Tuesday, October 16, 2018
"'Second Looks, Second Chances': Collaborating with Lifers on a Video about Commutation of LWOP Sentences"
The title of this post is the title of this notable new article authored by Regina Austin now available via SSRN. Here is its abstract:
In Pennsylvania, life means life without the possibility of parole (“LWOP”) or “death by incarceration.” Although executive commutation offers long serving rehabilitated lifers hope of release, in the past 20 years, only 8 commutations have been granted by the state’s governors. This article describes the collaboration between an organization of incarcerated persons serving LWOP and the law-school-based Penn Program on Documentaries and the Law that produced a video supporting increased commutations for Pennsylvania lifers. The article details the methodology of collaborative videomaking employed, the strategic decisions over content that were impacted by the politics of commutation, and the contributions of visual criminology to the video’s portrayal of the lifers who participated in the project.
Monday, October 15, 2018
Federal judge decides Missouri parole practices fail to comply with requirements of Miller and Graham
As reported in this local article, headlined "Missouri violated rights of inmates convicted as juveniles who are serving life without parole, judge says," a federal judge late last week ruled in favor of inmates convicted of murder as juveniles who claimed that Missouri’s parole policies and practices violated their rights in the wake of the Supreme Court's rulings in Miller and Graham. Here are the basics:
A federal judge on Friday said that recent Missouri parole hearings violated the constitutional rights of inmates serving life without parole for offenses they committed when they were juveniles. State officials have 60 days to develop a plan for providing the inmates “a meaningful and realistic opportunity” for parole, U.S. District Judge Nanette K. Laughrey ruled.
The lawsuit was filed by four inmates who are seeking to represent all inmates who were convicted and sentenced to life without parole for an offense that occurred when they were younger than 18. Each of the four inmates was recently denied parole after a hearing, and Laughrey said nearly 85 percent of the class of affected inmates did not receive a parole date after a hearing. The majority were not granted another hearing for the maximum of five years, without an explanation “for the lengthy setback,” she wrote.
In a news release about the ruling Sunday, the Roderick & Solange MacArthur Justice Center of St. Louis, which represents the inmates along with lawyers from Husch Blackwell, said more than 90 inmates are affected.
The parole board’s decision is communicated to inmates on a two-page “barebones, boilerplate form,” with only two available reasons for denying parole: the seriousness of the original offense or that the inmate’s “inability to... remain at liberty without again violating the law,” Laughrey wrote. Even state officials admitted Missouri failed to provide adequate explanation for the decisions, the judge said, and fails to tell inmates what “steps they should to take to become better suited for parole.”
Laughrey wrote that while an adult’s “interest in parole is not constitutionally protected,” a series of U.S. Supreme Court decisions “has held that those who were children at the time of the crimes for which they were convicted may be subject to certain additional protections.”...
Laughrey ruled that the state needs to come up with “revised policies, procedures, and customs” that will “ensure that all Class members are provided a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation,” including those who already had unsuccessful hearings.
The full 27-page ruling in Brown v. Percythe, No. 2:17-cv-04082-NKL (W.D. Mo. Oct. 12, 2018), is available at this link.
October 15, 2018 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, October 04, 2018
Third Circuit going en banc to reconsider reach and application of Eighth Amendment to lengthy juvenile term-of-years sentence
In this post back in April, I noted the remarkable Third Circuit panel opinion in US v. Grant, No. 16-3820 (3d CIr. April 9, 2018) (available here), addressing the application of Eighth Amendment limits on juvenile sentences. The panel opinion in Grant is technically no longer law as of today thanks to this order by the Third Circuit:
A majority of the active judges having voted for rehearing en banc in the above captioned cases, it is ordered that the government’s petition for rehearing is GRANTED. The Clerk of this Court shall list the case for rehearing en banc on February 20, 2019. The opinion and judgment entered April 9, 2018 are hereby vacated.
In short form, defendant Corey Grant in the early 1990 was initially sentenced to LWOP for crimes committed when he was 16-years old. After Graham and Miller, he was resentenced to a 65-year federal prison term. The panel opinion found this term unconstitutional and suggested that "lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform." The full Third Circuit is apparently no so keen on this approach, and it will thus address this matter anew in the coming year.
October 4, 2018 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 (0)
Wednesday, September 19, 2018
"A Way Out: Abolishing Death By Incarceration in Pennsylvania"
Over the last 25 years, the number of people serving life-without-parole, or death-by-incarceration (DBI), sentences in the United States has exploded from 12,453 people in 1992 to over 53,000 people today — 10% of whom are incarcerated in Pennsylvania.
With over 5,300 people sentenced to DBI and one of the highest per capita DBI sentencing rates in the country, Pennsylvania stakes a strong claim as the U.S. and world leader in this distinctively harsh form of punishment and permanent exclusion of its citizens. Philadelphia, with nearly 2,700 people serving DBI sentences, is the world’s leading jurisdiction in sentencing people to die in prison —more than any county or parish in the United States and far more than any individual country in the world.
In 1974, fewer than 500 people were serving DBI sentences in Pennsylvania. As of September 2017, 5,346 people are serving death-by-incarceration sentences in Pennsylvania. Despite a 21% decline in violent crime between 2003 and 2015, Pennsylvania’s population of people sentenced to DBI has risen by 40% between 2003 and 2016.6 Pennsylvania ranks near the top of every measure of DBI sentences across the country....
Like most measures of the criminal legal system, death-by-incarceration sentences disproportionately impact communities of color. Black Pennsylvanians are serving death-by-incarceration sentences at a rate more than 18-times higher than that of White Pennsylvanians.
Latinx Pennsylvanians are serving DBI sentences at a rate 5-times higher than White Pennsylvanians. Racial disparities in DBI sentences are even more pronounced than among the overall Pennsylvania prison population, in which 47% of those incarcerated are Black, compared to 11% of the state’s population. Of those serving DBI sentences, however, 65% are Black while 25% are White.
Among other interesting aspects of this big report is this introductory note about terminology:
Throughout this report we use the term Death By Incarceration (DBI) when referring to life-withoutparole (LWOP) sentences. We do this for several reasons. First, it is the preferential term selected by incarcerated people that we work with who are serving these sentences, and we are a movement-lawyering organization that is accountable to the movements we work with. Second, it focuses on the ultimate fact of the sentence, which is that the only way it ends, barring extraordinary relief from a court or the Board of Pardons, is with death. Third, DBI invokes the social death experienced by the incarcerated, as they are subject to degraded legal status, diminished rights, excluded from social and political life, tracked with an “inmate number” like a piece of inventory, and warehoused for decades in this subjugated status. Finally, although DBI in this report is used to refer to LWOP sentences, the DBI label indicates that our concern is not merely with LWOP sentences, but inclusive of other term-of-years sentences that condemn a person to die in prison.
September 19, 2018 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)
Sunday, September 16, 2018
Making the case for a bill to end juve LWOP in the federal system
Marc Levin and Jody Kent Lavy have this new commentary in The Hill under the headline "Sentencing reform is critical for youth in the justice system." Here are excerpts:
As states across the country move to right-size their prison systems, managing to reduce incarceration, costs and crime, it is important to consider reform at the federal level as well. And when it comes to reforming our sentencing laws, there seems no better place to start than with the most vulnerable among us: our children. The United States is the only country known to impose life without the possibility of parole on people under the age of 18.
Congressman Bruce Westerman (R-Ark.) took the lead on reform by introducing HR 6011, which would end life-without-parole and de facto life sentences for children in the federal criminal justice system. Westermanhas been joined by a bipartisan team of co-sponsors — Karen Bass (D-Calif.), Tony Cardenas (D-Calif.) and Lynn Jenkins (R-Kansas) — but other members of Congress must also show their support in this policy rooted in redemption, rehabilitation, and second chances....
Imposing excessive sentences on children ignores what adolescent development research has documented. And in just the last five years, conservative states like North Dakota, Utah, and Westerman’s native Arkansas have led the way in banning life-without-parole for children. The Arkansas legislation, now titled Act 539, affects more than 100 people in the state and received broad bipartisan support in the legislature. Nineteen other states and the District of Columbia prohibit youth from being sentenced to a life in prison with absolutely no hope of re-entering as a productive member of society and no goal to work toward.
Should it pass, HR 6011 would ensure that children sentenced in the federal system have the opportunity to petition a judge to review their sentence after they have served 20 years in prison. They would then be afforded counsel at each of their review hearings — a maximum of three — where the judge would consider, among other factors, their demonstrated maturity, rehabilitation, and fitness to re-enter society. In other words, this bill does not guarantee release for anyone, but would ensure that children prosecuted and convicted of serious crimes in the federal system are afforded an opportunity to demonstrate whether they are deserving of a second chance. HR 6011 holds children accountable while providing a reason to pursue self-betterment. It gives hope to those who would otherwise be staring down a hopeless life sentence without the possibility of a second chance....
We hope other members of Congress will join Congressman Westerman’s bipartisan efforts to create a more fair and just system for our children who are convicted of serious crimes in the federal system. Mercy is justice, too, and no one is more deserving of our mercy and the opportunity for a second chance than our children.
Tuesday, September 04, 2018
Federal district court finds Louisiana LWOP sentence for low-level recidivist unconstitutionally excessive under Eighth Amendment (and local DA will not appeal to Fifth Circuit)
A helpful reader made sure I did not miss this local press report, headlined "Judge orders release or resentencing of St. Tammany man serving life for burglary," discussing a notable ruling from the federal district court in New Orleans. Here are the basics:
When he went before a judge in 2010, Patrick Matthews was a 22-year-old father of two who had a criminal record but had never spent a day in prison. But to the office of former north shore District Attorney Walter Reed, he was a hardened criminal who deserved a life sentence as a habitual offender for the crime of simple burglary. Matthews received that sentence with no chance at parole in a state where “life means life.”
Eight years later, Reed is a convicted federal felon, though his case is on appeal. The Legislature has changed the law so that no one could receive a sentence like Matthews’ today, but Matthews himself, now 31, remains behind bars at a prison in St. Gabriel.
On Wednesday, however, U.S. District Judge Nannette Jolivette Brown said Matthews’ life sentence violates the U.S. Constitution’s ban on “cruel and unusual” punishment. She ordered him to be resentenced to a lesser term or released within 120 days.
Current 22nd Judicial District Attorney Warren Montgomery’s office is not appealing Brown’s decision, although prosecutors could still seek to keep him in prison for several years more. Attorney Justin Harrell said his client’s family is ecstatic. “At least there’ll be an end to it, as opposed to that indefinite life sentence,” Harrell said.
Although the federal court ruling hinged on the specific facts of Matthews’ case, it is in line with a larger shift in the past decade away from Louisiana’s strict mandatory minimum sentences. In 2013, the American Civil Liberties Union estimated that 429 people in Louisiana were serving sentences of life without possibility of parole for nonviolent offenses — more than in any other state. Criminal justice reform advocates like the ACLU singled out Matthews as an egregious example of the state’s penchant for sending people away for life for nonviolent offenses.
The Legislature changed the habitual offender law in 2017 to make it less strict. However, those changes did not affect sentences already in place. With his appeals in state court exhausted, Matthews had only the federal courts to ask for mercy.
Brown agreed to adopt the recommendation of Magistrate Judge Janis van Meerveld, who acknowledged that it was rare for the federal courts to weigh in on a state sentence. However, Meerveld said, Matthews presented an unusual case.... Meerveld said she had “no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate.”
Prosecutors under both Reed's and Montgomery’s administrations consistently opposed Matthews’ appeals, but lately their stance has changed. In a short brief filed in July, Assistant District Attorney Matthew Caplan replied to a question from the judge as to whether the sentence was grossly disproportionate. “It appears that way,” he said.
As this press account reveals, US District Judge Nannette Jolivette Brown granted relief on "Matthews' excessive sentence claim" on the basis of the recommendation of US Magistrate Judge Janis van Meerveld. Judge van Meerveld wrote an extended opinion explaining her recommendation in Matthews v. Cain, No. 2:15-cv-00430-NJB (E.D. La. Aug. 13, 2018), and that opinion can be downloaded below (and merits a full read). Here are some key passages therein (emphasis in original):
Of course, the mere fact that a sentence is harsh does not mean that it is disproportionate. Nevertheless, the undersigned has no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate. As one scholar has noted: “[T]here is no uglier disproportionality than a man, guilty of a minor crime, banished to a cage for the remainder of his life.” Craig S. Lerner, Who’s Really Sentenced to Life Without Parole?: Searching for the “Ugly Disproportionalities” in the American Criminal Justice System, 2015 Wis. L. Rev. 789, 793 (2015) (footnote omitted)....
[A]at the time Matthews was sentenced, Louisiana law punished a wide swath of fourth offenders identically, regardless of the nature of their criminal histories. Accordingly, a fourth offender with a history of nonviolent property crimes, such as Matthews, was treated no differently than a fourth offender with a history of violent crimes and/or serious sex offenses. However, the impropriety of equating such disparate offenders was so apparent that the state has now abandoned that practice. In fact, as Matthews noted and the respondent did not dispute, an individual with Matthews’ criminal history would not even be eligible for a life sentence as a habitual offender under current Louisiana law.
The undersigned therefore finds that an interjurisdictional comparative analysis likewise supports a conclusion that Matthews’ sentence is unconstitutionally excessive. It must be noted that this conclusion neither calls into question the general constitutionality of Louisiana’s habitual offender law nor impugns the state’s decision to employ a harsher recidivist sentencing structure than those employed by the vast majority of its sister states. Rather, it is simply a recognition that even among the minority of states that vigorously punish recidivism, a sentence of life imprisonment without parole for a young, drug-addicted, nonviolent, sporadic burglar who had never been sentenced to a single day in prison for his prior offenses is such an anomaly as to be unconstitutional.
Wednesday, August 29, 2018
Maryland top court issues lengthy split opinions on application of Eighth Amendment limits on juve life sentences
The Maryland Court of Appeals handed down today a very lengthy opinion addressing the application of Eighth Amendment limits on lengthy juvenile sentences. The opinion in Carter v. Maryland, Nos. 54 (Md. Aug. 29, 2018) (available here), gets started this way:
It has been said that “mercy without justice is the mother of dissolution; justice without mercy is cruelty.” A sentence of life in prison without parole may be just for certain adult offenders, but the Eighth Amendment’s proscription against cruel and unusual punishments precludes that sentence for a juvenile offender unless the defendant is an incorrigible murderer. Although there need not be a guarantee of release on parole, a sentence imposed on a juvenile offender must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” In this opinion, we consider three cases involving crimes that were committed when each Petitioner was a juvenile.
None of the sentences imposed in these cases was explicitly “life without parole.” In two cases, the Petitioners were sentenced to life with the possibility of parole. In the third case, the Petitioner was sentenced to 100 years incarceration and will not be eligible for parole until he has served approximately 50 years in custody. Each Petitioner asserts that he is effectively serving a sentence of life without parole, because the laws governing parole in Maryland do not provide him with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” They have each filed a motion to correct an illegal sentence.
With respect to the two Petitioners serving life sentences, we hold that their sentences are legal as the laws governing parole of inmates serving life sentences in Maryland, including the parole statute, regulations, and a recent executive order adopted by the Governor, on their face allow a juvenile offender serving a life sentence a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” We express no opinion as to whether those laws have been, or will be, carried out legally, as that issue is not before us and may be litigated in the future. With respect to the Petitioner who is serving a 100-year sentence, we hold that the sentence is effectively a sentence of life without parole violative of the Eighth Amendment and that the Petitioner is entitled to be re-sentenced to a legal sentence.
Monday, August 13, 2018
Spotlighting challenges surrounding an Eighth Amendment jurisprudence defining adulthood at 18
Beth Schwartzapfel has this effective new Marshall Project piece on the Supreme Court's recent juvenile sentencing jurisprudence under the headline "The Right Age to Die?: For some, science is outpacing the High Court on juveniles and the death penalty." Here are excerpts:
When 15-year-old Luis Cruz joined the Latin Kings in 1991, he was a child by almost any measure: he couldn’t legally drive, drop out of school, or buy a beer. But was he still a child a few years later when — just months after he turned 18 — he murdered two people on the orders of gang leaders?
Earlier this year, a federal judge in Connecticut said yes. The judge decided that a 2012 Supreme Court ruling that forbade mandatory sentences of life without parole for juveniles should apply to 18-year-olds like Cruz, and granted his request to be resentenced. It’s one of a small but growing number of cases in which courts are grappling with what to do with young adults who commit the most serious crimes....
When it comes to the most extreme punishments, the Supreme Court has ruled so far that 18 is a “bright line.” If you’re under 18 at the time of your crime, you can’t be executed. You also can’t be sentenced to life without parole without a hearing to consider your maturity level. But the high court has never extended those protections past age 18.
“The qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” Justice Anthony Kennedy wrote in Roper v. Simmons, the first of four modern cases in which the court has laid out its thinking on these issues. “However, a line must be drawn.” The high court has not revisited that line since Roper was decided in 2005. But state and lower federal courts have begun to consider whether people between the ages of 18 and 21 — the period psychologists now call “late adolescence” — should have the same kind of special consideration that younger teenagers get before they face sentencing for murder.
