Tuesday, May 28, 2013
"Not Just Kid Stuff? Extending Graham and Miller to Adults"The title of this post is the title of this notable new article by Michael O'Hear available now via SSRN. Here is the abstract:
The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking.
This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.
Sunday, May 26, 2013
"Not -So -Sweet Sixteen: When Minor Convictions Have Major Consequences Under Career Offender Guidelines"
The title of this post is the title of this notable new Note by Andrew Tunnard just published in the Vanderbilt Law Review. Here are excerpts from this Note's introduction explaining its themes and scope:
[T]hree circuits [the Third, Seventh and Ninth have all] reasoned that adult convictions stemming from crimes committed before the age of eighteen can count toward the career offender sentencing provisions of the Guidelines (“Career Offender Guidelines”), regardless of whether the prior sentence was served in a juvenile facility. The Fourth and Eleventh Circuits stand in opposition; they apply the Career Offender Guidelines by inquiring into the nature of the sentence served. If a prior conviction resulted in a sentence served in a juvenile facility, this conviction cannot be counted toward a career offender determination.....
This Note looks beyond the circuit split to the larger juvenile justice issues implicated by these sentencing practices. Part II provides a brief overview of the juvenile justice system, juvenile transfer statutes, and the Guidelines. Part III explores the interpretive issues that have led to this circuit split. Part IV explains why resolving this circuit split requires more than choosing one side, and expands the discussion by analyzing the impact of recent judicial and scientific trends on the treatment of juvenile offenders in the adult system. Part V proposes that convictions occurring before the age of eighteen should not be factored into a career offender enhancement, regardless of the nature of the conviction or sentence. Ultimately, this solution creates a judicially manageable rule supported by Supreme Court precedent, state law, and the overall rehabilitative goals of the juvenile justice system.
May 26, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack
Thursday, May 23, 2013
NACDL rolls out state-by-state "excessive sentencing" proportionality litigation resource
I am extraordinarily proud and excited to report that, as detailed via a new NACDL news release, that the National Association of Criminal Defense Lawyers is now offering, "as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."
This resource has been given the name Excessive Sentencing: NACDL’s Proportionality Litigation Project its main page can be accessed via this link. Here is a bit more from the NACDL press release about the resource (and also my role therein):
Development of this new resource was inspired in part by the Supreme Court’s recent landmark constitutional decisions in Graham v. Florida, 130 S. Ct. 2011 (May 17, 2010), and Miller v. Alabama, 132 S. Ct. 245 (June 25, 2012), which pronounced new Eighth Amendment limits on when and how states can impose life without parole prison terms on juvenile offenders. The state profiles and related materials provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. They are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.
The primary academic supervisor of this resource is Professor Douglas A. Berman of The Ohio State University Moritz College of Law.... Professor Berman intends to update these materials regularly as developments in the law warrant and new information becomes available.
On the project’s landing page –- which can be accessed here -- there is a free, nearly 90-minute sentencing skills webinar featuring Professor Berman and Stephen Hardwick, an assistant public defender in Columbus, Ohio....
In addition, the project landing page has this additional account of what this resource now provides and hopes to help achieve:
The state profiles and related materials, which were prepared by recent law school graduates under the supervision of Professor Douglas A. Berman, provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. Unsurprisingly in the wake of Graham and Miller, there has been a significant increase in state-level litigation concerning lengthy prison terms, especially for juvenile offenders. The expectation is to have Professor Berman, in conjunction with the pro bono efforts other lawyers and aided especially by NACDL members and others who utilize this resource, revise and update these profiles regularly.
The profiles and charts are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms. The Supreme Court has repeatedly stressed that the Eighth Amendment’s “scope is not static [but] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958); state-level doctrinal and jurisprudential developments have thus always had heightened federal constitutional significance in this area of law. Moreover, state policy-makers and state jurists have long understood that the Eighth Amendment sets only a minimum constitutional floor limiting only the most extreme punishment policies and practices: state lawmakers and judges can and should feel not merely free, but institutionally obliged, to consider developing their own distinct legal limits on unduly harsh sentencing terms based on distinct state-level requirements and needs. The profiles posted here demonstrate that, even though there is some notable convergence in state-level proportionality doctrines, there are also some important variations and innovations concerning how states seek to protect its citizens from extreme or excessive criminal punishments.
