Wednesday, March 22, 2017
Tenth Circuit clarifies and emphasizes import and reach of Graham's limit on extreme juve sentences
Yesterday in Budder v. Addison, No. 16-6088 (10th Cir. March 21, 2017) (available here), a Tenth Circuit panel granted habeas relief to a juvenile non-homicide offender sentenced in Oklahoma to serve over 131 years in prison before being eligible for parole. The Budden opinion discusses the Supreme Court's Graham ruling at great length in the course of rejecting Oklahoma's effort to defend a sentence that was not technically "life without parole." Here are some excerpts from the opinion:
Despite Oklahoma’s arguments to the contrary, we cannot read the Court’s categorical rule as excluding juvenile offenders who will be imprisoned for life with no hope of release for nonhomicide crimes merely because the state does not label this punishment as “life without parole.” The Constitution’s protections do not depend upon a legislature’s semantic classifications. Limiting the Court’s holding by this linguistic distinction would allow states to subvert the requirements of the Constitution by merely sentencing their offenders to terms of 100 years instead of “life.” The Constitution’s protections are not so malleable.
More importantly, the Court did not just hold that it violated the Eighth Amendment to sentence a juvenile nonhomicide offender to life without parole; it held that, when a state imposes a sentence of life on a juvenile nonhomicide offender, it must provide that offender with a “meaningful opportunity to obtain release.” Id. at 75; see also id. (“[The Eighth Amendment] does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.”). Further, the Court explained that its categorical holding was necessary because it would “give all juvenile nonhomicide offenders a chance to demonstrate maturity and reform.” Graham, 560 U.S. at 79 (emphasis added). If the rule announced in Graham is to provide all juvenile offenders such an opportunity, it must be read to apply to all sentences that are of such length that they would remove any possibility of eventual release. Thus, we conclude, the sentencing practice that was the Court’s focus in Graham was any sentence that denies a juvenile nonhomicide offender a realistic opportunity to obtain release in his or her lifetime, whether or not that sentence bears the specific label “life without parole.” ...
Again, we must emphasize that states may not circumvent the strictures of the Constitution merely by altering the way they structure their charges or sentences. Just as they may not sentence juvenile nonhomicide offenders to 100 years instead of “life,” they may not take a single offense and slice it into multiple sub offenses in order to avoid Graham’s rule that juvenile offenders who do not commit homicide may not be sentenced to life without the possibility of parole. When the Court compared the severity of the crime with the severity of the punishment, in light of the characteristics of the offender, it did not look to the state’s definitions or the exact charges brought. It looked to whether the offender was a juvenile, whether the offender killed or intended to kill the victim, and whether the sentence would deny the offender any realistic opportunity to obtain release. The Court specifically concluded that, not only was a categorical rule appropriate, it was “necessary,” id. at 75, because a case specific approach “would allow courts to account for factual differences between cases and to impose life without parole sentences for particularly heinous crimes,” id. at 77. The Court found this approach to pose too great a risk that some juveniles would receive life without parole sentences “despite insufficient culpability.” Id. at 78 (quoting Roper, 543 U.S. at 572–73). The Court was not convinced “that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.” Id. at 77. Not only did the Court draw the line at homicide, it structured a categorical rule specifically to prevent the possibility that a sentencing judge would ever impose a sentence of life without the possibility of parole on a juvenile who did not commit homicide. The Eight Amendment prohibits such a sentence, regardless of the severity of nonhomicide crimes a juvenile has committed.
Thursday, March 02, 2017
Washington Supreme Court rules Eighth Amendment precludes applying mandatory minimum adult sentencing scheme to juvenile offenders
The Supreme Court of Washington issued a very significant new ruling expanding the reach of the Eighth Amendment as adumbrated by the Supreme Court in Graham and Miller. The extended ruling in Washington v. Houston-Sconiers, No. 92605-1 (Wash. March 2, 2016) (available here), gets started this way:
"[C]hildren are different." Miller v. Alabama,_ U.S. _, 132 S. Ct. 2455, 2470, 183 L. Ed. 2d 407 (2012). That difference has constitutional ramifications: "An offender's age is relevant to the Eighth Amendment, and [so] criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed." Graham v. Florida, 560 U.S. 48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); U.S. CONST. amend. VIII. The defendants in this case -- Zyion Houston-Sconiers and Treson Roberts -- are children. On Halloween night in 2012, they were 17 and 16 years old, respectively. They robbed mainly other groups of children, and they netted mainly candy.
But they faced very adult consequences. They were charged with crimes that brought them automatically into adult (rather than juvenile) court, without any opportunity for a judge to exercise discretion about the appropriateness of such transfers. They had lengthy adult sentencing ranges calculated under adult Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, rules. And they received lengthy adult firearm sentence enhancements, with their mandatory, consecutive, flat-time consequences, without any opportunity for a judge to exercise discretion about the appropriateness of that sentence increase, either.
As a result, Houston-Sconiers faced a sentencing range of 501-543 months (41.75-45.25 years) in prison. Clerk's Papers (Houston-Sconiers) (CPHS) at 227. Of that, 3 72 months (31 years) was attributable to the firearm sentence enhancements and would be served as '"flat time,"' meaning "in total confinement" without possibility of early release. Id.; RCW 9.94A.533(3)(e). Roberts faced a sentencing range of 441-483 months (36.75-40.25 years) in prison. Clerk's Papers (Roberts) (CPR) at 154. Of that, 312 months (26 years) would be "'flat time"' attributable to the firearm sentence enhancements. Id.
To their credit, all participants in the system balked at this result. But they felt their hands were tied by our state statutes.
We now hold that the sentencing judge's hands are not tied. Because "children are different" under the Eighth Amendment and hence "criminal procedure laws" must take the defendants' youthfulness into account, sentencing courts must have absolute discretion to depart as far as they want below otherwise applicable SRA ranges and/or sentencing enhancements when sentencing juveniles in adult court, regardless of how the juvenile got there. We affirm all convictions but remand both cases for resentencing.
March 2, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (10)
Wednesday, March 01, 2017
Is anyone tracking comprehensively data on resentencings (and release and recidivism) of those aided by Graham and Miller?
The question in the title of the post was recently posed to me, and I did not have a good answer. But this seems like a timely question now that it has been nearly a full seven years since Graham v. Florida declared LWOP unconstitutional for juvenile non-homicide offenders and five years since Miller v. Alabama declared mandatory LWOP unconstitutional for juvenile homicide offenders. (Of course, it has only been a year since SCOTUS in Montgomery v. Louisiana declared Miller fully retroactive and thereby required a number of states to start dealing with Miller's impact on prior offenders.)
I know that the Campaign for the Fair Sentencing of Youth a few months ago produced this publication about legal reforms in the wake of Graham and Miller under the title "Righting Wrongs: The Five-Year Groundswell of State Bans on Life Without Parole for Children." But that report has more stories than numbers. Similarly, two 2015 reports from the public interest firm Phillip Black, titled "Juvenile Life Without Parole After Miller" and "No Hope: Re-examining Lifetime Sentences for Juvenile Offenders," look mainly at state litigation and legislative responses to Graham and Miller. The Fair Punishment Project has also done some significant work on juve LWOP, including some notable locality-specific analysis of post-Miller litigation, but I do not see any comprehensive or detailed data runs on its site. The Juvenile Law Center, which has played an integral role in a lot of post-Miller state-court litigation, helped produced this thoughtful and detailed report on the import and impact of Graham and Miller under the title "The Supreme Court and the Transformation of Juvenile Sentencing." But that report, which is already nearly two years old, also lacks any detailed empirics.
I have seen estimates of the population of juve LWOPers with sentences impacted by Graham and Miller to be around 2500, and I am hopeful and somewhat confident that someone somewhere is at least trying to track comprehensively data on how this population is being resentenced. But I have not yet seen such data published, and perhaps I am wrong to assume that it is being systematically collected.
Tuesday, January 17, 2017
Extended dissent laments First Circuit panel's rejection of Eighth Amendment attack on 160-year sentence for stash house participant
I just notices a lengthy and blog-worthy opinion issued by the First Circuit late last week in US v. Rivera-Ruperto, No. 12-2364 (1st Cir. Jan 13, 2017) (available here). The start and final substantive paragraphs of the majority opinion provides the factual background for the Eighth Amendment claim and its formal fate:
This case arises out of a now-familiar, large-scale FBI investigation known as "Operation Guard Shack," in which the FBI, in an effort to root out police corruption throughout Puerto Rico, orchestrated a series of staged drug deals over the course of several years. For his participation in six of these Operation Guard Shack drug deals, Defendant- Appellant Wendell Rivera-Ruperto stood two trials and was found guilty of various federal drug and firearms-related crimes. The convictions resulted in Rivera-Ruperto receiving a combined sentence of 161-years and 10-months' imprisonment.....
At oral argument, counsel for Rivera-Ruperto argued that we should be swayed by the fact that, in this case, the crime involved fake drug deals. A near two life-term punishment where no real drugs and no real drug dealers were involved, he contended, is a punishment that is grossly disproportionate on its face. But in coming to this sentence, the judge below was guided by and correctly employed a sentencing scheme that is written into statute -- a statute that makes no distinction between cases involving real versus sham cocaine. At each of the six stings, in fact, Rivera-Ruperto repeatedly and voluntarily showed up armed and provided security services for what he believed to be illegal transactions between real cocaine dealers. The crime of possessing a firearm in furtherance of such a drug trafficking offense is a grave one, and Congress has made a legislative determination that it requires harsh punishment. Given the weight of the case law, we see no Eighth Amendment route for second-guessing that legislative judgment.
We thus cannot conclude that Rivera-Ruperto has established that his sentence, which is largely due to his consecutive sentences under § 924(c), is grossly disproportionate to the crime, so as to trigger Eighth Amendment protections.
The start and end of Judge Torruella's 35+-page dissent provides a much fuller primer on the Eighth Amendment and one judge's concerns about its application in this case:
The majority today affirms a sentence of 160 years and one month without the possibility of parole for Rivera-Ruperto. The transgression for which Rivera-Ruperto was punished in such an extreme manner was his participation as a security guard in several fake transactions, while the FBI duped Rivera-Ruperto into believing that the composite was actually illegal drugs. The FBI ensured that more than five kilograms of composite moved from one agent's hands to another at each transaction; the FBI also made sure that the rigged script included Rivera-Ruperto's possession of a pistol at each transaction. This combination -- more than five kilograms of composite, a pistol, and separate transactions -- triggered the mandatory consecutive minimums of 18 U.S.C. § 924(c), which make up 130 years of Rivera-Ruperto's sentence.
In a real drug transaction, all participants would be guilty of a crime. And, in general, the greater their knowledge of the crime would be, the harsher the law would punish them. In the fictitious transaction we are faced with today, however, only the duped participants, who had no knowledge of what truly transpired, are punished. The other participants are not only excused, but indeed rewarded for a job well done.
If Rivera-Ruperto had instead knowingly committed several real rapes, second-degree murders, and/or kidnappings, he would have received a much lower sentence; even if Rivera-Ruperto had taken a much more active role in, and brought a gun to, two much larger real drug deals, he would still have received a much lower sentence. For these and many other crimes Rivera-Ruperto would have received sentences that would see him released from prison during the natural term of his life. For the fictitious transgressions concocted by the authorities, however, Rivera- Ruperto will spend his entire life behind bars -- a sentence given to first-degree murderers, 18 U.S.C. § 1111, or those who cause death by wrecking a train carrying high-level nuclear waste. 18 U.S.C. § 1992.
From the majority's approval of the draconian sentence imposed in this case, I respectfully dissent. Rivera-Ruperto's sentence is grossly disproportionate to his offense, and therefore violates the Eighth Amendment to the Constitution. While some seemingly excessively harsh sentences have withstood Eighth Amendment challenges, such harsh sentences have been sanctioned only in the context of recidivists or those who otherwise dedicated themselves to a life of crime -- a context that explained the severity of the sentences. But Rivera-Ruperto has no criminal record, nor has he dedicated himself to a life of crime. Not even under the infamous § 924(c) has a first-time offender like Rivera-Ruperto ever been condemned to spend his entire life in jail....
Never before has a first-time offender who has not dedicated his life to crime been condemned to spend his entire life in prison for a transgression such as Rivera-Ruperto's, not even in cases in which the transgression was real -- and Rivera's-Ruperto's transgression is fictitious.
The Government has effectively asked this court to pronounce the Eighth Amendment dead for sentences for a term of years. I respectfully refuse to join in this pronouncement. "Unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete." Graham, 560 U.S. at 85 (Stevens, Ginsburg, Sotomayor, JJ., concurring).
Thursday, January 12, 2017
New Jersey Supreme Court addresses Miller's application to all serious juve sentencings
As reported in this local article, the top court in the Garden State "ruled unanimously Wednesday to overhaul the way New Jersey judges sentence juveniles convicted in violent crimes that could keep them in prison until they are elderly or dead." Here is more from the press report on the opinion:
The state's highest court ruled 7-0 that judges must consider a number of factors -- including age, family environment, and peer pressure -- before issuing lengthy sentences to youths in serious cases. Peter Verniero, a former state Supreme Court justice and state attorney general, said this is "one of the most significant sentencing decisions" the court has made in "many years."
And in a rare move, the court also urged the New Jersey Legislature to revise the state's current law on juvenile sentencing to "avoid a potential constitutional challenge in the future," according to the decision, written by Chief Justice Stuart Rabner.
The decision is the result of appeals filed by a pair of men who were convicted separately of violent crimes years ago in Essex County when they were 17 and were sentenced to decades in prison. Ricky Zuber was convicted for his role in two gang rapes in 1981 and was sentenced to 110 years in prison. He would not have been eligible for parole for 55 years -- a time when he would be 72. James Comer was convicted of four armed robberies in 2000, including one where an accomplice shot and killed a victim. He would have become eligible for parole when he was 85 -- after having served 68 years.
Rabner wrote that judges in both cases did not take "age or related circumstances" into account when issuing the sentences. But, Rabner said, the U.S. Supreme Court has since "sent a clear message" that "children are different" from adults and that "youth and its attendant characteristics" must be considered when sentencing a juvenile to life in prison without parole.
"Because of their young age at the time of their crimes, both defendants can expect to spend more than a half century in jail before they may be released -- longer than the time served by some adults convicted of first-degree murder," Rabner wrote.
Rabner cited how in a 2012 decision called Miller v. Alabama, the U.S. Supreme Court ruled that judges presiding over cases involving juveniles facing life sentences without parole must consider a number of factors before sentencing. Those include immaturity; family and home environment; family and peer pressures; an"inability to deal with police officers or prosecutors" or their own attorney; and "the possibility of rehabilitation."
But New Jersey's Supreme Court went further, saying those standards must be applied not only to sentences of life without parole but also to youths who face lengthy sentences. The court also cited a the Eighth Amendment of the U.S. Constitution, which protects defendants from "cruel and unusual punishment."
"Youth matters under the constitution," Rabner wrote.
The full opinion is available at this link, and it covers a lot of important post-Graham and post-Miller ground concerning juvenile sentencing.
January 12, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Thursday, December 22, 2016
Split Ohio Supreme Court concludes Graham violated by term-of-years juve sentence that exceeds life expectancy
The holiday season is often a time that brings some interesting sentencing ruling, and this year the jurisprudential present under my tree comes from my own Ohio Supreme Court in Ohio v. Moore, No. 2016-Ohio-8288 (Ohio S. Ct. Dec. 22, 2016) (available here). Here is how the lengthy majority opinion in Moore gets started and concludes:
We decide in this case whether the United States Supreme Court’s holding in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), prohibiting the imposition of sentences of life imprisonment without parole on juvenile nonhomicide offenders also prohibits the imposition of a term-of-years prison sentence that exceeds the offender’s life expectancy on a juvenile nonhomicide offender. We hold that pursuant to Graham, a term-of-years prison sentence that exceeds a defendant’s life expectancy violates the Eighth Amendment to the United States Constitution when it is imposed on a juvenile nonhomicide offender.
We hold in this case that Graham’s categorical prohibition of sentences of life imprisonment without the possibility of parole for juveniles who commit nonhomicide crimes applies to juvenile nonhomicide offenders who are sentenced to term-of-years sentences that exceed their life expectancies. The court of appeals abused its discretion in failing to grant Moore’s application for reconsideration. The 112-year sentence the trial court imposed on Moore violates the Eighth Amendment’s prohibition against cruel and unusual punishments. We reverse the judgment of the court of appeals and vacate Moore’s sentence, and we remand the cause to the trial court for resentencing in conformity with Graham.
Interestingly, Chief Justice Maureen O'Connor appears to have been the key swing vote here on a court that split 4-3, and her lengthy concurring opinion concludes this way:
Graham is one of the most momentous decisions in American juvenile law. Given its significance, the stated intention of the sentencing judge in this case, the de facto life sentence he imposed, and the curtness with which the court of appeals denied Moore’s application to reconsider his sentence in light of Graham, I conclude that the appellate court abused its discretion in refusing to consider Moore’s claim. The court was not bound to accept his arguments, but it was bound to consider them more thoughtfully after allowing the application for delayed reconsideration.
I concur fully in the majority opinion, which addresses the significant constitutional question that is properly before us and which holds that the court of appeals abused its discretion in failing to recognize that extraordinary circumstances were presented by Moore’s application, i.e., the unconstitutional imposition of a lengthy term-of-years sentence on a juvenile offender.
Friday, December 02, 2016
"The Right to Redemption: Juvenile Dispositions and Sentences"
The title of this post is the title of this notable new paper authored by my colleague Katherine Hunt Federle and now available via SSRN. Here is the abstract:
The punishment of juveniles remains a troubling yet under-theorized aspect of the criminal and juvenile justice systems. These systems emphasize accountability, victim restoration, and retribution as reasons to punish underage offenders. In fact, American juvenile systems will remove the most egregious offenders to criminal courts for trial and sentencing. The United States Supreme Court in recent years, however, has issued a number of opinions emphasizing that the Eighth Amendment requires that the punishment of children must account for their lesser moral culpability, developmental immaturity, and potential for rehabilitation. State courts also have begun to reconsider their own dispositional and sentencing schemes in light of the Supreme Court’s jurisprudence.
The reality of ‘juveniles’ immaturity militates in favor of a right to redemption. This Article begins by discussing the available data about the number and types of dispositions juveniles receive, waivers to criminal court, and the criminal sentences imposed. The analysis also considers the collateral consequences for minors who are adjudicated delinquent or who are criminally convicted. The discussion then turns to the effects of juvenile and criminal court involvement on children and the subsequent impact on life outcomes. The analysis considers theoretical, jurisprudential, and constitutional implications of juvenile sentencing with a special emphasis on the Supreme Court’s recent decisions. This Article concludes with the proposal for the contours of a right to redemption and its implications for reform to the current system and suggests strategies for the individual defense lawyer.
Monday, November 07, 2016
Split Fourth Circuit panel concludes Virginia’s geriatric release program insufficient to save juve LWOP sentences from violating Graham
A Fourth Circuit panel today handed down a lengthy split decision today in LeBlanc v. Mathena, No. 15-7151 (4th Cir. Nov. 7, 2016) (available here), concerning the application of the Supreme Court's Eighth Amendment Graham ruling in Virginia. Here is how the majority opinion by Judge Wynn gets started:
Graham v. Florida, 560 U.S. 48, 74 (2010), held that “the Eighth Amendment forbids the sentence of life without parole” for juvenile offenders convicted of nonhomicide offenses. Accordingly, the Supreme Court held that States must provide juvenile nonhomicide offenders sentenced to life imprisonment with “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 75.
Nearly a decade before the Supreme Court decided Graham, Respondent, the Commonwealth of Virginia, sentenced Petitioner Dennis LeBlanc to life imprisonment without parole for a nonhomicide offense he committed at the age of sixteen. In light of Graham, Petitioner sought postconviction relief from his sentence in Virginia state courts. The state courts denied Petitioner relief, holding that Virginia’s geriatric release program — which was adopted more than fifteen years before the Supreme Court decided Graham and will allow Petitioner to seek release beginning at the age of sixty — provides the “meaningful opportunity” for release that Graham requires.
Mindful of the deference we must accord to state court decisions denying state prisoners postconviction relief, we nonetheless conclude that Petitioner’s state court adjudication constituted an unreasonable application of Graham. Most significantly, Virginia courts unreasonably ignored the plain language of the procedures governing review of petitions for geriatric release, which authorize the State Parole Board to deny geriatric release for any reason, without considering a juvenile offender’s maturity and rehabilitation. In light of the lack of governing standards, it was objectively unreasonable for the state courts to conclude that geriatric release affords Petitioner with the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” Graham demands. Id. Accordingly, Petitioner is entitled to relief from his unconstitutional sentence.
Judge Niemeyer issued a lengthy dissent that gets started this way:
In affirming the grant of Dennis LeBlanc’s habeas petition brought under 28 U.S.C. § 2254, the majority holds that the Virginia Supreme Court concluded unreasonably that Virginia’s geriatric release program provided a meaningful opportunity for release to juveniles and therefore satisfied the requirements of Graham v. Florida, 560 U.S. 48 (2010). Graham forbids sentencing juveniles to life in prison without parole for nonhomicide crimes. In reaching its conclusion, the majority relies simply on its expressed disagreement with the Virginia Supreme Court’s decision in Angel v. Commonwealth, 704 S.E.2d 386 (Va. 2011), and effectively overrules it. The Virginia court’s opinion, however, is demonstrably every bit as reasonable as the majority’s opinion in this case and should be given deference under § 2254(d)(1).
Especially because the "swing" vote on this panel came from a district judge sitting by designation, I think there is a decent chance this case might get further consideration by the Fourth Circuit sitting en banc. I also would expect Virginia to seek Supreme Court review if it does not seek or secure en banc review.
November 7, 2016 in Assessing Graham and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Sunday, November 06, 2016
"Life Without the Possibility of Parole for Juvenile Offenders: Public Sentiments"
The title of this post is the title of this new paper authored by Jennifer Gongola, Daniel Krauss and Nicholas Scurich. Here is the abstract:
The United States Supreme Court recently abolished mandatory life in prison without the possibility of parole (LWOP) for juvenile offenders, holding that the practice was inconsistent with the 8th amendment’s cruel and unusual punishment clause, and its “evolving standards of decency” jurisprudence. The Court explicitly left open the question of whether non-mandatory LWOP is consistent with these constitutional standards.
This paper examines the public’s sentiment concerning juvenile LWOP. An online sample (n = 599) weighted to be representative of the U.S. population was queried about juvenile LWOP as a general policy and in response to a specific case in which they had to impose a prison sentence on a juvenile convicted of murder. The age of the juvenile was experimentally manipulated. Overall, 31% of participants favored juvenile LWOP as a general policy while 55% were willing to impose juvenile LWOP in the specific case presented. The age of the juvenile moderated this effect, such that participants were more willing to impose LWOP on a 16-year-old than a 12-year-old both as a general policy matter and in response to the specific case vignette. A majority of participants were consistent in their preferred punishment across both frames, including 30% who selected LWOP.
Political affiliation was the only demographic variable that predicted consistency in preferred punishment across the two frames. Additionally, participants who consistently endorsed juvenile LWOP placed greater emphasis on retribution and deterrence as goals of punishment while individuals who evidenced inconsistent punishment preferences placed a greater emphasis on rehabilitation.
November 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22)
Wednesday, October 26, 2016
Two interesting reviews of the (in)application of Graham and MIller in two states
In my upper-level sentencing course, we are now discussing the past, present and future of Eighth Amendment jurisprudence placing limits on the imposition of prison terms. Of course, this discussion now culminates in a review of the Supreme Court's recent work in Graham v. Florida and Miller v. Alabama and their continuing fallout. Conveniently, just this past weekend, two different newspapers in two different states published these two articles on how that fallout is playing out:
From Jacksonville.com here about developments in Florida, "No Second Chance: Why juvenile offenders stay locked away"
From the Milwaukee Journal Sentinel here about developments in Wisconsin, "Juvenile offenders in legal limbo: Although life sentences without parole banned for youths, 68 state inmates not likely to benefit"
This passage from the first of these articles highlights some reasons why, even years after Graham and Miller were decided and required resentencing of certain juvenile offenders, most of these offenders are still going to be spending many decades in prison before even having a chance at release:
In striking down these harsh sentences, the Supreme Court “obviously was concerned, No. 1, about locking kids up and throwing away the key,” said Marsha Levick, Philadelphia attorney and co-founder of the Juvenile Law Center. “The court was very clear that it believes kids are truly different.” Indeed Justice Elena Kagan has written that, “given all that we have said … about children’s diminished culpability, and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”
But in Courtroom 12, Circuit Judge John H. Skinner was unmoved. Despite hundreds of hours of legal work, stacks of documents and a morning of arguments, the judge told Thomas, “I haven’t really changed my mind at all as far as what you should get in this case.”
So Thomas, the youngest child in a tight-knit military family, was sentenced again to 40 years. This time, there will be a review in front of a judge and chance for release after 15 years, a provision that brings the penalty into compliance with state law.
Scenes like this one in a Jacksonville suburb are playing out around the state and across the country as judges resentencing juvenile offenders continue to issue lengthy sentences that advocates say defy the intent of the Supreme Court.
It will take years for the courts to work through the 58 Duval County homicide cases in which the juveniles’ original sentences have been deemed unconstitutional. Preparing for a resentencing hearing is intensive, and an area where the case law is constantly evolving.
But if the results from some of the earliest resolved Jacksonville cases are any indication, judges will continue to hand down long punishments. In the nine cases in which teens were first sentenced to life for childhood crimes that weren’t murder, seven of the defendants will be 60 or older when they are released.
Sunday, October 23, 2016
Supreme Court of Louisiana declares 99-year term without parole for juve armed robber violates Graham
The Supreme Court of Louisiana issued an interesting and significant unanimous ruling last week in Morgan v. Louisiana, No. 2015-KH-0100 (La. Oct. 19, 2016) (available here). Here is how the opinion gets started:
A jury found the defendant, Alden Morgan, committed the offense of armed robbery at age 17. Following return of the guilty verdict, the district court sentenced him to 99 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. After being denied relief on direct review, the defendant filed a motion to correct an illegal sentence in light of recent developments in Eighth Amendment jurisprudence pertaining to the sentencing of juveniles. Specifically, the defendant relied on Graham v. Florida, 560 U.S. 48 (2010), wherein the United States Supreme Court concluded that a sentence of life without the possibility of parole for a nonhomicide offense committed when the defendant was a juvenile constitutes cruel and unusual punishment. We granted the defendant’s writ application to determine whether the defendant’s 99-year sentence is an effective life sentence and is, therefore, illegal under the Supreme Court’s decision in Graham. For the reasons that follow, we hold that a 99-year sentence without parole is illegal because it does not provide the defendant “with a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id., 560 U.S. at 75. Accordingly, we amend the defendant’s sentence to delete the restriction on parole eligibility and direct the Department of Corrections to revise the defendant’s prison masters according to the criteria in La. R.S. 15:574.4(D) to reflect an eligibility date for consideration by the Board of Parole.
What makes the Morgan opinion especially blogworthy is the short concurring opinion authored by Justice Crichton, which reads as follows:
“I do solemnly swear that I will support the constitution and laws of the United States and the constitution and laws of this state. . .” La. Const. art. X, § 30.
These words, which each justice of this Court affirmed upon taking office, which all Louisiana lawyers affirm, and which the District Attorney also affirms, reflect our solemn duty as members of the judiciary and the broader judicial system to uphold the constitutions of the United States and Louisiana. Despite the clear mandate of the United States Supreme Court in Graham v. Florida, 560 U.S. 48 (2010), the Orleans Parish District Attorney has taken the stunning position that this defendant does not face the functional equivalent of life imprisonment and that he would have — in the year 2082 and at age 101 — a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id., 560 U.S. at 75. Even worse, the District Attorney has invited this state’s high court to join him in this constitutionally untenable position that directly conflicts with a line of United States Supreme Court cases rolling back excessive punishment of juvenile offenders. See Graham, supra, Roper v. Simmons, 543 U.S. 551 (2005), Miller v. Alabama, 567 U.S. -- (2012). This position would, in my view, violate our oath of office insofar as it would contravene the Supreme Court’s pronouncements and, therefore, also violate the Supremacy Clause. U.S. Const. art. VI, cl.2. See State ex rel. Barrabino v. Henderson, 283 So. 2d 764, 766 (La. 1973) (Tate, J., concurring) (“The United States Constitution as interpreted by that court is binding upon every court in this land, including the Supreme Court of Louisiana. . . .”). See also generally La. Rules of Prof. Conduct R. 3.1, 3.3.
Relatedly, I emphasize that the district attorney has an awesome amount of power in our justice system, which encompasses the “entire charge and control of every criminal prosecution instituted or pending in his district,” including the determination of “whom, when, and how he shall prosecute.” La. C.Cr.P. art. 61. As such, a prosecutor’s responsibility is as “a minister of justice and not simply that of an advocate.” Model Rules of Prof’l Conduct R. 3.8 cmt (Am. Bar. Ass’n 1983). See also State v. Tate, 171 So. 108, 112 (La. 1936) (noting that the district attorney “represents the State, and the State demands no victims. It seeks justice only, equal and impartial justice. . . .”). Given both this power and responsibility, the District Attorney should seek to uphold the integrity of his office by declining to take positions that, as reflected by the 7-0 decision in this case, contravene federal constitutional law.
Tuesday, October 18, 2016
"Children are Different: The Abolition of Mandatory Minimum Sentencing in Florida"
The title of this post is the title of this short essay by Paolo Annino now available via SSRN. Here is the abstract:
This essay argues that juvenile mandatory minimum sentences violate the Eighth Amendment based on the US Supreme Court's Miller v. Alabama requirement of individualized assessment and the Iowa Supreme Court's State v. Lyle application of individualized assessment to all juvenile sentencing. This essay discusses the issue of juvenile mandatory minimum sentencing in the context of recent Florida decisions.
October 18, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)
Wednesday, September 14, 2016
"Righting Wrongs: The Five-Year Groundswell of State Bans on Life Without Parole for Children"
In just five years — from 2011 to 2016 — the number of states that ban death-in-prison sentences for children has more than tripled. In 2011, only five states did not permit children to be sentenced to life without parole. Remarkably, between 2013 and 2016, three states per year have eliminated life-without- parole as a sentencing option for children. Seventeen states now ban the sentence.
This rapid rate of change, with twelve states prohibiting the penalty in the last four years alone, represents a dramatic policy shift, and has been propelled in part by a growing understanding of children’s unique capacity for positive change. Several decades of scientific research into the adolescent brain and behavioral development have explained what every parent and grandparent already know — that a child’s neurological and decision-making capacity is not the same as those of an adult. Adolescents have a neurological proclivity for risk-taking, making them more susceptible to peer pressure and contributing to their failure to appreciate long-term consequences. At the same time, these developmental deficiencies mean that children’s personalities are not as fixed as adults, making them predisposed to maturation and rehabilitation. In other words, children can and do change. In fact, research has found that most children grow out of their criminal behaviors by the time they reach adulthood.
Drawing in part from the scientific research, as well as several recent U.S. Supreme Court cases ruling that life-without-parole sentences violate the U.S. Constitution for the overwhelming majority of children, there is growing momentum across state legislatures to reform criminal sentencing laws to prohibit children from being sentenced to life without parole and to ensure that children are given meaningful opportunities to be released based on demonstrated growth and positive change. This momentum has also been fueled by the examples set by formerly incarcerated individuals who were once convicted of serious crimes as children, but who are now free, contribute positively to their communities, and do not pose a risk to public safety.
In addition to the rapid rate of change, legislation banning life without parole for children is notable for the geographic, political, and cultural diversity of states passing these reforms, as well as the bipartisan nature in which bills have passed, and the overwhelming support within state legislatures.
Currently, Nevada, Utah, Montana, Wyoming, Colorado, South Dakota, Kansas, Kentucky, Iowa, Texas, West Virginia, Vermont, Alaska, Hawaii, Delaware, Connecticut, and Massachusetts all ban life without parole sentences for children. Additionally California, Florida, New York, New Jersey, and the District of Columbia ban life without parole for children in nearly all cases.
It is also important to note that three additional states — Maine, New Mexico, and Rhode Island — have never imposed a life-without-parole sentence on a child. Several other states have not imposed the sentence on a child in the past five years, as states have moved away from this inappropriate sentence both in law and in practice.
September 14, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13)
Monday, August 29, 2016
Detailing efforts by Michigan prosecutors to have LWOP juveniles resentenced to LWOP
This lengthy local article, headlined "Michigan prosecutors defying U.S. Supreme Court on ‘juvenile lifers’," details some of the remarkable efforts of Michigan's local prosecutors in response to the Supreme Court's Miller and Montgomery rulngs requiring the resentencing of juvenile murderers preiously given mandatory LWOP sentences. Here are some extended excerpts:
Prosecutors across Michigan are fighting to uphold sentences for most of the 350-plus prison inmates now serving mandatory life terms for crimes they committed as juveniles. Their stance is in apparent defiance of a U.S. Supreme Court directive this year that courts across the nation are supposed to reduce life sentences for young offenders except in only “rare” cases.
According to data, which Bridge obtained from a network of Michigan lawyers, at least nine county prosecutors are asking judges to uphold life sentences for every so-called “juvenile lifer” convicted in their courts. They argue that these inmates, including some who have behind bars for decades, can never be safely returned to society.
“I think what the prosecutors are doing is appalling,” said Ann Arbor lawyer Deborah LaBelle, a prisoner rights advocate who is organizing free legal representation for about 100 juvenile lifers. “The Supreme Court says the vast majority have to have the chance at being paroled,” LaBelle said. “You can’t just lock them up and throw away the key for things they did as a child.”
Among the most resistant to the Supreme Court’s ruling: Saginaw County Prosecutor John McColgan Jr., who wants to uphold 21 of 21 sentences in which life terms were given to juvenile defendants. It’s nine of nine in Kalamazoo County. And seven of seven in Muskegon County.
Meanwhile, Oakland County Prosecutor Jessica Cooper has asked judges to uphold mandatory life sentences for 44 of 49 inmates who committed crimes as juveniles. In Genesee County, Prosecutor David Leyton is asking the same in 23 of 27 cases.
More broadly, four large Michigan counties — Genesee, Oakland, Saginaw and Wayne — account for 150 of the 218 cases for which prosecutors are seeking to uphold life without parole. In Wayne County, which includes Detroit, Prosecutor Kym Worthy is seeking life without parole in 61 of 153 cases – hardly rare at 40 percent, but lower than Oakland County’s request to uphold 90 percent of juvenile life sentences.
Oakland County Sheriff Michael Bouchard put an incendiary exclamation mark on the position of prosecutors when he held a press conference in July in which he compared juvenile lifers to a famous fictional serial killer. “I looked at a sample of these individuals and they are Hannibal Lecters who committed very heinous murders — often, multiple murders — and then they’ve continued to display very assaultive behavior in prison and show no remorse,” Bouchard said.
Overall, according to the data, prosecutors are seeking to uphold life-without-parole sentences for 218 of the 363 men and women in state prisons for crimes committed as minors. Most were convicted of first-degree murder or of abetting first-degree murder. Some were as young as 14. The oldest is now 71. The effort to keep juvenile lifers permanently behind bars faces pushback from legal advocates, as well as some federal prosecutors....
Prosecutors in Michigan were given a July deadline to name juvenile lifers within their jurisdictions who they contend remain too dangerous to ever walk free. Those named will face an eventual mini-trial in which prosecutors have to prove they were among the irretrievably depraved. The facts of the original crime, statements by friends or relatives of the victim and each inmate’s background and behavior in prison are to be weighed. For those lifers not targeted by prosecutors, legislation signed by Gov. Snyder in 2014 spells out a default minimum sentence of 25 years in prison to maximum of 60 years....
In an interview with Bridge, Oakland County prosecutor Cooper called the 44 cases that she challenged for parole some of the most “heinous” crimes she has seen. She said her decision on those cases was reached only after months of exhaustive review. “We are talking about victims who were stabbed, drowned, bludgeoned and decapitated,” Cooper said. “We are not talking about people who took Dad’s car and drove over somebody’s lawn. Many of these crimes were totally random. They walked up to a car and decided to shoot in it. On and on and on and on. We are really talking about awful cases.”...
Michael Dettmer, former U.S. Attorney for Michigan’s Western District, joined with another former Western District U.S. Attorney, James Brady, and Richard Rossman, former U.S. Attorney for the Eastern District, recently wrote an op-ed condemning the move by state prosecutors to challenge lesser sentences for juvenile lifers. “As former U.S. Attorneys,” they wrote, “we would have expected Michigan prosecutors to understand Montgomery’s central tenet that children are uniquely capable of growth and maturation and must be able to demonstrate their rehabilitation.
“Instead, too many prosecutors are focusing on the crime committed by a troubled adolescent without exercising the judgment to recognize whether the adult before them today has rehabilitated himself.” Dettmer said he considers state prosecutors’ push to keep so many in prison for life “a slap in the face” of the court’s instruction on rehabilitation.
But county prosecutors have a powerful ally in Michigan Attorney General Bill Schuette. Schuette has vigorously fought reconsideration of juvenile life sentences, filing a friend of the court brief in 2015 in the Montgomery case on behalf of Michigan and 15 other states opposing any retroactive look at those sentences. Asked to comment on the high rate of challenges by county prosecutors, a Schuette spokesperson said, “In general, Attorney General Schuette supports local prosecutors and their decisions.”
Wednesday, July 06, 2016
The title of this post is the title of this notable new paper authored by Perry Moriearty and now available via SSRN. Here is the abstract:
Over the last fourteen years, the Supreme Court has issued five decisions that impose substantive constraints on our harshest punishments -- forbidding the execution of those with “mental retardation” in Atkins v. Virginia, of juveniles in Roper v. Simmons, and of those convicted of child sexual assault in Kennedy v. Louisiana, and forbidding the sentence of life without parole for juveniles who had not killed in Graham v. Florida and for all juveniles when it is imposed mandatorily in Miller v. Alabama. Because the offenders in question were categorically less culpable, the proscribed punishment was disproportionately severe, the Court held.
In many respects, these decisions reinvigorated the Court’s substantive proportionality jurisprudence, which had been virtually dormant for two decades. Yet, three of the five decisions simply have not yielded in practice what they promised in principle. The implementation of Atkins, Graham and Miller has been so protracted, litigious and encumbered by procedural obstacles that, of the nearly 3,000 inmates nominally impacted by the decisions, only a fraction has been relieved of their sentences. In the meantime, inmates with IQs of 61 have been executed, and others have died waiting to hear whether the Court’s decisions apply retroactively.
This Article argues that, despite its transformative potential, the Court’s contemporary proportionality jurisprudence has been diminished in scope and potency in the course of its implementation -- a dynamic that has been called “slippage.” In many respects, the “slippage” of these mandates can be attributed to the decisions themselves, which are deregulatory and, in concert with the Court’s broader efforts to limit federal court jurisdiction over state criminal justice processes, tie the scope of relief to the political whims and majoritarian preferences of the States. On some issues, the procedural docility of these decisions has proven so problematic that the Court has twice within the last two years had to intervene, striking portions of Florida’s capital sentencing scheme in 2014 and, just weeks ago, declaring in Montgomery v. Louisiana that Miller does in fact apply retroactively.
While the Court’s reluctance to regulate the implementation of its proportionality mandates may be rationalized as necessary deference to the principles of federalism and finality, these justifications are far less compelling in the Eighth Amendment context. The very establishment of federal habeas, executive clemency, and Supreme Court review suggests that the Framers themselves recognized that there are normative points when interests in federalism and finality simply must yield. By contrast, the risk of offending constitutional norms through slippage may be at their most pronounced since one of the Eighth Amendment’s primary purposes is to protect the politically powerless from government overreach. I conclude that, if the Court is serious about implementing in practice the substantive constraints on punishment it has imposed over the last fourteen years, it must accompany its substantive mandates with a minimum threshold of procedural prescription.
July 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Jackson and Miller Eighth Amendment cases, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Monday, June 13, 2016
"Taking Dignity Seriously: Excavating the Backdrop of the Eighth Amendment"
The title of this post is the title of this notable new paper authored by Meghan Ryan now available via SSRN. Here is the abstract:
The U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess.
The Court has been consistent in stating that a focus on offender dignity is at the core of the Amendment’s prohibition on cruel and unusual punishments, but there has been virtually no analysis of what this dignity requirement means. This Article takes the first foray into this unexplored landscape and finds that the Constitution demands that the individuality of offenders be considered in imposing and carrying out sentences. While this appears to be a simple concept, it raises significant concerns about several modern-day sentencing practices. Punishments rooted in pure utilitarianism, by neglecting the importance of the individual offender, run afoul of this dignity demand. This sheds doubt on the propriety of some judges’ assertions that defendants’ freestanding innocence claims cannot stand because policy considerations like finality are of paramount importance; an individual offender cannot be ignored purely for the sake of societal goals.
For the same reason, the importance of individual dignity should lead us to question statutes supporting only utilitarian aims of punishment. While this raises questions about the constitutionality of pure deterrence, rehabilitation, and incapacitation, these purposes of punishment may be reconceptualized to account for the individual offender. For example, rehabilitation could be reformulated to consider not only the offender’s effects on society when he is returned to the community but also whether the offender’s character has been reformed. Finally, the importance of Eighth Amendment dignity raises questions about the constitutionality of mandatorily imposed punishments, which overlook the importance of individualization in sentencing. If we take seriously the dignity core of the Eighth Amendment, then many of these practices must be reconsidered.
June 13, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Friday, May 27, 2016
Split Iowa Supreme Court decides any and every "sentence of life without the possibility of parole for a juvenile offender violates article I, section 17 of the Iowa Constitution"
As noted in prior posts here and here, yesterday brought notable post-Miller juve sentencing decisions from state supreme courts in California and Florida. But today the Iowa Supreme Court has one-upped its colleagues via its post-Miller ruling in Iowa v. Sweet, No. 14–0455 (Iowa May 27, 2016) (available here). The lengthy majority opinon in Sweet wraps up this way:
In sum, we conclude that sentencing courts should not be required to make speculative up-front decisions on juvenile offenders’ prospects for rehabilitation because they lack adequate predictive information supporting such a decision. The parole board will be better able to discern whether the offender is irreparably corrupt after time has passed, after opportunities for maturation and rehabilitation have been provided, and after a record of success or failure in the rehabilitative process is available. See Seats, 865 N.W.2d at 557 (“Even if the judge sentences the juvenile to life in prison with parole, it does not mean the parole board will release the juvenile from prison.”); see also State v. Andrews, 329 S.W.3d 369, 379 (Mo. 2010) (Wolff, J., dissenting) (noting an offender sentenced to life with parole may nonetheless “spend the rest of his life in prison if the parole board does not determine that he is suitable for parole release”). Steinberg has poignantly made this very point:
It’s not only adolescents’ immature judgment that demands that we treat them differently when they break the law. If the plasticity of the adolescent brain makes juveniles more amenable to rehabilitation, this argues against mandatory life sentences that don’t allow courts to consider whether an impulsive or impressionable teenager might grow into a law-abiding adult who can control his impulses and stand up to peer pressure. Of course, a teenager who kills another person deliberately should be punished — no one is arguing otherwise. But should he be incarcerated for the rest of his life, with no chance to prove that he has matured?
Steinberg at 188. Thus, juvenile offenders’ prospects for rehabilitation augur forcefully against speculative, up-front determinations of opportunities for parole and leads inexorably to the categorical elimination of life-without-the-possibility-of-parole sentences for juvenile offenders.
For the above reasons, we adopt a categorical rule that juvenile offenders may not be sentenced to life without the possibility of parole under article I, section 17 of the Iowa Constitution. As a result, the sentence of the district court in this case is vacated and the matter remanded to the district court for resentencing.
Nothing in this opinion, of course, suggests that a juvenile offender is entitled to parole. The State is not required to make such a guarantee, and those who over time show irredeemable corruption will no doubt spend their lives in prison. The determination of irredeemable corruption, however, must be made when the information is available to make that determination and not at a time when the juvenile character is a work in progress.
A lengthy dissent authored by Justice Mansfield gets started this way:
Recognizing that our legislature and our trial courts have the primary role in determining criminal sentences, I would affirm the life-without-parole (LWOP) sentence for this seventeen year old who murdered his grandparents who had raised him.
Today, the court breaks new ground in finding that the Iowa Constitution categorically forbids such sentences. As I will explain below, I believe the justification offered by the majority for its ruling is insufficient. More is needed before we strike down a legislatively authorized sentence — especially one the general assembly reauthorized by large majorities in both houses just last year.
Thursday, May 26, 2016
California Supreme Court says juve killers sentenced before Miller get benefits of new post-Miller state parole statute
Today seems to be a specical day for big states to have their Supreme Court's issue big rulings concerning the sentencing of juve murderers after Miller. I noted in this prior post a ruling from the Florida Supreme Court in this arena, and now I have seen that the California Supreme Court also did some work in this space via California v. Franklin, No. S217699 (Cal. May 26, 2016) (available here). Here is the start of the majority opinion in Franklin:
Defendant Tyris Lamar Franklin was 16 years old at the time he shot and killed another teenager. A jury convicted Franklin of first degree murder and found true a personal firearm-discharge enhancement. The trial court was obligated by statute to impose two consecutive 25-year-to-life sentences, so Franklin‘s total sentence was life in state prison with the possibility of parole after 50 years.
After Franklin was sentenced, the United States Supreme Court held that the Eighth Amendment to the federal Constitution prohibits a mandatory life without parole (LWOP) sentence for a juvenile offender who commits homicide. (Miller v. Alabama (2012) 567 U.S. __, __ [132 S.Ct. 2455, 2460] (Miller).) Shortly thereafter, we held in People v. Caballero (2012) 55 Cal.4th 262 (Caballero) that the prohibition on life without parole sentences for all juvenile nonhomicide offenders established in Graham v. Florida (2010) 560 U.S. 48 (Graham) applied to sentences that were the "functional equivalent of a life without parole sentence," including Caballero‘s term of 110 years to life. (Caballero, at p. 268.) Franklin challenges the constitutionality of his 50-year-to-life sentence under these authorities.
We granted review to answer two questions: Does Penal Code section 3051 moot Franklin‘s constitutional challenge to his sentence by requiring that he receive a parole hearing during his 25th year of incarceration? If not, then does the state‘s sentencing scheme, which required the trial court to sentence Franklin to 50 years to life in prison for his crimes, violate Miller‘s prohibition against mandatory LWOP sentences for juveniles?
We answer the first question in the affirmative: Penal Code sections 3051 and 4801 — recently enacted by the Legislature to bring juvenile sentencing in conformity with Miller, Graham, and Caballero — moot Franklin‘s constitutional claim. Consistent with constitutional dictates, those statutes provide Franklin with the possibility of release after 25 years of imprisonment (Pen. Code, § 3051, subd. (b)(3)) and require the Board of Parole Hearings (Board) to "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity" (id., § 4801, subd. (c)). In light of this holding, we need not decide whether a life sentence with parole eligibility after 50 years of incarceration is the functional equivalent of an LWOP sentence and, if so, whether it is unconstitutional in Franklin‘s case.
Split Florida Supreme Court finds technical eligibility for parole insufficient to comply with Miller Eighth Amendment requirements
The Florida Supreme Court today handed down a notable new opinion applying Miller in a case involving a juvenile offender who got a life sentence for a murder back in 1990. Here is how the opinion in Atwell v. Florida, No. SC14-193 (Fla. May 26, 2016) (available here), gets started:
Angelo Atwell was sixteen years old when, in August 1990, he committed armed robbery and first-degree murder. Under the statute then in effect, Atwell was sentenced for the first-degree murder to a mandatory term of life imprisonment, with the possibility of parole after twenty-five years, and was sentenced to life imprisonment without the possibility of parole for the armed robbery.
As mandated by the existing statutory scheme, Florida’s parole process requires “primary weight” to be given to the “seriousness of the offender’s present offense and the offender’s past criminal record.” See § 947.002, Fla. Stat. (2015). Under this statutory scheme, twenty-five years after Atwell was sentenced, the Commission on Offender Review conducted a parole hearing and set Atwell’s presumptive parole release date, which is the earliest date he may be released from prison as determined by objective parole guidelines, for the year 2130—one hundred and forty years after the crime and far exceeding Atwell’s life expectancy. Thus, while technically Atwell is parole-eligible, it is a virtual certainty that Atwell will spend the rest of his life in prison.
The issue we consider is whether Atwell’s sentence for first-degree murder is constitutional, in light of the United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), which held that the Eighth Amendment “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” We conclude that Florida’s existing parole system, as set forth by statute, does not provide for individualized consideration of Atwell’s juvenile status at the time of the murder, as required by Miller, and that his sentence, which is virtually indistinguishable from a sentence of life without parole, is therefore unconstitutional.
"Creating Meaningful Opportunities for Release: Graham, Miller and California's Youth Offender Parole Hearings"
The title of this post is the title of this notable new paper authored by Beth Caldwell now available via SSRN. Here is the abstract:
This article presents findings from a study on the implementation of California’s new Youth Offender Parole Hearing law, which aims to provide juvenile offenders with meaningful opportunities to obtain release from adult prison. It contributes to the debate surrounding how to apply the “meaningful opportunity to obtain release” standard that the Supreme Court deliberately left open to interpretation in Graham v. Florida and, to some extent, in Miller v. Alabama. The Supreme Court’s recent opinion in Montgomery v. Louisiana reinforces the idea that juveniles who demonstrate that they are capable of change are entitled to release.
The data contained in this Article was obtained by reviewing the transcripts of the first 107 Youth Offender Parole Hearings; this sample represents all but two of the Youth Offender Parole Hearings that took place between January 2014 and June 2014. In the first six months of the law’s implementation, juvenile offenders were found suitable for parole at younger ages than the general population. Further, youth offenders appeared to have a more realistic chance of being released under the new law. This reform is, at the very least, an important step towards offering juvenile offenders more meaningful opportunities to earn their release from prison. At the same time, it does not go far enough. After discussing some limitations of the law, this Article concludes by recommending guidelines that would provide youth offenders more meaningful opportunities for release in parole hearings.
May 26, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Thursday, May 19, 2016
Implementing Graham and Miller: just what qualifies as a "meaningful opportunity to obtain release"?
This new Marshall Project piece effectively details the enduring challenges that states necessarily face in honoring both the letter and spirit of the Supreme Court's modern Eighth Amendment work limiting LWOP sentences for juveniles. The piece's full headline highlights its themes: "When Parole Boards Trump the Supreme Court: The high court has said most kids shouldn't be sentenced to life without parole, but some prisoners' fate are in the hands of politics." Here is how the piece started (with links from the original):
Almost everyone serving life in prison for crimes they committed as juveniles deserves a shot at going home. That’s the thrust of a series of Supreme Court rulings, the fourth and most recent of which was decided this year. Taken together, the high court’s message in these cases is that children are different than adults when it comes to crime and punishment — less culpable for their actions and more amenable to change. As such, court rulings have determined all but the rarest of juvenile lifers are entitled to “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
The court left it up to states how to handle this year's new ruling but suggested parole boards were a good choice. “Allowing those offenders to be considered for parole,” Justice Anthony Kennedy wrote in January, gives states a way to identify “juveniles whose crimes reflected only transient immaturity—and who have since matured.” Most states have taken this option, changing juvenile lifers’ sentences en masse from life without to lifewith the possibility of parole.
But prisoner’s rights advocates and attorneys have begun to argue whether parole boards, as they usually operate, may not be capable of providing a meaningful opportunity for release. A handful of courts have agreed.
Last month, a New York state appeals court judge ruled that the state’s parole board had not “met its constitutional obligation” when it denied parole to a man who had killed his girlfriend when he was 16. Dempsey Hawkins is now 54 and has been denied parole nine times in hearings that, the court said, did not adequately weigh what role his youth and immaturity had played in his crime.
Also last month, a group of juvenile lifers in Maryland filed suit, arguing that not a single juvenile lifer had received parole in that state in the last 20 years. “Rather than affording youth a meaningful and realistic opportunity for release…grants of release are exceptionally rare, are governed by no substantive, enforceable standards, and are masked from view by blanket assertions of executive privilege,” the lawsuit says.
“There are just two relevant kinds of sentences: those that provide a meaningful opportunity for release and those that don’t,” says Sarah French Russell, a Quinnipiac University law professor who studies juvenile justice. “Sentences that are not technically labeled life without parole can deny a meaningful opportunity for release because of the procedures or criteria used by the parole board.”
A few of many prior related posts:
- Noting that Henry Montgomery (and many other juve LWOPers) are still awaiting impact from Montgomery
- "Montgomery's Messy Trifecta"
- What should we expect after Montgomery from states that had resisted Miller retroactivity?
- Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively
May 19, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Monday, May 16, 2016
Noting that Henry Montgomery (and many other juve LWOPers) are still awaiting impact from Montgomery
At Jost on Justice, Ken Jost has this notable new piece, headlined "For Juvenile Lifers, Wheels of Justice Grind Slow," about the application of the Supreme Court's ruling in Montgomery v. Louisiana in state systems. Here are excerpts:
Henry Montgomery has lived behind prison walls for 53 years now, but even so he is a “little bit antsy” according to his lawyer while waiting to learn when he will get a chance at freedom under a new Supreme Court decision.
Montgomery is one of 300 or so Louisiana inmates serving time under life-without-parole sentences imposed for murders they committed as juveniles — sentences ruled unconstitutional by the Supreme Court four years ago. The court followed with a 6-3 ruling in January that the earlier decision applies retroactively to prisoners even if their regular appeals had already ended....
The hang-up in Louisiana and in several other states stems not only from the customarily slow pace of judicial proceedings but from uncertainty about how to comply with the high court’s ruling. The 6-3 decision in Montgomery v. Louisiana appeared to prescribe parole hearings as the remedy rather than court resentencings for inmates now seeking release.
The court’s earlier decision, Miller v. Alabama (2012), prohibited states from automatically sentencing juvenile murderers to life-without-parole but left open the possibility of such sentences in some murder cases. In the new opinion, Justice Anthony M. Kennedy said that prisoners “who have shown an inability to reform will continue to serve life sentences.” Citing Montgomery’s record as a model prisoner, however, Kennedy said that inmates like him “must be given the opportunity to show their crime did not reflect irreparable corruption.”
Kennedy appeared to be letting states off easy by negating any need to resentence the juvenile lifers in court, much less to review their convictions. But leaders of a juvenile justice advocacy group working to abolish life-without-parole sentences view courts as a more receptive forum than state parole boards for inmates to gain their freedom. Heather Renwick, legal counsel for the Washington-based Campaign for the Fair Sentencing of Youth, says courts are a more favorable forum than politically appointed parole boards....
Nationwide, there are an estimated 1,300 prisoners serving life-without-parole sentences for offenses committed as juveniles. Louisiana and two other states, Michigan and Pennsylvania, account for the lion’s share. In Louisiana, Montgomery’s lawyer is impatient for the state’s high court to act. “It’s in limbo right now,” says Mark Plaisance, a private lawyer representing Montgomery on contract with the East Baton Rouge Parish public defender’s office.
Montgomery, who turns 70 in November, was sentenced for killing a school truancy officer in 1963 when he was 17. Plaisance says Montgomery shares his impatience with the delayed follow-up. “Not only him but several of the defendants are antsy about how quick can we get back into court,” Plaisance says.
For its part, the juvenile sentencing group acknowledges the slow pace but takes encouragement from recent moves by Utah and South Dakota to become the 15th and 16th states to abolish life-without-parole for juvenile offenders altogether. “There is broad bipartisan support for alternatives to death-in-prison sentences for children,” says Jody Kent Levy, the group’s director and national coordinator. “Still, there is work to be done to ensure reforms are implemented meaningfully.”
Prior related post with my scholarly take on Montgomery:
Wednesday, May 11, 2016
Sixth Circuit panel sends Miller litigation about Michigan juve LWOPers needs review anew after Montgomery
A Sixth Circuit panel today issues an interesting (non)opinion about the state and fate of federal litigation over the fate and future of Michigan juveniles serving LWOP sentences that are unconstitutional because imposed under a mandatory sentencing system. Here is how the opinion in Hill v. Snyder, No. 13-2661 (6th Cir. May 11, 2012) (available here), gets started:
This long-running case returns us to the difficult topic of juvenile crime and punishment. Our return, however, is to a new legal landscape, one defined by the Supreme Court’s developing jurisprudence recognizing that the unique characteristics of youth matter in determining the propriety of their punishment. This case began when Michigan charged and tried the named plaintiffs as adults for acts they committed while under the age of 18. Each received a conviction for first-degree murder and a mandatory sentence of life in prison. Michigan laws in place at the time rendered anyone convicted of firstdegree murder ineligible for parole, meaning that the plaintiffs in this case effectively received mandatory sentences of life in prison without the possibility of parole for acts they committed as children.
Plaintiffs filed suit in federal district court in 2010 challenging, among other things, the constitutionality of the Michigan statutory scheme that barred them from parole eligibility. Since that time, at least three important legal events have come to pass. First, the Supreme Court held in Miller v. Alabama, 132 S. Ct. 2455 (2012), “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.’” Id. at 2460. Second, Michigan amended its juvenile offender laws in light of Miller, but made some of those changes contingent upon either the Michigan Supreme Court or the United States Supreme Court announcing that Miller’s holding applied retroactively. See Mich. Comp. Laws Ann. §§ 769.25, 769.25a (2014). And, third, the United States Supreme Court recently held in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that Miller’s prohibition on mandatory life without parole for juvenile offenders is indeed retroactive.
The district court wisely (and presciently) reached the conclusion that Miller should apply retroactively when it ruled on the parties’ cross-motions for summary judgment in 2013. That conclusion also drove the district court’s issuance of an injunctive order against defendants requiring compliance with Miller. In light of the legal changes described above, however, and for the reasons that follow, we VACATE the challenged district court orders and REMAND for the district court to address these issues under the legal landscape established by Montgomery v. Louisiana, Miller v. Alabama, and this opinion.
Sunday, April 17, 2016
"Montgomery's Messy Trifecta"
A few weeks ago, I finally found a bit of extra time to dig into the doctrinal particulars of the Supreme Court's important ruling in Montgomery v. Louisiana, which finally clarified that its 2012 ruling in Miller v. Alabama was to be applied retroactively. Because I was pleased with the substantive outcome in Montgomery, at the time of the decision I did not give too much attention or thought to just how the Justices got to that outcome. But once I found time to focus on the doctrine developed in Montgomery, I decided I was not too impressed. Indeed, troubled by the Montgomery doctrinal particulars, I got motivated to write this little commentary which carries the same title as the title of this post. And, via SSRN, here is the abstract for my short commentary about Montgomery:
Montgomery v. Louisiana arrived at the Supreme Court at the intersection of three conceptually challenging and jurisprudentially opaque areas of law. First, Montgomery came to the Court as an Eighth Amendment case requiring the Justices to struggle yet again with the counter-majoritarian question of what limits the Cruel and Unusual Punishments Clause puts on government powers to impose certain sentences on certain defendants for certain crimes. Second, Montgomery came to the Court as a retroactivity case requiring the Justices to struggle with the practical question of how new constitutional rules are to apply to old and seemingly settled criminal judgments. Third, Montgomery became a federalism case because the Justices, when granting certiorari review, added the jurisdictional question of whether the Court even had authority to review how Louisiana had implemented the Supreme Court’s prior decisions on Eighth Amendment and retroactivity issues.
In this short essay, I briefly discuss the doctrinal puzzles of Montgomery in each of these three areas of law --- Eighth Amendment limits on sentences, retroactivity of new constitutional rules, and federal review of state criminal adjudications. Specifically, I explain how the Montgomery opinion achieved a messy trifecta: through one relatively short opinion, the Supreme Court managed to make each of these areas of law significantly more conceptually challenging and jurisprudentially opaque than they already were.
Tuesday, April 12, 2016
Ninth Circuit talks through requirements for Miller resentencing a decade after mandatory LWOP
The Ninth Circuit yesterday issued an interesting opinion faulting a district court for how it limited the evidence it considered and other problems with how it conducted a resentencing of a juvenile murderer given a mandatory LWOP sentence a decade before such a sentences was deemed unconstitutional by the Surpeme Court. Miller fan will want to read US v. Pete, No. 14-103 (9th Cir. April 11, 2016) (available here), in full, and here is how the opinion starts and along with some key passages from the heart of its analysis:
Branden Pete was 16 years old when he committed a crime that resulted in a mandatory sentence of life without the possibility of parole. Later, Miller v. Alabama, 132 S. Ct. 2455 (2012), held unconstitutional for juvenile offenders mandatory terms of life imprisonment without the possibility of parole. On resentencing, the district court refused to appoint a neuropsychological expert pursuant to 18 U.S.C. § 3006A(e) to help Pete develop mitigating evidence.
Our principal question on appeal is whether the district court abused its discretion in declining to appoint such an expert to aid the defense. We conclude that it did, and so remand for appointment of an expert, and for resentencing after considering any expert evidence offered. We also consider, and reject, Pete’s other challenges to his resentencing....
In rejecting the motion to appoint an expert, the district court ... noted that Pete’s upbringing and the circumstances of the crime have not changed, and maintained that because a psychiatric evaluation had been done in 2003, a second evaluation would be “duplicative.” “[I]t is difficult to conceive how,” the district court stated, “the passage of time may impact [the psychiatric] evidence” presented during the pretrial proceedings nearly ten years before. Further, the district court held that the impact of incarceration on Pete “is not the type of mitigating evidence which Miller contemplates.” We disagree with the district court as to all three aspects of its reasoning....
When the district court ruled that no expert testimony was “necessary,” it ignored Miller’s reasoning and directives. At the time of resentencing, Pete’s neuropsychological condition had not been evaluated in more than a decade. An updated evaluation could have revealed whether Pete was the same person psychologically and behaviorally as he was when he was 16. Rather than being “duplicative,” as the district court believed, a new evaluation could have shown whether the youthful characteristics that contributed to Pete’s crime had dissipated with time, or whether, instead, Pete is the “rare juvenile offender whose crime reflects irreparable corruption.” Id. at 2469 (citation omitted); see also Montgomery, 136 S. Ct. at 733. Similarly, without current information relating to the policy rationales applicable specifically to juvenile offenders, Pete was hamstrung in arguing for a more lenient sentence.
More specifically, the significant mitigating evidence available to Pete at resentencing, other than his own testimony and that of his lawyer (neither of which the district court credited), would have been information about his current mental state — in particular, whether and to what extent he had changed since committing the offenses as a juvenile. This information was directly related to Pete’s prospects for rehabilitation, including whether he continued to be a danger to the community, and therefore whether the sentence imposed was “sufficient, but not greater than necessary, to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a); see id. (a)(2)(C), (D). Such information is pertinent to determining whether, as Miller indicates is often the case, Pete’s psychological makeup and prospects for behavior control had improved as he matured, with the consequence that his prospects for rehabilitation and the need for incapacitation had changed.
April 12, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2)
Wednesday, April 06, 2016
Examining how Michigan, thanks to Montgomery, is struggling through Miller retroactivity
A couple of month ago I flagged here a press report on the legal and practical challenges unfolding in Pennsylvania after the Supreme Court's ruling in Montgomery v. Louisana forced the state to start dealing with all its now-unconstitutional mandatory juve LWOP sentences. Now I see this similar story from Michigan headlined " Hundreds of Mich. juvenile lifer cases to be reviewed." The lengthy and details article gets started this way:
Hundreds of killers sentenced to mandatory life without parole while in their teens could be resentenced this year, but a debate over how to process the cases has left prosecutors and lawyers in limbo. The Michigan Court of Appeals has been asked to decide whether a judge or jury should consider whether to give offenders new sentences. A hearing is anticipated, but a date to make arguments hasn’t been set.
The U.S. Supreme Court ruled in 2012 that sentencing a person under 18 to life in prison without parole constitutes “cruel and unusual punishment.” The decision potentially affects 363 cases in Michigan dating to 1962.
Prosecutors have been required to provide a list to the chief judge in every county of the cases that may require resentencing. Wayne County has the most, at 152. Oakland is second with 49, followed by Genesee with 26 and Kent with 24. Macomb has 12 cases to be reconsidered for sentencing. Prosecutors will have to make legal motions to resentence those they feel still deserve life without parole. Other defendants will get a minimum of 25-40 years and a maximum of 60 years to serve before automatically being considered for parole.
Critics, including families of victims, argue mandatory resentencing may be unjust and open old wounds for victims who thought their cases were settled. Local law enforcement officials and prosecutors predict the process will be lengthy, costly and could further traumatize families.
Gov. Rick Snyder has recommended adding $1.1 million to the state budget to fund 11 full-time employees at the State Appellate Defenders Office for compliance with the Supreme Court ruling. But prosecutors, struggling with smaller staffs and tighter budgets, say they need more money too. Defense and appellate attorneys agree it’ll cost money to process the cases, but they argue it’s the right thing to do.
Many young offenders are immature, act impulsively and often are under the direction of older defendants, advocates say. Some juvenile lifers already have served beyond the minimum sentences that would have otherwise taken effect under resentencing, but for the pending hearing in the Michigan Court of Appeals.
“The bottom line is we’re not opening the doors and letting them all out — there will be a process and a hearing and some will be determined unfit for release,” said Valerie Newman, an assistant defender in the State Appellate Defenders Office. “And there will still be parole hearings.”
County prosecutors in Michigan say the process will take time, money and care to ensure that people who should be in prison stay there. St. Clair County Prosecutor Michael Wendling, who recently testified before a state Senate subcommittee on potential problems with resentencing, said: “It will tie up my staff and also challenge our resources — and I have only four cases; some counties have more than a hundred.” Wendling said after it is determined a case will be resentenced, it will mean locating victims, witnesses and experts and diverting assistant prosecutors from new cases.
Among Wendling’s old cases is one from 2010 in which Tia Skinner, then 17, plotted with a boyfriend to kill her parents after they took away her cellphone. Skinner has been resentenced twice, Wendling said. Another involves James Porter, then 17, of Yale who on one morning in 1982, balanced a .22 rifle on the handlebars of his bicycle, pedaled to the house of a friend with whom he had a dispute and fatally shot the teen and four family members. “I suspect we will be seeking the same sentences on all four of our juvenile lifers — these aren’t shoplifting cases,” Wendling said.
Saturday, April 02, 2016
Noticing the notable nature of states now categorically banning LWOP for juvenile murderers
This Washington Post piece by Amber Phillips spotlights an interesting reality as states continue to engage with some of the Supreme Court's recent Eighth Amendment jurisprudence. This piece is headlined "States are getting rid of life sentences for minors. And most of them are red states." Here are excerpts:
As America revisits its tough-on-crime policies from decades past, much of how to fix our criminal justice system is still up for debate. Most prominently, a bipartisan bill to rewrite the nation's sentencing laws is slogging through Congress and may well get stuck there.
But criminal justice reform advocates are celebrating a surprising amount of success in one area largely off the radar of the national debate: banning the practice of sentencing minors to life in prison without parole.
Twenty-one states ban entirely or in most cases the practice of sentencing minors to life without parole. Many of those bans have been instituted in the past decade. Lately, Republican-leaning states have been picking up the cause, an indication that the sentencing practice instituted in the 1990s is on its way out.
On Tuesday, Utah became the second state this year to ban such sentences, after South Dakota. And in the past few years, Wyoming, Nevada and West Virginia have instituted some version of the ban. Since a critical 2012 Supreme Court decision on this issue, the number of states that have banned the practice has more than tripled, said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth.
The debate, like many others in criminal justice reform, is hard to separate from race; advocates say the minors who have been sentenced to life without parole are 10 times as likely to be black than white. "There's clearly been a shift and a recognition that young people need to be held accountable in more age-appropriate ways, and we've really gone too far in our approach to youth sentencing," Lavy said....
In Utah, the debate to eliminate the practice from the books went pretty smoothly, said state Rep. Lowry Snow (R), who sponsored the bill. "I didn't have to twist a lot of arms," he said.
Snow and advocates say the arguments speak for themselves; they cite research that adolescents' brains are still growing and, thus, are not as skilled as adults' in controlling impulses or thinking through long-term actions. "They're not the same people when they're 16, 17, 18 than they are when they're 40 and 50 years old," he said.
Another argument that seems to resonate among more conservative, religious lawmakers is one of redemption. "Utah is very prone to a recognition that there can be redemption and people can be given a second chance," Snow said....
At its basic level, the debate over whether to keep or get rid of life sentences without parole mirrors the debate over the death penalty: What's the most appropriate way to punish someone for a heinous crime? In that sense, there is still opposition to the idea of banning life-without-parole sentences for minors.
Some crimes "are so heinous, so violent, so destructive … that maybe in rare cases they should receive the sentence of life without parole," state Rep. Merrill Nelson (R) said on the floor of the Utah statehouse after he spoke with the father of a teen who was killed by another teen. "Why should we take that discretion away from the judge?"
A victims advocacy group, the National Organization of Victims of Juvenile Murderers, says a ban is out of step for several reasons: The potentially un-ending parole process is often "torture" for a victim's family, and while it doesn't advocate for any specific sentence, it does not see why the life-without-parole option should be taken off the table....
And success, as described here, is relative. More than half of U.S. states still allow the sentence, after all. But given the broader political context in which these bans are coming, criminal justice reform advocates will take what they can get.
Thursday, March 31, 2016
Fair Punishment Project releases first major report: "Juvenile Life Without Parole in Philadelphia: A Time for Hope?"
In this post yesterday I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). Today I received an email concerning the great new work of this great new initiative. Here is part of this email reporting on this new report from FPP:
As Pennsylvania prepares for hundreds of resentencing hearings, a new report released today by the Fair Punishment Project and Phillips Black highlights Philadelphia’s frequent use of life without parole sentences for juveniles, calling the county an “extreme outlier” in its use of the punishment. The report urges District Attorney Seth Williams to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively.
The report, Juvenile Life Without Parole in Philadelphia: A Time for Hope?, notes that Philadelphia County is responsible for the highest number of juvenile life without parole sentences in the country. By way of comparison, Philadelphia County is home to just .5% of all Americans, but at least 9% of all juveniles sentenced to life without parole — or nearly one in 10.
“The latest scientific research show us that juveniles have a tremendous capacity to change their behaviors as they age,” stated Johanna Wald, a spokesperson for the Fair Punishment Project. “It is an injustice, and waste of taxpayer resources, to keep individuals locked up until their death for crimes they committed when they were teenagers. They should have an opportunity to prove they are worthy of a second chance.”
Wald notes that the Supreme Court has set a high bar to justify a life without parole sentence for juveniles. “The court has said that juvenile life without parole sentences should be reserved for exceptional cases that reflect ‘irreparable corruption.’ Given that adolescent brains are not fully developed and the capacity children have to change, the court rightfully assumes that it will be rare for an individual to meet this standard.”...
“Philadelphia has sentenced more juveniles to life without parole than anywhere else in the United States,” said John Mills of Phillips Black. “It is an outlier jurisdiction that, thanks to the court’s ruling, now has the opportunity to right the harsh punishments of the past by providing a thoughtful and measured approach to resentencing.”
March 31, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Wednesday, March 30, 2016
Fourth Circuit refuses to allow federal juvenile defendant to be tried as adult on charge carrying death or madatory LWOP
A number of helpful readers alerted me to this interesting Fourth Circuit panel ruling today in US v. Under Seal, No. 15-4265 (4th Cir. March 30, 2016) (available here), which gets started this way:
Pursuant to 18 U.S.C. § 5032, the Government filed a motion to transfer the Defendant -- who was a juvenile at the time of the alleged offense -- for prosecution as an adult for murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). This crime carries a mandatory statutory penalty of either death or life imprisonment. The district court denied the Government’s motion after concluding that the prosecution would be unconstitutional given that recent Supreme Court decisions have held that the United States Constitution prohibits sentencing juvenile offenders to either of these punishments. See Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life imprisonment); Roper v. Simmons, 543 U.S. 551 (2005) (death penalty).
The Government appeals the district court’s decision, contending that its transfer motion should have been granted because the Defendant could have been sentenced to a term of years up to a discretionary life sentence. For the reasons set forth below, we affirm the district court’s decision.
Sunday, March 20, 2016
South Dakota bans all juve LWOP sentences
As reported in this local article, as of last week "South Dakota has banned the practice of sentencing children to life in prison without the possibility of parole." Here is more about this notable legislative development:
Gov. Dennis Daugaard signed SB 140 sponsored by Sen. Craig Tieszen, into law on Wednesday. In making this change, South Dakota joins states such as Wyoming, Nevada and West Virginia in implementing less punitive accountability measures for children.
“Every year I try to bring at least one bill that I truly believe in while knowing it will be a struggle,” said Sen. Tieszen. “I believe that children, even children who commit terrible crimes, can and do change. And, I believe they deserve a chance to demonstrate that change and become productive citizens. In the end, I gathered a very diverse set of legislators from across the political spectrum and passed the bill with solid margins.”
SB 140 eliminates all life sentences for people who were younger than 18 at the time of their crimes. Fifteen states now ban life-without-parole sentences for children.
“South Dakota is helping to lead important change in the ways that we hold our children accountable,” said Jody Kent Lavy, director and national coordinator at the Campaign for the Fair Sentencing of Youth. “Teenagers who commit serious crimes will now have an opportunity after several years to demonstrate that they have been rehabilitated and are ready to re-enter society. Jurisprudence and adolescent development research document that appropriate sentences consider children’s age at the time of a crime, the trauma they have experienced and their capacity for change.”
Thursday, February 25, 2016
Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively
This local article from Florida, headlined "Killer's brain development at issue in re-sentencing," provide a significant and sobering (and ultimately incomplete) account of the challenges many courts in many states are to face as they comply with the SCOTUS mandates in Miller and Montgomery that require the resentencing of any and every teen killer previously given a mandatory LWOP sentence. Here are the basic details about this local case:
Maddie Clifton's killer will have his brain development reviewed by an expert before his re-sentencing hearing, a judge decided Thursday. Joshua Phillips, now 31, was convicted in the 1998 murder of 8-year-old Maddie and was sentenced to life without parole. At the time of the murder, Phillips was 14....
The U.S. Supreme Court ruled in 2012 that automatic life without parole sentences for juveniles are unconstitutional. In 2015, the Supreme Court said that law applies to previous cases and that it is retroactive ....
“We have a duty to re-sentence the man and give him a proper opportunity,” Judge Waddell Wallace said in court Thursday.
Phillips' attorney, Tom Fallis, filed two motions with the court: one for a new sentencing hearing and another to have the court cover the costs of calling new experts to determine the proper sentencing. Both motions were granted.
Fallis said some of the medical expertise from Phillips' original trial is no longer relevant, because of current research into juvenile psychology. "We're going to need a lot of experts," Fallis said. "This is going to be a very long hearing when it's set, and there will be evidence from what's happened in the last 20 years, what's happened in prison. I suspect there may be experts on prison life and how it affected a 14-year-old' who's now 30 some odd years old' and so the court needs to be educated. And the way you do that is through experts."
The state argued that calling new specialists and expert could be “absurd” and costly, but Wallace agreed to hiring a new expert and said the findings will be essential to the case, because of Phillips' brain development.
Police said Phillips, Maddie's neighbor, stabbed her and clubbed her to death in his San Jose area home. He hid her body under his waterbed in his room. Phillips' mother discovered the body a week later, after a massive search for the missing girl. Phillips was convicted a year later.
I submitted amicus briefs in both Miller and Montgomery arguing for the Eighth Amendment rules as adopted and applied in those case, and I think it appropriate that this defendant finally have a chance for a discretionary sentencing hearing after he was decades ago mandatorily given an LWOP sentence for a crime committed at age 14. And, though I am not quite sure this defendant really needs " a lot of experts" funded by the state to proceed with a proper resentencing, I also think it appropriate that the judge in this case recognized the need for giving the defense some additional resources to conduct a sound "Miller" resentencing.
That all said, I also think it appropriate for any and everyone like me who approved of the results in Miller and Montgomery to note and cope with the considerable costs that taxpayers and individuals are now going to have to endure. Court resources are always finite, both in terms of time and money, and this press story highlights that it seems a significant amount of the limited court resources are now going to have to be devoted to the very challenging task of figuring out what now is a fair and effective sentence for "Maddie Clifton's killer," Joshua Phillips. Moreover, and not mentioned in this story, I can only begin to imagine the emotional challenges that resentencing in this case will create for any and everyone connected to both the defendant and the victim.
Though I continue to believe that mandatory juve LWOP sentencing is very wrong, this story is a reminder that it did have the notable virtue of being very easy.
February 25, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)
Sunday, February 07, 2016
A useful reminder that, even after Montgomery, SCOTUS will continue to be asked to address juve LWOP
BuzzFeed News reporter Chris Geidner has this effective new piece discussing the reality that SCOTUS is sure to be presented in the years ahead with Eighth Amendment challenges to any and every LWOP sentence given to a juvenile offender. The piece is headlined "An Uncertain Path Ahead For Juvenile Sentencing Cases Still Before The Supreme Court," and here are excerpts:
Cortez Davis is serving life in prison under Michigan’s felony murder statute for a killing that occurred when he was 16 years old. Davis was not the gunman, the trial judge in his case found, but was a participant in a robbery when the fatal shooting took place. Nonetheless, under the Michigan law, because he was a key participant in the underlying felony, he was charged with felony murder. Davis was sentenced to life without the possibility of parole — the mandatory sentence in the mid-1990s.
More than a year ago, lawyers for Davis asked the Supreme Court to take up their client’s challenge to a lower court decision that upheld that sentence. Now, following a recent Supreme Court decision, his challenge and several others are likely to be sent back to lower courts — a move that could, depending on what state courts do next, put off even further the chance people like Davis have to reduce or end sentences the court has repeatedly thrown into question in recent years.
The petitions ask the justices to address how and under what circumstances states can sentence juveniles to life without parole, including in a handful of cases in which the convictions are for felony murder. Over the past decade, the court has taken up several cases addressing juvenile justice issues. The court ended the eligibility of juveniles for the death penalty in 2005, and has since, in a series of rulings, narrowed the eligibility of juveniles for life sentences.
Last week, the court handed down yet another significant ruling on juvenile sentencing — this one in the case of Henry Montgomery — that deals with complicated legal issues, but has major consequences. The court, in an opinion by Justice Anthony Kennedy, held that the 2012 ban on sentences of mandatory juvenile life in prison without the possibility of parole applied not just going forward, but also to those sentenced in the past like Montgomery. Montgomery is in jail for a killing he committed at 17 in 1963....
Far from a narrow procedural ruling, Kennedy explained that the 2012 ruling — Miller v. Alabama — was a substantive one, and, in its wake, “it will be the rare juvenile offender who can receive that same sentence.” While Montgomery’s case was pending, however, the court left several related cases like Davis’s one — all of which ask the court to go further down this path — waiting for action from the justices.
Most expect the justices now to send those cases back to lower courts to consider how the Montgomery decision affects their respective cases. During that period, how state courts interpret the Supreme Court’s ruling could vary widely. How rare is the “rare juvenile” that Kennedy writes about whose crime reflects “irreparable corruption”? How do states make that determination?...
On Jan. 25, Kennedy detailed the court’s decision that Louisiana had to give retroactive effect to the Supreme Court’s 2012 decision in the Miller. In the wake of that decision, it’s likely that the justices will send Davis’s case back to the Michigan Supreme Court to reconsider it. As Kennedy suggested in the Montgomery decision, Michigan either could re-sentence Davis — considering whether his crime reflects “permanent incorrigibility” — or make him eligible for parole consideration.
If Davis is re-sentenced instead of being granted a chance at parole, however, and if he is sentenced to life again, then he likely would go back to the U.S. Supreme Court — asking the court, again, to hear his case on the felony murder question. (As is already being seen in Montgomery’s case, state officials in Louisiana have told the state’s supreme court that their aim is to re-sentence those with mandatory life without parole sentences, rather than give them the possibility of parole.)
February 7, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Tuesday, February 02, 2016
"The Irrationality of Natural Life Sentences"
The title of this post is the headline of this New York Times Opinionator column authored by Jennifer Lackey. Here are excerpts:
[Personal] transformations can be seen most clearly by considering the two ends of the spectrum of life. On the early side, it is often noted that the prefrontal cortex of the brains of adolescents is still developing, and so they are more likely than adults to act on impulse, engage in dangerous or risky behavior, and misread social cues and emotions. This raises a host of questions about the level of responsibility that juveniles bear for their crimes and the appropriate punishments that should be handed out to them. If the underdeveloped brains of adolescents at least partly explain their criminal behavior, then holding them fully responsible for their actions, and punishing them as adults, seems wildly off the mark.
On the later side of the spectrum, only 1 percent of serious crime is committed by people over the age of 60. According to Jonathan Turley, a professor of public interest law at George Washington University: “Everyone agrees on what is the most reliable predictor of recidivism: age. As people get older, they statistically become less dangerous.” Turley refers to this period as “criminal menopause,” a phenomenon that raises serious questions about the rationale for incarcerating the elderly. Still, researchers project that the elderly prison population in the United States will be over 400,000 in 2030, compared with 8,853 in 1981.
At the early end of the spectrum of life, then, there is the possibility that prisoners might change; at the later end, there is the reality that they have changed. Both facts bump up against natural life sentences. A sentence of “natural life” means that there are no parole hearings, no credit for time served, no possibility of release. Short of a successful appeal or an executive pardon, such a sentence means that the convicted will, in no uncertain terms, die behind bars.
Many types of arguments have been leveled against natural life sentences. Economic ones focus on the ballooning costs of mass incarceration and the toll this takes on government budgets, especially as the age and medical expenses of prisoners rapidly increase. Legal ones ask whether such sentences are cruel and unusual and therefore violate the Eighth Amendment, particularly for juveniles. Social arguments ask whether natural life sentences discourage reform by providing no incentive for rehabilitation. Moral concerns are grounded in the dignity and rights of prisoners, while psychological objections call attention to the myriad causes of deviant behavior and their responsiveness to appropriate treatment.
But one argument that is surprisingly absent from these conversations is an epistemic one that has to do with us. For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal. Nothing. So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated. Our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.
Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform. Even if we set aside the other arguments against natural life sentences — economic, legal, moral and so on — the question I want to ask here is this: how is it rational to screen off the relevance of this information? How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades-from-now prisoner deserves?...
Notice that nothing in the epistemic argument here suggests that no prisoners should, in fact, spend the rest of their natural lives behind bars. Instead, the point is that rationality requires that we leave the epistemic door open to acquiring new information. Put bluntly, the argument says that it is irrational for the possibility of parole to be taken off the table at the outset of any sentence.
If Hume is right that “a wise man proportions his belief to the evidence,” then our beliefs about the punishment a person deserves at any given time need to be sensitive to the evidence available at that time. But if we screen off huge amounts of potentially relevant information decades before the beliefs about what a prisoner deserves are even formed, then it is impossible for them to be proportioned to the evidence.
February 2, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)
Monday, January 25, 2016
Does SCOTUS ruling in Montgomery actually minimize likelihood of full constitutional ban on juve LWOP sentences?
The question in the title of this post is my first "now what" thought concerning the Supreme Court's ruling today in Montgomery v. Louisiana, No. 14–280 (S. Ct. Jan. 25, 2016) (available here), and the future of Eighth Amendment jurisprudence. It was prompted in part by the first post-Montgomery e-mail I received: it stressed that juvenile justice advocates have "urged the Court to rule that JLWOP is unconstitutional in all cases [and now] two cases with petitions for certiorari currently pending, Houston v. Utah and Jacobs v. Louisiana, ask the Court to invalidate JLWOP in all cases."
For a host of reasons, I am pleased that a majority of Justices in Montgomery concluded that the Eight Amendment rule announced in Miller precluding the mandatory imposition of life without parole to juvenile murderers is to be applied retroactively to all cases. But the fact that the Justices reached this result by calling Miller substantive, and especially the fact that Chief Justice Roberts joined the Court's opinion in Montgomery, leads me to think we might not see the Justices show interest in even considering a categorical ban on all juve LWOP sentences for some time.
Of course, I am just reading broad Eighth Amendment tea leaves here (and doing so even before I have had a chance to read Montgomery closely). Of course, the five Justices who made up the Graham and Miller majorities could on their own, without the Chief Justice along for the ride, decide to extend their Eighth Amendment jurisprudence to create a categorical bar on all juve LWOP sentences. But this five-some of Justices had their chance to reach such a result in the original Miller case and amici urged the Court to use Montgomery as another chance to do the same. The fact that the Supreme Court has now twice resisted extending Graham to all juvenile crimes, and especially now that the Justices have ensured (with the help of the Chief Justice) that no juve offenders will ever be subject to LWOP without a sentencing judge deciding such a sentence was truly justified, leads me to predict that it may now be quite a while before the Justices consider seriously a categorical ban on all juve LWOP sentences as a constitutional mandate.
Prior related post on Montgomery:
SCOTUS declares Miller juve LWOP rule retroactive in Montgomery v. Louisiana
Via a 6-3 ruling authored by Justice Kennedy, the Supreme Court this morning decided via Montgomery v. Louisiana, No. 14–280 (S. Ct. Jan. 25, 2016) (avaialable here), that "Miller announced a substantive rule that is retroactive in cases on collateral review." This is huge news for lots of reasons, and I will likely have a series of posts on this ruling and its reasoning in the hours and days and weeks ahead.
Intriguingly, the majority opinion for the Court spent relatively more energy justifying jurisdiction in the case than the declaration that Miller is a substantive rule under Teague's framework for retroactive applicaton of new constitutional rules. In any event, here are a few key passages from the tail end of the Court's Montgomery opinion explaining its ruling:
The Court now holds that Miller announced a substantive rule of constitutional law. The conclusion that Miller states a substantive rule comports with the principles that informed Teague. Teague sought to balance the important goals of finality and comity with the liberty interests of those imprisoned pursuant to rules later deemed unconstitutional. Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.
Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. §6–10–301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity — and who have since matured — will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.
Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition — that children who commit even heinous crimes are capable of change.
Monday, January 04, 2016
Notable new reporting on juve LWOP as we await SCOTUS ruling on Miller retroactivity
As helpful reader alerted me to notable new reporting from The Marshall Project and Mother Jones focused on one particular juvenile offender serving a mandatory LWOP sentence in Louisiana as well as broader juve LWOP realities. The lengthy main piece, available here via the Marshall Project, is headlined "This Boy’s Life: At 16, Taurus Buchanan threw one deadly punch — and was sent away for life. Will the Supreme Court give him, and hundreds like him, a chance at freedom?". Here are a couple of paragraphs setting the table for the case-specific tale:
Taurus Buchanan stood trial in the era of the “superpredator,” the label applied to violent juveniles in the mid-1990s, when states and the federal government passed one tough-on-crime law after another. Today, two decades later, a trio of rulings from the US Supreme Court has peeled back some of those laws, recognizing the folly of assigning equal culpability to adults and kids. In October, the court heard arguments in a fourth case, and how that ruling comes down could determine what happens to hundreds of lifers sent to prison when they were kids....
Between 1992 and 1999, 49 states and the District of Columbia made it easier to try juveniles as adults. Some states removed consideration of youth altogether, replacing discretion with compulsory triggers. By 2012, there were 28 states across the nation that were handing out mandatory life-without-parole sentences to juveniles.
One was Louisiana, where Taurus exemplified how mandatory sentencing could render a defendant’s youth meaningless. Once he was charged with second-degree murder, Taurus was automatically tried as an adult because he was over the age of 14. If convicted, he would automatically be sentenced to life without parole.
By 2015, more than 2,230 people in the United States were serving life without parole for crimes committed as juveniles, according to data compiled by the Phillips Black Project, a nonprofit law practice that collected information on all 50 states. In 2007, the Equal Justice Initiative, a nonprofit law organization based in Alabama, found that there were 73 cases in which kids were sent away for crimes they committed at age 13 or 14. One was sentenced to life for kidnapping, another for sexual battery, another for taking part in a robbery in which someone was shot but survived.
The Phillips Black data shows that, with 376, Pennsylvania currently has the most people serving juvenile life sentences. But Louisiana has a higher number of such inmates per capita than any other state. Of the 247 inmates in Louisiana, 199 are African American. In East Baton Rouge Parish, where Taurus stood trial, the racial disparity is even starker: Almost half of the parish population is white, but 32 of the 33 serving juvenile life-without-parole sentences are black.
These two companion pieces provide more details on the Phillips Black juve LWOP data and how it was compiled:
January 4, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (1)
Monday, October 12, 2015
Montgomery wards: noticing the lack of originalism analysis of sentencing finality
As noted in this prior post, I have been doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana, and today's post is of the "dog that didn't bark" variety. Specifically, upon quickly reviewing the 20+ briefs that have been submitted in Montgomery (all of which can be found via this SCOTUSblog page), I noticed that there was essentially no discussion of what an originalist constitutional interpretation would have to say about finality/retroactivity doctrines like Teague and their application to Eighth Amendment doctrines or sentencing outcomes more generally. (Notably and tellingly, a number of briefs discussing the jurisdictional issue flagged by SCOTUS in Montgomery do provide some originalism analysis of that issue. But these briefs, nor any of those just focused on the finality/retroactivity issue, had anything to say about how an originalist perspective might inform the Court's work in this case.)
For those who are not big fans of originalist constitutional interpretation, perhaps the absence of any discussion or debate in the Montgomery briefing about what the Framers would have thought about Eighth Amendment retroactivity is a welcome development. But as I sought to spotlight in this recent law review article and this blog post last year, I think it would be interesting and potentially quite useful to examine at some lengthy whether and how the Framing generation considered finality/retroactivity issues. Of particular note, as I explain in my article, the text of the Constitution itself reveals, at least indirectly, that the Framers likely did not have an especially strong commitment to criminal justice finality interests:
The Constitution’s text can be read to suggest the Framers were decidedly eager to provide or preserve opportunities for defendants to seek review and reconsideration of their treatment by government authorities. Article I, Section 9 instructs Congress that the “Privilege of the Writ of Habeas Corpus shall not be suspended,” Article II, Section 2 provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States,” and Article III, Section 2 provides that the Supreme Court “shall have appellate Jurisdiction.” These provisions codify in our nation’s charter all the traditional mechanisms long used by individuals to challenge or seek modification of the exercise of government power through criminal justice systems. These provisions alone may not support a strong originalist claim that the Framers disfavored treating criminal judgments as final. Nevertheless, by precluding Congress from suspending habeas review, by empowering the President to grant clemency, and by authorizing the Supreme Court to hear appeals, the Constitution ensured that criminal defendants in a new America would have various means to seek review and reconsideration of the application of governmental power even after an initial criminal conviction and sentencing.
In part because I am neither a historian nor especially enthralled by originalism, I did not pursue these ideas in this SCOTUS amicus brief that I helped submit in the Montgomery case. But I was hoping that maybe someone or some group drawn to originalism would discuss what an originalist constitutional interpretation might have to say about finality/retroactivity doctrines like Teague and their application to Eighth Amendment doctrines or sentencing outcomes more generally. One Justice who often seems drawn to Eighth Amendment originalism, Justice Thomas, almost never asks questions, and thus I am not expecting him to bring up the issue during oral argument. But maybe I can dream, at least for the next few hours, that Justice Scalia might enjoy puzzling the advocates by asking a question on this front during argument.
Prior posts in this series and concerning finality matters:
- Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case
- Montgomery wards: might SCOTUS decide it lacks jurisdiction to resolve juve LWOP retroactivity case?
- Montgomery wards: certain victims' family members voicing support for juve murderers getting a chance at resentencing
- Examining "sentence finality" at length in new article and series of posts
- Finality foundations: is it uncontroversial that "conviction finality" and "sentence finality" raise distinct issues?
- Is it fair to read the Constitution as evidence the Framers were not fans of finality?
- Form, function and finality of sentences through history: the Founding Era
Thursday, October 01, 2015
Montgomery wards: might SCOTUS decide it lacks jurisdiction to resolve juve LWOP retroactivity case?
As noted in this prior post, I am doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana in large part because I find the substantive issues that surround Eighth Amendment retroactivity so dynamic and interesting. But, critically, the Justices ordered briefing on a preliminary question for consideration in the Montgomery case: "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?"
I have a terrific research assistant drafting summaries of various amicus briefs submitted in Montgomery (all of which can be found via this SCOTUSblog page). Here is how he summarized and assessed this amicus filing which was requested by the court to make the argument against jurisdiction:
The United States Supreme Court appointed Willkie Farr & Gallagher LLP (“WFG”) to file an amicus brief arguing that the Court lacks jurisdiction to address the merits of whether or not Miller applies retroactively in state collateral proceedings. That is, the Court has charged WFG with the task of arguing that the Louisiana Supreme Court’s decision that Miller does not apply retroactively cannot be reviewed by the Court.
WFG’s amicus brief argues against the Court’s jurisdiction in two steps. First, WFG argues that whether or not Miller is retroactive in the state collateral review context can only present a federally reviewable issue if Teague is binding in such proceedings. Second, WFG argues that Teague is not binding in state collateral review proceedings because its holding was predicated upon a federal statute and nothing more. Consequently, Montgomery presents no question of federal law and so any opinion on the merits of the Miller retroactivity issue would be only advisory (or so goes WFG’s argument). Thus, the Court lacks jurisdiction to address the Miller retroactivity issue in Montgomery, at least in the case’s present procedural posture.
WFG’s argument turns entirely on the way in which the Louisiana Supreme Court adopted Teague some 23 years ago in a case called Taylor v. Whitley, 606 So. 2d 1292 (La. 1992). In that case, the Louisiana Supreme Court, in addressing the retroactive application of new constitutional rules, stated:
[W]e have yet to consider the issue of retroactivity on collateral review in light of Teague. We now do so and adopt the Teague standards for all cases on collateral review in our state courts. In doing so, we recognize that we are not bound to adopt the Teague standards. [. . .] [W]e now adopt Justice Harlan’s views on retroactivity, as modified by Teague and subsequent decisions, for all cases on collateral review in our state courts. Taylor, 606 So. 2d at 1296–97.
WFG argues that since the Louisiana Supreme Court expressly held that it was “not bound to adopt the Teague [retroactivity] standards,” its subsequent retroactivity decisions, while based entirely on Teague and its progeny, do not “fairly appear to rest primarily on federal law or be interwoven with federal law” such that the presumption of federal jurisdiction articulated in Michigan v. Long, 463 U.S. 1032, 1044 (1983), applies.
While this is surely one reading of Taylor, it is a narrow one. The argument can be made (and was made by both parties in this case, see Brief of Court-Appointed Amicus, Montgomery v. Louisiana, (No. 14-280), at 10) that the Court does have jurisdiction under the Long presumption.
Taylor supports this argument. The Taylor court states throughout its opinion that it is closely following and examining the federal case law on retroactivity. See Taylor, 606 So. 2d at 1293 (“In order to address the issue of retroactivity, we begin by tracing the evolution of the United States Supreme Court’s decisions in this area.”). Further, while the Taylor court stated that it did not feel compelled to adopt the Teague standards, it definitively held that it was adopting those standards and was doing so “as modified by ... subsequent decisions” for all cases in Louisiana under collateral review. Id. at 1297. In this way, Taylor supports the notion that Louisiana state law does not just “rest primarily on federal law” and is not just “interwoven with federal law,” but evolves with federal law in a expressly lock-step manner.
As a consequence, Louisiana law vis-à-vis retroactivity in state collateral review proceedings is (arguably) federal law vis-à-vis retroactivity in federal collateral review proceedings as expressed by Teague and “subsequent decisions.” Accordingly, if ever the presumption of jurisdiction embodied in Long applied in a case, this would be the case. To be fair, WFG’s argument is unsurprising given its task. Nonetheless, it will in all likelihood be a minor opening act to the main event during oral argument.
I share my RA's sentiment that it is very unlikely a majority of the Supreme Court will decides it lacks jurisdiction in Montgomery, and I suspect relatively little of the oral argument will be focused on this issues. But I suspect the Chief Justice (and perhaps a few other Justices) may be eager to use Montgomery to contend that state courts are never obligated to apply any part of the Teague doctrines that now control federal court retroactivity decisions. Consequently, this issue may get more attention in the argument and in the ultimate opinion than some may want.
Prior posts in series:
Tuesday, September 22, 2015
"No Hope: Re-Examining Lifetime Sentences for Juvenile Offenders"
The title of this post is the title of this notable new research report released today by Phillips Black, a nonprofit, public interest law office. The report, authored by John Mills, Anna Dorn, and Amelia Hritz, is timely with the Supreme Court due in three weeks to hear oral argument in Montgomery v. Louisiana concerning the retroactivity of its 2012 Miller juve LWOP ruling. In addition, I think this report (and related material assembled here) merits extra attention because it gives extra attention to racial realities that surround juve LWOP sentencing. Here is the report's executive summary:
In a handful of U.S. counties, teenagers are still being sentenced to a lifetime in prison with no chance of release. This harsh and increasingly isolated practice falls disproportionately on black and Hispanic youth and is a remnant of an earlier period of punitiveness based on an unfounded prediction of a new class of superpredators that never actually materialized.
While the use of this sentence has dramatically declined in recent years, it continues to be practiced in a relatively small number of jurisdictions. The Supreme Court now has the opportunity to declare juvenile life without parole a cruel and unusual punishment, far outside our standards of decency in the twenty-first century.
In Miller v. Alabama, the Court took the first step by forbidding mandatory sentences of life without parole for homicide offenses committed by juveniles ( JLWOP). The opinion, however, left open the question of whether the Eighth Amendment prohibits the imposition of life without parole upon juveniles entirely.
That question, the constitutionality of life without parole sentences for juvenile offenders, is being presented to the Court in two cases. In one case to be argued in October, the Court will consider whether its earlier rulings on this subject apply to past cases and not just cases going forward. A brief offered by the Charles Hamilton Institute for Race and Justice urges the Court to tackle the constitutional question of whether the punishment should stand at all. In another case, an inmate serving a JLWOP sentence has directly presented the question: “Does the Eighth Amendment prohibit sentencing a child to life without possibility of parole?”
This report examines the key evidence for answering the question of whether there is now a national consensus against juvenile life without parole. To make this assessment, the Court generally examines legislative enactments and actual sentencing practices. This report catalogs the rapid abandonment of JLWOP, both legislatively and in terms of actual use.
Although JLWOP dramatically expanded between 1992 and 1999—an era of hysteria over juvenile superpredators—since Miller states have rapidly abandoned JLWOP in law and practice.
Nine states have abolished JLWOP after Miller, bringing the current number of jurisdictions completely banning the sentence to fifteen. California and Florida, two of the most frequent users of the sentence, have dramatically limited the reach of JLWOP by restricting its application to a narrow set of circumstances. Moreover, North Carolina, Pennsylvania, and Washington have abolished JLWOP for a category of offenders. This pace of abolition far outstrips those that occurred in the years prior to the high Court’s rulings that the executions of juveniles and the intellectually disabled are unconstitutional. This report provides an in-depth analysis of state and county JLWOP sentencing practices. At the state level, just nine states account for over eighty percent of all JLWOP sentences. A single county, Philadelphia County, Pennsylvania, is responsible for nearly ten percent of all JLWOP sentences nationwide. Orleans Parish, Louisiana, has tenfold the number of JLWOP sentences as its population would suggest. Five counties account for more than one fifth of all JLWOP sentences. JLWOP, in practice, is isolated in a handful of outlier jurisdictions.
Finally, state sentencing practices also show marked racial disparities in JLWOP’s administration. Starting in 1992, the beginning of the superpredator era, a black juvenile offender would be twice as likely to receive a JLWOP sentence as his white counterpart. The disproportionate application of the punishment on juveniles of color is stark. All of Texas’s JLWOP sentences were imposed on persons of color. Pennsylvania has imposed it eighty percent of the time on persons of color.
There is now a growing consensus against JLWOP, calling into question its constitutionality. The policy’s suspect origins and disparate implementation require rigorous examination to determine whether it serves any legitimate penological purpose.
September 22, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)
Monday, September 14, 2015
Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case
In four weeks, the US Supreme Court will hear oral argument in Montgomery v. Louisiana. Here, via this SCOTUSblog posting and this official SCOTUS page, are the questions that the Justices will be considering in Montgomery:
Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?
Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.
Because both of these questions engage many interesting, important and dynamic issues, I am planning to do a (lengthy?) series of posts about this case and the various arguments that have been presented to the Justices via amicus briefs (including one I filed thanks to the efforts of good folks at the Columbus offices of Jones Day). As the title of this post reveals, I have decided to use "Montgomery wards" as the cheeky title for this coming series of posts.
Notably, as this new SCOTUSblog posting highlights, it would now appear that the Justices share my sense that the Montgomery case raises many interesting, important and dynamic issues because they have now scheduled additional argument time for the case. Here are the basics via Lyle Denniston's SCOTUSblog report:
The Supreme Court on Monday added fifteen minutes to the argument schedule for its hearing October 13 on Montgomery v. Louisiana, a case that could decide which juveniles convicted of murder can take advantage of a 2012 decision limiting sentences of life without parole for minors. The added time will allow a Court-appointed attorney to argue a question about the Court’s authority to actually rule on the legal issue in the case.
In March, the Justices agreed to hear the appeal of Henry Montgomery of Baton Rouge, who is seeking retroactive application of the Court’s decision in Miller v. Alabama, which had all but eliminated states’ power to sentence youths to life without parole, as punishment for committing a murder when they were under the age of eighteen. In taking on the case, however, the Court also added the question whether it has jurisdiction to review and rule on the Louisiana Supreme Court decision refusing to apply the Miller precedent to cases that had become final before June 25, 2012, when Miller was decided. Louisiana had raised that issue in a filing in an earlier case on the juvenile sentencing question.
Instead of the usual one hour of argument time, the Court in the Montgomery case will hear seventy-five minutes. The time will be divided this way: the Court-appointed attorney, Richard Bernstein of Washington, D.C., will have fifteen minutes to argue against the Court’s jurisdiction, Montgomery’s attorney will have fifteen minutes to argue both points, an attorney from the office of the U.S. Solicitor General will have fifteen minutes to argue both issues, and a lawyer for the state of Louisiana will have thirty minutes of time to argue both questions. The order also said that Bernstein and Montgomery’s lawyer will be allowed to save time for rebuttal.
The federal government, in a brief filed by the Solicitor General, supported Montgomery’s plea to apply Miller retroactively and argued that the Court does have jurisdiction to decide that question. The brief noted that there are twenty-seven inmates in federal prisons whose sentences could be affected by the retroactivity issue.
September 14, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Thursday, August 13, 2015
New juve research suggests punishment certainty matters over severity to achieve deterence
This recent posting via the Juvenile Justice Information Exchange, titled "Report: Certainty, Not Severity, Key in Deterring Juvenile Crime," spotlights recent research on juvenile punishment's impact. Here are excerpts:
Researchers first reported several years ago that a major longitudinal study of serious adolescent offenders showed the severity of their punishments had little effect on their recidivism rates. Digging into the data, the researchers also found that teenagers who commit serious crimes do respond to the threat or risk of sanctions, though not in a one-size-fits-all way.
In a new report released by the federal Office of Juvenile Justice and Delinquency Prevention [available here], researchers say the findings point to the need to devote resources to change risk perceptions, rather than prisons.
The report, “Studying Deterrence Among High-Risk Adolescents,” is one of several OJJDP bulletins based on research from “Pathways to Desistance,” the study that followed more than 1,300 young offenders for seven years after their court involvement.
The resulting research has found no meaningful reduction in offending or arrests due to more severe punishment, such as correctional placement versus probation or longer periods of institutional placement, the researchers said. But it did find that the certainty of punishment can play a role in deterring future crimes. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.
Edward Mulvey, the principal investigator on the Pathways study, said the idea that adolescents respond to the certainty of punishment, not severity, has found an audience with some policymakers. They are asking whether states should have to justify why the criminal justice system should hold an adolescent offender for a long time....
The new bulletin looks at how young offenders evaluate the risks of crime, which has a deterrence effect. Young people slightly increased their risk perceptions in response to an arrest, it found. The researchers said, though, there is no standard response to the certainty of punishment because risk perceptions vary based on individuals’ prior experiences or history of offenses and other factors.
August 13, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)
Wednesday, July 08, 2015
Federal habeas ruling decides Virginia's geriatric release does not permit juve LWOP
A helpful reader alerted me to a notable federal habeas decision handed down last week by a federal district court in Virginia. In LeBanc v. Mathena, No. 2:12cv340 (ED Va July 1, 2015) (available here), the federal judge rejected the claim embraced by the Supreme Court of Virginia’s decision that the state's geriatric release provisions allowed the sentencing juveniles to life without parole sentences without violating the Supreme Court's Graham ruling. The LeBlanc decision has a number of powerful passages, and here are some key portions of the 32-page ruling:
Virginia Code § 53.1-40.01 governs the possible release of geriatric prisoners, and provides for the opportunity of conditional releaseto prisoners who have reachedthe age ofsixty or older and have served at least ten years of their sentence, or who have reached the age of sixty-five or older and have served at least five years of their sentence. The Supreme Court of Virginia concluded that in light ofthis provision, Virginia's sentencing scheme can be construed as being in compliance with Graham. The Virginia Supreme Court held that the possibility of geriatric release provides a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."...
This theory of compliance is a misapplication of the governing legal principle of Graham—that children are different and warrant special consideration in sentencing.... By relying on a geriatric release provision — a provision that by its very name was designed to be invoked by and on behalf of the elderly — in an attempt to salvage unconstitutional sentences, the Supreme Court of Virginia and the state trial court missed the heart of Graham — that children are, and must be recognized by sentencing courts as, distinguishable from adult criminals....
If it can be said that Virginia's sentencing scheme treats children differently than adults, it would be because, tragically, the scheme treats children worse. Under Virginia's current sentencing policies, prisoners are serving sentences of life without the possibility of parole for nonhomicide offenses that they committed as children. Like any other prisoner in Virginia, regardless of their age at the time of the offense, if these prisoners live to see the age ofsixty or sixty-five, they may apply for geriatric release. This treats children worse than adults....
The Supreme Court has recognized that nonhomicide juvenile offenders serving life sentences must be given "the opportunity to achieve maturity ofjudgment and self-recognition of human worth and potential." Graham, 560 U.S. at 79. The distant and minute chance at geriatric release at a time when the offender has no realistic opportunity to truly reenter society or have any meaningful life outside of prison deprives the offender of hope. Without hope, these juvenile offenders are being discarded in cages and left to abject despair rather than with any meaningful reason to develop their human worth. This result falls far short of the hallmarks of compassion, mercy and fairness rooted in this nation's commitment to justice.”
Tuesday, July 07, 2015
"Juvenile Sentencing in Illinois: Addressing The Supreme Court Trend Away from Harsh Punishments for Juvenile Offenders"
The title of this post is the title of this notable piece by Maureen Dowling now available via SSRN. Here is the abstract:
The United States Supreme Court has steadily been changing the way it approaches juvenile sentencing since 2005. This ideological shift has occurred as a response to the increase in biological and sociological studies, which point toward fundamental differences between juveniles and adults. This Note addresses how the new mandates by the Supreme Court have been implemented around the country, with a focus on statutory changes Illinois should make moving forward. Specifically, this Note argues that there are several adjustments Illinois will have to make in regards to the way it sentences juvenile homicide offenders, in order to be considered Constitutional based on the analysis set forth by the Supreme Court in Roper v. Simmons, Graham v. Florida, and Miller v. Alabama.
First, lengthy, consecutive term-of-years sentences should be abolished because it does not give juvenile offenders the “meaningful opportunity for release” required by Graham. This Note suggests that courts need to look at the idea of a “meaningful opportunity for release” differently when sentencing juveniles as opposed to adult offenders, because studies have shown that adolescents who are imprisoned have a much lower life expectancy than average. Second, Illinois should amend its sentencing statutes to require judges to consider several factors, while on record at a sentencing hearing, before sentencing a juvenile homicide offender to life in prison. These factors, laid out within this Note, will put Illinois at the forefront of ethical juvenile sentencing, while also ensuring that it does not violate the authority of Miller. Admittedly, these theories have been criticized for being too ‘soft’ on punishment for juveniles who are convicted of felony murder. However, the suggestions in this Note are meant to allow for the protection of the adolescent’s Eighth Amendment right to be free of cruel and unusual punishment, while also considering the severity and nature of the offense.
Wednesday, May 27, 2015
Split Connecticut Supreme Court applies Miller retroactively to 50-year discretionary juve sentence
Yesterday the Connecticut Supreme Court, splitting 4-3, gave the Supreme Court's Eighth Amendment jurisprudence concerning juvenile LWOP sentencing the furthest reach of any major ruling I have seen through its opinion in Casiano v. Commissioner of Correction, No. SC19345 (Conn. May 26, 2015) (majority opinion here, dissents here and here). Here is how the majority opinion gets started:
We recently held in State v. Riley, 315 Conn. 637, 659, A.3d (2015), that, to comport with the eighth amendment to the federal constitution, the trial court must give mitigating weight to the youth related factors set forth in Miller v. Alabama, U.S. , 132 S. Ct. 2455, 2464–65, 2468, 183 L.Ed. 2d 407 (2012), when considering whether to impose a life sentence without the possibility of parole on a juvenile homicide offender. In Riley, the defendant challenged on direct appeal a total effective sentence of 100 years with no possibility of parole before his natural life expired, a sentence that the state conceded was the functional equivalent to life without parole. State v. Riley, supra, 642. The different procedural posture and sentence in the present case raises two significant issues regarding the reach of Miller: whether Miller applies retroactively under Connecticut law to cases arising on collateral review, and, if so, whether Miller applies to the imposition of a fifty year sentence on a juvenile offender. We answer both questions in the affirmative and, therefore, reverse the habeas court’s decision rendering summary judgment in favor of the respondent, the Commissioner of Correction, on the petition for a writ of habeas corpus filed by the petitioner, Jason Casiano.
May 27, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Thursday, May 21, 2015
Examining what qualifies as an LWOP sentence for purposes of Graham and Miller
This new piece at The Marshall Project, headlined "Life Expectancy: How many years make a life sentence for a teenager?," spotlights an Eighth Amendment issue that has been engaging lower courts in the five years since SCOTUS in Graham began putting limits of LWOP sentences for juvenile offenders. Eventually the Supreme Court will have to resolve the issue of just what qualifies as an LWOP sentence, and here is an account of issue (with some links to notable rulings):
James Comer was 17 when he, an older cousin, and their friend made a series of violent and irreversible decisions: One night in April 2000, they robbed four people at gunpoint. They followed one of their victims for miles as she drove home from her night shift as a postal worker, then pointed a gun at her head outside her house. Comer’s friend, 17-year-old Ibn Ali Adams, killed their second victim when he discovered the man had no money.
Comer’s youth, his lawyers argue, was at least partly responsible for his poor judgment and impulsive behavior. And it is his youth that may save him from dying in prison. Earlier this month, an Essex County, New Jersey, judge ordered a new sentencing hearing for Comer in light of Miller v. Alabama. ...
But Comer isn’t serving life without parole, at least not technically. For felony murder and multiple counts of armed robbery, he was sentenced to 75 years. He will be eligible for parole, but not until his 86th birthday — more than 20 years past his life expectancy, according to actuarial data his lawyers cited. This sentence “amounts to de facto life without parole and should be characterized as such,” the judge wrote.
Miller v. Alabama was the third in what’s come to be known as the “Roper/Graham/Miller trilogy” of cases in which the Supreme Court ruled, essentially, that kids are different. Teenagers’ still-developing brains make them more impulsive, more susceptible to peer pressure, and less able to understand the consequences of their actions. This makes them less culpable than adults and more amenable to rehabilitation as they mature, the court said.
With Roper, the court outlawed the death penalty for juveniles. With Graham, it struck down life-without-parole sentences for non-homicide crimes. With Miller, the justices forbid mandatory life-without-parole sentences, even for murder. Life sentences for juveniles are allowed only if the judge first has the chance to consider how youth and immaturity may have contributed to the crime....
Now a growing number of courts are interpreting the trilogy even more broadly, applying their principles to cases, like Comer’s, that aren’t explicitly covered by the court’s rulings.
“When read in light of Roper and Graham,” Miller v. Alabama “reaches beyond its core holding,” the Connecticut Supreme Court held last month in State v. Riley. In that case, 17-year-old Ackeem Riley was sentenced to 100 years in prison after he shot into a crowd in a gang-related incident, killing one teenager and wounding two children. The court ordered a new sentencing hearing, finding that the sentencing judge had not adequately considered Riley’s youth. Though Miller specifically targeted mandatory life without parole sentences — technically, Riley’s sentence was neither mandatory nor life without parole — the Supreme Court’s reasoning “counsels against viewing these cases through an unduly myopic lens,” the Connecticut court said.
In Brown v. Indiana, the state supreme court ordered a new sentencing hearing for Martez Brown, who was 16 when he and two friends killed a couple in a botched robbery. Quoting Miller, the court ruled that “similar to a life without parole sentence, Brown’s 150 year sentence ‘forswears altogether the rehabilitative ideal.’” Although Brown’s sentence was not formally a life-without-parole sentence, they wrote, “we focus on the forest — the aggregate sentence — rather than the trees — consecutive or concurrent, number of counts, or length of the sentence on any individual count.”
May 21, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack
Monday, May 11, 2015
"Brain Science and the Theory of Juvenile Mens Rea"
The title of this post is the title of this notable new paper by Jenny Carroll now available via SSRN. Here is the abstract:
The law has long recognized the distinction between adults and children. A legally designated age determines who can vote, exercise reproductive rights, voluntarily discontinue their education, buy alcohol or tobacco, marry, drive a car, or obtain a tattoo. The Supreme Court has repeatedly upheld such age-based restrictions, most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders. In the cases of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Court's jurisprudence of youth relies on emerging neuroscience to confirm what the parents of any teenager have long suspected: adolescents' cognitive abilities and thought processes differ from their adult counterparts. Children are different than adults.
In these rulings, the Court recognized that brain development affects the legal construct of culpability and so should affect punishment. The Court reasoned that without mature thought processes and cognitive abilities, adolescents as a class fail to achieve the requisite level of culpability demonstrated in adult offenders. As such, juveniles were categorically spared the death penalty and, in some instances, a sentence of life in prison without the possibility of parole. To date, the Court has limited the application of this principle to punishment. The logic of the Court's decisions, however, applies just as strongly to the application of substantive criminal law. Just as modern neuroscience counsels against the imposition of certain penalties on juvenile offenders, so it counsels toward a reconsideration of culpability as applied to juvenile offenders through the element of mens rea. In this paper I argue that the failure to extend this jurisprudence of youth to the mental element undermines the very role of mens rea as a mechanism to determine guilt.
Friday, April 10, 2015
Controversy surrounding California judge who sentenced 19-year-old child rapist way below mandatory minimum 25-year-term
As reported in this lengthy CNN piece, headlined "California judge faces recall try over sentence in child rape case," a judge's decision to impose only a 10-year prison term on a child rapist is causing a big stir in Los Angeles. Here are some of the details:
Three county supervisors in California announced Thursday a campaign to recall a judge who sentenced a man to 10 years in prison -- instead of the state mandatory minimum of 25 years -- for sodomizing a 3-year-old girl who is a relative.
At the center of the controversy is Orange County Judge M. Marc Kelly who, according to transcripts of a February court proceeding, was moved by the plea for leniency by the mother of the defendant. The judge expressed "some real concerns" about the state's minimum sentence of 25 years to life in prison for a child sodomy conviction and about "whether or not the punishment is disproportionate to the defendant's individual culpability in this particular case," according to a transcript of the February proceeding.
"I have not done this before, but I have concerns regarding or not this punishment as prescribed would fall into the arena of cruel and unusual punishment and have constitutional ramifications under the Eighth Amendment," the judge said in February, according to the transcript. "I know this is a very rare situation. It doesn't come up very often."... [An] account of [the April 3] sentencing quoted the judge as saying the mandatory sentence would be appropriate in most circumstances, but "in looking at the facts of ... (the) case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," Kelly said. The judge noted that the defendant "almost immediately" stopped and "realized the wrongfulness of his act," according to the newspaper.
"Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child," the judge said, according to the newspaper. "There was no violence or callous disregard for (the victim's) well-being."
Three Orange County supervisors held a press conference Thursday to announce the campaign to collect 90,829 signatures needed to hold a recall election of Kelly. They were Orange County Board of Supervisors Chairman Todd Spitzer, County Supervisor and Vice Chairwoman Lisa Bartlett and Supervisor Shawn Nelson. ...
Spitzer said he was responding to "a huge community outcry" against the judge's sentence and his comments from the bench. "We as a community spoke on behalf of the victim today, the 3-year-old child," Spitzer said. "If it was a stranger, the mom would have thrown the book at the guy. The family cares about the perpetrator. It's a family member," Spitzer said. "The victim is related to the perpetrator, and that is what is so difficult here."
But Spitzer said the judge didn't follow state law. "We don't want a judge that legislates from the bench," Spitzer said. "It's just unfathomable that the judge would try to describe what is a brutal sodomy," Spitzer added. "Sodomy of a 3-year-old child is a brutal, violent act in itself."...
Orange County District Tony Rackauckas has called the sentence "illegal," and his office will appeal it, said his chief of staff, Susan Kang Schroeder. "We believe that his decision, his sentencing was illegal because there was a mandatory minimum set up by statute by the legislature," Schroeder said. "We're doing what the people of Orange County have asked us to do. We're going to fight through the courts."...
The June crime occurred in the garage of the family home in Santa Ana, where the defendant, then 19, was playing video games, prosecutors said. CNN is not identifying any family members so the victim can remain anonymous. The defendant also made the victim touch his penis, and he covered the girl's mouth while the mother called out to her, prosecutors said....
"As a 19-year-old, defendant appears to be mentally immature and sexually inexperienced. It is difficult to explain away defendant's actions, however, as sexual frustration," prosecutors said in court papers. "All things considered, defendant appeared to be a relatively normal 19-year-old, aside from the crime of which he is convicted." But the defendant "poses a great danger to society and probably will for the majority of his life," prosecutors added.
During the February court proceeding, a statement by the mother was read aloud to the court by her husband, according to the transcript. "While a mother's love is nothing less than unconditional, I am clearly aware of the gravity of my son's actions and the inevitable discipline that he must now confront," the mother's statement said. "It has been not only extremely difficult, but utterly devastating for me and my family to fully come to terms with the events that took place."
The mother said she hadn't had the strength or courage yet "to directly talk" to her son about the crime, but she said her son "has allowed God into his heart and has committed himself to God's guidance." Her son "is not a bad person," and she asked for forgiveness for his "transgressions and for the opportunity to have a second chance at liberty," the husband told the judge, summarizing his wife's statement.
The judge remarked about the rarity of the mother's plea. "I have never had a situation before like this where a mother is the mother of the victim of the crime and the mother of the defendant who was convicted of the crime," the judge said. "It's very rare in these situations. So I know it must be very difficult for you."
Defense attorney Erfan Puthawala said his client never denied his responsibility "for the heinous act he committed" and, in fact, cooperated with investigators. "He made a statement essentially incriminating himself, which he did not have to do," the attorney said.
"He expressed remorse for the actions he took and the mistake he made. He understands that a momentary lapse has had lifelong ramifications for his sister the victim, for his family, and for himself," Puthawala added. "It is important to note that (my client) is not a pedophile, he is not a sexual deviant, he is not a sexually violent predator, and he poses a low risk of recidivism." Those findings came from an independently appointed psychologist who wrote a report to assist the judge in sentencing, Puthawala said.
Intriguingly, the judge at the center of this controversial sentencing was a senior local prosecutors for more than a decade before he became a member of the state judiciary. Perhaps because of that history, this judge perhaps though the prosecutor who charged this case likely had some discretion not to charge an offense that carried a 25-year mandatory minimum and thus perhaps he thought he should have some discretion not to sentence based on the mandatory minimum. Based on this case description, too, I wonder if this judge found that some of the Eighth Amendment themes stressed by the Supreme Court in Graham and Miller had some applicability in this setting because the defendant was only 19.
April 10, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Thursday, March 26, 2015
"Mandating Discretion: Juvenile Sentencing Schemes after Miller v. Alabama"
The title of this post is the title of this notable new and timely paper available via SSRN authored by Jennifer Breen and John Mills. Here is the abstract:
Miller v. Alabama established that “children are different” and it required profound changes in the way states adjudicate juveniles within the criminal justice system. This Article moves beyond standard interpretations of this significant decision and argues that Miller requires much more than abolition of mandatory juvenile life-without-parole sentences. In addition to that sentence-specific ban, Miller establishes a right for juveniles to have their young age taken into consideration during sentencing.
This holding demands individualized consideration of a child’s age at sentencing, akin to sentencing procedures demanded by the Court in death penalty cases. At the very least, it is clear that states may no longer treat a juvenile defendant as an adult without any opportunity to consider the impact of youth upon the defendant. Yet this Article identifies eighteen states that continue to utilize these now unconstitutional sentencing schemes, contravening the most basic holding of the Court in Miller: “[C]hildren are constitutionally different from adults for purposes of sentencing.”
After contextualizing both the Miller decision and the process of transferring juveniles to adult court, this Article identifies a subset of states that fail to allow for consideration of the unique qualities of youth at any stage of the juvenile adjudication process. These states are outliers and defy both the national consensus on juvenile adjudication and the Court’s mandate in Miller. This Article concludes by proposing reforms to aid states in accommodating the implications of Miller while increasing reliability in juvenile sentencing.
March 26, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Monday, March 23, 2015
The extra state habeas question (and its answer?) in Montgomery, the new SCOTUS Miller retroactivity case
Notably, the Supreme Court's cert grant in in another Miller retroactivity case from Louisiana (basics here) included some extra homework for the parties:
14-280 MONTGOMERY, HENRY V. LOUISIANA
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: “Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. __ (2012)?"
This added question in Montgomery echoes an issue that the Justices had sought to consider in the prior Toca case, and I think it reflects the thought of some Justices that state courts on state habeas review may not be constitutionally required to apply the modern Teague jurisprudence that federal courts now use in federal habeas review of final state convictions. If state courts are not required to follow at least the Teague standard, arguably there is not a federal question presented by whether and how a state court applies Teague in a state habeas case.
Notably, in a case from 2008, Danforth v. Minnesota, 552 U.S. 264, 266 (2008), the Supreme Court held that states were permitted to give greater retroactive effect to new federal constitutional procedural rules that did not satisfy a Teague exception. Thus is it already clear that state courts can give state prisoners in state habeas cases more retroactive benefits than Teague requires. The added Montgomery question essentially asks whether a federal issue is presented if state courts decide to give state prisoners in state habeas cases less retroactive benefits than Teague requires.
In some sense from the prisoner's perspective, this second question is kind of an academic exercise: even if the Supreme Court were to decide that it lacks jurisdiction to review whether and how a state court applies Teague in a state habeas case, it is clear that lower federal courts (and the US Supreme Court) have jurisdiction and will apply Teague if and when the state prisoner brings a federal habeas case. But, then again, this is not an entirely academic exercise because there could be cases in which the state prisoner is not able to bring a federal habeas case (perhaps because of statutory or other problems with bringing such a case).
If this discussion already makes your head hurt and leads you to think you need to take a law school Federal Courts class again, join the club. Fortunately for all of us, a very insightful Assistant U.S. Attorney, Steven G. Sanders, published last month a great New Jersey Law Journal article about all this titled "Can US Supreme Court Require States to Apply New Fed Rules Retroactively on State Collateral Attack?". Thanks to Steven and the NJLJ, I can provide this article in full linked below with this disclaimer: “Reprinted with permission from the February 9, 2015 issue of the New Jersey Law Journal. © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.”
March 23, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack
Supreme Court takes up a replacement juve LWOP retroactivity case from Louisiana
As reported in this AP piece, the US Supreme Court this morning found a replacement for the prior resolved case (Toca) dealing with the retroactivity of its 2012 Miller decision. Here are the basics:
The Supreme Court is adding a new case to decide whether its 3-year-old ruling throwing out mandatory life in prison without parole for juveniles should apply to older cases. The court was scheduled to hear arguments in a case from Louisiana in late March, but the state released inmate George Toca after 30 years in prison.
The justices on Monday said they would consider a new Louisiana case involving a man who has been held since 1963 for killing a sheriff's deputy in Baton Rouge. Henry Montgomery was a 17-year-old 10th grader who was playing hooky from school when he shot Deputy Charles Hurt at a park near the city's airport. The officer and his partner were looking to round up truants.
The case will be argued in the fall.... The case is Montgomery v. Louisiana, 14-280.
Some SCOTUS-related posts on the prior Toca case and Miller retroactivity:
- Supreme Court grants cert to (finally!?!) resolve whether Miller applies retroactively
- George Toca now a free man ... and SCOTUS now lacks a live Miller retroactivity case
- The back-story of George Toca's case (and its impact on other juve LWOPers)
- "Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane"
- Examining "sentence finality" at length in new article and series of posts