The Roper case was decided at a time when researchers had recently begun imaging adolescents’ brains. Using functional magnetic resonance imaging, or fMRI — like the technology doctors use to look inside the brain for tumors or strokes — researchers were able to observe how young people’s brains responded to various situations.... But it wasn’t until recently that scientists began to research what happens to the brain in late adolescence and young adulthood, says Laurence Steinberg, a leading researcher into adolescent development who helped write the American Psychological Association’s briefs before the Supreme Court and who has testified in many of the more recent lower court cases. And when they did, they found that those same youthful qualities seem to persist until the early- to mid-20s.
In one recent study, Steinberg and his colleagues gave a series of tests to more than 5,000 children and young adults across 11 countries. They found that the impulse to chase thrills and look for immediate gratification peaks around age 19 and declines into the 20s. Steinberg describes this system of the brain like the gas pedal in a car. The “brake” system — the ability to plan ahead and consider consequences — takes longer to catch up: it isn’t generally fully mature until the 20s. Steinberg says if he had to draw a new bright line, he would draw it at 21.
“Knowing what we know now, one could’ve made the very same arguments about 18-, 19- and 20-year-olds that were made about 16- and 17-year-olds in Roper,” he testified in a recent Kentucky case.In that Kentucky case, a judge found the state’s death penalty statute unconstitutional because it allows people who were under 21 at the time of their crime to be executed. “If the science in 2005 mandated the ruling in Roper, the science in 2017 mandates this ruling,” he wrote. A Pennsylvania court last year considered an appeal from a woman who was sentenced to mandatory life without parole after serving as a lookout, at 18, during a botched robbery that ended in murder. The court rejected the appeal on technical grounds, but called 18 an “arbitrary legal age of maturity” and said an “honest reading” of the Supreme Court’s ruling would require courts to reconsider it....
Justice Kennedy, who was often the Supreme Court’s swing vote in close cases and who voted in favor of all four of the court’s major rulings extending these protections to juveniles under 18, retired this summer. The court is widely expected to tack right when President Donald Trump’s pick assumes Kennedy’s seat. In light of that, opponents of juvenile life without parole are aiming to keep these cases in lower courts for now, said Marsha Levick of the Juvenile Law Center, which has submitted briefs in support of many of these defendants. They’re not likely to get a friendly hearing on the question of whether 18-, 19- and 20-year-olds are less culpable than adults from the newly composed high court, Levick said.
In the meantime, Steinberg, the psychologist, says he has been hired by the attorneys for Nikolas Cruz, who faces the death penalty as the accused gunman in February’s Parkland school shooting in Florida. Cruz was 19 when he allegedly killed 17 people at Marjory Stoneman Douglas High School. Steinberg “struggled about this a lot,” he said. But in the end “it’s really hard logically to say, ‘People your age are too immature to be sentenced to death, unless you do something really, really bad.’”
Friday, August 10, 2018
The War on Kids Post #5
In my last substantive guest post on Sentencing, Law & Policy, I’d like to address some of the juvenile justice reform measures that I think are achievable and worth pursuing in the post-Miller era. In the book, I devote a whole chapter to the reform frontier, and I refer to these measures as part of a war for kids.
Put kids back in juvenile court
For most of the 20th century, it was difficult and rare to move a child into adult court; juvenile court was the default for juveniles. We only moved away from that model because of fear-based and now-debunked theories about juvenile super-predators. As I mentioned in my first guest post, transfer laws have exposed juveniles to sentences that were drafted with adults in mind, including mandatory minimums and decades-long terms. Given what we know about adolescent brain development, and given that the Supreme Court has held that children are different for constitutional purposes, we should return to the default of keeping kids in juvenile court. Even in such a regime, a judge could still determine that extraordinary circumstances warranted transfer to adult court. But those rare, outlier cases should not dictate the norm for juveniles. Today, in the wake of the Miller trilogy, there is newfound traction to the claim that transfer laws (especially direct file laws) are unconstitutional and nonsensical.
Provide age-appropriate sentencing for juveniles
While children continue to be charged in adult criminal court, advocates should insist upon age-appropriate sentencing for them. At a minimum, this means seeking the abolition of juvenile life without parole, and that goal is on the horizon and achievable. Regardless of whether the Supreme Court declares a categorical ban, states are moving in this direction. Beyond this measure, advocates should insist that youth always be a relevant, mitigating variable at sentencing. In particular, consistent with the science of the Miller trilogy, it means that mandatory minimums should never apply to juveniles. I have made this argument before here, and I do in THE WAR ON KIDS, as well. Two states, Washington and Iowa, have already come to this conclusion, as I mentioned earlier this week.
Argue against incarceration for kids as a general matter
In my mind, a key component of a war for kids is the concept that incarceration is fundamentally damaging for juveniles and that we should avoid it whenever possible. This is perhaps one of the most controversial aspects of my agenda for juvenile justice reform, and I know it is the one that draws the most attention. I regularly hear from people who point to the unspeakable cruelty and violence of adolescents in the news, and I certainly do not claim that no juvenile requires secure detention. What I do claim is that we use correctional institutions in too many instances when we need not and that we do damage to juveniles in the process. As the Annie E. Casey Foundation’s recent report on probation makes clear, there are diversion and probation alternatives that are designed to develop youth and keep them out of the cycle of the correctional system.
Create periodic, youth-informed panels for juvenile sentencing review
Neuroscience tells us that the juvenile brain is developing well into the mid-20’s. This means that, even when youth commit serious crimes, if given the right opportunities at rehabilitation, they can mature and outgrow that criminal behavior. Two things follow from this reality. First, even youth who are sentenced to lengthy term-of-year sentences should be eligible for educational and other rehabilitative programs. How else will they embark on a path to demonstrating maturity and rehabilitation, an opportunity the Supreme Court requires? Second, juvenile sentences – especially lengthy ones – should be reviewed periodically for their ongoing legitimacy. Given that the Supreme Court has elevated youth to be a mitigating quality of constitutional significance, the punishment rationale for juvenile sentences cannot be what it is for similarly situated adults. Ongoing, periodic review for youth offenders can serve as a check against the Court’s concern that states not make a judgment at the outset that juvenile “offenders never will be fit to reenter society.”
It’s worth noting that, in order to secure any of these juvenile-specific measures, we must continue to push for criminal justice reform more broadly. This is harder than ever in some ways. We must vigilantly counter the growing rhetoric that says we are a crime-ridden nation and that urges prosecutors to seek the maximum sentence in all cases. And we must insist upon equality in our criminal justice system – a goal our system has espoused but never achieved.
Thank you, Doug and the Sentencing, Law & Policy community for letting me share my work! CHD
Wednesday, August 08, 2018
The War on Kids Post #4
In my last post, I discussed the Miller trilogy and states’ attempts to implement those Supreme Court decisions. Today I want to focus on one especially challenging implementation issue: parole.
When the Supreme Court held Miller retroactive in Montgomery v. Louisiana, it suggested that states could comply with the Miller mandate by employing parole procedures, evidently in an attempt to head off potential state concerns of finality and efficiency. As the Court explained: “Giving Miller retroactive effect. . . 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.” However, parole post-Miller has proven to be problematic in several respects.
First, typically parole applicants enjoy very few procedural rights because the Supreme Court has treated parole as a privilege – a proceeding in which the prisoner has no liberty interest. Even when the Supreme Court has construed a state’s parole statute to create some liberty interest for prisoners, it has not gone so far as to hold that prisoners are entitled to the aid of counsel. As a result, in 35 states a prisoner has no right to counsel at a parole hearing. In contrast, when a state employs parole as a method for remedying a now-unconstitutional sentence, the prisoner does have a liberty interest at stake, as some lower courts have recognized. At the same time, because juvenile lifers are entitled to a “meaningful opportunity to obtain release,” parole boards across the country are now tasked with examining factors deemed relevant in Miller, including childhood environment and efforts at rehabilitation. Thus, youth offenders seeking parole may be entitled to procedural safeguards, including the right to counsel, never before seen in the parole context.
Second, while parole largely disappeared from the criminal justice landscape in the late 20th century, it has been making a comeback as part of the smart on crime movement – only modern parole is new and different. While discretion and instinct are still relevant, modern parole is largely dependent upon actuarial assessments of prisoners’ risks if released. These risk assessment tools rely upon statistical relationships between both static (e.g. age at date of conviction) and dynamic (e.g. level of education obtained during incarceration) factors. Almost all states employ these risk assessment tools in the parole process.
Here’s the concern post-Miller: the risk assessment tools may rely on factors that defy the Supreme Court’s holding that children are categorically less culpable and more amenable to rehabilitation. For example, in many jurisdictions, the tools consider the inmate’s age at first commitment; the younger the age at first commitment, the higher the risk factor and the less likely the inmate is to be released. Similarly, many tools consider factors such as employment history and marital status before incarceration; being single and unemployed increases one’s risk assessment score. Juvenile offenders as a group, precisely because of their youth at the time of conviction, were unlikely to have been married or to have had an employment history. In other words, the risk assessment tools treat youth as an aggravating variable, while the entire logic of the Miller trilogy hangs on youth as a mitigating variable.
Finally, there are several other thorny questions implicated in jurisdictions that employ parole as a Miller remedy. Should states be expected to release a certain percentage of youth offenders seeking parole in order to satisfy the “meaningful opportunity” standard? When a parole board denies release, must it issue a decision and rationale in writing beyond the generic statement that an applicant is not a suitable candidate? What is an appropriate wait period for a board to impose before reconsidering a case? Henry Montgomery himself was denied parole earlier this year and given a two-year setoff period; he’s already 71 and surely at some age a two-year setoff violates the meaningful opportunity standard.
By my count, 11 states today are employing some kind of new, youth-informed parole procedure in order to address prisoners with claims under Miller. Other jurisdictions are employing their previously existing parole mechanisms to do so. Litigation challenging the adequacy of these procedures is already underway, and time will tell how helpful it was for the Court to suggest that states rely upon parole as a Miller remedy.
Tuesday, July 24, 2018
A friendly brief on the intersection of Eighth Amendment juvenile sentencing jurisprudence and the federal sentencing guidelines
I was pleased to have as one project this summer helping to draft an amicus brief in support of a Ninth Circuit en banc petition in US v. Riley Briones. In a split decision handed down in May, a panel of the Ninth Circuit affirmed the district court adoption of the the federal sentencing guidelines as the key factor in the course imposing a life without parole federal sentence on a juvenile offender. The panel opinion is available at this link, with Judge Johnnie Rawlinson authoring the majority opinion (joined by district judge David Ezra) and Judge Diarmuid O’Scannlain authoring the dissent.
The amicus brief which can be downloaded below argues, in short form, that “It is unreasonable — and unconstitutional — for a court to routinely apply the Sentencing Guidelines when a defendant is subject to a Guideline sentencing range of life without parole for a crime committed as a juvenile.” In longer form, here is the start of the brief's "Summary of Argument":
The Supreme Court’s Eighth Amendment jurisprudence has long stressed that youth must matter in sentencing. Nearly four decades ago, in Eddings v. Oklahoma, 455 U.S. 104 (1982), the Supreme Court, explaining why an offender’s age and maturity is critical to any assessment of just punishment, stressed that “youth is more than a chronological fact” and that “minors often lack the experience, perspective, and judgment expected of adults.” Id. at 115–16. More recently, in a line of cases beginning with Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth Amendment forbids execution of juvenile offenders), and extending now through Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (holding that the Eighth Amendment forbids sentencing a juvenile offender to life without parole unless his crime reflects irreparable corruption), the Court has developed substantive and procedural rules to operationalize the Eighth Amendment mandate that “children are constitutionally different from adults for purposes of sentencing.” Id. at 733 (quoting Miller v. Alabama, 567 U.S. 460, 471 (2012)); accord Graham v. Florida, 560 U.S. 48, 68 (2010). This constitutional principle flows from the reality that children, compared to adults, are less mature, more susceptible to negative influences, and more capable of reform — and so any penological justifications for the harshest adult punishments “collapse in light of ‘the distinctive attributes of youth.’” Montgomery, 136 S. Ct. at 733–34 (quoting Miller, 567 U.S. at 472). Thus, both sound sentencing policy and settled constitutional doctrine forbid a sentencing court from treating a juvenile as though he were an adult.
Yet that is precisely what the U.S. Sentencing Guidelines encourage sentencing courts to do. Problematically, the Guidelines have no provisions that readily permit consideration of “the distinctive attributes of youth.” The Guidelines — designed with adult offenders in mind — give no attention to any youth-related consideration in standard offense-level calculations, and they discourage consideration of age “in determining whether a departure is warranted” except in “unusual” cases. U.S.S.G. § 5H1.1. Given that the Guidelines impart to sentencing courts a strong “anchoring” effect — as the Supreme Court has recognized, see Peugh v. United States, 569 U.S. 530, 541–42 (2013) — and that in a majority of cases judges do not deviate from the Guidelines range absent a government motion to do so, routine application of the Guidelines to juvenile offenders is fundamentally inconsistent with the Supreme Court’s Eighth Amendment jurisprudence.
The highly deferential standard of review that appellate courts apply to within-Guidelines sentences only exacerbates the tensions between standard Guideline-sentencing procedures and constitutional requirements. Absent searching substantive review of Guidelines sentences, an appellate court risks endorsing a sentencing system that unconstitutionally discourages consideration of an offender’s youth and its attendant characteristics. The Guidelines, if applied in their standard manner to a juvenile offender, thus result in a federal sentencing regime that is fundamentally inconsistent with the Eighth Amendment requirements articulated in Roper, Graham, Miller, and Montgomery.
A terrific pair of lawyers at Sterne, Kessler, Goldstein & Fox helped make this brief become a reality (and get filed), and I am also thankful to a group of academics who signed on to this brief.
July 24, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)
Monday, July 16, 2018
Spotlighting disparities in resentencing of juve LWOP cases in Pennsylvania ... and and broader post-Miller challenges
The Philadelphia Inquirer has this effective new article headlined “Why are juvenile lifers from Philly getting radically different sentences from those in the rest of Pennsylvania?”. Here are excerpts:
While Pennsylvania’s Supreme Court has attempted to create clear guidelines for that work, now that more than 300 juvenile lifers have been resentenced across 31 counties, the disparities are striking.
“It’s still very county-dependent, fact-dependent, and there are still a lot of politics involved,” said Brooke McCarthy, who has been tracking the results for the Philadelphia-based nonprofit Juvenile Law Center. “If you look at the outcomes in Allegheny County, they are night and day from what we’re seeing in Philly. That’s true in various counties: In Bucks County, one judge has been handling the sentencing, and she’s been particularly harsh. Different folks are handling the same facts differently.”
In Philadelphia, the average sentence for a juvenile lifer has been 31 years to life. In Bucks County, no one has received less than 40 years....
County by county, judges have disagreed about whether sentences on multiple homicides ought to run concurrently or be stacked consecutively.
A Lancaster County judge last year imposed consecutive 40-years-to-life sentences for Michael Lee Bourgeois, for killing his adoptive parents in 2001 with three accomplices. And, in Allegheny County, a judge imposed three consecutive 25-to-life sentences on Donald Zoller, who killed three people when he was just 14; he won’t go before the parole board unless he lives to be 89.
But in Philadelphia, it’s been a different story. Jose Hernandez, convicted of killing four family members as a teen, received 45 years to life after the district attorney tried to offer him even less time. And another juvenile lifer, Jorge Cintron Jr., was resentenced to 30 years to life for three murders; he could be released by age 47.
Judges have also differed when it comes to tacking on additional time for associated charges, such as robbery, conspiracy, or possession of a firearm....
According to a Pennsylvania Supreme Court decision last year, a juvenile must be found to be “permanently incorrigible” before a life sentence can be imposed.
Now, state appellate courts will have to weigh in on a slew of follow-up questions being lobbed from all across the commonwealth. What comprises a de facto life sentence: Is 50 years too long? Is it constitutional to stack consecutive sentences such that a juvenile who is not incorrigible has no hope of release? What is a juvenile anyway — do 18-year-olds count? And, what factors must judges consider in the resentencings, which are supposed to take into account the reduced culpability of an immature, impulsive youth, as well as his or her capacity for change?...
In Michigan, home to 360 teen lifers, the state has sought to reimpose life without parole in more than half of its cases. In Virginia, Renwick said, “the commonwealth has fought at every step to prevent” resentencings. And in Illinois, which is working through the resentencings of about 100 juvenile lifers, Shobha Lakshmi Mahadev, a professor at the Children and Family Justice Center at Northwestern University School of Law, said the vast majority are being resentenced to 50 or 60 years in prison, many with no opportunity for early release.
Other states, such as Louisiana, have addressed the issue legislatively, by creating across-the-board parole eligibility — though in some jurisdictions that still means few, if any, lifers are actually being released.
“What these decisions have done is opened up this conversation and this question: How do you sentence a child or an adolescent? What our systems did before was just to treat kids as adults — and that is unconstitutional and, given what we know now, inappropriate,” Mahadev said.
Sunday, July 01, 2018
With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers
There are lots of important Supreme Court precedents that lots of people will be discussing in the wake of Justice Anthony Kennedy's announced retirement from the Court. Decisions like Roe v. Wade and Obergefell v. Hodges are, obviously, of great concern to a great many. But for criminal justice reformers, there is one particular precedent, Harmelin v. Michigan, 501 U.S. 957 (1991), that I think should become a focal point for aggressive advocacy seeking to overrule a lousy Eighth Amendment precedent.
