Friday, August 16, 2013

Iowa Supreme Court rules in favor of juve defendants in three post-Graham appeals

As 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.

July 16, 2013 in Assessing Graham and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (14) | TrackBack

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?

Children-Are-Different-InfographicThe 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 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.  

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."

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.

June 18, 2013 in Assessing Graham and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Wednesday, June 05, 2013

In lengthy split opinion, Minnesota Supreme Court concludes Miller should not apply retroactively

With 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."

June 5, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

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.

May 28, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Sunday, May 26, 2013

"Not -So -Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines"

Lawreview-2011The 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

ImagesCA6ZGXG7I 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 Jackson

As 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 proposals

As 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.

April 9, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, March 26, 2013

Pennsylvania Supreme Court addresses Miller's impact for some of its state's juvenile murderers

As 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?

130319-lane-shirt-1030a.photoblog600The 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  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:

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"?

New-law-review-symposium13-large-bannerI 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

Monday, January 28, 2013

Intriguing Massachusetts developments in response to SCOTUS Miller ruling

As reported in this local article, Massachusetts Gov. Deval Patrick has today set out "proposed legislation that would eliminate mandatory life sentences without parole for teens under 18 convicted of first-degree murder."  Here is more from the article:

The measure filed by Patrick Monday would also raise the age for juvenile court jurisdiction from 17 to 18 in Massachusetts. Under current state law, teens as young as 14 can be tried as adults for first-degree murder. Conviction on first-degree murder carries an automatic life sentence without parole in Massachusetts.  Patrick’s bill would still allow life sentences without parole for juveniles under certain circumstances....

The U.S. Supreme Court ruled last year that mandatory life sentences without parole for juveniles are unconstitutional.  Because of that Supreme Court case -- Miller v. Alabama -- the change proposed by Patrick to eliminate mandatory life sentences for teens is not a great surprise, several lawyers said....

According to a prepared statement issued by Patrick’s office, “An Act to Reform the Juvenile Justice System in the Commonwealth” will create a fairer justice system for the state’s youth.   “Every violent felon should be held accountable for their actions, even youth.  But in sentencing every felon’s circumstances should be considered, too, and youth itself is a special circumstance,” Patrick said.  “It is time for the Commonwealth’s laws to reflect the value, in accord with the Supreme Court, that young people deserve every opportunity for rehabilitation and reform,” he said.

State Public Safety Secretary Andrea Cabral said, “The governor’s legislation recognizes the importance of providing juveniles with age-appropriate resources for rehabilitation. It builds on established research that proves an adolescent brain affects behavior and judgment, but that rehabilitation is possible.”

“Fair treatment of juveniles requires both holding them accountable for their actions and ensuring the highest degree of public safety in order to keep the Commonwealth’s neighborhoods safe and secure," she said.

This lengthy press release from Gov. Patrick's office provides a lot more detail on the details in the juve justice reforms now being proposed in the Bay State.

January 28, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, January 24, 2013

"Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases"

The title of this post is the title of this recently published essay by Craig Lerner, which gets started this way:

In Miller v. Alabama, the Supreme Court held unconstitutional roughly 2,000 life-without-parole sentences,which had been imposed on juveniles by twenty-eight states and the federal government.  The nominal license for the exercise of this power was the Constitution’s Eighth Amendment, which proscribes “cruel and unusual punishments.”  The astute (or perhaps naïve) reader will wonder: how can 2,000 sentences imposed by a majority of U.S. jurisdictions be unusual?  For that matter, is it possible that a majority of U.S. jurisdictions countenance a “cruel” punishment?

These questions are premised on the now-quaint idea that the phrase “cruel and unusual punishments” was relevant to the Court’s decision in Miller. Although the Court has touted adherence to the Constitution’s text and its historical understanding as a basic interpretive principle in decisions examining the Second, Fourth, and Sixth Amendments, this even-numbered originalism collapses at“eight.”  The jurisprudence of he Eighth Amendment was long ago untethered from its text, and as a consequence, the decision in Miller came as little surprise.

January 24, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, October 22, 2012

Seventh Circuit panel rejects defendant's Eighth Amendment challenge to crack LWOP sentence

The Seventh Circuit has an interesting little panel ruling today rejecting an Eighth Amendment claim in US v. Ousley, No. 11-2760 (7th Cir. Oct. 22, 2012) (available here). Here is how the opinion starts and ends:

Anthony A. Ousley has an extensive history of peddling illegal drugs.  Caught dealing drugs yet again, Ousley was convicted of four felonies, including one count of possession of more than 50 grams of crack cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1).  On that count, the district court imposed a mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A).  On appeal, Ousley contends that the Eighth Amendment’s prohibition against cruel and unusual punishments precludes a mandatory life sentence for dealers who possess a smaller quantity of crack cocaine than the quantity of powder cocaine necessary to trigger a similar sentence for powder cocaine dealers. We affirm....

Ousley questions the continued vitality of these decisions [rejecting similar prior appeals] in light of the Supreme Court’s recent Graham decision addressing the constitutionality of sentencing a juvenile to life without parole for a non-homicide crime.  Before Graham, the Supreme Court had adopted categorical rules prohibiting death sentences for certain types of crimes or offenders.... In Graham, the Supreme Court held that sentencing a juvenile to life without parole for a non-homicide crime constitutes cruel and unusual punishment. 130 S. Ct. at 2030; see also Miller v. Alabama, 132 S. Ct. 2455, 2475 (2012) (extending Graham to juvenile murderers). Thus, Graham is the first instance wherein the Supreme Court endorsed a categorical prohibition on a non-capital sentence — life without parole — for a certain type of offender — juveniles.

Ousley argues that Graham relieves us of our obligation to follow Harmelin, Ewing, and our decisions rejecting Eighth Amendment challenges to life sentences imposed pursuant to § 841(b)(1)(A).  According to Ousley, Graham empowers us to consider in the first instance whether to adopt a categorical prohibition on mandatory life sentences without parole for crack cocaine dealers who possess an amount of crack cocaine less than the amount of powder cocaine necessary to trigger a mandatory life sentence for powder cocaine dealers.  Ousley urges us to embrace this categorical rule based on the purported national consensus against crack and powder cocaine sentencing disparities.

Congress has addressed any national consensus issue in the Fair Sentencing Act. And this court recently held that Graham and Miller do not abrogate Harmelin.  United States v. Cephus, 684 F.3d 703, 709 (7th Cir. 2012) (“Neither opinion overrules Harmelin; both, indeed, distinguish it explicitly. Our defendants were not juveniles and their crimes were more serious than the crime in Harmelin.”).  Moreover, “[e]ven if we thought Harmelin inconsistent with Graham and Millerand likely to be overruled, the Supreme Court has . . . told the lower courts in no uncertain terms to leave the overruling of its precedents to it.” Id.

Therefore, we conclude that Harmelin, Ewing, and our precedent unmistakably foreclose Ousley’s Eighth Amendment challenge to § 841(b)(1)(A). The district court did not commit legal error — much less plain error. 

October 22, 2012 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Drug Offense Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Monday, October 15, 2012

Without fanfare, Louisiana Supreme Court gives retroactive effect to Miller via brief order

According to at least one accounting I have seen, Louisiana has nearly 250 persons serving LWOP for offenses committed when they juveniles.  I believe this makes Louisiana fifth among all states in total juve LWOP prisonder (and the leading state if judged on a per-capita basis).  Thus, a little ruling on Friday from the state Supreme Court in Louisiana v. Simmons, No. 11-KP-1810 (La. Oct. 12, 2012) (available here), seems like quite a big deal.  Because the per curiam ruling is just one paragraph long, I will reprint the whole thing here:

Writ granted.  Relator is presently serving a sentence of life imprisonment at hard labor without possibility of parole for a second degree murder committed in 1995 when he was 17 years old.  The sentence was mandated by the penalty provision of the statute establishing the offense.  La.R.S. 14:30.1(B).  In 2011, relator filed a motion to correct an illegal sentence in which he contended that a sentence of life imprisonment without parole for a juvenile offender is no longer constitutionally permissible under developing legal standards, and in particular in light of Graham v. Florida, 560 U.S. __, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (Eight Amendment precludes sentencing juvenile offenders to life imprisonment without parole for non-homicide crimes).  The district court denied relief. While review of that judgment was pending, the United States Supreme Court determined that mandatory life imprisonment without parole for those offenders under the age of 18 years at the time they committed a homicide offense violates the Eighth Amendment prohibition of “cruel and unusual punishments.”  Miller v. Alabama, 567 U.S. ____, ____,132 S.Ct. 2455, 2466, 183 L.Ed.2d 407 (2012).  Unlike the case in Graham, the Miller court did not prohibit life imprisonment without parole for juveniles, but instead required that a sentencing court consider an offender’s youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest possible penalty for juveniles who have committed a homicide offense. Therefore, we grant to remand to the district court for reconsideration after conducting a sentencing hearing in accord with the principles enunciated in Miller and stating the reasons for reconsideration and sentencing on the record.

Because of the date of the underlying conviction, this Simmons ruling seems like a big deal because it suggests that the Louisiana Supreme Court has, without pause, ordered giving retroactive effect to the Miller ruling.  A little research indicates that Louisiana has a statutory provision providing for motion to correct an illegal sentence at any time, so perhaps it is neither surprising nor that big a deal that the state Supreme Court has here been quick to order what might be called a Miller resentencing hearing.  Still, because there are so many Louisiana juve LWOPers, and because this order calls for "reconsideration after conducting a sentencing hearing in accord with the principles enunciated in Miller," this little ruling seems to me to be a big deal.

Some prior major posts on Miller and its potential impact:

October 15, 2012 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 | Permalink | Comments (2) | TrackBack

Wednesday, September 26, 2012

"Juvenile Offenders in Limbo under Outdated State Laws"

The title of this post is the headline of this effectivenew  report from the Juvenile Justice Information Exchange concerning some state struggles following the Supreme Court's recent Eighth Amendment rulings in Graham and Miller.  Here are excerpts:

More than two years after U.S. Supreme Court decisions started throwing out mandatory death and life sentences for minors, judges in Washington, Illinois and dozens of other states still lack guidance on what to do with juveniles past and present convicted of murder and some other serious felonies.

“Courts are uncomfortable in trying to figure out what ‘life’ means in terms of years,” said Kimberly Ambrose, senior law lecturer at the University of Washington School of Law. She represented Guadalupe Solis-Diaz at the state’s Court of Appeals, arguing against a 92-year sentence he’s serving for six counts of first-degree assault and other charges for his role in a drive-by shooting.  The then 16-year-old Solis-Diaz fired into a crowd in Centralia, Wash., in 2007, though did not injure his target or anyone else.

