Monday, October 12, 2015
Montgomery wards: noticing the lack of originalism analysis of sentencing finality
As noted in this prior post, I have been doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana, and today's post is of the "dog that didn't bark" variety. Specifically, upon quickly reviewing the 20+ briefs that have been submitted in Montgomery (all of which can be found via this SCOTUSblog page), I noticed that there was essentially no discussion of what an originalist constitutional interpretation would have to say about finality/retroactivity doctrines like Teague and their application to Eighth Amendment doctrines or sentencing outcomes more generally. (Notably and tellingly, a number of briefs discussing the jurisdictional issue flagged by SCOTUS in Montgomery do provide some originalism analysis of that issue. But these briefs, nor any of those just focused on the finality/retroactivity issue, had anything to say about how an originalist perspective might inform the Court's work in this case.)
For those who are not big fans of originalist constitutional interpretation, perhaps the absence of any discussion or debate in the Montgomery briefing about what the Framers would have thought about Eighth Amendment retroactivity is a welcome development. But as I sought to spotlight in this recent law review article and this blog post last year, I think it would be interesting and potentially quite useful to examine at some lengthy whether and how the Framing generation considered finality/retroactivity issues. Of particular note, as I explain in my article, the text of the Constitution itself reveals, at least indirectly, that the Framers likely did not have an especially strong commitment to criminal justice finality interests:
The Constitution’s text can be read to suggest the Framers were decidedly eager to provide or preserve opportunities for defendants to seek review and reconsideration of their treatment by government authorities. Article I, Section 9 instructs Congress that the “Privilege of the Writ of Habeas Corpus shall not be suspended,” Article II, Section 2 provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States,” and Article III, Section 2 provides that the Supreme Court “shall have appellate Jurisdiction.” These provisions codify in our nation’s charter all the traditional mechanisms long used by individuals to challenge or seek modification of the exercise of government power through criminal justice systems. These provisions alone may not support a strong originalist claim that the Framers disfavored treating criminal judgments as final. Nevertheless, by precluding Congress from suspending habeas review, by empowering the President to grant clemency, and by authorizing the Supreme Court to hear appeals, the Constitution ensured that criminal defendants in a new America would have various means to seek review and reconsideration of the application of governmental power even after an initial criminal conviction and sentencing.
In part because I am neither a historian nor especially enthralled by originalism, I did not pursue these ideas in this SCOTUS amicus brief that I helped submit in the Montgomery case. But I was hoping that maybe someone or some group drawn to originalism would discuss what an originalist constitutional interpretation might have to say about finality/retroactivity doctrines like Teague and their application to Eighth Amendment doctrines or sentencing outcomes more generally. One Justice who often seems drawn to Eighth Amendment originalism, Justice Thomas, almost never asks questions, and thus I am not expecting him to bring up the issue during oral argument. But maybe I can dream, at least for the next few hours, that Justice Scalia might enjoy puzzling the advocates by asking a question on this front during argument.
Prior posts in this series and concerning finality matters:
- Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case
- Montgomery wards: might SCOTUS decide it lacks jurisdiction to resolve juve LWOP retroactivity case?
- Montgomery wards: certain victims' family members voicing support for juve murderers getting a chance at resentencing
- Examining "sentence finality" at length in new article and series of posts
- Finality foundations: is it uncontroversial that "conviction finality" and "sentence finality" raise distinct issues?
- Is it fair to read the Constitution as evidence the Framers were not fans of finality?
- Form, function and finality of sentences through history: the Founding Era
Thursday, October 01, 2015
Montgomery wards: might SCOTUS decide it lacks jurisdiction to resolve juve LWOP retroactivity case?
As noted in this prior post, I am doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana in large part because I find the substantive issues that surround Eighth Amendment retroactivity so dynamic and interesting. But, critically, the Justices ordered briefing on a preliminary question for consideration in the Montgomery case: "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?"
I have a terrific research assistant drafting summaries of various amicus briefs submitted in Montgomery (all of which can be found via this SCOTUSblog page). Here is how he summarized and assessed this amicus filing which was requested by the court to make the argument against jurisdiction:
The United States Supreme Court appointed Willkie Farr & Gallagher LLP (“WFG”) to file an amicus brief arguing that the Court lacks jurisdiction to address the merits of whether or not Miller applies retroactively in state collateral proceedings. That is, the Court has charged WFG with the task of arguing that the Louisiana Supreme Court’s decision that Miller does not apply retroactively cannot be reviewed by the Court.
WFG’s amicus brief argues against the Court’s jurisdiction in two steps. First, WFG argues that whether or not Miller is retroactive in the state collateral review context can only present a federally reviewable issue if Teague is binding in such proceedings. Second, WFG argues that Teague is not binding in state collateral review proceedings because its holding was predicated upon a federal statute and nothing more. Consequently, Montgomery presents no question of federal law and so any opinion on the merits of the Miller retroactivity issue would be only advisory (or so goes WFG’s argument). Thus, the Court lacks jurisdiction to address the Miller retroactivity issue in Montgomery, at least in the case’s present procedural posture.
WFG’s argument turns entirely on the way in which the Louisiana Supreme Court adopted Teague some 23 years ago in a case called Taylor v. Whitley, 606 So. 2d 1292 (La. 1992). In that case, the Louisiana Supreme Court, in addressing the retroactive application of new constitutional rules, stated:
[W]e have yet to consider the issue of retroactivity on collateral review in light of Teague. We now do so and adopt the Teague standards for all cases on collateral review in our state courts. In doing so, we recognize that we are not bound to adopt the Teague standards. [. . .] [W]e now adopt Justice Harlan’s views on retroactivity, as modified by Teague and subsequent decisions, for all cases on collateral review in our state courts. Taylor, 606 So. 2d at 1296–97.
WFG argues that since the Louisiana Supreme Court expressly held that it was “not bound to adopt the Teague [retroactivity] standards,” its subsequent retroactivity decisions, while based entirely on Teague and its progeny, do not “fairly appear to rest primarily on federal law or be interwoven with federal law” such that the presumption of federal jurisdiction articulated in Michigan v. Long, 463 U.S. 1032, 1044 (1983), applies.
While this is surely one reading of Taylor, it is a narrow one. The argument can be made (and was made by both parties in this case, see Brief of Court-Appointed Amicus, Montgomery v. Louisiana, (No. 14-280), at 10) that the Court does have jurisdiction under the Long presumption.
Taylor supports this argument. The Taylor court states throughout its opinion that it is closely following and examining the federal case law on retroactivity. See Taylor, 606 So. 2d at 1293 (“In order to address the issue of retroactivity, we begin by tracing the evolution of the United States Supreme Court’s decisions in this area.”). Further, while the Taylor court stated that it did not feel compelled to adopt the Teague standards, it definitively held that it was adopting those standards and was doing so “as modified by ... subsequent decisions” for all cases in Louisiana under collateral review. Id. at 1297. In this way, Taylor supports the notion that Louisiana state law does not just “rest primarily on federal law” and is not just “interwoven with federal law,” but evolves with federal law in a expressly lock-step manner.
As a consequence, Louisiana law vis-à-vis retroactivity in state collateral review proceedings is (arguably) federal law vis-à-vis retroactivity in federal collateral review proceedings as expressed by Teague and “subsequent decisions.” Accordingly, if ever the presumption of jurisdiction embodied in Long applied in a case, this would be the case. To be fair, WFG’s argument is unsurprising given its task. Nonetheless, it will in all likelihood be a minor opening act to the main event during oral argument.
I share my RA's sentiment that it is very unlikely a majority of the Supreme Court will decides it lacks jurisdiction in Montgomery, and I suspect relatively little of the oral argument will be focused on this issues. But I suspect the Chief Justice (and perhaps a few other Justices) may be eager to use Montgomery to contend that state courts are never obligated to apply any part of the Teague doctrines that now control federal court retroactivity decisions. Consequently, this issue may get more attention in the argument and in the ultimate opinion than some may want.
Prior posts in series:
Tuesday, September 22, 2015
"No Hope: Re-Examining Lifetime Sentences for Juvenile Offenders"
The title of this post is the title of this notable new research report released today by Phillips Black, a nonprofit, public interest law office. The report, authored by John Mills, Anna Dorn, and Amelia Hritz, is timely with the Supreme Court due in three weeks to hear oral argument in Montgomery v. Louisiana concerning the retroactivity of its 2012 Miller juve LWOP ruling. In addition, I think this report (and related material assembled here) merits extra attention because it gives extra attention to racial realities that surround juve LWOP sentencing. Here is the report's executive summary:
In a handful of U.S. counties, teenagers are still being sentenced to a lifetime in prison with no chance of release. This harsh and increasingly isolated practice falls disproportionately on black and Hispanic youth and is a remnant of an earlier period of punitiveness based on an unfounded prediction of a new class of superpredators that never actually materialized.
While the use of this sentence has dramatically declined in recent years, it continues to be practiced in a relatively small number of jurisdictions. The Supreme Court now has the opportunity to declare juvenile life without parole a cruel and unusual punishment, far outside our standards of decency in the twenty-first century.
In Miller v. Alabama, the Court took the first step by forbidding mandatory sentences of life without parole for homicide offenses committed by juveniles ( JLWOP). The opinion, however, left open the question of whether the Eighth Amendment prohibits the imposition of life without parole upon juveniles entirely.
That question, the constitutionality of life without parole sentences for juvenile offenders, is being presented to the Court in two cases. In one case to be argued in October, the Court will consider whether its earlier rulings on this subject apply to past cases and not just cases going forward. A brief offered by the Charles Hamilton Institute for Race and Justice urges the Court to tackle the constitutional question of whether the punishment should stand at all. In another case, an inmate serving a JLWOP sentence has directly presented the question: “Does the Eighth Amendment prohibit sentencing a child to life without possibility of parole?”
This report examines the key evidence for answering the question of whether there is now a national consensus against juvenile life without parole. To make this assessment, the Court generally examines legislative enactments and actual sentencing practices. This report catalogs the rapid abandonment of JLWOP, both legislatively and in terms of actual use.
Although JLWOP dramatically expanded between 1992 and 1999—an era of hysteria over juvenile superpredators—since Miller states have rapidly abandoned JLWOP in law and practice.
Nine states have abolished JLWOP after Miller, bringing the current number of jurisdictions completely banning the sentence to fifteen. California and Florida, two of the most frequent users of the sentence, have dramatically limited the reach of JLWOP by restricting its application to a narrow set of circumstances. Moreover, North Carolina, Pennsylvania, and Washington have abolished JLWOP for a category of offenders. This pace of abolition far outstrips those that occurred in the years prior to the high Court’s rulings that the executions of juveniles and the intellectually disabled are unconstitutional. This report provides an in-depth analysis of state and county JLWOP sentencing practices. At the state level, just nine states account for over eighty percent of all JLWOP sentences. A single county, Philadelphia County, Pennsylvania, is responsible for nearly ten percent of all JLWOP sentences nationwide. Orleans Parish, Louisiana, has tenfold the number of JLWOP sentences as its population would suggest. Five counties account for more than one fifth of all JLWOP sentences. JLWOP, in practice, is isolated in a handful of outlier jurisdictions.
Finally, state sentencing practices also show marked racial disparities in JLWOP’s administration. Starting in 1992, the beginning of the superpredator era, a black juvenile offender would be twice as likely to receive a JLWOP sentence as his white counterpart. The disproportionate application of the punishment on juveniles of color is stark. All of Texas’s JLWOP sentences were imposed on persons of color. Pennsylvania has imposed it eighty percent of the time on persons of color.
There is now a growing consensus against JLWOP, calling into question its constitutionality. The policy’s suspect origins and disparate implementation require rigorous examination to determine whether it serves any legitimate penological purpose.
September 22, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)
Monday, September 14, 2015
Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case
In four weeks, the US Supreme Court will hear oral argument in Montgomery v. Louisiana. Here, via this SCOTUSblog posting and this official SCOTUS page, are the questions that the Justices will be considering in Montgomery:
Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?
Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.
Because both of these questions engage many interesting, important and dynamic issues, I am planning to do a (lengthy?) series of posts about this case and the various arguments that have been presented to the Justices via amicus briefs (including one I filed thanks to the efforts of good folks at the Columbus offices of Jones Day). As the title of this post reveals, I have decided to use "Montgomery wards" as the cheeky title for this coming series of posts.
Notably, as this new SCOTUSblog posting highlights, it would now appear that the Justices share my sense that the Montgomery case raises many interesting, important and dynamic issues because they have now scheduled additional argument time for the case. Here are the basics via Lyle Denniston's SCOTUSblog report:
The Supreme Court on Monday added fifteen minutes to the argument schedule for its hearing October 13 on Montgomery v. Louisiana, a case that could decide which juveniles convicted of murder can take advantage of a 2012 decision limiting sentences of life without parole for minors. The added time will allow a Court-appointed attorney to argue a question about the Court’s authority to actually rule on the legal issue in the case.
In March, the Justices agreed to hear the appeal of Henry Montgomery of Baton Rouge, who is seeking retroactive application of the Court’s decision in Miller v. Alabama, which had all but eliminated states’ power to sentence youths to life without parole, as punishment for committing a murder when they were under the age of eighteen. In taking on the case, however, the Court also added the question whether it has jurisdiction to review and rule on the Louisiana Supreme Court decision refusing to apply the Miller precedent to cases that had become final before June 25, 2012, when Miller was decided. Louisiana had raised that issue in a filing in an earlier case on the juvenile sentencing question.
Instead of the usual one hour of argument time, the Court in the Montgomery case will hear seventy-five minutes. The time will be divided this way: the Court-appointed attorney, Richard Bernstein of Washington, D.C., will have fifteen minutes to argue against the Court’s jurisdiction, Montgomery’s attorney will have fifteen minutes to argue both points, an attorney from the office of the U.S. Solicitor General will have fifteen minutes to argue both issues, and a lawyer for the state of Louisiana will have thirty minutes of time to argue both questions. The order also said that Bernstein and Montgomery’s lawyer will be allowed to save time for rebuttal.
The federal government, in a brief filed by the Solicitor General, supported Montgomery’s plea to apply Miller retroactively and argued that the Court does have jurisdiction to decide that question. The brief noted that there are twenty-seven inmates in federal prisons whose sentences could be affected by the retroactivity issue.
September 14, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Thursday, August 13, 2015
New juve research suggests punishment certainty matters over severity to achieve deterence
This recent posting via the Juvenile Justice Information Exchange, titled "Report: Certainty, Not Severity, Key in Deterring Juvenile Crime," spotlights recent research on juvenile punishment's impact. Here are excerpts:
Researchers first reported several years ago that a major longitudinal study of serious adolescent offenders showed the severity of their punishments had little effect on their recidivism rates. Digging into the data, the researchers also found that teenagers who commit serious crimes do respond to the threat or risk of sanctions, though not in a one-size-fits-all way.
In a new report released by the federal Office of Juvenile Justice and Delinquency Prevention [available here], researchers say the findings point to the need to devote resources to change risk perceptions, rather than prisons.
The report, “Studying Deterrence Among High-Risk Adolescents,” is one of several OJJDP bulletins based on research from “Pathways to Desistance,” the study that followed more than 1,300 young offenders for seven years after their court involvement.
The resulting research has found no meaningful reduction in offending or arrests due to more severe punishment, such as correctional placement versus probation or longer periods of institutional placement, the researchers said. But it did find that the certainty of punishment can play a role in deterring future crimes. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.