I plan to discuss this web resource and the broader NACDL projectin a series of posts over the next few weeks and months. For now, I just hope everyone will take a look at what we have posted (and perhaps begin commenting on what other materials might be usefully assembled and linked in this space).
May 23, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack
Monday, April 29, 2013
"Is 100 Years a Life Sentence? Opinions Are Divided"The title of this post is the headline of this notable new Sidebar column in the New York Times by Adam Liptak. Hard-core sentencing fans should realize from the title that this is a story about one of the many doctrinal questions gurgling in lower courts three years after a landmark Eighth Amendment SCOTUS ruling. Here are excerpts from the column:
If people who are too young to vote commit crimes short of murder, the Supreme Court said in 2010, they should not be sentenced to die in prison. That sounds straightforward enough. But there are two ways to understand the decision, Graham v. Florida.
One is formal. The court may have meant only to bar sentences labeled “life without parole.” On that understanding, judges remained free to impose very long sentences — 100 years, say — as long as they were for a fixed term rather than for life....
The other way to understand the decision is practical. If the Eighth Amendment’s prohibition of cruel and unusual punishment requires that young offenders be left with a glimmer of hope that they may someday be released, it should not matter whether they were sentenced to life in so many words or as a matter of rudimentary actuarial math.
The lower courts are split on how to interpret the Graham decision, and the Supreme Court seems to be in no hurry to answer the question. Last week, the justices turned away an appeal from Chaz Bunch of Ohio, who was convicted of kidnapping and raping a woman in a carjacking when he was 16. He was sentenced to 89 years. Even assuming he becomes eligible for early release, he will be 95 years old before he can leave prison.
The United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the sentence, even as it acknowledged that there were two ways to approach the matter.... Until the Supreme Court speaks, Judge Rogers wrote, there is no “clearly established federal law” to assist Mr. Bunch, who was challenging his state conviction in federal court.
Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.” An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.
“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court.
Mr. Henry is black and was born in 1989. The life expectancy of black males born that year was 64, according to the Centers for Disease Control and Prevention. Life expectancy in prison is shorter than it is outside. Wherever the line is, then, a 76-year sentence would seem to be past it. “Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria?” Judge Griffin asked.
That is a reasonable question. But Bryan Stevenson, the executive director of the Equal Justice Initiative in Montgomery, Ala., said it was the wrong one. “The idea isn’t to get the person as close to death as possible before you deal with the possibility of their release,” he said. It is, rather, to give juvenile offenders a sporting chance, perhaps after decades in prison, to make the case that they deserve to get out, he said....
The number of juvenile offenders serving de facto life terms because of very long sentences is probably in the hundreds. Some of the appeals court judges who have upheld such sentences did not sound enthusiastic about the task. “Without any tools to work with, however, we can only apply Graham as it is written,” Judge Griffin wrote. “If the Supreme Court has more in mind, it will have to say what that is.”
April 29, 2013 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Thursday, April 25, 2013
Arkansas Supreme Court explains what Miller ruling means now for Kuntrell JacksonAs reported in this AP piece, in a ruling today the Arkansas Supreme Court "ordered a new sentencing hearing for Kuntrell Jackson, whose case was one of two that led to a U.S. Supreme Court decision last year throwing out mandatory life sentences without parole for juveniles." The nine-page ruling in Jackson v. Norris, 2013 Ark. 175 (April 25, 2013) (available here), is an interesting read for a number of reasons.
First, this latest round of habeas litigation for Kuntrell Jackson does not deal at all with any possible dispute over whether the Supreme Court's Miller ruling is to be given retroactive effect. This may because it appears the prosecution did not contest Jackson's request to be resentencing in light of Miller, as evidence by this sentence from the opinion: "We agree with the State’s concession that Jackson is entitled to the benefit of the United State’s Supreme Court’s opinion in his own case. See Yates v. Aiken, 484 U.S. 211, 218 (1988)."
Second, after parroting most of the key language from the SCOTUS Miller ruling, the Arkansas Supreme Court has an interesting discussion of how to revamp the sentencing provisions applicable to Kuntrell Jackson's conviction in the wake of Miller. Here is how that discussion finishes:
We thus instruct the Mississippi County Circuit Court to hold a sentencing hearing where Jackson may present Miller evidence for consideration. We further instruct that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony. For a Class Y felony, the sentence is not a mandatory sentence of life imprisonment without parole, but instead a discretionary sentencing range of not less than ten years and not more than forty years, or life. Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997).
