Tuesday, June 26, 2012

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

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

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

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

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

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

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

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

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

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

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

Monday, June 25, 2012

All juvenile defendants get narrow procedural Eighth Amendment win in Miller

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

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

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

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

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

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

Wednesday, June 06, 2012

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

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

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

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

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

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

Wednesday, May 30, 2012

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

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

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

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

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

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

Tuesday, May 29, 2012

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

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

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

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

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

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

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

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

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

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

Sunday, April 22, 2012

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

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

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

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

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

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

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

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

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

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

Saturday, April 21, 2012

"Proportionality and Parole"

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

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

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

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

Thursday, April 12, 2012

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

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

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

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

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

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

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

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

Tuesday, April 03, 2012

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

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

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

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

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

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

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

Tuesday, March 20, 2012

Miller and Jackson: The Court Struggles to Frame the Issue

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

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

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

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

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

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

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

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

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

Stephanos Bibas

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

Monday, March 19, 2012

Lots of media coverage anticipating SCOTUS arguments on JLWOP

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

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

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

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

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

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

Some recent related posts on Jackson and Miller cases:

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

Monday, March 12, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some recent related posts on Jackson and Miller cases:

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

Tuesday, February 28, 2012

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

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

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

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

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

Monday, December 26, 2011

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

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

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

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

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

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

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

Sunday, November 13, 2011

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

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

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

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

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

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

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

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

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

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

Wednesday, November 09, 2011

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

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

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

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

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

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

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

Monday, November 07, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Detailed coverage of Michigan's juve LWOP policies and practices

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 03, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 01, 2011

What might SCOTUS be doing with long-held cases involving 14-year-olds serving LWOP?

At SCOTUSblog, John Elwood does amazing work keeping up with the cases that the US Supreme Court is keeping in its midst for an unusually long time through his periodic post labelled "Relist (and Hold) Watch."  And, in this latest installment, he notes that these two post-Graham challenges to LWOP sentences for 14-year-old murderers have now be relisted a fourth time:

Miller v. Alabama (relisted after the 9/26, 10/7, 10/14, and 10/28 Conferences)

Docket:  10-9646

Issue(s):  Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.

Certiorari stage documents:

Jackson v. Hobbs (relisted after the 9/26, 10/7, 10/14, and 10/28 Conferences)

Docket:  10-9647

Issue(s):  Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.

Certiorari stage documents:

As Jon Elwood repeatedly explains, "if a case has been relisted once, it generally means the Court is paying close attention, increasing the chance of a grant.  But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert."  Neither Miller nor Jackson would be suitable for summary reversal, so I think the smart money is on one or more Justices putting together a dissent from the denial of cert (and perhaps also one or more Justices putting together a concurrence from the denial of cert).  Of course, we are all just speculating here, but I think maybe some readers would like to be involved in this SCOTUS post-Graham Eighth Amendment speculation.

November 1, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, September 15, 2011

Mandatory life (with parole) sentence for "lewdness with child under 14" before Nevada Supreme Court

The folks at Families Against Mandatory Minimums have this new press release spotlighting that a very interesting state mandatory minimum sentencing case is to be heard by the Nevada Supreme Court this afternoon.  Here are the basics:

[Michelle Lyn] Taylor, 34, was convicted under Nevada’s “life-for-lewdness” law in November 2009 for drunkenly forcing a 13-year-old boy to touch her breast and demanding (unsuccessfully) that the boy engage in sex.   Neither the judge, nor one of the original legislative sponsors of the lewdness law, felt the punishment fit the crime.  Still, the existence of the mandatory minimum law forced the court to sentence Taylor to life in prison with possibility for parole in 10 years....

FAMM noted in its [amicus] brief [available here] that Nevada is the only jurisdiction in the country that requires a mandatory life sentence for lewd conduct.  The majority of states provide punishment of between several months to five years in prison.  The minority of states that permit more severe penalties do so without utilizing mandatory minimum sentences anywhere near the life sentence required under Nevada law.  Indeed, only two states even allow, in the broad exercise of a sentencing court’s discretion, that a life sentence might be imposed for such conduct in the most egregious cases.

In addition to the remarkable facts involved in this Nevada case, I find the legal issues here quite fascinating in part because there is a claim here pressed based on the Nevada Constitution's prohibition of "cruel or unusual" punishment as well as one based on the Eighth Amendment prohibition on "cruel and unusual" punishments. In addition, for modern Eighth Amendment jurisprudence in the wake of the Supreme Court's recent ruling in Graham, it is unclear just how much constitutional significance there is to the fact (1) that this life term was a result of a mandatory sentencing provision, and (2) that the defendant is eligible for (and probably would receive) parole before the end of this decade.

Related posts:

UPDATE: A helpful reader wisely suggested I tweak the title of this post to clarify that the offense of conviction in this notable case concened "lewdness with child" under the age of 14.  In addition, I thought it useful to link to the applicable Nevada statute and reprint its basic provisions:

Nevada Revised Section 201.230: Lewdness with child under 14 years; penalties.

1.  A person who willfully and lewdly commits any lewd or lascivious act, other than acts constituting the crime of sexual assault, upon or with the body, or any part or member thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child, is guilty of lewdness with a child.

2.  Except as otherwise provided in subsection 3 [providing for mandatory LWOP for repeat offender], a person who commits lewdness with a child is guilty of a category A felony and shall be punished by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served, and may be further punished by a fine of not more than $10,000.

September 15, 2011 in Assessing Graham and its aftermath, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, September 12, 2011

Police and prosecutors lamenting juve crime wave in Florida

Any and everyone down in Florida (whether for a football game or a GOP debate tonight) apparently needs to be on the watch for teenage career criminals, at least according to this recent South Florida Sun-Sentinel report headlined "Hard-core juveniles at heart of property crime wave."  (Hat tip: The Crime Report).   Here is the start of the report:

A new type of career criminal is emerging — neighborhood teens. They're breaking into cars, burglarizing homes and robbing people on the street.

Police and prosecutors across South Florida say they are seeing hard-core youth committing burglaries and robberies over and over again and that they are largely helpless to stop what's happening.  Some have been arrested dozens of times in the span of their short life, often while they are on probation or awaiting trial for earlier charges.

In just Fort Lauderdale, a Police Department crime analysis shows that a small group of teens — just 50 youths; some as young as 13 — were charged with almost 700 crimes last year.  They accounted for more than half of all the juvenile arrests in the city. Police brass believe the youths are partly to blame for a recent increase in property crime.

Fort Lauderdale is not alone.  Prosecutors in Palm Beach County were recently surprised when a youth who faced more than a dozen burglary and property crime charges was sentenced to about six months in a state residential treatment facility.

Then, there was the case last week of a 15-year-old from Pompano Beach.  He was charged with robbing two people, punching a behavioral specialist at school and throwing rocks at cars and houses.  Despite a rap sheet that included previous cases of assault and theft, the teen was sentenced to probation and 80 hours of community service.

"We aren't talking about kids arrested for the first time and whether they can be rehabilitated," Fort Lauderdale Police Chief Frank Adderley said.  "These are prolific offenders, and there is no incentive for them to stop.  They have no fear and know the justice system is a revolving door."

The concern comes even though Florida has long had a get-tough reputation on juvenile offenders.  The state has come under intense criticism for incarcerating high numbers of youths and doling out more life sentences to juveniles for non-murder cases than all other states combined.

Still, prosecutors in Broward and Palm Beach counties say teens who commit property crime usually are sentenced to probation.  At most, they are sent to a residential treatment facility for about six months.  Juveniles also cannot be held for more than 21 days while awaiting trial regardless of the charges or their history and then have limited state supervision.

Dare one even suggest that this new Floridian juve crime problem is, perhaps just in some very indirect way, somehow a consequence of the Supreme Court's ruling in Graham prohibiting LWOP for even repeat juve nonhomicide offenses?  I would be very skepitcal of anyone making such a causal claim, but it is hard not to think of the Graham Eighth Amendment ruling in light of this press report.

September 12, 2011 in Assessing Graham and its aftermath, Offender Characteristics | Permalink | Comments (6) | TrackBack

Friday, September 09, 2011

Does Graham create constitutional problems for juve LWOP for murder accomplice?

The question in the title of this post is the one now facing the Arkansas Supreme Court, as detailed in this local article headlined "Teen’s life sentence unconstitutional, lawyer argues."   Here is how the piece begins:

A lawyer for an Arkansas teenager serving a life sentence for capital murder argued today before the Arkansas Supreme Court that the sentence was unconstitutional because his client was only 16 at the time of the crime and did not fire the fatal shot.  A lawyer for the state told the justices the sentence is consistent with federal and state case law.

The high court heard oral arguments but did not immediately issue a ruling in an appeal by Lemuel Session Whiteside, 19, who was convicted of capital murder and aggravated robbery and sentenced to life in prison without possibility of parole in the January 2009 shooting death of James London Sr., 30, in Little Rock.

