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.
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
There 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.
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.
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.
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.
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.
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:
- Iowa Supreme Court deals with Graham's prohibition of juve LWOP for nonhomicide
- Effective coverage of Iowa's challenges operationalizing Graham ruling
- Iowa debating how to respond legislatively to SCOTUS Graham ruling
- Iowa legislature unable to respond effectively to SCOTUS ruling in Graham
- "'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences"
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.
Friday, April 22, 2011
"Is sending juveniles to prison for life constitutional? Judge hears arguments"
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.
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"
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.”
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.”
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.
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.
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.
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.
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.
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.
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:
- HLR assessment of Graham v. Floridaon the Eighth Amendment and LWOP sentences for juvenile offenders
- HLR assessment of Padilla v. Kentucky on the Sixth Amendment and advising defendants about collateral consequences of a conviction
Monday, November 22, 2010
Reviewing the limited impact of Graham in Florida
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.
Wednesday, November 17, 2010
Post-Graham resentencing of juve rapist in Florida already testing meaning of Graham
This local article from Florida, which is headlined "Teenage rapist Jose Walle re-sentenced to 65 years in prison," spotlights the impact of, and enduring questions surrounding, the Supreme Court's recent Graham decision declaring unconstitutional any LWOP sentence for a nonhomicide juvenile offender. Here is how the piece starts:
Circuit Judge Chet A. Tharpe disagreed with a U.S. Supreme Court decision forcing him to re-sentence teenage rapist Jose Walle, who was only 13 when he terrorized two Apollo Beach waitresses at gunpoint. But on Wednesday, he obeyed the high court, which deemed life sentences unconstitutional for juveniles who didn't kill.
Walle hung his head as Tharpe sentenced him to 65 years in prison, which he will begin to serve after completing the 27 years he got in Pinellas for another rape. Taking into consideration credits prisoners get, he would be about 91 years old when he gets a chance at freedom.
The defense, which had asked for 27 years to run concurrent to the Pinellas sentence, plans to appeal. The Supreme Court ruling requires a meaningful opportunity for release.
Prosecutors said even a 75-year sentence would have guaranteed that, taking into consideration Walle's life expectancy and the multiple life felonies he committed. Assistant State Attorney Rita Peters argues that the ruling applies to each crime, not the cumulative years of the sentences for multiple crimes.
But Robert Batey, a criminal law professor at Stetson University College of Law, thinks the Supreme Court was most concerned about the total sentence in comparison to the juvenile's age. He believes the defense can make a good argument that Tharpe's sentence violates the ruling.
An appellate court may have to decide how consecutive sentences weigh into the math.
Tharpe adhered to the spirit of his original sentence, when he said he needed to protect the public from Walle, whom Tharpe was certain would one day kill. "Jose Walle knew the difference between right and wrong," Tharpe said Wednesday. "He has forfeited his right to live in a free society."
ACLU files complaint attacking constitutionality of LWOP for nine juves convicted of murder in Michigan
As detailed in this local article, which is headlined "ACLU fights law sentencing kids to life in prison," the American Civil Liberties Union "sued the State of Michigan today on behalf of nine people who were sentenced to life in prison without the possibility for parole for crimes they committed as juveniles." Here are more details from the press report:
The lawsuit, filed in U.S. District Court in Detroit, says Michigan’s sentencing laws constitute cruel and unusual punishment and violate the constitutional rights of the inmates. All nine were sentenced for first-degree murder or felony murder.
“These life without parole sentences ignore the very real differences between children and adults, abandoning the concepts of redemption and second chances,” Deborah Labelle, lawyer for the ACLU of Michigan’s Juvenile Life Without Parole Initiative, said in a statement accompanying the suit....
Under state law, 14-year-olds charged with certain felonies must be tried as adults. If convicted, they must be sentenced to life in prison without the possibility of parole, eliminating any discretion on the part of the judge....
Today’s lawsuit is part of a national campaign by the ACLU and other groups to overturn juvenile lifer laws. It said 43 states have such laws, but five states — Michigan, Pennsylvania, Louisiana, Florida and California — account for two-thirds of people serving life sentences for crimes committed as juveniles. The ACLU said Michigan has 350 such inmates.
Most of the nine plaintiffs in the case are well into adulthood. They include: Matthew Bentley, 28, who was sentenced to life in prison when he killed a homeowner in Huron County during a break-in when he was 14; Henry Hill Jr., 47, who was sentenced in 1982 for a fatal shooting during a confrontation with other boys in a park in Saginaw even though the ACLU said he didn’t fire the fatal shots; and Jennifer Pruitt, 33, who was sentenced in 1993 in the robbery-murder of a neighbor in Pontiac.
The ACLU said Hill fired shots in the air, not at the victims, and that Pruitt, a 16-year-old runaway, was not aware that the woman who took her was planning to rob the victim.
The ACLU has this press release about the suit on its website, along with this webpage with profiles and pictures of the nine plaintiffs in the suit. Intriguingly, one of the nine is a woman, and six of the eight male plaintiffs appear to African-American. This additional ACLU webpageprovides links to additional resources about juve LWOP, including this link to the full 34-page complaint filed today.
Friday, November 05, 2010
"Using Graham v. Florida to Challenge Juvenile Transfer Laws"
The title of this post is the title of this new article by Neelum Arya, the Research and Policy Director at the Campaign for Youth Justice. Here is an excerpt from the introduction:
This Article suggests that lawyers consider using Graham to ensure that every child under the age of eighteen, regardless of whether the child has been given a JLWOP sentence, is entitled to a chance to "atone for his crimes and learn from his mistakes" so that he may demonstrate that the bad acts he committed as a teenager are not representative of his true character. Graham is not merely an extension or incremental continuation of Roper, but provides significant fodder for a reexamination of our juvenile justice policies more broadly, including the possibility of removing retribution as a valid goal of the criminal justice system as applied to youth, and firmly establishing a constitutional right to rehabilitation. Graham is revolutionary in that it cuts to the heart of why we have a juvenile justice system, why it is separate from the adult system, and hopefully will make us rethink why we let the two bleed together so often. Although Graham directly addresses the constitutionality of JLWOP sentences, the author argues that there are several collateral holdings within Graham relevant to challenge the transfer of youth to the adult system as well.
Sunday, October 31, 2010
FAMM amicus brief assails life (with parole) sentence for woman who let teen touch breasts
As detailed in this press release, which is titled "FAMM Urges Nevada Supreme Court to Reverse Mandatory Life Sentence for Michelle Lyn Taylor," the group Families Against Mandatory Minimums has filed an amicus brief in a notable sentencing case is Nevada Supreme Court. Here is more:
FAMM filed the amicus brief in support of Taylor’s appeal to challenge one of the most egregious outcomes of mandatory sentencing that the organization has ever encountered. In April, an Elko County jury convicted Taylor, 34, of lewdness with a minor under 14 for inducing a 13-year-old boy to touch her breast and soliciting him for sex. Download FAMM's amicus brief [at this link].
While this behavior certainly deserves punishment, Taylor would have received a lesser sentence if she had murdered (25 to 50 years) or kidnapped (2 to 15 years) the boy. Conviction for lewdness with a minor under 14 carries a mandatory life sentence in Nevada with parole eligibility after 10 years.
“Sentencing Taylor to life in prison for acts that could have been charged as misdemeanors is unconstitutional, inhumane, and does not advance public safety. It violates both the Eighth Amendment ban on cruel and unusual punishment as well as Nevada’s ban on cruel or unusual punishment,” said Deborah Fleischaker, FAMM director of state legislative affairs. “FAMM asks the Nevada Supreme Court to overturn Taylor’s cruel and disproportionate sentence. We also urge the Nevada legislature to consider Taylor’s case, a prime example of the unintended consequences of mandatory minimums, and reform this sentencing law,” concluded Fleischaker.