It’s not clear in Washington if those 92 years are equivalent to what the U.S. Supreme Court calls “life” sentences.  The federal high court has definitively thrown out state sentencing laws that mandate life without parole for juveniles.  Beginning with the 2005 Roper v. Simmons case and more recently with Graham v. Florida in 2010 and Miller v. Alabama in 2012, the court says that juveniles are not yet fully mentally developed, are less culpable and more capable of reform.  Therefore, lower court judges must consider those and other mitigating factors when sentencing juveniles for both homicide and non-homicide offenses.

Solis-Diaz’ counsel at his original sentencing failed to mention that U.S. Supreme Court trend.  That omission, said the state appeals court, was one of several mistakes that contributed to their decision this month to throw out Solis-Diaz’ 92 years, on grounds of ineffective counsel.  “This is the first life-equivalent case to come before a Washington appellate court,” said Ambrose, speaking of non-homicide offenses.

But the court also noted it would not opine on any other sentence for Solis-Diaz.  “The legislature is the appropriate body to define crimes and fix punishments.  To the extent that Graham suggests that an opportunity for parole must be available for juvenile offenders convicted of non-homicide offenses, only the Legislature has the authority to amend the SRA [Sentencing Reform Act] to allow for such remedy,” the opinion reads....

Many judges are grappling with how to amend their current laws to comply with the U.S. Supreme Court rulings on juvenile sentences.   Some state legislatures have yet to update laws to comply with the two-year-old Graham case.  And most state legislatures have been closed since the June, 2012 Miller decision, so have had no chance to start thinking about it.  Thus judges dealing with juveniles convicted of murder must figure out if it would apply to juvenile offenders sentenced before it, and how to handle appeals, all without legislative guidelines....

More than 100 people have been sentenced to life without chance of parole in Illinois for crimes committed as minors, according to a 2010 report by the National Conference of State Legislatures.  Nationally, there are more than 2,500 juvenile offenders who have received this sentence in the states that did or do allow it, according to The Campaign for Fair Sentencing of Youth, an advocacy group....

Michigan’s Supreme Court declined to settle retroactivity in its state this month. Attorney General Bill Schuette asked the Court to rule out retroactivity on the life sentence of a man convicted of participating in an armed robbery as a 16-year-old.  Instead, the court remanded the case for resentencing.

The Washington Court of Appeals ruling referenced above was announced in this "unpublished" state habeas opinion handed down last week.  In addition, this local article, headlined "Rebuffed by Michigan Supreme Court, Attorney General Bill Schuette presses forward to keep juvenile lifers behind bars,"  provides more background on the efforts by the Michigan AG to prevent the Miller ruling from applying retroactively.  It starts this way:

Attorney General Bill Schuette has lost his bid to have the state Supreme Court halt resentencing of juvenile lifers, so he is turning to the next best thing. Schuette will attempt to join a case currently before the state Court of Appeals, where judges will soon hear a request to reconsider the sentence of a man serving a mandatory life term for a killing at age 15.

The battle stems from a U.S. Supreme Court ruling in June that found mandatory life sentences for minors are unconstitutionally cruel. Schuette claims the ruling should not be retroactive. “This is the best opportunity we’re going to have to get an answer on retroactivity,” said Joy Yearout, spokeswoman for Schuette. “The decision will still be binding on all lower courts.”

Schuette argues the new mandate that mitigating circumstances, including age, must be considered before sentencing is not a “watershed event,” but a mere procedural change affecting only current and future cases.

The state Supreme Court on Sept. 1 rejected Schuette’s request to immediately settle the retroactivity issue in a 1993 murder case involving 16-year-old Cortez Davis, now 35. Instead, the court sent the case back to Wayne County Circuit Court for consideration, possibly forcing a long wait if the ultimate decision is appealed by either side.

September 26, 2012 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Monday, September 17, 2012

How should the law respond to those who kill before they are teenagers?

BildeThe question in the title of this post is prompted by this lengthy new AP article discussing the debate over how Florida is dealing with Cristian Fernandez, who at age 12 was charged last year with the murder of a 2-year-old half-brother. Here are excerpts from the piece:

A decade before he was charged with murder, a 2-year-old Cristian Fernandez was found naked and dirty, wandering a South Florida street. The grandmother taking care of him had holed up with cocaine in a messy motel room, while his 14-year-old mother was nowhere to be found.

His life had been punctuated with violence since he was conceived, an act that resulted in a sexual assault conviction against his father. Fernandez' life got worse from there: He was sexually assaulted by a cousin and beaten by his stepfather, who committed suicide before police investigating the beating arrived....

Now 13, Fernandez is accused of two heinous crimes himself: first-degree murder in the 2011 beating death of his 2-year-old half-brother and the sexual abuse of his 5-year-old half-brother. He's been charged as an adult and is the youngest inmate awaiting trial in Duval County.

If convicted of either crime, Fernandez could face a life sentence — a possibility that has stirred strong emotions among those for and against such strict punishment. The case is one of the most complex and difficult in Florida's courts, and it could change how first-degree murder charges involving juvenile defendants are handled statewide.

Underscoring the unusual nature of the case, Fernandez' defense attorneys said they aren't sure how to proceed since the U.S. Supreme Court threw out mandatory life in prison without parole for juvenile offenders in June. Another complication involves whether Fernandez understood his rights during police interrogations....

Supporters of local State Attorney Angela Corey say she's doing the right thing by trying Fernandez as an adult: holding a criminal accountable to the full extent of the law. But others, like Carol Torres, say Fernandez should be tried in juvenile court and needs help, not life in prison. "He should be rehabilitated and have a second chance at life," said Torres, 51. Her grandson attended school with Fernandez and she has created a Facebook page to support him.

In other states, children accused of violent crimes are often charged or convicted as juveniles. In 2011, a Colorado boy pleaded guilty to killing his two parents when he was 12; he was given a seven-year sentence in a juvenile facility and three years parole. A Pennsylvania boy accused of killing his father's pregnant fiancée and her unborn child when he was 11 was sent this year to an undisclosed juvenile facility where he could remain in state custody until his 21st birthday.

The Justice Department said that 29 children under age 14 committed homicides around the country in 2010, the most recent year for which the statistics were available...

Based on psychological evaluations, prosecutors say that Fernandez poses a significant risk of violence. That's why he is being detained pre-trial — and why they charged him with two first-degree felonies.

Yet difficult questions remain for Judge Mallory Cooper: Should a child so young spend his life in prison? Does Fernandez understand his crimes, and can he comprehend the complex legal issues surrounding his case?

In August, Cooper ruled that police interrogations of Fernandez in the murder and sexual assault cases are not admissible, saying Fernandez couldn't knowledgeably waive his rights to remain silent and consult an attorney. Prosecutors are appealing.

The defense wants the charges dismissed, saying the U.S. Supreme Court ruling banning sentences of life without parole for juveniles makes it impossible for them to advise Fernandez since the Florida Legislature has not changed state law. Prosecutors say they never said they would seek a mandatory life sentence — they say the old Florida law that called for a 25-year-to-life sentence could apply.

Mitch Stone, a Jacksonville defense attorney who is familiar with the case, said Corey and her prosecutors are in a tough position. "I know they're good people and good lawyers," he said. "But if a resolution short of trial doesn't occur, this case is on a collision course to sending Cristian Fernandez to life in prison. That's why this is one of those very difficult cases. It's hard to understand what the appropriate measure is."

Related post on Fernandez case:

September 17, 2012 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, September 04, 2012

Interesting report on how Florida prosecutor approaches Graham and Miller

Over the long weekend, the Tampa Tribune had this interesting article about the impact and import of Graham and Miller for Florida's juvenile offender.  The piece is headlined "Courts grappling with juveniles' life sentences," but I found most notable the discussion of a Florida prosecutor's approach to Graham and Miller in light of Florida law and procedure:

Prison inmates who committed murder when they were juveniles have a chance to one day walk free because of a U.S. Supreme Court ruling that overturned automatic life sentences without parole for juvenile killers.  Now the courts have to figure out what to do with about 15 Hillsborough County convicts and hundreds in Florida.

The full impact of the June ruling — as well as a decision last year that barred all life without parole sentences for juveniles who commit crimes other than murder — remains to be seen. In answering the question about the constitutionality of such sentences, the court created a slew of other questions about what sentences would be considered appropriate.

"The only way we can get further clarification of what is permissible and what is not is through trial and error," said Michael Sinacore, felony chief for the Hillsborough County State Attorney's Office.  "We have to have cases where sentences get imposed, and the sentences get appealed and the appellate courts will weigh in on whether whatever was done is proper."...

"With Graham, we're getting a pretty good feel for how the courts are treating it, but the Florida Supreme Court has not weighed in yet," Sinacore said.  "The U.S. Supreme Court has not weighed in on what term of years would be appropriate. That could take years, if ever."...

Sinacore said the position of his office in these non-homicide cases is to calculate the life expectancy of defendants then advocate for a sentence that takes parole and prison credit into account, allowing a defendant to become eligible for release a few years before the end of his life.

The office takes a different approach in the homicide cases addressed in the June Supreme Court decision, Miller vs. Alabama.  In those cases, the state attorney and Florida Attorney General Pam Bondi maintain that state law reverts to what it was before life without parole became the automatic sentence on May 1, 1994.

So, defendants convicted of first-degree murder for killings committed when they were juveniles would have their sentences become life with the possibility of parole after 25 years.  Therefore, there would be no need to hold new sentencing hearings for them, if this position is upheld by the courts....

In a quirk of the law, this would not work with defendants convicted of second-degree murder, Sinacore said.  "Under the former law you could not get life without parole for a first-degree murder, but you could for a second-degree murder and for a non-homicide offense."  Sinacore said this happened because of the way the law developed with the death penalty.  The 25-year parole requirement for first-degree convicted murderers who did not get a death sentence was an enhancement.  At the time, defendants convicted of other crimes could be eligible for parole earlier, at the judge's discretion, or they could be required to serve life without parole.

"The 25-year parole eligibility was specific to capital offenses, which would be capital sexual battery and capital murder," Sinacore said.  "Second-degree murder was a life felony; somebody could be sentenced to life in the judge's discretion.  So if the judge used discretion, as opposed to a mandatory sentencing for life, you could get life without parole even under the previous version of the statute."

Because of that, he said, the Miller decision means juvenile killers convicted of second-degree murder will be entitled to new sentencing hearings "unless by some bizarre chance, the judge, at the time of sentencing, actually considered the status of the juvenile's development and how they would continue to develop in the future and all the issues that the Supreme Court says you have to take into consideration -- the maturity of the child basically."

September 4, 2012 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, August 22, 2012

"Meaningless Opportunities: Graham v. Florida’s 'Meaningful Opportunity for Release' for Juvenile Offenders and the Reality of De Facto LWOP Sentences"

The title of this post is the title of this forthcoming Comment by Mark Freeman available now via SSRN. Here is the abstract:

In 2010 the United States Supreme Court decided Graham v. Florida, which held that LWOP sentences for juvenile, non-homicide offenders were unconstitutional. This Comment argues that de facto LWOP sentences, lengthy term of years sentences that exceed a juvenile's natural life expectancy and effectively guarantee the offender will die in prison, are also unconstitutional for juvenile non-homicide offenders.