Finally, we are mindful that Jackson argues that as a matter of Eighth Amendment law, and because of the unique circumstances of this case, he cannot be sentenced to life imprisonment. However, it is premature to consider whether a life sentence would be permissible given that a life sentence is only one of the options available on resentencing.
Notably, Jackson's crime took place in 1999, and I presume he has been in custody since his arrest. In other words, given that he has already served more than a decade in prison and that the Arkansas Supreme Court has decided he is now eligible for a sentence as low as 10 years, he could possibly upon resentencing get a term of only time served. Going forward, it will be interesting to see what sentence state prosecutors request and what sentence actually gets imposed on Jackson at his future resentencing.
April 25, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, April 09, 2013
Nebraska legislature debating "Miller fix" sentencing proposalsAs reported in this local article, headlined "Debate begins on juvenile sentencing bill," the single body that legislates in Nebraska is sorting through competing ways to deal with the Supreme Court's handiwork in Miller. Here are the basics:
Senators turned away two attempts Monday to amend a bill that calls for a minimum sentence of 30 years for juveniles convicted of first-degree or felony murder.
They defeated amendments that sought to make the minimum sentence 60 years and one that would have removed specific mitigating factors for judges to consider when sentencing....
A 30-year minimum sentence would provide discretion to the courts and is in line with current science on juvenile brain development, said Omaha Sen. Brad Ashford, who introduced the bill.
With a 30-year minimum sentence, the offender would be eligible for parole in 15 years. A judge would have the option of sentencing the convicted juvenile to more time -- or could impose a life sentence.
The Supreme Court ruled judges must consider a defendant's age, immaturity, impetuosity and failure to appreciate risks and consequences. They must take into account the family and home environment that surrounds the youth. The Nebraska bill would require the court to consider those mitigating factors, as well as the outcome of a comprehensive mental health evaluation by a licensed adolescent mental health professional.
On Monday, senators defeated an amendment by Omaha Sen. Scott Lautenbaugh, after dividing it into two questions: One that would have made the minimum sentence 60 years was defeated on a 21-23 vote. The other, which would have eliminated consideration of mitigating factors, was defeated on a 16-27 vote.
Ashford said in crafting a constitutional solution to the Nebraska life sentence, the committee knew the 35-year sentence in Pennsylvania and the 60-year sentence in Iowa were under constitutional attack. "Sixty is just beyond the pale. It would never, in my view, pass constitutional muster," he said.
Supporters of the amendment said the possibility of parole after 15 years was unacceptable. And judges already consider such factors as those listed in the bill. Omaha Sen. Beau McCoy said the discussion on the 60-year minimum sentence could resume Tuesday.
Among other stories, I find it interesting and notable that on-going constitutional litigation in other states over efforts to respond to Miller is clearly impacting how Nebraska's legislature is working through its legislative fix. I think famed constitutional theorist Alexander Bickel, who often spoke of the import and impact of a multi-branch national dialogue about core constitutional principles (see post here by Barry Friedman at SCOTUSblog), would be quite pleased to see how just such a dialogue is unfolding as to how best to operationalize the sentencing principles set out in the Miller ruling.
Tuesday, March 26, 2013
Pennsylvania Supreme Court addresses Miller's impact for some of its state's juvenile murderersAs reported in this local news article, headlined "Supreme Court: Juvenile killer to get new sentencing," Pennsylvania's top court handed down today a long-awaited ruling concerning the sentencing of juvenile offenders in the Keystone State. Here are the basics via this news report:
Teenage killer Qu'eed Batts will receive a new sentencing hearing for the gang-ordered murder he committed in Easton when he was 14, but he could still end up spending the rest of his life in prison nonetheless.
That's what advocates on both sides of Batts' case said Tuesday following a long-anticipated Pennsylvania Supreme Court ruling on how the state should address Batts and nearly 500 other once-youthful murderers whose automatic life without parole sentences were declared unconstitutional last year by the nation's highest court.
Given the federal ruling that such sentences are cruel and unusual punishment, Batts must be given a new sentencing hearing in which he receives a maximum sentence of life and a minimum sentence determined by the judge, said the opinion by Justice Thomas Saylor.
But what that minimum sentence might be was unanswered by court, with advocates for juveniles acknowledging that it probably could still be a life sentence, or a prison term that is so long that it is, in essence, life. "That could be anything," said Robert Schwartz, the executive director of the Juvenile Law Center of Philadelphia, which argued on behalf of Batts. "It appears that it also could be a minimum of life. There is absolutely nothing to guide [the sentencing judge's] discretion."
In reaching its decision, the Supreme Court addressed an issue that it struggled with during oral arguments in September: What to do over the fate of Batts and other juveniles murderers serving a now-unconstitutional sentence. The court rejected the stance taken by the Juvenile Law Center: that youths serving life terms should be resentenced under the charge of third-degree murder, which can bring at most 20 to 40 years in prison.
Northampton County First Deputy District Attorney Terence Houck said the ruling was a victory for prosecutors that leaves open the possibility that Batts should never be released, as Houck plans to argue at resentencing. "All they are saying is that there has to be a minimum. That minimum can be 150 years," Houck said, adding: "I don't think Batts should ever get out. He's the poster boy for life in prison." Batts, now 21, shot to death 16-year-old Clarence Edwards and wounded 18-year-old Cory Hilario in 2006 in the West Ward....
Under state law, murders in the first and second degree must result in a life sentence, with no other punishment possible — the exact scenario the nation's top court deemed unconstitutional for those under 18....
Pennsylvania leads the nation in the number of juveniles jailed for life, according to the Campaign for the Fair Sentencing of Youth, which opposes that penalty. Pennsylvania has 444 such inmates, followed by Michigan at 346 and Louisiana at 332, the Washington, D.C.-based group says. The Juvenile Law Center puts Pennsylvania's number closer to 480, including one inmate in Graterford State Prison who has spent 59 years behind bars.
The extended majority opinion in Pennslyvania v. Batts is available at this link, and a brief concurrence is available at this link. A quick read of the ruling suggests to me that Deputy DA Terence Houck is right to view this ruling as a victory for prosecutors: in addition to rejecting claims that the defendant should be subject to sentencing under a lesser-degree of homicide, the Batts court also rejected any claim that the Pennsylvania Constitution's prohibition of "cruel punishment" should be interpreted to give juvenile defendants any more protection than the US Constitution and its prohibition on "cruel and unusual punishment."
Finally, while the news report suggests this ruling resolves the fate of all juve LWOP sentences in Pennsylvania, my quick review of the Batts opinion suggests that the ruling does not address any Miller retroactivity rulings. For some reason, I had thought retroactivity issues were before the Pennsylvania's top court, but the Batts ruling states in its first sentence that it "concerns the appropriate remedy, on direct appeal, for the constitutional violation occurring when a mandatory life-without-parole sentence has been imposed on a defendant convicted of first-degree murder, who was under the age of eighteen at the time of his offense" (emphasis added).
How Appealing has a round up of additional press coverage concerning the Batts ruling here.
March 26, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack
Tuesday, March 19, 2013
Is TJ Lane eager to be the "uncommon" juvenile murderer who can constitutionally get an LWOP sentence?The question in the title of this post is prompted by this local news report about a high profile state sentencing proceeding which took place in Ohio this morning. The piece is headlined "Ohio school shooter, wearing 'KILLER' T-shirt, sentenced to life in prison," and here are excerpts:
An Ohio judge has sentenced T.J. Lane, the Ohio teen charged with shooting three students to death and wounding three others last February, to life in prison without parole.
Lane showed up to his sentencing wearing a white T-shirt with the word "KILLER" in capital letters scrawled on it -- the same word police say he had emblazoned on his shirt the day of the shootings at Chardon High School.
Lane, 18, pleaded guilty last month to all charges against him in the Feb. 27, 2012, shootings, in which he opened fire on a cafeteria table full of students in the rural community of Chardon.
In a brief statement during his sentencing on Tuesday, Lane flipped his middle finger to people in the courtroom, which included family members of his victims, reported NBC affiliate WKYC.com. He revealed his "KILLER" T-shirt to the court once he was inside, taking off a blue button-down shirt he had worn on the way in, the station reported.