Edward Mulvey, the principal investigator on the Pathways study, said the idea that adolescents respond to the certainty of punishment, not severity, has found an audience with some policymakers. They are asking whether states should have to justify why the criminal justice system should hold an adolescent offender for a long time....
The new bulletin looks at how young offenders evaluate the risks of crime, which has a deterrence effect. Young people slightly increased their risk perceptions in response to an arrest, it found. The researchers said, though, there is no standard response to the certainty of punishment because risk perceptions vary based on individuals’ prior experiences or history of offenses and other factors.
August 13, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)
Wednesday, July 08, 2015
Federal habeas ruling decides Virginia's geriatric release does not permit juve LWOP
A helpful reader alerted me to a notable federal habeas decision handed down last week by a federal district court in Virginia. In LeBanc v. Mathena, No. 2:12cv340 (ED Va July 1, 2015) (available here), the federal judge rejected the claim embraced by the Supreme Court of Virginia’s decision that the state's geriatric release provisions allowed the sentencing juveniles to life without parole sentences without violating the Supreme Court's Graham ruling. The LeBlanc decision has a number of powerful passages, and here are some key portions of the 32-page ruling:
Virginia Code § 53.1-40.01 governs the possible release of geriatric prisoners, and provides for the opportunity of conditional releaseto prisoners who have reachedthe age ofsixty or older and have served at least ten years of their sentence, or who have reached the age of sixty-five or older and have served at least five years of their sentence. The Supreme Court of Virginia concluded that in light ofthis provision, Virginia's sentencing scheme can be construed as being in compliance with Graham. The Virginia Supreme Court held that the possibility of geriatric release provides a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."...
This theory of compliance is a misapplication of the governing legal principle of Graham—that children are different and warrant special consideration in sentencing.... By relying on a geriatric release provision — a provision that by its very name was designed to be invoked by and on behalf of the elderly — in an attempt to salvage unconstitutional sentences, the Supreme Court of Virginia and the state trial court missed the heart of Graham — that children are, and must be recognized by sentencing courts as, distinguishable from adult criminals....
If it can be said that Virginia's sentencing scheme treats children differently than adults, it would be because, tragically, the scheme treats children worse. Under Virginia's current sentencing policies, prisoners are serving sentences of life without the possibility of parole for nonhomicide offenses that they committed as children. Like any other prisoner in Virginia, regardless of their age at the time of the offense, if these prisoners live to see the age ofsixty or sixty-five, they may apply for geriatric release. This treats children worse than adults....
The Supreme Court has recognized that nonhomicide juvenile offenders serving life sentences must be given "the opportunity to achieve maturity ofjudgment and self-recognition of human worth and potential." Graham, 560 U.S. at 79. The distant and minute chance at geriatric release at a time when the offender has no realistic opportunity to truly reenter society or have any meaningful life outside of prison deprives the offender of hope. Without hope, these juvenile offenders are being discarded in cages and left to abject despair rather than with any meaningful reason to develop their human worth. This result falls far short of the hallmarks of compassion, mercy and fairness rooted in this nation's commitment to justice.”
Tuesday, July 07, 2015
"Juvenile Sentencing in Illinois: Addressing The Supreme Court Trend Away from Harsh Punishments for Juvenile Offenders"
The title of this post is the title of this notable piece by Maureen Dowling now available via SSRN. Here is the abstract:
The United States Supreme Court has steadily been changing the way it approaches juvenile sentencing since 2005. This ideological shift has occurred as a response to the increase in biological and sociological studies, which point toward fundamental differences between juveniles and adults. This Note addresses how the new mandates by the Supreme Court have been implemented around the country, with a focus on statutory changes Illinois should make moving forward. Specifically, this Note argues that there are several adjustments Illinois will have to make in regards to the way it sentences juvenile homicide offenders, in order to be considered Constitutional based on the analysis set forth by the Supreme Court in Roper v. Simmons, Graham v. Florida, and Miller v. Alabama.
First, lengthy, consecutive term-of-years sentences should be abolished because it does not give juvenile offenders the “meaningful opportunity for release” required by Graham. This Note suggests that courts need to look at the idea of a “meaningful opportunity for release” differently when sentencing juveniles as opposed to adult offenders, because studies have shown that adolescents who are imprisoned have a much lower life expectancy than average. Second, Illinois should amend its sentencing statutes to require judges to consider several factors, while on record at a sentencing hearing, before sentencing a juvenile homicide offender to life in prison. These factors, laid out within this Note, will put Illinois at the forefront of ethical juvenile sentencing, while also ensuring that it does not violate the authority of Miller. Admittedly, these theories have been criticized for being too ‘soft’ on punishment for juveniles who are convicted of felony murder. However, the suggestions in this Note are meant to allow for the protection of the adolescent’s Eighth Amendment right to be free of cruel and unusual punishment, while also considering the severity and nature of the offense.
Wednesday, May 27, 2015
Split Connecticut Supreme Court applies Miller retroactively to 50-year discretionary juve sentence
Yesterday the Connecticut Supreme Court, splitting 4-3, gave the Supreme Court's Eighth Amendment jurisprudence concerning juvenile LWOP sentencing the furthest reach of any major ruling I have seen through its opinion in Casiano v. Commissioner of Correction, No. SC19345 (Conn. May 26, 2015) (majority opinion here, dissents here and here). Here is how the majority opinion gets started:
We recently held in State v. Riley, 315 Conn. 637, 659, A.3d (2015), that, to comport with the eighth amendment to the federal constitution, the trial court must give mitigating weight to the youth related factors set forth in Miller v. Alabama, U.S. , 132 S. Ct. 2455, 2464–65, 2468, 183 L.Ed. 2d 407 (2012), when considering whether to impose a life sentence without the possibility of parole on a juvenile homicide offender. In Riley, the defendant challenged on direct appeal a total effective sentence of 100 years with no possibility of parole before his natural life expired, a sentence that the state conceded was the functional equivalent to life without parole. State v. Riley, supra, 642. The different procedural posture and sentence in the present case raises two significant issues regarding the reach of Miller: whether Miller applies retroactively under Connecticut law to cases arising on collateral review, and, if so, whether Miller applies to the imposition of a fifty year sentence on a juvenile offender. We answer both questions in the affirmative and, therefore, reverse the habeas court’s decision rendering summary judgment in favor of the respondent, the Commissioner of Correction, on the petition for a writ of habeas corpus filed by the petitioner, Jason Casiano.
May 27, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Thursday, May 21, 2015
Examining what qualifies as an LWOP sentence for purposes of Graham and Miller
This new piece at The Marshall Project, headlined "Life Expectancy: How many years make a life sentence for a teenager?," spotlights an Eighth Amendment issue that has been engaging lower courts in the five years since SCOTUS in Graham began putting limits of LWOP sentences for juvenile offenders. Eventually the Supreme Court will have to resolve the issue of just what qualifies as an LWOP sentence, and here is an account of issue (with some links to notable rulings):
James Comer was 17 when he, an older cousin, and their friend made a series of violent and irreversible decisions: One night in April 2000, they robbed four people at gunpoint. They followed one of their victims for miles as she drove home from her night shift as a postal worker, then pointed a gun at her head outside her house. Comer’s friend, 17-year-old Ibn Ali Adams, killed their second victim when he discovered the man had no money.
Comer’s youth, his lawyers argue, was at least partly responsible for his poor judgment and impulsive behavior. And it is his youth that may save him from dying in prison. Earlier this month, an Essex County, New Jersey, judge ordered a new sentencing hearing for Comer in light of Miller v. Alabama. ...
But Comer isn’t serving life without parole, at least not technically. For felony murder and multiple counts of armed robbery, he was sentenced to 75 years. He will be eligible for parole, but not until his 86th birthday — more than 20 years past his life expectancy, according to actuarial data his lawyers cited. This sentence “amounts to de facto life without parole and should be characterized as such,” the judge wrote.
Miller v. Alabama was the third in what’s come to be known as the “Roper/Graham/Miller trilogy” of cases in which the Supreme Court ruled, essentially, that kids are different. Teenagers’ still-developing brains make them more impulsive, more susceptible to peer pressure, and less able to understand the consequences of their actions. This makes them less culpable than adults and more amenable to rehabilitation as they mature, the court said.
With Roper, the court outlawed the death penalty for juveniles. With Graham, it struck down life-without-parole sentences for non-homicide crimes. With Miller, the justices forbid mandatory life-without-parole sentences, even for murder. Life sentences for juveniles are allowed only if the judge first has the chance to consider how youth and immaturity may have contributed to the crime....
Now a growing number of courts are interpreting the trilogy even more broadly, applying their principles to cases, like Comer’s, that aren’t explicitly covered by the court’s rulings.
“When read in light of Roper and Graham,” Miller v. Alabama “reaches beyond its core holding,” the Connecticut Supreme Court held last month in State v. Riley. In that case, 17-year-old Ackeem Riley was sentenced to 100 years in prison after he shot into a crowd in a gang-related incident, killing one teenager and wounding two children. The court ordered a new sentencing hearing, finding that the sentencing judge had not adequately considered Riley’s youth. Though Miller specifically targeted mandatory life without parole sentences — technically, Riley’s sentence was neither mandatory nor life without parole — the Supreme Court’s reasoning “counsels against viewing these cases through an unduly myopic lens,” the Connecticut court said.
In Brown v. Indiana, the state supreme court ordered a new sentencing hearing for Martez Brown, who was 16 when he and two friends killed a couple in a botched robbery. Quoting Miller, the court ruled that “similar to a life without parole sentence, Brown’s 150 year sentence ‘forswears altogether the rehabilitative ideal.’” Although Brown’s sentence was not formally a life-without-parole sentence, they wrote, “we focus on the forest — the aggregate sentence — rather than the trees — consecutive or concurrent, number of counts, or length of the sentence on any individual count.”
May 21, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack
Monday, May 11, 2015
"Brain Science and the Theory of Juvenile Mens Rea"
The title of this post is the title of this notable new paper by Jenny Carroll now available via SSRN. Here is the abstract:
The law has long recognized the distinction between adults and children. A legally designated age determines who can vote, exercise reproductive rights, voluntarily discontinue their education, buy alcohol or tobacco, marry, drive a car, or obtain a tattoo. The Supreme Court has repeatedly upheld such age-based restrictions, most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders. In the cases of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Court's jurisprudence of youth relies on emerging neuroscience to confirm what the parents of any teenager have long suspected: adolescents' cognitive abilities and thought processes differ from their adult counterparts. Children are different than adults.
In these rulings, the Court recognized that brain development affects the legal construct of culpability and so should affect punishment. The Court reasoned that without mature thought processes and cognitive abilities, adolescents as a class fail to achieve the requisite level of culpability demonstrated in adult offenders. As such, juveniles were categorically spared the death penalty and, in some instances, a sentence of life in prison without the possibility of parole. To date, the Court has limited the application of this principle to punishment. The logic of the Court's decisions, however, applies just as strongly to the application of substantive criminal law. Just as modern neuroscience counsels against the imposition of certain penalties on juvenile offenders, so it counsels toward a reconsideration of culpability as applied to juvenile offenders through the element of mens rea. In this paper I argue that the failure to extend this jurisprudence of youth to the mental element undermines the very role of mens rea as a mechanism to determine guilt.
Friday, April 10, 2015
Controversy surrounding California judge who sentenced 19-year-old child rapist way below mandatory minimum 25-year-term
As reported in this lengthy CNN piece, headlined "California judge faces recall try over sentence in child rape case," a judge's decision to impose only a 10-year prison term on a child rapist is causing a big stir in Los Angeles. Here are some of the details:
Three county supervisors in California announced Thursday a campaign to recall a judge who sentenced a man to 10 years in prison -- instead of the state mandatory minimum of 25 years -- for sodomizing a 3-year-old girl who is a relative.
At the center of the controversy is Orange County Judge M. Marc Kelly who, according to transcripts of a February court proceeding, was moved by the plea for leniency by the mother of the defendant. The judge expressed "some real concerns" about the state's minimum sentence of 25 years to life in prison for a child sodomy conviction and about "whether or not the punishment is disproportionate to the defendant's individual culpability in this particular case," according to a transcript of the February proceeding.
"I have not done this before, but I have concerns regarding or not this punishment as prescribed would fall into the arena of cruel and unusual punishment and have constitutional ramifications under the Eighth Amendment," the judge said in February, according to the transcript. "I know this is a very rare situation. It doesn't come up very often."... [An] account of [the April 3] sentencing quoted the judge as saying the mandatory sentence would be appropriate in most circumstances, but "in looking at the facts of ... (the) case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," Kelly said. The judge noted that the defendant "almost immediately" stopped and "realized the wrongfulness of his act," according to the newspaper.
"Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child," the judge said, according to the newspaper. "There was no violence or callous disregard for (the victim's) well-being."
Three Orange County supervisors held a press conference Thursday to announce the campaign to collect 90,829 signatures needed to hold a recall election of Kelly. They were Orange County Board of Supervisors Chairman Todd Spitzer, County Supervisor and Vice Chairwoman Lisa Bartlett and Supervisor Shawn Nelson. ...
Spitzer said he was responding to "a huge community outcry" against the judge's sentence and his comments from the bench. "We as a community spoke on behalf of the victim today, the 3-year-old child," Spitzer said. "If it was a stranger, the mom would have thrown the book at the guy. The family cares about the perpetrator. It's a family member," Spitzer said. "The victim is related to the perpetrator, and that is what is so difficult here."
But Spitzer said the judge didn't follow state law. "We don't want a judge that legislates from the bench," Spitzer said. "It's just unfathomable that the judge would try to describe what is a brutal sodomy," Spitzer added. "Sodomy of a 3-year-old child is a brutal, violent act in itself."...
Orange County District Tony Rackauckas has called the sentence "illegal," and his office will appeal it, said his chief of staff, Susan Kang Schroeder. "We believe that his decision, his sentencing was illegal because there was a mandatory minimum set up by statute by the legislature," Schroeder said. "We're doing what the people of Orange County have asked us to do. We're going to fight through the courts."...
The June crime occurred in the garage of the family home in Santa Ana, where the defendant, then 19, was playing video games, prosecutors said. CNN is not identifying any family members so the victim can remain anonymous. The defendant also made the victim touch his penis, and he covered the girl's mouth while the mother called out to her, prosecutors said....
"As a 19-year-old, defendant appears to be mentally immature and sexually inexperienced. It is difficult to explain away defendant's actions, however, as sexual frustration," prosecutors said in court papers. "All things considered, defendant appeared to be a relatively normal 19-year-old, aside from the crime of which he is convicted." But the defendant "poses a great danger to society and probably will for the majority of his life," prosecutors added.
During the February court proceeding, a statement by the mother was read aloud to the court by her husband, according to the transcript. "While a mother's love is nothing less than unconditional, I am clearly aware of the gravity of my son's actions and the inevitable discipline that he must now confront," the mother's statement said. "It has been not only extremely difficult, but utterly devastating for me and my family to fully come to terms with the events that took place."
The mother said she hadn't had the strength or courage yet "to directly talk" to her son about the crime, but she said her son "has allowed God into his heart and has committed himself to God's guidance." Her son "is not a bad person," and she asked for forgiveness for his "transgressions and for the opportunity to have a second chance at liberty," the husband told the judge, summarizing his wife's statement.
The judge remarked about the rarity of the mother's plea. "I have never had a situation before like this where a mother is the mother of the victim of the crime and the mother of the defendant who was convicted of the crime," the judge said. "It's very rare in these situations. So I know it must be very difficult for you."
Defense attorney Erfan Puthawala said his client never denied his responsibility "for the heinous act he committed" and, in fact, cooperated with investigators. "He made a statement essentially incriminating himself, which he did not have to do," the attorney said.