Part II provides a brief overview of the Supreme Court’s Eighth Amendment jurisprudence and how lower courts have responded to Graham.  Part III explains why de facto LWOP sentences for juveniles who commit non-homicide crimes will fail the Supreme Court’s traditional Eighth Amendment tests and argues for a categorical ban against these sentences.  Part IV discusses the practical implications of this Comment and whether juvenile offenders will see any meaningful change if courts adopt a categorical ban.  Part V concludes that courts should embrace the spirit of Graham’s holding and provide a meaningful opportunity for juvenile offenders to experience life outside of prison before they die.

August 22, 2012 in Assessing Graham and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Thursday, August 16, 2012

California Supreme Court unanimously applies Graham to lengthy term-of-years sentence

The California Supreme Court issued a significant ruling today concerning application of the US Supreme Court's Eighth Amendment Graham ruling within the state. The lead opinion in People v. Caballero, No. S190647 (Cal. Aug. 18, 2012) (available here), starts and ends this way:

In Graham v. Florida (2010) 560 U.S. ___ [130 S.Ct. 2011] (Graham), the high court held that the Eighth Amendment prohibits states from sentencing a juvenile convicted of nonhomicide offenses to life imprisonment without the possibility of parole. (Id. at p. ___ [130 S.Ct. at p. 2030].) We must determine here whether a 110-year-to-life sentence imposed on a juvenile convicted of nonhomicide offenses contravenes Graham's mandate against cruel and unusual punishment under the Eighth Amendment. We conclude it does....

Consistent with the high court's holding in Graham, supra, 560 U.S. ___ [130 S.Ct. 2011], we conclude that sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment.  Although proper authorities may later determine that youths should remain incarcerated for their natural lives, the state may not deprive them at sentencing of a meaningful opportunity to demonstrate their rehabilitation and fitness to reenter society in the future.  Under Graham's nonhomicide ruling, the sentencing court must consider all mitigating circumstances attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the parole board.  The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison “based on demonstrated maturity and rehabilitation.” (Id. at p. ___ [130 S.Ct. at p. 2030].)  Defendants who were sentenced for crimes they committed as juveniles who seek to modify life without parole or equivalent defacto sentences already imposed may file petitions for a writ of habeas corpus in the trial court in order to allow the court to weigh the mitigating evidence in determining the extent of incarceration required before parole hearings.  Because every case will be different, we will not provide trial courts with a precise time frame for setting these future parole hearings in a nonhomicide case.  However, the sentence must not violate the defendant's Eighth Amendment rights and must provide him or her a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” under Graham's mandate.

August 16, 2012 in Assessing Graham and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Thursday, August 09, 2012

Graham crackers?: Florida judge "reduces" juve LWOP sentence to 100 years

The bad play on words in the title of this post is prompted by this fascinating local article from Florida headlined "Hillsborough judge gives 'juvenile' offender 100-year-sentence." Here are the details:

For a day of terror 24 years ago that started with near-murder and ended with rape, Jere Walker will not leave prison at least until he is an old man — even though the five life sentences he got when he was 17 have been ruled unconstitutional by the U.S. Supreme Court.

Walker, now 41, came before Hillsborough Circuit Judge Debra Behnke on Wednesday, asking her to let him put behind him the crimes he committed as a youth that he now realizes were "life-shattering" and "soul-crushing."  His victims included a former state attorney who went on to become an appellate judge, his wife and their widowed friend, and a Texas tourist who said rape ruined her life.

Behnke took only minutes to resentence. She said Walker's crimes occurred in the same year she became a judge — 1988.  Since then, she said, "I've seen thousands of cases, very few with facts like this. That's the only speech I have." She then gave Walker 100 years....

Because of a 2010 Supreme Court ruling that said juveniles who don't commit murder can't be given life sentences with no hope of parole, Walker had a chance of a new sentence and possible release.  His attorney argued that Walker already has served the equivalent of a 47-year sentence, factoring in gain time.  The attorney asked the judge to sentence Walker to two years of community control and allow him to live with his family. They would provide work for him at a pressure-cleaning business.

The prosecutor sought an 80-year sentence that he said would keep Walker in prison until at least his early 60s. Behnke's sentences Wednesday went beyond what the prosecutor sought.  She gave Walker two consecutive 30-year sentences for robbery and attempted first-degree murder.  She added to those a 40-year sentence for two counts of sexual battery.  They added up to 100 years.

To determine a release date, the state Department of Corrections now has to calculate how much gain time Walker has earned.  At the time of his convictions, the state allowed prisoners to earn up to 20 days per month in gain time, but he had disciplinary problems that could affect that. He also would have to behave for decades to come to earn more gain time.   Assistant State Attorney Douglas Covington said he could only estimate that Walker will remain imprisoned into his elder years.

Whether such long sentencings meet the Supreme Court's guidelines is being debated throughout the country.  "It's an evolving area of the law," said Tampa defense attorney John Fitzgibbons.  "Where is the line drawn between a sentence that conforms to the Supreme Court's holding that there must be a possibility of parole versus a sentence of years so lengthy that the defendant will die in prison?"  He predicted that question will be battled in courts for years to come.

August 9, 2012 in Assessing Graham and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (18) | TrackBack

Wednesday, August 08, 2012

Florida courts struggling with what Graham means for long juve term-of-years sentences

As reported in this local article, headlined "Courts ponder: When is juve’s long prison term effectively ‘life’?," a notable court ruling from Florida today spotlights an on-going struggle for state courts in the wake of Graham.  Here are the basics:

A district appeals court urged the state Supreme Court on Wednesday to weigh in on how long is too long when sentencing a juvenile for crimes other than murder, since the U.S. Supreme Court has said such kids can’t spend their entire lives in prison.

A three judge panel of the 1st District Court of Appeal noted that the lower courts have disagreed on just how long a juvenile would have to be sentenced for it to be a “de facto life sentence.”  The U.S. Supreme Court ruled in 2010 in Graham v. Florida that it was unconstitutional to sentence juveniles to life sentences for non-homicide crimes.

Since then, appeals courts have found that in some cases where the sentence wasn’t technically life, the juvenile would still be likely to spend life in prison, because the term of years was longer than their life expectancy.

That was exactly what the DCA found in the particular case at issue Wednesday. The court ordered a new sentence for a 16-year-old, Demahgio Adams, who robbed and shot someone multiple times – but without killing the victim -- and was given a sentence that would require him to serve at least 58 and a half years, meaning he wouldn’t be released until he is nearly 76.  That would exceed his life expectancy, the court said, finding the sentence a “de facto” life sentence that is unconstitutional.

But at least one other DCA in the state has held differently, so the judges said the state Supreme Court should decide whether the Graham opinion applies to long sentences that aren’t technically life sentences, and “if so, at what point does a term-of-years sentence become a de facto life sentence?”

The case referenced in this article, Adams v. Florida, No. 1D11-3225 (Fla. 1st Dist. Aug 8, 2012) (available here), makes for an interesting read and spotlights an issue that could face many state courts in the wake of Graham (and also now that Miller may raise the same kind of issue for any juves given very long mandatory sentences for homicide offenses).

August 8, 2012 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Thursday, July 26, 2012

Taking stock on what Miller is likely to portend

This new piece from The Crime Report, which is headlined "A Reprieve for Juvenile Lifers?," provides an effective review of what the Supreme Court's recent Eighth Amendment work in Miller could prompt. Here is how it gets started:

The U.S. Supreme Court’s recent decision banning mandatory life without parole for juvenile criminals gave inmates like Christine Lockheart a glimmer of hope. In response to the Court’s ruling, the Iowa Court of Appeals earlier this month overturned Lockheart’s mandatory life sentence for a murder committed when she was 17 and ordered a judge to hold a new sentencing hearing.

But less than a week later, Iowa Gov. Terry Branstad commuted the sentences of all state prisoners serving mandatory life terms for crimes committed as juveniles, and instead gave them life with the possibility of parole after 60 years.

Lockheart’s lawyer says he plans to challenge Branstad’s order in court, arguing that it violates the Supreme Court’s decision in Miller v. Alabama. That ruling said that sentencing judges should consider the individual circumstances of crimes committed by juveniles, including “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

Lockheart’s case is among the first of what criminal justice experts say will be numerous and lengthy legal battles as courts and state legislatures across the country determine how to comply with the Supreme Court’s ruling—and what to do with the estimated more than 2,000 prisoners currently serving mandatory life sentences for crimes committed when they were under the age of 18.

“This is very clean at the wholesale level and very messy at the retail level,” said Mark Osler, a professor at the University of St.Thomas Law School, in Saint Paul, MN. “It’s very clear from 10,000 feet that children are different.” Osler, who specializes in sentencing law, added: “But with these 2,000 cases, it’s going to be pretty messy with a lot of different outcomes.”

Though the Court barred mandatory life sentences for juveniles, experts said it left unanswered a host of legal issues that could impact who is eligible for a new sentence and what rights they have. It remains unclear whether the Court’s ruling is retroactive, whether prisoners who petition for a new sentence are entitled to a lawyer, and what standards should be used in handing down sentences for juveniles.

“I expect this will be bounced back up to the Supreme Court multiple times because all those questions have to be answered,” said Frank Bowman, a professor at the University of Missouri and a former federal prosecutor and special counsel to the U.S. Sentencing Commission. “We will be litigating this for years.”

Related recent posts on Miller:

July 26, 2012 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, July 14, 2012

Fascinating Eighth Amendment ruling by Kansas appeals court about (uniquely?) extreme sex offender sentence

I have been slow to note a remarkable Eighth Amendment opinion handed down late last week by a Kansas appellate court in State v. Proctor, No. 104,697 (Kan. Ct. App. July 6, 2012) (available here). (Hat tip to Eugene Volokh.)  The lengthy opinion and its (limited?) import are hard to summarize, so I will quote in full the start of the opinion here:

In this case, the court must address the constitutionality of a sentence potentially subjecting Defendant Daniel Proctor to lifetime postrelease supervision and, in turn, to imprisonment for life without parole if he were later to commit any felony, including a property crime otherwise calling for probation.  Proctor faces that prospect because he pled guilty to a sex offense — aggravated indecent solicitation of a child — for which he has received a permissible guideline sentence of probation.  For Proctor, a man in his early 20′s, the statutory sentencing scheme could put him behind bars for 50 years if he were to shoplift a $1,000 ring or computer or to write a bad check for them.  Given Proctor’s circumstances and the peculiarly harsh result that could be inflicted on him, the sentence violates the protections against cruel and unusual punishment contained in § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution.  The punishment may be considered grossly disproportionate in that context and incompatible with the general purposes of incarceration as a sanction in the criminal justice system.  We, therefore, vacate the sentence imposed on Proctor to that extent and remand to the Saline County District Court for resentencing.