Harmelin, as many know, was the Supreme Court's 1991 fractured decision that rejected an Eighth Amendment challenge to Michigan's imposition of a (1) mandatory (2) life without parole sentence for (3) mere possession of 672 grams of cocaine. I have numerically labeled the three potent essentials of Harmelin, because each part has worked in modern times to functionally preclude any successful constitutional challenges to just about (1) any mandatory sentencing statutes or (2) any life without parole sentences or (3) any drug possession sentences. (Thanks to the recent Graham and Miller rulings, some juvenile offenders have some (small) protection against some extreme sentences, but those Eighth Amendment rulings have not been of any help to older offenders.)
As discussed here a few months ago, in a terrific recent First Circuit opinion while denying rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364 (1st Cir. Feb 27, 2018) (available here), Judge David Barron lamented how judges "have no choice but to approve mandatory 'forever' sentences ... so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin." In so doing, Judge Barron highlighted not only questionable elements of the Harmelin ruling, but also stressed the possible impact of "two lines of Supreme Court precedent that have developed since Harmelin was decided" (referring to Alleyne and Graham/Miller). Though not quite calling for Harmelin to be overruled, Judge Barron, writing on behalf of the entire First Circuit, makes clear that he is urging SCOTUS to reconsider the "three-decades old, three-Justice concurrence in Harmelin."
The author of the key "three-Justice concurrence in Harmelin" was, of course, Justice Anthony Kennedy, and no other member of the current Court was serving when Harmelin was decided. So, once Justice Kennedy's replacement is seated, it will be a whole new Court available to reconsider Harmelin without any existing member eager to make the case that Harmelin was right. Moreover, as the retired Justice Stevens noted in this interesting 2010 speech about Harmelin, Chief Justice Roberts' concurrence in Graham could be read as an indication he might be open to a return to the more defendant-friendly Eighth Amendment approach as set forth in Solem. And, as noted in this prior post, the newest Justice, Neil Gorsuch, is seemingly more often voting in favor of federal criminal defendants in contested cases than against them. We know Justice Thomas does not like the Harmelin precedent, but that is because he does not think the Eighth Amendment limits the length of prison sentences at all. And Justice Alito seems unlikely to want to expand the reach of the Eighth Amendment (though I have long believed he nearly signed on to Chief Justice Roberts' Graham concurrence). We do not know who will be replacing Justice Kennedy, so we cannot yet make informed speculations about how he or she might vote on this issue. But if Prez Trump picks someone in the mold of Justice Gorsuch, that could mean yet another Justice with an open mind on these kinds of issues.
Notably, the Justices have already decided to take up a case concerning the Eighth Amendment for next Term, Timbs v. Indiana. Though that case only technically concerns "whether the Eighth Amendment's excessive fines clause is incorporated against the states under the Fourteenth Amendment," perhaps Justices engaged already by the topic of possibly excessive financial sanctions might want to give some more thought to possibly excessive prison punishments. More to my main point, I sincerely think criminal defense lawyers and advocates should be trying regularly and persistently to "litigate against" each of the three potent essentials of Harmelin by arguing against the constitutionality of (1) extreme applications of mandatory sentences and/or (2) extreme applications of life without parole sentences and/or (3) extreme applications of drug possession sentences. Shrewd arguments for those facing extreme sentences ought to include a claim of unconstitutionality even applying Harmelin, but also be sure to preserve a claim that Harmelin is no longer good law.
I am not confident the Court will be eager to reconsider Harmelin anytime soon, but very slim chances may have gone up just a little with Justice Kennedy's retirement. And the best and really only chance to get Harmelin before the Court is to keep asking and asking and seeking and seeking and knocking and knocking.
Saturday, June 30, 2018
"Originalism and the Common Law Infancy Defense"
The title of this post is the title of this new article by Craig Lerner now available via SSRN. Though I consider any article about the Eighth Amendment to be timely, this one seems even more so with the recent retirement announcement of Justice Anthony Kennedy, who was often a "swing" SCOTUS voter in Eighth Amendment cases. Here is this article's abstract:
Justice Thomas and the late Justice Scalia consistently argued that the original meaning of the Eighth Amendment was to foreclose only those modes or acts of punishment that were considered cruel and unusual at the time the Bill of Rights was adopted. With respect to juvenile criminal responsibility, this would mean that the Constitution contemplated an infancy defense no broader than what existed in 1791. Yet the common law infancy defense, as sketched by originalist judges, seems barbaric. It treated all fourteen-year-olds as adults, and it permitted the imposition of punishment — even capital punishment — on offenders as young as seven.
This Article argues that the common law infancy defense was more nuanced than modern observers often recognize. With respect to misdemeanors, the defense was more broadly applicable than is typical today. Even with respect to felonies, offenders under the age of fourteen could be found liable only after an individualized inquiry as to their capacity to distinguish right from wrong. The eighteenth-century culture and common law had higher expectations of juvenile abilities than prevail today; and not surprisingly, young people proved more mature than modern adolescents, who are told repeatedly that they are frail and vulnerable.
This Article speculates on how the original meaning of the Eighth Amendment, assuming it incorporates the common law approach to juvenile responsibility, might be applied to modern conditions, given the diminished maturity of young people. However, the Article questions whether young people today are as immature as advertised; indeed, the study of the common law infancy defense could prompt a reconsideration of contemporary attitudes about the capacities of young people.
Thursday, May 31, 2018
Fuzzy math and fuzzy logic in criticisms of federal FIRST STEP Act based in state recidivism data
Over at PoweLine, Paul Mirengoff has this extended post trying to make a case against the FIRST STEP Act under the headline "Cold Facts On Recidivism Undermine Case For Leniency Legislation." I find some of Mr. Mirengoff's posts to be astute even though he relies often on "tough-and-tougher" rhetoric to oppose any possible form of sentencing reform. But this latest effort is full of especially fuzzy work. Let me explain with some quotes (indented and italicized) followed by my commentary.
Last week, the Department of Justice released an updated study from the Bureau of Justice Statistics (BJS) showing that 83 percent of prisoners released by states are re-arrested within nine years of their release. 44 percent of released state prisoners were arrested during the first year after release, 68 percent were arrested within three years, and 79 percent within six years.... The results of the study should deter the Senate from embracing the FIRST STEP legislation passed by the House just before the BJS figures were published. Indeed, the BJS numbers undermine FIRST STEP in multiple ways.
First, it is estimated that FIRST STEP would mandate the immediate release of at least 4,000 federal felons before they serve their full sentence. Given the recidivism numbers from the BJS study, we know that a high percentage of the 4,000 will commit crimes during the period during which, absent FIRST STEP, they would be behind bars.
Mr. Mirengoff accurately reports that the BJS study (which I noted in this prior post) concerns state prisoners, though he fails to note these are folks who were released from state prisons in 2005. From the very outset it is very faulty to assert that recidivism data on state prisoners released in 2005 readily enables us to "know" what federal prisoners released in 2018 will do.
The US Sentencing Commission's most recent report on federal prisoner recidivism, notably, shows a much lower (though still significant) rearrest rate than state prisoners. Here is how the USSC explains how distinct the federal population is from the state population when running prisoner recidivism numbers: "Compared to a cohort of state prisoners released into the community in 2005 and tracked by the Bureau of Justice Statistics, federal offenders had a lower recidivism rate. BJS found that 76.6 percent of offenders released from state prison were rearrested within five years. The Commission, using a comparable five year follow-up period and including only federal offenders released from prison ... found the recidivism rate for these federal offenders was 44.9 percent."
Moreover, the estimated 4000 prisoners to be getting earlier release thanks the FIRST STEP Act will be getting out mostly a few weeks or a few months earlier because of getting a little extra credit for good behavior in prison. The proper statistics suggest, based on the nature of federal prisoners and how limited the FIRST STEP Act really is, that only a quite low percentage "of the 4,000 will commit crimes during the period during which, absent FIRST STEP, they would be behind bars."
Mr. Mirengoff goes on:
Second, the BJS study tells us that the crimes that federal drug felons will commit aren’t confined to drug crimes. According to the study, more than three-quarters (77 percent) of released drug offenders were arrested for a non-drug crime within nine years, and more than a third (34 percent) were arrested for a violent crime. So much for the argument we hear over and over again from Team Leniency that those incarcerated for drug crimes are “non-violent offenders.”...
Again we have the problem of conflating data on state prisoners with federal prisoners. But here we have an even bigger logical flaw because the BJS recidivism data does not show that persons who committed state drug crimes really were violent offenders before they went to state prison, rather it shows that they became violent offenders (or, more accurately, were arrested for a violent offense like assault) after spending time in prison. This actually goes to the heart of the argument for any form of (state or federal) prison reform: we need to do a better job of making prison a place where people become better people not worse criminals.
Mr. Mirengoff continues:
Third, the numbers undermine the rational for FIRST STEP used by certain conservative Senators such as John Cornyn. They argue that some states have made great strides when it comes to rehabilitating prisoners. Thus, the argument goes, statistics about recidivism rates among federal prisoners do not provide a sound basis for opposing sentencing reform, provided the reform also includes corrections reform. The idea is to bring model state prisoner rehabilitation programs into the federal system. This, it is said, will cause recidivism rates to plummet, making America safe for the early release of federal drug felons and for a reduction of mandatory minimums. The BJS numbers tell us that the states, collectively, are doing no better than the feds when it comes to rehabilitating prisoners.
But what about “model” states like John Cornyn’s home state of Texas, so often touted by sentencing and corrections reform advocates? It turns out that Texas isn’t doing any better than the feds either. The numbers that reform advocates use to calculate recidivism in Texas count only re-incarcerations, not re-arrests. By contrast, the federal system measures recidivism by re-arrests (to be sure not everyone arrested has committed a crime but then, not everyone who has committed a crime is arrested). If one compares apples to apples — federal re-arrests to Texas re-arrests — the recidivism rate in Texas is actually higher than the federal rate, according to the National Association of Assistant U.S. Attorneys. FIRST STEP is thus founded on a fiction — the view that enlightened states have discovered the key to the age-old problem of how to rehabilitate criminals.
Again, a lack of context concerning time and place and prisoners makes this reasoning faulty. The BJS data reveal that Texas and other states did a lousy job rehabilitating those prisoners who were released back in 2005 before the modern wave of reforms in Texas or anywhere else. This Right on Crime posting highlights the reform put in place in Texas starting in 2007, and Texas was really the first state to get started on these types of "modern" reforms. Data on state prisoners released in 2005 will never prove that state reforms started in 2007 are ineffectual.
Now that all said, neither Texas nor any other jurisdiction has all of a sudden "discovered the key to the age-old problem of how to rehabilitate criminals." This is an age-old problem because it never has had and never will have an easy or obvious solution. People and crime are way too complicated for magic bullet solutions. But what Texas and other states have done, and what the FIRST STEP Act aspires to do, is move forward with reforms that have provide to help at least a little bit with the the age-old problem of how to rehabilitate criminals. No programming ever can or ever will miraculously drop recidivism rates to near zero, but Mr. Mirengoff wants that to be the prerequisite to any reforms:
Let’s see recidivism rates plummet on a sustained basis, using apples to apples comparisons, before the first federal prisoner is released early and the first mandatory minimum is reduced.
It would be more direct and more honest if Mr. Mirengoff simply said "Let’s never allow a federal prisoner to be released early or any mandatory minimum to be reduced."
Saturday, May 19, 2018
Noting the distinctive juve sentencing realities to face the Texas school mass murderer
Yet another horrific school shooting, this time by a juvenile offender, provides yet another need to work through modern sentencing realities facing a mass murderers. This local article reviews the sentencing basics under the headline "The accused Santa Fe shooter will never get the death penalty. Here’s why." Here are excerpts:
The high school junior accused of gunning down 10 students and teachers at a Santa Fe school is facing a capital murder charge - but he’ll never face the death penalty, even in Texas. Some day, he’ll even be eligible for parole.
Though Dimitrios Pagourtzis was charged as an adult and jailed without bond, even if he’s found guilty he can’t be sentenced to death because of a 2005 U.S. Supreme Court ruling. And in the Lone Star State, he can’t be sentenced to life without parole as the result of a 2013 law that banned the practice for minors....
The Santa Fe High School student admitted to the mass shooting that killed 10 and wounded 10 others early Friday, according to court documents. He planted fake explosives and selected his targets so as to spare the students he liked, he later told police.
For an adult, that sort of crime could lead to the death chamber. Murders involving multiple victims can be charged as capital offenses, and for adults that leaves two options: death or life without parole.
At one time, those options were both on the table for teens, too. But then in 2005, Christopher Simmons, a Missouri killer condemned to die, won a landmark case in the Supreme Court. After surveying practices in death penalty states, the justices decided that the national consensus was against executing minors. Only a few states — including Texas — were the outliers still carrying out death sentences for those convicted of crimes committed as minors....
Before the court’s decision, Texas had been the biggest executioner of juvenile offenders, Dunham said. Across the nation, there were 22 convicts executed for crimes committed as juveniles - and more than half of them were in Texas. After the court eliminated the practice, in June 2005 Gov. Rick Perry commuted a slew of death sentences to life, removing 28 prisoners from death row, including 12 from Harris County.
Then in 2012, the Supreme Court took it one step further when the justices struck down mandatory life without parole sentences for juveniles. The following year, Texas legislators passed a law making life with parole — instead of life without parole — the only sentencing option for minors charged with capital crimes. For life sentences where parole is an option, Marzullo said, the first chance at release comes after 40 years in prison.
Whether or not he’s ultimately convicted, the accused Santa Fe shooter will be behind bars for the foreseeable future. During his first court appearance Friday night, a judge opted to hold him without bond. "At the moment he's in solitary confinement," Judge Mark Henry said after the teen's first court appearance Friday evening. "He's going to be here a while."
Because Pagourtzis slaughtered 10 people and injured many more, his case has me wondering about the application of consecutive sentences under Texas laws to potentially extend the period in which a juvenile offender would not be eligible for parole under life sentences. As regular readers know, there is a robust debate in lower courts about whether and how the Supreme Court's announced Eighth Amendment jurisprudence limiting life without parole for juvenile offenders ought to be applied in cases in which a juvenile has committed multiple very serious crimes. That debate may well end up impacting how this latest school shooter gets sentenced.
May 19, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (11)
Thursday, May 17, 2018
"Legal Innocence and Federal Habeas"
The title of this post is the title of this notable new paper available via SSRN authored by Leah Litman that is a must read for anyone following post-Miller or post-Johnson litigation (and who isn't?). Here is the abstract:
Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence — the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted. The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant. The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them in innocence-related considerations.
This Article highlights how the doctrine has started to treat these “legal innocence” cases as cases in which defendants are innocent, as well as the reasons why it has done so. As this Article explains, legal innocence is conceptually and inextricably linked with factual innocence; in both kinds of cases, the defendant was convicted or sentenced under a law she did not violate. These cases raise similar concerns and implicate many of the same features of our criminal law system. By recognizing the emerging category of legal innocence as a kind of innocence, this Article maps out how the existing federal habeas system can provide relief to legally innocent defendants.
May 17, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (3)
Wednesday, May 09, 2018
Detailed review of Illinois juve offenders serving just barely "less than life"
The Chicago Sun-Times has published this extensive look by Injustice Watch at how the Illinois has sentenced (and largely failed to resentence) a set of juvenile offenders serving extreme long prison sentences . The full lengthy title of this piece sets forth its essential elements: "Less than life: Across the country, juvenile offenders are being released from prison based on recognition that human brains continue to develop for the first two and a half decades of life. Nevertheless in Illinois, many who commit crimes as teenagers are likely destined to die in custody." Here is an excerpt:
In Illinois, it is rare for juveniles who did not receive automatic life prison terms to win new chances at sentencing, leaving most of those with long sentences to languish in prison for decades, an Injustice Watch review found.
A review of custody data from the Illinois Department of Corrections revealed that, as of last December, at least 167 current inmates were arrested for crimes as juveniles and are set to serve 50 years or more in prison without parole eligibility, leaving them likely to die in custody but not eligible for resentencing under the dictates of Miller. (It is not possible to know the exact number of young offenders serving long sentences at the Illinois Department of Corrections because the agency does not specifically keep track of that information.)
The imposition of long sentences is especially harsh in Illinois, a state which does not afford parole to most prisoners and which requires offenders convicted of murder to serve 100 percent of their punishment, with no chance of early release based on factors like good conduct or rehabilitation. Such sentences almost certainly lead these inmates to either spend the rest of their lives incarcerated or be released with precious little life left.
Research indicates that incarceration has a jarring effect on life expectancy. In studying a group of inmates released from New York state correctional facilities over a 10-year period, Vanderbilt University Professor Evelyn Patterson found that the former prisoners could expect to shave two years off of their average life expectancy for every one year of incarceration. Furthermore, Patterson found, undoing the negative effect on longevity takes time. It took former inmates two-thirds of the time spent in custody back on the outside to recover from the harm of incarceration on life expectancy. The United States Sentencing Commission considers a 39-year prison sentence the equivalent of life.
Because Illinois almost entirely abolished parole in 1978, these juvenile offenders do not get the same chance to show rehabilitation and change that they might get in other states. About a third of states do not currently employ the traditional practice of parole for newly convicted inmates, according to a report published by the University of Minnesota’s Robina Institute of Criminal Law and Criminal Justice, but Illinois is one of three states nationwide that stopped utilizing parole four decades ago, making it nearly non-existent for the current prison population.
The approximately 80 juvenile offenders in Illinois who became eligible to have their sentences reconsidered [after Miller] all were convicted of killing more than one person — Illinois law mandates life for anyone convicted of multiple murders. By contrast, Illinois state appellate judges have mostly declined to find that the cases of other violent youthful offenders ... fall under the protections outlined in Miller.
