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 (3) | 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
Friday, August 16, 2013
Iowa Supreme Court rules in favor of juve defendants in three post-Graham appealsAs reported in this local article, headlined "Hundreds of juveniles could appeal felony sentences under Iowa court rulings," the Iowa Supreme COurt handed down three notable opinions today that operationalize the US Supreme Court's opinion in Graham concerning LWOP sentences for juve non-homicide offendes. Here are the basics:
Hundreds of juveniles convicted of felonies could apply to have their sentences reviewed under three decisions handed down Friday by the Iowa Supreme Court.
Iowa's high court upheld a lower court's decision to reduce the sentence of Jeffrey Ragland, now 44, to life in prison with a possibility of parole after 25 years. Ragland, when he was 17 was convicted of first-degree murder, which carries a mandatory sentence of life in prison without parole, even though he did not swing the tire iron that killed a man.
The Iowa court also ordered two other juvenile cases for resentencing that did not involve mandatory life sentences without parole: Denem Anthony Null, now 20, is serving a minimum sentence of more than 52 years for a 2010 murder and robbery. He was 16 at the time of his crimes. Desirae Monique Pearson, now 19, is serving a minimum of 35 years for robbery and burglary committed in 2010....
In today's rulings, the court said Gov. Terry Branstad overreached last year when he sought to keep 38 juveniles in prison who were convicted to life in prison without a chance of parole. The governor imposed life sentences with a chance of parole after 60 years after the U.S. Supreme Court ruled a teenager convicted of murder must be sentenced differently than adults.
Friday's decisions produced sharp divisions on the high court. Justice Edward Mansifeld, in his dissent in Pearson's case, cautioned the high court's broad interpretation of the U.S. Supreme Court ruling regarding juvenile sentencing could produce a "flurry" of court hearings. He said the 425 juvenile inmates serving time in Iowa prisons “may now have a ticket to court and a potential resentencing.”
"This would be unprecedented," said Mansfield, noting other state courts have chosen to reconsider sentences that locked up juveniles for life without parole.
The impact of the court’s decision remains to be seen. Dozens, or even hundreds of cases, spread across Iowa should not strain the court system, said Robert Rigg, a Drake University law professor. The fact that juveniles convicted of serious felonies can ask for new sentences only opens the door to a hearing, and does not guarantee anything beyond that, Rigg said. The high court has required a judge consider a variety of factors during sentencing, such as a youth's history, socioeconomic background, history of substance abuse and psychiatric evaluations, he said.
All this information is already gathered. But under mandatory sentencing laws, a judge is not allowed to consider these factors, Rigg said. "When we have mandatory minimums, you order these investigations but can't use them in sentencing," Rigg said.
Gov. Terry Branstad intends to work with the legislature to establish criminal sentences that keeps convicted juveniles in prison, said Tim Albrecht, the governor’s spokesman. The high court’s decision does not affect the governor’s authority to grant clemency, which includes commutation of life sentences, he said. “Victims must never be re-victimized and can never be forgotten from the process,” Albrecht said. “The governor and lieutenant governor look forward to working with the Iowa Legislature to find a way to keep dangerous juvenile murderers off the streets and keep Iowans safe.”
Lawmakers could find it difficult to change the state's juvenile sentencing laws if they disagree with the court's rulings, because justices used the Iowa constitution to make its case. Those who disagreed with the court's 2009 decision that legalized same sex marriage ran into similar roadblocks, said Rigg, the Drake professor, who noted this approach also means the decision can't be appealed to the U.S. Supreme Court.
State law until last year required anyone sentenced for first-degree murder, regardless of age, to spend life in prison without parole. Other mandatory sentences also existed for serious felonies. In June 2012, though, U.S. Supreme Court in Miller v. Alabama found such sentences to be cruel and unusual based on brain research showing that juveniles are less culpable for their crimes due to differences in brain development and impulse control.
Branstad's immediate response to that federal ruling was a blanket commutation order that allowed parole for teen murderers only after they had spent 60 years behind bars. That move was widely criticized by lawyers and advocates for the 38 people serving time for such murders. Several of the offenders are appealing saying that 60 years still constitutes a long period of time behind bars....
After the U.S. Supreme Court, Ragland's attorney sought parole for his client. The district court ruled that Branstad exceeded his authority and resentenced Ragland to life in prison with the possibility of parole after 25 years.
The Iowa Supreme Court, in Friday's unanimous decision, upheld the lower court's ruling. The court agreed with the district court's findings that the governor's commutation still amounted to a life sentence without parole. Ragland would be 78 before he could possibly be released and near the end of his statistical life expectancy....
The court continued in its opinion: “In light of our increased understanding of the decision making of youths, the sentencing process must be tailored to account in a meaningful way for the attributes of juveniles that are distinct from adult conduct. At the core of all of this also lies the profound sense of what a person loses by beginning to serve a lifetime of incarceration as a youth.”
In a concurring opinion, Justice David Wiggins wrote that Branstad’s imposition of a sentence “might constitute a denial of due process.” In his concurring opinion Justice Bruce Zager wrote that he believed Branstad exceeded his constitutional authority when Branstad removed Ragland’s ability to earn good time credit against the commuted sentence.