The governing statutes create the prospect of an exceptionally severe punishment — life in prison without parole is second only to a death sentence in its extremity — for persons convicted of designated sex offenses who then commit property crimes.  For Proctor, the disparity between his criminal conduct and that punishment reflects an imbalance of a magnitude implicating constitutional protections.  The Kansas sentencing statutes permit probation for both his underlying offense in this case and property crimes amounting to felonies.  But the commission of those two offenses in that order may lead to life in prison with no prospect for release.  Controlling authority from the United States Supreme Court and the Kansas Supreme Court construing the federal and state constitutional prohibitions on cruel and unusual punishment cannot be reconciled with that result.  The sentencing scheme exacts a punishment harsher than those for murder, kidnapping, and other crimes the Kansas Legislature has designated as more serious than Proctor’s.  It also appears to be more severe than similar statutes applied to sex offenders in the vast majority of other states.  Those are the ingredients of an unconstitutionally disproportionate punishment.

The analysis by this appellate panel to back up these conclusions is quite interesting and worth a close read by any and everyone interested in the development of modern Eighth Amendment jurisprudence.

July 14, 2012 in Assessing Graham and its aftermath, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, June 26, 2012

Questioning forceful (but suspect) claims by the varied Miller dissents: the Roberts/textualism numbers

Though I still have tons of questions about what the new Eighth Amendment SCOTUS Miller ruling will come to mean (opinion here, basic questions here and here and here), I now have some first thoughts on the three intriguing Miller dissents.  Though covering some overlapping grounds (and overlapping votes), I think it is fair to short-hand these dissents using their authors and main themes: (1) the Roberts/textualism dissent, (2) the Thomas/originalism dissent, and (3) the Alito/legislative judgment dissent. 

Notably, the relatively short Miller majority opinion (perhaps wisely) does not very deeply engage with all the points made in the dissenting opinions, but there is a lot of interest and force in these dissents.  However, though seemingly forceful in various ways, I see a suspect judgment or assertion or conclusion at the heart of each dissent.  In a series of three posts, I hope to explain briefly the suspect foundation in each of these dissents.  I will start here by questioning number-crunching in the Roberts/textualism dissent in Miller.

Chief Justice Roberts' lead Miller dissent, which was signed by all the dissenters, rests on a forceful textual point set forth in these two sentences at the end of first paragraph: "The pertinent law here is the Eighth Amendment to the Constitution, which prohibits 'cruel and unusual punishments.'  Today, the Court invokes that Amendment to ban a punishment that the Court does not itself characterize as unusual, and that could not plausibly be described as such."  Though I see much force and wisdom in the Chief's concern for the term "unusual" in any interpretion of the Eighth Amendment, I think a careful and sober assessment of the data makes it quite "plausible" to characterize the sentences at issue in Miller as unusual.

First, if we focus just on Kuntrell Jackson's case before SCOTUS, it seems quite "unusual" for a teenage accomplice to a felony with no clear intent to kill and no significant criminal history to be subject to a mandatory LWOP sentence.  Though data here can be slippery, there are probably hundreds (if not thousands) of teens each year who are accomplices to felonies in which someone is killed and I suspect very few of these teenage felony-murder accomplices in any given year get a mandatory LWOP.  (Many of the teen accomplices without a criminal history, I would bet, are not even arrested or charged with murder, let alone brought into the adult system and subject to a mandatory LWOP sentence.) 

There has been, roughly speaking, about 40 years of modern LWOP sentencing, which in turn has resulted in a total of about 2500 juve killers with LWOP sentences (of which about 2000 were imposed manditorily).  I would be surprised if more than 20 of these juve LWOPers are just teenage felony-murder accomplices without a significant criminal history like Kuntrell Jackson.  Because one could (very conservatively) guess that there have been 20,000 teenage felony-murder accomplices over the last four decades, Kuntrell Jackson's sentence is fairly considered a 1 in 1000 event.  It seems quite appropriate (and surely "plausible") to describe such a rare event as "unusual." 

Of course, ever the careful and effectively dissenter, the Chief Justice does not really take on whether Kuntrell Jackson's sentence is "unusual" (and his Graham concurrence leads me to think he might have been inclined to join a very narrow opinion that just struck down Jackson's mandatory sentence, perhaps with emphasis on mens rea points stressed in Justice Breyer's concurrence).  Rather, the heart of the Chief's dissent is his complaint is that the majority in Miller has used the Eighth Amendment to "ban a punishment" (i.e., mandatory LWOP for any and all teen killers) that is not "unusual."  But, even with this wider framing, I am not sure the numbers concerning the frequency of mandatory LWOP are as compelling as the Chief suggests.

Again, as to the frequency of the sentence, we have gone 40 years to get roughly 2000 mandatory juve LWOP sentences imposed, meaning we average over this period roughly 50 such sentences per year.  In footnote 1 of his dissent, the Chief notes than DOJ statistics indicate that 1,170 juves were arrested for serious homicide in 2009.  Taking just these numbers on their face, one could assert that a juve killer getting a mandatory LWOP sentence is roughly a 1 in 23 event.  I think it is possible (and surely "plausible") to describe a 1 in 23 event as "unusual," though surely reasonable minds could differ on this front.  (To use a sports metaphor, I think it would be reasonable to say it is "unusual" when the New York Mets win the World Series, even though they have done so twice in the last 45 years.)

Moreover, and perhaps more important, the Chief has fudged the numbers here a bit when referencing the 1,170 juves arrested for serious homicide in 2009, because juve homicides are way down compared to just a decade ago.  Once again, data here can be slippery, but I think it is fair to say there were on average much closer to 2000 juve homicides per year over the last 40 years.  Using 2000 as the denominator, the odds of a juve killer getting a mandatory LWOP is now a 1 in 40 event.  Something that happens only 2.5% of the time seems to me to be "unusual."

This all said, the Chief Justice is certainly on solid ground that a mandatory LWOP sentence for a juve killer is not as unusual as the juve LWOP nonhomicide sentences at issue in Graham.  But, critically, the text of the Eighth Amendment does not demand that a punishment be "very unusual" to be unconstitutional, it only demands that a punishment be "unusual."  Further still, I do not think this number crunching holds the secret to unlocking an idealized modern Eighth Amendment jurisprudence.  But, as will be my goal in all my posts in this series on the Miller dissents, I just want to flag the reality that a key forceful claim in this lead dissent can be viewed as suspect when fully unpacked.

June 26, 2012 in Assessing Graham and its aftermath, Data on sentencing, Jackson and Miller Eighth Amendment cases, Who Sentences? | Permalink | Comments (20) | TrackBack

Monday, June 25, 2012

All juvenile defendants get narrow procedural Eighth Amendment win in Miller

Though I am still trying to figure out all the opinions in today SCOTUS Eighth Amendment ruling in Miller v. Alabama (opinion here, basics here), I think I am correct to assert that the ruling is a (surprising?) big win for any and all older juveniles sentenced to LWOP under a mandatory sentencing scheme, while also appearing to be a (surprising?) potential loss for anyone hoping or expecting the Supreme Court to declare unconstitutional any and all LWOP sentences for any and all juvenile offenders.

Here are the paragraphs from the start and end of the majority opinion in Miller per Justice Kagan which lead me to the conclusion that the Miller ruling is pretty limited and narrow as a win for juvenile defendants:

The two 14-year-old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole.  In neither case did the sentencing authority have any discretion to impose a different punishment.  State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example,life with the possibility of parole) more appropriate.  Such a scheme prevents those meting out punishment from considering a juvenile’s “lessened culpability” and greater “capacity for change,” Graham v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 17, 23), and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties.  We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.”...

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.  By requiring that all children convicted of homicide receivelifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemesbefore us violate this principle of proportionality, and sothe Eighth Amendment’s ban on cruel and unusual punishment.  We accordingly reverse the judgments of the Arkansas Supreme Court and Alabama Court of Criminal Appeals and remand the cases for further proceedings notinconsistent with this opinion.

I am very much drawn to this procedural approach to the issues in Miller and Jackson, in part because this was the way I urged the Court to resolve these cases in this amicus brief I filed along with my students.  But, until I have a full chance to review the holding and dicta in the Miller opinions, I am not quite yet ready to praise without reservations this new important Eighth Amendment decision.

June 25, 2012 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (44) | TrackBack

Wednesday, June 06, 2012

NY Times debates "When to Punish, and When to Rehabilitate" for juve offenders

The Room for Debate section of the New York Times has this new set of pieces discussing punishments for juvenile offenders.  Here is the sections set up:

The Supreme Court is expected to rule this month on when, if ever, it is appropriate to sentence juvenile offenders to life without parole.  The arguments this spring showed the complexity of drawing the lines between child and adult, and between justice and cruelty.

When minors commit violent crimes, should they be treated differently from adults?  Is prison effective as a punishment and deterrent for juveniles, or does it harden a young person who might otherwise recover?

Here are the contribututions, with links via the commentary titles:

June 6, 2012 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Wednesday, May 30, 2012

Seeking advice on (and cites to) thoughtful state Eighth Amendment rulings

In all likelihood, we still have a few more weeks to wait for Supreme Court rulings in in Jackson v. Hobbs and Miller v. Alabama, the two big pending Eighth Amendment cases concerning the constitutionality of states sentencing 14-year-old killers to life without the possibility of parole.  In part because I hope the coming rulings in Jackson and Miller might spark and provide a foundation for a new round of interesting constitutional litigation over extreme prison sentences (and not just for young offenders), I am interested in gathering information about the most interesting and thoughtful Eighth Amendment rulings coming from state courts in recent years (particularly in the wake of the Graham ruling).

I am aware of some leading recent state court Eighth Amendment rulings in states like California and Florida and Iowa, all of which had to swiftly and directly confront the import and impact of the Graham ruling for a number of juvenile offenders serving very long prison terms for nonhomicide offenses.  But I know I have seen a few interesting and thoughtful post-Graham rulings concerning limits on adult sentences imposed by the Eighth Amendment (and/or similar state constitutional provisions) from state supreme courts in Ohio and South Dakota and others states.  And I suspect there are (lots of?) notable rulings from lower state appellate courts (both affirming and reversing long prison sentences) that I have not seen.

Ergo this "bleg" for help from readers:  Can and will folks via the comments to this post (or via an e-mail) suggest examples with cites/links to what they consider the most interesting and thoughtful Eighth Amendment rulings coming from state courts in recent years?

For purposes of this bleg, I am most interested in non-capital cases and especially those rulings involving challenges to adult sentences.  But I am happy to hear about just about any recent significant state court rulings (for or against a defendant) that thoughtfully engage with modern Eighth Amendment doctrines and/or with comparable state constitutional provisions.  Thanks!

May 30, 2012 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, May 29, 2012

Florida courts struggling with how to apply Graham to multi-decade juve sentences

This new AP piece, headlined "Fla. justices asked to rule on juvenile sentences," reports on how state courts in the Sunshine State are still struggling through the impact and implications of the Supreme Court's Eighth Amendment ruling limiting juve LWOP sentences for nonhomicide offenses.  Here are the details:

A three-judge appellate panel on Tuesday asked the Florida Supreme Court to decide the constitutionality of a 70-year prison sentence for a teenager convicted of attempted first-degree murder in Jacksonville.  The Florida 1st District Court of Appeal panel certified the issue to the justices as a question of great public importance.

Meanwhile, the state is appealing a decision by another 1st District panel that reversed a Pensacola inmate's 80-year sentence for a pair of armed robberies committed when he was 17.

They are among several cases arising from a U.S. Supreme Court ruling last year, also in a Florida case, that sentencing juveniles to life in prison for non-homicide crimes is unconstitutionally cruel and unusual punishment.  The high court ruling came in the case of Terrance Graham, who was initially sentenced to life in prison.  The sentence was then reduced to 25 years in prison....

The state is appealing a 1st District ruling in April that reversed Antonio Demetrius Floyd's 80-year sentence.  A three-judge appellate panel ruled a sentence that long is the functional equivalent of life in prison.  Floyd originally received a life sentence but it was reduced after the U.S. Supreme Court ruling.

Tuesday's certification came in the case of Shimeek Grindine, who was 14 when he shot a man during a 2009 robbery attempt.  The appellate court previously affirmed Grindine's sentence in December on a 2-1 vote.  The dissenting judge, James R. Wolf, wrote that he was at a loss on how to apply the U.S. Supreme Court's ruling in the case of Graham, also from Jacksonville, because the Legislature abolished parole in Florida.

"Is a 60-year sentence lawful, but a 70-year sentence not?" Wolf asked. "Regardless, it is clear to me that appellant will spend most of his life in prison. This result would appear to violate the spirit, if not the letter, of the  Graham decision."

The Legislature this year considered but did not pass bills that would have addressed the issue. They would have let a judge reduce a sentence of 10 or more years for non-homicide crimes committed as a juvenile once an inmate was at least 25 years old.

May 29, 2012 in Assessing Graham and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, April 22, 2012

George Will urges SCOTUS to find juve LWOP unconstitutional in all cases

I am intrigued and pleased to see that George Will's latest column in the Washington Post adopts the same position as I have embraced in the two juve LWOP cases, Miller and Jackson, now before the Supreme Court.  Will's column is headlined "Cruel and unusual — a test case," and here are excerpts:

Today, 221 years after the Bill of Rights was added to the Constitution, the Supreme Court is again pondering the Eighth Amendment’s proscription of “cruel and unusual punishments.” The case illustrates the complexity of construing some constitutional language in changing contexts of social science and brain science.

Evan Miller, whose five suicide attempts surely had something to do with the serious domestic abuse he suffered, was complicit in a brutal murder and in 2006 was sentenced to life in an Alabama prison without the possibility of parole. Kuntrell Jackson was involved in a video store robbery during which an accomplice fatally shot the store clerk. In 2003, Jackson was sentenced to life in an Arkansas prison without the possibility of parole. Miller and Jackson were 14 when they committed their crimes. Both were tried as adults before judges who had no discretion to impose any other sentence. Such mandatory sentences preclude judges weighing a consideration of Eighth Amendment jurisprudence — proportionality.

Before its June 26 recess, the Supreme Court will decide whether sentencing children to die in prison is cruel. It certainly is unusual: Although 2,300 current prisoners have been sentenced to life without parole for crimes committed as juveniles (age 17 or younger), just 79 prisoners in 18 states are serving sentences of life without parole for crimes committed when they were 13 or 14.

The court must consider not only what is society’s sense of cruelty but also how that sense should be shaped by what some new technologies reveal about adolescent brain biology. Shakespeare’s shepherd in “The Winter’s Tale” did not need to see brain scans to wish that “there were no age between ten and three-and-twenty, or that youth would sleep out the rest; for there is nothing in the between but getting wenches with child, wronging the ancientry, stealing, fighting.”

And with age-related laws restricting the right to drink, drive, marry, serve on juries, etc., all American states have long acknowledged adolescents’ developmental shortcomings. Neuroscience, however, now helps explain why aspects of adolescents’ brains make young people susceptible to impulsive behavior and to failing to anticipate and understand the consequences of it....

In 1958, the court said: “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Justice Antonin Scalia has warned: “A society that adopts a bill of rights is skeptical that ‘evolving standards of decency’ always ‘mark progress,’ and that societies always ‘mature,’ as opposed to rot.” But even the “originalist” Scalia, although disposed to construe the Constitution’s terms as they were understood when ratified, would today proscribe some late-18th-century punishments, such as public lashing and branding.

Denying juveniles even a chance for parole defeats the penal objective of rehabilitation. It deprives prisoners of the incentive to reform themselves. Some prisons withhold education, counseling and other rehabilitation programs from prisoners ineligible for parole. Denying these to adolescents in a period of life crucial to social and psychological growth stunts what the court in 2005 called the prisoner’s “potential to attain a mature understanding of his own humanity.” Which seems, in a word — actually, three words — “cruel and unusual.”

April 22, 2012 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics | Permalink | Comments (8) | TrackBack

Saturday, April 21, 2012

"Proportionality and Parole"

The title of this post is the title of this new article by Professor Richard Bierschbach, which is now available via SSRN.  Here is the abstract:

Commentators analyzing the Supreme Court’s watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping off point.

Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the state to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, individualized, and ultimately more reliable sentencing determinations. I expose this procedural and institutional side of parole’s constitutional significance, situate it within the constitutional landscape of sentencing, and sketch some of its implications for the future of sentencing regulation.

April 21, 2012 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, April 12, 2012

Florida appeals court finds 80-year juve prison sentence unconstitutional under Graham

Via this new AP article, which is headlined "Fla. courts struggle with juvenile sentencing," I learned of an interesting new state appellate opinion working through the implications of the Supreme Court's Eighth Amendment ruling in Graham. Here are excerpts from the relatively brief (and quite interesting) opinion in Floyd v. Florida, No. 1D11-1983 (Fla. 1st DCA Apr. 12, 2012) (available here):

Appellant was seventeen years of age in 1998 when he committed grand theft auto and two counts of armed robbery with a firearm, which, according to the prosecutor’s description during the resentencing hearing, was a pellet gun that was “realistic looking.” The trial court initially sentenced Appellant to life imprisonment on the armed robbery counts. After Graham was issued more than a decade later, the trial court resentenced Appellant to consecutive forty-year sentences on the two armed robbery counts.... In [Graham], the Court explained that while a state is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide offense, it must give defendants like Graham “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. It also set forth that while the Eighth Amendment does not foreclose the possibility that juveniles convicted of nonhomicide crimes will remain behind bars for life, it does “forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.” Id.

Since Graham was issued, we have reviewed two lengthy term-of-years sentences for juveniles who committed nonhomicide crimes. In Thomas v. State, 78 So. 3d 644, 646 (Fla. 1st DCA 2011), we noted that the Graham holding was limited to those juveniles who were sentenced to life without parole for nonhomicide crimes. Although we agreed that, at some point, a term-of-years sentence may become the functional equivalent of a life sentence, we rejected the appellant’s argument that his fifty-year concurrent sentences met that standard because, as found by the trial court, the appellant would be in his late sixties when he was released from prison, if he was required to serve the entirety of his sentence. 78 So. 3d at 646. In Gridine v. State, 37 Fla. L. Weekly D69 (Fla. 1st DCA Dec. 30, 2011), while again noting that, at some point, a term-of-years sentence may become the functional equivalent of a life sentence, we rejected the argument that a seventy-year sentence was unconstitutional.

In this case, we are faced with a situation where Appellant, if he serves the entirety of his sentence, will be ninety-seven when he is released. Even if Appellant received the maximum amount of gain time, the earliest he would be released is at age eighty-five.... This situation does not in any way provide Appellant with a meaningful or realistic opportunity to obtain release, as required by Graham. While the trial court was correct that the Eighth Amendment does not foreclose the possibility that juveniles who commit nonhomicide crimes will remain in prison for life, Graham also cautioned that states are foreclosed from making the judgment at the outset that those offenders will never be fit to reenter society. By sentencing Appellant to eighty years in prison, the trial court impermissibly made that judgment.

In reaching our decision, we are mindful of those cases, both in Florida and in other states, where the courts have deemed lengthy term-of-years sentences constitutional. See, e.g., Henry v. State, 37 Fla. L. Weekly D195 (Fla. 5th DCA Jan. 20, 2012) (holding that a ninety-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional); State v. Kasic, 265 P.3d 410, 415 (Ariz. Ct. App. 2011) (holding that a combined 139.75-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional); People v. Caballero, 119 Cal.Rptr.3d 920, 926 (Cal. App. Ct. 2011) (holding that a 110-year sentence for a juvenile defendant who committed nonhomicide offenses was constitutional). We disagree with those courts, however, that a lengthy term-of-years sentence cannot constitute the functional equivalent of a life sentence without parole. As the California appellate court reasoned in People v. Mendez, 114 Cal.Rptr.3d 870, 882-83 (Cal. Ct. App. 2010), while Graham’s holding was expressly limited to juveniles sentenced to life without the possibility of parole, courts should be guided by the principles set forth in Graham when evaluating a lengthy term-of-years sentence for a juvenile who was convicted of a nonhomicide offense. In holding that the juvenile defendant’s eighty-four-year sentence was unconstitutional, the court found that common sense dictated that a juvenile who is sentenced at the age of eighteen and who is not eligible for parole until after he is expected to die does not have a “meaningful” or, as the Supreme Court also described, “realistic” opportunity of release. 114 Cal.Rptr.3d at 883; see also United States v. Mathurin, No. 09-21075-Cr, 2011 WL 2580775 (S.D. Fla. June 29, 2011) (holding that a 307-year sentence for a juvenile who committed nonhomicide offenses was unconstitutional); People v. J.I.A., 127 Cal.Rptr.3d 141, 149 (Cal. App. Ct. 2011) (holding that the juvenile’s sentence, which had a minimum period of actual confinement of 56.5 years, was unconstitutional because the defendant would not be eligible for parole until about the time he was expected to die); People v. De Jesus Nunez, 125 Cal.Rptr.3d 616, 617 (Cal. App. Ct. 2011) (holding that the juvenile’s sentence, which precluded the possibility of parole for 175 years, was unconstitutional).

In this case, common sense dictates that Appellant’s eighty-year sentence, which, according to the statistics cited by Appellant, is longer than his life expectancy, is the functional equivalent of a life without parole sentence and will not provide him with a meaningful or realistic opportunity to obtain release. We, therefore, reverse Appellant’s forty-year consecutive sentences and remand for resentencing. In doing so, we encourage the Legislature to follow the Supreme Court’s guidance in Graham and to “explore the means and mechanisms for compliance” of its opinion. Until either the Legislature or a higher court addresses the issue, the uncertainty that has arisen in this area of the law since Graham was issued will undoubtedly continue.

April 12, 2012 in Assessing Graham and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Tuesday, April 03, 2012

Ohio Supreme Court finds required juve sex offender registration unconstitutional on numerous grounds

As reported in this lengthy official press release, the "Supreme Court of Ohio today voided as unconstitutional provisions of the Ohio Adam Walsh Act (AWA) that impose automatic lifelong registration and community notification requirements on certain juvenile sex offenders who were tried within the juvenile court system."  Here is more on this significant state Supreme Court ruling which has national implications:

In a 5-2 majority decision authored by Justice Paul E. Pfeifer, the court held that applying automatic lifetime sex offender registration and community notification requirements imposed by the AWA against an Athens County 15-year-old violated the prohibitions in the U.S. and Ohio constitutions against cruel and unusual punishment, and also violated the defendant’s constitutional right to due process of law....

ustice Pfeifer’s opinion was joined by Chief Justice Maureen O’Connor and Justices Evelyn Lundberg Stratton, Judith Ann Lanzinger and Yvette McGee Brown. Justices Terrence O’Donnell and Robert R. Cupp entered separate dissenting opinions.

The full opinions in In re C.P., No. 2012-Ohio-1446 (Ohio Apr. 3, 2012) (available here), run 53 pages and they are all must reads for any and everyone who follows juvenile justice issue or sex offender registration issues or Eighth Amendment jurisprudence.  Here is how the majority opinion gets started:

In this case we determine the constitutionality of R.C. 2152.86, which creates a new class of juvenile sex-offender registrants: public-registry-qualified juvenile-offender registrants.  These offenders are automatically subject to mandatory, lifetime sex-offender registration and notification requirements, including notification on the Internet.  We hold that to the extent that it imposes such requirements on juvenile offenders tried within the juvenile system, R.C. 2152.86 violates the constitutional prohibition against cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 9, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Ohio Constitution, Article I, Section 16.

April 3, 2012 in Assessing Graham and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, March 20, 2012

Miller and Jackson: The Court Struggles to Frame the Issue

On reading the transcripts in the two juve LWOP cases that the Supreme Court heard today, Miller and Jackson, I'm struck by how confused the Justices are about how to frame the issues. The advocates certainly didn't seem to give the Court the help it was looking for.

Arguing for petitioners, Bryan Stevenson proposed a rule that seemed a bald policy proposal rather than one rooted in any legal authority: a flat ban on life without parole for defendants who were under 15 at the time of the crime, and a ban on automatic or mandatory life without parole for those between the ages of 15 and 18. He tried to rely on several states' having set thresholds of 15 or older for life without parole but had a hard time establishing a benchmark or national consensus, given that 39 states authorize life without parole for at least some juveniles for at least some crimes.

The Court seemed to have no clearer ideas about how to frame the issue. Justice Scalia repeatedly referred to the jury as a safeguard in authorizing the penalty, even though, as Justice Kennedy pointed out, juries cannot be told of the penalty, so the idea that they are authorizing the penalty is a fiction. If anything, Justice Scalia's passion for jury checks upon the government (in the Apprendi line of cases) ought to cut the other way here, where prosecutors' charging decisions trigger mandatory sentences while leaving juries in the dark.

In keeping with his formalism, Justice Scalia (as well as Justice Alito) made some fair points about the dangers of slippery slopes and distinguishing sentences of life from 60 years, 50 years, et cetera. I was surprised that neither he nor anyone else reached back to the common law's benchmarks for youths, in which those under 7 are conclusively incapable of crimes and those under 14 are rebuttably presumed incapable, according to Blackstone. That might roughly track the line Stevenson was trying to draw, except that it would erect only a presumption rather than a flat ban.

Justice Kennedy complained about the false dichotomy proposed by petitioners: that mandatory life without parole was either categorically forbidden or categorically permissible. That framing is in part attributable to Justice Kennedy's prior ruling in Graham, which rejected the Chief Justice's case-by-case approach to categorically forbid life without parole for juveniles who do not kill. I don't see the Court repudiating Graham, but neither do I think the Court will simply extend those precedents.

Justice Sotomayor, interestingly, kept emphasizing the Enmund / Tison line of capital cases limiting which minor actors in a murder can receive the death penalty. The signal seems to be that all the death penalty doctrines, which were previously cabined by the death-is-different line, are now fair game for argument in this area.

In that vein, it struck me that no one did nearly enough with the Woodson / Lockett / Eddings line of death-penalty cases, which require that the trier of fact have some discretion to mitigate penalties based on the particulars of individual cases. From the tenor of the argument, it seemed that many Justices were looking for a safety valve, a way to allow individualization for the least bad juvenile accomplices rather than for a flat ban. Some of the Justices' comments indicated that they recognized that Miller's crime was more heinous than Jackson's and might be looking for ways to differentiate the two.

If the Justices wanted to regulate such decisions, there are subtler ways to do so than extending Graham's ban. They could require that juries be informed of the penalty and affirmatively authorize the sentence, by extending either Simmons v. South Carolina or Apprendi to inform juries and require them to affirmatively authorize the penalty. That could harken back to the colonial tradition (discussed in my last post) of allowing juries flexibility to show mercy. Or the Court could forbid using life without parole as a plea-bargaining chip, so that juvenile defendants don't wind up with the longest sentence simply because they are reckless in choosing to go to trial.

As with Florence v. Burlington County earlier this term, the Court granted certiorari to address what seemed an excess of the criminal justice system, only to discover that trying to fix the problem would entangle the Court in a thicket of arbitrary line-drawing. Perhaps the difficulty of the exercise will scare them off, or perhaps they will embrace Justice Sotomayor's suggestion that the category of life without parole be whittled down further to those who personally kill, intend to kill, or attempt to kill and are not simply lookouts or getaway drivers. Predictions here are too hazardous--the actual outcome is anyone's guess.

Stephanos Bibas

March 20, 2012 in Assessing Graham and its aftermath, Death Penalty Reforms, Guest blogging by Professor Stephanos Bibas, Jackson and Miller Eighth Amendment cases | Permalink | Comments (5) | TrackBack

Monday, March 19, 2012

Lots of media coverage anticipating SCOTUS arguments on JLWOP

Unsurprisingly, the media now has lots of discussion of kids sent to prison for life with the US Supreme Court due to hear oral argument tomorrow in Jackson v. Hobbs and Miller v. Alabama, two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole.  Here is just a sampling of some of the notable new pieces from both old and new media:

From ABC News here, "Juvenile Murderers: Is Life Without Parole Unconstitutional?"

From the Chicago Tribune here, "For young killers, 'a chance to have a chance'; Supreme Court to consider whether a life sentence without parole is too harsh for juveniles"

From the Daily Beast here, "Ex-Prisoners Say Life Term Is Cruel for Teens, As Case Hits High Court"

From UPI here, "Under the U.S. Supreme Court: When children commit murder"

In addition, a large number of news outlets have recent editorials urging SCOTUS to declare these juve LWOP sentences always unconstitution, including CNN and the Los Angeles Times and the New York Times and the Washington Post and lots of other smaller media outlets from all around the nation (as evidenced here and here and here).

Some recent related posts on Jackson and Miller cases:

March 19, 2012 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Monday, March 12, 2012

Taking stock of Michigan's interests in JLWOP issues before SCOTUS

10656781-largeA week from tomorrow, the US Supreme Court will hear oral argument in Jackson v. Hobbs and Miller v. Alabama, two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole.  As I have said before, all the primary briefing and amicus briefing in Jackson (linked here) and Miller (linked here) suggest that many SCOTUS Justices are likely to find these cases quite vexing in the wake of their Eighth Amendment work in Roper and Graham

And, as a new series of articles appearing in local papers, there are many states beyond these involved in the prosecutions before SCOTUS that will be following these cases very closely.  In particular, as this article from Michigan highlights, a few states that never before had to worry much about the Supreme Court's Eighth Amendment jurisprudence might have its criminal justice world rocked by Jackson and Miller.  The article appears to be the first in a week-long series gearing up for the SCOTUS arguments, and it is headlined "Judgment Day for Michigan's juvenile lifers: The U.S. Supreme Court considers banning life without parole for minors." Here are some excerpts:

He was 14 years, 11 months and 1 day old.  That night TJ Tremble rode his bike to the home of Peter and Ruth Stanley.  He had the .22-caliber rifle given him by his dad.  He had alcohol in his belly, some also from his dad.  And, police say, he had murder on his mind.

Before daylight, the Michigan youth would be behind bars for the rest of his life.  Or maybe not.  Next week, the U.S. Supreme Court will hear arguments on whether mandatory life sentences are too cruel for anyone so young.  It will be exactly 14 years, 11 months and 1 day since Tremble got on his bike.

Now 29, is it possible he has changed in the second half of his life, or that he can change with more time?  Should he at least have the consideration to one day walk free?  Or does death make it different?

In a state with more “juvenile lifers” than almost any other, the answers will resonate throughout Michigan as the high court addresses this: Are life sentences, without any chance of parole, unconstitutional even for juveniles who commit unthinkable crimes?  If the court’s earlier rulings are an indication, the answers could be yes....

An MLive Media Group investigation last November detailed how mandatory sentencing laws and get-tough reforms propelled Michigan near the top of the nation in juvenile lifers. Only Pennsylvania has more.

Nearly two dozen inmates were profiled.  Several had not committed the killing, but were present.  Sometimes the accomplices got more time than the killer, a quirk of mandatory sentencing laws, rejected pleas and juries.

In the midst of the series, the Supreme Court announced it would consider whether juveniles are too impulsive, their brains too underdeveloped, their remaining lives too long to receive the same sentences as adults in death cases.

This story, and stories to come this week, are meant to explore what that could mean for Michigan.  At present, 359 inmates are serving life in the state for crimes committed as minors, one out of seven nationally, according to MLive’s updated analysis.  The number was one higher until last month, when a prisoner from Kalamazoo was resentenced to a parolable term -- 33 years after he fled a grocery store robbery.  His partner stayed behind and killed the owner.

Six of Michigan’s 359 were 14 at the time of their crime -- the same as two inmates whose cases are being considered by the Supreme Court....