Authorities never accused Whiteside of shooting London.  Cambrin Sain Barnes admitted to being the gunman and pleaded guilty to first-degree murder and aggravated robbery in exchange for a 40-year sentence.  But prosecutors said Whiteside — who declined to plead guilty — gave the murder weapon to Barnes and told him where to find London.

Tom Sullivan, attorney for Whiteside, told the justices today that in the case Graham v. Florida, the U.S. Supreme Court said a sentence of life without parole is too severe for a juvenile for any offense other than homicide.  Such a sentence violates the Eighth Amendment protection against cruel and unusual punishment, the court said in that decision.

Sullivan said that as he interprets the decision, Whiteside should not have been sentenced to life without parole because he did not kill London. “In this case the defendant is not the shooter, and there has been no proof of an intent to kill,” he said.

Justice Robert Brown asked Sullivan if he was asking the justices to expand the Graham v. Florida decision.  Sullivan said he was only asking them to interpret how the decision should apply to a defendant who is convicted of murder but did not kill anyone.  The decision “leaves open this middle ground,” Sullivan said. 

September 9, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (9) | TrackBack

Thursday, September 08, 2011

Eleventh Circuit upholds LWOP for 17-year-old murderer who got pre-Roper death sentence

As detailed in this AP report, "federal appeals court on Wednesday held that juveniles convicted of murder can be sentenced to life in prison without parole."  Here are more of the details of the ruling:

The decision came in the case against Kenneth Loggins, who was convicted in Alabama of killing a hitchhiker in 1994 and originally sentenced to die. He was 17 at the time of the killing, so his punishment was reduced to life without parole because the Supreme Court banned such executions in 2005.

His attorneys had urged the three-judge panel to broaden a 2010 Supreme Court by including murders as an offense that can't carry a life sentence.  That 5-4 ruling held that juveniles cannot be sentenced to life in prison without parole if they haven't killed anyone, and ordered the courts to allow them a "meaningful opportunity to obtain release."...

The decision, written by Circuit Judge Ed Carnes, said "there's nothing in law or logic" to support the argument that a state shouldn't be allowed to impose the next most severe punishment if a death penalty sentence is banned.   The 11th Circuit has jurisdiction over federal cases in Georgia, Alabama and Florida, but lawyers in other areas will likely use the opinion to back up their own arguments.

Carnes had been the head of Alabama's capital punishment unit before he joined the court in 1992. He also wrote that the state shouldn't be blocked from imposing the prison sentence because it "lacked the clairvoyance to know that the Supreme Court would do an about-face and rule out death sentences for seventeen-year-old murderers."

In the decision, he said only a few jurisdictions have repealed laws permitting life without parole sentences for homicides committed by juveniles, and that the national consensus seems to be in favor of keeping those laws on the books.  "The long-term national trend is not away from life without parole sentences for homicides committed by juveniles but toward them," he said.

The ruling comes in a case involving the gruesome murder of Vickie Deblieux, who was picked up by Loggins and three other teens and taken to a secluded rural area as she was traveling to her mother's home in Louisiana.   One of the men hit Deblieux in the head with a beer bottle and then tackled her when she tried to run away, and all four savagely kicked her, the court said. When they realized she was still alive after the vicious beating, Loggins stood on her throat until she died, the ruling said. Loggins and two others later mutilated the body by cutting off her fingers and thumbs and removing part of a lung. They were arrested after one of the teens was reported to have been showing one of the victim's severed fingers to friends.

The three others -- who were 19, 17 and 16 at the time of the killing -- were also convicted of the slaying and sentenced to either death or life in prison.

The unanimous panel opinion in Loggins v. Thomas, No. 09-13267 (11th Cir. Sept. 7, 2011) (available here), runs 61 pages and effectively covers lots of post-Roper and post-Graham ground.  

I suspect the Supreme Court will eventually take up the issue of LWOP sentences for very young murderers.  But, for many reasons, the case of a 17-year-old murderer involved in a brutal thrill kill is surely not the kind of case that advocates against juve LWOP should want to be getting a lot of continued attention.

September 8, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Wednesday, August 17, 2011

"Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"

The title of this post is the title of this notable new piece by Professor Craig Lerner now available on SSRN. Here is the abstract:

Can the young be held accountable for their crimes?  At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years.  In Graham v. Florida, the United States Supreme Court rejected this principle, and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. Embedded in the Court’s holding, this Article argues, are a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides, and both this assumption and this claim are demonstrably false in a nontrivial number of cases.

This Article focuses on the facts of some of these cases. One cannot assess the culpability of particular defendants unless one considers, without artful euphemisms or convenient elisions, what they did. And what certain crimes reveal is that that there are violent juvenile offenders -- fortunately rare -- who are as least as mature and culpable as the typical adult violent offender.  The Article also considers lower court applications of Graham and finds, for the most part, marked skepticism.  The Supreme Court’s general theory of juvenile immaturity has failed to impress judges confronting particular cases. The Court’s central claim about the relative culpability of adult and juvenile offenders originates from a failure to confront inconvenient facts and a belief that human nature is sufficiently captured by the three standard deviations that surround one’s own experience in the world.  Lower court judges have access to a wider data set in reaching contrary conclusions.

August 17, 2011 in Assessing Graham and its aftermath, Offender Characteristics | Permalink | Comments (3) | TrackBack

Tuesday, August 02, 2011

"Graham on the Ground"

The title of this post is the headline of this interesting new piece by Professor Cara Drinan discussing various aspects of the legal aftermath in the wake of the Supreme Court's landmark Eighth Amendment ruling in Graham v. Florida.  Here is the abstract:

In Graham v. Florida, the Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole.  While states need not guarantee release to these juvenile offenders, they cannot foreclose such an outcome at the sentencing phase.  Scholars have identified several long-term ramifications of Graham, including its likely influence on juvenile sentencing practices and on retributive justice theory.  What has yet to be examined are the thorny legal issues raised by Graham that judges and lawmakers need to address in the very short term.  To whom does the Graham decision apply?  What is the appropriate remedy for those inmates?  What affirmative obligations does the Graham decision impose upon the states?  These and other pressing questions are before judges and legislators today, and in this Article I endeavor to answer them.

In Part I, I briefly describe the Graham opinion and survey what scholars to date have identified as salient aspects of the decision.  In Part II, I seek to provide a blueprint for lower courts and legislatures implementing the Graham decision.  Specifically, I argue that: 1) Graham is retroactively applicable to all inmates who received a life-without-parole sentence for a non-homicide juvenile crime; 2) those inmates entitled to relief under Graham require effective representation at their resentencing hearings; 3) judges presiding over resentencing hearings should err in favor of rehabilitation over retribution to comport with the spirit of Graham; and 4) long-term legislative and executive action are necessary in order to make the promise of Graham a reality.  Finally, in Part III, I situate Graham in the context of our nation’s ongoing criminal justice failings.  While the sentence challenged in Graham ought to be viewed as a symptom of such failings, the Graham decision may offer a window of hope for reform on that same front.

August 2, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, June 30, 2011

District judge finds Eighth Amendment problem with stacked mandatories for juve gun offender

Thanks to this post at the Southern District of Florida Blog (which always has lots of interesting coverage of federal law and sentencing), I have learned of this important Eighth Amendment ruling based on Graham and the application of federal gun mandatories.  Here are key excerpts from Judge Cook's opinion in US v. Mathurin:

Here, Mathurin faces a mandatory minimum 307-year sentence.  Because Congress hasabolished the federal parole system, this sentence gives Mathurin no possibility of release basedon demonstrated maturity and rehabilitation.  A significant portion of this sentence is comprisedof mandatory 25-year consecutive sentences required under § 924(c)(1)(D)(ii), which provides:

[N]o term of imprisonment imposed on a person under this subsection shall runconcurrently with any other term of imprisonment imposed on the person,including any term of imprisonment imposed for the crime of violence or drugtrafficking crime during which the firearm was used, carried, or possessed.

Under Graham, this provision of § 924(c)(1)(D) is unconstitutional as applied to Mathurin, a juvenile offender convicted of non-homicide offenses.  To apply the statute in accordance withthe Eighth Amendment, severance of the constitutionally offensive portion of § 924(c)(1)(D) is necessary....

[C]onsistent with Congress’s intent and with Supreme Court precedent on thedoctrine of severability, I find that the language of § 924(c)(1)(D)(ii) mandating consecutive sentences for subsequent violations is excisable from the remainder of the statute as it applies to Mathurin and similarly situated juvenile defendants.  This holding is limited to the unique circumstances of this case, which involves a non-homicide juvenile offender sentenced under § 924(c)(1) for multiple counts of possession of a firearm during the commission of a violent crime; it does not affect the consecutive sentence requirement as applied to adult offenders or juvenile offenders under different factual circumstances....

Under this narrow holding of this case, Mathurin’s sentence amounts to 492 months in prison.  Additionally, under 18 U.S.C. § 3624(b), Mathurin may reduce his sentence by 54 days per year of incarceration if he “display[s] exemplary compliance with institutional disciplinaryregulations.”  Pursuant to 18 U.S.C. § 3624(b), Mathurin may reduce his total sentence byapproximately 5.5 years.  Thus, if Mathurin demonstrates maturity and rehabilitation, he may beeligible for release at around the age of 53.

