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January 2, 2014

A victim's perspective from Iowa on the aftermath of Graham and Miller

This notable local article from Iowa, headlined "As juvenile re-sentencing looms, murder victim's family speaks out," provides a useful reminder of the folks other than juvenile offenders who are very concerned with how the Supreme Court's rulings in Graham and Miller are going to be implemented in the states. Here are excerpts:

34 Iowa criminals currently sit in prison cells who, once sentenced to life in prison as juveniles, can file for the possibility of parole.  In 2010, the U.S. Supreme Court ruled sending a juvenile to life in prison without the possibility of parole is unconstitutional. Gov. Branstad then commuted those life sentences to 60 years in prison.  2012, however, brought the Iowa Supreme Court to rule 60 years as still unconstitutional.

“Because of the nature of the crimes that these individuals have committed, it has a very serious impact on the criminal justice system,” said Black Hawk County Attorney Tom Ferguson.

The ripple effect of these two court rulings extends past those just sitting in prison cells. Karen Salisbury was murdered in her Evansdale home in 1998.  17-year-old Matthew Payne was charged with the killing; a first-degree murder charge that, back then, sent him to spend the rest of his life in prison.

Salisbury’s three daughters — Rhonda Hoffman, Marsha DeWiese and Vicky Bolin — said they wrestled with those 1998 images of their mother’s death for years.  Now — they must relive the nightmare.  Payne, along with the other 33 Iowa criminals, can file to correct a now illegal sentence, hoping for parole.  “I don't ever want to have to go into the grocery store or somewhere and run into him,” Hoffman said.

Attorneys said parole, however, is not guaranteed.  A judge could grant the possibility of parole, or not at all.  Nevertheless, these parole hearings are annual; potentially bringing families back to the court room year after year.  “Every year if that comes up every year I will be there and I will make sure they hear my voice and they don't let him out,” Bolin said.

The daughters said the possibility of parole for Payne is extremely concerning for them; a thought that is nearly unbearable.  “What good are they in this society when they've been in prison for so long and know nothing else,” DeWiese said.

Hoffman said if Payne is ever granted parole, she hopes she never has to see him. “Don’t come back to Waterloo, I’d go somewhere else.”

January 2, 2014 at 11:12 AM | Permalink

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"In 2010, the U.S. Supreme Court ruled sending a juvenile to life in prison without the possibility of parole is unconstitutional."

It held no such thing.

Do reporters ever actually read cases, or just the NACDL's wish list?

Posted by: Bill Otis | Jan 2, 2014 11:22:38 AM

The Court held mandatory, automatic lwop was unconstitutional under 18. Is that correct? The weasels did not want stories such as this one blamed on them. Nothing happens at 18 that doesn't at 25 or even 35. Come age 60, we really mellow out. Why not have 60 as the age of majority?

Posted by: Supremacy Claus | Jan 2, 2014 11:55:03 AM

SC --

"The Court held mandatory, automatic lwop was unconstitutional under 18. Is that correct?"

It is.

"Nothing happens at 18 that doesn't at 25 or even 35."

Except for being able to get a date with a 17 year-old.

Posted by: Bill Otis | Jan 2, 2014 1:45:21 PM

“What good are they in this society when they've been in prison for so long and know nothing else,”

This raises other concerns not related to this issue, but I think it raises broader questions about rehabilitation vs. just retribution. If the goal of juvenile justice is rehabilitation and if juveniles are now eligible for parole, maybe they should be prepared for a life on the outside. That way the parole board can actually make a determination of future threat and whether a person eligible for release is really the same person mentally as the child who entered the prison system.

Victim opinions matter and should be considered. In that regard, I feel sorry that they still feel the need to respond to these parole hearings each year. On the other hand, they are completely ignorant of how a person has changed. In that sense, their views become increasingly less relevant the more time has passed (particularly beyond the facts of the case that are in the record). Of course, old wounds obviously don't always heal (and it seems clear to me that the Criminal Justice system is poorly adapted to healing those wounds), but it also seems clear that whether there is or is not a parole hearing isn't going to change that.