Jon Kinnamon, Ragland’s attorney, said the court’s decision will open the door for his client to seek parole. He doesn’t know when Ragland’s case could be reviewed by the board, he said. He said he planned to contact Ragland and his family yet today. “I would presume that the next step would be that he would be in front of the parole board,” he said.
All three of the Iowa Supreme Court opinions are available via this webpage, and the Ragland opinion reference above is at this link. The longest opinion of the three is in Iowa v. Null, and its 83 pages can be found at this link.
August 16, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Tuesday, July 16, 2013
When are very long juvenile sentences really LWOP sentences under the Eighth Amendment?The question in the title of this post, which has been lurking in lower courts for years since the Supreme Court's landmark Graham ruling in 2010, is now before the Florida Supreme Court in a set of cases. This recent South Florida Sun Sentinel article, headlined "Lengthy prison sentences for juveniles under scrutiny," discusses the issue effectively. (Hat tip: How Appealing.) Here are excerpts:
The 2007 gang rape of a mother and torture of her son by as many as 10 masked assailants at a West Palm Beach public housing complex resulted in four convictions two years later. But the horrific Dunbar Village case still continues through the Florida court system, as justices reconsider the rules on the sentencing of juveniles for serious crimes.
Jakaris Taylor, initially given a life term, and later 60 years in prison, for the attack committed when he was 15, now has a chance of winning his freedom well before a target release at age 66 through gain time. The 4th District Court of Appeal, while affirming Taylor's conviction and sentence, this month asked the Florida Supreme Court to decide the constitutionality of such lengthy sentences for teenage defendants on non-murder raps.
But it turns out the state's highest court already plans to explore similar issues in the case of a Jacksonville man sentenced to 70 years for committing attempted murder when he was 14. The Supreme Court has scheduled Sept. 17 oral arguments in the case of Shimeeka Daquiel Gridine v. Florida.
The outcome ultimately could shorten the prison terms for numerous young felons from across the state, including Taylor, said Gerard F. Glynn, who formerly led Barry University's Juvenile Justice Center. "The U.S. Supreme Court made it clear that sentencing of children is different, and long sentences that are equivalent to life require constitutional scrutiny," said Glynn, an Orlando-based attorney who has long advocated for juvenile sentence reforms. "At some point, a multiple-year sentence is a life sentence."...
The Graham ruling led to reduced sentences for dozens of Florida inmates convicted of violent crimes, including rape, kidnapping and armed robbery. But the U.S. Supreme Court did not specify an appropriate length of time for such sentences, apparently prompting the state appellate court questions in the Gridine and Taylor cases, among others.
In 2011, a Palm Beach County Circuit Court judge reduced life terms to 60-year terms for Nathan Walker Jr. and Taylor, who were 16 and 15 when they participated in the brutal Dunbar attack of the 35-year-old woman and her 12-year-old son. A jury had convicted them of multiple charges, including kidnapping and sexual battery.
Walker's appeal is pending. But in its Taylor opinion, the 4th District Court of Appeal questioned whether the Graham ruling applies "to lengthy term-of-years sentences that amount to de facto life sentences."
"If so, at what point does a term-of-years sentence become a de facto life sentence?" the appellate court asked.
Bernard Fernandez, the attorney who fought Taylor's appeal, says the 60-year sentence for his client is unconstitutional under Graham because it has all the force of a life sentence. Parole is not available in Florida's criminal justice system. "Isn't it tantamount to a life spent in prison?" Fernandez asked.
Moreover, Fernandez argues that Taylor, who is now 21, "cannot be expected to survive until his possible release at age 66, much less age 75." In an appellate court brief, Fernandez cited a 2010 report from the Centers for Disease Control concerning life expectancy for black males. The report found that in 2006, then 14-year-olds like Taylor would live only another 50 years. This clearly violates the Supreme Court's intention for juvenile defendants to gain release from prison based on "demonstrated maturity and rehabilitation," Fernandez argued.
But Assistant Attorney General Celia A. Terenzio, in a response, wrote Taylor's 60-year sentence didn't violate the Supreme Court decision simply because it's not a life term. The state also contends Taylor would be released "well before his life expectancy age of 71 years."
State prosecutors, in asking for the sentence to be upheld, also argued Taylor was a willing perpetrator who stuck around during the entire nearly three-hour attack. "Whatever mitigating factors must be considered regarding the shortcomings of adolescence and how those should impact a juvenile's culpability, the facts of this case do not support any finding that such mitigation was at play in Appellant's participation in these thirteen horrific and sadistic crimes," Terenzio wrote.
Saturday, July 13, 2013
"Constitutionally Tailoring Punishment"The title of this post is the title of this great-looking new article by Richard A. Bierschbach and Stephanos Bibas. Here is the abstract:
Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on retail, individualized input and reflect the views and perspectives of multiple institutional actors.
This new understanding illuminates how both doctrines relate to the Court’s earlier regulation of capital sentencing and how checks and balances can promote just punishment in a pluralistic system. It also underscores the need for other actors to complete the Court’s work outside the confines of rights-based judicial doctrines, by experimenting with a broader range of reforms that are not constitutionally required but rather are constitutionally inspired.