There is no national legal standard on how many years is too many for a juvenile to serve. Courts across the country have differed on the issue, creating varied standards on what length of a prison term can legally be considered a life sentence. “Getting rid of formal life without parole was the tip of the iceberg,” said Marsha Levick, deputy director and chief counsel for the Pennsylvania-based Juvenile Law Center, which has advocated for lesser sentences for juveniles convicted of crimes.
Across the country, about a dozen states have passed laws requiring that young defendants sentenced to long prison terms get a chance at parole. Legislators in Illinois have proposed a bill that would give periodic parole opportunities to newly convicted young offenders; so far those efforts have stalled.
May 9, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)
Wednesday, April 25, 2018
New Jersey Supreme Court finds unconstitutional requiring juveniles to be subject to lifetime sex-offender registration
The Supreme Court of New Jersey yesterday handed down a lengthy unanimous opinion in Interest of C.K., No. A-15-16 (N.J. April 24, 2018) (available here) declaring that the state's sex-offender registry law is unconstitutional as applied to some juvenile offenders. Here is how the opinion begins:
Juveniles adjudicated delinquent of certain sex offenses are barred for life from seeking relief from the registration and community notification provisions of Megan’s Law. N.J.S.A. 2C:7-1 to -11, -19; N.J.S.A. 2C:7-2(g). That categorical lifetime bar cannot be lifted, even when the juvenile becomes an adult and poses no public safety risk, is fully rehabilitated, and is a fully productive member of society. Defendant C.K. was adjudicated delinquent for sex offenses committed more than two decades ago and now challenges the constitutionality of N.J.S.A. 2C:7-2(g)’s permanent lifetime registration and notification requirements as applied to juveniles.
Subsection (f) of N.J.S.A. 2C:7-2 subjects all sex offenders, including juveniles, to presumptive lifetime registration and notification requirements. Unlike subsection (g), however, subsection (f) allows a registrant to seek relief from those requirements fifteen years after his juvenile adjudication, provided he has been offense-free and is “not likely to pose a threat to the safety of others.” Subsection (g) imposes an irrebuttable presumption that juveniles, such as defendant, are irredeemable, even when they no longer pose a public safety risk and are fully rehabilitated.
The record in this case reveals what is commonly known about juveniles -- that their emotional, mental, and judgmental capacities are still developing and that their immaturity makes them more susceptible to act impulsively and rashly without consideration of the long-term consequences of their conduct. See State v. Zuber, 227 N.J. 422 (2017). The record also supports the conclusion that juveniles adjudicated delinquent of committing sex offenses, such as C.K., who have been offense-free for many years and assessed not likely to reoffend, pose little risk to the public. Indeed, categorical lifetime notification and registration requirements may impede a juvenile’s rehabilitative efforts and stunt his ability to become a healthy and integrated adult member of society.
We conclude that subsection (g)’s lifetime registration and notification requirements as applied to juveniles violate the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution. Permanently barring juveniles who have committed certain sex offenses from petitioning for relief from the Megan’s Law requirements bears no rational relationship to a legitimate governmental objective. In the absence of subsection (g), N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period.
Defendant may apply for termination from the Megan’s Law requirements fifteen years from the date of his juvenile adjudication, and be relieved of those requirements provided he meets the standards set forth in N.J.S.A. 2C:7-2(f).
April 25, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)
Sunday, April 15, 2018
Interesting intricate ruling from Wyoming Supreme Court about limits on extreme aggregate sentences for juve murderers
For whatever reason, the last few months have brought a number of big notable opinions from an array of courts concerning the reach and application of the Supreme Court's Eighth Amendment jurisprudence limiting severe sentences for juvenile offenders. See examples here and here and here and here from the Third Circuit, the District of Connecticut, and the Iowa Supreme Court and the Georgia Supreme Court.
The latest (and perhaps longest) such opinion was handed down on Friday by the Wyoming Supreme Court in Davis v. Wyoming, 2018 WY 40 (April 13, 2018) (available here). The majority opinion in Davis covers an array of substantive and procedural issues, and it start and ending provide a flavor of its work:
In 1982, when Donald Clyde Davis was seventeen years old, he and a friend picked up a hitchhiker, robbed, and then murdered him. Mr. Davis pled guilty to first degree murder, felony murder, and aggravated robbery. He was sentenced to life imprisonment with a consecutive twenty-to-fifty-year sentence for aggravated robbery. Following the decisions of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Montgomery v. Louisiana, U.S. , 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo. 2013) (Bear Cloud II), and the Wyoming Legislature’s amendment to Wyo. Stat. Ann. § 6-10-301(c), after serving over thirty-three years, Mr. Davis was granted parole from his life sentence, began serving his consecutive twenty-to-fifty-year sentence, and received a new individualized sentencing hearing. After the hearing, the district court declined to modify his original sentence. Mr. Davis appeals and raises a number of issues regarding his sentence. We will reverse and remand with instructions to conduct a new individualized sentencing hearing....
We find that the district court abused its discretion by weighing Mr. Davis’ youth as an aggravating instead of mitigating factor; considering the nature of the crime to only a limited extent and failing to consider the participation and potential peer pressure of Mr. Davis’ codefendant; placing undue significance on dated psychological evaluations; concluding that he was not capable of rehabilitation without the benefit of expert testimony concerning Mr. Davis’s potential for rehabilitation, and by considering Mr. Davis’ disciplinary record in prison without taking into account the fact that for the majority of his incarceration he had no hope of release, and without weighing his accomplishments and personal growth while in the penitentiary. The district court’s failure to consider Mr. Davis’ family and home environment and whether he might have been convicted of a lesser offense but for incompetencies associated with youth, without providing an explanation for omitting analysis of those factors, also constituted an abuse of discretion. Finally, the district court abused its discretion by failing to make a finding of permanent incorrigibility based upon its analysis of all the Miller factors. When the Miller factors are not properly considered and weighed and when there is no finding of permanent incorrigibility, or when a finding of permanent incorrigibility is not supported by the Miller factors, the resulting sentence violates the Eighth Amendment.
Accordingly, we reverse. At the time of the hearing and the district court’s decision, the parties and the district court did not have the advantage of our rulings concerning the procedure, burdens, and potentially relevant evidence for a Miller determination, contained here. Consequently, remand for an additional sentencing hearing and resentencing is appropriate. On remand, the sentencing court should approach the case with the understanding that, more likely than not, life without parole is a disproportionate sentence for Mr. Davis, and it should consider the Miller factors and decide whether he is the truly rare individual mentioned in Miller who is incapable of reform.
The dissent opinion in Davis likewise covers lots of group, but its start spotlights an issue that I suspect will be setting US Supreme Court attention relatively soon:
As I observed in Sam v. State, 2017 WY 98, ¶ 88, 401 P.3d 834, 862 (Wyo. 2017), reh’g denied, and Sen v. State, 2017 WY 30, ¶¶ 36-37, 390 P.3d, 769, 779 (Wyo. 2017) (Sen III), the United States Supreme Court has not prohibited consecutive sentences for juveniles who commit multiple crimes including murder. The U.S. Supreme Court never found such sentences to be “the functional equivalent of life without parole.” I continue to disagree with the concept of “de facto life without parole” arising from consecutive sentences for separate crimes. In my opinion, the U.S. Supreme Court established a process to assure that a juvenile offender’s age, immaturity and potential for improvement are considered in sentencing. Unfortunately, some courts, including this one, have focused on the result of the sentencing, rather than on the process.
I recognize some states have concluded that Miller, Graham and Montgomery point to a conclusion that lengthy consecutive sentences for juveniles, when aggregated, are the same as a single sentence of life without parole. Other states have not done so. I find the better logic supports those states who have not expanded the holdings in Miller, Graham and Montgomery. Within the past year, Missouri, Colorado and Pennsylvania have all determined that Miller and Montgomery do not apply to the aggregation of consecutive term of years sentences for multiple crimes committed by a defendant under the age of 18.
April 15, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)
Monday, April 09, 2018
Big Third Circuit panel ruling asserts age of retirement should be central to applying Eighth Amendment limits on long juvenile sentences
The Third Circuit today handed down a huge ruling today in US v. Grant, No. 16-3820 (3d CIr. April 9, 2018) (available here), to address the application of Eighth Amendment limits on juvenile sentences. The panel opinion runs nearly 50 pages (followed by a 10+ page partial dissent), but these paragraph sets up the context and part of the heart of the opinion (with emphasis in original):
This case presents several difficult challenges for this Court. It calls upon us to decide a novel issue of constitutional law: whether the Eighth Amendment prohibits a term-of-years sentence for the duration of a juvenile homicide offender’s life expectancy (i.e., “de facto LWOP”) when the defendant’s “crimes reflect transient immaturity [and not] . . . irreparable corruption.” Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016). Next, if we find that it does, then we must decide what framework will properly effectuate the Supreme Court’s determination that the Eighth Amendment affords nonincorrigible juvenile offenders a right to a meaningful opportunity for release. Furthermore, we must take great pains throughout our discussion to account for the substantive distinction that the Supreme Court has made between incorrigible and non-incorrigible juvenile offenders in order to ensure that the latter is not subjected to “a punishment that the law cannot impose upon [them].” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004)).
Our decision today therefore represents an incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders....
[W]hat is clear is that society accepts the age of retirement as a transitional life stage where an individual permanently leaves the work force after having contributed to society over the course of his or her working life. See, e.g., Retirement, BLACK’S LAW DICTIONARY (10th ed. 2014) (“Termination of one’s own employment or career, esp. upon reaching a certain age . . . .”). It is indisputable that retirement is widely acknowledged as an earned inflection point in one’s life, marking the simultaneous end of a career that contributed to society in some capacity and the birth of an opportunity for the retiree to attend to other endeavors in life.
As we stated above, a non-incorrigible juvenile offender is not guaranteed an opportunity to live a meaningful life, and certainly not to a meaningful retirement. Nevertheless, in order to effectuate the Eighth Amendment’s requirement of meaningful opportunity for release, a juvenile offender that is found to be capable of reform should presumptively be afforded an opportunity for release at some point before the age of retirement. Cf. Graham, 560 U.S. at 58 (“To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.” (internal quotation marks omitted) (quoting Estelle, 429 U.S. at 102)). A sentence that preserves the juvenile offender’s opportunity to contribute productively to society inherently provides him or her with “hope” to “reconcil[e] with society” and achieve “fulfillment outside prison walls.” Id. at 79. It also accounts for the Court’s trepidation that LWOP sentences deprive non-incorrigible juvenile offenders of vocational training opportunities, which presumably otherwise prepare them to become productive members of society’s working class. See id. at 74.
Accordingly, lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform. Critically, under all circumstances, lower courts must only consider the uniform national age of retirement. Otherwise, estimates of retirement ages that account for locality, state, gender, race, wealth or other differentiating characteristics raise similar constitutional concerns to those plagued by reliance on life-expectancy tables alone. Without fixing the age of retirement to a uniform standard, classes of juvenile defendants that retire on average later in life would unreasonably be subjected to longer sentences. Cf. Mathurin, 868 F.3d at 932 (sentencing juveniles based solely on mortality tables “would unquestionably lead to challenges from defendants from longer-living ethnic groups who would be subject to longer sentences based on that ethnicity”).
Because I am on the road today, I may not be able to review and further comment on this big opinion for some time. But I surmise there is a whole to worth discussing in this opinion, and I hope commentors might share a range of thoughts about it.
Sunday, April 01, 2018
"The Intersection between Young Adult Sentencing and Mass Incarceration"
The title of this post is the title of this notable new article authored by Josh Gupta-Kagan available on SSRN. Here is its abstract:
This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system more leniently than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in depth connections between the two.
Connecting the two bodies of literature helps identify and strengthen arguments for reform. First, changing charging, detention, and sentencing practices for young adults is one important tool to reduce mass incarceration. Young adults commit a disproportionate number of crimes. Because so many offenders are young adults, treating young adults less severely could have significant impacts on the number of individuals incarcerated.
Second, focusing on young adults responds to retributive arguments in defense of existing sentencing policies, especially for violent offenses. The mass incarceration literature shows that sentences for violent offenses explain much, if not most, of recent decades’ prison growth. Young adult violent offenders deserve punishment, but their youth mitigates their culpability and thus offers a response to retributive calls for long sentences.
Third, considering mass incarceration can add both urgency and new ideas to the growing debate about reforming sentencing of young adults. Such reforms have thus far been tentative, following well-grounded desires to test different alternative interventions for young adults. The mass incarceration literature adds an important consideration – the status quo demands prompt and far-reaching reform – and new ideas, such as prosecutorial charging guidelines that encompass defendants’ age.
Friday, March 30, 2018
US District Judge concludes Miller applies to 18-year-old murderer to find his mandatory LWOP sentence violates the Eighth Amendment
I just saw this fascinating federal ruling handed down yesterday by US District Judge Janet C. Hall, the Chief Judge of the US District Court for the District of Connecticut, in Cruz v. US, No. 11-CV-787 (D. Conn. March 29, 2018) (available here). The ruling runs 50+ pages, so I will need to read it carefully before opining about it at length. But these excerpts from the start art end of the opinion should reveal why it is worth attention:
Cruz turned 18 on December 25, 1993. On May 14, 1994, when Cruz was 18 years and 20 weeks old, Cruz and another member of the Latin Kings, Alexis Antuna, were given a mission by gang leader Richard Morales. See United States v. Diaz, 176 F.3d 52, 84 (2d Cir. 1999). The mission was to kill Arosmo “Rara” Diaz. See id. Carrying out that mission, Cruz and Antuna shot and killed Diaz and his friend, Tyler White, who happened to be with Diaz at the time. See id. Cruz testified at the hearing before this court that he now admits to committing both murders. See Cruz Tr. at 27. He further testified that Antuna informed him at the time that the leaders of the Latin Kings were debating what would happen to him as a result of his attempt to leave the gang. See id. at 19. According to his testimony, Cruz believed that, if he did not carry out the mission, he himself would be killed. See id....
[W]hen the Roper Court drew the line at age 18 in 2005, the Court did not have before it the record of scientific evidence about late adolescence that is now before this court.
Thus, relying on both the scientific evidence and the societal evidence of national consensus, the court concludes that the hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds. As such, the penological rationales for imposing mandatory life imprisonment without the possibility of parole cannot be used as justification when applied to an 18-year-old.
The court therefore holds that Miller applies to 18-year-olds and thus that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole” for offenders who were 18 years old at the time of their crimes. See Miller, 567 U.S. at 479. As applied to 18-year-olds as well as to juveniles, “[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” See id. As with Miller, this Ruling does not foreclose a court’s ability to sentence an 18-year-old to life imprisonment without parole, but requires the sentencer to take into account how adolescents, including late adolescents, “are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” See id. at 480.
I think it a near certainty that the feds will appeal this consequential ruling to the Second Circuit and it will be interesting to watch how that court approaches this issue. And, in all likelihood, whatever the outcome in the Second Circuit, a cert petition would follow. So, stay tuned.
March 30, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)
Saturday, March 10, 2018
Iowa Supreme Court issues latest major ruling on juve sentencing limits and process after Miller
As reported in this local article, the "Iowa Supreme Court on Friday offered guidance to judges for interpreting a 2015 law that lays out sentencing guidelines for juveniles convicted of murder." Here is more from the press report about the latest in a series of rulings following up on the US Supreme Court's juve sentencing jurisprudence:
Some justices also signaled in concurring opinions that they believe rigid sentences for other crimes committed by juveniles should eventually be rolled back.
The court ruled Friday in a murder case in which Rene Zarate stabbed Jorge Ramos to death in 1999, when Zarate was 15. Zarate, now 34, originally received a mandatory sentence of life without parole, but requested a resentencing hearing after a 2012 U.S. Supreme Court ruling prohibited such sentences for juveniles. His new sentence makes him eligible for parole after 25 years, with credit for time served.
Zarate challenged his sentence as well as the constitutionality of a 2015 Iowa law that revised how juveniles who commit first-degree murder are sentenced. Under the law, the sentencing judge could choose from a variety of options including life without the possibility of parole, life with parole after a certain amount of the sentence is served, and life with the immediate possibility of parole. The law further outlined 25 factors for the court to take into consideration when sentencing juveniles for murder.
In 2016, after that law was passed, the Iowa Supreme Court found that life sentences without parole are unconstitutional for juveniles. But Friday's ruling was the first time the Iowa Supreme Court addressed the new law. A majority of justices said Friday that the guidelines laid out in the law are constitutional — except for the subsection that allowed for life sentences without parole....
They said judges must give juvenile offenders an individualized hearing taking the circumstances of the case into account, and must consider as mitigating factors things such as the offender's age at the time of the crime, family and home environment and the possibility for rehabilitation and change. But the district court judge who re-sentenced Zarate did so based on his belief that anyone that anyone who takes the life of another individual should spend a certain amount of time in prison, according to the opinion joined by four of the seven justices. "The sentencing judge allowed the nature of Zarate’s offense to taint his analysis by imposing a mandatory minimum sentence of imprisonment due to his belief that there should be a minimum term of imprisonment for anyone who commits murder, regardless of their age at the time of the offense," Justice Bruce Zager wrote in the majority opinion....
