entry with a first-take on this big new Eighth Amendment ruling, which he titled "Miller on the ground in Michigan":

There was a bit of a mess after the Supreme Court announced its decision in Miller v. Alabama today.  AP reporter Jesse Holland initially sent out a story simply stating that the court had ruled that life without parole sentences were unconstitutional for juvenile offenders.  The truth was more complex: The Court more narrowly held that what is unconstitutional is a sentencing scheme where the only sentence available to a convicted juvenile offender is life without parole.  Not all states have this kind of mandatory sentencing scheme for murder, but many do.

Still, the Miller decision creates some fascinating outcomes.  For example, Michigan has mandatory sentencing in this kind of case, and the second largest number of juvenile offenders serving LWOP sentences (after Pennsylvania).  That means that over 300 sentences may now be in jeopardy, and the state will have to amend its procedure to allow for a parole eligible sentence in the case of juvenile offenders.  Intriguingly, left untouched is Michigan’s rule of automatic transfer to adult status in murder cases — the second part of that state’s legal mechanism which led to so many juvenile LWOP cases.

Aside from the continuing battle before the Court on the constitutionality of Juvenile LWOP, which now moves to discretionary sentences, tough questions face the states affected by Miller.  Perhaps most importantly, a state like Michigan has hundreds of inmates serving sentences obtained by an unconstitutional process.  If they succeed in getting those sentences overturned, what happens next?  Michigan law does not allow for a sentence other than LWOP.  Presumably, they could be dumped into the regular parole system, or the state could create a special process for these prisoners already deemed to be different than other murderers by fact of their age at the time of the crime.

There is an opportunity in this — an opportunity to create a new kind of meaningful review that takes into account the views of experts in adolescent development and brain science, victims’ family members, prison officials, and those who support the convicted juvenile. I’m hoping that at least some jurisdictions take a fresh look at the process as whole and not only get rid of mandatory transfers, but inject more meaning into the kind of second look that these offenders might receive.

June 25, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Issue-spotting the mess sure to follow Miller's narrow (procedural?) ruling

I am surely going to need many more hours (perhaps many more days and weeks) to figure out what all the votes and all the dicta in all the Miller v. Alabama opinions (opinion here, basics here) might mean for the future of Supreme Court Eighth Amendment jurisprudence. But I have already started figuring out some of the very hard questions already sure to be facing lots of lower courts in the wake of Miller ASAP.  Here are just a few that come (too) quickly to mind:

1.  Will all (many? any?) juvenile murderers mandatorily sentenced long ago to LWOP necesarily get the benefit of a resentencing after Miller Arguably, Miller is only a new procedural rule that may not be retroactively applicable in federal habeas due to Teague.  But states can (and should?) decide not to follow Teague and arguments can (and surely will) be made that Miller fits into a Teague exception because in announces the (new?) "substantive" rule that kids are always different for Eighth Amendment purposes.

2.  Will any (many?) juvenile murderers discretionarily sentenced long ago to LWOP possibly get the benefit of a resentencing after MillerMiller only formally prohibits mandatory LWOP for juvenile murderers, but it also make clear that kids are categorically different for sentencing purposes. Arguments can (and surely will) be made that Miller suggests all kids sentenced in the past to LWOP ought to get a new shot at sentencing now that SCOTUS has made clear kids are different.

3.  When and how will juvenile murderers manditorially sentenced to LWOP get resentenced? Are there any special rules for how to consider kids are different? Does the nature of the murder, as well as the defendants age, have to matter? If a state lacks parole, can it give 75-year sentences to these kids at resentencing?

I could go on and on and on, but now I have to run to a meeting. Many more posts and questions are sure to follow!

June 25, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

All juvenile defendants get narrow procedural Eighth Amendment win in Miller

Though I am still trying to figure out all the opinions in today SCOTUS Eighth Amendment ruling in Miller v. Alabama (opinion here, basics here), I think I am correct to assert that the ruling is a (surprising?) big win for any and all older juveniles sentenced to LWOP under a mandatory sentencing scheme, while also appearing to be a (surprising?) potential loss for anyone hoping or expecting the Supreme Court to declare unconstitutional any and all LWOP sentences for any and all juvenile offenders.