July 13, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Blakely Commentary and News, Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Monday, July 01, 2013
A year after Miller confirmed kids are different, how may kids have different sentences?The question in the title of this post is inspired in part by this public letter posted last week from the director of The Campaign for the Fair Sentencing of Youth. Here are excerpts from the letter (with one key link preserved):
The item linked in the above-quoted discussion is this fascinating three-page document headlined "State Legislative Roundup One Year after Miller v. Alabama." That document notes, inter alia, that since "the Miller decision last June, three states passed legislation that removed JLWOP as a sentencing option for youth."
[The last week of June 2013] marks the one-year anniversary of the U.S. Supreme Court's landmark ruling in Miller v. Alabama, which struck down mandatory life-without-parole sentences for children. Since then, strides have been made to move our justice system toward one that recognizes the fundamental differences between children and adults, and that provides all youth with a chance to demonstrate their unique capacity for growth and change. Advocates across the country have ushered in better outcomes for youth convicted of serious crimes, and have successfully laid the groundwork for future legislative reforms. But much work remains. Today we want to share with you some of the highlights and challenges faced by our movement in the year since the Court handed down its decision in Miller.
The Miller decision advanced the fundamental notion that "kids are different" in youth justice reform across the country. We saw an advocacy community leverage Miller to spark meaningful debate in state legislatures across the country, furthering the education of policymakers about why children should not receive adult sentences. Bills were introduced in more than 15 states, which we describe in more detail in our Miller legislative roundup. We saw a growing and engaged coalition of local and national organizations — including the Boy Scouts of America, the American Correctional Association, the National PTA, and the American Psychological Association — come together to voice their support for fair, age-appropriate alternatives to death-in-prison sentences for children. And due to the tireless work of legal advocates, people declared irredeemable as youth in Illinois, Delaware, and Indiana were given second chances.
We are also mindful of the immense challenges that lie ahead. In the coming year, we expect to confront legislative proposals in a handful of states that undermine the letter and spirit of the Miller decision. We expect courts-which to this point have handed down varied interpretations on the reach and scope of the decision-to weigh in on whether Miller applies to the more than 2,000 individuals currently serving mandatory life-without-parole sentences. And we anticipate difficulties in advancing our reform message in a legislative and criminal justice climate that for years has been dominated by racially-charged rhetoric and shortsighted "tough-on-crime" policies.
As the question in the title of this post suggests, unmentioned in all the terrific materials assembled by The Campaign for the Fair Sentencing of Youth (from which I got the inforgraphic posted here) is any accounting one-year after Miller of what is happening specifically to the "more than 2,000 individuals currently serving mandatory life-without-parole sentences" for crimes committed while juveniles. I hope this public policy group and/or others are working toward a full (or even partial) accounting of just how many of these juvenile criminals serving LWOP are succeeding in now securing different sentences as a result of Miller and its aftermath.
I know it is likely very challenging (and very costly) to review and monitor all those defendants whose sentences were called in to question by the Miller ruling. But a number of organizations, government agencies, and even public websites and have shown an affinity for, and an ability to, keep a close watch on many thousands of death sentences and all the murder defendants who go on and off state death rows. If even a small portion of the attention now given to capital cases could be redirected to track juve LWOP cases, we could and would over time all be able to garner a much keener sense of the real impact and import of the Miller ruling.
July 1, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Tuesday, June 18, 2013
"Efforts to Fix a Broken System: Brown v. Plata and the Prison Overcrowding Epidemic"The title of this post is the title of this Note available via SSRN and authored by Lauren Salins and Shepard Simpson. Here is the abstract:
Excessive incarceration is a national problem. Across the country, prisons face dangerous levels of overcrowding, which has led to unconstitutional conditions of confinement and the inability of states to effectively rehabilitate their inmates. Ardent public support of “tough on crime” policies inhibits state legislatures from enacting successful reforms. In turn, states spend large percentages of their budget to sustain failing and ineffective corrections systems. By some estimates, states could save hundreds of millions of dollars annually if they reduced prison populations through proactive reforms, such as early release programs and diversionary tactics. In light of these factors, a consideration of the U.S. Supreme Court’s decision in Brown v. Plata to uphold an unprecedented prisoner release order is both timely and necessary as the case approaches its two-year benchmark.
This Note argues that the Court’s holding in Brown did not overstep the judicial boundaries imposed by the Prisoner Litigation Reform Act (PLRA), but rather was a step in the right direction toward acknowledging and remedying constitutional violations occurring in California’s severely overcrowded prison system. Moreover, the Court’s analysis of PLRA will help courts navigate the statute’s procedural requirements.
While California has made progress toward complying with Brown’s prisoner release order, this seminal case sheds light on the need for proactive reform in prison systems nationwide to prevent unconstitutionally high levels of overcrowding in the first place. As states are confronted with this new “release or reform” reality, this Note will facilitate the much-needed discussion surrounding long-term solutions to the overcrowding epidemic in U.S. prisons.
UPDATE: This recent article from the Los Angeles Times, headlined "California's prison crowding is growing, state report says," provides a useful reminder that all discussions of prison overcrowding problems remain very timely.