Three students -- Demetrius Hewlin, 16; Russell King Jr., 17; and Daniel Parmertor, 16 -- were killed last February. Nate Mueller and Joy Rickers were wounded, as was Nick Walczak, who is paralyzed from the waist down, according to Reuters.
Lane has not given a motive for the shootings, which rocked the tiny town 30 miles outside Cleveland.
The families of the boys who died in the shooting have attended every one of Lane’s court hearings, The Plain Dealer said. "I feel he should be locked up for the rest of his life," Domenick Iammarino, grandfather of Daniel Parmertor told The Plain Dealer ahead of the sentencing. "It was a despicable, premeditated act. He should breathe his last breath in prison."
Those readers involved with juvenile sentencing or following closely modern Eighth Amendment rulings concerning life without parole sentences (LWOP) know that the Supreme Court in its recent ruling in Miller v. Alabama stated that "given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." It would seem that TJ Lane, who was well past his seventeenth birthday at the time of his seemingly random act of mass murder, was eager to use his time in court today to help ensure that he could be a "poster child" for the kinds of cases and kinds of juvenile defendants for which an LWOP sentence may still be constitutionally permissible.
A few recent related posts:
- "Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases"
- "Constitutional Line Drawing at the Intersection of Childhood and Crime"
- Is Miller an Eighth Amendment "bombshell or baby step"?
March 19, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (14) | TrackBack
Wednesday, March 13, 2013
Does new Eighth Amendment limits on juve sentencing redefine requirements of juve transfer proceedings?The question in the title of this post, to which I know many folks involved with juvenile justice reform have given thought, is prompted today by some interesting dicta at the end of an interesting Sixth Circuit concurring opinion rejecting an interesting habeas claim of ineffective assistance concerning a lawyers's failure to contest a Tennessee juve's transfer to adult court for a murder prosecution. The ruling in Howell v. Hodge, No. 10-5493 (6th Cir. Mar. 13, 2013) (available here), is mostly focused on habeas realities and Tennessee transfer laws, but these paragraphs at the end of Judge Stranch's concurring opinion out to be of broader interest:
I have recounted the evidence supporting the decision of the juvenile court at length because I believe it is important to clarify what I find problematic about the analysis of the expert reports and testimony. Clarification is especially important due to the significance of transferring a juvenile to adult court for trial and sentencing, even where a terrible crime such as this one is at issue. The United States Supreme Court’s recent decision in Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012), reviewed the considerations that it found must separate sentencing of adults from that of children, including: a juvenile’s impetuosity and lack of appreciation of risks and consequences; her inability to escape brutal and dysfunctional social or home situations; her incompetencies in dealing with the criminal justice system; and other factors relating to the diminished moral culpability of children. The differences that make juveniles more susceptible to influence also result in a heightened capacity for change and, therefore, a greater prospect for reform. Id. at 2464-65, 2469. Thus, in reviewing a decision to transfer a juvenile to adult court — especially one that results, as here, in a sentence of life without parole — Miller teaches that we must always be cognizant of “the great difficulty . . . of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’” Id. at 2469 (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)). These considerations and concerns are highlighted by the specific holding in Miller — that the Eighth Amendment prohibits states from imposing sentences of “mandatory life without parole for those under the age of 18 at the time of their crimes.” Id. at 2460.
Miller’s holding does not categorically foreclose the sentence of life without the possibility of parole imposed on Howell. Language in the Court’s opinion, however, highlights my concerns about the analysis necessary when making and reviewing decisions to transfer juveniles to adult court and raises questions regarding the propriety of the sentence of life without the possibility of parole in this case. The Miller majority observed that the reasoning of Graham v. Florida, 130 S. Ct. 2011 (2010), upon which it relied and which prohibits the imposition of life without the possibility of parole sentences on juvenile offenders for nonhomicide crimes, “implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” Miller, 132 S. Ct. at 2465. The majority also observed that “appropriate occasions for sentencing juveniles to [life without the possibility of parole] will be uncommon.” Id. at 2469. Moreover, in his concurring opinion, Justice Breyer argued that, based on Graham, “the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim.” Id. at 2475-76. As here, one of the defendants in Miller was found guilty of felony murder and was not responsible for the killing, and no evidence indicated that he had any intent to kill. Id. at 2477. In Justice Breyer’s view, before the State could continue to impose a sentence of life without parole for this defendant, it would first need to determine whether he “kill[ed] or intend[ed] to kill” because, “without such a finding, the Eighth Amendment as interpreted in Graham forbids sentencing [the defendant] to such a sentence, regardless of whether its application is mandatory or discretionary under state law.” Id. at 2475 (internal quotation marks omitted). Though the scenario posited has parallels to Howell’s situation, Miller is not necessarily dispositive and these issues are not before us today
March 13, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Friday, March 08, 2013
Is Miller an Eighth Amendment "bombshell or baby step"?I have the honor and pleasure of participating today in a fantastic Missouri Law Review symposium which is to explore the question in the title of this post. This webpage details today's schedule of panels and speakers, and this page reports on these essentials of today's event:
This year's Missouri Law Review Symposium will focus on constitutional, practical and policy matters, regarding juveniles and sentencing more generally, that now challenge courts, legislatures and attorneys in the opinion's wake.
On the constitutional front, in what ways are adult offenders who are subject to mandatory sentencing schemes asking lower courts to extend Miller, and how are those courts replying? The Miller opinion extends the Court's "death is different" doctrine to mandatory life-without-parole sentences for juveniles: should that doctrine, requiring individualized sentencing, apply in other contexts? How are state legislatures and Congress responding — and how should they respond — in designing sentencing procedures for juvenile homicide offenders? What special challenges will attorneys face when representing a juvenile in a life-without-parole sentencing trial? Morally, to what extent, if any, do recent discoveries in developmental psychology and neuroscience shed normative light for courts and legislatures on juvenile offenders.
Judge Nancy Gertner, Professor of Practice at Harvard Law School, will deliver the keynote address. She will be joined by eminent attorneys, inside and outside the academy, to explore these and other important questions regarding criminal sentencing in general and juvenile sentencing in particular.
March 8, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Monday, March 04, 2013
"Constitutional Line Drawing at the Intersection of Childhood and Crime"The title of this post is the title of this intriguing looking new paper now available via SSRN. Here is the abstract:
Three cases have arisen in the first seven years of the Roberts Court in which concepts of childhood have played a key role. First came Graham v. Florida, a 2010 case in which the Court held that the Eighth Amendment's Cruel and Unusual Punishment's Clause prohibited sentencing of juveniles to life without parole for non-homicide offenses. Next was J.D.B. v. North Carolina, a 2011 case in which the Court held that a juvenile's age is a relevant consideration when determining whether a reasonable person would believe he was in custody for Miranda purposes. Finally, the Court decided Miller v. Alabama, a 2012 case in which the Court held that the mandatory imposition of life without parole in cases where juveniles were convicted of homicide was cruel and unusual punishment because it precluded consideration of age and its attendant consequences.
Though at first glance these three cases appear consistent -- they each result in some degree of enhanced constitutional protection for juveniles -- a closer look reveals significant jurisprudential tension because the opinions are riddled with contradictions. This Article explores those tensions and the need to resolve them, focusing in particular on two major line-drawing problems that have emerged in the juvenile cases. The first is inherent to but largely ignored in the cases: whether and where to draw the line between childhood and adulthood. The second line is judicially manufactured: the line between homicide and non-homicide offenses. The Article describes and critiques the Court's line drawing and offers proposed solutions to remedy flaws in the Court's reasoning.
March 4, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, January 28, 2013
Intriguing Massachusetts developments in response to SCOTUS Miller rulingAs 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.
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.
Monday, October 22, 2012
Seventh Circuit panel rejects defendant's Eighth Amendment challenge to crack LWOP sentenceThe 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.
Monday, October 15, 2012
Without fanfare, Louisiana Supreme Court gives retroactive effect to Miller via brief orderAccording 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:
- All juvenile defendants get narrow procedural Eighth Amendment win in Miller
- Issue-spotting the mess sure to follow Miller's narrow (procedural?) ruling
- Basic mandatory juve LWOP head-count in light of Miller
- Data and resources to gear up for the coming Miller meshugas
- Taking stock on what Miller is likely to portend
- Pennsylvania Supreme Court hearing arguments on (first?) major Miller retroactivity cases
- Intermediate Florida appeals court decides Miller is not to apply retoractively
- One of thousands of post-Miller personal (and sentencing) stories
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:
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:
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.
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?The 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 MillerOver 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.