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.
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.
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:
- 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
- Questioning forceful (but suspect) claims by the varied Miller dissents: the Roberts/textualism numbers
- Questioning forceful (but suspect) claims by the varied Miller dissents: the Thomas/originalism methods
- Questioning forceful (but suspect) claims by the varied Miller dissents: Alito/legislative judgment concerns
- Criticism of Justice Alito's one-size-fits-all dissent in Miller
- Guest post on Miller from Jennifer Bishop Jenkins, President of the National Organization of Victims of Juvenile Lifers
- Guest post on Miller from another thoughtful victim of a teenage killer
- Iowa Gov uses clemency power to devise (astute? sinister?) response to Miller for juve LWOPers
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.
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.
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 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:
"Prison Is Too Violent for Young Offenders" by Gary Scott, inmate, San Quentin
"In Sentencing, Remember the Victims" by Jennifer Bishop-Jenkins, National Organization of Victims of Juvenile Lifers
"Behind Bars, Teenagers Become Prey" by T.J. Parsell, writer and human rights activist
"Adult Punishments Should Be an Option" by Charles Stimson, Heritage Foundation
"Prison Does Not Make Good Citizens" by R. Daniel Okonkwo, D.C. Lawyers for Youth
"The Race Factor" by Jennifer L. Eberhardt and Aneeta Rattan, Stanford University
"Seeing Juveniles’ Maturity, and Immaturity" by Laurence Steinberg, adolescent brain researcher
"Teenagers Too Often End Up in Solitary" by Amy Fettig, A.C.L.U.
"The Cost of Prison, in Dollars and Lives" by Michael Jacobson, director, Vera Institute of Justice
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 (2) | 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.
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.”
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.
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.
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