Mathurin’s total term of incarceration, consideringthe potential reductions under 18 U.S.C. § 3624(b), complies with both the Eighth Amendmentand Congress’s statutory requirements.

June 30, 2011 in Assessing Graham and its aftermath, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Tuesday, June 21, 2011

"The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"

The title of this post is the title of this new piece by a doctor in a forthcoming medical journal which in now available via SSRN.  Here is the abstract:

In the 21st century’s first decade, the U.S. Supreme Court has set two key constitutionally-based limits to punishment of juveniles.  In Roper v. Simmons (2005) the Court barred imposition of the death penalty for crimes committed by juveniles, and in Graham v. Florida (2010) it forbade life imprisonment without possibility of parole (LWOP) for juveniles who commit non-homicide offenses. Both decisions held these penalties violated the Eight Amendment’s prohibition on cruel and unusual punishment because they were disproportionate given juveniles’ distinctive cognitive, psychosocial and neuroanatomical characteristics.  Roper and Graham reflect two decades’ long trends, one legal and one clinical, whose interaction will control the legal system’s approach to juvenile justice for some time.

Since 1980 more children, at younger ages, became legally susceptible to much harsher punishments (through trial as adults), yet over the same period clinical skepticism concerning the cognitive, psychosocial, and neuroanatomical development of youth that was required for the legal process, and the appropriateness of these sentences, grew. In Roper and Graham the Court resolved this paradox by siding clearly with clinicians . The Court’s adoption of a developmental model of culpability, with heavy reliance on cognitive psychological research concerning risk-taking, susceptibility to peer pressure and mutability of character, as well as MRI and fMRI studies of adolescent and young adult brain development, may produce future challenges to lengthy juvenile sentences, to broad provisions allowing transfer of juveniles for trial as adults and even possibly to younger juveniles’ competence to stand trial.

June 21, 2011 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Monday, June 06, 2011

Possible Graham sequel from Jacksonville based on 1st-degree murder charge for 12-year-old

060311fernandezThere must be something in the water in Jacksonville, Florida that makes it a special place for the development of cutting-edge juvenile crime and punishment issues. Astute readers know that Terrance Graham, whose case led the Supreme Court last year to declare that LWOP sentence for juveniles for nonhomicide crimes violate the Eighth Amendment, hailed from Jacksonville.  Now a possible Graham sequel is in the works from the same locale based on this local story headlined "Jacksonville 12-year-old charged with first-degree murder of brother." Here are some of the disturbing specifics:

Months before Jacksonville police say 12-year-old Cristian Fernandez beat his 2-year-old half brother to death, investigators started asking why the toddler's leg was broken. The family said David Galarriago had an accident while playing on a jungle gym, according to court papers.

Thursday, prosecutors say that wasn't just a lie but a warning sign about the rampant abuse that ultimately took the toddler's life and made Fernandez the youngest person in city history to be charged with first-degree murder.

"It is disturbing, but when you know you have to balance the safety of other children in the home and in the community, it is not so disturbing," State Attorney Angela Corey said after a grand jury indicted Fernandez.

With the indictment, Fernandez is being transported from a juvenile detention center to the Duval County jail although Corey said he'll be placed with the jail's juvenile inmates. He faces adult charges that already have criminal law experts wondering how well Fernandez could have understood his actions.

"Especially if it's a beating death, you could argue that the child did not have the intent to kill, which would be necessary even for second-degree murder," said Robert Batey, professor of criminal law at Stetson University College of Law. "Or that the child was not capable of the cool thinking beforehand that's implied by the notion of premeditation."

Galarriago died in March with a fractured skull, a bleeding brain and bruising to his left eye and nose, according to court documents....

Before Fernandez's indictment, the youngest person charged with a Jacksonville homicide was 13-year-old Thomas Thompson.  He was convicted and sentenced to life in 1994 for shooting an off-duty corrections officer, Tammy Jo Johnson, to death in a robbery outside a Westside bar.

Christopher Slobogin, director of the criminal justice program at Vanderbilt University Law School, said many states don't even allow such a charge for children Fernandez's age.  But Florida's laws allow prosecutors to "direct file" cases in criminal court for children even younger than Fernandez.  "Even in Florida, kids this young are rarely prosecuted in adult court, even for crimes this serious," Slobogin said.

Slobogin pointed out that Lionel Tate was charged with first-degree murder at the same age in 1999 for the beating death of a 6-year-old girl he was baby-sitting in Broward County and received a life sentence.  That conviction was overturned by an appeals court in 2004 after the panel found it wasn't clear whether Tate understood the charges.

Even in that case, Slobogin said, the first-degree murder charge was only filed after the family rejected a plea deal in juvenile court.  Because of his age, Fernandez will not face the death penalty. If convicted of first-degree murder, he would be sentenced to life without parole.

June 6, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, June 01, 2011

Sixth Circuit rejects Atkins and Graham attack on 15-year ACCA mandatory minimum

A Sixth Circuit panel this morning has an interesting little opinion rejecting an Eighth Amendment attack on a mandatory 15-year prison term for a gun possession offense by a career criminal.  Here is the start and excerpts from the opinion in US v. Moore, No. 09-5935 (6th Cir. June 1, 2011) (available here):

Defendant Martino Moore, a four-time convicted felon, possessed a firearm one night in 2007. That event carried with it serious ramifications.  It meant as an Armed Career Criminal he was subject to a mandatory minimum penalty of 180 months’ imprisonment. Moore argues on appeal that the imposition of this mandatory minimum sentence, as applied to him, violates the Eighth Amendment.  We disagree and thus affirm....

Moore argues that his mandated minimum sentence of fifteen years’ imprisonment violates the Eighth Amendment’s ban on cruel and unusual punishment.  At the heart of his argument is the belief that a unique mitigating factor — his reduced culpability resulting from mental retardation — transforms an otherwise constitutional sentence into an unconstitutional one. In United States v. Tucker, we held that “[i]mposing a mandatory minimum sentence on a defendant with limited mental capabilities does not violate the Eighth Amendment ban against cruel and unusual punishment.”  204 F. App’x 518, 521 (6th Cir. 2006).  We see no reason to depart from Tucker.  Further, all of the circumstances of this case, including Moore’s mildly diminished mental capacity, convince us that the district court’s sentence was not grossly disproportionate to the crime committed.

June 1, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Friday, May 27, 2011

Might the Framers have viewed LWOP more like torture than like a death sentence?

The question in the title of this post is prompted by a passage in the majority opinion from the Wisconsin Supreme Court in Wisconsin v. Ninham, 2011 WI 33 (Wisc. May 20, 2011) (available here; blogged here), which rejected a constitutional challenge to the imposition of an LWOP sentence for defendant who committed a horrendous murder as a 14-year-old.  Here is the passage:

At common law, children ages seven and older were subjected to the same arrest, trial, and punishment as adult offenders, In re Gault, 387 U.S. 1, 16 (1967), which means that, theoretically, even the death penalty could have been imposed for a crime committed by a child as young as seven years old, see Stanford v. Kentucky, 492 U.S. 361, 368 (1989), overruled by Roper, 543 U.S. at 574; see also Thompson, 487 U.S. at 828 n.27 (reporting that a 10-yearold child was hanged in Louisiana in 1855 and another in Arkansas in 1885). Notably, once a child turned 14 years old, he or she no longer benefitted from the presumption of incapacity to commit a capital, or any other, felony. Stanford, 492 U.S. at 368 (citing 4 William Blackstone, Commentaries *23- 24); Thompson, 487 U.S. at 864 (Scalia, J., dissenting)

Given the common law understanding that 14-year-olds were not immune from capital punishment, it is clear that Ninham cannot establish that sentencing a 14-year-old to life imprisonment without parole was considered cruel and unusual at the time the Bill of Rights was adopted.

I highlight this passage because I commonly hear this claim that because the Framing Era accepted the death penalty for young criminals, then the Framers must not have viewed an LWOP term as violating the Eighth Amendment's prohibition on cruel and unusual punishment.  But, I am not sure this logic is air-tight, because (1) it seems likely the Framers expected and wanted the Eighth Amendment to prohibit torture as a form of punishment, and (2) is seems plausible that the Framers could have viewed an LWOP sentence to be more like torture than death as a punishment.

I understand that in modern times it is common (and perhaps even logical) to view an LWOP sentence as a categorically less severe punishment than the death penalty.  But in the Framing era, when lots of folks died young and when nobody was subject to imprisonment for extremely long periods, I am not sure everyone would have embraced this modern view of relative punishment severity.  After all, Patrick Henry famously said "Give me liberty or give me death!" and the discouraging prospect of lives subject to a sovereign's dominion fueled the American Revolution.  Against this backdrop, I do not think it far-fetched to wonder if some (many?) Framing era thinkers would have viewed an LWOP sentence eliminating all personal liberty and any future chance of personal liberty for half a century or longer to be more akin to torture than to a death sentence.