"He expressed remorse for the actions he took and the mistake he made. He understands that a momentary lapse has had lifelong ramifications for his sister the victim, for his family, and for himself," Puthawala added. "It is important to note that (my client) is not a pedophile, he is not a sexual deviant, he is not a sexually violent predator, and he poses a low risk of recidivism." Those findings came from an independently appointed psychologist who wrote a report to assist the judge in sentencing, Puthawala said.
Intriguingly, the judge at the center of this controversial sentencing was a senior local prosecutors for more than a decade before he became a member of the state judiciary. Perhaps because of that history, this judge perhaps though the prosecutor who charged this case likely had some discretion not to charge an offense that carried a 25-year mandatory minimum and thus perhaps he thought he should have some discretion not to sentence based on the mandatory minimum. Based on this case description, too, I wonder if this judge found that some of the Eighth Amendment themes stressed by the Supreme Court in Graham and Miller had some applicability in this setting because the defendant was only 19.
April 10, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Thursday, March 26, 2015
"Mandating Discretion: Juvenile Sentencing Schemes after Miller v. Alabama"
The title of this post is the title of this notable new and timely paper available via SSRN authored by Jennifer Breen and John Mills. Here is the abstract:
Miller v. Alabama established that “children are different” and it required profound changes in the way states adjudicate juveniles within the criminal justice system. This Article moves beyond standard interpretations of this significant decision and argues that Miller requires much more than abolition of mandatory juvenile life-without-parole sentences. In addition to that sentence-specific ban, Miller establishes a right for juveniles to have their young age taken into consideration during sentencing.
This holding demands individualized consideration of a child’s age at sentencing, akin to sentencing procedures demanded by the Court in death penalty cases. At the very least, it is clear that states may no longer treat a juvenile defendant as an adult without any opportunity to consider the impact of youth upon the defendant. Yet this Article identifies eighteen states that continue to utilize these now unconstitutional sentencing schemes, contravening the most basic holding of the Court in Miller: “[C]hildren are constitutionally different from adults for purposes of sentencing.”
After contextualizing both the Miller decision and the process of transferring juveniles to adult court, this Article identifies a subset of states that fail to allow for consideration of the unique qualities of youth at any stage of the juvenile adjudication process. These states are outliers and defy both the national consensus on juvenile adjudication and the Court’s mandate in Miller. This Article concludes by proposing reforms to aid states in accommodating the implications of Miller while increasing reliability in juvenile sentencing.
March 26, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Monday, March 23, 2015
The extra state habeas question (and its answer?) in Montgomery, the new SCOTUS Miller retroactivity case
Notably, the Supreme Court's cert grant in in another Miller retroactivity case from Louisiana (basics here) included some extra homework for the parties:
14-280 MONTGOMERY, HENRY V. LOUISIANA
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: “Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. __ (2012)?"
This added question in Montgomery echoes an issue that the Justices had sought to consider in the prior Toca case, and I think it reflects the thought of some Justices that state courts on state habeas review may not be constitutionally required to apply the modern Teague jurisprudence that federal courts now use in federal habeas review of final state convictions. If state courts are not required to follow at least the Teague standard, arguably there is not a federal question presented by whether and how a state court applies Teague in a state habeas case.
Notably, in a case from 2008, Danforth v. Minnesota, 552 U.S. 264, 266 (2008), the Supreme Court held that states were permitted to give greater retroactive effect to new federal constitutional procedural rules that did not satisfy a Teague exception. Thus is it already clear that state courts can give state prisoners in state habeas cases more retroactive benefits than Teague requires. The added Montgomery question essentially asks whether a federal issue is presented if state courts decide to give state prisoners in state habeas cases less retroactive benefits than Teague requires.
In some sense from the prisoner's perspective, this second question is kind of an academic exercise: even if the Supreme Court were to decide that it lacks jurisdiction to review whether and how a state court applies Teague in a state habeas case, it is clear that lower federal courts (and the US Supreme Court) have jurisdiction and will apply Teague if and when the state prisoner brings a federal habeas case. But, then again, this is not an entirely academic exercise because there could be cases in which the state prisoner is not able to bring a federal habeas case (perhaps because of statutory or other problems with bringing such a case).
If this discussion already makes your head hurt and leads you to think you need to take a law school Federal Courts class again, join the club. Fortunately for all of us, a very insightful Assistant U.S. Attorney, Steven G. Sanders, published last month a great New Jersey Law Journal article about all this titled "Can US Supreme Court Require States to Apply New Fed Rules Retroactively on State Collateral Attack?". Thanks to Steven and the NJLJ, I can provide this article in full linked below with this disclaimer: “Reprinted with permission from the February 9, 2015 issue of the New Jersey Law Journal. © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.”
March 23, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack
Supreme Court takes up a replacement juve LWOP retroactivity case from Louisiana
As reported in this AP piece, the US Supreme Court this morning found a replacement for the prior resolved case (Toca) dealing with the retroactivity of its 2012 Miller decision. Here are the basics:
The Supreme Court is adding a new case to decide whether its 3-year-old ruling throwing out mandatory life in prison without parole for juveniles should apply to older cases. The court was scheduled to hear arguments in a case from Louisiana in late March, but the state released inmate George Toca after 30 years in prison.
The justices on Monday said they would consider a new Louisiana case involving a man who has been held since 1963 for killing a sheriff's deputy in Baton Rouge. Henry Montgomery was a 17-year-old 10th grader who was playing hooky from school when he shot Deputy Charles Hurt at a park near the city's airport. The officer and his partner were looking to round up truants.
The case will be argued in the fall.... The case is Montgomery v. Louisiana, 14-280.
Some SCOTUS-related posts on the prior Toca case and Miller retroactivity:
- Supreme Court grants cert to (finally!?!) resolve whether Miller applies retroactively
- George Toca now a free man ... and SCOTUS now lacks a live Miller retroactivity case
- The back-story of George Toca's case (and its impact on other juve LWOPers)
- "Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane"
- Examining "sentence finality" at length in new article and series of posts
Friday, February 27, 2015
Split Connecticut Supreme Court works through Miller application issues
As reported in this local AP piece, headlined "Connecticut court tosses 100-year sentence imposed on teen," the top court in the Nutmeg State issued a notable and significant ruling on juvenile sentencing in the wake of recent SCOTUS Eighth Amendment jurisprudence. Here are the basics:
The Connecticut Supreme Court on Friday overturned a 100-year prison sentence that was imposed on a Hartford teenager in a murder case, saying juveniles cannot be treated the same as adults when being sentenced for violent crimes.
In a 5-2 ruling, justices ordered a new sentencing hearing for Ackeem Riley, who was 17 in November 2006 when he sprayed gunfire into a Hartford crowd from a passing car. Three bystanders were shot, including 16-year-old honor student Tray Davis, who died....
The Miller decision was one of three U.S. Supreme Court rulings since 2005 that “fundamentally altered the legal landscape for the sentencing of juvenile offenders to comport with the ban on cruel and unusual punishment,” Connecticut Justice Andrew McDonald wrote in the majority decision. The rulings also barred capital punishment for all juvenile offenders and prohibited life imprisonment without the possibility of parole for juveniles in non-homicide cases.
McDonald wrote in Friday’s ruling, which overturned a state Appellate Court decision, that it didn’t appear trial Judge Thomas V. O’Keefe Jr. adequately considered Riley’s age at the time of the shooting. “The court made no mention of facts in the presentence report that might reflect immaturity, impetuosity, and failure to appreciate risks and consequences,” McDonald wrote. “In the entire sentencing proceeding, only defense counsel made an oblique reference to age.”
Justices Carmen Espinoza and Peter Zarella dissented....
State lawmakers are now considering a bill that would revamp Connecticut’s juvenile sentencing rules to conform to the U.S. Supreme court rulings. A similar measure failed last year. There are about 50 Connecticut prisoners serving sentences of 50 or more years for crimes committed when they were under 18, and most are not eligible for parole. Defense lawyers say they expect more appeals involving the juvenile sentencing issue.
The extended majority ruling in Connecticut v. Riley is available at this link, and it gets started with these passages:
The defendant, Ackeem Riley, was seventeen years old when he committed homicide and nonhomicide offenses for which the trial court imposed, in the exercise of its discretion, a total effective sentence of 100 years imprisonment. The defendant has no possibility of parole before his natural life expires. In his certified appeal to this court, the defendant claims that his sentence and the procedures under which it was imposed violate Graham and Miller, and, hence, the eighth amendment....
We agree with the defendant’s Miller claim. Therefore, he is entitled to a new sentencing proceeding at which the court must consider as mitigation the defendant’s age at the time he committed the offenses and the hallmarks of adolescence that Miller deemed constitutionally significant when a juvenile offenderis subject to a potential life sentence. We decline, however, to address the defendant’s Graham claim. As we explain later in this opinion, the legislature has received a sentencing commission’s recommendations for reforms to our juvenile sentencing scheme to respond to the dictates of Graham and Miller. Therefore, in deference to the legislature’s authority over such matters and in light of the uncertainty of the defendant’s sentence upon due consideration of the Miller factors, we conclude that it is premature to determine whether it would violate the eighth amendment to preclude any possibility of release when a juvenile offender receives a life sentence.
The dissenting Riley opinion is available at this link, and it starts this way:
I disagree with the majority’s conclusion that the total effective sentence of 100 years imprisonment imposed by the trial court on the defendant, Ackeem Riley, violates the eighth amendment to the United States constitution. I agree with the Appellate Court’s conclusion that, "[b]ecause the court exercised discretion in fashioning the defendant’s sentence, and was free to consider any mitigating evidence the defendant was able to marshal, including evidence pertaining to his age and maturity"; State v. Riley, 140 Conn. App. 1, 4, 58 A.3d 304 (2013); the sentence complied with the decision of the United States Supreme Court in Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), which held that "the [e]ighth [a]mendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." (Emphasis added.) Id., 2469. To be clear, therefore, Miller applies only to mandatory sentencing schemes. Accordingly, I respectfully dissent.
February 27, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Wednesday, February 25, 2015
"Eighth Amendment Presumptions: A Constitutional Framework for Curbing Mass Incarceration"
The title of this post is the title of this notable new article by William Berry II now available via SSRN. Here is the abstract:
The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments. The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this article proposes a new approach to the application of the Eighth Amendment.
The absence of regulation of excessive and disproportionate punishments by state legislatures over the past two decades has resulted in the largest prison population in the history of the human race. Instead of merely being a tool that merely removes a few types of offenses and offenders from the purview of state legislatures, the Eighth Amendment should also serve as a more robust guide to shape state penal practices.
To that end, this Article argues for the development of a series of Eighth Amendment presumptions — guiding principles that would govern the punishment practices of legislatures without excluding them from the conversation. Currently, the Eighth Amendment serves to identify the constitutional “exceptions” to the “rules” promulgated by the legislatures. This Article’s approach would reverse that status quo, with the Court articulating general rules and the legislatures then developing (and justifying through careful study) the exceptions to the rules. Indeed, an examination of the Court’s Eighth Amendment cases suggests this “presumptive” sentiment is already implicit in much of the thinking of the Court.
Part I of the Article briefly explains the shortcomings of the current evolving standards of decency doctrine and its devastating consequences. Part II of the Article explores the concept of presumptions, exploring how presumptions operate and demonstrating their virtues. The Article then argues in Part III for the reimagining of the Eighth Amendment as an Amendment of constitutional presumptions combining elements from the Court’s past cases with the needs arising from three decades of neglecting the decisions of legislatures. Finally, Part IV demonstrates how this conceptual framework would work in practice.
February 25, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, January 19, 2015
"Graham's Gatekeeper and Beyond: Juvenile Sentencing and Release Reform in the Wake of Graham and Miller"
The title of this post is the title of this timely and important new article by Megan Annitto now available via SSRN. Here is the abstract:
In Graham v. Florida and Miller v. Alabama, the Supreme Court imposed limits on the use of the life sentences for juveniles. The decisions require states and the federal government to craft new procedures when and if courts levy life and lengthy sentences upon juveniles. But the Court’s decisions are not self-actualizing and there is little within them that creates a bright line about the substance or procedures states should follow. This article focuses on three of the questions that states face in the implementation of the Court’s decisions. First, who is the best gatekeeper for the release of these offenders on the back end of sentencing — the judiciary, parole boards, or something new? Second, what procedural and substantive guidance should states provide for these chosen gatekeepers? And, finally, what role will modern risk assessment tools play in this decision making?
The answers to these questions must fairly balance public safety with the possibility of redemption the Court recognized is inherent in childhood. They will also affect the public’s perception of legitimacy in the release process. State and the federal government answers to those questions are even more pressing given the applicability of Graham’s rationale to a larger category of offenders — the American Bar Association and American Law Institute both recommend the creation of some form of sentencing review for all juveniles sentenced under an adult regime.
Despite the importance of these questions, in the early aftermath of the Court’s opinions, legislative and judicial attention has primarily focused on issues related to the length of sentences that should be alternatives to life terms, the time at which review should occur when life sentences are imposed, and retroactivity. But some pioneering states have passed legislation tinkering with broader reform and legislatures are rapidly taking up the issues presented. Some courts have broadened the reach of Graham and Miller, striking down juvenile life without parole altogether. But many legislatures are embattled over decisions about whether to enact only the perceived minimal requirements of Graham and Miller or whether to extend the Court’s reasoning to broader release policies affording back end sentencing review at reasonable time periods. Choices that provide for expanded but careful opportunities for relief can counterweigh some of the harsh results of juvenile transfer laws that have brought, and continue to bring, increasing numbers of juveniles under the rubric of adult sentencing schemes in ways that were not necessarily intentional or desirable. The Article discusses the implications of the chosen gatekeeper for release and discusses the accompanying procedural and substantive considerations that states and the federal government should consider upon implementation.
Sunday, November 09, 2014
Florida Supreme Court dealing with Miller retroactivity issue after legislative fix
As reported in this local Florida piece, headlined "Supreme Court ponders life sentences for juveniles," the Sunshine State's top court this past week was starting to puzzle through what Miller and new state legislation mean for old juve LWOP sentences. Here are the details:
The Florida Supreme Court on Thursday heard arguments in a debate about sentencing for juveniles convicted of first-degree murder. Pointing to a 2012 U.S. Supreme Court ruling, two inmates who are serving life in prison for murders they committed as juveniles are challenging their sentences.
The ruling, in a case known as Miller v. Alabama, banned mandatory life sentences for juveniles convicted of murder. Juveniles can still face life sentences in such cases, but judges must weigh criteria such as the offenders’ maturity and the nature of the crimes before imposing that sentence.
On Thursday, attorneys for Rebecca Lee Falcon and Anthony Duwayne Horsley argued that the ruling — and a new state law that carries it out — should apply retroactively to their clients, giving them the possibility of release.
The session was lively, with most of the Florida justices’ questions directed at what the Legislature intended by passing the new law. An underpinning of the Miller ruling was that juveniles are different from adults and function at different stages of brain development, so that a life sentence without the possibility of parole violates the Eighth Amendment ban on cruel and unusual punishment....
Lawmakers this spring approved new juvenile sentencing guidelines that went into effect July 1 in response to Miller and to a 2010 U.S. Supreme Court ruling in a case known as Graham v. Florida.
The Miller and Graham rulings have spawned legal questions in Florida courts since the Graham ruling was handed down. It took lawmakers that long to agree on the sentencing guidelines, but this year — reluctant to leave it to courts to decide on a case-by-case basis — did so unanimously. That’s almost unheard of,” Justice Barbara Pariente said. “It’s the entire Legislature saying, after lots of hearings, ‘We think this is both good from a policy point of view as well as faithful to Miller.’ “
Under the new law, a juvenile convicted of a murder classified as a capital felony could be sentenced to life in prison after a hearing to determine whether such a sentence is appropriate. If a judge finds that a life sentence is not appropriate, the juvenile would be sentenced to at least 35 years. Also, juveniles convicted in such cases would be entitled to reviews after 25 years....
On Thursday, Assistant Attorney General Kellie Nielan argued that a life sentence does not violate the Constitution if it includes the option of parole. But Justice Ricky Polston said that would create new questions, due to Florida abolishing parole decades ago on new crimes. A commission still hears cases from before the time parole was abolished.
“If there’s no parole, are you asking this court to order the parole commission to hear these cases even though we don’t have the power of the purse?” Polston asked. “We can’t give them the money or authorization to do this. Are you asking us to — from the bench — require a branch of government to enact the parole commission that’s been abolished?”
“I’m asking this court to follow precedent,” Nielan said. “I understand that we have to fashion a remedy for this.” But while the new law was designed to bring Florida into compliance with the U.S. Supreme Court rulings, it doesn’t mention retroactivity.
And in July, when the Florida Supreme Court asked attorneys representing juvenile offenders to weigh in on the new law, Senate Criminal and Civil Justice Appropriations Chairman Rob Bradley, the Senate sponsor, said it was not intended to address retroactivity. “We were simply looking at a statutory scheme that was clearly unconstitutional,” the Fleming Island Republican told The News Service of Florida. “We were looking at two United States Supreme Court decisions that set forth certain parameters, and we developed a sentencing framework that complied with those two decisions. As far as how that applied individually to individual defendants, we’ll leave that to the court system.”
Monday, October 06, 2014
SCOTUS keeps rejecting important follow-up Graham and Miller issues
The Supreme Court this morning issued this lengthy order list that has 60+ pages listing case after case for which the Justices have denied certiorari review. Not suprisingly, folks are surprised to discover that all the same-sex marriage cases brought to the court over the summer are on the cert denied list (SCOTUSblog discussion here, AP discussion here).
Sentencing fans will also be interested to learn about another group of notable state cases on the cert denied list this morning. A helpful reader provided this account: "For what it’s worth, the US Supreme Court declined to hear at least three virtual LWOP cases (Goins v. Lazaroff, Barnette v. Ohio, and Bunch v. Ohio). They also declined to hear at least two cases on the retroactivity of Miller, including one that was an appeal by a state (Evans v. Ohio and Nebraska v. Mantich)."
I have long believed it will only be a matter of time before the Justices take up at least a few important follow-up Graham and Miller Eighth Amendment issues. These cert denials suggest that the Justices are content to let the issues continue to be resolved only by lower courts for the foreseeable future.
Tuesday, August 05, 2014
"The Miller Revolution"
The title of this post is the title of this notable new article by Cara Drinan now available via SSRN. Here is the abstract:
In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits mandatory life without parole sentences for juveniles — even those convicted of homicide. In this Article, I argue that the Miller decision was, indeed, revolutionary and that, if lower courts and legislators heed the moral leadership of the Miller Court, they could set in motion a return to the juvenile justice model this country began with more than a century ago.
This article proceeds in three parts. Part I traces the development of mandatory juvenile sentences in this country and identifies two key forces driving that development: the practice of transferring juvenile cases to adult court and the emergence of determinate sentencing schemes. Part II is the heart of the article. It examines the Miller decision, as well as its immediate predecessor cases, at a granular level. Having done so, Part II surveys the numerous calls for an expansive reading of Miller that academics and advocates have made to date. Part II then shifts to argue that, indeed, Miller should be read expansively, but that some corollaries of Miller are more readily defensible than others. In particular, I argue that Miller lays the foundation for: 1) the elimination of mandatory minimums as they apply to children and 2) the creation of procedural safeguards for children facing life without parole comparable to those in place for adults facing the death penalty. Part III addresses the likely objections to my two specific proposals and maintains that, despite the concerns of the dissenting Justices in Miller, there are several limiting principles even to an expansive reading of Miller. Finally, by way of conclusion, I note that already there are signs of progressive juvenile justice reform at the state level consistent with the reading of Miller I propose herein and that, in some ways, the Miller revolution is already underway.
Monday, August 04, 2014
Check your local PBS listings for "15 to Life: Kenneth's Story"
Premiering this week on PBS stations is this new documentary titled "15 to Life: Kenneth's Story." The documentary discusses life without parole sentences for juvenile offenders with a focus on a Florida defendant, Kenneth Young, who at age 15 received four consecutive life sentences for a series of armed robberies. Here is part of the description of the film from this PBS website:
In June 2000, 14-year-old Kenneth Young was convinced by a 24-year-old neighborhood crack dealer — Kenneth's mother's supplier — to join him on a month-long spree of four armed robberies. The older man planned the Tampa, Fla. heists and brandished the pistol— and, on one occasion, he was talked out of raping one of the victims by his young partner. Fortunately, no one was physically injured during the crimes, although the trauma that resulted was immeasurable.
When they were caught, Kenneth didn't deny his part. It was his first serious scrape with the law. But at 15, he was tried under Florida law as an adult. Astoundingly, he received four consecutive life sentences — guaranteeing that he would die in prison. 15 to Life: Kenneth's Story follows the young African-American man’s battle for release, after more than 10 years of incarceration, much of it spent in solitary confinement. The film is also a disturbing portrait of an extraordinary fact: The United States is the only country in the world that condemns juveniles to life without parole.
Kenneth’s sentence was not a rarity. As 15 to Life shows, there are more than 2,500 juveniles serving life sentences in the United States for non-lethal crimes, as well as for murder. In the 1990s, many states reacted to a rise in violent youth crimes by amending their laws to allow more juveniles to be tried as adults. Then, in 2010, the U.S. Supreme Court ruled in Graham v. Florida that life sentences for juveniles convicted of crimes other than murder were unconstitutional. That made 77 Florida inmates, including Kenneth, eligible for early release. But how would the Florida courts, historically in favor of juvenile life sentences, apply the Supreme Court decision to a decade-old case?...
At the core of the story, of course, stands Kenneth, now 26, who is candid about his crimes. He says he has followed a path of self-improvement and is remorseful for what he did, even as he remains flabbergasted about his punishment. (Oddly enough, in a separate trial, Jacques Bethea, the older man who organized the robberies and who carried the gun, received a single life sentence.)
At his hearing for a reduced sentence, Kenneth tells the court, "I have lived with regret every day ... I have been incarcerated for 11 years and I have taken advantage of every opportunity available for me in prison to better myself ... I am no longer the same person I used to be. First Corinthians, Chapter 13, Verse 11 says: 'When I was a child I thought as a child. When I became a man I put away all childish things.' I want to turn around and apologize to my victim for what I did."
Kenneth's plight elicits mixed reactions. While some of his victims are inclined to see him let go, others, along with the prosecutor, defend the original punishment. Kenneth's contention that the older man coerced his cooperation by threatening his mother is dismissed, because he didn't speak up as a 15-year-old at his original trial. And arguments that Kenneth's new sentence should take into account his rehabilitation may not convince this Florida court.
UPDATE: A helpful reader noted that through September 3, folks can view the program online at the PBS website here.
August 4, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Film, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack
Thursday, July 03, 2014
Hawaii legislatively eliminates all juve LWOP sentences for all crimes
As reported in this AP piece, headlined "Hawaii ends juvenile life sentences without parole," a new piece of legislation means and and all "life sentences without parole for minors are now abolished in Hawaii." Here are the basics:
Gov. Neil Abercrombie signed a bill Wednesday recognizing that children convicted of first-degree murder should be treated differently than murderous adults.
Advocates say children are impressionable and sometimes can't get out of horrific, crime-ridden environments. Honolulu prosecutors argued the measure isn't fair to people who are born weeks apart from slightly younger perpetrators of the same crime.
July 3, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Friday, June 20, 2014
"A Suggested Minor Refinement of Miller v. Alabama"
The title of this post is the title of this new Comment by Devina Douglas now available via SSRN. Here is part of the abstract:
While some heralded the recent United States Supreme Court’s Miller v. Alabama decision — forbidding mandatory life without parole (LWOP) sentences for juveniles — as a step in the right direction for protecting the interests of juveniles within the adult criminal justice system, the decision is also a step backwards for the ability states to sentence their criminals as they sees fit.... This Comment argues the Court spoke too broadly applying its rule to all minors.
This essay will first summarize the Supreme Court’s previous sentencing precedent, the cases that paved the way for the Miller decision — establishing that “children are different,” — and then the Miller decision. Next, it will highlight the troubles lower courts have faced in trying to implement the decision, the flaws in, and alternative interpretations of, the science relied upon, and then turn to the question of whether juveniles over the age of sixteen have reached sufficient maturity as to allow the system to hold them as accountable as adults for homicide crimes. In response to the likelihood that those sixteen and over are sufficiently mature, this Comment will propose a way to preserve deference to the various state legislatures’ sentencing decisions while addressing increasing concern that juveniles should be treated differently. The Miller pre-sentencing evaluation factors should only apply categorically to those under sixteen, and those sixteen and seventeen in cases where the juvenile offender is quite young or possesses what the Court calls twice-diminished culpability: where the system convicted the offender under an aiding and abetting or accomplice theory, or felony murder.
June 20, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
Friday, May 09, 2014
Connecticut debate spotlights how fights over death penalty can impede other needed reforms
Long time readers know that one of my enduring frustrations with debates over the fate of death penalty concerns how this debate can sometimes get in the way of other important criminal justice work. A notable new example of this dynamic was on display this week in Connecticut, as evidenced by this local article headlined "Juvenile Sentencing Bill Fails Second Year In A Row." Here are the basic details:
A barrage of amendments, a planned Republican filibuster over the merits of reviving the death penalty, and recent charges against a Milford teen in the fatal stabbing of a classmate scuttled a criminal justice bill on the last day of the 2014 session.
The bill would have offered inmates serving long prison sentences for crimes they committed at a young age a chance at freedom. The measure was crafted in response to two U.S. Supreme Court rulings, in 2010 and 2012. The court held that life sentences for offenders younger than 18 are unconstitutional and that juvenile offenders must be given a "meaningful opportunity" to seek release.
The legislation cleared the House of Representatives on a broad and bipartisan vote in early April. But for the second year in a row, it failed to come up in the Senate by midnight Wednesday, when the General Assembly adjourned. Republicans signaled to Democratic leaders that they were going to block the bill by filing 22 amendments, including one to reinstate the death penalty in Connecticut for convicted terrorists and another to eliminate a program that aims to rehabilitate prisoners by offering them credit toward early release....
Senate President Pro Tempore Donald Williams said there were enough votes to pass the measure. But, facing Republican opposition and wanting to avoid votes on controversial issues like the death penalty, Williams opted not to bring the bill up....
The proposed bill was based on recommendations by the non-partisan Connecticut Sentencing Commission. It would have permitted prisoners who committed crimes as teenagers and are serving prison terms of 20 years or less to be eligible for a sentence review after they had served 60 percent of their time. Inmates serving 50 years or more could receive that "second look" 30 years into their sentences. The proposal would not have guaranteed freedom for the inmates but would have given them the opportunity to argue their case at a special parole hearing with highly restrictive criteria.
"We're disappointed with what happened in the Senate," said David M. Borden, a retired state Supreme Court justice who chairs the Sentencing Commission, the panel charged with reviewing criminal justice policy and proposing legislation. The commission's members include prosecutors, defense attorneys, police, corrections officials and the state victims advocate. "When you look at the bill dispassionately and look at the facts dispassionately and clear away all the underbrush of things that don't have anything to do with it, it's a very good bill," Borden said Thursday. "To the extent politics got in the way, well, we live in the real world ... we'll take the consequences."
The commission will meet in June and determine whether it will push for the measure again in 2015. "I don't think there's going to be a strong sentiment for giving up this fight," Borden said. He said 70 inmates in Connecticut already have filed cases seeking revisions in their sentences, based on the two Supreme Court rulings. "This bill would have set down reasonable parameters for how these cases should be handled," Borden said.
In the absence of legislation setting a legal framework, the decision of how to comply with the U.S. Supreme Court rulings likely will be left to state courts, Gov. Dannel P. Malloy said Thursday. "Don't be surprised if it goes to court," Malloy said. The courts "will do what the [legislature] should have done and perhaps do more."
May 9, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, April 15, 2014
NY Times editorial laments "Echoes of the Superpredator"
While traveling, I missed this recent New York Times editorial discussing the persistence of tough juve sentencing laws after superpredator fears have receded. Here are excerpts:
News reports — usually featuring images of glowering black teenagers — warned of the coming wave of violence that would flood the country. Respected criminologists bought into and amplified the hysteria. Most destructively, almost every state passed laws making it easier to prosecute juveniles as adults, by increasing the number of crimes or reducing the age that triggered adult prosecution — and in some cases eliminating the minimum age altogether....
Two decades later, it’s easy to look back in judgment, but it would be a mistake to think the nation has fully moved beyond that mind-set. Many states continue to punish juveniles as harshly as they can, even though the Supreme Court has held in a series of landmark rulings since 2005 that young people are “constitutionally different” from adults....
Some states have taken the court’s rulings, and its reasoning, to heart. Since the ruling in Miller, five states have abolished juvenile life without parole in all cases. In March, West Virginia lawmakers passed a bipartisan bill that provides parole review for any juvenile who serves at least 15 years in adult prisons. Similar legislation is pending in Connecticut and Hawaii.
But other states keep fighting to prevent their juvenile offenders from ever having the chance to see the light of day. Michigan now gives judges the “choice” of imposing a minimum sentence of 25 to 60 years instead of life without parole. Courts in other states have refused to apply the Supreme Court’s ruling retroactively, stranding many of the more than 2,000 inmates who were sentenced before the Miller decision.
The issue is not, as supporters of mandatory sentencing would have it, about going easy on criminals. No one is ordering judges to release inmates who are not rehabilitated, or who pose a threat to society. Rather, it is about giving legal meaning to the neurological, psychological and emotional vulnerabilities of young people. Those who make mistakes — even terrible ones — should not be sentenced to die in prison.
The myth of the superpredator helped spawn a generation of misguided laws that treated young people as adults, despite evidence that doing so actually increases recidivism. Most of these laws remain in effect. The Supreme Court has rightly begun to dismantle their constitutional foundations, but some states are determined to act as if it were always 1995.
Recent related post:
Saturday, April 12, 2014
"Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy"
The title of this post is the title of this symposium foreword authored by Paul Litton and now available via SSRN. Here is the abstract:
This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper.
First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences. The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles. This essay briefly explores whether there is a principled reason for the Court to invoke Woodson but not Roper from its capital jurisprudence.
Second, the Court does cite Roper for its “foundational principle,” which is, according to the Court, “that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” However, this principle cannot be the bedrock of Roper. Since Lockett, state capital sentencing schemes have not proceeded as though juvenile offenders were not children. Juvenile capital defendants could introduce their youth and accompanying characteristics in mitigation. Roper, therefore, is based on a much stronger principle, one that requires categorical removal of juveniles from the universe of death-eligible defendants and, thus, should imply the same for penalties equivalent to death.
This Foreword also provides a guide to the symposium’s wonderful contributions by Nancy Gertner, Will Berry, Frank Bowman, Josh Gupta-Kagan, Michael O’Hear, Clark Peters, Mary Price, and Mae Quinn. In doing so, it highlights a fascinating theme running through many authors’ answer to whether Miller represents a “bombshell or babystep”: Miller’s implications for the Court’s methodology for conducting proportionality analyses and, specifically, for the role of “objective indicia” of public attitudes in such analyses.
April 12, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
Tuesday, April 08, 2014
How many states now require judges to consider military service and/or PTSD at sentencing?
The question in the title of this post is prompted in part by this short local article headlined "Calif. Bill Urges Judges To Consider PTSD In Sentencing Of Military Veterans." Here are the basics:
A bill moving through the state Legislature would urge judges to grant probation and give shorter prison terms to defendants who have mental health problems stemming from their military service.
AB2098 passed the Assembly on Monday on a 70-1 vote. It requires courts to consider post-traumatic stress disorder and other mental health issues in sentencing. The bill’s author, Democrat Marc Levine of San Rafael, says as many as one in five soldiers returning from Iraq and Afghanistan have PTSD and are more likely to commit crimes.
California law already requires judges to consider ordering treatment when granting probation for veterans with mental illness. The bill is one of several that address how to deal with veterans in the criminal justice system. It now heads to the Senate.
I view legislative action regarding consideration of military service and/or PTSD at sentencing to be part of a broader set of modern sentencing developments focused on the importance of offender characteristics. The modern structured/guidelines sentencing reform era has often generated laws and practices suggesting sentencing decision-making could and should focus much more, if not exclusively, on the specifics of an offense rather than the nature of the offender.
But the Supreme Court's recent Eighth Amendment rulings in Graham and Miller now suggest that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings). State sentencing laws requiring consideration of military service and/or PTSD seems another example of the (post-modern?) view that consideration at sentencing of at least some offender characteristics may be essential to a fair and effective sentencing system.
Some older related posts:
- Should prior military service reduce a sentence?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- "Judge suggests more sentencing options for war veterans"
- Can downloading of child porn be blamed on post-traumatic stress disorder?
- "Judges Consider New Factor at Sentencing: Military Service"
- Kansas legislature considering bill for PTSD-based sentence reductions for veterans
- Ohio bill to require consideration of military service at sentencing
- "Neuroscience, PTSD, and Sentencing Mitigation"
- "Military Veterans, Culpability, and Blame"
Monday, March 24, 2014
What procedural rights should juve killers have at parole proceedings?
The question in the title of this post is prompted by this intriguing article in the Boston Herald headlined "Killers convicted as teens could make bids for parole concessions." The piece highlights some of the intriguing and potentially controversial procedural issues that necessarily arise if and whenever a state has to figure out just what it means to give serious juvenile offenders a meaningful chance to secure parole release from a life sentence. Here are the details:
A killer whose court victory cleared the way for dozens of lifers convicted as teens to seek freedom is expected to make new demands before a judge today, including giving cons the opportunity to cross-examine anyone who argues against their release. But Suffolk District Attorney Daniel F. Conley said Gregory Diatchenko — who was 17 in 1981 when he plunged a knife through the face and heart of 55-year-old Thomas Wharf in Kenmore Square while screaming, “Give me your money, you (expletive),” — is asking too much.
“What he’s asking for would essentially give him a new trial on a first-degree murder charge for which he was already found guilty. This is a case of a convicted killer being given an inch and now demanding a mile,” Conley said.
The Supreme Judicial Court, in a controversial bombshell decision dropped on Christmas Eve that mirrored a 2012 ruling by the U.S. Supreme Court, ruled that keeping teen killers behind bars without a chance of parole was cruel and unusual punishment because children under age 18 lack the ability to appreciate their crimes. The court, ruling on an appeal by Diatchenko, found teen killers should be given a “meaningful opportunity to be considered for parole suitability” after 15 years of incarceration.
A single SJC justice, Margot Botsford, will hear Diatchenko’s arguments today for new Parole Board rules for those convicted of murder as teens. Lawyers for Diatchenko and the Parole Board did not respond to requests for comment. Conley’s office said Diatchenko’s requests include having an appointed hearing attorney, expert defense witnesses, and the opportunity to cross-examine witnesses against him.
Conley contends, “The SJC has determined that this defendant is entitled to a parole hearing. He shouldn’t also be afforded an unprecedented array of tactics to use at that hearing.”
Steve Brodie of Groveland, whose daughter Beth was bludgeoned to death in 1992 at age 15, told the Herald he is alarmed to learn hearings could include cross- examination. “We don’t know where it ends,” Brodie said. Richard Baldwin, 37, who was 16 when he killed Beth Brodie, is among 61 lifers whose hearings for parole are expected to begin soon.
Personally, I do not view a defendant's request for an attorney and an opportunity to present and cross-examine witnesses at a significant sentencing proceeding to amount to a demand to "be afforded an unprecedented array of tactics." But then again, it is easy for a lawyer and law professor like me to say that the traditional trial procedures secured for defendants by the Sixth and Fourteenth Amendments ought to be given very broad application in parole proceedings.
The US Supreme Court has never thoroughly considered or carefully articulated exactly which traditional trial rights defendants retain or lack throughout traditional parole decision-making, though SCOTUS jurisprudence suggests that all defendants retain at least some minimal due process rights in parole proceedings. Critically, though, these important procedural issues have not (yet) been seriously explored in the wake of the Supreme Court's recent substantive and procedural Eighth Amendment decisions in Graham and Miller concerning limits on juve LWOP sentencing.
March 24, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (16) | TrackBack
Wednesday, March 12, 2014
Ohio Supreme Court explains how Miller is to be applied in discretionary juve LWOP system
The Ohio Supreme Court this morning handed down a lengthy split decision in Ohio v. Long, No. . 2014-Ohio-849 (March 12, 2014) (available here), which explain how the Eighth Amendment rules in Miller, which only formally declare conconstitutional a mandatory juve LWOP sentencing scheme, are to be applied in a system that already gave sentencing judges discretion in cases in which juve killers were made eligible for an LWOP sentence. Here is the start and some additional excerpts from the majority opinion:
In this case, we are asked whether a trial court violates the Eighth Amendment by imposing a sentence of life imprisonment without parole for an aggravated murder committed by a juvenile. We hold that a court, in exercising its discretion under R.C. 2929.03(A), must separately consider the youth of a juvenile offender as a mitigating factor before imposing a sentence of life without parole in light of Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)....
As applied to a juvenile found guilty of aggravated murder under R.C. 2929.03(A), then, Ohio’s sentencing scheme does not fall afoul of Miller, because the sentence of life without parole is discretionary. Nor is our criminal procedure flawed under Graham and Miller by failing to take into account that a defendant is a youthful offender. Nevertheless, for clarification we expressly hold that youth is a mitigating factor for a court to consider when sentencing a juvenile. But this does not mean that a juvenile may be sentenced only to the minimum term. The offender’s youth at the time of the offense must still be weighed against any statutory consideration that might make an offense more serious or an offender more likely to recidivate. Yet because a life-without-parole sentence implies that rehabilitation is impossible, when the court selects this most serious sanction, its reasoning for the choice ought to be clear on the record....
Although Miller does not require that specific findings be made on the record, it does mandate that a trial court consider as mitigating the offender’s youth and attendant characteristics before imposing a sentence of life without parole. For juveniles, like Long, a sentence of life without parole is the equivalent of a death penalty. Miller, 132 S.Ct. at 2463, 183 L.Ed.2d 407. As such, it is not to be imposed lightly, for as the juvenile matures into adulthood and may become amenable to rehabilitation, the sentence completely forecloses that possibility...
The United States Supreme Court has indicated in Roper, Graham, and Miller that juveniles who commit criminal offenses are not as culpable for their acts as adults are and are more amenable to reform. We agreed with this sentiment in In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729. Miller did not go so far as to bar courts from imposing the sentence of life without the possibility of parole on a juvenile. Yet because of the severity of that penalty, and because youth and its attendant circumstances are strong mitigating factors, that sentence should rarely be imposed on juveniles. Miller, ___ U.S. ___, 132 S.Ct. at 2469, 183 L.Ed.2d 407. In this case, the trial court must consider Long’s youth as mitigating before determining whether aggravating factors outweigh it.
March 12, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack
Wednesday, February 26, 2014
"The Supreme Court and the Rehabilitative Ideal"
The title of this post is the title of this notable new paper by Chad Flanders now available via SSRN. Here is the abstract:
Graham v. Florida was a watershed decision, not least because of the centrality of the so-called “rehabilitative ideal” to its holding that life in prison for juveniles convicted of nonhomicide crimes was cruel and unusual. The Court’s emphasis on rehabilitation was surprising both in terms of the Court’s previous decisions on punishment, in which rehabilitation was barely included as a “purpose of punishment,” but also in terms of the history of academic and legislative skepticism if not hostility toward the idea of rehabilitation (which includes two recently decided sentencing cases, Tapia and Pepper). Courts and commentators have struggled to make sense of both the meaning and the scope of Graham’s rehabilitative holding. Their struggle is one about defining how (and whether) rehabilitation should play any substantial role in sentencing.
My essay places Graham in the context of the recent history of rehabilitation, and views its attempt to “rehabilitate” rehabilitation in light of that history. The rehabilitative ideal encompasses not just one model, but three: the mostly discredited model of rehabilitation as treatment, a more modest model of rehabilitation as training, and an older model of rehabilitation as reform. Both the language and the result of Graham show it to be squarely in the tradition of the third model, where rehabilitation is not something the state provides, but something the offender is supposed to undergo, through a process of reflection, remorse, and atonement. Rehabilitation as reform is notable because it is compatible with a suspicion that prison in general is a bad place for rehabilitation and that it is unlikely that the state can do anything to positively aid the offender in reforming. At best, the state must get out of the way. Whether we want to extend Graham or reject it depends on whether we find its ideal of rehabilitation as reform appealing.
February 26, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, February 11, 2014
"The Illusory Eighth Amendment"
The title of this post is the title of this notable new article by John Stinneford now available via SSRN. Here is the abstract:
Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.
This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a substitute for constitutional interpretation. A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation. Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication.
This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation. When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning. Such rules also narrow the scope of the Constitution itself, denying protection to any claimant who does not come within the rules. The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it.
February 11, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Friday, January 24, 2014
Notable early Massachusetts legislative response to elimination of juve LWOP
This Boston Globe article, headlined "Bill seeks at least 35 years for young killers," reports on a proposed statutory response to the recent ruling by the Supreme Judicial Court of Massachusetts (discussed here) which declared that that "all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights." Here are the basics:
A group of state lawmakers is proposing legislation that would require juvenile murderers to serve at least 35 years in prison before being eligible for parole, in direct response to a Supreme Judicial Court ruling that struck down life sentences without the possibility of parole for young killers.
The bipartisan bill would also require the state Parole Board, in deciding whether to grant early release, to consider whether a teenager convicted of murder had the maturity and sense of responsibility of an adult when carrying out the crime.
The bill was based on the recommendation last week of the Massachusetts District Attorneys Association and was meant to fill a legal void left by the Supreme Judicial Court decision in December that eliminated sentences of life without parole for juveniles, even those convicted of the most horrendous crimes. “It’s about the injustice this would mean for the victims’ families,” said state Senator Barry Finegold, a Democrat from Andover and one of the sponsors of the legislation.
Senator minority leader Bruce Tarr, a Republican from Gloucester who cosponsored the bill, added that he has spoken with the families of murder victims and “their loss is no less because their suffering was at the hands of a juvenile.”...
According to state officials, approximately 66 prisoners who were sentenced to life without the possibility of parole for crimes they committed as juveniles could now be eligible for parole. No hearings have been scheduled.
Joshua Dohan — director of the youth advocacy division for the state Committee for Public Counsel Services, the state’s public defender agency — questioned how the state legislators reached the 35-year mark. Dohan pointed out that international standards, agreeing that teenagers have mindsets that are different from those of adults, call for juvenile sentences of, on average, no more than 20 years in prison, even for murder.
He said legislators are reacting quickly to a sensitive issue, but that they should slow down the process. He called for lawmakers to give judges discretion to hand out punishments, so they could consider a teenager’s culpability in a crime. “These are really important decisions that are going to affect the defendant, but also their families and the families of their victims,” he said....
Tarr and Finegold, flanked by a group of legislators who sponsored the bill, said the 35-year limit is a balance between holding a teenager accountable for his or her crimes and preserving the constitutional issues cited by the courts. Other states, reacting to the US Supreme Court decision, have passed a variety of laws: Wyoming, for instance, offers parole after 25 years.
“While it’s not an ideal situation, we hope this will bring a measure of comfort to the victims’ families,” said Finegold, who said he was working on behalf of Colleen Ritzer, the Danvers High School teacher who was killed in October, allegedly by a student.
A few other recent related posts:
- Extending Graham and Miller, Massachusetts SJC bars LWOP for all juve offenders
- One tale (of thousands) of a juve LWOPer now with a glimmer of hope
- Years after Graham and Miller, Florida still working on its legislative response
- A victim's perspective from Iowa on the aftermath of Graham and Miller
- "Juvenile Lifers and Judicial Overreach: A Curmudgeonly Meditation on Miller v. Alabama"
- "Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment"
January 24, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Tuesday, January 21, 2014
"Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment"
The title of this post is the title of this informative and interesting new paper by Sarah French Russell now available via SSRN. Here is the abstract:
State parole boards have historically operated free from constitutional constraints when making decisions about whether to release prisoners. Recent Supreme Court decisions subject states to a new constitutional requirement to provide a “meaningful opportunity to obtain release” for at least some categories of juvenile offenders. Using original data collected through a survey, this Article provides the first comprehensive description of existing parole board release procedures nationwide and explores whether these practices comply with the Court's Eighth Amendment mandate.
The Court's recent decisions in Graham v. Florida and Miller v. Alabama prohibit sentences of life without the possibility of release (LWOP) for juvenile offenders in nonhomicide cases and forbid mandatory LWOP sentences in homicide cases. States must now provide nonhomicide juvenile offenders with a “meaningful opportunity to obtain release” and give judges the option of imposing a sentence with the chance of release on homicide offenders. Around the country, state courts, legislatures, and governors have started to respond to Graham and Miller. Yet there is little scholarship focusing on a central issue raised by these cases: What constitutes a meaningful opportunity to obtain release under the Eighth Amendment? The Court has declined to provide detailed guidance on the matter, stating that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance.”
Viewed in the context of the Court's earlier Eighth Amendment jurisprudence, the meaningful opportunity for release requirement appears to encompass three distinct components: (1) a chance of release at a meaningful point in time, (2) a realistic likelihood of release for the rehabilitated, and (3) a meaningful opportunity to be heard. For the most part, states have responded to Graham and Miller by making juvenile offenders eligible for release under existing and long-standing parole board procedures. To date, the debate in the states has focused primarily on the first component of the meaningful opportunity requirement-when a juvenile offender should be eligible for release. Most states have paid little attention to whether existing parole board practices satisfy the other two components of the meaningful opportunity requirement. These practices, which were designed for a different purpose, may not offer a realistic chance of release and meaningful hearings for juvenile offenders.
Parole procedures in every state are different, and many parole boards operate under unwritten and unpublished rules. To understand existing practices, I sent a survey to every parole board in the country. The survey results revealed procedures that, while adequate for adult offenders, may not survive Eighth Amendment scrutiny when applied to juvenile offenders under Graham and Miller. Such procedures include (1) preventing prisoners from appearing before decision makers, (2) denying prisoners the right to see and rebut evidence, and (3) limiting the role of counsel. I conclude that some states may not be able to rely on their existing parole board practices to provide a meaningful opportunity for release, and may need to craft special rules for considering release of juvenile offenders serving lengthy sentences.