Posted by: Erik M | Jan 2, 2014 2:09:51 PM

First of all, we should all get one thing straight--there will be a body count that results from this nonsense.

But getting to Erik's comment, I have a few thoughts. One, the issue isn't just the healing of old wounds--rather it's the upsetting of legitimate expectations. This family was told "life means life" and because some activist judges want to go further than some other activist judges, the family gets jerked around. It's nice that you "feel sorry" about their "need" to attend to parole hearings. Also, Erik probably didn't think about the possibility that the crime may have included a victim who survived. There is a death row inmate in Arkansas--he killed the mom, gravely wounded her pre-teen daughter. That daughter waits for justice. It's nice that Erik would be sorry that if the attacker were a juvenile who is now eligible for parole the daughter would feel the need to go to parole hearings.

Two, it's nice that you allow that the victims should be taken into consideration, but with an influence that asymptotically approaches zero as the years roll by. Because, of course, they don't know who the guy is anymore. Interesting that. So, the murderer gets to plead (i.e., embellish) his case, and the victims' families don't get to remind the parole board why the guy's in jail. (Cf. Payne v. Tennessee).

Erik's post has a bit of an antiseptic quality to it. The reality of murder is not so antiseptic, and it seems to me that the killer is hardly entitled to a sterilized process. Some adult wants to tell a parole board what it was like to grow up without a mom--well, that's part of the process, whether or not Erik thinks the person ignorant of who the killer really is now.

Posted by: federalist | Jan 2, 2014 8:34:09 PM

I was trying to approach it from an academic perspective discussing punitive theory. Particularly since Eighth Amendment jurisprudence generally gets as close to the Bentham/Kant dichotomy as one is ever going to get in Supreme Court jurisprudence. The argument in Graham and Miller are that juvenile brains are not as fully developed so the retributive quality is diminished since they aren't as culpable and that a life sentence is far longer for them and they have an opportunity to become a different person (combined with the neurological science, it makes the utilitarian arguments of life incarceration less persuasive). Notably, Graham and Miller are defendant-oriented. It emphasizes the traditional role that juvenile justice has in rehabilitation, it emphasizes the point that juveniles are not miniature adults and have to be considered separately.

Parole is about many things. One thing is deciding whether they have been punished significantly enough for the state's purposes. But it also fostered important utilitarian concerns about whether a person was still a threat to society who needed to continue to be incarcerated. Or, if he were released, would he be able to contribute to society instead. Given how the Supreme Court has emphasized that we can't punish children in the same way we do adults, I think any form of criminal justice governed by reason and not passion (something that I believe the Eighth Amendment requires) recognizes that these utilitarian concerns are entitled to great weight in a juvenile case. Protecting the expectations of a victim is a secondary concern, since, at the end of the day, the criminal justice system is about society as a whole.

Posted by: Erik M | Jan 2, 2014 11:24:48 PM

Erik: We agree victim impact statements are not helpful. They are really, unrebuttable inflammatory testimony. The Supreme Court has wrongfully called them attestations, and allowed them without cross examination.

People age 15 outperform people age 25 in every mental way. Someone committing first degree murder has a serious defect. That defect is likely to worsen with age, as evidenced by the higher serious crime rates of adults. Things go away with age, such as a bad temper. Things that are missing do not show up later, such a empathy, killing for fun, for $5.

Doing great in prison, even to the extreme, starting a newspaper, having a religious group to teach inmates greater morality, counseling young people, starting an orchestra, name it. All that proves is that a structured setting is good for them and should not be removed from under them. These prove prison is helping the inmate and not just keeping us safer.

Ask a child who has killed another, for example a 6 year old killing a three year old. The lawyer is hiding those from the public, but there are a bunch. Why did you drown that kid? He should not have touched my toy. The chill will zing down your spine.

When should that person be allowed out?