The court's remaining three justices issued separate concurrences urging the court to go further in striking down mandatory minimums for juveniles as unconstitutional. Justice Brent Appel, who authored the court's earlier opinion against life sentences without parole for juveniles, said it's time to re-examine the constitutionality of all mandatory minimum sentences for minors who commit crimes. "Instead of imposing mandatory minimums through an unreliable judicial guess, the constitutionally sound approach is to abolish mandatory minimum sentences on children and allow the parole board to make periodic judgments as to whether a child offender has demonstrated maturity and rehabilitation based on an observable track record," Appel wrote in his concurrence.
Justice Daryl Hecht, writing a concurrence joined by Justice David Wiggins, wrote that he believes mandatory minimums for juveniles are categorically prohibited by the Iowa Constitution. "Whether imposed by legislative mandate or by a sentencing court, the constitutional infirmity of mandatory minimum sentences for juvenile offenders is the same in my view," Hecht wrote.
The full opinion in Iowa v. Zarate, No. 15-2203 (Iowa Mar. 9, 2018), which rests much of its constitutional analysis on the Iowa Constitution's prohibition against cruel and unusual punishment (rather than the US Constitution's Eighth Amendment), is available at this link.
March 10, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)
Monday, February 26, 2018
Split California Supreme Court holds 50-year sentence for juve kidnapper violates the Eighth Amendment after Graham
This afternoon, the Supreme Court of California issued a 93-page opinion in California v. Contreras, No. S224564 (Cal. Feb. 26, 2018) (available here), which extends the limits that the Supreme Court's Eighth Amendment ruling in Graham places on juvenile sentencing for non-homicide crimes. Here is how the majority opinion, authored by Justice Liu, gets started:
Defendants Leonel Contreras and William Rodriguez were convicted in a joint trial of kidnapping and sexual offenses they committed as 16 year olds. Rodriguez was sentenced to a term of 50 years to life, and Contreras was sentenced to a term of 58 years to life. We granted review to determine whether the sentences imposed on these juvenile nonhomicide offenders violate the Eighth Amendment as interpreted in People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero) and Graham v. Florida (2010) 560 U.S. 48 (Graham). We hold that these sentences are unconstitutional under the reasoning of Graham.
The lead dissenting opinion, authored by Chief Justice Cantil-Sakauye, gets started this way:
I respectfully dissent. The majority’s erroneous interpretation and extension of Graham v. Florida (2010) 560 U.S. 48 (Graham) yield a result the Graham court did not intend — the categorical condemnation of all sentences in which juvenile offenders convicted of nonhomicide crimes will serve a term of 50 years or greater. At the same time, the majority fails to properly account for legislation and regulations that afford defendants William Rodriguez and Leonel Contreras an initial opportunity for parole no later than when they reach the age of 60. These measures take defendants’ sentences outside of Graham’s purview even under the majority’s mistaken approach to that decision. Defendants’ sentences do not violate the Eighth Amendment to the United States Constitution, and I would so hold.
Because this ruling appears to rest squarely on application of the Eighth Amendment of the US Constitution rather than on the parallel provision in article I, section 17 of the California Constitution, it would seem the state of California could seek to appeal this expansive application of the Graham ruling to the US Supreme Court. It will be interesting to see if California pursues an appeal and what might become of it were the state to do so.
Sunday, February 18, 2018
Is Henry Montgomery of Montgomery v. Louisiana perhaps on the verge of a parole grant? UPDATE: NO by 2-1 vote by parole board
The question in the title of this post is prompted by this new commentary by Jody Kent Lavy, executive director of the Campaign for the Fair Sentencing of Youth, who write about a high-profile defendant soon to be considered for parole at age 71. Here are excerpts:
Henry Montgomery has been incarcerated in Louisiana prisons since he was 17 years old, and today he is 71. He was sentenced to life without the possibility of parole when he was only a child, for the impulsive shooting of a sheriff's deputy decades ago.
As a result, he has missed a lifetime’s worth of events, learning, and relationships. The United States Supreme Court ruled two years ago in his case, Montgomery v. Louisiana, that it is unconstitutional to impose a life-without-parole sentence on the vast majority of youth — a sentence the United States alone imposes on its children. Still, Montgomery remains incarcerated, and will finally see the parole board just days from now....
And although Montgomery’s case has become emblematic of the fight to end the brutal practice of sentencing children to life without parole (and to other extreme sentences), Montgomery is not yet free. Prosecutors in Louisiana are fighting his freedom, despite the U.S. Supreme Court ruling his sentence unconstitutional, along with such sentences for all youth whose crimes reflect “transient immaturity” rather than “irreparable corruption” — a trait I cannot imagine any child possessing, given where they are developmentally. But it certainly isn’t true of Montgomery, whom I was fortunate to meet last year. He is a soft-spoken, gentle man who has tried to make the most of his time in prison by coaching boxing, silk-screening, and serving as a mentor.
While Montgomery and his supporters look forward to his hearing Monday, there is a sea change afoot, just about everywhere but Louisiana, where prosecutors are seeking to reimpose life-without-parole sentences on approximately one-third of those given relief by Montgomery. Meanwhile, in the rest of the country, hundreds of individuals like Henry Montgomery have come home over the past two years because of the court’s ruling and over a thousand have been resentenced to lesser terms. States across the nation are abandoning life without parole at a remarkable rate. And the sky has not fallen.
Few of us make decisions today like we did when we were 15, 16, or 17. Our brains, not just our bodies, matured. A growing number of courts, legislatures, prosecutors, and parole boards understand this. And still, Montgomery — a gentle man, guilty of a crime for which he deserved to be held accountable in ways which reflected his age and life experiences — sits in prison.
UPDATE: This local article, headlined "Board denies parole to man who served 50 plus years after killing deputy when he was juvenile," reports the results of Henry Montgomery's parole hearing this morning. It starts this way:
The Louisiana parole board on Monday morning denied freedom to 71-year-old Henry Montgomery, whose case was central in a Supreme Court decision about juvenile offenders sentenced to life in prison without parole.
The three-member Louisiana Board of Pardons and Committee on Parole voted 2 to 1 to deny parole to Montgomery, who was convicted of first-degree murder in the 1963 shooting of an East Baton Rouge Sheriff's deputy.
"This is a parole hearing, it's not a sentencing hearing," said James Kuhn, the chairman of the parole panel. "I don't know what the victim would want, but he's a law enforcement officer. ... One of the things that society demands is that everyone abide by the rule of law and when you don't, there are consequences."
Kuhn and parole board member Kenneth Loftin, who both voted against Montgomery's parole, primarily cited the fact that Montgomery only completed two classes during his 54 years in prison.
However, Montgomery's lawyer, Keith Nordyke, argued that his client had received a waiver saying he could not complete his GED, and many classes were not available to inmates serving life during the first few decades of his time in prison.
Tuesday, February 13, 2018
Retired Missouri judge now expressing regret about giving 16-year-old offender 241 years in prison for role in two armed robberies
Evelyn Baker, a retired Missouri circuit court judge, has this notable new opinion piece in the Washington Post under the headline "I sentenced a teen to die in prison. I regret it." Here are excerpts:
“You will die in the Department of Corrections.” Those are the words I spoke as a trial judge in 1997 when I sentenced Bobby Bostic to a total of 241 years in prison for his role in two armed robberies he committed when he was just 16 years old.
Bostic and an 18-year-old friend robbed a group of six people who were delivering Christmas presents to a needy family in St. Louis. Two shots were fired. A bullet grazed one person, but no one was seriously injured. The two then abducted and robbed another woman — who said she was groped by Bostic’s accomplice before the two released her. They used the money they stole from her to buy marijuana. Despite overwhelming evidence against him, Bostic chose to go to trial. He was found guilty.
Bostic had written me a letter trying to explain his actions, but despite this, he had not, in my view, demonstrated sufficient remorse.
I told him: “You are the biggest fool who has ever stood in front of this court. . . . You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice. . . . Your mandatory date to go in front of the parole board will be the year 2201. Nobody in this room is going to be alive in the year 2201.”
I thought I was faulting Bostic for his crimes. Looking back, I see that I was punishing him both for what he did and for his immaturity. I am now retired, and I deeply regret what I did. Scientists have discovered so much about brain development in the more than 20 years since I sentenced Bostic. What I learned too late is that young people’s brains are not static; they are in the process of maturing. Kids his age are unable to assess risks and consequences like an adult would. Overwhelming scientific research shows that children lack maturity and a sense of responsibility compared with adults because they are still growing. But for the same reason, they also have greater capacity for reform.
That’s perhaps not surprising. As a society, we recognize that children and teens cannot and do not function as adults. That’s why below a certain age you cannot vote, join the military, serve on a jury or buy cigarettes or alcohol....
Most courts have understood the Supreme Court’s 2010 decision to mean that the Constitution prohibits sentences like the one I gave to Bostic. While I did not technically give him “life without parole,” I placed on his shoulders a prison term of so many years combined that there is no way he will ever be considered for release. He won’t become eligible for parole until he is 112 years old — which means he will die in prison, regardless of whether he rehabilitates himself or changes as he grows older.
I see now that this kind of sentence is as benighted as it is unjust. But Missouri and a handful of other states still allow such sentences, and the Missouri courts have affirmed the sentence I handed down.
This week, the Supreme Court will consider whether to take Bostic’s case and, if the justices do, they will decide whether his sentence is an outcome the Constitution can countenance. The court should take the case and give Bostic the chance I did not: to show that he has changed and does not deserve to die in prison for something he did when he was just 16.
Imposing a life sentence without parole on a child who has not committed murder — whether imposed in a single sentence or multiple sentences, for one crime or many — is wrong. Bostic was immature, and I punished him for that. But to put him, and children like him, in prison for life without any chance of release, no matter how they develop over time, is unfair, unjust and, under the Supreme Court’s 2010 decision, unconstitutional.
I am pleased to see a judge who imposed a functional LWOP sentence now recognizing and advocating that functional LWOP sentences create the same constitutional concerns as formal LWOP sentences that the Supreme Court found to violate the Eighth Amendment in Graham. That said, I find it a little rich this judge now asserting that she "learned too late" that juvenile brains are different than adult brains. Also, as the judge's commentary hints and as this local article from a few years ago about the case confirms, it seems Bostic's decision to go to trial rather than his crimes largely accounts for his need now to seek constitutional relief from the Supreme Court:
Bostic is serving a vastly greater sentence than Hutson, his accomplice, who received 30 years and will be eligible for parole six years from now.
Both men were accused of firing guns that night. The only difference: Bostic went to trial and Hutson pleaded guilty.
February 13, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)
Monday, February 05, 2018
Georgia Supreme Court refuses to extend Miller Eighth Amendment limits on juve sentencing to non-LWOP sentences
A helpful colleague made sure I saw the new short ruling on juvenile sentencing limits handed down by the Supreme Court of Georgia today in Veal v. Georgia, No. S17A1758 (Ga. Feb. 5, 2018) (available here). Here is the meat of the opinion in Veal:
Citing OCGA § 42-9-39(c), appellant notes that the aggregate sentence imposed on him mandates 60 years of prison service before the first opportunity for paroled release. Given his life expectancy, appellant states that even this new sentence is unconstitutional because it amounts to a de facto LWOP sentence, again without any determination of the factors set forth in Veal I which a court is required to find before imposing an LWOP sentence on a convicted defendant who was younger than 18 at the time of the crime. Appellant asserts that reading the Miller and Montgomery Supreme Court opinions as applying only to actual LWOP sentences elevates form over substance and permits the label of the sentence to supersede the actual result of the imposed sentence.
Appellant acknowledges that he is asking this Court to expand the holdings of the Miller and Montgomery Supreme Court opinions. As noted by this Court in Veal I, those cases read together create a substantive rule that before an LWOP sentence may be imposed on one who was a juvenile at the time the crime was committed, the sentencing court must conduct a hearing to determine if that person is one of the exceptionally rare juveniles for whom such a sentence is appropriate because of “a specific determination that he is irreparably corrupt.” Veal I, supra, 298 Ga. at 702. But neither Miller nor Montgomery addressed the imposition of aggregate life-with-parole sentences for multiple convictions or whether sentences other than LWOP require a specific determination that the sentence is appropriate given the offender’s youth and its attendant characteristics, and the nature of the crimes. See Miller, supra, at 465. Appellant points to courts in other jurisdictions that have found Miller-like protections are required for a prison sentence imposed upon a juvenile that exceeds the individual’s life expectancy. See, e.g., State v. Zuber, 152 A3d 197 (N.J. 2017); State v. Null, 836 NW2d 41 (Iowa 2013) (holding under the Iowa constitution that “an offender sentenced to a lengthy term-ofyears sentence should not be worse off than an offender sentenced to life in prison without parole who has the benefit of an individualized hearing under Miller”). On the other hand, other state and federal courts have determined that Miller and Montgomery do not apply to cases that do not involve LWOP sentences but nevertheless involve sentences that, according to the convicted juvenile, are the functional equivalent to a life sentence without the opportunity for parole. See, e.g., Starks v. Easterling, 659 Fed. Appx. 277 (6th Cir. 2016); Bell v. Nogan, 2016 WL 4620369 (D.N.J. Sept. 6, 2016); People v. Sanchez, 2013 WL 3209690 (Cal. Ct. App. June 25, 2013).
Because the Supreme Court has not expanded its mandate that the Eighth Amendment’s prohibition of cruel and unusual punishment as it applies to juvenile offenders requires a sentencer to consider a juvenile’s youth and its attendant characteristics before imposing a sentence other than LWOP, this Court will not do so. Although appellant mentions “the analogous provision of the Georgia Constitution” in his enumerations of error, he offers no argument or citation of authority whatsoever regarding the application of the Georgia Constitution to the case. We therefore deem any state constitutional claim abandoned.
Examining whether juve life with parole in Maryland really means a real chance at parole
This lengthy new Washington Post article, headlined "The life sentence he got as a teen came with a chance at parole. But is it a real chance?," provides a deep dive into what parole eligibility means these days in one state and highlights why there is sure to be debates and litigation over the Supreme Court's rulings in Graham and Miller for many years to come. Here are excerpts:
Walter Irving Maddox was on the phone making New Year’s Eve plans when he heard a knock on the door of his secluded cottage steps from the creek where he’d spent decades hauling crabs. He laid the phone on a bed. From the other end of the line, his girlfriend heard voices. Then, sharp banging and doors slamming, followed by groans and gurgling.
The metallic sound, she would soon learn, was neighborhood teenager, James E. Bowie, pummeling 68-year-old Maddox with an aluminum baseball bat. Bowie was a high school dropout, fueled by drugs and anger. He never intended to hurt Maddox so severely, just to subdue him while a friend grabbed the waterman’s cash, he said recently.
Maddox, now 90, was never the same. “It just destroyed his memory,” said Maddox’s son, who shares his father’s name. “They took his life away from him, but they didn’t finish the job.”
Bowie was 17. He was sentenced in 1997 to life in prison with the possibility of parole — a possibility his lawyers say exists on paper, but carries no real chance for release.
Maryland is one of three states, with California and Oklahoma, that requires the governor’s signature to parole inmates sentenced to life. In the last two decades, no Maryland governor has signed off on a parole board recommendation to release a lifer like Bowie who committed his crime before he turned 18. Bowie has spent his 20s and 30s in prison, more time locked up than he was on the outside.
“My life experience stopped at 17,” Bowie, now 40, said in interviews from state prison in Hagerstown, Md., for attempted murder and robbery. “I needed to be punished for what I did and needed to have time to be corrected, but the rest of my life is overkill. I’m not the same person I was.”
His case is one of four being considered this week by the state’s highest court in Annapolis in a challenge to the legality of the Maryland parole system. Prison reform advocates say the system is unconstitutional because while the punishment in the cases involving juvenile offenders technically includes parole, the state hasn’t paroled any inmate in that position in more than 20 years.
The office of Attorney General Brian Frosh says Bowie’s sentence is legal and his challenge is premature. He hasn’t been recommended for parole or formally denied release by any governor. “If they are unhappy with the way parole is implemented, their issue is with the executive branch,” said Frosh’s spokeswoman Raquel Coombs.
The question for the Maryland Court of Appeals is whether a young person can be sentenced to life without what advocates say is any realistic chance of parole. The outcome of the cases could affect an estimated 300 lifers locked up for crimes they committed as juveniles....
“The Supreme Court has been so clear and so forceful about how the landscape has changed,” said Sonia Kumar of the American Civil Liberties Union, an attorney challenging Maryland’s parole system in a separate federal case. “There really isn’t any excuse for why Maryland is still operating the way it is and denying people who were sent to prison as kids any hope of relief no matter how thoroughly they’ve turned their lives around,” she said.
The Maryland attorney general’s office says the fact that parole on life sentences is infrequent and has declined “is not proof of a constitutional violation” but rather “proof, perhaps, of changes in the way that governors and parole commissioners exercise their discretion, but nothing more.”
Inmates with life sentences with the possibility of parole must serve at least 15 years before being considered for release. Parole commissioners, appointed by the governor, review records, notify victims and interview the prisoner before making a recommendation to the governor, who must act within 180 days. In Bowie’s case, the parole board recommended him for a rehearing after his first review in 2007. Changes to the system, the attorney general’s office says, must come from the legislature or the governor. But legislation to take the governor — and politics — out of the parole process, proposed again this session, has been stymied for years in part because of opposition from elected state prosecutors.
Between 1969 and 1994, three Maryland governors paroled 181 lifers. As governor, Parris N. Glendening in 1995 said resolutely he would sign no paroles in life-term cases, standing in front of a state prison to announce: “A life sentence means life.” In the following two decades, court records show none were paroled. Governors rejected recommendations on 24 lifers — juveniles and adults — without explanation.