Wednesday, June 05, 2013
In lengthy split opinion, Minnesota Supreme Court concludes Miller should not apply retroactivelyWith thanks to the reader who made sure I did not miss the ruling from late last week, I can report on another state Supreme Court deciding whether to give the Miller's decision prohibition on the mandatory LWOP sentencing of juvenile murderers retroactive effect. Specifically, in a lengthy split opinion in Chambers v. Minnesota, No. A11-1954 (Minn. May 31, 2013) (available here), a majority of the Minnesota Supreme Court decided that "the rule announced in Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), is a new rule of criminal constitutional procedure that is neither substantive nor a watershed rule implicating the fundamental fairness and accuracy of the criminal proceeding."
A little concurrence by one of the state Justices expressed hope that "perhaps a clearer explanation of retroactivity doctrine by the United States Supreme Court" might come down in the future.
And the lead dissent gets off to a scientific start via this notable quote by Danish physicist Niels Bohr: "Prediction is very difficult, especially about the future."
Tuesday, May 28, 2013
"Not Just Kid Stuff? Extending Graham and Miller to Adults"The title of this post is the title of this notable new article by Michael O'Hear available now via SSRN. Here is the abstract:
The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking.
This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.
Sunday, May 26, 2013
"Not -So -Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines"
The title of this post is the title of this notable new Note by Andrew Tunnard just published in the Vanderbilt Law Review. Here are excerpts from this Note's introduction explaining its themes and scope:
[T]hree circuits [the Third, Seventh and Ninth have all] reasoned that adult convictions stemming from crimes committed before the age of eighteen can count toward the career offender sentencing provisions of the Guidelines (“Career Offender Guidelines”), regardless of whether the prior sentence was served in a juvenile facility. The Fourth and Eleventh Circuits stand in opposition; they apply the Career Offender Guidelines by inquiring into the nature of the sentence served. If a prior conviction resulted in a sentence served in a juvenile facility, this conviction cannot be counted toward a career offender determination.....
This Note looks beyond the circuit split to the larger juvenile justice issues implicated by these sentencing practices. Part II provides a brief overview of the juvenile justice system, juvenile transfer statutes, and the Guidelines. Part III explores the interpretive issues that have led to this circuit split. Part IV explains why resolving this circuit split requires more than choosing one side, and expands the discussion by analyzing the impact of recent judicial and scientific trends on the treatment of juvenile offenders in the adult system. Part V proposes that convictions occurring before the age of eighteen should not be factored into a career offender enhancement, regardless of the nature of the conviction or sentence. Ultimately, this solution creates a judicially manageable rule supported by Supreme Court precedent, state law, and the overall rehabilitative goals of the juvenile justice system.
May 26, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack
Thursday, May 23, 2013
NACDL rolls out state-by-state "excessive sentencing" proportionality litigation resource
I am extraordinarily proud and excited to report that, as detailed via a new NACDL news release, that the National Association of Criminal Defense Lawyers is now offering, "as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."
This resource has been given the name Excessive Sentencing: NACDL’s Proportionality Litigation Project its main page can be accessed via this link. Here is a bit more from the NACDL press release about the resource (and also my role therein):
Development of this new resource was inspired in part by the Supreme Court’s recent landmark constitutional decisions in Graham v. Florida, 130 S. Ct. 2011 (May 17, 2010), and Miller v. Alabama, 132 S. Ct. 245 (June 25, 2012), which pronounced new Eighth Amendment limits on when and how states can impose life without parole prison terms on juvenile offenders. The state profiles and related materials provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. They are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.
The primary academic supervisor of this resource is Professor Douglas A. Berman of The Ohio State University Moritz College of Law.... Professor Berman intends to update these materials regularly as developments in the law warrant and new information becomes available.
On the project’s landing page –- which can be accessed here -- there is a free, nearly 90-minute sentencing skills webinar featuring Professor Berman and Stephen Hardwick, an assistant public defender in Columbus, Ohio....
In addition, the project landing page has this additional account of what this resource now provides and hopes to help achieve:
The state profiles and related materials, which were prepared by recent law school graduates under the supervision of Professor Douglas A. Berman, provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. Unsurprisingly in the wake of Graham and Miller, there has been a significant increase in state-level litigation concerning lengthy prison terms, especially for juvenile offenders. The expectation is to have Professor Berman, in conjunction with the pro bono efforts other lawyers and aided especially by NACDL members and others who utilize this resource, revise and update these profiles regularly.
The profiles and charts are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms. The Supreme Court has repeatedly stressed that the Eighth Amendment’s “scope is not static [but] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958); state-level doctrinal and jurisprudential developments have thus always had heightened federal constitutional significance in this area of law. Moreover, state policy-makers and state jurists have long understood that the Eighth Amendment sets only a minimum constitutional floor limiting only the most extreme punishment policies and practices: state lawmakers and judges can and should feel not merely free, but institutionally obliged, to consider developing their own distinct legal limits on unduly harsh sentencing terms based on distinct state-level requirements and needs. The profiles posted here demonstrate that, even though there is some notable convergence in state-level proportionality doctrines, there are also some important variations and innovations concerning how states seek to protect its citizens from extreme or excessive criminal punishments.