Perhaps someone knows of historical sources for exploring with rigor whether and how the Framers viewed punishments involving extreme liberty deprivations.  But unless and until I see evidence that the Framers embraced the modern perspective that an LWOP sentence is categorically less severe than the death penalty, I will continue to be troubled when courts and advocates assert that LWOP sentences are obviously constitutional for certain persons because the Framers authorized the death penlaty for these persons.

May 27, 2011 in Assessing Graham and its aftermath, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (20) | TrackBack

Wednesday, May 25, 2011

Post-Graham advocacy that "Every Child Deserves a Second Chance"

The title of this post is drawn from the title of this new commentary now appearing at The Huffington Post.  The piece is by Anthony Barkow, Executive Director of the Center on the Administration of Criminal Law at New York University School of Law, and here are excerpts:

Just one year ago in Graham v. Florida, the Supreme Court of the United States ruled that it is unconstitutional to sentence juveniles to life without the opportunity for parole for a non-homicide crime committed when they were under age 18.  The Court concluded that these offenders should have an opportunity to have their sentences reviewed, and the logic of the Court's opinion extends to every young person convicted of a serious crime.

I was a prosecutor for 12 years.  During that time, I prosecuted a wide variety of crimes, ranging from international terrorism to securities fraud, from domestic violence and sexual abuse to homicide.  I prosecuted cases in which offenders received very substantial sentences. I am proud of my work as a prosecutor and I have no doubt that criminal punishment is critical to keeping communities safe....

But ... there are other youthful defendants who have been sentenced to unjust sentences of life without the opportunity for parole....  [And there is a] critical fact to keep in mind about those seeking to end life without parole for juveniles.  No one is arguing that any particular individual should be let out of prison.  Ending juvenile life without parole merely leaves open the possibility that a child who commits a crime can petition for release later in life, if he can demonstrate that he is remorseful, has rehabilitated, and will not reoffend.  Parole authorities can and should be trusted to make informed, reasoned decisions regarding the release and continued incarceration of inmates petitioning for parole.

This approach makes sense as a matter of justice and economics.  Juvenile offenders have diminished culpability: a view supported by science -- and common sense, as anyone can attest to who remembers his or her years as a teenager.  Juvenile offenders also have increased potential for rehabilitation and, in fact, even without intervention, most offenders age out of crime commission.  Thus, in certain instances, spending on extremely lengthy terms of incarceration on juveniles would be wasteful.

Extending the reasoning in Graham, so that it applies to every young person, will have no significant adverse impact on public safety and will allow for flexibility in juvenile sentencing.  This will reduce incarceration costs and support the possibility for rehabilitation in young offenders.  As a society we can no longer afford to declare youth worthless and sentence them to die in prison without giving them an opportunity to have their sentence reviewed.  Before Graham's next anniversary, policy makers must implement reforms to end the practice of sentencing youth to life without parole.

May 25, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4) | TrackBack

Friday, May 20, 2011

Wisconsin Supreme Court upholds LWOP sentence for 14-year-old murderer

As reported in this new AP piece, "Wisconsin judges can sentence 14-year-olds to life in prison without parole in homicide cases, the state Supreme Court ruled Friday in upholding a life sentence for a man who participated in a gruesome homicide when he was a teenager."  Here are more of the details of the ruling and the underlying crime that presents the setting for the latest juve LWOP debate:

In a case watched by psychiatrists, family advocates and defense attorneys, the court found that neither the U.S. nor the Wisconsin Constitution prohibits life sentences without parole for 14-year-olds in homicide cases and no national consensus has formed against such sentences.  "We ... confirm what objective evidence already informs us: Contemporary society views the punishment as proportionate to the offense," Justice Annette Kingsland Ziegler wrote for the majority.

The case stems from a crime that took place more than a decade ago in Green Bay. Omer Ninham, then 14, helped throw another teenager off a parking ramp for no apparent reason.  Ninham's attorney, Byron Stevenson of the Equal Justice Initiative, had argued that such sentences amount to cruel and unusual punishment.  He vowed to appeal to the U.S. Supreme Court....

Judges across the country rarely sentence juvenile offenders to life without parole. According to statistics compiled by the Equal Justice Initiative the Wisconsin justices cited in their opinion, 73 children 14 or younger across 18 states have received that sentence.

Last year the U.S. Supreme Court ruled such sentences for anything less than homicide was unconstitutional.... But the [Wisconsin] justices said in a 5-2 decision that Ninham failed to show that children 14 and younger deserve different constitutional status in homicide cases. The lack of homicide life sentences for children across the country doesn't signal national sentiment has turned against such sentences, only that juveniles rarely kill people, the justices said.

In Ninham's case, the punishment fit a crime that "cannot adequately be reduced into words," the opinion said.  According to court documents, 13-year-old Zong Vang was riding his bike home in September 1998 after picking up tomatoes at the grocery store for his family.  A group of five people between the ages of 13 and 14 accosted him for no reason. Ninham and another member of the group started teasing Vang, then punched him.  Vang ran into a nearby hospital parking ramp.  The group cornered him on the top floor.  Ninham and a friend seized him by the wrists and ankles.  As Vang cried and screamed, they threw him over the edge. Vang fell five stories to his death.  A bystander on the ground said he heard a sound "like a wet bag of cement hitting the pavement."...

Under Wisconsin law, anyone 10 or older accused of homicide can be tried in the adult system. A jury convicted Ninham of first-degree intentional homicide and child abuse in 2000. The other charges were dismissed but the judge was allowed to consider them at Ninham's sentencing.

First-degree intentional homicide carries a mandatory life sentence in Wisconsin.  The state does not have the death penalty. The only issue at sentencing is whether a judge will grant parole eligibility.  Brown County Judge John D. McKay gave Ninham, who was by then 16, life and denied him any chance at parole.  The judge noted Ninham had a tough family life and he snorted cocaine weekly and drank every day, usually until he passed out.  But he said the crime devastated Vang's family and the Green Bay community and described Ninham as a "frightening young man."

The full 68-page opinion in Wisconsin v. Ninham, 2011 WI 33 (Wisc. May 20, 2011) is available at this link.  Here is part of the majority opinion begins:

Ninham mounts a categorical constitutional challenge, arguing that sentencing a 14-year-old to life imprisonment without parole is cruel and unusual in violation of the Eighth Amendment of the United States Constitution and Article I, Section 6 of the Wisconsin Constitution.  In the alternative, Ninham seeks sentence modification on the grounds that (1) his sentence is unduly harsh and excessive; (2) new scientific research regarding adolescent brain development constitutes a new factor that frustrates the purpose of the sentence; and (3) the circuit court relied on an improper factor when imposing the sentence. We disagree with Ninham on all four grounds, and accordingly, we affirm the decision of the court of appeals.

May 20, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (24) | TrackBack

Tuesday, May 17, 2011

Judge Weinstein's final order finding Eighth Amendment prohibits 5-year minimum term for young child porn offender

In March in this post, I reported on Judge Jack Weinstein's "Tentative Draft for Discussion Purposes" in United States v. C.R., in which Judge Weinstein suggesting a 30-month sentence was appropriate for a young child porn offender after deciding that application of the statutory five-year mandatory minimum would be constitutionally problematic.  I have learned from a helpful reader that Judge Weinstein has now filed his final opinion in C.R. in which he decides that a five-year mandatory minimum prison term as applied to this defendant violates the Eighth Amendment's prohibition against cruel and unusual punishment.  I have the full opinion available for download below, and here is just some of many notable passages from the very long opinion (which covers a lot more than just the constitutional issues discussed below):

The law described in this section, as well as the science and particulars of defendant‘s background, leads to the conclusion that, as applied to this defendant, a five-year term of imprisonment would be cruel and unusual.  Requiring five-years of incarceration, most of it without effective treatment, would constitute a violation of the Constitution. 

Mere peer-to-peer file sharing of pornography by teenage boys, even if it includes pictures of minors, does not signify the sort of social deviance which would support long minimum prison terms for such immature persons.  A teenager confused about his developing sexuality in a splintered and dysfunctional family, who uses easily available Internet facilities to look at lewd pictures of children, is not fully responsible. The defendant was fifteen and had just entered puberty when he began viewing these pictures. And, even at nineteen, he was emotionally much younger than his chronological age.

Courts have recognized these developmental factors in cases involving teenagers and child pornography. Interest in lewd images of minors by one who is emotionally a minor himself does not manifest the same kind of sexual perversion as would a mature adult‘s focus on the same pictures.  In United States v. Stern, 590 F. Supp. 2d 945, 953 (N.D. Ohio 2008) the district court emphasized the peer-level nature of the sexual interest when imposing a sentence far below the guideline range for a college student who had begun viewing child pornography at age fourteen.  In addition to citing the scientific literature on "the unformed nature of the adolescent brain," id. at 953 n.6, it recognized that "the 14-year-old is acting on normal impulses in an unacceptable manner (and may well be unaware of the impact of his crime), whereas the forty-year-old is acting on deviant impulses and is expected to understand the terror that this crime inflicts upon its victims." Id....