More recently, Gov. Larry Hogan (R) has approved parole for two adult inmates sentenced to life. Like each governor since Glendening, he also has used separate clemency powers to reduce prison sentences and bring early release for a small number of lifers. But reform advocates say acts based on prerogative do not fix an unconstitutional life sentence or the parole system.
“Not only is the governor not bound by any standards or forced to consider any particular factors, but the governor is not required in any way to explain his decision,” said James Johnston, director of the Youth Resentencing Project within the Maryland Office of the Public Defender, which has brought dozens of court challenges throughout the state, including Bowie’s.
The three other cases before the appeals court this week involve crimes committed by teenagers who are now serving life and in one case a term of 100 years: a 1989 home invasion in Prince George’s County that resulted in three deaths; a 1999 murder in Baltimore; and a 2004 shooting outside Randallstown High School that paralyzed a student.
February 5, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)
Saturday, January 27, 2018
"Montgomery Momentum: Two Years of Progress since Montgomery v. Louisiana"
The title of this post is the title of this short interesting document produced by the Campaign for the Fair Sentencing of Youth. I recommend the whole document, and here are excerpts (with endnotes removed):
On January 25, 2016, the United States Supreme Court decided Montgomery v. Louisiana, giving hope and a chance for life outside of prison to individuals sentenced to life without parole for offenses committed as children.
When the Supreme Court decided Montgomery, over 2,600 individuals in the U.S. were serving juvenile life without parole (JLWOP), a sentence only imposed in the United States. In the two years since Montgomery was decided, seven states and the District of Columbia have banned JLWOP, and the number of individuals serving JLWOP has been cut in half, both through resentencing hearings and state legislative reform.
More than 250 individuals previously serving life without parole for crimes committed as children are now free. Collectively, they have served thousands of years in prison. These former juvenile lifers now have the chance to contribute meaningfully to their communities....
Henry Montgomery, the petitioner in Montgomery v. Louisiana, remains incarcerated. The U.S. Supreme Court recognized Mr. Montgomery’s “evolution from a troubled, misguided youth to a model member of the prison community.” Montgomery was resentenced and is now eligible for parole, but because of delays at the parole board and prosecutor opposition, the 71-year-old remains in prison, where he has been since 1963.
Children of color are disproportionately sentenced to life without parole. When Montgomery was decided, over 70 percent of all individuals serving JLWOP were people of color. These extreme disparities have persisted during the resentencing process following Montgomery, underscoring the racially disparate imposition of JLWOP....
For the approximately 1,300 individuals whose unconstitutional JLWOP sentences have been altered through legislative reform or judicial resentencing to date, the median sentence nationwide is 25 years before parole or release eligibility. This means that most individuals who were unconstitutionally sent to die in prison as children will not be eligible for review or release until at least their 40s. Although Montgomery suggested that providing review after 25 years is an avenue for minimal compliance with Miller, these lengthy sentences continue to violate international human rights standards and far outstrip terms of incarceration for youth in the rest of the developed world.
UPDATE: A helpful tweet led me to think this is a good place to note that the Juvenile Sentencing Project has lots of great juve LWOP/Graham and Miller resources detailing responsive legislation and significant state case law and leading reseach reports. That Project also helps maintain this great national map that enables one to see how many juve LWOP prisoners were in each state at the time of Miller and now.
January 27, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (5)
Thursday, January 25, 2018
Might some members of SCOTUS want to take up juve sentencing case to limit reach of Graham and Miller?
The question in the title of this post is prompted by this little news item from Wyoming headlined "Wyo asks US Supreme Court to review juvenile murder sentence." Here are the basics:
Wyoming is asking the U.S. Supreme Court to review a Wyoming Supreme Court decision to overturn a minimum 52-year prison sentence for a teen who, as a juvenile, shot and killed a man and injured several others in a Cheyenne park in 2014.
Last August, the Wyoming Supreme Court ordered Phillip Sam re-sentenced, saying his minimum 25-year sentence for first-degree murder followed by a 27-year sentence for aggravated assault effectively constituted a life sentence....
Attorney General Peter Michael argued in his Jan. 4 petition that the practical effect of the state Supreme Court order would be that juveniles could commit additional crimes without additional punishment.
I blogged here about the notable opinion handed down by the Supreme Court of Wyoming in Sam v. Wyoming, No. S-16-0168 (Wy. Aug. 24, 2017) (available here). I know there have been a lot of opinions from juve offenders looking to extend the reach of Graham and Miller, none of which have yet been granted. I am not sure if there have been many state appeals on Graham and Miller, and I am also not sure if there might be some Justices eager to wade into this arena.
When a juvenile is sentenced for murder and other violent crimes, does the Eighth Amendment limit a judge to an aggregate term of years that allows a meaningful opportunity for release even though none of the separate sentences are cruel and unusual?
January 25, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)
Sunday, December 24, 2017
Noting some notable SCOTUS petitions
Via How Appealing, I noticed these two notable stories about notable certiorari petitions on notable sentencing issues. The first linked story concerns a petition in a capital case that has been widely discussed, but that I doubt will be granted; the second linked story concerns a petition in a non-capital juve case that raises an issue that has been festering in lower courts ever since the Supreme Court's Graham ruling in 2010:
Tuesday, November 21, 2017
"Justice at Last for the Youngest Inmates?"
The question in the title of this post is the headline of this New York Times editorial about juve LWOP sentencing that starts with another question and answer: "How many times does the Supreme Court have to repeat itself before its message gets through? In the case of life-without-parole sentences for juveniles, the answer seems to be: at least one more time." Here is more:
On Tuesday, the justices will meet to consider whether to hear two separate cases asking them to ban those sentences categorically, in line with the Eighth Amendment’s guarantee against cruel and unusual punishments. It should be an easy call. For more than a decade, the court has been moving in the right direction, growing ever more protective of juveniles who are facing the harshest punishments in our justice system.
In 2005, the court banned the death penalty for people who committed their crimes before turning 18. In 2010, it outlawed juvenile sentences of life without the possibility of parole in all cases but homicide. In 2012, it barred mandatory sentences of life without parole for juveniles in all cases. And in 2016, it made that ruling retroactive for the more than 2,000 inmates already sentenced....
[S]ince the court’s string of rulings, many more states have come on board; 20 states and the District of Columbia now ban the sentence in all cases. In four other states it exists on the books but is never imposed in practice. Even Pennsylvania, the juvenile-lifer capital of the country, has since the 2016 ruling avoided seeking such sentences in all but the rarest circumstances. Not surprisingly, new sentences of life without parole for juveniles have also dropped sharply.
But in a few states, prosecutors are still behaving as though the last 12 years never happened. The problem is worst in Louisiana and Michigan, which together account for more than a quarter of all juvenile lifers. In Michigan, prosecutors are seeking resentences of life without parole in more than half of all the state’s cases, which meets no one’s definition of “uncommon.” In Louisiana, the state wants life without parole for 82 of the 258 people whose mandatory sentence was struck down last year. The numbers are even worse at the local level. New Orleans prosecutors are seeking life without parole in half of all cases; in West Baton Rouge Parish, 100 percent.
Statistics like these have nothing to do with careful consideration of “the mitigating qualities of youth,” as Justice Elena Kagan put it in the Miller case, and everything to do with blind retribution. The insistence on maximum punishment is even harder to understand when one considers that the court has hardly issued a get-out-of-jail card to those juveniles serving life without parole. It has said only that people whose crime occurred when they were too young to vote or buy beer should get “some meaningful opportunity,” usually only after decades in prison, to make a case for release.
As long as there’s a loophole, however, Michigan and Louisiana appear eager to drive a truck through it. For the sake of the hundreds of juveniles in those states, many of whom have spent decades rehabilitating themselves, and to reaffirm the court’s role as the ultimate arbiter of the Constitution, the justices should ban these sentences for good.
I suspect that Justice Kennedy is still not yet ready to embrace a categorical ban on juve LWOP sentences in all circumstances, and this means there are likely not the SCOTUS five votes needed to move Eighth Amendment jurisprudence where the New York Times is urging.
Meanwhile, the Detroit Free Press has this recent lengthy article under the headline "Michigan remains a battleground in a juvenile justice war keeping hundreds in prison," which further details the ugly record of the state up north in this arena. Here is a snippet:
A year and a half after the Supreme Court ruled that all juvenile lifers across the nation should have the opportunity to be re-sentenced and come home, fewer than 10% of those in Michigan — a total of 34 — have been discharged.
The number, while low, could be chalked up to byzantine bureaucracy and the many moving parts of the criminal justice system. Civil rights activists, however, contend that while an array of procedures have slowed down the re-sentencing process nationally, Michigan is unique in its simple reluctance to recommend shorter sentences.
According to data from court records and the Michigan Department of Corrections, prosecutors in 18 Michigan counties have recommended continued life without parole sentences for all of the juvenile lifers under their purview. Statewide, 66% of Michigan's juvenile lifers have been recommended for the continued life sentence — a sentence which the Supreme Court declared unconstitutional but for the rarest of cases.
"First, Michigan took the strongest position in the country against children having a second chance, and now Michigan prosecutors are defying the Supreme Court’s holding that all children are entitled to a meaningful and realistic opportunity for release," said civil rights attorney Deborah LaBelle, who is one of several leading the charge to upturn the current status quo. "They are resisting the explicit ruling of the Supreme Court that this sentence can only be imposed on the rarest of children who commit a homicide and is irreparably corrupted," she continued.
And while the recommendations are a moving target, with some county prosecutors re-evaluating their filings — Saginaw County, for example, originally recommended 20 out of 22 defendants for continued life, but now contends that over half their recommendations have either changed or are now "undetermined" — the uncertainty means hundreds remain in the dark. They recognize the prospect of maybe, possibly, one day coming home, but have no clear roadmap of how this can come to be.
As the legal players dispute the intentions of the high court, men and women just like Hines, persist in a criminal justice limbo, while family members of victims are asked to grapple with unresolved emotions surrounding some of the most traumatic experiences in their lives. The disconnect has meant Michigan — already a touchstone in the juvenile lifer debate, with one of the largest populations in the nation — remains a battleground in a war many assumed to be over.
November 21, 2017 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 (1)
Friday, August 25, 2017
Supreme Court of Wyoming continues to interpret Graham and Miller broadly
A helpful colleague made sure I did not miss an interesting opinion handed down yesterday by the Supreme Court of Wyoming in Sam v. Wyoming, No. S-16-0168 (Wy. Aug. 24, 2017) (available here), involving the Supreme Court's juve sentencing jurisprudence. Here are concluding passages from the majority opinion ruling for the defendant in Sam:
Mr. Sam argues that his consecutive sentences of a minimum of 52 years, with release possible when he is 70 years old, is unconstitutional....
In Bear Cloud III, we analyzed the United States Supreme Court case law leading up to Miller and concluded that the prohibition of life without parole sentences required a “‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’” 2014 WY 113, ¶ 21, 334 P.3d at 139 (quoting Graham, 560 U.S. at 75, 130 S.Ct. at 2030). And we held that “‘[t]he prospect of geriatric release . . . does not provide a meaningful opportunity to demonstrate the maturity and rehabilitation required to obtain release and reenter society as required by Graham . . . .’” Bear Cloud III, 2014 WY 113, ¶ 34, 334 P.3d at 142 (quoting State v. Null, 836 N.W.2d 41, 71 (Iowa 2013) (internal quotation marks omitted)). Since then, the United States Supreme Court has confirmed that the release for juveniles contemplated by the Roper, Graham, and Miller courts should allow them “hope for some years of life outside prison walls . . . .” Montgomery, 136 S. Ct. at 736-37. We held in Mr. Bear Cloud’s case that his sentence of a minimum of 45 years, with possible release when he is 61, was the functional equivalent of life without parole. Bear Cloud III, 2014 WY 113, ¶¶ 11, 33, 334 P.3d at 136, 142. In this case, the sentencing court has made the determination that Mr. Sam is not one of the juvenile offenders whose crime reflects irreparable corruption. An aggregated minimum sentence exceeding the 45/61 standard is the functional equivalent of life without parole and violates Bear Cloud III and Miller and its progeny. The sentence imposed on Mr. Sam of a minimum 52 years with possible release at age 70 clearly exceeds that. We therefore reverse and remand with instructions to the sentencing court to sentence Mr. Sam within the confines set forth in Bear Cloud III.
A dissenting justice in Sam took a distinct view, and here are conclusing passages from the dissenting opinion:
Mr. Sam did not act from impulse, immaturity, or at the invitation or inducement of others. He intentionally prepared for his crimes, baited the victims into an ambush, committed multiple aggravated assaults on numerous victims, and culminated the spree with an execution-style murder. Proportionality requires that those factors be considered in his sentence, as well as the remote possibility of rehabilitation.
The U.S. Supreme Court has not defined a “meaningful opportunity to obtain release.” Nothing in any Supreme Court decision suggests that a “meaningful opportunity to obtain release” must be the same for every defendant. To the contrary, the proportionality required by the Eighth Amendment indicates that a more mature defendant who commits multiple crimes including murder should receive a lengthier sentence than someone who is less mature or commits only one crime.
In this case, the district court did all it was required to do in sentencing Mr. Sam. It conducted a thorough individualized sentencing hearing and considered multiple times Mr. Sam’s youthful factors, family history, and participation in the crime as required by Miller and Bear Cloud III. It crafted a sentence it felt was appropriate based upon all of these factors, and it believed this sentence did not constitute a de facto life sentence. It concluded that Mr. Sam deserved a longer sentence than if he had only committed the murder, or the murder and one additional aggravated assault.
The majority remands this case to the district court to impose an aggregate sentence of something less than the 45 years that was rejected in Bear Cloud III, concluding that Mr. Sam’s sentence denies him any meaningful opportunity for release before he is “geriatric.” I disagree. If Mr. Sam is motivated by the possibility of parole and comports himself well while in prison he will receive credit for “good time” under Wyo. Stat. Ann. § 7-13-420 (LexisNexis 2017) and Department of Corrections rules. He will then be eligible for parole on the last of his sentences at about age 61. I do not agree that release at that age deprives Mr. Sam of all meaningful portions of life.
August 25, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (4)
Thursday, August 24, 2017
"Procedures for Proportionate Sentences: The Next Wave of Eighth Amendment Noncapital Litigation"
The title of this post is the title of this notable paper recently posted to SSRN and authored by Sarah French Russell and Tracy Denholtz. Here I the abstract:
With its 2010 decision in Graham v. Florida, the U.S. Supreme Court for the first time placed categorical Eighth Amendment limits on noncapital sentences. Graham prohibits life-without-parole sentences for juveniles in nonhomicide cases and requires states to provide these juveniles with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” In 2012, in Miller v. Alabama, the Court again set a categorical Eighth Amendment limit — prohibiting mandatory life-without-parole sentences for all juveniles and requiring sentencers to give mitigating effect to youth-related factors when juveniles face life-without-parole sentences.
Following Graham and Miller, 23 states have enacted statutes responding to the decisions and there has been extensive litigation nationwide. The first wave of litigation has largely focused on the scope of the Court’s categorical holdings, with lower courts considering questions such as: How long is a “life” sentence? Which crimes are “nonhomicides?” Do the decisions apply retroactively?
A new wave of litigation is beginning to examine what procedures are required to ensure proportionate sentences under the Eighth Amendment. Across the country, states are using a range of approaches. In providing a “second look” for juveniles, some states are simply using existing parole systems, whereas other states have reformed their parole practices for juveniles or created special mechanisms for sentencing review through the courts. With respect to sentencing procedures, some states have adopted special procedures for serious juvenile cases. Other states have provided little guidance to sentencing courts.
In the past several years, many individuals have been sentenced or resentenced under Miller, and parole boards have started holding hearings in some states. W ith these sentencing and second look proceedings underway, advocates have started to challenge the procedures that states are using. Are state parole boards in fact providing a “meaningful opportunity” for release to juveniles based on demonstrated maturity and rehabilitation? Are courts conducting sentencing hearings in compliance with Miller’s mandates?
Eighth Amendment capital litigation has often focused on the procedures governing capital cases, and much can be accomplished by pushing for better procedures in the noncapital sentencing context. With hope, reforms to parole and sentencing processes for juveniles will not only improve outcomes for juveniles but will also lead to better procedures and outcomes for adults. Yet at the same time, advocates should not abandon efforts to push for further substantive Eighth Amendment limits on sentences — not only for children but for adults.
Sunday, August 20, 2017
Eleventh Circuit upholds a 57-year sentence for federal juve offender for non-homicide crimes based in part of possibility of good-time credits
I just came across the interesting opinion handed down late last week by an Eleventh Circuit panel in US v. Mathurin, No. 14-12239 (11th Cir. Aug. 18, 2017) (available here), which rejects an Eighth Amendment challenge (and other challenges) to a 685-month sentence imposed for multiple armed robbery and carjacking crimes committed by the defendant just before he reached age 18. The underlying facts and the sentencing dynamics in Mathurin are interesting, in part because an older defendant would have gotten a 300-year(!) prison sentence based on many applicable consecutive mandatory-minimum terms that went with the convictions in this case. The defendant argued that his long prison term was still a functional LWOP term that violated the Supreme Court's Graham Eighth Amendment ruling, and the Eleventh Circuit had a lot of interesting things to say in response. Here are snippets:
For purposes of this appeal, we will assume that Graham does apply to a non-parolable term-of-years sentence that extends beyond a defendant’s expected life span. Applying Graham to a term-of-years sentence, however, then gives rise to another question: how does one measure the life expectancy of an individual.... [I]n resolving this case, we do not need to decide whether Defendant’s granular approach to calculating life expectancy should carry the day for purposes of a Graham analysis because even assuming the accuracy of his proffered lower life expectancy for black males in their mid-twenties, as opposed to the life expectancy of all males in their mid-twenties, we conclude that Defendant’s Graham challenge fails....