I plan to discuss this web resource and the broader NACDL projectin a series of posts over the next few weeks and months. For now, I just hope everyone will take a look at what we have posted (and perhaps begin commenting on what other materials might be usefully assembled and linked in this space).
May 23, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack
Monday, April 29, 2013
"Is 100 Years a Life Sentence? Opinions Are Divided"The title of this post is the headline of this notable new Sidebar column in the New York Times by Adam Liptak. Hard-core sentencing fans should realize from the title that this is a story about one of the many doctrinal questions gurgling in lower courts three years after a landmark Eighth Amendment SCOTUS ruling. Here are excerpts from the column:
If people who are too young to vote commit crimes short of murder, the Supreme Court said in 2010, they should not be sentenced to die in prison. That sounds straightforward enough. But there are two ways to understand the decision, Graham v. Florida.
One is formal. The court may have meant only to bar sentences labeled “life without parole.” On that understanding, judges remained free to impose very long sentences — 100 years, say — as long as they were for a fixed term rather than for life....
The other way to understand the decision is practical. If the Eighth Amendment’s prohibition of cruel and unusual punishment requires that young offenders be left with a glimmer of hope that they may someday be released, it should not matter whether they were sentenced to life in so many words or as a matter of rudimentary actuarial math.
The lower courts are split on how to interpret the Graham decision, and the Supreme Court seems to be in no hurry to answer the question. Last week, the justices turned away an appeal from Chaz Bunch of Ohio, who was convicted of kidnapping and raping a woman in a carjacking when he was 16. He was sentenced to 89 years. Even assuming he becomes eligible for early release, he will be 95 years old before he can leave prison.
The United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the sentence, even as it acknowledged that there were two ways to approach the matter.... Until the Supreme Court speaks, Judge Rogers wrote, there is no “clearly established federal law” to assist Mr. Bunch, who was challenging his state conviction in federal court.
Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.” An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.
“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court.
Mr. Henry is black and was born in 1989. The life expectancy of black males born that year was 64, according to the Centers for Disease Control and Prevention. Life expectancy in prison is shorter than it is outside. Wherever the line is, then, a 76-year sentence would seem to be past it. “Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria?” Judge Griffin asked.
That is a reasonable question. But Bryan Stevenson, the executive director of the Equal Justice Initiative in Montgomery, Ala., said it was the wrong one. “The idea isn’t to get the person as close to death as possible before you deal with the possibility of their release,” he said. It is, rather, to give juvenile offenders a sporting chance, perhaps after decades in prison, to make the case that they deserve to get out, he said....
The number of juvenile offenders serving de facto life terms because of very long sentences is probably in the hundreds. Some of the appeals court judges who have upheld such sentences did not sound enthusiastic about the task. “Without any tools to work with, however, we can only apply Graham as it is written,” Judge Griffin wrote. “If the Supreme Court has more in mind, it will have to say what that is.”
April 29, 2013 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Thursday, April 25, 2013
Arkansas Supreme Court explains what Miller ruling means now for Kuntrell JacksonAs reported in this AP piece, in a ruling today the Arkansas Supreme Court "ordered a new sentencing hearing for Kuntrell Jackson, whose case was one of two that led to a U.S. Supreme Court decision last year throwing out mandatory life sentences without parole for juveniles." The nine-page ruling in Jackson v. Norris, 2013 Ark. 175 (April 25, 2013) (available here), is an interesting read for a number of reasons.
First, this latest round of habeas litigation for Kuntrell Jackson does not deal at all with any possible dispute over whether the Supreme Court's Miller ruling is to be given retroactive effect. This may because it appears the prosecution did not contest Jackson's request to be resentencing in light of Miller, as evidence by this sentence from the opinion: "We agree with the State’s concession that Jackson is entitled to the benefit of the United State’s Supreme Court’s opinion in his own case. See Yates v. Aiken, 484 U.S. 211, 218 (1988)."
Second, after parroting most of the key language from the SCOTUS Miller ruling, the Arkansas Supreme Court has an interesting discussion of how to revamp the sentencing provisions applicable to Kuntrell Jackson's conviction in the wake of Miller. Here is how that discussion finishes:
We thus instruct the Mississippi County Circuit Court to hold a sentencing hearing where Jackson may present Miller evidence for consideration. We further instruct that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony. For a Class Y felony, the sentence is not a mandatory sentence of life imprisonment without parole, but instead a discretionary sentencing range of not less than ten years and not more than forty years, or life. Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997).
Finally, we are mindful that Jackson argues that as a matter of Eighth Amendment law, and because of the unique circumstances of this case, he cannot be sentenced to life imprisonment. However, it is premature to consider whether a life sentence would be permissible given that a life sentence is only one of the options available on resentencing.
Notably, Jackson's crime took place in 1999, and I presume he has been in custody since his arrest. In other words, given that he has already served more than a decade in prison and that the Arkansas Supreme Court has decided he is now eligible for a sentence as low as 10 years, he could possibly upon resentencing get a term of only time served. Going forward, it will be interesting to see what sentence state prosecutors request and what sentence actually gets imposed on Jackson at his future resentencing.