Here are the paragraphs from the start and end of the majority opinion in Miller per Justice Kagan which lead me to the conclusion that the Miller ruling is pretty limited and narrow as a win for juvenile defendants:

The two 14-year-old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole.  In neither case did the sentencing authority have any discretion to impose a different punishment.  State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example,life with the possibility of parole) more appropriate.  Such a scheme prevents those meting out punishment from considering a juvenile’s “lessened culpability” and greater “capacity for change,” Graham v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 17, 23), and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties.  We therefore hold 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.”...

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.  By requiring that all children convicted of homicide receivelifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemesbefore us violate this principle of proportionality, and sothe Eighth Amendment’s ban on cruel and unusual punishment.  We accordingly reverse the judgments of the Arkansas Supreme Court and Alabama Court of Criminal Appeals and remand the cases for further proceedings notinconsistent with this opinion.

I am very much drawn to this procedural approach to the issues in Miller and Jackson, in part because this was the way I urged the Court to resolve these cases in this amicus brief I filed along with my students.  But, until I have a full chance to review the holding and dicta in the Miller opinions, I am not quite yet ready to praise without reservations this new important Eighth Amendment decision.

June 25, 2012 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (44) | TrackBack

SCOTUS strikes down some (but not all) of Arizona immigration law

Reporting again here on SCOTUSblog reporting on what its reporter Lyle Denniston is reporting from the Supreme Court this morning:

The second and only other opinion in Arizona. Justice Kennedy announces.  The Ninth Circuit is reversed in part and affirmed in part. Justice Kagan does not participate. The Court rules that Section 3, 5, and 6 are preempted.  Most of the key provisions of SB1070 (3 of 4) are invalidated.  One provision is held not to be proved preempted; it must be construed. It was improper for the lower courts to enjoin Section 2(B), which requires police officers to check the legal status of anyone arrested for any crime before they can be released.

The full opinion in Arizona v. US is now available at this link, and here is the detailed breakdown of all the opinions:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.  SCALIA, J., THOMAS, J., and ALITO, J., filed opinions concurring in part and dissenting in part.  KAGAN, J., took no part in the consideration or decision of the case.

June 25, 2012 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

SCOTUS rules 5-4 in favor of juve offenders in Jackson and Miller

Reporting here on SCOTUSblog reporting on what its reporter Lyle Denniston is reporting from the Supreme Court this morning:

The Court [per Justice Kagan] holds that the Eighth Amendment forbids a [mandatory] scheme of life in prison without possibility of parole for juveniles. The vote is five to four [with lots of Justices writing dissents]. The decisions of Ark. S. Ct. and Alabama Ct. of Crim. Appeals are reversed.

The full opinion in Miller is now available at this link, and here is the detailed breakdown of all the opinions:

KAGAN, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. BREYER, J., filed a concurring opinion, in which SOTOMAYOR, J., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion, in which SCALIA, J., joined.

June 25, 2012 in Jackson and Miller Eighth Amendment cases, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

"Utah mom upset over judge's hair-cut punishment"

The title of this post is the headline of this intriguing AP article about a (too?) creative state sentencing in a juvenile court.  Here are the details:

A Utah mother says she felt intimidated in court when a judge told her that he would reduce her 13-year-old daughter's sentence if she chopped off the girl's ponytail in court — an offer the mother says she now wishes she hadn't taken.

Valerie Bruno, of Price, said she has filed a formal complaint against 7th District Juvenile Judge Scott Johansen with the Utah Judicial Conduct Commission. The teenager and an 11-year-old friend were referred to juvenile court for cutting off the hair of a 3-year-old girl with scissors in March and for harassing another girl in Colorado by telephone.

When the 13-year-old faced Johansen for a hearing in May, he ordered she serve 30 days in detention and to perform 276 hours of community service, but he also offered to take 150 hours of community service off the sentence if her mother cut her ponytail in his courtroom.

Bruno is now expressing regret for not consulting an attorney before taking her daughter into the courtroom. "I guess I should have went into the courtroom knowing my rights, because I felt very intimidated," she told the Deseret News. "An eye for an eye, that's not how you teach kids right from wrong."

Mindy Moss, mother of the 3-year-old whose hair was cut off, said she approved of the sentence and even spoke up during the hearing when she felt Bruno had not cut off enough of her daughter's hair. Johansen then directed Bruno to cut the ponytail all the way "to the rubber band."

Moss told The Salt Lake Tribune that she originally called police about the haircut because she worried the girls' behavior could become more serious. "I didn't want them to think they got away with it … It was malicious," Moss said.

Under state law, judges are given discretion in coming up with sanctions for youth that will change their behavior in a positive way. Johansen ordered the friend of Bruno's daughter to have her hair cut as short as his. She was allowed to go to a salon to have it done, then return to the courtroom to ensure that the new hairstyle met with the judge's approval.

I know of plenty of lawyers who get upset when a judge orders a hair-cut on their fee requests.  I also know that prisoners often complain if and when prison officials require them to get haircuts.  But this is the first time I have seen a concern about a hair-cut as part of a sentencing ruling.

June 25, 2012 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Lots of notable SCOTUS sentencing cert petitions worth watching this morning

Though most of the legal world is following SCOTUSblog this morning awaiting the health care ruling(s), I am enjoying the sounds of their live blogging mostly in expectation of rulings in Jackson and Miller, the juve LWOP Eighth Amendment cases still pending.  But sentencing fans ought also know and note, as the SCOTUS drama builds this morning, that there are a number of very interesting pending cert petitions on sentencing issues that might get adjudicated this morning.  Via this SCOTUSblog post on "Petitions to Watch," here are highlights of just some of the petitions on which I am rooting for cert:

Rhodes v. Judiscak -- Issue(s): Whether a federal prisoner’s habeas petition challenging the length of his incarceration remains justiciable while he is serving a term of supervised release in light of United States v. Johnson, under which a finding that a prisoner was over-incarcerated is an “equitable consideration[ ] of great weight” in a later proceeding to reduce his term of supervised release.

Herring v. Florida -- Issue(s): Whether the Florida Supreme Court’s refusal to permit consideration of the standard error of measurement in its determination of mental retardation in capital cases violates the Eighth and Fourteenth Amendments, which forbid the execution of a mentally retarded person under Atkins v. Virginia.

Gabayzadeh v. United States -- Issue(s): (1) Whether the “one book” rule in the Sentencing Guidelines, sections 1B1.11(b)(2) and (3), which requires retroactive application of the latest, harsher guidelines when defendants have committed offenses both before and after the Guidelines have been amended, violates the Ex Post Facto Clause; and (2) whether, after this Court rendered the federal sentencing guidelines advisory in its decision in United States v. Booker, the Ex Post Facto Clause continues to forbid applying amendments to the Guidelines retroactively to increase the presumptive punishment of criminal defendants.

Also, truly hard-core SCOTUS sentencing geek should also surely be extra excited that we are likely to see a whole boatload of crack case petitions GVR'd in light of last week's Dorsey ruling.

June 25, 2012 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Federal judge upholds Indiana's ban on sex offender use of Facebook and other social media sites

As reported in this AP article, late last week US District Judge Tanya Walton Pratt rejected a challenge to an Indiana law banning registered sex offenders from accessing Facebook and other social networking sites used by children. Here are the basics of the ruling and its context:

"Social networking, chat rooms, and instant messaging programs have effectively created a 'virtual playground' for sexual predators to lurk," Pratt wrote in the ruling, citing a 2006 report by the National Center for Missing and Exploited Children that found that one in seven youths had received online sexual solicitations and one in three had been exposed to unwanted sexual material online.

The American Civil Liberties Union of Indiana filed the class-action suit on behalf of a man who served three years for child exploitation, along with other sex offenders who are restricted by the ban even though they are no longer on probation....  "We will be appealing," ACLU legal director Ken Falk said in an email Sunday to The Associated Press. Appeals from federal courts in Indiana go to the 7th U.S. Circuit Court of Appeals in Chicago.

Courts have long allowed states to place restrictions on convicted sex offenders who have completed their sentences, controlling where many live and work and requiring them to register with police.  But the ACLU claimed that that Indiana's social networking ban was far broader, restricting a wide swath of constitutionally protected activities....