[A]lthough there is no parole for federal sentences, Defendant has it within his power to shorten his sentence by earning good-time credit. Pursuant to 18 U.S.C. § 3624, Defendant can earn up to 54 days of credit towards his sentence for each year he serves in prison, “subject to determination by the Bureau of Prisons that, during that year, [he] has displayed exemplary compliance with institutional disciplinary regulations.” 18 U.S.C. § 3624(b)(1). The Government has calculated that if Defendant earns the maximum good-time credit available, Defendant can reduce his total sentence by over 7 years and be released when he is 67 years old. Defendant has never disputed this calculation. Earning this credit means that Defendant would serve a remaining sentence of about 43.4 years, which is more than five years shorter than his own proffered life span for black males and almost ten years shorter than the projected life span for all males his age. Thus, Defendant’s sentence provides him with a realistic opportunity to obtain release before the end of his life, as required by Graham.
It is true that Defendant may not receive all of the above good-time credit if he misbehaves and thereby forfeits some of that credit. But it is totally within Defendant’s own power to shorten the sentence imposed. Graham does not require that a sentence “guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.” Graham, 560 U.S. at 75. It just requires that the offender have a chance to show that he has earned the right to be given a second chance at liberty.
Friday, August 11, 2017
Lamenting the role of prosecutors in continued pursuit of juve LWOP sentences
This New York Times op-ed by Rashad Robinson zeroes in on the role of prosecutors in the continuance of juve LWOP sentences in the wake of Graham and Miller. The piece is headlined "No Child Deserves a Life Sentence. But Try Telling Prosecutors That." Here are excerpts:
In 2012, the Supreme Court took a step toward righting a terrible wrong by banning mandatory life sentences without the possibility of parole for children. Last year, the court said that ban should apply retroactively: It told prosecutors to conduct resentencing hearings for the approximately 2,500 people who were serving life sentences for crimes they committed as adolescents. Many of them had been in prison for decades.
But if you walked into many courthouses today, you wouldn’t know that the Supreme Court had called for resentencing these juvenile offenders, the majority of them black. That’s because prosecutors are choosing to pursue life-without-parole sentences for these cases again. Part of the problem is that the court kept the door open for overreach when it allowed prosecutors to impose a life sentence on the rare defendant who is “irreparably corrupt” and “permanently incorrigible.”
Consider Michigan, where prosecutors are denying parole or shorter sentences for 60 percent of juvenile lifers, even in cases where parole boards have recommended them. In Oakland County, northwest of Detroit, the share is a whopping 90 percent. While nearly half of all juvenile lifers are concentrated in Michigan, Pennsylvania and Louisiana, prosecutors elsewhere, like Scott Shellenberger in Baltimore County, Md., who has opposed ending such sentences for children, have also effectively thumbed their nose at the court’s ruling.
On top of this, many prosecutors are resentencing juvenile lifers to de facto life-without-parole sentences. The district attorney of Orleans Parish in Louisiana defended a “reduced” sentence for a juvenile lifer to a term that would have let him leave prison at age 101. (A Louisiana Supreme Court justice later reprimanded the district attorney for this “stunning” and “constitutionally untenable” position).
This is happening not because our prisons are full of unrepentant juvenile offenders who can never be rehabilitated, but because of a racist structure of perverse incentives that encourages prosecutors to pursue mass incarceration instead of justice.
For decades, prosecutors have sought high conviction rates and long sentences in the belief that appearing tough on crime would advance their careers. Indeed, prosecutors in any given local district or state attorney’s office, from the most junior rookie to the top elected official, tend to view their career prospects through the lens of average sentence length....
Black communities have borne the brunt of this overzealous approach, and racial disparities can be found anywhere prosecutors have control over sentences. But in recent years, this racist incentive structure has begun to shift, as multiracial coalitions led by black Americans have elected prosecutors across the country who value safety and justice. This is no liberal pipe dream, but it does require sustained activism and perseverance. That’s what it took last November when voters in Chicago, Houston and other cities ousted prosecutors who were not serving their interests and elected reform-minded candidates. In those cities, community advocates and my organization, Color of Change, helped make criminal justice issues a key part of the debate.
But communities must work to hold all prosecutors accountable, even those who promise reforms. Prosecutors are the most powerful actors in the criminal justice system; they aren’t going to start caring about the Supreme Court’s rulings on juvenile sentences and other vital reforms until voters give them a reason to.
Though there are evident racial skews in who gets subject to the most severe sentences in the US, I struggle to understand just how the political pressure and benefits that prosecutors experience from appearing tough on crime amounts to a "racist incentive structure." Having prosecutors regularly subject to voter concerns through local elections creates what might be called a "politicized" or "majoritarian incentive structure," but I am not sure I see how the label "racist" is a sensible or helpful way to describe the traditional election process facing many local prosecutors. I wonder if this author would likewise assert that mayors or local representatives (or other elected local officials who also can in various ways impact the operation of criminal justice systems) are subject to a "racist incentive structure" that impacts their governmental decision-making.
Because this op-ed ai part of a wave of important recent advocacy and scholarship emphasizing the importance of prosecutorial decision-making, I do not wish to make too much of my puzzlement over the assertion that local prosecutors are subject to a "racist structure of perverse incentives." But I do wish to hear from anyone who might help me better understand what the author has in mind when referencing the "racist incentive structure" facing prosecutors.
Thursday, August 10, 2017
"Why are we sentencing children to life in prison without parole?"
The question in the title of this post is the headline of this new Newsweek commentary authored by Vincent Southerland and Jody Kent Lavy. Here are excerpts from the start and end of the commentary:
The barbaric practice of sentencing children to life in prison without the possibility of parole remains one of the most radically inhumane aspects of our criminal justice system.
For those of us who work daily to abolish this practice, the good news is that there are several recent U.S. Supreme Court decisions that deem this brand of sentencing unconstitutional and attempt to limit its use.
The bad news is that despite these decisions and a national trend moving away from this practice, several outlier states and counties refuse to comply with the Supreme Court’s most recent mandate, which effectively banned life without parole for all children capable of rehabilitation.
The shameful news is that the United States is the only country in the world that sentences children to life in prison without the possibility of parole, and that children of color -- African American children in particular -- and children who have been abused and traumatized are disproportionately handed these sentences.
Taken together, these facts lead to a simple conclusion: The time has come to put an end to life without parole sentencing for children....
By tackling our most extreme sentences for children, and acknowledging that this harshest of punishments is imposed disproportionately on children of color coming from some of our most vulnerable communities, we must come to terms with the fact that race and socioeconomic status play a huge role in determining how much compassion the justice system will show a young person.
This should not be the case -- all children are created equal, and there is no such thing as a throwaway child. Our sentencing policies should reflect those truths.
State lawmakers would be well served to join the national trend abandoning the practice of sentencing children to life in prison without a hope of release. It is imperative that together we work toward a justice system that offers the mercy that all children deserve.
Sunday, August 06, 2017
Guest post: "It’s Time to End Life without Parole for Children in the United States"
I recently received a kind request to publish here a commentary authored by Rob Smith and Heather Renwick. Rob is the Executive Director of the Fair Punishment Project at Harvard Law School, and Heather is Legal Director at the Campaign for the Fair Sentencing of Youth in Washington DC. Here is what they have to say:
Sweeping reform over the past five years has brought the United States to a critical tipping point in the movement to end the arbitrary and cruel practice of sentencing kids to life in prison without parole. The Associated Press just reported that the number of youth serving life without parole around the country has dramatically fallen in the past five years due to legislative reforms and judicial opinions that recognize sentencing kids to life in prison is unnecessarily harsh and unconstitutional in most, if not all, cases.
In 2012, only five states banned life without parole sentences for juveniles. Today, just five years later, the number of states that ban life sentences for children has nearly quadrupled, bringing the total to nineteen states and District of Columbia. Another four states do not sentence children to life in prison, despite the fact that penalty is technically available.
The states that ban or no longer use life without parole for children reflect geographical, political, and ideological diversity. For example, West Virginia enacted the most progressive law in the country in 2014, and Nevada’s Republican-majority legislature unanimously passed a law that provides parole eligibility for all children sentenced in adult court.
Even Pennsylvania, the historical epicenter of juvenile life without parole in the United States, is moving unequivocally away from the practice. In the past year, over 100 individuals sentenced as children to life without parole in Pennsylvania have been resentenced, more than 60 of whom have returned home so far.
When the U.S. Supreme Court abolished the juvenile death penalty in 2005 in a case called Roper v. Simmons, it looked to the number of states that legislatively or functionally abandoned the juvenile death penalty as evidence of national consensus. The rapid movement away from life without parole sentences for youth has far surpassed the pace of reform that preceded Roper.
Yet a handful of states remain outliers in their treatment of young people convicted of serious crimes. Virginia has flouted U.S. Supreme Court opinions limiting the imposition of life sentences on children, and in Michigan, children continue to be sentenced to life without parole at a rate that far outstrips the rest of the country. So whether a child is sentenced to life without parole is entirely dependent on the state in which he or she is sentenced.
Last year in a case called Montgomery v. Louisiana — a clarification of its 2012 opinion Miller v. Alabama — the U.S. Supreme Court said that a sentence of life without parole should not be imposed on a child in most, if not all, cases. The Supreme Court rooted these decisions in the understanding that even children who commit serious crimes are capable of positive growth and change.
Yet as the AP just reported, inconsistent implementation of these U.S. Supreme Court decisions means that “[t]he odds of release or continued imprisonment vary from state to state, even county to county, in a pattern that can make justice seem arbitrary.” And our nation’s kids deserve more than arbitrary justice. It’s time for the U.S. Supreme Court to recognize what a rapidly growing number of states already have: that no child should be sentenced to life in prison without parole.
Monday, July 31, 2017
AP series looks deeply at a "patchwork of justice" for juve lifers after Graham and Miller
The AP has some new in-depth reporting on juvenile LWOP sentences and resentencings in this series labeled "Locked Up For Life." This lead article published today is headlined "AP Investigation: A patchwork of justice for juvenile lifers," and here are some excerpts from the extended piece:
Five years ago, the U.S. Supreme Court banned mandatory life without parole for juveniles in murder cases. Last year, the court went further, saying the more than 2,000 already serving such sentences must get a chance to show their crimes did not reflect “irreparable corruption” and, if not, have some hope for freedom.
But prison gates don’t just swing open. Instead, uncertainty and opposition stirred by the new mandate have resulted in an uneven patchwork of policies as courts and lawmakers wrestle with these complicated, painful cases. The odds of release or continued imprisonment vary from state to state, even county to county, in a pattern that can make justice seem arbitrary.
The Associated Press surveyed all 50 states to see how judges and prosecutors, lawmakers and parole boards are re-examining juvenile lifer cases. Some have resentenced and released dozens of those deemed to have rehabilitated themselves and served sufficient time. Others have delayed review of cases, skirted the ruling on seeming technicalities or fought to keep the vast majority of their affected inmates locked up for life.
Many victims’ relatives are also battling to keep these offenders in prison. They “already had their chance, their days in court, their due process,” says Candy Cheatham. Her father, Cole Cannon, was killed in 2003 in Alabama by Evan Miller, the 14-year-old whose no-parole sentence was the basis for the 2012 sentencing ban....
The AP’s review found very different brands of justice from place to place. For years, officials in states with the most juvenile life cases were united in arguing that the Supreme Court’s ban on life without parole did not apply retroactively to inmates already serving such sentences. Now, states are heading in decidedly different directions....
The AP also found that while many states have taken steps to make former teen criminals eligible for parole, in practice, officials regularly deny release. In Missouri, the parole board has turned down 20 of 23 juvenile lifers, according to the MacArthur Justice Center, which filed a federal lawsuit this year claiming the board is denying the state’s juvenile life-without-parole inmates a meaningful chance for release as required by the Supreme Court.... Maryland, meantime, has 271 juvenile lifers whose sentences have always given them a chance for release. But no such prisoner has won parole in more than 20 years, prompting a lawsuit by the American Civil Liberties Union....
The impact of last year’s Supreme Court ruling goes far beyond the 2,000-plus offenders who faced mandatory no-parole sentences as teens. In many states, legal challenges are being mounted on behalf of juveniles sentenced to life without parole at the discretion of a judge or jury, or those who are legally entitled to parole but serving such lengthy terms they are unlikely to ever get out. The latter group encompasses some 7,300 inmates, according to The Sentencing Project. The Supreme Court didn’t specifically address these cases, however, and that’s led to different outcomes.
Monday, July 17, 2017
When will SCOTUS take up a follow-up to Graham and Miller?
The question in the title of this post is prompted in part by this recent Atlantic article headlined "The Reckoning Over Young Prisoners Serving Life Without Parole." Here are excerpts:
It’s been more than seven years since the U.S. Supreme Court began to chip away at life-without-parole sentences for juvenile offenders, and lower courts are still wrestling with how to apply the justices’ logic to the American criminal-justice system.
Life sentences are an American institution. According to a recent Sentencing Project report, more than 200,000 people are serving either life in prison or a “virtual” life sentence: They haven’t been explicitly sentenced to spend their natural lives behind bars, but their prison terms extend beyond a typical human lifespan. Of these prisoners, thousands were sentenced as juveniles. More than 2,300 are serving life without parole, often abbreviated LWOP, and another 7,300 have virtual life sentences. Only after they serve decades in prison do members of the latter group typically become eligible for parole....
What happens to those previously sentenced under old laws has been left to the courts, as with three cases decided in Missouri earlier this week. Lower-court judges are forced to face complex legal and moral questions about when and if it’s proper to lock people up for most of their natural life for crimes they committed as minors. As those judges reach different conclusions, each ruling increases the likelihood the Supreme Court will need to reckon with juvenile LWOP again.
I was a bit surprised that SCOTUS took up the Miller case so soon after they decided Graham, and now I find myself a bit surprised that SCOTUS has not seemed much interested in the further development of this new line of Eighth Amendment jurisprudence. (Of course, the Montgomery case clarifying that Miller must be applied retroactively is a recent ruling in this arena and it (arguably) broke some new jursprudential ground.)
Thursday, July 06, 2017
Highlighting efforts to expand Miller (and Graham?) to older "kids" in Pennsylvania
This new local article, headlined "In Philly courts, whether they'll die in prison comes down to their birthday," reports on efforts by young adult offenders to expand the Supreme Court's recent Eighth Amendment doctrines limiting severe juvenile punishments. Here are excerpts:
In 1982, when Judge Armand Della Porta sentenced Orlando Stewart to spend the rest of his life in prison, he did it with apparent regret. “This is the best example of how wrong mandatory sentencing is,” he said. Stewart was the last of 10 West Philadelphia teenagers sentenced in the 1981 death of University of Pennsylvania graduate student Douglas Huffman. They’d gone out in a pack, looking for someone to rob. One teen hit Huffman, knocking him to the pavement where he hit his head hard enough to fracture his skull. Huffman declined medical treatment, and was found dead in his bed two days later.
Seven of the teens served short sentences, some as little as a year. Ronald Saunders, who orchestrated the attack, was sentenced to life. But he was made eligible for parole this March after a U.S. Supreme Court ruling that drew on evolving brain science to conclude juveniles are less culpable than adults, and cannot be doomed to life without parole under mandatory sentencing rules. Charles Manor, the teen who knocked Huffman to the ground, was also made eligible for parole.
But Stewart, who never touched Huffman, won’t get a new sentence. That’s because two months and 10 days before the crime, Stewart turned 18. Those two months were the difference between kid and adult under the law — and between the “hope for some years of life outside prison walls” promised in that 2016 Supreme Court decision and the certainty of death in prison.
Now, appeals by 18-, 19-, and 20-year-old lifers like Stewart have begun to reach Pennsylvania’s highest court. One was filed in June by Charmaine Pfender, who was 18 when she shot a man she says was attempting to rape her at knifepoint, killing him. Such petitions argue that the same immaturity and impulsivity that diminish younger teens’ culpability continue well into the 20s, as a person’s brain continues to develop. If successful, the appeals could have sweeping implications: More than half of Pennsylvania’s lifers entered the state prison system between age 18 and 25. That’s 2,763 inmates.
These arguments appear to be gaining traction elsewhere. An Illinois appeals court in December granted a new sentencing hearing to Antonio House, who was 19 when he participated in a gang-related killing. And a federal judge has agreed to hear arguments in the Connecticut case of Luis Noel Cruz, who was 18 when he participated in a murder.
Laurence Steinberg, a Temple University psychologist specializing in brain development, says such arguments have a scientific basis. His research shows that, while cognitive abilities mature by age 16, other parts of the brain mature later. Areas that influence criminal culpability, like impulsiveness, risk-aversion, and resistance to peer pressure, continue maturing well into the 20s. “The science would certainly say there’s significant brain maturation that continues to go on at least until age 21, if not beyond,” he said. “The legal question is harder than the scientific question.”...
In light of evolving neuroscience, some jurisdictions have begun to set up young-adult courts, targeting those between 18 and 25 for consideration that is somewhere between juvenile and adult proceedings. San Francisco, Brooklyn, and Chicago have all launched such initiatives. But in a string of U.S. Supreme Court cases, beginning with Roper v. Simmons, the 2005 case that abolished the juvenile death penalty, the court determined “a line must be drawn.” Age 18 seemed a conventional choice.
This line has led to perplexing moments in the courtroom over the last year and a half, as Pennsylvania judges have worked to resentence some 500 juvenile lifers — the largest such population in the nation. Their sentences were deemed illegal under Miller vs. Alabama, a 2012 case, but it took a second case, Montgomery v. Louisiana, to get Pennsylvania courts to apply the ruling retroactively.
At least a half-dozen lifers who sought new sentences in Philadelphia waited for months while lawyers tracked down birth certificates from the 1950s, ’60s, or ’70s to determine whether they were on the right side of 18 at the time of the crime. One, Steven Drake — the only 18-year-old in a group of 11 youths charged in a 1971 stabbing in West Philadelphia — was 23 days too old to make the cut, according to the date of birth on his court docket.
As the title of this post highlights, while this article discusses efforts to expanded the reach of the Supreme Court's Miller ruling precluding mandatory LWOP sentencing of juvenile murderers, this kind of litigation also would carry the potential to expanded the reach of the Supreme Court's prior Graham ruling precluding any LWOP sentencing for juvenile non-homicide offenders.
Wednesday, June 21, 2017
Close examination of some JLWOP girls who should benefit from Graham and Miller
The latest issue of The Nation has two lengthy articles examining the application and implementation of the Supreme Court's modern juvenile offender Eighth Amendment jurisprudence. Both are good reads, but the second one listed below covers especially interesting ground I have not seen covered extensively before. Here are their full headlines, with links, followed by an excerpt from the second of the pieces:
"The Troubled Resentencing of America’s Juvenile Lifers: When SCOTUS outlawed mandatory juvenile life without parole, advocates celebrated — but the outcome has been anything but fair" by Jessica Pishko
The country’s approximately 50 female JLWOP inmates represent a small fraction of the juvenile-lifer population, but the number of women serving life sentences overall is growing more quickly than that of men, according to a study by Ashley Nellis, a senior research analyst at the Sentencing Project. The women interviewed for this article also told me that they felt less informed about what was going on with their cases legally than their male counterparts.
The culpability of girls in their commission of crimes is often entwined with their role as caretakers for younger siblings. They’re also more likely to suffer sexual abuse during childhood. A 2012 study found that 77 percent of JLWOP girls, but only 21 percent of juvenile lifers overall, experienced sexual abuse. Internalized shame made them easier targets for violence by male correctional officers. From my own conversations with these women, many were teenage mothers who were separated from their babies shortly after giving birth. Others were incarcerated throughout their viable childbearing years.
I have been traveling the country to interview female juvenile lifers. Every time I visited one of these women in prison, I was haunted by the things we had in common. We were all approaching middle age. As a young adult, I too had gone off the rails and done dangerous things—the sort of things that could easily have gotten me arrested, even killed. Yet unlike the women I was interviewing, I had the option of leaving those aspects of my past behind.
The women I spoke with represent a distinct minority among juvenile lifers. They do not fit a narrative that is often centered around young men. Their stories are rarely told, even when the law demands it. The Miller and Montgomery decisions call for consideration of a teenager’s upbringing and maturation in prison, but as these women describe it, their experiences are rarely explored in depth in the courtroom. Instead, women’s resentencing is all too often shaped by ignorance and sexism. By interviewing these women, I hoped to share their unheard stories with the public. I hoped, too, that their unconventional stories might help us to reconsider our attitudes toward juvenile crime and rehabilitation—attitudes that still pervade the resentencing process.
June 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)
Monday, June 12, 2017
In summary reversal, SCOTUS holds AEDPA precluded federal court from finding Virginia's geriatric release system was insufficient to comply with Graham
One may need to be a hard-core law-geek to fully appreciate all the nuance that it is in the title of this post, which aspires to be an accurate accounting of the Supreme Court's decision six-page per curiam decision this morning in Virginia v. LeBlanc, No. 16–1177 (S. Ct. June 12, 2017) (available here). Here are excerpts from the heart of the opinion:
The Court of Appeals for the Fourth Circuit erred by failing to accord the state court’s decision the deference owed under AEDPA. Graham did not decide that a geriatric release program like Virginia’s failed to satisfy the Eighth Amendment because that question was not presented. And it was not objectively unreasonable for the state court to conclude that, because the geriatric release program employed normal parole factors, it satisfied Graham’s requirement that juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive parole. The geriatric release program instructs Virginia’s Parole Board to consider factors like the “individual’s history . . . and the individual’s conduct . . . during incarceration,” as well as the prisoner’s “inter-personal relationships with staff and inmates” and “[c]hanges in attitude toward self and others.” See 841 F. 3d, at 280–281 (Niemeyer, J., dissenting) (citing Virginia Parole Board Policy Manual 2–4 (Oct. 2006)). Consideration of these factors could allow the Parole Board to order a former juvenile offender’s conditional release in light of his or her “demonstrated maturity and rehabilitation.” Graham, 560 U.S., at 75. The state court thus did not diverge so far from Graham’s dictates as to make it “so obvious that . . . there could be no ‘fairminded disagreement’” about whether the state court’s ruling conflicts with this Court’s case law. White v. Woodall, 572 U.S. ___, ___ (2014) (slip op., at 11).
“Perhaps the logical next step from” Graham would be to hold that a geriatric release program does not satisfy the Eighth Amendment, but “perhaps not.” 572 U.S., at ___ (slip op., at 11). “[T]here are reasonable arguments on both sides.” Id., at ___–___ (slip op., at 11–12). With respect to petitioners, these include the arguments discussed above. Supra, at 4. With regards to respondent, these include the contentions that the Parole Board’s substantial discretion to deny geriatric release deprives juvenile nonhomicide offenders a meaningful opportunity to seek parole and that juveniles cannot seek geriatric release until they have spent at least four decades in prison.
These arguments cannot be resolved on federal habeas review. Because this case arises “only in th[at] narrow context,” the Court “express[es] no view on the merits of the underlying” Eighth Amendment claim. Woods, supra, at ___ (slip op., at 7) (internal quotation marks omitted). Nor does the Court “suggest or imply that the underlying issue, if presented on direct review, would be insubstantial.” Marshall v. Rodgers, 569 U. S. ___, ___ (2013) (per curiam) (slip op., at 7); accord, Woodall, supra, at ___ (slip op., at 5). The Court today holds only that the Virginia trial court’s ruling, resting on the Virginia Supreme Court’s earlier ruling in Angel, was not objectively unreasonable in light of this Court’s current case law.
A proper respect for AEDPA’s high bar for habeas relief avoids unnecessarily “disturb[ing] the State’s significant interest in repose for concluded litigation, den[ying] society the right to punish some admitted offenders, and intrud[ing] on state sovereignty to a degree matched by few exercises of federal judicial authority.” Harrington, supra, at 103 (internal quotation marks omitted). The federalism interest implicated in AEDPA cases is of central relevance in this case, for the Court of Appeals for the Fourth Circuit’s holding created the potential for significant discord in the Virginia sentencing process. Before today, Virginia courts were permitted to impose — and required to affirm — a sentence like respondent’s, while federal courts presented with the same fact pattern were required to grant habeas relief. Reversing the Court of Appeals’ decision in this case — rather than waiting until a more substantial split of authority develops — spares Virginia courts from having to confront this legal quagmire.
Justice Ginsburg wrote a separate concurrence in LeBlanc to make this point:
Graham v. Florida, 560 U.S. 48 (2010), as today’s per curiam recognizes, established that a juvenile offender convicted of a nonhomicide offense must have “some meaningful opportunity to obtain release [from prison] based on demonstrated maturity and rehabilitation.” Id., at 75. See ante, at 2. I join the Court’s judgment on the understanding that the Virginia Supreme Court, in Angel v. Commonwealth, 281 Va. 248, 704 S.E.2d 386 (2011), interpreted Virginia law to require the parole board to provide such a meaningful opportunity under the geriatric release program. See id., at 275, 704 S.E.2d, at 402 (“the factors used in the normal parole consideration process apply to conditional release decisions under this statute”). In other words, contrary to the Fourth Circuit’s interpretation of Virginia law, the parole board may not deny a juvenile offender geriatric release “for any reason whatsoever,” 841 F.3d 256, 269 (2016) (emphasis in original); instead, the board, when evaluating a juvenile offender for geriatric release, must consider the normal parole factors, including rehabilitation and maturity. See ante, at 4.
Tuesday, May 23, 2017
Colorado Supreme Court rules Graham and Miller do not limit aggregate term-of-years sentence
Yesterday I noted in this post a Minnesota Supreme Court ruling from last week that resisted extending the Supreme Court's recent limits on LWOP sentences for juvenile offenders to aggregate lengthy sentences for multiple crimes. Perhaps exactly as I was writing that post, the Colorado Supreme Court handed down a similar ruling in Lucero v. Colorado, No. 13SC624 (Colo. May 22, 2017) (available here). Here is a key passage from the start of the majority opinion in Lucero:
[W]e hold that neither Graham nor Miller applies to an aggregate term-of-years sentence, which is the sentence Lucero challenges. In Graham, the U.S. Supreme Court held unconstitutional a life without parole sentence imposed on a juvenile for a single nonhomicide offense. 560 U.S. at 57, 82. In Miller, the Court held that a sentence of “mandatory life without parole for those under the age of 18 at the time of their crimes” violates the Eighth Amendment. 132 S. Ct. at 2460. Life without parole is a specific sentence, distinct from sentences to terms of years. Lucero was not sentenced to life without parole. Rather, he received multiple term-of-years sentences for multiple convictions. Therefore, Graham and Miller are inapplicable to, and thus do not invalidate, Lucero’s aggregate sentence.
The concurring opinion in Lucero notes that a significant number of state supreme courts and other courts have held that the Eighth Amendment rule articulated in Graham "extends to cases in which a juvenile offender receives the functional equivalent of an LWOP sentence." At some point (though I have no idea when), the U.S Supreme Court will have to clarify whether and how Graham nor Miller limit the imposition of sentences other than LWOP.
Monday, May 22, 2017
Minnesota Supreme Court upholds consecutive sentences adding up to 90 years before parole eligibility for juve killer of three
Via this new commentary criticizing the opinion, I just learned of this notable ruling handed down last week by the Minnesota Supreme Court concerning the application of the Supreme Court's Eighth Amendment rulings in Miller and Montgomery. The commentary provides a helpful summary of the ruling and the concerns it might engender for those eager for Miller to have a broad reach:
In 2010, at the age of 16, Mahdi Hassan Ali committed a terrible crime in Minneapolis. During the course of a store robbery, Ali shot and killed three people. He was tried as an adult, and a jury found him guilty of two counts of felony murder and one count of first-degree murder. On the felony murder convictions, the Hennepin County District Court sentenced Ali to two consecutive life sentences with the possibility of release on each after 30 years; on the first-degree murder conviction, Ali was sentenced to mandatory life imprisonment without the possibility of release....
In light of Miller [decided in 2012], the Minnesota Supreme Court overturned Ali’s sentence of mandatory life imprisonment and remanded the case back to the Hennepin County District Court for a new sentence. On Jan. 6, 2016, Ali was sentenced to three consecutive sentences of life imprisonment with the possibility of release on each after 30 years. The sentences render Ali ineligible for release until he is 106 years old.
Shortly after the district court’s decision, the U.S. Supreme Court issued a new opinion in Montgomery vs. Louisiana, which offered fresh insight into the Miller ruling. Montgomery explained that the court intended Miller to bar all sentences of life without parole, not just mandatory ones, for any but the rarest of juvenile offenders who were permanently incorrigible and unable ever to be reformed....
Notwithstanding these decisions, the Minnesota Supreme Court filed an opinion last week upholding Ali’s sentences of three consecutive life terms. In an opinion authored by the newly elected Justice Natalie Hudson, the Minnesota court decided that Miller and Montgomery apply only to single sentences of life without parole, refusing to extend the principles articulated in Miller and Montgomery to consecutive sentences that have the same effect.
Rather than requiring a special hearing to determine Ali’s prospects for reform, as Montgomery requires for sentences of life imprisonment without parole, the court decided that consecutive life sentences require no such hearing, even when they will likely result in a juvenile offender’s being imprisoned until death.
Last week’s opinion from the Minnesota Supreme Court will offer state prosecutors a new tool when seeking to imprison children for the duration of their natural lives. For juvenile offenders convicted of serious offenses, prosecutors will seek lengthy consecutive sentences rather than seeking sentences of life imprisonment without parole. Under the opinion, this tack will obviate the need for a hearing to determine whether the juvenile is amenable to reform, regardless of the length of the child’s sentence.
Like the author of this commentary, I am troubled whenever it seems courts are embracing formal rather than functional considerations to limit the reach of the Eighth Amendment juvenile sentencing proportionality rules set forth in Graham and Miller and Montgomery. Still, for reasons the majority opinion in this Ali case stresses, I can understand why many courts have in various settings given constitutional significance in Eighth Amendment analysis to the fact that a defendant has been sentenced to an extreme term for multiple serious crimes rather than just one. Notably, the US Supreme Court has never formally addressed just how multiple-offense, consecutive sentencing should be analyzed under the Eighth Amendment, and this Minnesota case serves to highlight how this is one of a number of Graham and Miller and Montgomery application issues challenging lower courts nationwide.
Thursday, May 04, 2017
South Carolina Supreme Court rejects constitutional challenge to juve sex offender's mandatory lifetime registration/monitoring
Yesterday the South Carolina Supreme Court handed down an opinion in In the Interest of Justin B., No. 27716 (S. Ct. May 3, 2017) (available here), unanimously rejecting the contention that "mandatory imposition of lifetime registration and electronic monitoring on juveniles is unconstitutional." The relatively short opinion is a bit curious because, after reviewing a bunch of previous rulings in which it had "upheld the constitutionality of the mandatory lifetime sex offender registry requirement with electronic monitoring for adults and juveniles," the opinion does not discuss Graham or Miller but does confront and reject the juvenile's assertion that the constitutional analysis should "yield a different result under the reasoning of Roper v. Simmons."
Roper is, indisputably, a relevant precedent if and when a juvenile offender is arguing against mandatory imposition of lifetime registration and electronic monitoring. But, in my view, the more recent precedents of Graham and Miller are even more critical and central to mounting an Eighth Amendment argument against any mandatory lifetime sanction for a juvenile offender. (As noted in this prior post, more than five years ago the Ohio Supreme Court relied heavily on Graham to find unconstitutional a mandatory lifetime registration requirement for juvenile sex offenders.)
In the end, I do not think engagement with Graham and Miller would have made any real difference to the South Carolina Supreme Court. As this conclusion to the opinion highlights, that court has long deemed registration and monitoring to be civil non-punitive provisions that are not really subject to traditional constitutional limits on punishment:
The requirement that adults and juveniles who commit criminal sexual conduct must register as a sex offender and wear an electronic monitor is not a punitive measure, and the requirement bears a rational relationship to the Legislature's purpose in the Sex Offender Registry Act to protect our citizens — including children — from repeat sex offenders. The requirement, therefore, is not unconstitutional. If the requirement that juvenile sex offenders must register and must wear an electronic monitor is in need of change, that decision is to be made by the Legislature — not the courts. The decision of the family court to follow the mandatory, statutory requirement to impose lifetime sex offender registration and electronic monitoring on Justin B. is AFFIRMED
May 4, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (16)
Wednesday, May 03, 2017
PBS Frontline covers the impact of Miller via "Second Chance Kids"
As detailed via this posting, the PBS series Frontline premiered a new documentary last night titled Second Chance Kids. Here is a kind of preview from the posting:
What happens when prisoners convicted of murder as teenagers are given the chance to re-enter society? In the wake of Miller v. Alabama — the 2012 Supreme Court ruling that found mandatory life sentences without the chance of parole for juveniles unconstitutional — some 2,000 offenders across the country are hoping to find out.
With unique access, the new FRONTLINE documentary, Second Chance Kids, follows the cases of two of the first juvenile lifers in the country to seek parole following the landmark ruling — including Anthony Rolon of Massachusetts.
At age 17, Rolon stabbed 20-year-old Bobby Botelho to death. He was given life without parole during the country’s crackdown on so-called juvenile “superpredators” — teenagers who were labeled violent, dangerous and incapable of change. The theory, which was popularized by academics and embraced by Democrats and Republicans alike, resulted in disproportionately extreme sentencing of black and Latino youths.
As the documentary explores, the “superpredator” theory has now largely been discredited and disavowed. And a series of Supreme Court rulings, relying heavily on developmental science, has said that the personal circumstances of teenage offenders must be taken into account when they’re sentenced. The court has also ruled that many of them should have the chance to prove they’ve changed.
In the above excerpt from Second Chance Kids, go inside the parole hearing that will decide Rolon’s fate. Watch as Rolon and his legal team plead for his release after 18 years, and as Botelho’s family argues against it.
As juvenile offenders across the country await their potential re-sentencing, the documentary asks tough questions about crime and punishment in America, and what happens when some offenders are given a second chance.
The PSB website allows one to watch the documentary in full, and it also has these two companion articles:
May 3, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9)
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)