 A five-year minimum sentence as applied to this defendant serves no legitimate penological goal.  "A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense" and therefore, unconstitutional under the Eighth Amendment." Graham, 130 S. Ct. at 2028.  Neither "retribution," "deterrence," nor "rehabilitation," id. at 2028-2029, justifies a five-year mandated prison sentence for an adolescent, plus what could constitute lifelong strict supervised release. Excessive and unnecessary imposition of suffering and destruction of opportunity for a constructive life as a youngster constitutes cruel and unusual punishment. See David Gray, Punishment as Suffering, 63 Vand. L. Rev. 1619, 1692-93 (2010) (discussing relationship between suffering and punishment and arguing that "excessive suffering requires remediation").

One the one hand, treatment and supervision within the community are necessary for C.R. to mature into a responsible, productive, law-abiding individual.  Requiring the defendant to spend the formative years of his young adulthood in a sex offender penal treatment unit, on the other hand, presents significant risks.  Hr‘g Tr. 216, Jan. 26, 2011 (Testimony of Dr. Kaplan) ("He could spend three or five-years fantasizing about 12-year-old boys and being reinforced by pedophiles . . . and come out with more of an interest in young boys.").  While the treatment program at FMC Devens will provide the defendant an opportunity for focused therapy, a sentence of five years in such an environment for an immature and impressionable defendant is counterproductive.

Download US-v-CR Weinstein Sentencing_Memorandum (FINAL)

May 17, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Friday, April 29, 2011

After Graham, can a related homicide permit a juve LWOP sentence for a nonhomicide conviction?

The question in the title of this post is prompted by this new local piece, headlined "Iowa Rep: Leaving Capitol without addressing juvenile offenders would be ‘unconscionable’," which details the latest struggles over how the state is to respond to the Supreme Court's ruling in Graham last year.  Here are excerpts:

An Iowa Representative who was once at the heart of a push for stricter mandatory minimum sentences for some juvenile felony offenders is now pushing for compromise because he believes the existing situation is “unconscionable.”

“It isn’t what’s in my heart, but my head understands that we have to act,” Iowa Rep. Jeremy Taylor (R-Sioux City) told The Iowa Independent Thursday after reading our earlier report. “I can’t imagine standing with a victim or a victim’s family and telling them the alternative — that the person convicted of these Class A felonies would become immediately eligible for a parole hearing.”...

In the Iowa House, Taylor, a member of the Judiciary Committee, originally advocated for and won a new form of sentencing that would allow presiding judges to choose a mandatory minimum sentence between 30 and 45 years for such offenders.  That plan was not received favorably by Iowa Sen. Wally Horn (D-Cedar Rapids), who leads the chamber’s Judiciary Committee, and the bill has essentially died for this session....

Taylor, perhaps the most fierce advocate for adopting stricter mandatory minimums than the 25 years originally recommended by the Iowa State Bar Association’s Criminal Law Section, began a push for a 25 year mandatory minimum. The youthful offender bill was amended by the House, and sent back to the Senate on April 13, where it has languished....

One of the problems facing the bill, as amended, is that Horn has adamantly opposed any mandatory minimum sentence for these juvenile offenders above the 15-year mark. Going beyond that, he believes, will not match the spirit of the U.S. Supreme Court ruling, which indicated that while states did not have to guarantee eventual release from prison, they needed to provide the offenders “some realistic opportunity for release” and an opportunity “to demonstrate growth and maturity.”  The Supreme Court did not, however, provide any guidance or recommendations to state legislatures as to what the new sentences should be.

But beyond the disagreements over mandatory minimums, there is another bone of contention for some lawmakers including Taylor.  “I and others believe that the Graham decision is being misapplied to juvenile cases where there is a murder attached,” Taylor said.  “We want to specifically write our law so that when any new cases arrive that include a homicide, those cases will not come under the jurisdiction of Graham and those convicted of the crimes will never have an opportunity for parole.”

The disagreement relates directly to another Iowa criminal case, Jason Means, which was the first case in the nation to follow the federal Graham ruling and paved the way for previous juveniles convicted of such crimes to have their sentences revisited. Represented by Davenport attorney Angela Fritz Reyes, Means brought a motion of illegal sentencing before U.S. District Court in Scott County just days following the SCOTUS decision. U.S. District Court Judge Gary D. McKenrick ultimately ruled that the case was a new rule of substantive law that should be applied to previous cases and struck the portion of Means’ sentence that prohibited an opportunity for parole.

In 1994, when Means was 17, he was found guilty of first degree kidnapping, first degree robbery, second degree murder, criminal gang participation, conspiracy to commit robbery and unauthorized possession of an offensive weapon.  The first degree kidnapping charge, a non-homicide offense, brought the penalty of life without parole. Means and his attorneys continue to seek a parole hearing.

Taylor believes that instead of the court looking at one specific conviction, the court should look at the totality of the case against a juvenile to determine if Graham should be applied.  “If there is a homicide conviction involved, even if that conviction is not the one that led to the life without parole sentence, I believe it should prevent the application of Graham in those cases,” Taylor said, noting that he believes Means should stay behind bars for the remainder of his life.

Some recent related posts:

April 29, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 26, 2011

Iowa legislature unable to respond effectively to SCOTUS ruling in Graham

This lengthy new piece appearing in the Iowa Independent spotlights the difficulties that the Hawkeye state is having in trying to craft an appropriate legislative response to the Supreme Court's ruling last year in Graham. The piece's headline and subhead tells the basic story: "Juvenile justice bill essentially dead for session; Without legislative guidance some new juvenile felony offenders will receive life, but be immediately eligible for parole." Here are some of the interesting details of a piece that is worth reading in full:

Iowa lawmakers have been unable to find compromise on new sentencing guidelines for juveniles convicted of certain non-homicide felonies.  It’s a situation that will likely result in any new juveniles convicted of such crimes becoming immediately eligible for parole.

While Republicans would like to see hefty mandatory minimum sentencing requirements for such offenders and are willing to offer Iowa judges unprecedented discretionary latitude in such sentencings, Democrats want to make sure new sentencing guidelines match the spirit of the U.S. Supreme Court decision that mandated the changes.

In 2010, shortly after the Iowa Legislature ended its session, the U.S. Supreme Court ruled in Graham v. Florida that it was cruel and unusual punishment and therefore unconstitutional to sentence a juvenile, convicted on a non-homicide offense, to life in prison without the possibility of parole.  Since Iowa law mandates such sentences for a few non-homicide offenses, the state has been grappling with compliance of the federal mandate.

Since the legislature had ended its session, the Iowa Supreme Court was the first state institution to offer a pathway to compliance.  In a December 2010 opinion justices called upon the Graham decision when they reduced the sentence of Julio Bonilla, who was convicted of first degree kidnapping in 2005 when he was 16.  Instead of serving life in prison without parole, Bonilla will now have the opportunity to appear before the parole board and the the possibility of release....

House File 607 was approved 81-to-17 by the Iowa House on March 28 and, upon reaching the Iowa Senate, was sent to the Judiciary Committee.  As approved by the House, juveniles convicted of class A felonies would become eligible for parole after a prison term of between 30 and 45 years — the exact mandatory minimum sentence between those two figures would be imposed at the time of sentencing by the presiding judge.

The bill was originally crafted by a diverse task force comprised of prosecutors, defense attorneys, citizen advocates, members of law enforcement and representatives from the Iowa Attorney General’s Office, and called for a mandatory minimum term of incarceration of 25 years....  Yet when the bill arrived at the Iowa House, Republicans, encouraged by the Iowa County Attorneys Association, wanted much stiffer mandatory minimums. Democrats countered that the sentences being suggested by Republicans did not follow the spirit of Graham, which indicated that while states did not have to guarantee eventual release from prison, the states did need to provide these juvenile offenders “some realistic opportunity for release” and an opportunity “to demonstrate growth and maturity.”

Iowa Sen. Wally Horn (D-Cedar Rapids), who leads the Senate Judiciary Committee, told The Iowa Independent that he didn’t feel anything above a 15-year mandatory minimum sentence met with the spirit of what the U.S. Supreme Court wrote in its decision....  Horn feels so strongly about having a 15-year mandatory sentence that he has also essentially killed off a youthful offender bill that had the original 25-year mandatory minimum attached.

But without new legislative guidelines, Iowa judges imposing sentences on juveniles convicted on non-homicide Class A felonies will have no other legal choice at their disposal than to duplicate the same application as the Iowa Supreme Court.  So, instead of the minimum 15-year sentences advocated by Horn, juveniles newly convicted of these crimes will have no mandatory minimum sentence at all. They will immediately become eligible for annual parole board reviews — the first one taking place as soon as one year following their incarceration.