April 25, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, April 09, 2013
Nebraska legislature debating "Miller fix" sentencing proposalsAs reported in this local article, headlined "Debate begins on juvenile sentencing bill," the single body that legislates in Nebraska is sorting through competing ways to deal with the Supreme Court's handiwork in Miller. Here are the basics:
Senators turned away two attempts Monday to amend a bill that calls for a minimum sentence of 30 years for juveniles convicted of first-degree or felony murder.
They defeated amendments that sought to make the minimum sentence 60 years and one that would have removed specific mitigating factors for judges to consider when sentencing....
A 30-year minimum sentence would provide discretion to the courts and is in line with current science on juvenile brain development, said Omaha Sen. Brad Ashford, who introduced the bill.
With a 30-year minimum sentence, the offender would be eligible for parole in 15 years. A judge would have the option of sentencing the convicted juvenile to more time -- or could impose a life sentence.
The Supreme Court ruled judges must consider a defendant's age, immaturity, impetuosity and failure to appreciate risks and consequences. They must take into account the family and home environment that surrounds the youth. The Nebraska bill would require the court to consider those mitigating factors, as well as the outcome of a comprehensive mental health evaluation by a licensed adolescent mental health professional.
On Monday, senators defeated an amendment by Omaha Sen. Scott Lautenbaugh, after dividing it into two questions: One that would have made the minimum sentence 60 years was defeated on a 21-23 vote. The other, which would have eliminated consideration of mitigating factors, was defeated on a 16-27 vote.
Ashford said in crafting a constitutional solution to the Nebraska life sentence, the committee knew the 35-year sentence in Pennsylvania and the 60-year sentence in Iowa were under constitutional attack. "Sixty is just beyond the pale. It would never, in my view, pass constitutional muster," he said.
Supporters of the amendment said the possibility of parole after 15 years was unacceptable. And judges already consider such factors as those listed in the bill. Omaha Sen. Beau McCoy said the discussion on the 60-year minimum sentence could resume Tuesday.
Among other stories, I find it interesting and notable that on-going constitutional litigation in other states over efforts to respond to Miller is clearly impacting how Nebraska's legislature is working through its legislative fix. I think famed constitutional theorist Alexander Bickel, who often spoke of the import and impact of a multi-branch national dialogue about core constitutional principles (see post here by Barry Friedman at SCOTUSblog), would be quite pleased to see how just such a dialogue is unfolding as to how best to operationalize the sentencing principles set out in the Miller ruling.
Tuesday, March 26, 2013
Pennsylvania Supreme Court addresses Miller's impact for some of its state's juvenile murderersAs reported in this local news article, headlined "Supreme Court: Juvenile killer to get new sentencing," Pennsylvania's top court handed down today a long-awaited ruling concerning the sentencing of juvenile offenders in the Keystone State. Here are the basics via this news report:
Teenage killer Qu'eed Batts will receive a new sentencing hearing for the gang-ordered murder he committed in Easton when he was 14, but he could still end up spending the rest of his life in prison nonetheless.
That's what advocates on both sides of Batts' case said Tuesday following a long-anticipated Pennsylvania Supreme Court ruling on how the state should address Batts and nearly 500 other once-youthful murderers whose automatic life without parole sentences were declared unconstitutional last year by the nation's highest court.
Given the federal ruling that such sentences are cruel and unusual punishment, Batts must be given a new sentencing hearing in which he receives a maximum sentence of life and a minimum sentence determined by the judge, said the opinion by Justice Thomas Saylor.
But what that minimum sentence might be was unanswered by court, with advocates for juveniles acknowledging that it probably could still be a life sentence, or a prison term that is so long that it is, in essence, life. "That could be anything," said Robert Schwartz, the executive director of the Juvenile Law Center of Philadelphia, which argued on behalf of Batts. "It appears that it also could be a minimum of life. There is absolutely nothing to guide [the sentencing judge's] discretion."
In reaching its decision, the Supreme Court addressed an issue that it struggled with during oral arguments in September: What to do over the fate of Batts and other juveniles murderers serving a now-unconstitutional sentence. The court rejected the stance taken by the Juvenile Law Center: that youths serving life terms should be resentenced under the charge of third-degree murder, which can bring at most 20 to 40 years in prison.
Northampton County First Deputy District Attorney Terence Houck said the ruling was a victory for prosecutors that leaves open the possibility that Batts should never be released, as Houck plans to argue at resentencing. "All they are saying is that there has to be a minimum. That minimum can be 150 years," Houck said, adding: "I don't think Batts should ever get out. He's the poster boy for life in prison." Batts, now 21, shot to death 16-year-old Clarence Edwards and wounded 18-year-old Cory Hilario in 2006 in the West Ward....
Under state law, murders in the first and second degree must result in a life sentence, with no other punishment possible — the exact scenario the nation's top court deemed unconstitutional for those under 18....