The nation’s youngest lifers are small compared to the 2,500 overall.  Seventy-three were 14 and 13 at the time of their crimes, according to Supreme Court filings.  The six serving time in Michigan for crimes as 14-year-olds are all males, as are most of the state’s juvenile lifers.  Unlike others, they are equally split between blacks and whites, and rural and urban backgrounds.

That’s contrary to the state’s juvenile lifer population overall: 69 percent black and largely from urban areas, according to MLive’s analysis.  Most were 17 at the time of their crime, but 45 percent were 16 and younger.  Wayne County sentenced the most, 41 percent, followed well back by Oakland, Genesee, Kent and Saginaw counties.

Of the class of 14-year-old lifers, all were sentenced after Jan. 1, 1997.  That’s when the age group was added to those who prosecutors could automatically try as adults for serious crimes.

Some recent related posts on Jackson and Miller cases:

March 12, 2012 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, February 28, 2012

Briefs available, and jurisprudential challenges clear, in Jackson and Miller JLWOP cases

I had the great pleasure yesterday to serve as a judge in the final round of OSU's moot court competition (with two terrific real Ohio jurists, as detailed here), and the case being argued was Miller v. Alabama, one of the two cases to be heard by SCOTUS next month concerning the constitutionality of sentencing a 14-year-old killer to life without parole.  These oral arguments, combined with all of the primary briefing and amicus briefing in Miller (linked here) and the companion case Jackson v. Hobbs (linked here), confirmed my instinct that many SCOTUS Justices are likely to find these cases quite vexing in the wake of their work in Roper and Graham.

Regular readers likely will not be surprised to hear that I am hoping the Supreme Court find the LWOP sentences imposed in Jackson and Miller to be unconstitutional.  But readers may be surprised to hear that I continue to be somewhat concerned by the Justices' decision in Graham to adopt a bright-line approach to the Eighth Amendment rather than the more nuanced case-by-case approach as was suggested by Chief Justice Roberts in his Graham concurrence.  And my concerned is heightened because the advocates and amici in Jackson and Miller are understandably inclined to push bright-line arguments: the defense side urges an Eighth Amendment rule that JLWOP is always unconstitutional (at least for younger juves), while the states seek a ruling that JLWOP us never unconstitutional for the crime of first-degree murder.

For a bunch of reasons (only some of which are set forth in this amicus brief that I put together along with a group of my students for these cases), I have an inherent disaffinity for rigid and simplistic bright-line rules at sentencing.  And, especially as the Justices seem finally ready to place a few (long overdue) constitutional limits on extremely severe prison sentences, I think Eighth Amendment jurisprudence would benefit from more nuanced case-by-case developments than by adoption (or rejection) of various bright-line rules.  Moreover, the case-specific offense and offender facts in Miller and especially in Jackson, seem to make lead me to think that embrace of bright-line rules in these cases could end up doing more long-term harm than good to sound constitutional (and sub-constitutional) sentencing jurisprudence.

February 28, 2012 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, December 26, 2011

Lengthy new New Yorker piece on juve LWOP and 14-year-old Michigan murderer

2012_01_02_p323The January 2, 2012 issue of The New Yorker (which had an awesome cover I could not avoid posting) has this lengthy piece discussing life without parole sentences for juvenilines. The piece, authored by Rachel Aviv, is titled simply "No Remorse: Should a teen-ager be given a life sentence?".  Here is the abstract provided by the magazine's website:

Shortly after midnight on March 6, 2010, Dakotah Eliason sat in a chair in his bedroom with a .38-calibre pistol in his hands, thinking about what the world would be like if he didn’t exist.  Earlier that night, Dakotah, who was fourteen, had taken his grandfather’s loaded gun off the coatrack.  Dakotah wondered if he was ready to die, and contemplated taking someone else’s life instead.  He walked into the living room and stared at his grandfather, Jesse Miles, who was sleeping on the couch. A retired machinist and an avid hunter, Jesse often fell asleep while watching the Discovery Channel.  For forty-five minutes, Dakotah sat on a wooden chair, three feet from his grandfather, and talked to himself quietly, debating what to do next. If he got hand towels from the bathroom, he could gag his grandpa. If he used a steak knife, the whole thing might be quieter.  He figured he’d use the cordless phone on his bed to report the crime.  He felt as if he were watching a movie about himself.  Finally, at just after three in the morning, he raised the handgun, his arms trembling, and shot his grandfather in the head.  “Man, I shot Papa!” he shouted.  He put the gun on the floor and rushed into his grandmother Jean’s bedroom. She yelled for Dakotah to call 911. When officers from the police department in Niles, a rural town in southeast Michigan, arrived seven minutes later, Dakotah was waiting outside next to his grandmother.

Tells about Dakotah’s arrest and his trial as an adult for first-degree murder, which in Michigan carries a mandatory sentence of life imprisonment without the possibility of parole.  Discusses the history and evolution of the American juvenile justice system. Although judges have long been attuned to the difficulty of trying mentally ill defendants, there is little recognition that people may be incompetent to stand trial because of their age. Each year, more than two-hundred thousand offenders younger than eighteen are tried as adults, yet only about half of them understand the Miranda warning.  Discusses recent and upcoming Supreme Court cases on the sentencing of juveniles.  Dakotah was found guilty of first-degree homicide and sentenced to life in prison without parole.  Writer visits Dakotah in prison.  Discusses his relations with family and with other prisoners.

This piece is quite timely as the top-side briefs are soon to be filed in the big Eighth Amendment juve LWOP cases of Jackson and Miller.  According to the docket information at the SCOTUS website, the petitioners' briefs are due to be filed on January 9, 2012 (and that, in turn, means the amicus briefs to be filed in support of the juve defendants will be filed by January 16, 2012).  I am very interested to see how both petitioners and amici develop their arguments in these cases because there are so many distinct ways to pitch the argument that their sentences are constitutionally problematic.

A few recent related posts on Jackson and Miller and related issues:

December 26, 2011 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (9) | TrackBack

Sunday, November 13, 2011

Great early commentary on SCOTUS taking "Another Bite at the Graham Cracker"

Scott Hechinger, who wrote one of the first thorough reviews of the Supreme Court's Eighth Amendment work in Graham (first discussed here), now has written this commentary for Georgetown Law Journal's online companion, Ipsa Loquitur, which explores the two new juve LWOP cases recently taken up by the Court.  The piece's full title is "Another Bite at the Graham Cracker: The Supreme Court’s Surprise Revisiting of Juvenile Life Without Parole in Miller v. Alabama and Jackson v. Hobbs," and here are snippets:

The Supreme Court’s decision this week to review the constitutionality of life-without-parole sentences imposed upon individuals convicted of homicide crimes committed at age fourteen and younger in Miller v. Alabama and Jackson v. Hobbs stunned sentencing law advocates and Court watchers, myself included.  This commentary will contextualize these two grants of certiorari within the Court’s shifting Eighth Amendment jurisprudence and the broader debate over the harshest forms of juvenile sentencing....

Miller and Jackson give the Supreme Court the opportunity to decide whether life without parole is unconstitutional when imposed on an individual fourteen years or younger (1) for a homicide offense, (2) as a result of a mandatory sentencing scheme, or (3) as a non-triggerman accomplice without a showing of “intent to kill.”  Notably, the cases also ask the court to recognize a new, distinct category of defendants — or subcategory of juveniles — deserving different treatment under the Eighth Amendment: those fourteen and younger....

The two somewhat more straightforward of these questions are (1) whether mandatory JLWOP is unconstitutional and (2) whether non-triggerman accomplice murder where no “intent to kill” is present falls within the ambit of Graham.  In both cases, the plain language of Graham itself seems to compel the affirmative answers the petitioners seek.

As to the mandatory nature of the sentencing schemes, the Graham court itself explicitly noted that “criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.”  Even Chief Justice Roberts, concurring in the judgment as to Terrance Graham’s sentence specifically, but arguing forcefully against the bright line drawn by the majority, demanded that sentencing judges be able to take the defendant’s youth into account on a case-by-case basis.  As to the issue in Jackson of whether non-triggerman accomplice liability should be considered “homicide” or “nonhomicide,” as already discussed above, the heart of Graham’s holding was the recognition that “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”

The Court, therefore, could — and may — decide to simply rule narrowly in both cases, foregoing altogether the third, yet more fundamental question of whether children fourteen and younger are a distinct class of juveniles, who require greater Eighth Amendment protection — where JLWOP is unconstitutional in all circumstances, including homicide — than older juveniles aged fifteen to seventeen.  Though the Supreme Court successfully dodged the issue last year by dismissing Sullivan, I find it hard to imagine a repeat this time around.  The strength of Miller and Jackson, and the reason I think the Court was willing to grant certiorari so close in time to Graham, derives from this urged distinction between a “young adolescent” and “older teen.”  This distinction is necessary to allow the Court, if a majority is reached, to rule that JLWOP is unconstitutional for murder without overturning Graham....

Perhaps the clearest distinction ... between the two age categories seems to be in national sentencing consensus.  For while there are currently over 2,500 fifteen-to-seventeen year olds serving JLWOP for homicide in forty-one states, there are only seventy-three children age fourteen and younger who have been sentenced to JLWOP in only eighteen states (compared to the approximately 129 juveniles of any age sentenced to JLWOP for nonhomicide offenses found to be “exceedingly rare” in Graham).  This “extreme rarity” — as the petitions put it — is even more striking considering that over the last twenty years 3,632 children age fourteen and younger were arrested for homicide, meaning that they received a life-without-parole sentence only two percent of the time.

A few recent related posts on Jackson and Miller and related issues:

November 13, 2011 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (8) | TrackBack

Wednesday, November 09, 2011

Notable early prediction on what SCOTUS will do with juve LWOP in Jackson and Miller

As first noted here, this last Monday the Supreme Court grant cert in two cases, Miller v. Alabama and Jackson v. Hobbs (which comes from Arkansas), involving life without parole sentences imposed on two defendants convicted of murders committed when they were only 14-years-old.   In this Boston Globe commentary about the cases, which is headlined "Supreme Court should rule against JLWOP," Professor James Alan Fox has this notable prediction about these cases:

If I were a betting man, I would wager heavily that the petitioners will indeed prevail.  In earlier cases before it, the Court has ruled that executing juveniles is unconstitutional as is life without parole for non-homicide juvenile cases.  In both instances, the Court was convinced that teenagers are different from adults in terms of emotional maturity and cognitive development, making them less culpable no matter how heinous the crime. Clearly, “adult time for adult crime” is little more than a catchy slogan.

In my view, the question is not so much whether the Court will overturn the sentences given Jackson and Miller, but how broadly the ruling will apply.  The Court could limit its decision to the youngest of defendants rather than all juveniles.  It also could apply its ruling to a narrow set of circumstances, such as only felony-murder, joint ventures, or cases with compelling mitigation.