Posted by: Supremacy Claus | Jan 2, 2014 11:47:08 PM

Erik, I appreciate your level headed rebuttal.

Posted by: Not really | Jan 3, 2014 12:53:14 AM

Rehabilitation programs shown to work are 1) a small fraction of all rehab programs; 2) have tight risk assessments, cherry picking the best candidates, who would succeed without any program; 3) are often more painful and more super oppressive than any prison, forcing indoctrination into feminist sicko, anti-family ideology during all waking hours. 123D is still the best rehab: straighten out or you're dead very soon.

One very successful thing they have in common and at which they are quite good, generating government funded make work jobs for members of the Democratic Party.

Posted by: Supremacy Claus | Jan 3, 2014 1:23:40 AM

Iowa has a low crime rate for a couple of reasons. One, it is nearly all white. Second, steal something in a small town, everyone knows about the missing item in one place, and your new coincidental acquisition of a similar one. It just does not pay. One should also be afraid the pressure from the neighbors far more than from the police. Nobody bothers committing crimes. People snap and kill their families. But that is rare.

In neighboring Missouri, a ultra-violent bully was never restrained by the worthless legal system. Someone shot him dead in the daytime, in front of dozens of witnesses. No one has ever spoken to the vile pro-criminal prosecutor, who retired with this case never solved. This lawyer traitor was going to prosecute the hero that cleaned up the mess he could not, to protect the public from an ultra-violent criminal with a long rap sheet. I would support not only public self help killing the ultra-violent criminal, but the lashing of the prosecutor and of the judges repeatedly releasing the ultra-violent criminal.

Public self help is the factor that unifies all areas with low crime rates, whether ultra-rich such as Switzerland and Japan or ultra-poor, such a Egypt before the Islamist extremist revolution supported by our pro-criminal Harvard Law indoctrinated President. The military had to clean up the mess partially caused by Harvard Law indoctrinated Obama. There followed rampant criminality in a nation that had ultra-low crime rates as measured by UN hired population surveyor, using the gold standard methodology of the yearly DOJ crime victim survey, including the 8 FBI Index felonies. Thank the lawyer for the rampant criminality of Egypt after the Muslim Brotherhood took over with the full financial and moral support of Harvard Law indoctrinated Obama. Obama remains shameless.

Posted by: Supremacy Claus | Jan 3, 2014 1:38:15 AM

I think all the angst about victims here is in keeping with a general problem with our criminal justice system. Simply put, it should not be all about the victim. Imprisonment is not compensation for the victim and continued imprisonment is not bringing anybody back. If an inmate can show that he or she is deserving of parole on the merits, why should we really care what the victim (or his or her family) think? If they are tired of the process,nobody is forcing them to attend parole hearings. Finally, the views of the victims and their families can vary. In particularly, more sophisticated and educated victims often have less of a "throw away the key" attitude. Do we really want our punishment determinations to be extremely influenced by the perpetrator's luck of the victim draw? We need more rationality all around on the role of victims in our system.

Posted by: Liberty Lawyer | Jan 3, 2014 4:13:41 PM

Liberty Lawyer.

Please, disclose the fraction of your income derived from the criminal, whether prosecutor or defense. It would explain your contemptfor the futute victims of your client.

Posted by: Supremacy Claus | Jan 3, 2014 8:05:39 PM

Ah, like moths to the flame, people like "liberty lawyer" are drawn to the idea that victims' voices should be drowned out by the more enlightened people that want to let predators go.

Let's take liberty lawyers' comment sentence by sentence, shall we?

"I think all the angst about victims here is in keeping with a general problem with our criminal justice system." First of all, liblawyer, the "angst" concerns a murder victim's family (i.e., people who have been grievously harmed) who, had every expectation of not having to deal with the possibility of the evil scum who took their mom's life ever getting out. Certainly, the legitimate expectations of murder victims' families (who, it must be pointed out, did not ask to be in that position) is a consideration. Second of all, how is reminding a decisionmaker about what happened illegitimate? It's easy for a bunch of people sitting around looking at a hangdog prisoner to not have the awful crime he committed at top of mind. Victims' families can remind the parole board of what possibly awaits another family if the guy gets out.