Related post (which gets cited in brief):
Friday, October 29, 2010
Noting the impact of Graham for all juve LWOP sentences
Today's Wall Street Journal take note of the echoes of the Supreme Court's ruling last Term in Graham v. Florida via this effective article, headlined "Judges Forced to Revisit Juveniles' Life Sentences." Here are excerpts:
Judges are grappling with whether it is ever proper to sentence a juvenile to life in prison without parole in light of a Supreme Court decision that such a punishment for non-murderers is cruel and unusual....
Since the decision, state courts have been reducing the sentences of prisoners covered by the ruling. An Iowa judge last month decided that Jason Means, 34 years old, who was serving life without parole for a kidnapping committed when he was 17, was eligible for parole.
Approximately 150 inmates are automatically eligible for lighter sentences, according to attorneys. But the impact could be broader still as the ruling has emboldened attorneys nationwide to push for shorter sentences for juveniles serving life sentences for murders, a larger inmate population.
Roughly 2,500 inmates are serving life without parole for crimes committed as juveniles, according to one 2009 survey by Human Rights Watch, which opposes such sentences. Forty-four states allow life without parole for juvenile offenders, generally defined as being under 18 when they committed their crimes, while six states bar such sentences. The vast majority were convicted for homicides, so they don't automatically qualify for resentencing under Graham, according to attorneys.
For example, Joseph Ligon, 73, a Pennsylvania inmate who has been in prison about 57 years, is challenging the life-without-parole sentence he received for his role in two murders committed when he was 15. Mr. Ligon "has learned and grown," said his attorney Bradley Bridge. "The child who went to prison in 1953 no longer exists."
Mr. Ligon's appeal is likely to be one of hundreds of cases testing the reach of the Supreme Court ruling. Last week, the Missouri Supreme Court heard arguments in a case that contends that Graham should apply to the case of an inmate sentenced to life without parole for killing a police officer at the age of 15....
Prosecutors say a relatively small number of juveniles receive life without parole, and there should be little leniency. "There are millions of young kids who do not commit outrageous crimes," said Scott Burns, the head of the National District Attorneys Association. "To say we can excuse a small percentage who do just because their frontal lobe hasn't developed is not persuasive."
Defense lawyers and juvenile-justice advocates, who plan to test the reach of the Supreme Court ruling in cases across the country, concede that it will be difficult to persuade judges to significantly reduce life sentences in non-homicide cases, let alone to offer sentencing relief in murder cases.
Indeed, courts in Alabama and Missouri have already declined to extend the Supreme Court ruling to murder cases involving juveniles.
On Monday, a state judge in Michigan handed down a life-without-parole sentence to Dakotah Eliason, 15, who was convicted of murdering his step-grandfather earlier this year. The defendant, who was 14 at the time of the murder, had suffered recent traumas, including the deaths of his cousin, friend and dog, according to his lawyer, Lanny Fisher.
Tuesday, October 26, 2010
Michigan trial court rejects constitutional attack on mandatory LWOP for juve killer
Thanks to this post at TalkLeft (which is worth a full read), everyone can find out the outcome and read the opinion in the Michigan case previously blogged about here in which a sentencing judge was required to impose a life without parole sentence on a juvenile offender who, at age 14, murdered his grandfather and was tried as an adult for the crime.
This local press report, which is headlined "15-year-old Dakotah Eliason sentenced to life without parole," provides more details on the case and a video of the defendant's statement at sentencing. And available here is the trial court's 14-page opinion rejecting constitutional and international law attacks on the sentence.
Prior related post:
Sunday, October 24, 2010
"Graham v. Florida: Justice Kennedy’s Vision of Childhood and the Role of Judges"
The title of this post is the title of this new piece authored by Professor Tamar Birckhead and available via SSRN. Here is the abstract:
This short article examines Graham v. Florida, the United States Supreme Court decision holding that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. This article argues that Justice Anthony Kennedy’s majority opinion is grounded not only in Roper v. Simmons, which invalidated the death penalty for juvenile offenders on Eighth Amendment grounds, and Kennedy v. Louisiana, which held that the Eighth Amendment prohibited the death penalty for the offense of rape of a child, but in Establishment Clause cases set in the context of public schools and Fourteenth Amendment Due Process Clause cases upholding parental notification requirements for teenagers seeking abortions.
Whereas many journalists and scholars consider Justice Kennedy a “legal pragmatist” who lacks an overarching philosophy to guide his decision-making, in each of these opinions his view of childhood and the proper role of judges is consistent: children and adolescents are unformed works in progress, in the midst of both character and brain development, who are particularly susceptible to direct as well as indirect forms of coercion; as a result, when determining what liberty interests are protected by the United States Constitution, the role of judges and the courts is to ensure that youth mitigates rather than aggravates. Further, although juvenile justice advocates have heralded Graham as a clear victory, the opinion may raise as many questions as it seeks to answer.
Thursday, October 21, 2010
Arguments made to Missouri Supreme Court against mandatory juve LWOP
This local article, which is headlined "Mo. high court is asked to end mandatory life sentences for young killers," reports on a notable effort to extend the Supreme Court's recent Eighth Amendment work in Graham (with dash of Blakely throw in for good measure). Here are the details:
An attorney for a St. Louis teen, sentenced to spend his life in prison after he was convicted of killing police officer Norvelle Brown, argued Wednesday that juveniles should not receive automatic life sentences.
Attorney Brocca Smith said that for a juvenile, a mandatory sentence of life in prison without parole is cruel and unusual punishment and urged the Missouri Supreme Court to declare it unconstitutional. Smith limited her argument to juveniles and only those who have received an automatic sentence of life without parole.
Missouri law requires people convicted of first-degree murder to be executed or sentenced to life in prison. Smith said the problem with mandatory sentences is judges and juries cannot consider juveniles' age, maturity and other mitigating factors before deciding upon the punishment. "Children are simply not as culpable as adults, and they can't be treated the same under the law," she said....
Missouri Supreme Court Judge Laura Denvir Stith, who was among the most active with her questioning during oral arguments Wednesday, said the next question with juveniles was whether it is acceptable to sentence teens to life automatically without evaluating each defendant....
Missouri Assistant Attorney General Evan Buchheim defended the life sentence Wednesday. He told the state high court that nearly every state has lifetime prison sentences and that the U.S. Supreme Court specifically permitted life sentences for juveniles in murder cases. Buchheim argued there is little difference whether the punishment is selected or required by state law. "It seems to me to be the same thing — a mandatory life without parole sentence or a sentence of life without parole."...
Besides mandatory life sentences, the Missouri Supreme Court also was considering the constitutionality of the state's system for deciding whether juveniles should be prosecuted as adults.
Under Missouri law, juveniles are handled by special courts that focus on improving behavior and are not treated like criminal cases. Children as young as 12, however, can be charged with a felony as an adult depending on the circumstances of the case. A judge decides whether the defendant should be prosecuted as a juvenile or adult.
Smith argued Wednesday that decision should be made by a jury because the decision significantly affects the possible punishment. The attorney general's office contends that a judge can decide whether a juvenile should be charged as an adult because juries only are required to decide the facts that affect criminal penalties.
Knowledgeable readers should recall that the Missouri Supreme Court was the first to decide a few years ago that all juve killers should be categorially prohibited from facing the death penalty, a decision that was affirmed by the Supreme Court in its 2005 Roperruling. It will be interesting to see if the same court might become a pace-setting in these other juve sentencing contexts.
Wednesday, October 20, 2010
Must-read speech from retired Justice Stevens about Harmelin Eight Amendment ruling
Thanks to a posting by Tony Mauro via the NLJ's Supreme Court Insider, I just came across this remarkable speech about the Eighth Amendment and the 1991 Harmelin ruling from retired Justice John Paul Stevens. Here is how Tony describes the speech in his posting:
In a little-noticed speech delivered Oct. 7 and available on the Court's web site Stevens offered some pointed criticism of Justice Antonin Scalia, while applauding Justice Anthony Kennedy for displaying "more civilized" views than he did 20 years ago. For good measure, Stevens praised Chief Justice John Roberts Jr.'s "thoughtful opinion" last term in Graham v. Florida.