This prediction and follow-up question seem spot-on to me, and I would add the predictive observation that not just Justice Kennedy, but also Chief Justice Roberts, are likely to prove to be key swing votes determining the outcome and scope of the decisions in Jackson and Miller

A few recent related posts on Jackson and Miller and related issues:

November 9, 2011 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (15) | TrackBack

Monday, November 07, 2011

Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases

EvanmillerThis AP story, which reports on the Supreme Court's important decision today to grant review in two cases involving Eighth Amendment challenges to life without parole sentences (basics here), provides this background on the defendants and crimes now to be assessed by the Justices:

The justices will examine a pair of cases from the South involving young killers who are serving life sentences for crimes they committed when they were 14.

Both cases were brought by the Equal Justice Initiative in Montgomery, Ala. The institute said that life without parole for children so young “is cruel and unusual” and violates the Constitution.  The group says roughly six dozen people in 18 states are under life sentences and ineligible for parole for crimes they committed at 13 or 14.

Kuntrell Jackson was sentenced to life in prison in Arkansas after the shooting death of a store clerk during an attempted robbery in 1999.  Another boy shot the clerk, but because Jackson was present he was convicted of capital murder and aggravated robbery.

Evan Miller was convicted of capital murder during the course of arson.  A neighbor, while doing drugs and drinking with Miller and a 16-year-old boy, attacked Miller. Intoxicated, Miller and his friend beat the man and set fire to his home, killing the 52-year-old man. Miller’s friend testified against him, and got life in prison with the possibility of parole.

The picture posted here comes from this EJI slide show of a number of youngsters who were sentenced to LWOP for crimes committed at age 14 or younger.  The picture is of Evan Miller, though his age in this picture in not clear and the slide show caption indicates Miller has just turned 18.  A later slide in the slide show reports that "over 60% of all 13 and 14-year-old children sentenced to death in prison in the U.S. are people of color."

I will be doing lots of posting with background on these two cases in the run-up to oral argument (which I expect will be in March).  In the meantime, here are links to the state court rulings to be reviewed by the Justices: Miller v. Alabama and Jackson v. Hobbs.  Both rulings provide a bit more background on the defendants' crimes and both rejected the Eighth Amendment arguments that these defendants have now before the Supreme Court.

November 7, 2011 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!

In this post last week, I asked "What might SCOTUS be doing with long-held cases involving 14-year-olds serving LWOP?".  This morning we got an answer via the Supreme Court's new order list: getting ready to grant cert and thereby tee up the biggest constitutional sentencing cases for the current SCOTUS Term!!

I do not yet know the details that surround the crimes and administration of LWOP punishments in Miller v. Alabama and Jackson v. Hobbs (which comes from Arkansas).  But I do know that that Miller and Jackson are now the two most important sentencing cases now on the Supreme Court's docket for the current Term.

I will have lots and lots and lots to say about these cases in the weeks and months ahead, but I will start by simply affording kudos to the Justices for taking on this important post-Graham issue head-on rather than dodging it for a few more years.

A few recent related posts from just the last few months:

November 7, 2011 in Assessing Graham and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (4) | TrackBack

Detailed coverage of Michigan's juve LWOP policies and practices

Lifermainfixx1-640jpg-8c8ebb1fa85c5afcMichigan's newspaper are collectively doing an amazing job providing both depth and breath to their coverage of Michigan's recent history and continuing practice of sentencing a significant number of serious juvenile offenders to life without the possibility of parole.  This lead article in this series, headlined "Why Michigan has more juvenile life sentences than almost any other state," has lots of background and data on this notable sentencing phenomenon, and the piece gets started this way:

They were teenagers once, and did horrible things, or were in horrible places. People died. Sometimes at their hands; sometimes not. But they were present. And for that, they were told they will die, too, in prison.

These are Michigan’s “juvenile lifers,” although most are much older now, sentenced to life in prison without chance of parole. And there are more in this state than in almost any other.

There is Keith Maxey, wounded in a drug theft gone bad. He was unarmed and fled, but another man was killed. A jury found the 16-year-old just as responsible as if he had pulled the trigger. Except the shooter got a lighter sentence.

There, too, are identical twins David and Michael Samel, arrested at 17 for beating a pool hall worker to death. Michael pleaded to a reduced charge and was released in 2009. David took his chances with a jury. He is in the 30th year of life without parole.

And there is Cedric King, 14 when he helped set up a marijuana thief to be killed. Except the court thought he was a year older, and the victim survived. Still, confusion has persisted for years over whether he was given the state’s severest punishment, or something less, a Booth Michigan investigation found.

As a federal judge in Detroit weighs whether such sentences are unconstitutional, reporters from seven newspapers and spread out across the state. They interviewed nearly two dozen inmates, including some who committed their crimes before they could drive.  They also talked to victims’ families, prosecutors, judges and lawmakers.   What they found was regret and bitterness, anger and forgiveness.  They also found an issue measured more in shades of gray than black and white.

Ask Shirley Schwartz what her brother would think of imprisoning juveniles for life, and she pauses. “That’s a really difficult question,” she finally says. Her college professor brother was “very liberal,” she recalls, an advocate for his urban neighborhood in Grand Rapids’ Heritage Hill.  That was where he met his killers; Jerry Freid died after being beaten to death with a baseball bat during a burglary by a 16- and a 17-year-old.

Ask Schwartz the same question, what she thinks of life sentences for juveniles, and she does not hesitate.   “I never believed in the death penalty,” she says. “After this happened, I was pretty sure I could pull the switch. You can afford to be a liberal when it doesn’t touch you.” Told one of her brother’s killers died in prison, Schwartz says one word. “Good.”

Michigan spends more than $10 million a year to house more juvenile lifers than all but one other state, Pennsylvania. In all, 358 inmates are serving life sentences for crimes committed from ages 14 to 17.  One in five has been in prison 25 years or longer. The oldest is 67, now that two older lifers have died.

All this could change.  A federal lawsuit pending in Detroit claims life without parole for juveniles 17 and younger constitutes cruel and unusual punishment.  It seeks mandatory parole reviews when young inmates reach 21, then every five years after. The lawsuit has had early success.  A judge in July threw out the claims of eight inmates imprisoned since their teens, ruling too much time had passed. But he allowed one inmate to move forward — Keith Maxey.

Deborah LaBelle, the lawsuit’s lead attorney, says she has met with about 100 of the inmates and corresponded with more than 300.  She blames a “toxic combination” in Michigan of juvenile reforms, mandatory sentences and immature judgment she says puts minors at a disadvantage in adult courts.

I find the the stories of— and constitutional challenges to — juve LWOP in Michigan to be especially interesting and important because Michigan was the first US state to abolish the death penalty way back in the 1840s.  It seems notable that the state's historic disaffinity for the ultimate punishment of death did not prevented it from embracing its functional equivalent in modern times.  Against this backdrop, one can also argue that the Supreme Court's Eighth Amendment rulings in Roper and Graham ought to have even more bite in Michigan: if those rulings are understood dynamically to prohibit giving juvenile offenders the most severe sentences available to adult, then arguably juvenile should not be able to receive LWOP for any crime in any state that does not have capital punishment.

November 7, 2011 in Assessing Graham and its aftermath, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Thursday, November 03, 2011

Florida defendant gets LWOP sentence for mere possession of (lots of) kiddie porn

The lengthy sentences sometimes given to downloaders of child pornography in federal court often are much longer than those handed out for this crime in state courts.  However, as detailed in this local piece from Florida, headlined "East Naples man sentenced to life in prison for child porn," some state sentences for child porn possession are even more extreme than federal law provides:  

An East Naples man was sentenced to life in prison Thursday following his conviction last month in one of the county’s largest child pornography cases.  The sentencing of Daniel Enrique Guevara Vilca, 26, came after a six-person jury found him guilty Oct. 6 on 454 counts of possessing child pornography.  Collier County sheriff’s investigators seized a computer from Guevara Vilca’s Landover Court apartment in January 2010 and found about 300 sexually explicit pictures containing children and 38 hours of taped child pornography.

Guevara Vilca faced more than 300 years in prison. The minimum sentence under a state score sheet was 152 years in prison. Guevara Vilca turned down a 25-year plea agreement before trial....

The sentence is the most severe in county history for a child pornography possession case. In 2009, Naples resident Douglas Deering received a 25-year sentence as part of a plea deal on 197 child pornography possession counts.

This companion piece, headlined "East Naples man's life sentence for child porn too harsh, attorney says," reports that the defendant's attorney will challenge the constitutionality of this sentence on appeal:

His defense lawyer, Lee Hollander, argues that others in Collier County have committed crimes more serious and violent, yet received lesser punishment than Guevara Vilca, who had no prior criminal record....  “People who are actually creating child porn or molesting children are getting lighter sentences than people who are in possession of it,” Hollander said.  “The guy is doing life in prison for looking at child porn. I’m sorry, but that just doesn’t compute.”

Less sympathetic Thursday was Assistant State Attorney Steve Maresca.  He said it was “offensive” to claim possession of child porn is a nonviolent crime, adding that consumers such as Guevara Vilca keep alive a market for children to be sexually abused.  “I think (the sentence) sends a message that this is a serious crime,” Maresca said. “This is a crime that continues on and on. Those images are there forever, which means some of those children have to deal with it forever.”

[Collier Circuit Judge Fred] Hardt had little choice but to follow state law in putting Guevara Vilca behind bars for life. A sentencing score sheet required a minimum sentence of about 152 years in prison — a far cry from the 25-year plea agreement Guevara Vilca rejected before the trial. The number and severity of the charges allowed Hardt to impose a life sentence under state law.

Hardt reviewed several factors that could have allowed him to depart from the minimum guideline, including the defendant’s mental health history and the constitutionality of the sentence. He found no reason to impose a lighter sentence. “The fact that this court might — and I’m not saying it does — believe that this sentence is disproportionate is not valid grounds for departure,” Hardt said.

Hollander said he plans to appeal the sentence, calling it a cruel and unusual punishment that violates the Eighth Amendment of the Constitution.

The principle of his claim — that a child porn consumer shouldn’t receive a life sentence when child sex abusers often receive lighter punishments — drew debate Thursday from state law professors.

“That argument can be made,” said Bob Dekle, a University of Florida law professor who spent about 15 years prosecuting sex crimes in northern Florida. “How good it is and how persuasive is another question. I don’t find it very persuasive.”...

Tamara Rice Lave, an associate law professor at the University of Miami with expertise in sex offender laws, suggested a life sentence for child pornography possession is excessive.  “I don’t think somebody should get life in prison for possessing child pornography that they didn’t produce,” Lave said.  “I don’t think it should be the same as somebody who commits first-degree murder or a string of violent crimes.  Part of what the justice system needs to do is punish proportionally.”

Hollander said his appeal of the sentence “probably is going to end up in front of the Florida Supreme Court in some shape or form.”

November 3, 2011 in Assessing Graham and its aftermath, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (29) | TrackBack