Pennsylvania leads the nation in the number of juveniles jailed for life, according to the Campaign for the Fair Sentencing of Youth, which opposes that penalty. Pennsylvania has 444 such inmates, followed by Michigan at 346 and Louisiana at 332, the Washington, D.C.-based group says. The Juvenile Law Center puts Pennsylvania's number closer to 480, including one inmate in Graterford State Prison who has spent 59 years behind bars.
The extended majority opinion in Pennslyvania v. Batts is available at this link, and a brief concurrence is available at this link. A quick read of the ruling suggests to me that Deputy DA Terence Houck is right to view this ruling as a victory for prosecutors: in addition to rejecting claims that the defendant should be subject to sentencing under a lesser-degree of homicide, the Batts court also rejected any claim that the Pennsylvania Constitution's prohibition of "cruel punishment" should be interpreted to give juvenile defendants any more protection than the US Constitution and its prohibition on "cruel and unusual punishment."
Finally, while the news report suggests this ruling resolves the fate of all juve LWOP sentences in Pennsylvania, my quick review of the Batts opinion suggests that the ruling does not address any Miller retroactivity rulings. For some reason, I had thought retroactivity issues were before the Pennsylvania's top court, but the Batts ruling states in its first sentence that it "concerns the appropriate remedy, on direct appeal, for the constitutional violation occurring when a mandatory life-without-parole sentence has been imposed on a defendant convicted of first-degree murder, who was under the age of eighteen at the time of his offense" (emphasis added).
How Appealing has a round up of additional press coverage concerning the Batts ruling here.
March 26, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack
Tuesday, March 19, 2013
Is TJ Lane eager to be the "uncommon" juvenile murderer who can constitutionally get an LWOP sentence?The question in the title of this post is prompted by this local news report about a high profile state sentencing proceeding which took place in Ohio this morning. The piece is headlined "Ohio school shooter, wearing 'KILLER' T-shirt, sentenced to life in prison," and here are excerpts:
An Ohio judge has sentenced T.J. Lane, the Ohio teen charged with shooting three students to death and wounding three others last February, to life in prison without parole.
Lane showed up to his sentencing wearing a white T-shirt with the word "KILLER" in capital letters scrawled on it -- the same word police say he had emblazoned on his shirt the day of the shootings at Chardon High School.
Lane, 18, pleaded guilty last month to all charges against him in the Feb. 27, 2012, shootings, in which he opened fire on a cafeteria table full of students in the rural community of Chardon.
In a brief statement during his sentencing on Tuesday, Lane flipped his middle finger to people in the courtroom, which included family members of his victims, reported NBC affiliate WKYC.com. He revealed his "KILLER" T-shirt to the court once he was inside, taking off a blue button-down shirt he had worn on the way in, the station reported.
Three students -- Demetrius Hewlin, 16; Russell King Jr., 17; and Daniel Parmertor, 16 -- were killed last February. Nate Mueller and Joy Rickers were wounded, as was Nick Walczak, who is paralyzed from the waist down, according to Reuters.
Lane has not given a motive for the shootings, which rocked the tiny town 30 miles outside Cleveland.
The families of the boys who died in the shooting have attended every one of Lane’s court hearings, The Plain Dealer said. "I feel he should be locked up for the rest of his life," Domenick Iammarino, grandfather of Daniel Parmertor told The Plain Dealer ahead of the sentencing. "It was a despicable, premeditated act. He should breathe his last breath in prison."
Those readers involved with juvenile sentencing or following closely modern Eighth Amendment rulings concerning life without parole sentences (LWOP) know that the Supreme Court in its recent ruling in Miller v. Alabama stated that "given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." It would seem that TJ Lane, who was well past his seventeenth birthday at the time of his seemingly random act of mass murder, was eager to use his time in court today to help ensure that he could be a "poster child" for the kinds of cases and kinds of juvenile defendants for which an LWOP sentence may still be constitutionally permissible.
A few recent related posts:
- "Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases"
- "Constitutional Line Drawing at the Intersection of Childhood and Crime"
- Is Miller an Eighth Amendment "bombshell or baby step"?
March 19, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (14) | TrackBack
Wednesday, March 13, 2013
Does new Eighth Amendment limits on juve sentencing redefine requirements of juve transfer proceedings?The question in the title of this post, to which I know many folks involved with juvenile justice reform have given thought, is prompted today by some interesting dicta at the end of an interesting Sixth Circuit concurring opinion rejecting an interesting habeas claim of ineffective assistance concerning a lawyers's failure to contest a Tennessee juve's transfer to adult court for a murder prosecution. The ruling in Howell v. Hodge, No. 10-5493 (6th Cir. Mar. 13, 2013) (available here), is mostly focused on habeas realities and Tennessee transfer laws, but these paragraphs at the end of Judge Stranch's concurring opinion out to be of broader interest:
I have recounted the evidence supporting the decision of the juvenile court at length because I believe it is important to clarify what I find problematic about the analysis of the expert reports and testimony. Clarification is especially important due to the significance of transferring a juvenile to adult court for trial and sentencing, even where a terrible crime such as this one is at issue. The United States Supreme Court’s recent decision in Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012), reviewed the considerations that it found must separate sentencing of adults from that of children, including: a juvenile’s impetuosity and lack of appreciation of risks and consequences; her inability to escape brutal and dysfunctional social or home situations; her incompetencies in dealing with the criminal justice system; and other factors relating to the diminished moral culpability of children. The differences that make juveniles more susceptible to influence also result in a heightened capacity for change and, therefore, a greater prospect for reform. Id. at 2464-65, 2469. Thus, in reviewing a decision to transfer a juvenile to adult court — especially one that results, as here, in a sentence of life without parole — Miller teaches that we must always be cognizant of “the great difficulty . . . of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’” Id. at 2469 (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)). These considerations and concerns are highlighted by the specific holding in Miller — that the Eighth Amendment prohibits states from imposing sentences of “mandatory life without parole for those under the age of 18 at the time of their crimes.” Id. at 2460.