"Simply put, it should not be all about the victim." Who has said that it is? The strawman strikes again. Of course, in this case, the victims' families had legitimate expectations which were dashed by judges that are cheerleaded by people like liblawyer. So once again, it's legit to have a concern here. Does anyone disagree?

"Imprisonment is not compensation for the victim and continued imprisonment is not bringing anybody back." Once again, no one is saying that. As for imprisonment not bringing anyone back . . . . the need to bring up that trite (and irrelevant) point says more about you than anything else. It's almost a taunt. It's a way of denigrating those who insist on long sentences.

"If an inmate can show that he or she is deserving of parole on the merits, why should we really care what the victim (or his or her family) think?"

Interesting how a person who deliberately put someone in the ground can "deserve" parole. And as for the independent clause, I'll just allow all to admire the sheer nastiness of that. Of course, we should care because as human beings we care when innocent people suffer. And freedom for someone who killed a love one hurts. That's why, you arrogant twit.

"Finally, the views of the victims and their families can vary." Hmmmm. There we go with the cosmic fairness argument. Um, don't victimize people and then you won't have this problem.

"In particularly, more sophisticated and educated victims often have less of a "throw away the key" attitude." Marvel at the arrogance there. Just marvel--the smart guys all agree. What an ass.

"We need more rationality all around on the role of victims in our system." Will the arrogance stop? Listening to people who have been harmed is now irrational. Hey, with all the lenience, let's let these guys live next door to you.

Posted by: federalist | Jan 3, 2014 9:18:19 PM

"Protecting the expectations of a victim is a secondary concern, since, at the end of the day, the criminal justice system is about society as a whole."

And it all just washes away. Society tells a victim's family--hey, you don't have to worry. And now it's a welshes. I'd prefer that we don't revictimize people who didn't ask to be in their situation for the benefit of those who put them there. I'd also prefer that activist judges not make society go back on its word either. But hey, there are killers to free.

People will bleed as a result of this decision. It would be nice if some of the utilitarian people (and juvenile justice isn't all about utilitarianism, since LWOP for murder is still on the table) acknowledged that. Personally, if there is a cost in blood to be paid, it seems blindingly unfair that innocent people will likely pay it, rather than the arrogant judges who issue these lawless diktats.

Posted by: federalist | Jan 3, 2014 9:25:32 PM

federalist, I'll address your two points separately. I'm throwing in this prologue because it's worth making clear that they are separate and unrelated points:

"Certainly, the legitimate expectations of murder victims' families (who, it must be pointed out, did not ask to be in that position) is a consideration."

I'm not sure why it is. Or, at a minimum, why it's a pressing consideration to the extent of outweighing something considered to be the magnitude of a Constitutional violation. What punitive theory places what the victims' families were told at the top of the list of considerations?

"People will bleed as a result of this decision."

This is a more reasonable basis of discussion. I think it's one that makes more logical sense than "the victims' families were told something that wasn't entirely true." It probably could have been made without a hyperbolic call for the death of Judges who are trying to honestly apply principles of law and equity to this situation, but it's certainly worth discussing. I too think letting dangerous people out while they're still dangerous is a bad idea. That's why I propose some kind of organization, perhaps a board of some kind tasked with determining future dangerousness of these individuals and deciding whether or not to release them. The Board would not release them unless they've determined this to be the case. Perhaps they could be assisted by professionals who analyze and monitor these individuals and are qualified to make that assessment. To me, this sounds like something that's capable of working. At a minimum, it doesn't sound like something doomed to fail (and can any criticism can be rightly directed at improving it rather than throwing it away entirely along with the key).

Posted by: Erik M | Jan 4, 2014 12:47:15 AM

Supremacy Clause, since you ask, not a penny of my income comes from representing criminal defendants. I am simply interested in advocating more rationality in the system.

Federalist, why the ad hominen attacks? It strikes me that you and your ilk have weak arguments on the merits, so you tend to attack the messenger. I make no apology for advocating rational, rather than populist, approaches. And it is quite disconcerting how much focus you place on attacking intellectualism and giving comfort to those who would have our criminal justice system turn on emotion and worse, rather than rational principles. For exposing these beliefs, I am an "arrogant twit"? Your type of thinking has made our criminal justice system an embarrassing outlier, and many from all political perspectives are increasingly recognizing that. You, Federalist, and Bill Otis seem to be part of a "paleo" crowd on these issues, which is thankfully diminishing in influence.

Posted by: Liberty Lawyer | Jan 4, 2014 9:15:51 AM

federalist --

You gotta love a paragraph that starts, "Federalist, why the ad hominen attacks? It strikes me that you and your ilk..."

Sentence One deplores ad hominem attacks. Sentence Two nails you "and your ilk."

Far out!

Posted by: Bill Otis | Jan 4, 2014 9:34:01 AM

Liblawyer--why the ad hominem attacks? Why do you combine triteness, smugness and arrogance in a post?

In any event, as for weak arguments, you have plenty. First of all, what is the basis of the idea that a murderer "deserves" parole? And calling an argument "rational" isn't very helpful if your premises are bogus and if you ignore practical considerations. The first practical issue you ignore is that of public safety--it's all well and good to think about murderers "deserving" parole or what have you--until someone pays the price. You can call that populist, but I think it risk allocation--parole boards don't get things right all the time, now do they? And since we know that--shouldn't the scales be tipped against release? And what better way to tip the scales than to remind the parole board exactly what the consequences of the actions were? And who is in the best position to do that?

The other nonsense premise you have is this idea of fairness to the murderer. Given all the permutations of a particular murder--how is fairness ever possible--and are we really going to excise victims' families from the parole decision? Try winning that argument in a democracy.

As for Erik--um, when judges blow off the law--it's certainly fair to point out that they likely won't be touched by the havoc that is wreaked and the unfairness of that.

Posted by: federalist | Jan 4, 2014 10:53:54 AM

Federalist,

Your argument proves too much. Of course, parole boards will get it wrong sometimes. But that, of course, does not counsel against granting parole or suggest that parole is granted too often. The question is whether the benefits of more frequent use of parole outweigh the costs of error. There will be individual cases where a determination not to punish as harshly as possible will have been a mistake in hindsight, and that is true whether we are talking about parole or original sentencing or murder or lesser crimes. And the fact remains an individual victim has no particular insight on how to strike this balance, especially decades after the crime. Putting a lot of stock in an individual victim's view only invites bias and reliance in emotion. Most other criminal justice systems seem to function just fine without the intensive focus on victims or -- probably relatedly --harsh outcomes of our system. Most other countries rarely if ever impose life sentences, let alone LWOP, and -- while there are various empirical challenges -- they appear to have less crime then our country.

I do not understand why you say I am arrogant, smug, or trite for trying to steer the discussion in a more focused direction and point out errors of logic when I believe I see them. You seem very quick to jump to conclusions that anyone with a different view than you on criminal justice issues is somehow acting in bad faith or has nefarious motives. Seems to me the discussion and policy would benefit from more input form those coming from an economic and public policy perspective, and less influence from those seeking to pander to folks who lack the education or sophistication to delve farther than visceral reactions.

Posted by: Liberty Lawyer | Jan 4, 2014 11:24:26 AM

"In particularly, more sophisticated and educated victims often have less of a 'throw away the key' attitude."

Liblawyer asks: why do you call me smug and arrogant? Set forth above is Exhibit A.

I don't think I've made any errors of logic. We just have different starting points. t's funny how we're talking about murderers here, and Mr. "I just want to bring rationality to the table" can't seem to grasp some of the really obvious issues from the spectacle of convicted murderers sentenced to LWOP now being given the possibility of parole.

First of all, there's the cruelty to the victims' families. You, of course, dismiss this--going so far as to say that they don't have to go to a parole hearing. Nice. These people have been told that their loved one's killer is never getting out. Now, that's a distinct possibility. But because they are ignorant and cannot see how some killer "deserves" parole (I notice that you don't defend that particular bit of nonsense.) their voices are to be discounted entirely. And yes, let's leave it to the professionals, you know, the people who screwed everything up by thinking in terms of killers who deserve parole.

Second of all, your cavalier reaction to mistakes (which often have a cost in blood) shows that your view is just sympathy for the criminal masquerading as utilitarianism. Apparently, the blameworthiness of the criminal's conduct (which the victim's family DOES have a particular insight about) is way down the list. And how do you factor the lesser amount of deterrence into the equation?

And then there's the rule of law. When an unquestionably constitutional punishment becomes unconstitutional later, it breeds disrespect for the law and contempt for the judiciary. That's a heavy price to pay to hook up a bunch of killers.

As for other countries--crime is jumping up there too, and a lot of it can be tied to lenient sentencing.

As for me savaging those with whom I disagree in here, so what? I haven't noticed you jumping into the fray on purely legal issues. Bring it on.

Posted by: federalist | Jan 4, 2014 2:07:45 PM

federalist:

"As for Erik--um, when judges blow off the law--it's certainly fair to point out that they likely won't be touched by the havoc that is wreaked and the unfairness of that."

You keep saying that they're blowing off the law. It seems to me that they're trying to implement the law as described to them based on prior precedents. I don't think it's fair to equate reaching a conclusion different from the one you believe to be correct with "blowing it off." The latter implies they haven't given this careful thought and attention.

Anyway, your arguments so far suggest that you can only think about this emotionally. For example, your arguments stem from sympathy for the victims, which is fine, but you also equate the arguments to the contrary, which are based on the purposes of criminal punishment, with sympathy for murderers. Wanting a just equitable system based on reason is hardly the same thing as sympathy.

Regarding deterrence, there's a reason this discussion is about juveniles and has focused a lot of brain science. General deterrence has less relevance when individuals are inherently more impulsive due to age. As for specific deterrence, that's what the parole board is for. What's the likelihood an individual would do this again?

Posted by: Erik M | Jan 4, 2014 4:38:11 PM

Not so, Erik. There's nothing that says that Graham and Miller (both judicial activism) apply retroactively to settled judgments. Nothing. So yes I can point out the lawlessness of this, particularly since Iowa's governor commuted a lot of these sentences so that they don't fall under these cases.

As for the so-called "brain science"--I wish you guys would give that nonsense a rest. Putting aside the complete intellectual dishonesty of the Supreme Court--young girls are mature enough to make abortion decisions, but juveniles can't get the big jab--as long as people have been on Earth, people have known that teenagers are more rash than adults. We didn't need brain science to tell us that. But general deterrence does work against teenagers--maybe not as well, but it works, and certainly letting them know that the consequences aren't going to be that bad--that helps I am sure. Cf. Missouri v. Simmons.

"Wanting a just equitable system based on reason is hardly the same thing as sympathy." Well, I didn't see you attacking liblawyer for his "deserves parole". And you seem to think that the juvenile murderers should be treated "justly" and "equitably"--since when do those terms apply to a matter of grace? Sure looks like sympathy for murderers to me.

As for parole boards and whether the murderer would do it again--what? Let's say that one of these guys has a 1% chance of doing it again---is that a chance we should take? My sense is that your answer is yes. Sympathy.

Posted by: federalist | Jan 4, 2014 6:56:14 PM

very nice fed!

"As for parole boards and whether the murderer would do it again--what? Let's say that one of these guys has a 1% chance of doing it again---is that a chance we should take? My sense is that your answer is yes. Sympathy."

Of course you COULD say the same thing about lieing govt goons! hell you can probably up that % to 99% chance. Does that mean we can now SHOOT THIER ASSES?

Posted by: rodsmith | Jan 5, 2014 6:29:09 PM

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