April 26, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, April 22, 2011

"Is sending juveniles to prison for life constitutional? Judge hears arguments"

0421-nat-JUVENILESweb The title of this post is the headline of this new piece in the Detroit Free Press, which gets started this way:

A federal judge could decide within weeks whether Michigan's practice of sending juveniles to life in prison without parole is unconstitutional.  Judge John Corbett O'Meara heard arguments this afternoon that the state's long practice of sentencing kids as young as 14 to life in prison should be considered "cruel and unusual punishment."

"The issue is a child is a child and they're different," Ann Arbor attorney Deborah La Belle argued on behalf of the ACLU and nine michigan prisoners currently serving life sentences on murder convictions they received as juveniles.  One, Henry Hill, was 16, when he accompanied a group of friends to a park, where a killing took place.  Hill was convicted as an accomplice and has been in prison for 28 years.

Unlike most states, Michigan has no minimum age limit when it comes to charging children as adults.  Currently, there are 351 prisoners serving life sentences for murders they committed as juveniles, some as young as 14.  Many were "aiders and abetters," who served as look outs on robberies or drug deals, where a murder took place.

Attorney Margaret Nelson, arguing on behalf of the state of Michigan, which supports life sentences for juveniles, said that other states had rejected the notion that such sentences violate the Eighth Amendment prohibiting cruel and unusual punishment.

The issue of what to do with young violent criminals is part of an ongoing national debate. The United States Supreme Court ruled in 2010 that sending children to prison for non-lethal crims was unconstituitonal, but stopped short of including those convicted of first degree or felony murder.  In recent weeks, the high court has signaled it may take up that issue as well.

In addition, the New York Times has this longer article about post-Graham juve LWOP issues and litigation, which is headlined "Juvenile Killers in Jail for Life Seek a Reprieve."  Here are excerpts from this piece (which also included the very informative graphic reprinted here):

Almost a year ago, the Supreme Court ruled that sentencing juvenile offenders to life without the possibility of parole violated the Eighth Amendment’s ban on cruel and unusual punishment — but only for crimes that did not involve killings.  The decision affected around 130 prisoners convicted of crimes like rape, armed robbery and kidnapping.

Now the inevitable follow-up cases have started to arrive at the Supreme Court. Last month, lawyers for two other prisoners who were 14 when they were involved in murders filed the first petitions urging the justices to extend last’s year’s decision, Graham v. Florida, to all 13- and 14-year-old offenders.

The Supreme Court has been methodically whittling away at severe sentences. It has banned the death penalty for juvenile offenders, the mentally disabled and those convicted of crimes other than murder.  The Graham decision for the first time excluded a class of offenders from a punishment other than death.

This progression suggests it should not be long until the justices decide to address the question posed in the petitions.  An extension of the Graham decision to all juvenile offenders would affect about 2,500 prisoners....

The effort to extend the Graham decision has so far been unsuccessful in the lower courts. According to a study to be published in The New York University Review of Law and Social Change by Scott Hechinger, a fellow at the Partnership for Children’s Rights, 10 courts have decided not to apply Graham to cases involving killings committed by the defendants, and seven others have said the same thing where the defendants were accomplices to murders.  Courts have reached differing results, though, where the offense was attempted murder.

All of this suggests that the question left open in Graham may only be answered by the Supreme Court.  In March, lawyers with the Equal Justice Initiative asked the justices to hear the two cases raising the question.

April 22, 2011 in Assessing Graham and its aftermath, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, April 03, 2011

Notable coverage of the fates of teen lifers in Colorado and Florida

Today's newspapers include these two stories from two different parts of the country concerning the fates of defendants sentences to life for crimes committed a teenagers:

From the Orlando Sentinel here, "'Lifers' sentenced as teens: Do they deserve a 2nd chance?"

From the Pueblo Chieftain here, "Juvenile 'lifers' afraid to hope"

April 3, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (9) | TrackBack

Wednesday, March 16, 2011

Judge Weinstein issues 420-page tentative opinion(!?!) indicating views on unconstitutionality of 5-year man min for CP distribution

Today's New York Law Journal includes a remarkable report on US District Judge Jack Weinstein's latest remarkable "ruling" in a federal chil porn sentencing case.  The article is headlined "Judge Battles 'Harsh' Sentence for Distribution of Child Porn," and here are excerpts:

After a four-year battle with the Second Circuit over whether the required five-year minimum sentence for distribution of child pornography is too harsh, Eastern District Judge Jack B. Weinstein has now proposed cutting in half the minimum sentence of a 19-year old who pleaded guilty to distribution....

[I]n United States v. C.R., 09 cr 155, Judge Weinstein is tackling the federal minimum head on, proposing in a draft opinion that applying the five-year sentence to the 19-year-old would be a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Instead, Judge Weinstein is proposing a 2 1/2-year sentence for CR....

In the case of CR., who pleaded guilty in September 2009, Judge Weinstein began last June to lay the groundwork for sentencing.  On his own motion in a June 3, 2010, order, he directed the prosecution and defense to address questions at a hearing that would enable him to assess what punishment would be fair to both CR and the community.  He asked the parties to weigh in on the risk CR. poses to children, the risk that he will be abused in prison and his developmental maturity at the time of the crime and presently. The hearing took place over seven days and ended in January.

Last Friday, Judge Weinstein issued a "tentative draft" 420-page opinion, setting forth his reasoning that CR. should be sentenced to only 2 1/2 years in prison, followed by long-term therapy and close supervision by the probation department in the community. Judge Weinstein also proposed finding "grossly excessive" the U.S. Sentencing Guidelines calculation prepared by U.S. Probation Department, which called for a sentence in the range of 14 to 17 years.

The judge convened a hearing for May 13 and ordered the two sides to file their briefs a week earlier.  He said he was issuing the draft opinion to "facilitate a focused discussion of relevant issues."  In his March 10 order, like the June 3 order, Judge Weinstein listed issues for the parties to address, and advised them that his draft is subject to change based on their briefs, arguments and further consideration by the court.

CR, who began viewing child pornography at age 15, was arrested at age 19 after a sting operation by the FBI in which he shared images with an agent posing as a "buddy" in a peer-to-peer file sharing program.  The FBI seized two computers showing that he had shared pornographic images with between 10 and 20 users through two peer-to-peer programs. Forensic analysis of computers revealed that CR had shared 100 images and 200 videos of child pornography.  CR pleaded guilty to one count of distributing child pornography.

In preparing its pre-sentencing report, the probation department, added five points to its guideline calculation because CR. acknowledged in interviews with probation officers "having sexual interaction" with his half-sister who is seven years younger than he....

In the case of CR, hearings have produced thousands of pages of testimony and documents exploring such technical issues as the reliability of methods used to assess the likelihood that CR will commit sex crimes in the future.  Judge Weinstein noted that neuropsychological research as to CR's insight, judgment and culpability "weighs heavily in the court's determination that the five-year mandatory sentence is unconstitutional."

A mandatory term, as applied to CR, Judge Weinstein added, "lacks any legitimate penological justification."  After his release, CR will require long-term treatment in the community, he added, to enable him "to mature into a responsible, productive, law abiding individual."

 Wowsa!  I will provide links to both this NYLJ article and to Judge Weinstein's 420-page "tentative draft" opinion when they possible.

March 16, 2011 in Assessing Graham and its aftermath, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (36) | TrackBack

Friday, March 11, 2011

Iowa debating how to respond legislatively to SCOTUS Graham ruling

The second piece from a two-part series in the Iowa Independent about Iowa's response to the Supreme Court's Graham ruling is available here (the first piece is linked here).  This piece is headlined "Bill seeks to conform Iowa law with SCOTUS juvenile offenders ruling; Judges could decide how long juveniles would be required to serve before being eligible for parole," and here are excerpts:

A bill that seeks to conform state code with a U.S. Supreme Court ruling on the sentencing of juveniles convicted in some felonies was introduced to the full Iowa House Wednesday. If approved, however, Iowa judges would be allowed to exercise unprecedented discretion in setting such sentences.

House File 607 has undergone changes since it was first introduced to the Judiciary Committee in late January, but its primary goal of creating new sentencing guidelines to juveniles convicted of certain class A felonies has remained the same.  In May 2010 Graham v. Floridadecision, the U.S. Supreme Court ruled that sentences of life without parole could not be given to juvenile offenders on nonhomicide offenses.  Doing so, according to the court, constituted cruel and unusual punishment and a violation of the 8th Amendment.

Within days of the ruling, and long before the Iowa legislature could modify state law to conform to the ruling, individuals convicted under such circumstances filed court motions to revisit their sentences.  An estimated eight people are serving time in Iowa prisons who were convicted as juveniles to life without parole in connection with non-homicide offenses, the most common being first degree kidnapping....

The bill, which was amended and passed just before the first legislative funnel deadline last week, would allow a sentencing judge to determine the minimum number of years that must be served before a person convicted as a juvenile could be eligible for a parole hearing.  Although the bill provides a range — between 30 and 45 years — the very idea that a judge in Iowa could utilize discretion in determining a mandatory minimum is, at the very least, unusual.  Judges in the state do not currently hold such discretionary power....

A key point within the Graham decision was that juveniles, even those convicted of horrible offenses, should be given “a meaningful opportunity” to show maturity and growth.... The proposed Iowa fix is [potentially] problematic because it requires a judge to make a determination at the time a juvenile is sentenced as to length of sentence, a concept that appears to be contradiction to Graham’s focus on the ability for a juvenile offender to change over time and be rehabilitated.

Identical study bills were originally filed in both the Iowa House and Senate that would have set a mandatory minimum of 25 years for these juvenile offenders.  Although the 25-year mark was believed to be a consensus of several groups that studied the issue, including the Criminal Law Section of the Iowa State Bar Association, lawmakers didn’t go along with the plan.  Democrats in each chamber proposed alternatives to lower the minimum to 15 years.  Republican-sponsored amendments, which were encouraged by the Iowa County Attorney Association, pushed for increased minimums up to 45 years. Between the two chambers, amendments and separate bills on the same issue were proposed that considered nearly every level between the two extremes....

“There is definitely going to some difficulty finding consensus on that issue,” said Sen. Rob Hogg (D-Cedar Rapids). “I also think there is a belief that if the legislature doesn’t act, the decision will ultimately be made the courts.”

March 11, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, March 08, 2011

Effective coverage of Iowa's challenges operationalizing Graham ruling

The Iowa Independent has this really interesting new piece headlined "Iowa courts struggling with application of U.S. Supreme Court ruling; Family of man convicted in 1994 when he was 17 hope federal decision can lead to parole." (Hat tip: How Appealing.)  Here are snippets:

In 1994, when [Jason] Means and five additional teens were found guilty of crimes in connection with [Michelle] Jensen’s death, both sides believed most of the legal uncertainty was behind them.  Means, then 17, was found guilty of first degree kidnapping, first degree robbery, second degree murder, criminal gang participation, conspiracy to commit robbery and unauthorized possession of an offensive weapon.  In Iowa, a conviction on the kidnapping charge alone mandated a prison sentence of life without parole.

Two other young men — one 17 and the other 18 — were also given prison sentences of life without parole.  The three remaining teens, who testified for the prosecution, were given lesser sentences.  Two have since been given parole, but have committed subsequent crimes that have placed them back behind bars.

Although there was an appeal launched by Means’ legal counsel shortly after his sentencing, it was always considered to be a long shot.  “After a certain amount of time, you resign yourself to the fact that this is the way it is going to be — that the rest of your son’s life will be spent in prison,” Cheryl Clark, Means’ mother, said in an interview with The Iowa Independent.

But a May 2010 U.S. Supreme Court decision, Graham v. Florida, appears to have mandated a different fate for Means and Tony Hoeck, the other 17-year-old sentenced to life without parole....  The court found that sentencing juvenile offenders to life without the possibility of parole for non-homicide offenses is a violation of the “cruel and unusual” clause of the Eighth Amendment.... The court specifically stated that while such a juvenile offender is not given a “guarantee to eventual freedom,” the law does require the state to provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

While at first glance the Graham decision may appear as open-and-shut on matters involving those convicted of non-homicide offenses as juveniles, most cases remain tied up in the courts as states interpret and apply the ruling.  According to the Graham decision, there were 129 such juvenile offenders serving throughout the U.S. Of those, 77 were incarcerated in Florida, the remaining 52 scattered across 10 states.  There are an estimated eight such cases in Iowa, including one that was decided in December 2010 by the Iowa Supreme Court....

In September 2010, [U.S. District Court Judge Gary D.] McKenrick struck the portion of Means’ sentence that prohibited the opportunity for parole, leaving Means to “serve the remainder of his natural life in the custody of the director of the department of corrections, however the defendant shall be subject to parole consideration.”  According to information provided [Means' lawyer in court], despite the judge’s order Means continues to be denied an opportunity to appear before the parole board or be provided a future date for such a hearing....

State lawmakers are also considering their own proposals to bring the Iowa Code in line with the Graham ruling, but even if such a proposal becomes law, it is unlikely that it could be applied to the Means’ case or other old cases already before the court.  The law doesn’t allow courts to revisit sentences if the end result would be an increase in the severity of the sentence.  As it stands now, with the prohibition of parole removed, the sentences faced would be reduced to life with an immediate eligibility of parole — which is, in all likelihood, far less than what would codified for future cases....

“It would mean a great deal for Jason to have that hearing,” his mother, Cheryl Clark, said. “He should have an opportunity to stand before the parole board and present himself — how he has changed and what type of a person he is now.”  Steve Clark, Jason’s step-father, added that “he’s not the same person now that he was at 17.”...

Outside of the courtroom, however, Cheryl Dittmer continues to grip a framed photograph of her late daughter Michelle so hard that her knuckles match the marble floor.  Since 2008, she’s watched and protested as three of the teens convicted in connection with her daughter’s murder have been paroled. She isn’t ready to witness another.  “I agree with the premise of Graham,” Dittmer told The Iowa Independent after the hearing. “I believe that there should be an opportunity for a juvenile to show they’ve grown and changed — but not in this case.”

March 8, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, February 19, 2011

Florida still dealing with the fall-out and challenges of Graham

This local article, headlined "After U.S. Supreme Court ruling, local juveniles seek to have sentences thrown out," spotlights some of the issues that Florida continues to confront as a consequence of the Supreme Court's Eighth Amendment decision last year in Graham. Here are excerpts:

Nine months after the U.S. Supreme Court ruled that juveniles can't be sent to prison for life without parole for crimes other than murder, two convicted rapists will be in Palm Beach County court next week seeking to have their sentences thrown out.

David Slocum and Emmanuel Paul were convicted of raping a 17-year-old student from Switzerland after grabbing her at gunpoint on Flagler Drive in 1994. Because they were 17 when the grisly crime was committed their sentences are no longer valid. Their cases will be considered Wednesday.

Florida leads the nation in the number of youths serving life sentences for non-homicide crimes. Resolving the issue is complex because the Legislature abolished parole in 1983. Identical bills have been filed in the Florida House and Senate to establish parole for juveniles who are sentenced to life in prison for non-homicide crimes. However, it would only impact those sentenced in the future.

Even so, Rep. Michael Weinstein, R-Jacksonville, says he doubts the measure he is sponsoring will pass. Having slammed the door on criminals' hopes for early release, many lawmakers don't want to give anyone — even those sentenced as juveniles — the chance for parole, said Weinstein, a Duval County prosecutor.

To make it more palatable, Weinstein is suggesting that teen criminals serve 25 years before they could be considered for parole. Further, they would be required to have exemplary prison records, completed educational courses and taken other steps to prove they could live outside prison walls. Still, Weinstein said, "I would be surprised if it gets done."

A lawyer who has long fought injustice in the criminal justice system told a group of attorneys and judges in West Palm Beach on Friday that Florida's record is disturbing. A staggering 79 percent of the 77 teen criminals in Florida who are serving life sentences for non-homicide crimes are either black or Latino, attorney Bryan Stevenson told members of the F. Malcolm Cunningham Bar Association.

February 19, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, January 30, 2011

"'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences"

The title of this post is the title of this new paper now available via SSRN authored by Alison Siegler and Barry Sullivan. Here is the abstract:

In Graham v Florida, a Florida state prisoner asked the Supreme Court to hold that the Cruel and Unusual Punishments Clause of the Eighth Amendment categorically precludes the imposition of life-without-parole sentences for any juvenile offender who has committed a nonhomicide offense.  There was no Supreme Court precedent to support such a holding. Indeed, the relevant Supreme Court jurisprudence seemed clearly to preclude Graham’s argument.  Remarkably, however, the Court accepted Graham’s invitation and left behind more than thirty years of consistent Supreme Court jurisprudence, seemingly without a second thought or backward glance.  Indeed, the Court did not even acknowledge that the law had changed, still less that it had changed substantially and dramatically.  The result reached in Graham was consistent with sound constitutional policy and could have been supported with many good reasons, but the Court failed to provide a candid explanation for its decision.  Death was different no longer, but the Court did nothing to explain why that was the case.

The first Part of this article will discuss the evolution of the Court’s two lines of Eighth Amendment jurisprudence leading up to Graham, those relating to noncapital and capital cases, respectively, and will discuss the two distinct frameworks the Court has applied to the two categories: a balancing test for noncapital cases and a categorical approach for capital cases. It will also distill three factors that underlie both tests.  The second Part will discuss the Court’s decision to apply the categorical approach to Graham, even though it was a noncapital case.  The second Part will then analyze the Court’s holding and the principal alternative opinions (authored by Chief Justice Roberts and Justice Thomas) to determine why the Court was willing to break so fundamentally with its prior jurisprudence.  The third Part will consider the ramifications of Graham and will make some predictions about where the doctrinal innovation of Graham may lead.  In particular, the third Part will consider what Graham bodes for three subsets of offenders: mentally retarded defendants, juvenile offenders who commit homicides, and adult defendants who commit nonhomicides.

January 30, 2011 in Assessing Graham and its aftermath, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (10) | TrackBack

Wednesday, January 26, 2011

Iowa legislature considering response to Graham allowing juve parole eligibity after 25 years

This local story, headlined "Bill changes Iowa’s sentencing laws for some juvenile felons; Legislation would put state in compliance with a 2010 U.S. Supreme Court ruling," indicates that the Iowa legislature is working on what sounds like a sound response to last year's Graham Eighth Amendment ruling.  Here are the basics:

Some juvenile offenders who were convicted of felonies and sentenced to life without parole would be eligible for release hearings after serving 25 years if a study bill now before the Iowa Senate Judiciary Committee becomes law.

The proposed legislation, reproduced in full below, comes in response to a 2010 U.S. Supreme Court ruling, Graham v. Florida.  The high court ruled that sentencing juveniles who did not commit murder to terms of life without the possibility of parole constituted cruel and unusual punishment and was a violation of Eighth Amendment rights.

The decision has sparked appellate cases throughout the nation, and posed a significant problem in Iowa because current sentencing law does not provide minimum prison terms used to establish a timeline for parole.  Absent such mandatory minimum sentences, state judges have set aside state laws that conflict with the federal ruling and found at least one such offender to be immediately eligible for release review....

The study bill now before Iowa lawmakers sets a mandatory minimum of sentence of 25-years for offenders who commit class A felonies (excluding homicide) while under the age of 18.

January 26, 2011 in Assessing Graham and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, January 02, 2011

"Sentences stick for young killers: Law shift won't help murder cases"

The title of this post is the headline of this interesting article from Florida Today.  Here are a few excerpts:

The U.S. Supreme Court ruled in May that it was unconstitutional to sentence juveniles to life in prison for non-murderous crimes.  While three Florida juveniles have been resentenced, the ruling offers no relief to [those convicted of murder]....

According to a report issued in 2000 by the U.S. Department of Justice, 45 states have passed or amended legislation since 1992 making it easier to prosecute juveniles as adults.  The report states that the number of inmates under 18 confined in adult prisons more than doubled between 1990 and 2000....

Florida State University law professor Paolo Annino has spearheaded efforts to bring the possibility of parole back for juveniles sentenced to life or very long sentences.  He is the author of a bill, the Second Chance for Children in Prison Act, that would bring back the possibility of parole for children who were sentenced to more than 10 years in prison.

The children must have served at least eight years, must be considered rehabilitated, and must not have any disciplinary reports for the previous two years, among other requirements....

Annino's bill faces competition this year with a State Attorney's Association bill that would grant the possibility of parole for juveniles sentenced to life for crimes other than murder and after 25 years in prison.

January 2, 2011 in Assessing Graham and its aftermath, Offender Characteristics | Permalink | Comments (0) | TrackBack

Tuesday, December 21, 2010

Split Missouri Supreme Court upholds LWOP adult sentence for 15-year-old cop killer

The Missouri Supreme Court today in a split 4-3 ruling upheld against various challenges an LWOP sentence for a 15-year-old murderer in Missouri v. Andrews, No. SC91006 (Mo. Dec. 21, 2010) (available here). Here is how the majority opinion gets started:

Antonio Andrews appeals the jury's verdict finding him guilty of first degree murder for shooting and killing a police officer and the sentence imposed on him for that crime of life without parole.  This case came directly to this Court because Andrews challenges the constitutional validity of two Missouri statutes.  He challenges Missouri's juvenile-certification statute, § 211.071, RSMo 2000, as violating his right to a jury trial in a criminal prosecution under the Sixth Amendment as applied in Apprendi v. New Jersey, 530 U.S. 466 (2000). He also challenges the validity of the mandatory sentencing of a minor to life without parole for committing first degree murder as prescribed by § 565.020, RSMo 2000, as violating the Eighth Amendment prohibition against cruel and unusual punishment.  In addition, Andrews appeals the jury's verdict claiming that there was insufficient evidence from which a reasonable jury could conclude Andrews committed first degree murder.  Finally, Andrews claims the trial court erred by overruling his motion in limine, which sought to prevent uniformed police officers from being present during the jury trial.  Affirmed.

A lengthy dissenting opinion by Justice Wolff asserts that the defendant in this case had his Eighth Amendment rights violated.  He states that "[s]entencing juvenile offenders to life without the possibility of parole is cruel and unusual punishment because society’s standards have evolved to prohibit it."  Another lengthy dissenting opinion by Justice Stith finds asserts that the defendant in this case had his Sixth Amendment rights violated.  She states:

When a court decides that a juvenile is to be tried as an adult, Apprendi requires that the Sixth Amendment command of a jury trial be obeyed.  The jury’s verdict alone in this prosecution is insufficient to punish a 15-year-old defendant such as Antonio with a lifetime in prison.  To prosecute Antonio as an adult, and to impose a sentence of life without parole, the additional fact-finding mandated by Missouri’s juvenile certification process also is necessary.  To allow this additional fact-finding to be made by a judge and not by a jury violates the defendant’s fundamental right to a jury under the Sixth Amendment of the United States Constitution.

It will be very interesting to see if four Justices of the US Supreme Court might have an interest in taking up either of the (crisp?) constitutional issues presented by this case.

December 21, 2010 in Assessing Graham and its aftermath, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, December 17, 2010

Iowa Supreme Court deals with Graham's prohibition of juve LWOP for nonhomicide

A helpful reader altered me to a decision today by the Iowa Supreme Court dealing with a juvenile LWOP sentence that is now clearly unconstitutional in the wake of the Supreme Court's Eighth Amendment ruling in Graham v. Florida.  The ruling in Bonilla v. Iowa can be downloaded below, and here is how it starts:

Julio Bonilla was convicted of kidnapping in the first degree in adult court for an offense committed at the age of sixteen.  He was sentenced to mandatory life in prison without the possibility of parole pursuant to the Iowa Code. Under the recent United States Supreme Court decision Graham v. Florida, ___ U.S. ___, ____, 130 S. Ct. 2011, 2033–34, 176 L. Ed. 2d 825, 848–50 (2010), this sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment of the Federal Constitution. The clauses of Iowa Code sections 902.1 and 906.5 (2003) that make Bonilla ineligible for parole are unconstitutional as applied to Bonilla.  These clauses are also severable.  Therefore, Bonilla‟s sentence must be adjusted to life in prison with the possibility of parole.

 Download Bonilla_Iowa_S_Ct_12-17-10

December 17, 2010 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Wednesday, December 15, 2010

SCOTUS reflections in Harvard Law Review covers Graham and Padilla effectively

I just got around to noticing that the traditional November Harvard Law Review issue reviewing the work of the prior Term of the Supreme Court is now fully available on-line here.  Not surprisingly, this issue gives its greatest attention to the Citizens United ruling.  But the big cases from last Term that criminal justice fans now know by first names — e.g., Skilling and McDonald — also seem to get effective case-note treatment.  And, based on a quick skim, it seems that the two most significant rulings from last SCOTUS Term for sentencing law and policy are especially well examined in these short pieces:

December 15, 2010 in Assessing Graham and its aftermath, Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (0) | TrackBack

Monday, November 22, 2010

Reviewing the limited impact of Graham in Florida

Thanks to How Appealing, I just saw this lengthy article from the Sarasota Herald-Tribune, which is headlined "Juvenile offenders still get near-life terms." Here is how the piece gets started:

More than six months after the U.S. Supreme Court ruled that Florida's practice of sending juveniles to prison for the rest of their lives for non-murder crimes was unconstitutional, not a single former juvenile sentenced in such cases has found much relief.

Instead, Florida courts, in several high-profile cases are re-sentencing the juveniles to new terms that still amount to life sentences.  And Gov. Charlie Crist and the state Cabinet are now poised to reject the clemency case of a 15-year-old who received four life sentences for armed robberies in the Tampa Bay area.

In Crist's last Clemency Board meeting, set for Dec. 9, lawyers are asking state officials to consider the case of Kenneth Young, who is representative of a group of 116 Florida juveniles who were sentenced to spend the rest of their lives in prison for non-murder crimes.  So far, that appeal has gone nowhere.

Crist's apparent shunning of Young's request comes at a time when the Florida governor is attracting national headlines for his pledge to seek another pardon, for Jim Morrison, of the rock group the Doors, who has been dead for 39 years.  While Crist has given numerous interviews about the Morrison case –- saying “my heart bleeds” for Morrison's family –- the Young case has attracted almost no attention from the governor or other state officials, even after Florida's judicial process was condemned by the U.S. Supreme Court.

Legal experts say there are at least 116 prisoners in Florida like Young –- sentenced for non-murder crimes committed when they were juveniles to life in prison without chance for parole.  Florida has sentenced far more juveniles to such sentences than all other states combined.

In May, the Supreme Court ruled that such sentences violate the Eighth Amendment ban on cruel and unusual punishment.  But, as Young's case illustrates, Florida has done little to right that wrong.

November 22, 2010 in Assessing Graham and its aftermath, Clemency and Pardons, Who Sentences? | Permalink | Comments (0) | TrackBack