January 21, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, January 20, 2014
One tale (of thousands) of a juve LWOPer now with a glimmer of hope
Former federal judge and law professor Nancy Gertner authored this notable Boston Globe commentary concerning a former client of hers who might now benefit from how Massachusetts courts are responding to the Supreme Court's new Eighth Amendment jurisprudence. The piece is headlined "Locking up kids for life? A new court decision takes a step toward juvenile justice reform," and here are excerpts:
Three decades ago, Edward Palmariello, 17, and his 21-year-old friend Bruce Chambers were arrested in the murder of Edward’s mother, Marion. Then a defense attorney, I represented Edward at trial. The jury found both men guilty and the sentence was mandatory — life in prison without any possibility of parole....
The Commonwealth’s story in court was simple: Edward and his mother fought all the time. He had said things to her like “Shut up or I’m going to cut you up and put you into the toilet bowl,” and he once waved an open switchblade at her....
There was another narrative about Edward and his mother, one the jury never heard. The mother had abused Edward’s sisters and brother. The abuses were reflected in Department of Social Services records. In fact, each one had moved out — “escaped,” as one sister put it — as soon as he or she could. Edward, the youngest, had no place to go. His mother abused him physically, but when he grew stronger than she was, her abuse became psychological. Still, as a defense lawyer, I was reluctant to offer the complete DSS records (even if they were admissible). While they explained the family’s dysfunction, there was a risk that a prosecutor, bent on conviction, would spin them as a motive for murder.
With the first-degree murder conviction, there would be no opportunity for testimony from the social workers who knew the family or even the family members themselves who had “escaped.” Only one sentence was possible: life without parole. On appeal, the Supreme Judicial Court affirmed Edward’s conviction (one judge dissented). All other appeals failed.
In most countries, Edward’s sentence would have been impossible. Juvenile life without parole is prohibited by the UN Convention on the Rights of the Child, a measure that has been ratified by every UN nation except the United States and Somalia (Somalia announced in November that it will ratify). Edward has spent the past 32 years in jail. He had no hope, no future. Perhaps, until now.
In 2012, in Miller v. Alabama, the US Supreme Court held that a mandatory sentence of life in prison without parole on any offender under 18 is contrary to the constitutional prohibition on “cruel and unusual punishments.” While the decision’s implications were momentous, it focused only on the mandatory nature of the punishment.
But on December 24, 2013, the Supreme Judicial Court of Massachusetts went further. In Diatchenko v. District Attorney for the Suffolk District, the court held that the state constitution barred the imposition of life without parole altogether for defendants under age 18 at the time they committed murder....
In language that resonates for Edward, the US Supreme Court criticized sentencing that “prevents taking into account the family and the home environment that surrounds [the offender] — from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.” It “disregards the possibility of rehabilitation even when the circumstances most suggest it.”
Edwards’s case, along with some 60 others, will now go before the Massachusetts Parole Board. Will this be a real review or just a Kabuki ritual? Governor Deval Patrick dismissed five of the seven board members after a parolee killed a Woburn police officer in 2010. Parole rates have dropped dramatically. Perhaps that was why three SJC justices wrote a special commentary urging a “real meaningful opportunity to obtain release” for the juveniles affected by the decision. Parole Board, take heed.
At the very least, for Edward Palmariello, the board will finally hear the whole story.
Meanwhile, as this new front-page New York Times article highlights, the stories of hope for juve LWOPers in Massachusetts may be more of an exception than the rule in the wake of Miller. That article, which is headlined "Juveniles Facing Lifelong Terms Despite Rulings" spotlights that "most states have taken half measures, at best, to carry out the rulings [in Graham and Miller], which could affect more than 2,000 current inmates and countless more in years to come, according to many youth advocates and legal experts."
January 20, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Saturday, January 04, 2014
"Juvenile Lifers and Judicial Overreach: A Curmudgeonly Meditation on Miller v. Alabama"
The title of this post is the title of this notable new paper now available on SSRN and authored by Frank O. Bowman III. Here is the abstract:
This Article considers with a skeptical eye the Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), finding unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishments Clause all laws subjecting murderers who killed before their eighteenth birthdays to a sentence of mandatory life without parole (“LWOP”).
Miller and Graham v. Florida, 130 S. Ct. 2011 (2010), in which the Court voided statutes imposing life without parole on juveniles who committed non-homicide crimes, are striking for several reasons. First, they impact juvenile justice because the Court has continued down the path it took in Roper v. Simmons, 543 U.S. 551 (2005), when it ruled the death penalty cruel and unusual for juveniles, regardless of the crimes they committed, and declared categorically that the relative immaturity of juveniles made them less culpable for crime and thus both ineligible for certain very harsh punishments and subject to different procedures than adults for others. Second, the Court’s reasoning in Miller and Graham has potentially far-reaching implications for the sentencing of adults. These opinions extend to non-capital crimes the unique body of Eighth Amendment law the Court had hitherto restricted to death penalty cases. And the language of Justice Elena Kagan’s majority opinion in Miller casts at least some doubt on the power of legislatures to impose any mandatory sentence, whether of death or a term of imprisonment.
This Article contends that, while the results of Miller and Graham are gratifying as sentencing policy, the opinions announcing those results are troubling as a constitutional matter because they are badly theorized and because they are two strands of a web of decisions in which the Court has consistently used doubtful constitutional interpretations to transfer power over criminal justice policy from the legislatures – state and federal – to the courts.
Thursday, January 02, 2014
A victim's perspective from Iowa on the aftermath of Graham and Miller
This notable local article from Iowa, headlined "As juvenile re-sentencing looms, murder victim's family speaks out," provides a useful reminder of the folks other than juvenile offenders who are very concerned with how the Supreme Court's rulings in Graham and Miller are going to be implemented in the states. Here are excerpts:
34 Iowa criminals currently sit in prison cells who, once sentenced to life in prison as juveniles, can file for the possibility of parole. In 2010, the U.S. Supreme Court ruled sending a juvenile to life in prison without the possibility of parole is unconstitutional. Gov. Branstad then commuted those life sentences to 60 years in prison. 2012, however, brought the Iowa Supreme Court to rule 60 years as still unconstitutional.
“Because of the nature of the crimes that these individuals have committed, it has a very serious impact on the criminal justice system,” said Black Hawk County Attorney Tom Ferguson.
The ripple effect of these two court rulings extends past those just sitting in prison cells. Karen Salisbury was murdered in her Evansdale home in 1998. 17-year-old Matthew Payne was charged with the killing; a first-degree murder charge that, back then, sent him to spend the rest of his life in prison.
Salisbury’s three daughters — Rhonda Hoffman, Marsha DeWiese and Vicky Bolin — said they wrestled with those 1998 images of their mother’s death for years. Now — they must relive the nightmare. Payne, along with the other 33 Iowa criminals, can file to correct a now illegal sentence, hoping for parole. “I don't ever want to have to go into the grocery store or somewhere and run into him,” Hoffman said.
Attorneys said parole, however, is not guaranteed. A judge could grant the possibility of parole, or not at all. Nevertheless, these parole hearings are annual; potentially bringing families back to the court room year after year. “Every year if that comes up every year I will be there and I will make sure they hear my voice and they don't let him out,” Bolin said.
The daughters said the possibility of parole for Payne is extremely concerning for them; a thought that is nearly unbearable. “What good are they in this society when they've been in prison for so long and know nothing else,” DeWiese said.
Hoffman said if Payne is ever granted parole, she hopes she never has to see him. “Don’t come back to Waterloo, I’d go somewhere else.”
Thursday, December 26, 2013
Extending Graham and Miller, Massachusetts SJC bars LWOP for all juve offenders
Thanks to this Christmas night post at How Appealing, I just discovered that on Christmas eve the Supreme Judicial Court of Massachusetts issued two big related rulings (available here and here) which not only held that the Supreme Court's Miller ruling is to be applied retroactively but also that "all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights." Because I am on the road today, I will not have the chance to consume this significant rulings fully, but I can here link to and quote from this lengthy report on the rulings from the Boston Globe:
The state’s highest court struck down life sentences without parole for juveniles on Tuesday, saying scientific research shows that lifelong imprisonment for youths is cruel and unusual because their brains are “not fully developed.”
The Massachusetts Supreme Judicial Court decision is retroactive, meaning that, as one example, John Odgren, the suburban special needs student who stabbed 15-year-old James F. Alenson in the bathroom at Lincoln-Sudbury Regional High School on Jan. 19, 2007, and received a mandatory life sentence, now could have a chance of parole one day.
“We are very hopeful that the parole board is going to examine these kids’ lives carefully and will be giving them a real meaningful opportunity for release,” said Patty Garin, Odgren’s attorney. But some district attorneys said they were concerned about the ruling and would argue against parole in some cases.
The decision is a marked reversal for Massachusetts, where juveniles found guilty of murder have faced some of the harshest laws in the nation. The decision also is notable for its reliance on the growing field of research into the juvenile brain.
“Simply put, because the brain of a juvenile is not fully developed, either structurally or functionally, by the age of eighteen, a judge cannot find with confidence that a particular offender, at that point in time, is irretrievably depraved,” the court wrote. “Therefore, it follows that the judge cannot ascertain, with any reasonable degree of certainty, whether imposition of this most severe punishment is warranted.”...
The ruling goes farther than the Supreme Court decision in 2012 that struck down automatic sentences of life without parole for juveniles.... Because the Massachusetts high court’s decision is retroactive, prisoners sentenced as juveniles will “at the appropriate time” be afforded a parole hearing.
Lawyers said such inmates will have to have served at least 15 years before being considered for parole. There are currently 63 inmates in Massachusetts who were sentenced when they were juveniles to life sentences without the possibility of parole for first-degree murder....
The decision drew immediate praise from Governor Deval Patrick, who in September signed legislation that raises the age of juvenile jurisdiction from 17 to 18 and has pushed to reduce the number of teenagers sentenced to life without the possibility of parole. “I applaud today’s Supreme Judicial Court’s ruling,” the governor said in a statement. “Young people, even ones who commit terrible crimes, are developmentally and now constitutionally different from adults. Our SJC has wisely held that, while violent felons will be held accountable, youthful ones deserve every opportunity for rehabilitation.”
Some district attorneys questioned the decision. Essex District Attorney Jonathan W. Blodgett said the ruling will strip away the closure that victims’ families believed they had gained. “I am concerned for families who thought they had finality about their loved ones being murdered,” said Blodgett, who is president of the Massachusetts District Attorneys Association. “Now they have to go through these parole hearings.”
Suffolk District Attorney Daniel F. Conley said in a statement, “We are mindful of the literature on young adults’ brain development, and we already exercise great discretion in charging juveniles with murder. But we’re also keenly aware of the cases at issue here. Some fact patterns demand life imprisonment. Some defendants do not deserve parole. We will argue — as often and as forcefully as necessary — against parole in those cases.”
For years, Massachusetts has had some of the most punitive penalties in the country for juvenile offenders convicted of murder. Two decades ago a series of brutal murders galvanized public demands for harsher penalties. In 1996, legislators responded with a law that mandated that juveniles 14 years and older charged with murder be tried as adults.
Because Massachusetts’ penalties for first-degree murder is mandatory life without parole juveniles found guilty of that crime faced a lifetime of incarceration. As a result, Massachusetts became a leader in the number of youths facing life sentences without parole.
As of last year, the majority of youth with such sentences were concentrated in Massachusetts and four other states: California, Louisiana, Michigan, and Pennsylvania, according to the Campaign for the Fair Sentencing of Youth. “People thought if we have an extreme response, kids would stop doing bad things, and that has not turned out to be true,” said Naoka Carey, executive director of Citizens for Juvenile Justice, a nonprofit based in Massachusetts.
Carey said the SJC ruling brings Massachusetts back to the middle — she noted that other states that have abolished life without parole for juveniles include Wyoming, Colorado, and Texas. “We’re in some conservative company,” she said.
State legislative leaders said they plan to move quickly to overhaul juvenile sentencing laws that might conflict with Tuesday’s ruling. “The legislation currently pending that require the eradication of such sentences will be fast-tracked to ensure constitutional compliance with the ruling of the SJC,” said Representative Eugene L. O’Flaherty, a Chelsea Democrat who is the House chairman of the Judiciary Committee. Carey said there are currently a number of legislative options, but that any law will have to give meaningful opportunity for parole.
The SJC’s ruling came in the case of Gregory Diatchenko, who was 17 in 1981 when he murdered a man in a car in Kenmore Square. He has been in prison for more than three decades. The court ruled that he was eligible to be considered for parole immediately....
“I’m happy that Gregory Diatchenko is going to have a meaningful opportunity for release, which he deserves. He’s a living embodiment of what the [Supreme Court] case was all about. He does not deserve to die in prison. He’s not who he was when he was 17,” said Benjamin Keehn, Diatchenko’s attorney. Keehn was on his way to see his client at MCI Norfolk on Tuesday to relay the news. He said his client is 49 years old, two credits shy of a bachelors degree, and has been a Buddhist for over 10 years.
The court also ruled in the separate case of Marquise Brown, who was convicted of first-degree murder in a 2009 slaying. He has not been sentenced. The court ruled that because Brown was 17 at the time of his crime, he cannot be sentenced to life without parole.
The Diatchenko ruling was unanimous. In a concurring opinion, Justices Ralph Gants, Barbara Lenk, and Fernande R.V. Duffly, emphasized that defendants need to have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” They urged that decisions on parole be informed by an attention to the “distinctive attributes of youth.
December 26, 2013 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 (6) | TrackBack
Monday, December 02, 2013
What sentencing issues should SCOTUS be taking up to fill out its docket?
I have noted (and been disappointed by) the relative paucity of major sentencing cases on the Supreme Court docket this Term. But, as highlighted by this new Washington Post article, headlined "Supreme Court busy looking for cases — but finding fewer than usual," SCOTUS is now facing a relative paucity of all cases on its docket.
That all said, this recent Politico article, headlined "Digital era confounds the courts," spotlights that a number of cases concerning the intersection of the Fourth Amendment and new technology likely to be on the SCOTUS docket soon:
[T]he nation’s top court is set to consider whether to take up three key related cases ... [with] big tech issues that could finally get decided:...
Lower courts have been split on the authority of police to search your technology [incident to an arrest]. Currently, court rulings have required warrants to search a cellphone in six states, while they are not required in 20 other states, according to a map put together by Forbes and the Electronic Frontier Foundation.....
In the age of encryption and passwords, law enforcement officials can obtain a warrant for a hard drive, but they may not be able to access the material on it. So can police compel someone to provide a password or to unlock an account or decrypt a file? Courts have in some cases ruled that individuals can refuse to provide a password under their Fifth Amendment right not to incriminate themselves....
Another nettlesome issue brought up in part by the ubiquity of cellphones and smartphones is the ability of police to track a person’s movements. While the Supreme Court ruled last year that police cannot affix a GPS tracking device to a car without a warrant, it decided U.S. v. Jones based on a question of trespassing, which doesn’t apply when police get location information from a suspect’s devices or service provider.
The courts are also split on this issue. In July alone, two courts made opposite rulings: The 5th Circuit Court of Appeals in Texas found that law enforcement may get cell location data from service providers without a warrant. In a New Jersey case, a very different result -- the state supreme court held that the state’s constitution requires a warrant.
Like all criminal procedure issues, these constitutional search question are sure to have eventual sentencing echoes. But, of course, hard-core sentencing issues are the ones that really get me excited, and I think there are plenty the Justices should be taking up to fill out their docket.
Some of the most obvious sentencing issues seemingly ready for SCOTUS review are follow-ups to its recent Eighth Amendment work in Graham and Miller. Lower courts are deeply split over the retroactivity of Miller and also concerning what kinds of crimes and sentences fit within the categorical ban of juve LWOP sentences for nonhomicide offenses announced in Graham.
In addition, plenty of federal sentencing issues in the post-Booker world are still roiling district and circuit courts. I personally would like to see the Justices throw some more dirt on the worst guidelines by taking up, and then reversing as unreasonable, a poorly-justified, within-guideline sentence based on guidelines widely recognized to be badly broken (e.g., the crack or CP or fraud guidelines). But I doubt many Justices are eager to spend their spring further fighting with Justice Breyer over the mysteries of his Booker remedy.
I could go on issue spotting here for the Justices, but I am really eager to hear from informed readers about the question in the title of this post. What issues do folks working day-to-day in the sentencing vineyards believe the Supreme Court should take up ASAP?
December 2, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack
Saturday, November 30, 2013
Years after Graham and Miller, Florida still working on its legislative response
As reported in this local article, Florida is continuing to struggle with how it wants to respond legislatively to the Supreme Court's determination that the state cannot be so quick to give so many juvenile offenders life without parole. Here are the details:
After a stinging defeat last year on the floor of the Senate, Rob Bradley, a Fleming Island Republican, has again filed legislation to align Florida’s juvenile-sentencing laws with recent United States Supreme Court rulings.
In 2010, the Supreme Court said it’s unconstitutional to sentence a juvenile to life in prison without the possibility of parole, though it allowed exceptions for juveniles convicted of murder. Ever since, lawmakers have failed to pass legislation changing Florida’s juvenile sentencing laws to comply with those opinions. There are 265 inmates in custody of the Department of Corrections that were given life sentences as juveniles.
Additionally, without a tweak to state law, courts across the state have been left to interpret the Supreme Court’s decisions differently. “We owe it to our courts to provide guidance,” Bradley said. “It’s the Legislature’s job.”
During the 2013 legislative session, Bradley, a private attorney, ushered a proposed legislative fix through three committee stops, but halted his own bill on the Senate floor after opponents tacked on an amendment he opposed. Bradley’s bill would have required a judge to consider factors like background and ability for rehabilitation during a mandatory hearing before sentencing a juvenile convicted of murder to life in prison.... Bradley’s bill also capped at 50 years the sentence a judge could give a juvenile who did not commit murder.
The amendment, offered by state Sen. Rene Garcia, R-Hialeah, would have allowed a parole hearing every 25 years for juveniles given life sentences for non-fatal crimes and for those who committed murder. “Why not give that judge the ability to review a case after 25 years?” Garcia asked during April floor debate.
This year, Bradley’s legislation offers parole hearings after 25 years for juveniles convicted of non-fatal crimes, and caps sentences for those offenders at 35 years. It does not offer hearings for juveniles convicted of homicide. “The bill I filed still does not offer hearings to murderers,” Bradley said.
Wednesday, November 27, 2013
"Reducing Incarceration for Youthful Offenders with a Developmental Approach to Sentencing"
The title of this post is the title of this notable new paper by Samantha Buckingham now available via SSRN. Here is the abstract:
Current sentencing practices have proven to be an ineffective method of rehabilitating criminal defendants. Such practices are unresponsive to developmental science breakthroughs, fail to promote rehabilitation, and drain society’s limited resources. These deficiencies are most acute when dealing with youthful offenders. Incarcerating youthful offenders, who are amenable to rehabilitative efforts, under current sentencing practices only serves to ensure such individuals will never become productive members of society.
Drawing on the author’s experiences as a public defender, studies in developmental psychology and neuroscience, and the Supreme Court’s recent line of cases that acknowledge youthful offenders’ biological differences from adult offenders, the author proposes a restorative-justice approach to replace current sentencing practices. This solution includes tailoring a youthful offender’s sentence to his or her developmental level and offering a community-based mediation between victims and offenders.
The proposal counteracts a major deficiency of current sentencing practices — the failure to offer youthful offenders an opportunity to truly understand their crimes. Only by providing an opportunity to learn from an offense will a youthful offender be in a position to rehabilitate. This Article responds to possible critiques of the proposal, including concerns about the ability to accurately measure the success of a restorative-justice sentencing model, the fear of implicating the offender’s Fifth Amendment right against self-incrimination, and the cost of implementing mediation-based efforts. Ultimately, this Article determines that a developmentally appropriate, community-based sentencing scheme — with restorative justice overtones — best addresses the unique situation youthful offenders find themselves in. A sentence for a youthful offender should — indeed, must — present meaningful opportunities for the youthful offender to rehabilitate, and age-appropriate sentences grounded in restorative-justice principles will do this effectively.
November 27, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack
Thursday, November 14, 2013
"Misconstruing Graham & Miller"
The title of this post is the title of this notable new piece by Cara Drinan now up at SSRN. Here is the abstract:
In the last three years the Supreme Court has decreed a sea change in its juvenile Eighth Amendment jurisprudence. In particular, in its Graham v. Florida and Miller v. Alabama rulings, the Court struck down a majority of the states’ juvenile sentencing laws, outlawing life without parole for juveniles who commit non-homicide offenses and mandating individualized sentencing for those children who commit even the most serious crimes. An examination of state laws and sentencing practices, however, suggests that the Graham and Miller rulings have fallen on deaf ears. After briefly describing what these two decisions required of the states, in this Essay, I outline the many ways in which state actors have failed to comply with the Court’s mandate. Finally, I map out a path for future compliance that relies heavily upon the strength and agility of the executive branch.
November 14, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Tuesday, November 12, 2013
Can and should brain science research become a regular (and regulated) part of sentencing decision-making?The question in the title of this post is prompted by this notable new NPR segment (misleadingly?) headlined "The Case Against Brain Scans As Evidence In Court." Here are excerpts from the piece:
It's not just people who go on trial these days. It's their brains.
More and more lawyers are arguing that some defendants deserve special consideration because they have brains that are immature or impaired, says Nita Farahany, a professor of law and philosophy at Duke University who has been studying the use of brain science in court.
About 5 percent of murder trials now involve some neuroscience, Farahany says. "There's a steady increase of defendants seeking to introduce neuroscience to try to reduce the extent to which they're responsible or the extent to which they're punished for a crime," she says.
Farahany was a featured speaker at the Society for Neuroscience meeting in San Diego this week. Also featured were several brain scientists who are uncomfortable with the way courts are using brain research....
The approach has been most successful with cases involving teenagers, Farahany says. "It seems like judges are particularly enamored with the adolescent brain science," she says. "Large pieces of their opinions are dedicated to citing the neuroscientific studies, talking about brain development, and using that as a justification for treating juveniles differently."...
So judges and juries are being swayed by studies showing that adolescent brains don't function the same way adult brains do. One study like that was presented at the neuroscience meeting by Kristina Caudle, a neuroscientist at Weill Cornell Medical College. The study, funded by the National Institutes of Health, used a technology called functional MRI to look at how the brains of people from 6 to 29 reacted to a threat.
"The typical response — and what you might think is a logical response — is to become less impulsive, to sort of withdraw, to not act when there is threat in the environment," Caudle says. "But what we saw was that adolescents uniquely seemed to be more likely to act. So their performance on this task became more impulsive." And Caudle found that in adolescents, an area of the brain involved in regulating emotional responses had to work much harder to prevent an impulsive response. This sort of study is great for understanding adolescent brain development in a general way, Caudle says.
"What it doesn't do is allow us to predict, for example, whether one particular teenager might be likely to be impulsive or to commit criminal behavior," she says. And Caudle worries that a study like hers could be used inappropriately in court. "Jurors tend to really take things like MRI scans as fact, and that gives me great pause," she says.
When it comes to nature versus nurture, brain scientists think both matter. A lot of the neuroscience presented in court is simply unnecessary, says Joshua Buckholtz, a psychologist at Harvard. "Anyone who's every had a teenager would be able to tell you that their decision-making capacities are not comparable to adults," he says.
And relying on brain science to defend juveniles could have unexpected consequences, Buckholtz says. For example, he says, if a prosecutor used an MRI scan to show that a 16-year-old who committed a capital crime had a very mature brain, "Would we then insist that we execute that juvenile?"
The task of integrating brain science into the judicial system will in large part be the responsibility of judges, Buckholtz says. And how it works will depend on how well judges understand "what a scientific study is and what it says and what it doesn't say and can't say," he says.
I do not see anything in this piece which suggests that brain scans amount to "junk science," and thus I do not fully understand why NPR thinks this segment reveals a "case against" against brain science as evidence in legal proceedings.
Of course, I fully understand concerns expressed by scientists about the potential misuse or misunderstanding of their nuanced brain scan research. But juries and judges are drawn to scientific research largely because the decision-making alternative is to rely more on gut feelings, emotions, instincts or biases. Unless brain scans provide a worse foundation for making judgments than gut feelings, emotions, instincts or biases, it seems to me they ought to have a role in legal decision-making.
As the question in the title of this post suggests, I think the really tough questions here are not whether brain science is worthy of consideration, but rather when and how brain science should be considered by judges and juries. Indeed, the Supreme Court's Eighth Amendment rulings in Roper and Graham and Miller have already given brain science research some constitutional import, and thus I hope both scientists and law professors will now turn their attention to debating how the legal system might most fairly and effectively operationalize what the brain research is telling us about the scientific realities of human behaviors and personal development.
November 12, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (16) | TrackBack
Thursday, November 07, 2013
State judge in Pennsylvania finds lifetime sex offender registration for juve offenders unconstitutional
As reported in this local article, "a York County judge has ruled unconstitutional a two-year-old Pennsylvania law that imposes lifetime registration requirements on juvenile sex offenders." Here is more:
Senior Judge John C. Uhler issued his ruling against the juvenile registration provisions of the Sexual Offender Registration and Notification Act while weighing the cases of seven county teens adjudicated as having committed serious sex crimes.
Uhler found that the registration mandate "unconstitutionally forecloses a court's considerations of the many unique attributes of youth and juvenile offenders" under age 18 and improperly treats them the same as adult sex offenders. SORNA, as the act is known, also doesn't take into account the greater capacity juvenile offenders have to reform, he noted.
The state law was passed by the Legislature in late 2011 to comply with a federal law, the Adam Walsh Act. The state faced a loss of federal funding if it didn't adopt a measure compatible with the Walsh Act.
Uhler's ruling is in reply to a challenge mounted on behalf of the seven York County youths by the county public defender's office, the Juvenile Law Center and the Defender Association of Philadelphia. The children involved were subject to registration after being found to have committed crimes including rape, involuntary deviate sexual intercourse and aggravated indecent assault. They were ages 14 to 17 when the offenses occurred.
In a statement issued Thursday, officials of the Juvenile Law Center and the defender association called Uhler's decision a "landmark ruling."
"It is our hope that this decision will result in similar findings across the commonwealth," said Riya Saha Shah, a staff attorney with the law center. "To impose this (registration) punishment on children is to set them up for failure."
County Chief Deputy Prosecutor Tim Barker said his office is reviewing Uhler's decision for a possible appeal to the state Supreme Court. A decision is expected next week, he said. "We're thoroughly going through everything," Barker said.
Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorney's Association, predicted an appeal is likely. Prosecutors are well aware of arguments for and against the juvenile sex offender registration requirement, he said. "I'm not surprised that the judge would rule this way," Freed said. "We'll see what happens in the appeals courts."
November 7, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack
Monday, October 14, 2013
Florida legislature told to "End confusion on juvenile sentencing"The title of this post is drawn from the headline of this effective recent editorial from the Tampa Bay Times, which makes these points about the post-Miller mess in Florida:
By reinstating the original sentence of life in prison without parole for Nicholas Lindsey on Friday, a Pinellas-Pasco Circuit Court judge entered muddy legal waters. Lindsey and other juveniles convicted of murder continue to be sentenced under a state statute that is now unconstitutional as applied to them. There is no clear road map for judges, because the Florida Legislature has failed to bring state law into conformance with a U.S. Supreme Court ruling. Lindsey's reconsidered sentence for shooting and killing a St. Petersburg police officer will likely be challenged, wasting resources and prolonging the pain for the victim's family. Had the Legislature acted responsibly, the courts would not be operating in the dark and creating law as they go.
State courts are puzzling through what to do with juveniles who were convicted of first-degree murder and sentenced under state law that provides for a death sentence or life in prison without the possibility of parole. Minors cannot be sentenced to death because of a 2005 U.S. Supreme Court ruling. Last year, the court ruled that a life sentence without parole cannot be mandatory for juvenile offenders — people who committed their crime before reaching 18 years old. The court said that in light of a young person's lack of maturity and capacity to change as he grows up, courts must be permitted to take these circumstances into account in sentencing. Florida law gives judges no discretion to impose a lesser sentence....
Other circuit court judges have ruled inconsistently. A judge in Hillsborough County recently resentenced Amer Ejak, now 20 years old, to life without parole for clubbing and strangling a man in 2009 — the same sentence Ejak originally received. But compare that to a teen murderer in Pasco County who was sentenced last month to life in prison with the possibility of parole after 25 years, even though state law makes no provision for it. An August ruling by the 5th District Court of Appeal in Daytona Beach said that the only legal sentence for juveniles guilty of capital murder is life with the possibility of parole after 25 years, but that decision is only controlling precedent for part of the state.
The Florida Legislature surely knew that by not rewriting state law to reflect the U.S. Supreme Court ruling and giving judges the opportunity to impose lesser sentences it would cause confusion and result in disparate treatment of juvenile offenders across the state. Lawmakers shifted their responsibility to the courts. The Florida Supreme Court will have to bring clarity to the law. In the meantime, trial courts faced with resentencing some of Florida's more than 200 inmates who were convicted and sentenced on murder charges should follow the U.S. Supreme Court's ruling as best they can.
October 14, 2013 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 (0) | TrackBack
Monday, September 30, 2013
Detailing Florida's continuing struggle to deal with Graham and MillerThis lengthy and interesting local article, headlined "Lawmakers committed to solving juvenile sentencing," highlights how legislators in the Sunshine State have been struggling to fix its sentencing laws in the wake of two Supreme Court rulings concerning limits on LWOP sentences for juvenile offenders. Here are excerpts:
With the courts threatening to intercede, Florida lawmakers say they are committed to finding a solution to sentencing juveniles under U.S. Supreme Court rulings that restrict the use of life sentences. The issue is likely to be a focal point of debate in next year’s legislative session and could affect two local cases.
But lawmakers have failed to find an agreement for the last three years, leaving Florida Supreme Court justices to suggest earlier this month that they could impose a parole system to review lengthy sentences for juveniles in light of the Legislature’s inaction....
Heading toward their 2014 session, lawmakers must address two groups of juvenile offenders. One group is juveniles convicted of non-homicide crimes — for which the U.S. Supreme Court banned life sentences in 2010. The other group is juveniles convicted of murder, who can be sentenced to life but their punishment must follow protocols outlined by the nation’s highest court in a 2012 ruling.
In the 2013 session, the sentencing legislation failed when [Sen. Rob Bradley, R-Fleming Island, a former state prosecutor] advanced a bill capping sentences at 50 years for non-homicide juvenile crimes and establishing a sentencing procedure for juvenile murderers, who would face a minimum 50-year sentence if they were not sentenced to life. But senators, who believed the bill was still too harsh, amended the bill in 20-19 vote, calling for a sentence review at 25 years for the juvenile offenders. In response, Bradley killed the legislation.
He and other lawmakers say they understand the frustration of the state’s highest court — where two cases are pending involving juveniles who received 70- and 90-year sentences for non-homicide crimes — but they said they hope to resolve the issue without putting the burden on the court....
Rep. Ray Pilon, R-Sarasota, who sponsored the House version of the sentencing bill, said he understood why the courts are not happy with the lack of legislative action. “They’re pushing us to do something,” Pilon said. “I think it was kind of travesty that we couldn’t come to a compromise last year. I’m certainly hopeful that we do this year. It’s our responsibility.”
There has been tension between the Legislature and the court in recent years, with some legislative leaders suggesting the justices have intruded into the legislative arena. But some lawmakers say the failure to act on the juvenile sentencing would leave the court little choice. “If we’re lawmakers we need to make the law,” said Rep. Dave Kerner, D-Lake Worth, a member of the House Criminal Justice Subcommittee, which would initiate the juvenile sentencing legislation. “We talk a lot about judges acting outside their authority. But it’s hard to blame them when we don’t write the laws.”...
Lawyers for an Orlando juvenile facing a 90-year sentence have suggested the state Supreme Court re-impose a parole system — which was abolished for non-capital crimes in 1983 and for all crimes in 1995 — to review lengthy juvenile sentences. In their questioning during oral arguments on the case, several justices talked about using the Parole Commission, which still exists to handle prisoners sentenced before parole was abolished.
But reviving the parole system would likely meet resistance from lawmakers. “Parole has become a dirty word in Florida,” said House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach. “I don’t know that there is enough momentum to sort of change that cultural shift that has occurred in our state.”
Nonetheless, lawmakers generally agree that they may have to come up with some review process for the non-homicide juveniles since the U.S. Supreme Court has said they must be given “some realistic opportunity to obtain release” before the end of their prison term. “We can call it whatever you want but we have to have that ability to go back and look,” Kerner said.
While acknowledging a review process for the non-homicide juveniles is necessary, Bradley said he would strongly resist any type of review for the juveniles convicted of murder. He said that would impose an emotional burden on the families of the crime victims, calling it unfair “to bring them back for a hearing and to go relive the crime over and over again.”
Under Bradley’s previous legislation, juveniles could be sentenced to a life sentences for murder if the judge weighed some 10 factors in the sentencing, including the offender’s level of maturity and the nature of the crime. The U.S. Supreme Court ruling has called for “individualized sentencing decisions” for juveniles based on the argument that they were different from adult offenders.
September 30, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, September 29, 2013
"Life Without Parole as a Conflicted Punishment"The title of this post is the title of this lengthy and notable new article available now via SSRN and authored by Craig Lerner. Here is the abstract:
Life without parole (LWOP) has displaced the death penalty as the distinctive American punishment. Although the sentence scarcely exists in Europe, roughly 40,000 inmates are serving LWOP in America today. Despite its prevalence, the sentence has received little academic scrutiny. This has begun to change, a development sparked by a pair of Supreme Court cases, Graham v. Florida (2010) and Miller v. Alabama (2012), which express European-styled reservations with America’s embrace of LWOP. Both opinions, like the nascent academic commentary, lament the irrevocability of the sentence and the expressive judgment purportedly conveyed -- that a human being is so incorrigible that the community brands him with the mark of Cain and banishes him forever from our midst. In the tamer language of the Graham opinion, LWOP “forswears altogether the rehabilitative ideal.”
This Article tests whether that phrase is a fair characterization of LWOP today, and concludes that the Graham Court’s treatment of LWOP captures only a partial truth. Life without parole, the Article argues, is a conflicted punishment. The community indulges its thirst for revenge when imposing the sentence, but over time softer impulses insinuate themselves. LWOP is in part intended as a punishment of incalculable cruelty, more horrible than a prison term of many years, and on par with or worse than death itself. In practice, however, LWOP also emerges as a softer punishment, accommodating a concern for the inmate’s humanity and a hope for his rehabilitation.
September 29, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Thursday, September 19, 2013
Linda Greenhouse reflects on changing crime culture changing SCOTUS jurisprudenceLinda Greenhouse's new commentary piece at the New York Times "Opinionator" blog is focused on crime and punishment issues. The lengthy piece, headlined "Winds of Change," is worth a full read and here are excerpts:
Back in 1991, the Supreme Court upheld a Michigan man’s prison sentence of life without the possibility of parole for possessing more than 1.5 pounds of cocaine. The sentence did not represent the third strike of a three-strikes law: the prisoner, Ronald A. Harmelin, 45, had no previous criminal record. The police found the drugs when they stopped him for running a red light. Since simple possession was enough to trigger Michigan’s mandatory life-without-parole sentence, the prosecution didn’t even have to bother trying to prove that Mr. Harmelin intended to sell the cocaine.
In upholding the sentence, the court rejected the argument that it was so disproportionate to the crime as to violate the Eighth Amendment’s prohibition on cruel and unusual punishment. The three justices who then occupied the middle of the court (yes, there was a multi-justice middle back then) — Anthony M. Kennedy, Sandra Day O’Connor and David H. Souter — voted with the 5-to-4 majority.
In “Five Chiefs,” the very interesting (and underappreciated) Supreme Court memoir he published in retirement, Justice John Paul Stevens reflected on the Harmelin decision, from which he dissented. Those three justices were all relatively new to the court at the time, he wrote. The justices they had replaced — Lewis F. Powell Jr., Potter Stewart and William J. Brennan Jr. — were all long-serving veterans who Justice Stevens speculated would have voted to invalidate the sentence. It may be, he added, that “the views of individual justices become more civilized after 20 years of service on the court.”
That was an intriguing thought, and when I had a chance last year to interview Justice Stevens, I asked him to say more. He said he still thought about the case “a lot.” He was “quite sure” that Justice Kennedy would come to the opposite conclusion today, and that the other two probably would as well if they were still on the court. Nonetheless, he added, “the precedent is still there, and it’s really a very unfortunate case.”
I’ve been thinking a lot myself about the Harmelin decision in light of recent events. First there was the announcement last month by Attorney General Eric H. Holder Jr. that the Justice Department was revising its prosecution strategy in order to avoid the impact of mandatory minimum sentences for low-level drug offenses. That was followed by the announcement that the federal government wouldn’t sue to block state laws that have legalized marijuana for medical or recreational use. Either policy shift would have been greeted with amazement not too many years ago, but neither provoked anything approaching a fuss....
Something is clearly in the wind. I’ve also been thinking about the New York City mayoral primary. It’s impossible to read the election outcome as other than, at least in part, a public repudiation of the Bloomberg administration’s law-enforcement policies, particularly the administration’s embrace of stop-and-frisk. Mayor Michael R. Bloomberg not only denounced Federal District Judge Shira A. Scheindlin’s ruling last month that stop-and-frisk as the police were using it was unconstitutional, but he also attacked the judge herself as an “ideologically driven” judicial activist.
Unlike the days when politicians could score easy points by attacking courts as soft on crime, however, the mayor got no traction. Bill de Blasio, the Democratic primary winner, ran as the non-Bloomberg, making opposition to stop-and-frisk a centerpiece of his campaign. An exit poll indicated that black New Yorkers and white New Yorkers were equally supportive of Mr. de Blasio, who also received nearly identical support across the income spectrum — a fascinating development. People so often separated by race and class, seemed to unite around the conclusion that enough was enough.
The question is what this shift in public attitudes might mean for the courts, the Supreme Court in particular. The Supreme Court operates inside the mainstream culture — which is, after all, where the justices live — influenced not by the “weather of the day” but by the “climate of the age,” as Justice Ruth Bader Ginsburg likes to say, quoting the great constitutional scholar Paul Freund....
In his reflection on the Harmelin decision, Justice Stevens offered the tantalizing idea that longevity on the bench makes justices “more civilized.” Can that prediction apply not only to individual members of the court, but also to the court as a whole? As the Roberts court begins year nine, that may be a distant hope, but one worth clinging to.
The recent SCOTUS Eighth Amendment rulings in Graham and Miller reflect, in my view, the impact of these "winds of change." But it remains to see whether and when these winds will blow hard enough to knock over the problematic precedent set by the Harmelin decision 22 years ago.
September 19, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack
Wednesday, September 18, 2013
Florida Supreme Court considers important issues concerning Graham's meaning and reachAs reported in this local piece, headlined "Supreme Court hears juvenile sentencing arguments," the top court in Florida heard oral argument on a very important issues concerning the reach of the Supreme Court's recent Eighth Amendment jurisprudence concerning juvenile sentencing. Here are the details:
In the wake of a 2010 U.S. Supreme Court ruling that upended sentencing guidelines for juveniles, the Florida Supreme Court on Tuesday heard oral arguments in a case involving Shimeeka Gridine, who was sentenced to 70 years in prison for crimes committed when he was 14 years old.
The case is one of several that have surfaced in Florida courts since the U.S. Supreme Court ruled that life sentences without parole for juveniles in non-homicide cases violate the Eighth Amendment, which bans cruel and unusual punishment.
Gridine, now 18, pleaded guilty to attempted first-degree murder, attempted armed robbery and aggravated battery after he shot a man in 2009 while trying to rob a Jacksonville gas station. He was sentenced to 70 years for the attempted murder and 25 years for the armed robbery, with the sentences to run concurrently.
Assistant Public Defender Gail Anderson argued Tuesday that amounts to a life sentence. A mandatory minimum sentencing requirement makes Gridine ineligible for gain time for good behavior on the 25-year sentence. And under Florida’s “truth-in-sentencing” law requiring offenders to serve at least 85 percent of their prison sentences, he must then serve at least 85 percent of the remaining 45 years of the 70-year sentence. “Assuming he got all the gain time he was eligible for on the remainder of the sentence, he would be 77 years old before he was released,” Anderson said. “And I think that, under any reasonable construction, is a life sentence.”...
But Assistant Attorney General Kellie Nielan said the Graham ruling provided no time limits. “(The) Graham (decision) has said that someone needs review sometime within their life,” she told the court. “They need an opportunity for release within their life. It doesn’t say when.”
“Aren’t we condemning him from the outset?” asked Justice James E.C. Perry. “I thought he had to have a meaningful review at the outset.”
“No, Graham does not require that,” Nielan replied. “And Graham only applies to the life sentences — or, if you want to extend that to de facto life sentences, which are going to be sentences of at least 50 years. So a juvenile who is sentenced to 40 years is not entitled to any review.”
Justice Charles Canady said that was hypothetical. “We’ve got cases here where it seems like by just about any reasonable understanding of what a life sentence is, this case falls into the equivalent of a life sentence,” he said.
In Gridine’s 2009 trial, Judge Adrian G. Soud of the 4th Judicial Circuit in Duval County ruled that the teen was not protected by the Graham decision “because he had a clear and premeditated intent to kill. … Just because this juvenile defendant failed in his criminal and deadly endeavor does not preclude this court from sentencing the defendant commensurate with the defendant’s intent — the same intent possessed by a juvenile murderer.”
After the hearing, Anderson said she was hoping the justices would find unconstitutional the 85-percent law that abolished parole as it applies to Gridine and make him eligible for parole after 25 years. She said another possibility is that the high court could order that Gridine be resentenced. “That’s what the district courts have been doing — just ordering a resentencing,” she said. “But that just leaves everybody in the same limbo they’ve been in up to now.”
Since the Graham decision, the Florida Legislature has taken up bills that would have allowed life sentences for juveniles with the possibility of release after 20 years if they show signs of rehabilitation. So far, however, none has passed.
This report suggests that the Florida Supreme Court could find two ways to avoid declaring the long juvenile sentence here unconstitutional, but it also suggests that at least some of the Florida Justices may not be so eager to do so.
Monday, September 16, 2013
New York Times editorial says "End Mandatory Life Sentences"The title of this post is drawn from the headline of this new New York Times editorial, which is actually focused mostly on giving Miller v. Alabama retroactive application. Here are excerpts:
Young people are different. The Supreme Court has delivered that message repeatedly over the last decade in limiting or flatly prohibiting the most severe criminal punishments for those under 18 at the time of their crime.
In 2005, the court banned the death penalty for juveniles. In 2010, it outlawed sentences of life without parole for juveniles convicted of crimes other than homicide. And, in a 2012 case, Miller v. Alabama, it said juveniles may never receive a mandatory sentence of life without parole, which prisoners refer to as “the other death penalty.”...
In each case, the court was silent on the question of whether its ruling applied retroactively to inmates who had already been convicted. The just answer would surely be yes, and courts have largely agreed, making those first two juvenile justice rulings retroactive. But some states insist that the ban on mandatory life without parole does not apply to offenders who have already been sentenced.
In the Miller case, the court required lower courts to make “individualized sentencing decisions” for juvenile defendants because juveniles are not as morally culpable as adults, and they are more capable of changing over time. If the ban on mandatory life without parole is retroactive, more than 2,000 prisoners would be eligible for a new sentencing hearing. So far, whether these individuals can get a new hearing depends on where they live.
Courts in Michigan, Iowa and Mississippi have ruled that the ban applies to previously sentenced juveniles. The Department of Justice takes that position as well. Yet the Minnesota Supreme Court and one federal appeals court have taken the opposite view....
Critics fear that allowing resentencing would increase violent crime. But courts may still impose life without parole, provided that the judge first gives proper consideration to the mitigating effects of youth. The Alabama Supreme Court set out guidelines last week that require a court to consider 14 factors, including a defendant’s age, emotional maturity, family environment and potential for rehabilitation before issuing such a sentence.
Ideally, life without parole would never be a sentencing option for juveniles. The Supreme Court’s own logic suggests this, even if it was not willing to go that far. After the Miller case, three states entirely eliminated juvenile life without parole, joining six other states that had already banned the sentence, and lawsuits on the retroactivity issue are pending in several states. As lawmakers and courts deal with this issue, they should remember — as the Supreme Court has declared — that adolescents are not adults, and that principle should apply regardless of the date of a conviction.
Monday, September 02, 2013
"Against Juvenile Sex Offender Registration"The title of this post is the title of this notable new paper by Catherine Carpenter now available via SSRN. Here is the abstract:
Imagine if you were held accountable the rest of your life for something you did as a child?
This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration. And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives.
No matter the constitutionality of adult sex offender registration — and on that point, there is debate — this article argues that child sex offender registration violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses. Low recidivism rates and varied reasons for their misconduct demonstrate that a child’s criminal sexual act does not necessarily portend future predatory behavior. And with a net cast so wide it ensnares equally the child who rapes and the child who engages in sex with an underage partner, juvenile sex offender registration schemes are not moored to their civil regulatory intent.
Compounding the problem is mandatory lifetime registration for child offenders. This paper analogizes this practice to juvenile sentences of life imprisonment without the possibility of parole, which the Supreme Court declared unconstitutional in Miller v. Alabama and Graham v. Florida. This article argues that mandatory lifetime registration applied to children in the same manner as adult offenders is cruel and unusual punishment because it violates fundamental principles that require sentencing practices to distinguish between adult and child offenders.
Scrutiny of child sex offender registration laws places front and center the issue of what it means to judge our children. And on that issue, we are failing. The public’s desire to punish children appears fixed despite our understanding that child offenders pose little danger of recidivism, possess diminished culpability, and have the capacity for rehabilitation. In a debate clouded by emotion, it is increasingly clear that juvenile sex offender registration is cruel and unusual punishment.
September 2, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack