August 20, 2017
Eleventh Circuit upholds a 57-year sentence for federal juve offender for non-homicide crimes based in part of possibility of good-time credits
I just came across the interesting opinion handed down late last week by an Eleventh Circuit panel in US v. Mathurin, No. 14-12239 (11th Cir. Aug. 18, 2017) (available here), which rejects an Eighth Amendment challenge (and other challenges) to a 685-month sentence imposed for multiple armed robbery and carjacking crimes committed by the defendant just before he reached age 18. The underlying facts and the sentencing dynamics in Mathurin are interesting, in part because an older defendant would have gotten a 300-year(!) prison sentence based on many applicable consecutive mandatory-minimum terms that went with the convictions in this case. The defendant argued that his long prison term was still a functional LWOP term that violated the Supreme Court's Graham Eighth Amendment ruling, and the Eleventh Circuit had a lot of interesting things to say in response. Here are snippets:
For purposes of this appeal, we will assume that Graham does apply to a non-parolable term-of-years sentence that extends beyond a defendant’s expected life span. Applying Graham to a term-of-years sentence, however, then gives rise to another question: how does one measure the life expectancy of an individual.... [I]n resolving this case, we do not need to decide whether Defendant’s granular approach to calculating life expectancy should carry the day for purposes of a Graham analysis because even assuming the accuracy of his proffered lower life expectancy for black males in their mid-twenties, as opposed to the life expectancy of all males in their mid-twenties, we conclude that Defendant’s Graham challenge fails....
[A]lthough there is no parole for federal sentences, Defendant has it within his power to shorten his sentence by earning good-time credit. Pursuant to 18 U.S.C. § 3624, Defendant can earn up to 54 days of credit towards his sentence for each year he serves in prison, “subject to determination by the Bureau of Prisons that, during that year, [he] has displayed exemplary compliance with institutional disciplinary regulations.” 18 U.S.C. § 3624(b)(1). The Government has calculated that if Defendant earns the maximum good-time credit available, Defendant can reduce his total sentence by over 7 years and be released when he is 67 years old. Defendant has never disputed this calculation. Earning this credit means that Defendant would serve a remaining sentence of about 43.4 years, which is more than five years shorter than his own proffered life span for black males and almost ten years shorter than the projected life span for all males his age. Thus, Defendant’s sentence provides him with a realistic opportunity to obtain release before the end of his life, as required by Graham.
It is true that Defendant may not receive all of the above good-time credit if he misbehaves and thereby forfeits some of that credit. But it is totally within Defendant’s own power to shorten the sentence imposed. Graham does not require that a sentence “guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.” Graham, 560 U.S. at 75. It just requires that the offender have a chance to show that he has earned the right to be given a second chance at liberty.
August 20, 2017 at 07:23 PM | Permalink
During my 8 years in Federal prison, I served time at FCI - Gilmer in Glenville, West Virginia with two young black brothers who were juveniles when prosecuted (they were also cellmates in the same prison)in Federal Court in South Carolina for "Armed Robbery in or Affecting Interstate Commerce", after conducting a series of robberies of gas station/convenience stores, during which they carried pistols, threatened to kill people, and even pistol whipped a 17-year old female clerk. They had been passed around in the South Carolina foster care system for years, and really never had a fair chance at life. Their public defender got them to plead guilty to the crimes, without advising them of the sentences they faced, including mandatory consecutive time for "use or carry of a firearm while committing a crime of violence or a drug crime". When I met them, they were in their late teens, and had been sentenced to 53 years in the Bureau of Prisons. Neither the prison staff nor most of the inmates knew what to make of these youngsters. One or two older black men tried to take them under their wings and teach them how to live in prison. If an when they are released, they will not be able to work or survive in civil society. Legislators, prosecutors and judges lose sight of what serving so many years in prison does to a man, particularly if his sentence began when he was a teenager.
Posted by: Jim Gormley | Aug 20, 2017 7:55:31 PM
I disagree with the court. It is true that Graham doesn't guarantee eventual freedom but it does require a "realistic opportunity" to earn release. Under the court's logic no sentence would fail Graham's test because every prisoner has it within their control to be so clean and good in prison that they earn a Presidential pardon. Why? Because that is about as realistic as expecting anyone to live an exemplary life for 40 years in prison. The question Graham poses is whether the opportunity is realistic; an opportunity is not inherently realistic simply because some part of the behavior is under the defendant's control.
Posted by: Daniel | Aug 20, 2017 9:17:59 PM
Except that good-time credit is not discretionary so long as the terms are met, there is no corresponding right to pardon. And the terms of good-time credit cannot be made less favorable during a term of incarceration.
Posted by: Soronel Haetir | Aug 20, 2017 9:22:19 PM
Jim. I agree with you. Those victims of society would never function in the outside world. What you do not mention is their behavior in prison. I am going to bet the crime meter continued to spin at supersonic speed, and they had to be straightened out by the prisoners, because the staff owes their jobs to them. The prisoner victims of their crimes were left to fend for themselves, as we all are on the outside.
They should have been executed on the reading of the guilty verdict. If they wished to redeem themselves they could have signed consent to donate their organs after screening for diseases. The purpose of warehousing them is to provide jobs for registered members of the Democratic Party, and absolutely nothing else. Let me guess again. The overwhelming majority of rent seeking, worthless, make work government workers were white males.
The criminal justice system of the USA is a major scam to defraud the tax payer by the criminal cult enterprise that is the lawyer profession. It achieves nothing, and takes in a cool $trillion.
Posted by: David Behar | Aug 20, 2017 9:27:43 PM
The Congress must impeach the entire Supreme Court. Any dissenters failed to stop the pro-criminal majority. They have accomplice liability, and deserve to be impeached. These are out of control rent seeking, pro-criminal, criminal cult members, in out of control insurrection against our constitution. Judicial review is prohibited by Article I Section 1, giving law making power to the Congress.
Posted by: David Behar | Aug 20, 2017 11:06:40 PM
Federal clemency also should be a possibility in the mix as well. Bottom line--if discretionary parole makes a sentence pass muster, why wouldn't the possibility of executive clemency? There's no good answer to that question. Let's see you try, Doug.
Posted by: federalist | Aug 21, 2017 9:44:12 AM
It is not that hard a question, federalist.
1. Discretionary parole in every state is typically a regularized process, subject to serious due process requirements/protections under statutory rules and SCOTUS precedents, and a non-negligible number of parole-eligible prisoners are granted parole every years in every paroling state. (See Robina Institute report here: https://robinainstitute.umn.edu/publications/numbers-parole-release-and-revocation-across-50-states.) Consequently, it is reasonable to view traditional parole as, generally speaking, providing a ""meaningful opportunity for release" for those who are made parole eligible.
2. Executive clemency is NOT typically a regularized process, is NOT subject to serious due process requirements/protections under statutory rules and SCOTUS precedents, and only a negligible number of prisoners are granted clemency in most states. Consequently, it is reasonable to conclude that executive clemency, generally speaking, does not provide a ""meaningful opportunity for release" for prisoners.
If/when a state were to make consistent use of clemency (or compassionate release) processes to release LWOP prisoners early so that clemency was serving as a kind of de facto parole, I think that state could make a reasonable argument that its practices are sufficient to comply with the Eighth Amendment requirements of Graham and Miller. But as a general matter, legal, procedural and statistical realities all support the conclusion that general speaking only discretionary parole, and not executive clemency, provides a "meaningful opportunity for release" for prisoners.
There is more to say on this topic, federalist, but I am not sure blog comments are the best place for further details (e.g., the Robina report linked above runs 200+ pages).
Posted by: Doug B | Aug 21, 2017 9:59:47 AM
The opinion blurs past some of the issues that the Supreme Court needs to address. (For the first two issues below, the Eleventh Circuit assumes defendant's position and resolves it on the last two issues. On the last two issues, the Eleventh Circuit does not go particularly in depth in explaining its conclusions -- simply finding that seven years of freedom is enough and that good time credit is a meaningful opportunity to get that early release.)
1) Should de facto life be measured by life expectancy or by some set number of years?
2) If by life expectancy, how do we measure it (i.e. do we look at the life expectancy for all adults or break it down by race and gender)?
3) If by life expectancy, how close can the sentencing court come to that date without being a de facto life sentence?
4) What is a meaningful opportunity for release?
Posted by: tmm | Aug 21, 2017 10:32:36 AM
No Doug, it's not that simple. From Swarthout v. Cooke:
"When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication—and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California's received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. 442 U.S., at 16, 99 S.Ct. 2100. "The Constitution," we held, "does not require more." Ibid. Cooke and Clay received at least this amount of process: They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied."
Now, here the interest created is federal, but the case law is very clear that parole can be entirely discretionary (just like executive clemency). So it seems that the Court has made the identity of the person having the discretion as having Constitutional moment. I get we are in the made-up land of Eighth Amendment "jurisprudence," but that's a pretty glaring hole.
Posted by: federalist | Aug 21, 2017 11:01:06 AM
@Doug B., @Soronel
You seem to have missed my point. My point is not that the government fails to offer the prisoner an opportunity. It does. My problem is that I do not believe per Graham that the opportunity being afford the prisoner is a /realistic/ one. Here's the question I would like to have the answer to: Looking at BOP data, how many prisoners who have served 40+ year sentences have done so with a perfect track record that allows then to get maximum good time credit? I suspect that answer is slim to none. If that suspicion is correct then there is no objective basis for claiming that the opportunity for good time credit being given to the prisoner represents a "realistic" opportunity for release. It is about as realistic as a pardon.
Posted by: Daniel | Aug 21, 2017 11:12:47 AM
federalist, every Amendment's jurisprudence has "made-up" elements (and made-up non-elements) --- e.g., non-textual exclusions added to 2d A, "reasonable suspicion" as a 4th A standard --- and in the Eighth Amendment the latest standard is that juves need to be given a "meaningful opportunity for release" for non-homicide crimes. Your very quote highlights how parole processes are, generally speaking, far more meaningful that clemency: there typically is a hearing where a prisoner makes his case, hears about any opposition, and is told why he did not get parole if it is denied. Tellingly, none of this process was afforded even to federal prisoners even in the historic Obama clemency drive --- prisoners had no hearing, did not hear of any evidence against them being considered by Obama, and were not told why they did not get clemency.
Your point, which is not a bad one, is that very liberal clemency can end up looking pretty similar to very limited parole in terms of the "opportunity for release." But that point only means that, if and when a state has a very liberal clemency history, maybe it can and will argue that it meets the demands of Graham. But in many states, no serious offender in modern times has ever gotten clemency --- and so clemency does not provide a "meaningful opportunity for release" in those jurisdictions and thus is insufficient for meeting the requirements of the 8th A.
We might also look usefully to ex post facto jurisprudence, which has always said that new limits on substantive parole eligibility cannot be applied retroactively but has never said that limits on substantive clemency eligibility cannot be applied retroactively. And this is because SCOTUS has long recognized, formally, practically and constitutionally, a consequential difference between parole and clemency.
Posted by: Doug B. | Aug 21, 2017 1:05:34 PM
On last point, federalist: I believe in California the Gov has to sign off on any parole recommendation for serious crimes (I recall Gov Arnold regularly rejected every grant rec from his parole board, and Gov Jerry did so recently in a high-profile case: https://www.nbcnews.com/news/us-news/california-governor-denies-parole-manson-ex-follower-leslie-van-houten-n615316). Ergo, in Cali, it is the same person who ultimately decides on parole and clemency. And, conversely, I am pretty sure there are a few states in which a Gov lacks the power to grant clemency without a positive rec from the parole board (I think this is how Texas works).
So making a distinction between parole and clemency is not about "the identity of the person having the discretion as having Constitutional moment." Rather, it is about whether that process provides a "meaningful opportunity for release." As a matter of history, it makes sense to say parole will usually fit that description, while clemency won't. But patterns of practice might change that story for particular jurisdictions over time.
Posted by: Doug B. | Aug 21, 2017 1:13:50 PM
Doug, of course, when things are interpreted, there will be some "made-up" things---but that's not what's going on with this juvie LWOP and you know it--the Court has arrogated onto itself the free-standing power to deem things it doesn't like (rather than reporting the considered judgment of the society as a whole, which, of course is a stretch).
You completely miss the point--the Court in Swarthout wasn't saying that these minimal due process things were per se constitutionally required, but that they, satisfied California's obligations given its statute requiring evidence. A purely discretionary parole system is, last I checked, constitutionally permissible. Which means of course that the identity of the person/persons with discretion is of constitutional moment. That's nonsense. Now you may argue that the "meaningful opportunity for release" precludes a purely discretionary system (hmmm, are federal courts going to second-guess parole decisions?) and that's fine, but it's a hole that needs filling, so to speak.
As for your last paragraph, ha ha ha ha ha ha, that a state-created interest cannot be taken away isn't anything new. And in the context of Miller, the right to review of sentence is a given, but the identity of the decisionmaker in the context of who has the discretion is something that the 8th Amendment simply has nothing to say about. The argument that, well, of course parole boards don't have to face voters etc. doesn't seem to me to be of constitutional moment in terms of what we traditionally think of as impacting what's constitutional and what is not.
Miller is nothing but made-up nonsense, not law in the traditional sense.
Posted by: federalist | Aug 21, 2017 1:17:50 PM
federalist, assuming you accept judicial review, then you have to acknowledge the Constitution via the Eighth Amendment provides that SCOTUS is duty-bound to judge whether certain societal punishments transgresses a prohibition on "cruel and unusual punishments." You seemingly do not like how they go about judging this in Graham and Miller, and you are free to suggest an alternative interpretive framework. (Meanwhile I have yet to hear you complain about the judges who struck down the adult Blackwater MM sentences, though perhaps you dislike that different bit of Eighth Amendment judging as well.) Unless you just want to say that all prison sentences are per se constitutional in all cases, SCOTUS is going to struggle with how to draw lines here.
Meanwhile, you strangely focused on identity and discretion, when this is pretty simple based on the SCOTUS language in Graham: a juve non-homicide offender has to be sentenced in a manner that provides him a "meaningful opportunity for release." Traditional parole, which historically provides considerable formal/due process and many releases, will presumptively satisfy this requirement. Traditional clemency, which historically provides little/no process and few/no releases, presumptively does not. If by "hole" you mean --- but what should we make of parole practices that never let anyone out or of clemency practices that let many out --- you are properly saying that SCOTUS may eventually need to explain in more detail what is enough to constitute a "meaningful opportunity for release." But in the meantime, states so far can and have seemingly been content to just apply its usual parole mechanisms to satisfy what Graham requires for juve non-homicide offenders.
And, yet again, if you give it some thought, your comment answers your own puzzlement. Via parole, states have traditionally developed state-created interests in a release process and thus created a "meaningful opportunity for release." Via clemency, they generally have not. That is why, generally speaking, access to parole will satisfy Graham's demands while clemency will not. Critically, the label and the "identity" and dynamics of discretion are not what matters. What matters is whether the juve non-homicide offender has a "meaningful opportunity for release." You may not like that standard, and it is certainly vague in various particulars, but it is really should not be so hard to get the basic notion that traditional parole will usually satisfy this Graham standard while traditional clemency will not.
Posted by: Doug B | Aug 21, 2017 4:18:32 PM
And, if you care federalist, here are some academic articles talking about what might constitute a “meaningful opportunity
to obtain release”:
Posted by: Doug B | Aug 21, 2017 4:39:24 PM
Why do you keep misstating the law? The standard is not that the juv. prisoner needs a "meaningful opportunity for release." That is not the standard. Here is the language from Graham:
"A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term."
The standard is "realistic" not "meaningful", and even I think you can figure out that those two terms are not synonyms for each other. I don't know were you get the phrase "meaningful opportunity for release" from but in this context it is wrong.
Posted by: Daniel | Aug 21, 2017 5:19:03 PM
Doug, once again, you miss the point. Whether or not "parole" results in more juvies getting out is irrelevant. As things stand now, there is almost no constitutional requirement with respect to the conditions to getting parole if it is available. Thus, a state can create a fully discretionary parole regime, and there is no baseline constitutional right to get it (other than the trivial "can't flip a coin" etc.) So, if the chance at release is fully discretionary, why does it matter that there is a governor exercising the power or some "parole board." It cannot matter, unless there is some constitutional right to the identity of the decisionmaker with full discretion, which seems nonsensical, even in the context of this made-up nonsense.
All of the empirical stuff--so what? Does the fact that a governor may have more informal procedures matter (if there is full discretion)?
Now, I get the idea that "meaningful" opportunity may mean that a fully discretionary parole (release) mechanism may violate Miller, but what are the standards going to be? "Abuse of discretion"? "Substantial evidence"? Is it some amorphous "have to think about it" standard? But even here--there is no requirement that the entity making the decision be a "parole board"--unless the fact that the parole board is (often) once removed from political accountability is of constitutional moment (which seems silly given that governors can be term-limited so that, in some cases, there is less accountability).
They made this stuff up out of whole cloth.
Posted by: federalist | Aug 21, 2017 6:36:46 PM
Here's some language from Graham:
"A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."
The "some realistic opportunity" language does come up at the end. And, maybe it's open to confusion. But, granting headnotes are not official, "some meaningful opportunity for release" is also cited there to summarize the holding. Miller v. Alabama also cited the "meaningful" language to note the test.
Posted by: Joe | Aug 21, 2017 7:13:20 PM
I would think "meaningful" is actually less rigorous than "realistic". I would argue that a ""meaningful opportunity" need merely provide the chance for the offender to demonstrate that release should be afforded while a "realistic opportunity" would require that the chance be real rather than illusory.
Posted by: Soronel Haetir | Aug 21, 2017 7:54:18 PM
I don't see one as more or less rigorous than the other; they are testing two different conditions which I think your next sentence captures adroitly. An opportunity is meaningful if it is one whose fulfillment would mark a significant change from the status quo ante while a realistic opportunity is not remote or speculative, something more than a mere theoretical possibility. So winning the Powerball lottery is a meaningful opportunity because it would make one rich but it is not a realistic opportunity.
The ability to earn good time credit may be a meaningful opportunity in the sense that earning all those credits would mark a significant change from the status quo ante but to me it is an illusory opportunity. Should implies can and if no prisoner or very few prisoners have actually done what the Court claims this guy should do then any meaningful opportunity he has been afforded is illusionary....it's not real.
So how one reads Graham and what one believes its holding actually is makes a difference in how one views this case.
Posted by: Daniel | Aug 21, 2017 9:08:20 PM
Loving the discussion here, and I think we are all highlighting that the key operative language used by SCOTUS ("realistic" and "meaningful") are open to debate and will be subject to interpretation by lower courts and eventually SCOTUS again. As I have suggested before, federalist, I think lower courts and SCOTUS might come to rule that some stingy parole practices do not comply with this standard and that some liberal executive clemency practices do. And I think the empirics are of constitutional significance --- if 20% of LWOP applicants get clemency after reaching age 50, that seems like clemency provides a meaningful/realistic opportunity to obtain release; if 99% of parole applicants get denied even after reaching age 70, that does not seem like a parole is providing a meaningful/realistic opportunity to obtain release.
Put simply, though Graham creates no right to release created, it creates an Eighth Amendment right to a realistic/meaningful chance at release of the sort that parole has historically provided and that clemency historically has not. This kind of line drawing is being "made up" --- like so much other line drawing in constitutional jurisprudence. You are entitled to be bother by it, just as so many others are bothered by other lines drawn by SCOTUS. But a line that draws on a significant traditional distinction between parole and clemency is no more mysterious or bizarre than so many other lines drawn by SCOTUS. And, as you must concede, the Eighth Amendment demands some really hard line drawing if it is to have any content at all as a limit on extreme terms of imprisonment.
Posted by: Doug B. | Aug 22, 2017 12:10:18 AM
"But a line that draws on a significant traditional distinction between parole and clemency is no more mysterious or bizarre than so many other lines drawn by SCOTUS. And, as you must concede, the Eighth Amendment demands some really hard line drawing if it is to have any content at all as a limit on extreme terms of imprisonment."
The Supreme Court really didn't "draw a line"--it just didn't think through the import of what it was doing. Whether you call something "parole" or "clemency" is really just the label attached to "getting out of prison." Labels shouldn't matter, and from the standpoint of logic, neither should the identity of the decision maker---but as long as we're going to have BS "law," we might as well go whole hog.
When it comes to sentencing, the Supreme Court considers itself the Platonic Guardian. It's a travesty.
Posted by: federalist | Aug 22, 2017 7:00:12 AM
federalist, there is no basis to yet conclude that SCOTUS or lower courts think labels or the identity of the decision-maker is fundamental to this still-developing Eighth A jurisprudence. In the LeBlanc summary reversal in June, SCOTUS suggested that Virginia's "geriatric release program" might satisfy the 8A requirements. And in this Mathurn case, the 11th Circuit has held that "good time" credits assessed by prison officials (not a parole board) suffice for the 8A. Time will tell just what SCOTUS thinks the 8A demands here, and I suspect the developments of the jurisprudence will be just as splotchy as we see in various other challenging constitutional contexts --- e.g., I expect Packingham's 1st A rules will develop in contested ways if/when paroles and probationers challenge restrictions on their internet access.
I do not dispute that "when it comes to [adjudicating constitutional claims], the Supreme Court considers itself the Platonic Guardian." It's a consequence of judicial review, and it seems it is only really a travesty if one does not think SCOTUS should play any role checking the government work of other actors in this and/or other contexts.
Posted by: Doug B. | Aug 23, 2017 10:01:20 AM
Doug, um yes it does. The possibility of executive clemency is not a defense to the juvie LWOP restrictions. What the Court has done is constitutionalized decisionmaker identity--it cannot be the governor, even if he/she has unfettered power to grant release. The Court didn't think this all the way through.
Posted by: federalist | Aug 23, 2017 11:32:25 AM
federalist, your formal rule-based analysis misses the functional standard-based approach that SCOTUS has adopted here. Historically, executive clemency has not provided juve LWOPers with a “meaningful opportunity to obtain release” and thus at the time of Graham/Miller the availability of EC did not comply with the constitutional standard there announced. If a state started operating EC in a parole-like matter --- both in terms of procedures and outcomes --- then maybe EC will come to satisfy what SCOTUS says the Eighth A demands.
The fact that in California the Gov is needed to approve certain parole recommendations (and I believe govs also are involved in parole decisions in other states) proves that this is not about the decision-maker. You are welcome to say that you think EC --- which is rarely ever granted and rarely has any formal process for decisions --- ought to be good enough for constitutional purposes. But that is not what SCOTUS thinks, as they think juve must in some cases get a “meaningful opportunity to obtain release” and EC does not seem meaningful enough to 5 justices.
Posted by: Doug B. | Aug 24, 2017 6:42:54 PM