Though the law doesn't list which websites are banned, court filings have indicated the law covers Facebook, MySpace, Twitter, Google Plus, chat rooms and instant messaging services.  Earlier filings indicated LinkedIn was also covered by the ban, but Pratt's ruling said it wasn't because children under 18 can't sign up for it.

"It is a very well-reasoned opinion and the Indiana statute has certainly attempted to be specific," said Ruthann Robson, a professor of constitutional law at the City University of New York.  But she faulted the judge and the law for treating all sex offenders as if they were likely to commit another offense.  "A better statute might provide for some sort of individualized determination rather than a blanket prohibition," she said.

Social networking bans have been struck down in two other states. In February, U.S. District Judge Brian Jackson found that Louisiana's prohibition was too broad and "unreasonably restricts many ordinary activities that have become important to everyday life." Pratt said Indiana's ban wasn't as broad the overturned Louisiana ban.

Louisiana lawmakers passed a new law last month that more narrowly defines which sites are prohibited.  News and government sites, email services and online shopping are excluded from the new rules, as are photo-sharing and instant messaging systems.  The measure takes effect Aug. 1.

In Nebraska, a federal judge in 2009 blocked part of a law that included a social networking ban. A second legal challenge by an Omaha-area sex offender is set for trial in July.

Judge Pratt's full opinion in Doe v. Prosecutor, Marion County, Indiana, No. 1:12-cv-00062-TWP-MJD (S.D. Ind. June 22, 2012), is available at this link.  Here is how it starts:

In an effort to prevent the sexual exploitation of Hoosier children and protect the public at large, the State of Indiana prohibits certain registered sex offenders from using social networking sites, instant messaging programs, and chat room programs that allow access by persons under the age of 18.  See Indiana Code § 35-42-4-12(e).  The statute, enacted in 2008, makes the knowing or intentional use of these sites a Class A misdemeanor.  Id. Plaintiff John Doe (“Mr. Doe”), on his own behalf and on behalf of those similarly situated, contends that this statute runs afoul of the targeted sex offenders’ First Amendment rights.  Initially, Mr. Doe filed a motion for a preliminary injunction asking the Court to temporarily enjoin enforcement of the statute by Defendant, Prosecutor of Marion County, Indiana (“State”). (Dkt. #34.)  Since then, the parties have agreed that it would be appropriate for the Court to merge the preliminary injunction motion with a bench trial (Dkt. #40); see also Fed. R. Civ. P. 65(a)(2).  Accordingly, Mr. Doe now asks the Court to issue a declaratory judgment declaring Indiana Code § 35-42-4-12 unconstitutional on its face and to permanently enjoin the State’s enforcement of the statute.  The Court presided over oral arguments on May 31, 2012, and the Court thanks counsel for their excellent and thoughtful advocacy.

As discussed below, the Court finds that this content-neutral statute is narrowly tailored, leaves open ample alternative channels of communication, and is not overly broad.  It follows, then, that the statute does not violate Mr. Doe’s First Amendment rights. Accordingly, Mr. Doe’s requests to enjoin enforcement of the statute (Dkts. #34 and #42) are DENIED and final judgment is entered in favor of the State.

June 25, 2012 in Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (18) | TrackBack

June 24, 2012

Weekend thoughts on the SCOTUS week that was and the one to come?

After a long dry spell for sentencing fans, last week brought lots of notable SCOTUS action in the criminal justice arena with the messy Williams ruling on Monday and then the crisp defense wins in Southern Union and Dorsey on Thursday.  And this coming week is sure to bring us not only juve LWOP rulings in Jackson and Miller, but also decisions concerning Arizona's immigration law, the Stolen Valor Act and, of course, health care reform, all of which seem likely to have significant modern criminal justice implications.

So, with that set up, I encourage everyone to share (via comments here or e-mails to me) any new and/or deep thoughts about all this SCOTUS action.  Here is one: in light of the outcomes in Dorsey and Southern Union, I am expecting the defendants in Jackson and Miller to prevail either 5-4 or 6-3 and I am expecting the ruling to be fairly narrow.  (Of course, I am often wrong when developing these kinds of expectations, so do not make book on these predictions.)

Recapping posts on last week's SCOTUS criminal justice work:

June 24, 2012 in Recap posts, Who Sentences? | Permalink | Comments (2) | TrackBack