Stevens' main focus in the talk before the National Legal Aid & Defender Association was a 1991 decision that is probably one of that group's least favorite rulings: Harmelin v. Michigan, which found that a life sentence for possession of 672 grams of cocaine was constitutional. Stevens dissented in the case, though his comments about Scalia and Kennedy did not have a score-settling tone. They did, however, convey feelings he's clearly harbored for a long while.
"People were expecting a speech with a few war stories, I think," said Jenner & Block partner David DeBruin, a co-chair of the event at which Stevens was given a lifetime achievement award and a standing ovation. "But what struck me is that even though he is retired, he is still very active substantively. He clearly wanted to convey some thoughts about his time on the Court and the process of judging."
October 20, 2010 in Assessing Graham and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Monday, October 18, 2010
"Should kids be sentenced to life in prison?"
The title of this post is the headline of this article from Wisconsin which effectively review the latest from in the battle over juvenile offenders getting LWOP sentences. Here are excerpts:
In 1998, Omer Ninham was an abused 14-year-old child of alcoholic parents. He was also a murderer. After throwing a 13-year-old boy to his death from the top of a hospital parking ramp, Ninham was sentenced to life in prison without parole — essentially condemned to die in prison.
Last week, the Wisconsin Supreme Court decided to review Ninham’s sentence in a case that could determine how age should factor into the sentencing of kids who are sent to adult court.
Ninham’s is one of a number of cases that have been taken up by the Montgomery, Ala.-based Equal Justice Initiative in an effort to turn back laws at both the state and federal level that allow kids to be sent away for life. “We were very concerned about this community of very young kids who had been sentenced to life without parole and almost no one knew anything about them” says Bryan Stevenson, executive director of the group....
In 2004 the U.S. Supreme Court ruled that it is unconstitutional to impose capital punishment for offenders under the age of 18, which set in motion a number of legal challenges on behalf of children convicted of crimes in adult court. Earlier this year, the high court again distinguished between adolescents and adults when it ruled that it was unconstitutional to permanently lock up adolescents who commit non-capital offenses.
Now, says Stevenson, courts need to make the same distinction between adults and children who commit capital crimes. And his group is making some headway. Earlier this year the Iowa Supreme Court gave an Iowa woman, now 32, the right to challenge her life sentence as cruel and unusual punishment for a 1993 killing she committed when she was 14....
Stevenson says Wisconsin is one of 18 or so states that allow children to be sent away for life, and Ninham, now 26, is in a category by himself: the only inmate in a Wisconsin prison who committed a crime at 14 and has no hope of going free.
Generally, Stevenson says, legislatures didn’t intend to put kids away for life. Instead, they made it easier to put kids into the adult system and they also stiffened the punishments available for adults. “They’ve done a lot of things that are catching kids in ways that I think have not been carefully considered,” he says....
Wisconsin Attorney General J.B. Van Hollen, who has assigned an attorney from his department to argue against giving Ninham a chance at parole, would not comment on the Supreme Court’s acceptance of the case. But after the appeals court decision last year he issued a statement saying, “For some juvenile offenders, a life sentence without parole is fair and just punishment. Ninham was properly punished for a horrible crime.”
But Stevenson argues that like all adolescents, Ninham has changed as he has matured. Before the murder, he was abused and neglected. He had never owned a toothbrush until he was sent to a group home at age 14. His alcoholic parents allowed him to imbibe alcohol daily, and his father and brothers beat him. Soon after he committed the murder, Ninham was placed in a center for at-risk Native American kids and started to make “extraordinary progress,” says Stevenson, adding, “We think he’s continued to make good progress.”
Friday, October 15, 2010
FSR October 2010 issue, "Life Without Parole," now available on-line
I am pleased to report that the October issue of the Federal Sentencing Reporter, which is full of cutting edge analysis and commentary on the topic of "Life Without Parole, is now available on-line. The Table of Contents for this latest FSR issue can be accessed at this link, and the full issue and/or a full subscription to the Federal Sentencing Reporter can be ordered on-line here.)
Professor Michael O’Hear, the chief FSR editor who assembled a great set of articles, authored an opening commentary, entitled "The Beginning of the End for Life Without Parole?", and this introductory essay can be downloaded at this link. The other major piece in this terrific FSR issue are listed below:
- Robert Blecker, Less Than We Might: Meditations on Life in Prison Without Parole
- Molly M. Gill, Clemency for Lifers: The Only Road Out Is the Road Not Taken
- Ashley Nellis, Throwing Away the Key: The Expansion of Life Without Parole Sentences in the United States
- Gregory J. O’Meara, Compassion and the Public Interest: Wisconsin’s New Compassionate Release Legislation
- Dirk van Zyl Smit, Outlawing Irreducible Life Sentences: Europe on the Brink?
COMMENTARY ON GRAHAM & SULLIVAN
- Rachel E. Barkow, Categorizing Graham
- Richard S. Frase, Graham’s Good News — and Not
- Youngjae Lee, The Purposes of Punishment Test
- Dan Markel, May Minors Be Retributively Punished After Panetti (and Graham)?
- Eva S. Nilsen, From Harmelin to Graham — Justice Kennedy Stakes Out a Path to Proportional Punishment
- Jessica Olive & David Gray, A Modest Appeal for Decent Respect
- Alice Ristroph, Hope, Imprisonment, and the Constitution
- Carol S. Steiker & Jordan M. Steiker, Graham Lets the Sun Shine In: The Supreme Court Opens a Window Between Two Formerly Walled-Off Approaches to Eighth Amendment Proportionality Challenges
- John F. Stinneford, Evolving Away from Evolving Standards of Decency
Sunday, October 10, 2010
Notable report on how one Florida case is dealing with the "uncharted territory" after Graham
I just came across this interesting article from a local Florida paper, which is headlined "Supreme court ruling gives life-sentence prisoner hope: Man convicted of rape when he was 16 hopes to reduce prison time now that life sentences for minors who didn't kill is unconstitutional." Here are excerpts:
Jason Kalapp ... is to serve five life sentences without the possibility of parole for the rape and attempted murder of his 24-year-old female neighbor in 1997. Kalapp, who was 16 at the time, allegedly forced his way into the young woman's home, beat her with a metal bar and raped her twice in her bathroom.
But a recent U.S. Supreme Court ruling has given Kalapp a newfound hope that he will someday see the world outside of a Florida correctional facility.... In May, the U.S. Supreme Court ruled 6-3 in Graham v. Florida that it was unconstitutional to give life sentences to juveniles who haven't killed. The justices ruled juvenile offenders must be given "some meaningful opportunity" for release.
Senior Circuit Court Judge Maurice Giunta decided Tuesday that the proceedings should be pushed back six months, giving prosecutors and Kalapp's public defender, Norma Wendt, time to prepare for a case that State Attorney R.J. Larizza said is "uncharted territory."
"I'm not sure how it's going to play out yet," said Wendt, division chief of the St. Johns County Public Defender's Office. "It's important to be cautious in this unique case, and I understand why the judge was careful about rescheduling the resentencing."...
The six months' time will give the Florida Office of Executive Clemency and representatives in the Florida Legislature time to respond and give the court a better idea of how to proceed, Giunta said. "The decision or petition from the Office of Executive Clemency may allow the possibility of parole, but that doesn't mean he'll get it," Larizza said. "The Legislature may also help fashion some way on how to proceed."
Kalapp is one of 77 former juveniles in Florida and 129 in the nation who are up for resentencings under the new ruling. "The bulk of these cases are in our state," Wendt said. "We have a bad habit of giving out life sentences in Florida. "It's important that we're consistent with the rest of the state in this thing, and we don't have different rulings in different counties."...
"The person that did that terrible thing is not the person that I know," said Amy, who asked that her last name not be printed, Kalapp's fiancee of more than a year. "He's not that person anymore, and he deserves a life outside of prison."
Amy, who visits Kalapp at least once a week from her home in South Florida, said she feels the court systems are lost on what to do. The couple met when Amy began writing to Kalapp as a pen pal nearly two years ago. "I just cannot understand this sentence," she said. "I've seen murderers get less of sentence than what he's got."
Wednesday, October 06, 2010
Young killer in Michigan making Graham-inspired constitutional argument against LWOP sentence
This local story from Michigan, which is headlined "Life in prison for Eliason: ‘cruel and unusual?’," has me thinking a lot of (deep?) thoughts about the interplay between federal constitutional jurisprudence and state punishment practices. Lets begin with the basics:
In an unexpected turn of events, sentencing planned for Monday morning for 15-year-old Dakotah Eliason — found guilty of first degree murder in August — was postponed until the end of the month. An adjournment came after the defense argued the sentence of life without parole could be considered cruel and unusual punishment under the Eighth Amendment of the Constitution.
“The court is imparted to impose a mandatory sentence in this case of life without parole,” defense attorney Lanny Fisher told the court. “It is my duty as Mr. Eliason’s advocate to present a constitutional argument, particularly the Eighth Amendment of cruel and unusual punishment.”
Eliason was convicted in August of the killing his grandfather, Jesse Miles in March. Fisher is expected to file his brief with the court within the next week. Following, Berrien County Chief Prosecutor Art Cotter would file a response.
Cotter said he could not address the court on the issue, as he had not seen Fisher’s argument. Schofield said he was “disappointed this argument is being made on the day of sentencing. But this is a serious case.” He added he felt there was a need for research on behalf of both the prosecution and the defense on the argument being presented by Fisher.
“I”m glad that the judge is giving it a second chance for Lanny to argue the cruel and unusual punishment side of it,” Eliason’s mother, Mary Apfel, said Monday. “I do agree with the judge’s decision today. I’m very happy with it.”
Eliason recently celebrated his 15th birthday while in incarceration....
Schofield reiterated his disappointment in being unable to move forward with sentencing, “but under the circumstances I feel I have no alternative.” He rescheduled Eliason’s next appearance for Oct. 25. Following the adjournment, Cotter told reporters he was disappointed.
“I think this has been very, very difficult for this family and I had hoped, at least with respect to the legal part of it, this would put an end to it. Obviously, it’s going to go on for another three weeks,” Cotter said.
Fisher said it was imperative he introduce the issue of cruel and unusual punishment for his client, as he plans to appeal the ruling handed over by the jury in this case. He is unable to do so until the official sentencing.
“I believe it is cruel and unusual punishment giving a youth life without parole,” Fisher said. “In May of 2010 the Supreme Court of the United States said the Eighth Amendment does not permit a youth to be sentenced to life without parole in a non-homicidal crime,” he said. Though his client has been convicted of homicide, he said, “it’s starting to trend” toward looking at the amendment’s clause and its application to youth offenders’ crimes as violent as murder.
He also referenced Article 37 of the Office of the United Nations High Commissioner for Human Rights Convention on the Rights of the Child, which he said has been signed by 180 countries — but not the U.S.
Eliason’s father Steven said the fact that the sentence has been deemed unconstitutional for juveniles committed of non-homicidal offenses sets a precedent. “It should be the same,” Steven said. “It should be abolished by our country.” He added he is happy that the judge allowed Fisher’s argument to be made.
Introducing the brief, Fisher said, allows him to “preserve the issue” and it “opens the door to go up to our Supreme Court of Appeals and the Supreme Court. “It’s my job as his advocate to preserve the issue,” Fisher said.
Under Michigan law, Schofield is mandated to sentence Eliason to life without parole.
Here is a brief account of some of the (deep?) thoughts/questions being triggered by this case:
1. The Michigan Constitution states: "Excessive bail shall not be required; excessive fines shall not be imposed; cruel ORunusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained." Article Six, Section 31 (empahsis added). Whatever the reach of the US Constitution (which only prohibits cruel AND unusual punishments) in the wake of Graham v. Florida and Roper v. Missouri, might not Eliason have a viable state constitutional claim that a mandatory LWOP sentence is problematic for a 14-year-old killer?
2. Given that Michigan law does not include capital punishment for any kind of murder by any kind of defendant, might Eliason's claim based on the US Constitution (as interpreted in Roper and Graham) be a bit stronger than if he was subject to an LWOP sentence in, say, Missouri where adult killers can be subject to the harsher sentence of death? After all, were Eliason prosecuted for murder in Missouri, the US Constitution would take the harshest possible state sentence off the table because of his status as a juvenile at the time of the crime. But in Michigan, the harshest possible state sentence (LWOP) is on the table for Eliason (and apparently is still mandatory) despite his status as a juvenile at the time of the crime.
3. Is it constitutionally significant that Michigan law allows Eliason to be subject to an LWOP sentence for a crime committed at the "tender" age of 14? Is it constitutionally significant that Michigan law (unlike the law under which Terrance Graham got an LWOP sentence) mandatorily requires the sentencing judge to impose an LWOP sentence based on the nature of his crime?
Sunday, September 26, 2010
Effective review of how Florida is dealing with the aftermath of SCOTUS Graham rulingToday's Miami Herald has this effective and interesting piece discussing how the state is trying to deal with the Supreme Court's Eighth Amendment ruling in Graham concerning juve LWOP sentence for nonhomicide crimes. The article is headlined "Ruling on young, violent lifers puts Florida justice on the spot," and here are excerpts:
Kyan Bucknor was 15 in 1999 when he shot two patrons and unleashed a volley of bullets into Broward Sheriff's Office deputy Al Hibbert outside a Lauderdale Lakes nightclub. The teen's sentence: life in prison.
But Bucknor, now 26, will get a reprieve thanks to a May U.S. Supreme Court decision banning life-without-parole sentences for juveniles who did not kill anyone. The ruling left Florida in a quandary: For undeniably violent crimes, what is an appropriate alternative sentence in a state that has no parole system?
Bucknor is one of 23 South Florida men -- among 100-plus statewide, the most in the nation -- who must now be resentenced under the Graham v. Florida ruling. So far, none have received new prison terms as the judicial system, case by case, county by county, struggles to comply....
Two possible fixes have emerged, from prosecutors and a lawmaker, both requiring mandatory lengthy prison terms followed by the possibility of parole. A statewide prosecutors association has petitioned Florida's Executive Clemency Board to step in and commute the men's sentences to life with the possibility of parole after 20 years -- a move opposed by Gov. Charlie Crist.
Separately, a Jacksonville state lawmaker says he will introduce a bill next year to create a parole system for violent juvenile offenders, with eligibility after 25 years in prison. In keeping with the Supreme Court ruling, both solutions guarantee only the possibility of parole -- not that the inmates would actually get out early.
That's a key point to House Rep. Mike Weinstein, R-Jacksonville, because he wants to keep the offenders behind bars as long as possible. "They try to kill five people, and we can't seek a life sentence. They rape girls -- and they can't be given life," Weinstein said. "But we want to be able to give them a life sentence, and in my mind, they deserve a life sentence."...
In most states, the Graham ruling means simply amending a life sentence to include the possibility of parole. But Florida is in a particular bind because lawmakers abolished parole in 1983 after too many inmates released early were committing high-profile crimes. The state's Parole Commission now reviews only cases that pre-date 1983.
Statewide, there are more than 100 defendants who must be resentenced under the ruling, according to Barry University's Juvenile Justice Center, which tracks the Graham cases. That means, for now, the onus falls on trial judges to resentence individual defendants. Judges who impose new but long terms would be violating the spirit of the Graham decision and simply spark more appeals, defense lawyers warn....
Bill Cervone, president of the Florida Prosecuting Attorneys Association, worries that judges will impose wildly disparate sentences. "We're going to end up with a mish-mash of results all over the state," said Cervone, the Gainesville-based state attorney.
In an effort to streamline the process, last month the prosecutors group filed the petition with the governor's office, asking the clemency board to commute all Graham cases to sentences of life with the possibility of parole. Then, the parole commission would review each case after the inmate has served 20 years in prison....
Any solution -- whether new legislation, or clemency -- will likely come after the November elections, when politicians will be more willing to tackle the hot-button issue. Crist, in the midst of a hard-fought race for the U.S. Senate, said in a statement that he opposes the prosecutors' proposal....
Prosecutor Cervone believes the state attorneys' proposal, by eliminating the need for resentencing hearings, would be a kinder solution for victims who have struggled to cope with their experiences.
Thursday, September 23, 2010
Ninth Circuit rejects Eighth Amendment challenge to LWOP for second offense of child molestationThe Ninth Circuit has an interesting habeas sentencing opinion today in Norris v. Morgan, No. 08-35645 (9th Cir. Sept. 23, 2010) (available here). Here is how it gets started:
Brach E. Norris was convicted by a jury of child molestation in the first-degree. Norris had also had been convicted of child molestation ten years earlier. The State of Washington’s “two strikes” law for repeat sex offenders provides for a mandatory sentence of life in prison without the possibility of parole, and Norris was so sentenced. Invoking the Eighth Amendment’s prohibition against cruel and unusual punishment, Norris challenges his sentence as grossly disproportionate to his offense.
The Washington Court of Appeals denied Norris’s claim, holding his life-without-parole sentence not grossly disproportionate to his crime. On habeas review, we decide whether the Washington Court of Appeals’s decision denying Norris’s claim “was contrary to, or involved an unreasonable application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1). We conclude that the decision was not contrary to clearly established federal law. Additionally, while finding the issue a close one, we conclude that Norris’s Eighth Amendment claim would fail even on de novo review, and thus need not determine whether the state appellate court decision involved an unreasonable application of clearly established federal law. We affirm.
Tuesday, September 21, 2010
Split Sixth Circuit upholds federal mandatory LWOP sentence based on priors committed when a juveIn a case involving another defendant named Graham, a split panel of the Sixth Circuit has upheld a mandatory minimum LWOP sentence against a challenge that seeks to extend the reach of the Supreme Court's Eighth Amendment work in Graham v. Florida. Here is how the majority opinion (per Judge Moore) in US v. Graham, No. 08-5993 (6th Cir. Sept. 21, 2010) (available here) gets started:
Donald Graham, convicted of three counts of a seven-count indictment for crack-cocaine offenses under 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2, appeals from the district court’s denial of his Federal Rule of Criminal Procedure 29 motion for a judgment of acquittal, denial of his motion to disregard life sentence, and sentencing decision. Graham’s main contention on appeal is that his life sentence, imposed for his third qualifying felony under 21 U.S.C. § 841(b)(1)(A), violates the Eighth Amendment to the U.S. Constitution. Finding no reversible error, we affirm the district court’s rulings on Graham’s motions and his life sentence.
Here is how the dissenting opinion (per Judge Merritt) gets started:
My view in this case of first impression in this Circuit is that the sentencing of this nonviolent, 30-year-old petty drug trafficker to life imprisonment by using a juvenile conviction as a necessary third strike not only violates clear congressional intent revealed by clear rules of statutory construction but also violates sound principles of penological policy based on the Eighth Amendment values recently outlined by the Supreme Court in Graham v. Florida, 130 S. Ct. 2011 (2010). I would have preferred that my colleagues in the majority acknowledge and address the arguments made here against the use of a juvenile conviction to send this nonviolent drug offender to prison for life. Instead they have chosen to ignore those arguments. I leave it to the readers to determine for themselves the usefulness and credibility of this kind of appellate decision making.
Thursday, September 02, 2010
California state appeals court finds unconstitutional 84-year prison term for 16-year-old car-jacker
As detailed in this San Francisco Chronicle piece, which is headlined "Teen's 84-year sentence overturned by court," at least one California appeals court has extended the Supreme Court's ruling in Graham to a (long) term-of-years sentence. Here is the start of the press article:
After the Legislature killed a Bay Area lawmaker's bill to give juveniles serving life sentences a chance at future parole, a state appeals court took a step in the other direction Wednesday by overturning the 84-year prison term of a 16-year-old gang member convicted of robbery and carjacking.
The sentence is the practical equivalent of life without possible parole and violates the constitutional ban on cruel and unusual punishment, said the Second District Court of Appeal in Los Angeles. The court told the trial judge to resentence Victor Mendez to a term that would give him a chance to gain his freedom someday if he shows maturity and rehabilitation.
The ruling followed a U.S. Supreme Court decision in May that banned life-without-parole sentences for juveniles convicted of crimes other than homicide. That ruling applied to four youths in California prisons, but did not affect another 250 inmates serving the same sentence for murders committed at ages 16 or 17.
The discussion of Graham starts at page 15 of the full slip opinion in California v. Mendez, No. B217683 (Cal. 2d Dist. App. Sept 1, 2010) (available here). Here is a snippet:
We disagree with Mendez that his de facto LWOP sentence should be reversed pursuant to the holding in Graham. As the People note, Graham expressly limited its holding to juveniles actually sentenced to LWOP.... Mendez‘s sentence is not technically an LWOP sentence, and therefore not controlled by Graham. We are nevertheless guided by the principles set forth in Graham in evaluating Mendez‘s claim that his sentence is cruel and unusual....
Even without Graham, we would conclude that Mendez‘s sentence is unconstitutional when evaluated under the traditional "proportionality" test used by the federal and state courts when evaluating individual claims that a sentence is cruel and unusual. Although articulated slightly differently, both standards prohibit punishment that is "grossly disproportionate" to the crime or the individual culpability of the defendant....
In reaching our conclusion that Mendez‘s sentence is the equivalent of LWOP and that it is cruel and unusual punishment, we are mindful of the fact that successful challenges to sentences on the grounds of cruel and unusual punishment are rare. Nevertheless, we find this to be such a rare case, and we therefore remand the matter to the trial court for reconsideration of Mendez‘s sentence.
Tuesday, August 24, 2010
"Rethinking Proportionality Under the Cruel and Unusual Punishments Clause"The title of this post is the title of this terrific-looking new article by John Stinneford that is now available via SSRN. Here is the abstract:
Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered doubts about the legitimacy of proportionality review, leading a controlling plurality of the Court to insist that such review be limited to a narrow class of cases. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent . Finally, the Court’s method of measuring proportionality is unreliable and self-contradictory. As a result, very few offenders have benefited from the Court’s decision to engage in proportionality review. This area of doctrine needs rethinking.
This article is the first to establish that the Cruel and Unusual Punishments Clause was originally meant to prohibit excessive punishments as well as barbaric ones, and that proportionality review is therefore unquestionably legitimate. This article also demonstrates that proportionality is a retributive concept, not a utilitarian one. Punishments are unconstitutionally excessive if they are harsher than the defendant deserves as a retributive matter. Finally, this article shows that proportionality should be measured primarily in relation to prior punishment practice. The proposed approach will align the Court’s proportionality jurisprudence more closely with the core purpose of the Cruel and Unusual Punishments Clause, and will enable the Court to expand proportionality review to a much larger class of cases.
Sunday, August 22, 2010
"Difference in sentencing of two juveniles highlights difficult issue"The title of this post is the headline of this local story out of California. Here is how it gets started:
A 14-year-old south Modesto boy who killed a young father at a child's birthday party will likely die in prison. Angel Cabanillas, now 19, stands to serve at least 100 years behind bars. But just 40 miles south in Merced, a boy who was 15 when he committed a fatal drive-by to impress his fellow gang members is set to be sentenced Monday to 31 years in prison. He could be out by the time he's 42.
The disparity in their sentences reflects a divide in how judges and prosecutors handle violent crimes committed by children. The topic of whether minors can be sentenced to die in prison has recently come under scrutiny by the U.S. Supreme Court and the California Legislature, and their discussions could change the rules for cases like Cabanillas.'
In May, the Supreme Court ruled juveniles cannot be sentenced to life in prison without parole for non-homicide crimes. Denying children who commit lesser crimes the opportunity to ever get out of prison constitutes cruel and unusual punishment and runs counter to a worldwide consensus against such harsh sentences for juveniles, the court wrote. But while the decision did not specifically address what can happen to children convicted of murder, legal experts say recent court rulings regarding juvenile justice have shown a trend toward leniency.
Thursday, August 19, 2010
California legislature considering bill to eliminate juve LWOP for any crimesThe Supreme Court in Graham declared unconstitutional the imposition of life-without-parole for juvenile offenders who commit nonhomicide offenses. Now, as detailed in this article, the California legislature is considering a bill to eliminate juve LWOP for any crime. The piece is headlined "Bill would let juvenile criminals seek leniency," and here are excerpts:
When Democratic state Sen. Leland Yee talks about SB399, he inevitably points to the case of Sara Kruzan. In 1994, at age 16, Kruzan killed her alleged pimp three years after she was forced into prostitution. The Riverside girl was convicted of first-degree murder and sentenced to spend the rest of her life in prison with no possibility of parole.
Under SB399, juvenile offenders such as Kruzan, now a 32-year-old prison inmate, would be allowed to ask a court to review their case after 10 years in prison, and could potentially get their sentence reduced to 25 years to life. The bill -- a watered-down version of Yee's original proposal, which would have barred life imprisonment for all juveniles -- has been approved by the state Senate and is set to be taken up by the Assembly as soon as Thursday....
Opponents, including the California District Attorneys Association and the Assembly Republican Caucus, flatly reject those contentions. They argue that the current system works and that only the "worst of the worst" are eligible for life without parole now.
Scott Thorpe, the association's CEO, noted that juveniles are considered for lifetime sentences if they are tried as adults. "We're talking about the most serious types of crimes, and we're also talking about defendants who, because of a number of factors, have been determined to deserve at least eligibility for that punishment. We're talking about first-degree murderers," he said.
Supporters, however, say juveniles are different from adults and should be treated as such. They are more likely to be influenced by other people and don't have the same ability to grasp foresight and consequences, said Yee, a child psychologist. And, he said, their brains are still developing, giving them a larger capacity for rehabilitation than adults. "We're letting prisoners out because of overcrowding -- ought we not at least look at children and see if they are deserving to be let out?" Yee asked.
Elizabeth Calvin of Human Rights Watch and other supporters also argued that juveniles tend to receive harsher sentences than adults for the same crimes, because they are less likely to agree to plea deals, don't always understand their rights or refuse to accept responsibility if they were present for, but did not actually commit, a murder.
The bill would only allow some people to apply for the reduced sentence. For example, a defendant who had previously been convicted of assault or other violent crimes might not be eligible. If a sentence was reduced, a defendant would have to go through the normal process -- a review before a parole board and the governor -- before they could be paroled. "This bill is so narrowly drawn -- it's modest in what it's attempting," said Calvin. "One of the things that makes it different from other early release schemes is that there would be very careful consideration of each case."
In California, approximately 250 people who were juveniles when they committed their crimes are serving lifetime prison sentences without the possibility of parole. Calvin said that nearly half of those defendants are not actually murderers but were convicted of murder because they were present and participating in some other illegal activity when someone was killed, and that most had no prior criminal convictions.
The District Attorneys Association disputed those numbers, saying they were based on interviews with inmates and other anecdotal evidence. The vast majority, Thorpe said, are murderers....
Sen. Sam Aanestad, R-Penn Valley (Nevada County) -- the only Republican to support the bill in the Senate -- said all of the arguments overlook one simple question: "Do we believe in rehabilitation or don't we?" he asked. "I think the younger you are, the more of a chance you have to reprogram.... For me, it's just a matter of fairness. If all we want to do is punish people, OK, let's put them away for good. But I don't believe that's what society really wants."
Notably, it appears that California's editorial pages are all supportive of this bill:
- From the Los Angeles Times here, "Legislature should pass Fair Sentencing for Youth Act"
- From the San Diego Union Tribune here, "Life without parole for children?"
- From the Ventura County Star here, "Second chance for young lifers"
Monday, August 16, 2010
"More Different than Life, Less Different than Death"
The title of this post is the title of this terrific-looking new piece by William Berry which discusses the Supreme Court's recent work in the juve LWOP case of Graham v. Florida and makes an argument for LWOP sentences to receive a unique form of Eighth Amendment scrutiny. Here is the piece's abstract:
The Supreme Court has traditionally divided its application of the Eighth Amendment into two categories, capital and non-capital cases, based on the longstanding notion that “death- is-different.” In the recent case of Graham v. Florida, however, the Supreme Court applied its “evolving standards of decency” standard, heretofore reserved for capital cases, to a non-capital case in holding that the Eighth Amendment prohibited states from sentencing juvenile offenders to life without parole for non-homicide crimes. The dissenting justices argued that this decision marked the end of the Court’s “death-is-different” jurisprudence.
This article argues, however, that the decision instead creates the opportunity to establish a new category of Eighth Amendment review for life without parole sentences. While life without parole may not be as “different” from other sentences as death, it is still “different” enough to warrant its own set of heightened standards of Eighth Amendment review.
Part One of the article describes the dichotomy between capital and non-capital cases in the Supreme Court’s Eighth Amendment jurisprudence and the application of these two lines of cases in Graham v. Florida. Part Two of the article explains why life without parole, a sentence to die in prison, is “different” in its own way. Part Three then argues for the application of a new category of standards under the Eighth Amendment in life without parole cases, and suggests other possible implications of Graham.
Sunday, June 27, 2010
"Juvenile Life Without Parole (JLWOP): An Antidote to Congress’s One-Way Criminal Law Ratchet?"The title of this post is the title of this forthcoming article by Scott Hechinger, which appears to be among the first major pieces of scholarship seeking to take stock of the LWOP landscape in the wake of the Supreme Court's Graham decision. As the abstract reveals, the piece also has some interesting things to say about how Congress deals with sentencing issues:
Despite Justice Kennedy’s implicit approval of life-without-parole sentences for crimes committed before the age of 18 (“JLWOP”) in Roper v. Simmons, the issue of JLWOP has since generated a wave of attention and advocacy from scholars, bloggers, and journalists, human rights organizations, state legislatures, and international bodies, victims and children’s rights groups, and federal and state courts. Symbolic of, and perhaps in reaction to, the increased momentum of the JLWOP debate post-Roper, the Supreme Court granted review of the constitutionally of JLWOP for non-homicides in Sullivan v. Florida and Graham v. Floridawith the court ultimately barring JLWOP for non-homicide crimes in Graham. However, nearly 93% (over 2300) of the JWLOPers are incarcerated for homicide and their sentences remain unaffected.
In the post GrahamJLWOP legal landscape, the critical question now is: what next? This article will seek to provide an answer.
Given Congress’s virtually non-existent history of “leniency legislation,” it is not at all surprising that scant advocacy and scholarly attention has focused on the potential for Congressional action on the issue of JLWOP. Those familiar with federal criminal legislation have serious cause to doubt federal intervention in this field. This article, however, will argue there are significant reasons to believe JLWOP can and very well might be the issue to buck the timeless “one-way ratchet” of federal criminal law legislation.
Congress has already moved on the issue of JLWOP. The Juvenile Justice Accountability and Improvement Act (“JJAIA”) — introduced in the House of Representatives in 2007 and again in 2009 — proposes to use Congress's spending power to condition federal funds allocated for crime control on states allowing for meaningful parole or supervised release opportunities for individuals convicted of crimes committed before the age of eighteen. While the legislation has yielded two substantively rich hearings, and some advocacy attention, neither bill has made it out of committee, though the sponsors plan to reintroduce it and continue to do so until it is passed.
The quicksand in which the JJAIA is currently mired is rooted in the same, considerable obstacles facing any Congressional attempt at leniency legislation. First, there is an entrenched political process bias against leniency legislation in Congress grounded in the fear of appearing “soft on crime,” the perception — both real and perceived — that public opinion opposes leniency, and the existence of vast inequalities in interest group power. Second, whether for political cover or out of legitimate Constitutional concern, federalism costs associated with federal intrusion into the state’s traditional control over crime and punishment disincentivize Congressional action.
This article will use the JJAIA and the issue of JLWOP to evaluate and respond to these classic obstacles to federal leniency legislation. I will argue first, that the political process bias that has doomed leniency legislation in the past is actually far weaker in the context of JLWOP. Second, I will ultimately conclude that the passage of the JJAIA is both necessary and proper and Congress’s federalism concerns are overstated in the context of JLWOP.
Whether or not Congress will actually act to pass the JJAIA is not a question I can possibly answer nor one on which I will focus. Assuming the status quo of Congressional reluctance and advocate skepticism, Congress will probably not pass this legislation, at least not in the near future. This paper will also not advocate for the abolition of JLWOP. The goal of this paper is far more modest. The aim is to highlight for criminal justice reformists the potential for Congress to pass smart criminal law legislation and to illustrate to Congressmen and women that ending JLWOP will neither be political suicide nor sound the death knell of federalism, as we know it.
Thursday, June 17, 2010
An echo of Graham in Michigan sentencing of young juve killer?The title of this post is prompted by this local story from Michigan, which is headlined "DeMarco Harris, 13, spared from life sentence." Here are the details from the start of the article:
A 13-year-old convicted of fatally shooting a Genesee County woman last year was potentially spared a life behind bars when he was sentenced this morning.
DeMarco Harris, who was 12 when he shot and killed 24-year-old Trisha Babcock in a botched robbery Aug. 1, will be placed in a juvenile facility until he's 21, after which the court will decide whether he should be released, Wayne County Circuit Judge Sheila Gibson ruled today.
Harris was convicted in his second trial by a jury last month of felony murder, armed robbery and curfew violation in the case. His first trial ended with a hung jury.
Gibson could have sentenced Harris to life in prison under a state law that allows juveniles to be designated as adults. She had wide latitude, however, and could have sentenced him as a juvenile, an adult, or a blending of the two. She opted for the latter, warning that if he commits a felony during his time in the juvenile center, he'll automatically be sentenced as an adult.
If the court decides to impose an adult sentence when Harris is 21, he would receive mandatory life without parole on the felony murder charge, 18-40 years on the assault with intent to rob while armed charge and a consecutive sentence of two years for using a firearm to commit a felony, according to the Wayne County Prosecutor's Office.
Of course, the Supreme Court's opinion in Graham only categorically prohibited LWOP sentences for juves who commit non-homicide offenses. But it seems this case would have been a fascinating Graham follow-up had the judge here decided to impose an LWOP sentence on a 12-year-old killer.
Tuesday, June 15, 2010
Despite Graham ruling, Florida prosecutors have violent teen on path to LWOP sentenceThis local article from Florida, which is headlined "Teen faces adult charge, contrary to high-court ruling," reports on an interesting case stuggling to deal with the aftermath of the Supreme Court's landmark Eighth Amendment ruling last month in Graham. Here are the interesting details:
Prosecutors have decided to try 16-year-old Henry "Peanut" Baker as an adult in the shooting of a Sanford police officer two weeks ago.
That puts him in the cross-hairs of a dispute about what to do with violent juveniles. If convicted, Baker faces a mandatory sentence of life in prison without the possibility of parole.
But two weeks before his arrest, the U.S. Supreme Court barred that sentence for anyone under 18 who had not committed murder. Ordering a child who was not a murderer to prison with no possibility of release is cruel and therefore unconstitutional, the court ruled.
So what will happen to Baker, who will be charged with attempted murder of a law officer, a crime that carries a sentence that no judge legally can impose? That is unclear....
Authorities said Baker wounded the young cop during a foot chase. The suspect disappeared around the corner of an apartment building, and when Worrall rounded the corner, the gunman opened fire from 10 to 12 feet away, the officer said.
The suspect fired three times. Worrall was unscathed after the first two shots, but the third slug hit him under the right arm, above his bullet-proof vest. He fell to the ground bleeding, and the gunman looked down and pulled the trigger a fourth time, Worrall told reporters last week. That bullet also missed, and the gunman fled, Worrall said....
Chris White, chief assistant state attorney in Seminole County, said Tuesday that his office would prosecute Baker as an adult. That's because the crime was serious and violent, White said. Baker's prior criminal record also pushed prosecutors toward that decision, White said.
Because Baker is a juvenile, much of his criminal record is a secret, but he's to stand trial in Sanford next week, accused of committing a schoolyard robbery. In March, according to a Sanford police report, he stole the wallet of a student at Seminole High School and punched him. Baker has been arrested at least three other times, according to records with the Florida Department of Law Enforcement, and was found guilty in three Ocoee burglaries in 2008.
Bryan Gowdy is the Jacksonville lawyer who convinced the U.S. Supreme Court to vote 6-3 to outlaw life-without-parole sentences for non-murdering juveniles . He said it appears there's only one solution for the Baker case: The Florida Legislature must rewrite the law which he is accused of violating: attempted murder of a law enforcement officer. That's because the law provides for just one sentence — life without the possibility of parole.
The Legislature also should review and rewrite some if not all of Florida's other laws that allow judges to impose life-without-parole sentences. "The Legislature should act to bring Florida's sentencing laws into conformity with common sense, the (U.S. Supreme) court's opinion and standards of decency," Gowdy said. "If they don't act, they're going to tie a judge's hands."
Thursday, May 27, 2010
Effective new commentary on the Supreme Court's work in GrahamOver at Findlaw, Professor Sherry Colb has this new column on the Supreme Court's recent Eighth Amendment work in Graham. The piece is titled simply, "High Court Rejects Life Without Parole for All Juvenile, Non-Homicide Crimes," and here is how it starts and ends:
Last week, in Graham v. Florida, the U.S. Supreme Court held that the Eighth Amendment's ban on cruel and unusual punishments bars the sentencing of juvenile offenders to life imprisonment without the possibility of parole ("LWOP") for non-homicide offenses. As I noted in an earlier column, such a decision stands in considerable tension with the Court's existing precedents. Accordingly, though the majority opinion does not explicitly depart from prior rulings, there is nonetheless reason to expect that the Court may now be more willing to entertain Eighth Amendment challenges to lengthy prison sentences than it has been in the past....
Just as imprisonment is different from death, then, there is much to distinguish different prison sentences from one another. The Supreme Court has now, laudably, recognized that LWOP can represent an excessively harsh sentence for at least one class of offenders and offenses. Its decision in Graham v. Florida thus provides hope that the harshness of prison sentences — and their relation, if any, to the seriousness of people's crimes — can once again become a fit subject of Eighth Amendment scrutiny in the U.S. Supreme Court.
Some recent related posts with my own Graham analysis:
- Doesn't the logic and language of Graham put juve LWOP for "lesser" homicides on thin ice?
- Strong arguments for second-look sentencing reforms from SCOTUS concurrences
- Hail to the Chief and the fascinating future of Eighth Amendment jurisprudence
- Graham crackers: reflecting on Eighth Amendment rules versus standard and subconstitutional echoes
- Originalist Graham crackers: would the Eighth Amendment ratifiers really be indifferent about LWOP?
Wednesday, May 19, 2010
Did the Chief initially have (but then lose) Justice Alito's vote in Graham?
As my prior posts highlight, I am intrigued and taken by many aspects of the substance of Chief Justice Roberts' concurrence in the Graham Eighth Amendment case. But, in re-reading this opinion today, I was also intrigued and taken by a surprising pronoun in this paragraph from page 6 of the Chief's opinion:
JUSTICE THOMAS disagrees with even our limited reliance on Roper on the ground that the present case does not involve capital punishment. Post, at 26 (dissenting opinion). That distinction is important — indeed, it underlies our rejection of the categorical rule declared by the Court. But Roper’s conclusion that juveniles are typically less culpable than adults has pertinence beyond capital cases, and rightly informs the case-specific inquiry I believe to be appropriate here.
The use of the pronoun "our" in the two spots highlighted here suggests to me that, at some point, Chief Justice Roberts may have believed he had a fellow-traveler prepared to sign on to his separate concurring opinion finding Graham's sentence's unconstitutional based on "traditional" case-by-case proportionality review. I suppose it is possible that one of the five Justices in the Graham majority was the expected fellow-traveler, but I think it much more likely that Chief Justice Roberts was writing with the expectation that Justice Alito would be willing to join his opinion. My speculation seems supported by the fact that Justice Alito ultimately did not sign on to Parts II and IV of Justice Thomas's dissent in Graham (as well as Justice Alito's separate little opinion saying he ultimately did not think defendant Graham had properly presented/preserved a case-by-case proportionality attack on his sentence).
Of course, all we know for sure is what is will in the US Reports, so maybe I am reading too much into a royal pronoun. But it strikes me as a very interesting and quite important story for the future of noncapital Eighth Amendment jurisprudence if Justice Alito is largely in agreement with the substance of Chief Justice Roberts' approach to proportionality review. Specifically, it means that (assuming a Justice Kagan follows in the path of Justice Stevens) now there may be as many as 7 Justices prepared (and even eager?) to breathe significant new life into Eighth Amendment review of noncapital sentences.
Some recent related posts with Graham analysis:
- Graham crackers: reflecting on Eighth Amendment rules versus standard and subconstitutional echoes
- Doesn't the logic and language of Grahamput juve LWOP for "lesser" homicides on thin ice?
- Strong arguments for second-look sentencing reforms from SCOTUS concurrences
- Hail to the Chief and the fascinating future of Eighth Amendment jurisprudence
- Originalist Grahamcrackers: would the Eighth Amendment ratifiers really be indifferent about LWOP?
Originalist Graham crackers: would the Eighth Amendment ratifiers really be indifferent about LWOP?
Having now had a chance to read and reflect on Justice Thomas's dissent in the Graham Eighth Amendment case, I am back to using the tasty term Graham crackers to flag what I view to be the really deep and really hard (and thus really tasty) intellectual questions that Graham raises. Specifically, as flagged by the title of this post, I am wondering if all originalists agree with Justice Thomas's seeming conclusion that the LWOP sentence at issue in Graham is obviously constitutionally sound. There are two aspect of this question I wish here to unpack.
1. Might an originalist see extreme incarceration as a worrisome "method" of punishment?: A key move in Part II of Justice Thomas's dissent is to assert that Eighth Amendment proportionality analysis is an improper jurisprudential creation by the modern Supreme Court. According to Justice Thomas, it is "now well established that the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment — specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted." Dissent at 3-5 (emphasis in original; cites omitted). In this discussion, via a parenthetical to a legal history cite, Justice Thomas thereafter notes that "crimes in the late 18th-century colonies generally were punished either by fines, whipping, or public 'shaming,' or by death, as intermediate sentencing options such as incarceration were not common." Id.
Significantly, Justice Thomas does not take a moment to connect these historical dots before launching into a (relatively effective) attack on aspects of the majority's proportionality work. That is, though he notes that the so-called "intermediate sentencing option" of incarceration was uncommon at the time of the Constitution was written, Justice Thomas never explains or explores whether the Framers and/or ratifiers of the Eighth Amendment might have considered permanently locking a person in a cage for his entire life to be a "torturous method of punishment" that is akin to punishment "considered cruel and unusual at the time the Bill of Rights was adopted."
In modern times, there is a broad tendency to assume that death is obviously a more extreme punishment then LWOP. Whether this is true as a modern reality, I do not think it would be so obviously true for the Framers and/or ratifiers of the Eighth Amendment. After all, Patrick Henry famously cried "Give me liberty or give me death!" Moreover, there is little doubt that certain forms of extreme incarceration could readily become a "torturous method of punishment." For example, imagine if a legislature as a cost-cutting measure ordered that prisoners who committed the certain crimes should receive only one serving of bread and water per day or that certain offenders should be kept permanently in a minuscule cell without any light or ventilation or toilet facilities. I suspect some (many? most?) originalists would think this kind of use of incarceration as method of punishment would be akin to what the Framers sought to prevent via the Eighth Amendment. Is it too mcuh of a stretch, then, for some originalists to view use of LWOP, which tells an offender he will never again have even a chance to live outside a cage and will only be able to leave prison via a coffin, as a potentially "torturous method of punishment"?
2. Might an originalist see LWOP as a structural constitutional problem?: Thinking about Justice Thomas's originalist instincts against the backdrop of the second-look ideas in the Graham concurrences leads me to another (originalist?) point. I have been lately thinking about the Eighth Amendment in light of the Constitution's obvious affinity for separating government powers and structural checks and balances. Of particular note, the Framers through the Reprieves and Pardons Clause, granted the U.S. President what might be called broad criminal justice second-look power. Indeed, this Clause has been interpreted to mean that Congress cannot pass a law that in any way restricts the President's clemency authority.
If an originalist were now to view parole boards as the modern loci for historic clemency powers --- and that is a big IF --- such an originalist might have structural concerns with any legislative efforts to entirely eliminate a parole board's authority to give relief to certain offenders. Stretching these concepts may bring one perhaps problematically close to claiming that the Constitution creates a kind of right to parole in all cases, and this would seem to be a hard (originalist?) argument to make truly compelling. But I do think there is something to the idea that the Framers would be uniquely troubled by the way LWOP sentences concentrate permanent power over certain types of offenses or offenders; in turn, I think some originalists could find especially appealing at least Chief Justice Roberts' sense that appellate judges must sometimes use the Eighth Amendment as a kind of constitutional backstop for extreme imprisonment punishments.
Because I am not a true originalist, I may be crazy to even try to unpack my instincts that there is more to say about originalism and the Eighth Amendment than what gets said by Justices Scalia and Thomas in this setting and others. But, perhaps because some true originalists may inclined to read and respond to my musings here, I hope that what I have said in this post could start a dialogue about originalism and modern punishment practices.
Some recent related posts with Graham analysis:
- Graham crackers: reflecting on Eighth Amendment rules versus standard and subconstitutional echoes
- Doesn't the logic and language of Grahamput juve LWOP for "lesser" homicides on thin ice?
- Strong arguments for second-look sentencing reforms from SCOTUS concurrences
- Hail to the Chief and the fascinating future of Eighth Amendment jurisprudence
UPDATE: In the comments, Sara Mayeux points to this terrific post of hers from a few days ago at Prison Law Blog, where she makes these trenchant points (among others) that echo my musings in point 1 above:
Both Stevens and Thomas ... seem to assume that 18th century and 21st century beliefs about the hierarchy of punishments are basically the same, even if beliefs may change about where on that hierarchy punishment stops being “decent” and starts being “cruel and unusual” (and even if Stevens and Thomas disagree about whether that move matters for Eighth Amendment jurisprudence). That is, both justices seem to assume that, just like a 21st century person, an 18th century person would obviously have thought death was worse than LWOP....
Here’s the big problem: I suspect that late 18th century people would have had simply and utterly no way to conceive of LWOP, much less place it on a hierarchy with the death penalty. Some jurisdictions used prison terms as punishment by the late 18th century, but it wasn’t yet the default (not until about 1810 in Northern states and later in other regions), sentences weren’t nearly as long as they are today, there was no such thing as “parole,” prisons were very different sorts of institutions, etc., etc., etc. I actually wonder if a late 18th century person might not have thought LWOP crueler than a quick execution, or at any rate very bizarre (why not just end the child’s life if he is truly irredeemable, is what I expect an 18th century person might have thought), but I don’t study that period enough to be confident in that. I do know enough to be confident that to answer this question satisfactorily would take a lot more research into late 18th century beliefs about crime, punishment, the nature of life and death, etc., than just assuming that whatever we today think is a “harsher” punishment is also what a person in an entirely different time and place would think.
In another related originalist reference, a helpful reader reminded me that NYU's Center on the Administration of Criminal Law filed this amicus brief which sought to provide some originalist arguments in favor of Sullivan and Graham. The NYU amicus brief's principal histoircal point is that "the elimination of proportionality review in the noncapital context would be inconsistent with the Eighth Amendment's tect and original meaning."