Miller’s holding does not categorically foreclose the sentence of life without the possibility of parole imposed on Howell. Language in the Court’s opinion, however, highlights my concerns about the analysis necessary when making and reviewing decisions to transfer juveniles to adult court and raises questions regarding the propriety of the sentence of life without the possibility of parole in this case. The Miller majority observed that the reasoning of Graham v. Florida, 130 S. Ct. 2011 (2010), upon which it relied and which prohibits the imposition of life without the possibility of parole sentences on juvenile offenders for nonhomicide crimes, “implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” Miller, 132 S. Ct. at 2465. The majority also observed that “appropriate occasions for sentencing juveniles to [life without the possibility of parole] will be uncommon.” Id. at 2469. Moreover, in his concurring opinion, Justice Breyer argued that, based on Graham, “the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim.” Id. at 2475-76. As here, one of the defendants in Miller was found guilty of felony murder and was not responsible for the killing, and no evidence indicated that he had any intent to kill. Id. at 2477. In Justice Breyer’s view, before the State could continue to impose a sentence of life without parole for this defendant, it would first need to determine whether he “kill[ed] or intend[ed] to kill” because, “without such a finding, the Eighth Amendment as interpreted in Graham forbids sentencing [the defendant] to such a sentence, regardless of whether its application is mandatory or discretionary under state law.” Id. at 2475 (internal quotation marks omitted). Though the scenario posited has parallels to Howell’s situation, Miller is not necessarily dispositive and these issues are not before us today
March 13, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Friday, March 08, 2013
Is Miller an Eighth Amendment "bombshell or baby step"?I have the honor and pleasure of participating today in a fantastic Missouri Law Review symposium which is to explore the question in the title of this post. This webpage details today's schedule of panels and speakers, and this page reports on these essentials of today's event:
This year's Missouri Law Review Symposium will focus on constitutional, practical and policy matters, regarding juveniles and sentencing more generally, that now challenge courts, legislatures and attorneys in the opinion's wake.
On the constitutional front, in what ways are adult offenders who are subject to mandatory sentencing schemes asking lower courts to extend Miller, and how are those courts replying? The Miller opinion extends the Court's "death is different" doctrine to mandatory life-without-parole sentences for juveniles: should that doctrine, requiring individualized sentencing, apply in other contexts? How are state legislatures and Congress responding — and how should they respond — in designing sentencing procedures for juvenile homicide offenders? What special challenges will attorneys face when representing a juvenile in a life-without-parole sentencing trial? Morally, to what extent, if any, do recent discoveries in developmental psychology and neuroscience shed normative light for courts and legislatures on juvenile offenders.
Judge Nancy Gertner, Professor of Practice at Harvard Law School, will deliver the keynote address. She will be joined by eminent attorneys, inside and outside the academy, to explore these and other important questions regarding criminal sentencing in general and juvenile sentencing in particular.
March 8, 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 (2) | TrackBack
Monday, March 04, 2013
"Constitutional Line Drawing at the Intersection of Childhood and Crime"The title of this post is the title of this intriguing looking new paper now available via SSRN. Here is the abstract:
Three cases have arisen in the first seven years of the Roberts Court in which concepts of childhood have played a key role. First came Graham v. Florida, a 2010 case in which the Court held that the Eighth Amendment's Cruel and Unusual Punishment's Clause prohibited sentencing of juveniles to life without parole for non-homicide offenses. Next was J.D.B. v. North Carolina, a 2011 case in which the Court held that a juvenile's age is a relevant consideration when determining whether a reasonable person would believe he was in custody for Miranda purposes. Finally, the Court decided Miller v. Alabama, a 2012 case in which the Court held that the mandatory imposition of life without parole in cases where juveniles were convicted of homicide was cruel and unusual punishment because it precluded consideration of age and its attendant consequences.
Though at first glance these three cases appear consistent -- they each result in some degree of enhanced constitutional protection for juveniles -- a closer look reveals significant jurisprudential tension because the opinions are riddled with contradictions. This Article explores those tensions and the need to resolve them, focusing in particular on two major line-drawing problems that have emerged in the juvenile cases. The first is inherent to but largely ignored in the cases: whether and where to draw the line between childhood and adulthood. The second line is judicially manufactured: the line between homicide and non-homicide offenses. The Article describes and critiques the Court's line drawing and offers proposed solutions to remedy flaws in the Court's reasoning.
March 4, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack