Wednesday, October 15, 2014
"Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane"
The title of this post is the title of this notable new paper by Brandon Buskey and Daniel Korobkin now available via SSRN. Here is the abstract:
This Article proposes a framework establishing that the United States Supreme Court’s decision in Miller v. Alabama, which forbids states from automatically sentencing juveniles to life imprisonment without any meaningful opportunity for release, must apply retroactively to hundreds of juveniles whose convictions and life sentences were already final at the time of the decision. Such a framework is timely and critical. Although the lower state and federal courts are almost evenly divided on the question, the Supreme Court has yet to settle the divide.
The Article reviews how, absent guidance from the Supreme Court, a host of states, led recently by Michigan, have invoked the Miller majority’s statement that it was merely requiring states to follow a "certain process" before sentencing a juvenile to life imprisonment without parole. By this reasoning, Miller is not retroactive under the Supreme Court’s federal retroactivity doctrine established by Teague v. Lane. The Court has always applied new substantive rules retroactively under Teague, while it has never done so for a new procedural rule.
The Article rejects this "process" language as a basis for resolving whether Miller is retroactivity. It concludes that Miller in fact has little to do with process and is instead primarily concerned with sentencing outcomes for youth. In striking down mandatory life without parole for juveniles, Miller adapted the individualized sentencing requirement from Woodson v. North Carolina, which invalidated the mandatory death penalty. This individualized sentencing requirement obligates states to always offer juveniles a sentencing outcome carrying the possibility of release and to consider the essential, mitigating fact of youth before imposing an irrevocable life sentence. These obligations are inherently substantive. By contrast, Miller’s alleged procedural component is undefined and collateral to its substantive altering of juvenile sentencing. Miller therefore announces a substantive rule that must apply retroactively.
Friday, October 10, 2014
Wyoming Supreme Court joins group deciding SCOTUS Miller ruling is retroactive
As reported in this local article, headlined "Casper man convicted of murder as a teenager now has possibility of parole," the Wyoming Supreme Court had a big ruling yesterday on juve life sentences. In Wyoming v. Mares, 2014 WY 126 (Wyo. Oct. 9, 2014) (available here), the Court held that Miller v. Alabama announced a substantive rule that is to be applied retroactively under Teague and also that a Wyoming statute enacted last year making juves parole eligible should be applied retroactively. Here is how the unanimous opinion in Mares gets started:
In 1995, Edwin Mares was convicted of felony murder as a juvenile and sentenced to life in prison, which sentence was by operation of law the equivalent of a sentence of life imprisonment without the possibility of parole. In 2013, Mr. Mares filed a motion, pursuant to Rule 35 of the Wyoming Rules of Criminal Procedure, to correct an illegal sentence. Through that motion, Mr. Mares contended that his sentence of life without the possibility of parole was unconstitutional in light of the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). This Court accepted certification of two questions from the district court. The first question concerns the test to be used in determining the retroactivity of new constitutional rules when a judgment is challenged on collateral review. The second question is whether Miller applies retroactively under our chosen test.
We conclude that as a result of amendments to Wyoming’s parole statutes in 2013, Mr. Mares’ life sentence was changed from one of life imprisonment without the possibility of parole to one of life with the possibility of parole in twenty-five years. This change occurred by operation of the amended law, and the sentence Mr. Mares challenged in his Rule 35 motion therefore no longer exists. We are aware, however, that other collateral challenges to juvenile offender sentences are pending throughout our district courts, and we therefore, in the interests of judicial economy and to avoid conflicting rulings, choose to answer the certified questions. In response to the first certified question, we hold that the proper rule for determining whether a new constitutional rule applies retroactively to cases on collateral review is the test announced by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In response to the second question, we conclude that under a Teague analysis, the rule announced in Miller applies retroactively to cases on collateral review.
Monday, October 06, 2014
SCOTUS keeps rejecting important follow-up Graham and Miller issues
The Supreme Court this morning issued this lengthy order list that has 60+ pages listing case after case for which the Justices have denied certiorari review. Not suprisingly, folks are surprised to discover that all the same-sex marriage cases brought to the court over the summer are on the cert denied list (SCOTUSblog discussion here, AP discussion here).
Sentencing fans will also be interested to learn about another group of notable state cases on the cert denied list this morning. A helpful reader provided this account: "For what it’s worth, the US Supreme Court declined to hear at least three virtual LWOP cases (Goins v. Lazaroff, Barnette v. Ohio, and Bunch v. Ohio). They also declined to hear at least two cases on the retroactivity of Miller, including one that was an appeal by a state (Evans v. Ohio and Nebraska v. Mantich)."
I have long believed it will only be a matter of time before the Justices take up at least a few important follow-up Graham and Miller Eighth Amendment issues. These cert denials suggest that the Justices are content to let the issues continue to be resolved only by lower courts for the foreseeable future.
Tuesday, August 26, 2014
Notable federal case impacted by SCOTUS Miller ruling nearly two decades after initial sentencing
This local story out of Kansas City, headlined "Judge orders new sentencing hearing for defendant in deaths of six KC firefighters," reports on a notable new legal development in an old case as a result of the Supreme Court's Eighth Amendment ruling in Miller v. Alabama. Here are excerpts (with my emphasis added for reasons explained below):
A man serving a life sentence for his role in the 1988 explosion deaths of six Kansas City firefighters will get a new sentencing hearing, a federal judge has ruled.
U.S. District Judge Fernando Gaitan signed orders Monday setting aside the life sentence given to Bryan E. Sheppard in 1997. Gaitan ordered probation officers to prepare a new sentencing report on Sheppard and told prosecutors and Sheppard’s lawyers to write sentencing memos to be submitted to him by Sept. 26. After that, Gaitan will review the paperwork, confer with attorneys and set a date for Sheppard to be re-sentenced, according to federal court records.
Sheppard, who was 17 at the time of the explosion, asked for a new sentencing hearing because the U.S. Supreme Court ruled in 2012 that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”
In February, prosecutors agreed that Sheppard was covered by the Supreme Court ruling and deserved a chance to make his case for a reduced sentence before a federal judge.
Firefighters Thomas Fry, Gerald Halloran, Luther Hurd, James Kilventon Jr., Robert D. McKarnin and Michael Oldham died before dawn Nov. 29, 1988, while fighting a fire in a construction trailer parked near the site of a U.S. 71 widening project. The trailer contained 25,000 pounds of ammonium nitrate mixed with fuel oil. It erupted in a massive explosion that ignited a second explosives trailer. The two blasts were felt for miles.
A federal jury convicted five defendants nearly nine years later. All were sentenced to life in prison.
The passage I have highlighted is noteworthy because it reveals that federal prosecutors in this case (and I am pretty sure in others) agree that the Supreme Court's Miller ruling should be applied retroactively. As regular readers know, the issue of Miller retroactivity has split state courts and it seems only a matter of time before the SCOTUS resolves the split.
Tuesday, August 05, 2014
"The Miller Revolution"
The title of this post is the title of this notable new article by Cara Drinan now available via SSRN. Here is the abstract:
In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits mandatory life without parole sentences for juveniles — even those convicted of homicide. In this Article, I argue that the Miller decision was, indeed, revolutionary and that, if lower courts and legislators heed the moral leadership of the Miller Court, they could set in motion a return to the juvenile justice model this country began with more than a century ago.
This article proceeds in three parts. Part I traces the development of mandatory juvenile sentences in this country and identifies two key forces driving that development: the practice of transferring juvenile cases to adult court and the emergence of determinate sentencing schemes. Part II is the heart of the article. It examines the Miller decision, as well as its immediate predecessor cases, at a granular level. Having done so, Part II surveys the numerous calls for an expansive reading of Miller that academics and advocates have made to date. Part II then shifts to argue that, indeed, Miller should be read expansively, but that some corollaries of Miller are more readily defensible than others. In particular, I argue that Miller lays the foundation for: 1) the elimination of mandatory minimums as they apply to children and 2) the creation of procedural safeguards for children facing life without parole comparable to those in place for adults facing the death penalty. Part III addresses the likely objections to my two specific proposals and maintains that, despite the concerns of the dissenting Justices in Miller, there are several limiting principles even to an expansive reading of Miller. Finally, by way of conclusion, I note that already there are signs of progressive juvenile justice reform at the state level consistent with the reading of Miller I propose herein and that, in some ways, the Miller revolution is already underway.
Monday, August 04, 2014
Check your local PBS listings for "15 to Life: Kenneth's Story"
Premiering this week on PBS stations is this new documentary titled "15 to Life: Kenneth's Story." The documentary discusses life without parole sentences for juvenile offenders with a focus on a Florida defendant, Kenneth Young, who at age 15 received four consecutive life sentences for a series of armed robberies. Here is part of the description of the film from this PBS website:
In June 2000, 14-year-old Kenneth Young was convinced by a 24-year-old neighborhood crack dealer — Kenneth's mother's supplier — to join him on a month-long spree of four armed robberies. The older man planned the Tampa, Fla. heists and brandished the pistol— and, on one occasion, he was talked out of raping one of the victims by his young partner. Fortunately, no one was physically injured during the crimes, although the trauma that resulted was immeasurable.
When they were caught, Kenneth didn't deny his part. It was his first serious scrape with the law. But at 15, he was tried under Florida law as an adult. Astoundingly, he received four consecutive life sentences — guaranteeing that he would die in prison. 15 to Life: Kenneth's Story follows the young African-American man’s battle for release, after more than 10 years of incarceration, much of it spent in solitary confinement. The film is also a disturbing portrait of an extraordinary fact: The United States is the only country in the world that condemns juveniles to life without parole.
Kenneth’s sentence was not a rarity. As 15 to Life shows, there are more than 2,500 juveniles serving life sentences in the United States for non-lethal crimes, as well as for murder. In the 1990s, many states reacted to a rise in violent youth crimes by amending their laws to allow more juveniles to be tried as adults. Then, in 2010, the U.S. Supreme Court ruled in Graham v. Florida that life sentences for juveniles convicted of crimes other than murder were unconstitutional. That made 77 Florida inmates, including Kenneth, eligible for early release. But how would the Florida courts, historically in favor of juvenile life sentences, apply the Supreme Court decision to a decade-old case?...
At the core of the story, of course, stands Kenneth, now 26, who is candid about his crimes. He says he has followed a path of self-improvement and is remorseful for what he did, even as he remains flabbergasted about his punishment. (Oddly enough, in a separate trial, Jacques Bethea, the older man who organized the robberies and who carried the gun, received a single life sentence.)
At his hearing for a reduced sentence, Kenneth tells the court, "I have lived with regret every day ... I have been incarcerated for 11 years and I have taken advantage of every opportunity available for me in prison to better myself ... I am no longer the same person I used to be. First Corinthians, Chapter 13, Verse 11 says: 'When I was a child I thought as a child. When I became a man I put away all childish things.' I want to turn around and apologize to my victim for what I did."
Kenneth's plight elicits mixed reactions. While some of his victims are inclined to see him let go, others, along with the prosecutor, defend the original punishment. Kenneth's contention that the older man coerced his cooperation by threatening his mother is dismissed, because he didn't speak up as a 15-year-old at his original trial. And arguments that Kenneth's new sentence should take into account his rehabilitation may not convince this Florida court.
UPDATE: A helpful reader noted that through September 3, folks can view the program online at the PBS website here.
August 4, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Film, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack
Thursday, July 10, 2014
Split Michigan Supreme Court rejects retroactivity of Miller for hundreds of juve lifers
Though I am on the road and behind on a number of blogging fronts, a number of helpful readers made sure I did not miss an important state Miller application from Michigan. This local article, headlined "Michigan Supreme Court denies parole hearings to juvenile lifers," provides these basics:
The Michigan Supreme Court ruled 4-3 Tuesday that juveniles given automatic life-without-parole sentences aren’t eligible for parole — even though the U.S. Supreme Court decided in 2012 that such sentences were unconstitutional. The ruling involved three of what some estimates say are at least 350 Michigan “juvenile lifers” — the highest number in any state — who are seeking parole hearings....
A four-justice majority, in a decision written by Justice Stephen Markman, said the 2012 U.S. Supreme Court ruling does not apply retroactively to these Michigan inmates, under either federal or state court precedents.
Attorney General Bill Schuette, who has argued that parole for any of the juvenile lifers would be disrespectful to murder victims and heart-wrenching to their families, hailed the decision. “Today the Michigan Supreme Court upheld the rights of crime victims and their families,” he said....
Kary Moss, executive director of the American Civil Liberties Union of Michigan, called the decision “heartbreaking.”
“Here we have a practice that the U.S. Supreme Court has said violates the Eighth Amendment as cruel and unusual punishment ... yet the Michigan Supreme Court is unwilling ever to give the 350 juvenile lifers currently in Michigan’s prisons a parole hearing in their lifetime,” Moss said. She said the ACLU is reviewing its options for a further federal legal challenge. “We are not letting this issue drop,” Moss said....
Neither the Eighth Amendment nor the state Constitution “categorically bars the imposition of a sentence of life without parole on a juvenile homicide offender,” the court’s majority said.
Justices Mary Beth Kelly, Bridget Mary McCormack and Michael Cavanagh dissented and said the court should have ruled in favor of parole hearings. They noted that state lawmakers this year passed a juvenile sentencing law that “significantly altered Michigan’s sentencing scheme for juvenile offenders convicted of crimes that had previously carried a sentence of life without parole.”
Under the new law, judges can impose 40- to 60-year sentences in cases where prosecutors don’t ask for life-without-parole for murder and other heinous crimes....
The Michigan Catholic Conference said the decision is disappointing. “We call upon the Legislature to pass a measure that will allow for juveniles sentenced to a life term before the (2012 U.S. Supreme Court) decision to have the opportunity for a parole hearing at some point during their sentence,” said a statement issued by spokesman David Maluchnik....
State Rep. Joe Haveman called the Michigan Supreme Court’s ruling disappointing and said individuals incarcerated as juveniles “deserve a hearing to re-evaluate their case.”
“It is baffling how this can be considered equal treatment under the law,”said the Holland Republican. “I said before, and I still believe, that the Supreme Court of the United States needs to revisit this issue and clarify whether the intent was for their original ruling to apply retroactively. .... If a juvenile sentence without the opportunity for parole is cruel and unusual punishment going forward, it is also cruel and unusual punishment for those who entered prison as children, who don’t have even the faintest glimmer of hope that even if they completely change who they are, they will ever walk free. It is further cruel and unusual punishment for the judge who didn’t want to hand down a mandatory life sentence, and wanted to consider mitigating factors, but wasn’t allowed to, and now must live with the guilt of sending a child to prison for their entire adult life.”
The fully lengthy Michigan Supreme Court ruling in this matter runs 120+ pages and covers more ground than just Miller retroactivity. The full ruling is available at this link, and I hope to have a chance to blog about the substance of both the lengthy majority and dissenting opinions in the days and weeks ahead.
For now, I will simply assert that the Supreme Court no long has any good reason or justification for continuing to refuse to take up the issue of Miller retroactivity that has split state courts nationwide. Now that just about every state with a large number of mandatory juve LWOPers has ruled on this issue, this matter has plainly "percolated" more than sufficiently and the resulting jurisprudential split has profound consequences for many hundreds of juve lifers in many states.
A few (of many) prior posts on Miller retroactivity:
- Effective press review of some state responses to SCOTUS Miller ruling
- Terrific Stateline review of states' varied applications of and reactions to Miller
- A year after Miller confirmed kids are different, how may kids have different sentences?
- Another effective review of the messy Miller aftermath:
- In lengthy split opinion, Minnesota Supreme Court concludes Miller should not apply retroactively
- Split Pennsylvania Supreme Court rules that Miller does not apply retroactively
- Illinois Supreme Court deems Miller ruling substantive and thus retroactive
- Top Texas criminal court, in split ruling, decides Miller is to be applied retroactively
- When and how will SCOTUS take up Miller retroactivity issues?
- Noting SCOTUS continues to dodge (inevitable?) ruling on Miller retroactivity
Thursday, July 03, 2014
Hawaii legislatively eliminates all juve LWOP sentences for all crimes
As reported in this AP piece, headlined "Hawaii ends juvenile life sentences without parole," a new piece of legislation means and and all "life sentences without parole for minors are now abolished in Hawaii." Here are the basics:
Gov. Neil Abercrombie signed a bill Wednesday recognizing that children convicted of first-degree murder should be treated differently than murderous adults.
Advocates say children are impressionable and sometimes can't get out of horrific, crime-ridden environments. Honolulu prosecutors argued the measure isn't fair to people who are born weeks apart from slightly younger perpetrators of the same crime.
July 3, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Wednesday, June 25, 2014
New Sentencing Project analysis details states' sluggish response to Miller
The Sentencing Project has released this notable new briefing paper reviewing state responses to the Supreme Court's Miller ruling that the Eighth Amendment prohibits mandatory juve LWOP sentencing schemes. The title and introduction to the paper highlights its themes:
Slow to Act: State Responses to 2012 Supreme court mandate on life without parole
Two years have passed since the Supreme Court, on June 25, 2012, ruled that juveniles cannot be automatically sentenced to life without a chance at parole, striking down laws in 28 states. A majority of the states have not yet passed any statutory reform. Of the states that have done so, many require decades-long minimum sentences and few have applied the changes retroactively.
Here are a few data snippets from the body of the paper:
Thirteen of the 28 states that previously required LWOP for juveniles convicted of homicide offenses have since passed laws to address their sentencing structures, while 15 have not....
Statutes passed since Miller set the minimum sentence for juveniles convicted of homicide offenses between 25 and 40 years.... In Nebraska and Texas, the minimum sentence for juveniles convicted of homicide is 40 years. Pennsylvania, Louisiana and Florida have set the minimum sentence at 35 years. Arkansas, Delaware, Michigan, North Carolina, Washington, and Wyoming will sentence juveniles to minimum terms ranging from 25 of 30 years....
Miller left unstated whether the estimated 2,000 people already mandatorily sentenced to life without parole for crimes committed as juveniles could be resentenced. Most of these juveniles are denied the opportunity to apply for a new sentence. Of the 13 states that have passed legislation, only four -- Delaware, North Carolina, Washington, and Wyoming – allow for resentencing among the current JLWOP population....
State Supreme Courts in Illinois, Iowa, Massachusetts, Mississippi, Nebraska, and Texas have ruled that Miller applies retroactively; some people will attain a new sentencing hearing. Supreme Courts in Louisiana, Minnesota, and Pennsylvania have ruled that Miller does not apply retroactively. Cases pushing the question of retroactivity remain before Supreme Courts in Alabama, Colorado, Florida, and North Carolina; these and other states have not yet issued rulings.
Friday, June 20, 2014
"A Suggested Minor Refinement of Miller v. Alabama"
The title of this post is the title of this new Comment by Devina Douglas now available via SSRN. Here is part of the abstract:
While some heralded the recent United States Supreme Court’s Miller v. Alabama decision — forbidding mandatory life without parole (LWOP) sentences for juveniles — as a step in the right direction for protecting the interests of juveniles within the adult criminal justice system, the decision is also a step backwards for the ability states to sentence their criminals as they sees fit.... This Comment argues the Court spoke too broadly applying its rule to all minors.
This essay will first summarize the Supreme Court’s previous sentencing precedent, the cases that paved the way for the Miller decision — establishing that “children are different,” — and then the Miller decision. Next, it will highlight the troubles lower courts have faced in trying to implement the decision, the flaws in, and alternative interpretations of, the science relied upon, and then turn to the question of whether juveniles over the age of sixteen have reached sufficient maturity as to allow the system to hold them as accountable as adults for homicide crimes. In response to the likelihood that those sixteen and over are sufficiently mature, this Comment will propose a way to preserve deference to the various state legislatures’ sentencing decisions while addressing increasing concern that juveniles should be treated differently. The Miller pre-sentencing evaluation factors should only apply categorically to those under sixteen, and those sixteen and seventeen in cases where the juvenile offender is quite young or possesses what the Court calls twice-diminished culpability: where the system convicted the offender under an aiding and abetting or accomplice theory, or felony murder.
June 20, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
Wednesday, June 11, 2014
Fascinating account of post-Miller realities for juve killers with new chance for eventual freedom
At Slate, Beth Schwartzapfel has this terrific new essay about what might be called "life after Miller" for juvenile murderers who now have a possible chance for release from a life prison sentence as a result of the Supreme Court's modern Eighth Amendment jurisprudence. The piece merits a full read, and it carries the headline, "'Where Do You Think That Rage Came From?' To get parole, people sentenced to life as juveniles must reckon with their pasts." Here is how the piece gets started:
Last week, the Massachusetts Parole Board announced that Frederick Christian might go home. He would be one of the first people to be released based on the Supreme Court’s 2012 ruling, in Miller v. Alabama, finding mandatory life sentences for juveniles unconstitutional.
Christian was 17 when he was involved in a drug robbery that ended with the shooting deaths of two men. Now he is 37. In prison, he got his GED, enrolled in violence prevention programs, and converted to Islam. The five-times-a-day prayers, he said, “taught me discipline.” He has maintained a steady job cleaning the prison, gone regularly to Narcotics Anonymous and Alcoholics Anonymous meetings, and helped to grow vegetables for the homeless.
Across the country, some 2,500 people are serving life without parole sentences for crimes they committed as juveniles. Some have already served 30 years or more. Yet it’s likely few of them will get out. Before he can be paroled, Christian still has to complete a behavior modification program and live for a year in a minimum security prison. And his hearing is one of only a handful like it around the country since Miller. The Supreme Court said that the young people’s capacity to mature and change entitle them to a second chance. But lower courts, legislatures, and parole boards have more incentive to maintain the status quo than to show mercy — to follow the letter of Miller but not its spirit.
That’s because letting more prisoners like Christian go free requires a return to an idea that the country largely abandoned a generation ago: that criminals can be rehabilitated, and there is a limit to just retribution. As costs rise for the growing prison population, legislators from every corner of the political map are now calling for a softening of sentencing laws. But legislation about the future is one thing. Giving a second chance to people who have already been sentenced for doing terrible things is another.
Tuesday, June 10, 2014
Noting SCOTUS continues to dodge (inevitable?) ruling on Miller retroactivity
This Philadelphia Inquirer article, headlined "U.S. Supreme Court won't hear case of Pa. juveniles serving life," reports on the only significant sentencing news that has come from the Supreme Court so far this week. Here are the details (with original paragraphs re-ordered a bit for exposition):
Pennsylvania has more inmates convicted as juveniles for murder and sentenced to life without parole than any other place in the world. Pennsylvania has more than 500 people convicted as juveniles and given mandatory life sentences — 300 of them from Philadelphia, advocates say. The United States is the only country that doles out mandatory life sentences to juveniles. And Pennsylvania has 25 percent of such offenders, advocates say - more than any other state or nation....
Monday [the] U.S. Supreme Court ... declined to hear an appeal by juvenile-justice advocates to revisit the sentences of those prisoners. "We are obviously disappointed," said Marsha Levick, deputy director and chief counsel of the Juvenile Law Center, a national, nonprofit, public-interest law firm for children, based in Center City. The center had brought the appeal to the high court....
In June 2012, the Supreme Court ruled that children under 18 convicted of homicide could no longer receive mandatory sentences of life without parole. Such automatic sentences, the court found, are unconstitutional, violating the Eighth Amendment's prohibition against cruel and unusual punishment. Life sentences for juveniles committing murder are allowable; they just cannot be mandatory....
The ruling caused confusion, however. While it said that juveniles committing murder could not receive mandatory sentences of life without parole in 2012 and beyond, it did not address inmates already serving such sentences.
In October 2013, the Pennsylvania Supreme Court stepped into the void. It found that the U.S. Supreme Court's ruling could not be applied retroactively. Anyone given a mandatory sentence of life without parole who had exhausted all appeals by 2012 would not fall under the federal ruling, the state court said.
Advocates were troubled by the notion that the year a person was sentenced would determine whether he or she would face life without parole. "The vagaries of timing should not determine if a juvenile should spend the rest of his or her life in prison with no possibility of parole," according to a Juvenile Law Center statement last year.
The center, along with the Defender Association of Philadelphia, appealed the Pennsylvania decision to the U.S. Supreme Court. Monday's nondecision was the result. "This is a surprise, and not a very good one," said Bradley Bridge, an assistant defender with the association. "It's puzzling." Bridge said Pennsylvania had become the third state to say the U.S. Supreme Court ruling is not retroactive. Six states have gone the other way.
Such a split cannot stand for long, said Emily Keller of the Law Center. Bridge agreed, saying it was "intolerable for a citizen of Pennsylvania to be denied relief, while a citizen of Texas [one of the six states that allows the ruling to be retroactive] gets relief. That is not a just result." At some point, Keller and Bridge said, the U.S. Supreme Court will have to make a ruling that will stand for every state.
Hugh Burns, chief of the appeals unit of the Philadelphia District Attorney's Office, agreed that "it's not fair" that "those who take a life after a certain date get a break others do not." But, he added, "law is all about line drawing."
More important, Burns said, he takes issue with the U.S. Supreme Court's saying that a juvenile's young brain can't determine right from wrong. "The idea that a person's brain isn't developed to understand that murdering someone is wrong and subject to serious penalty is to me very odd," he said.
As the title of this post is meant to suggest, I think it is probably only a matter of time before the Supreme Court takes up the issue of whether its 2012 Miller ruling is to be applied retroactively. But I am not too surprised that the Justices have decided to continue to dodge this issue for the time being, especially in the context of a direct appeal from a state Supreme Court ruling as in Pennsylvania. I expect the Justices will eventually take up this issue via a traditional habeas appeal from a federal circuit court, but only if and when a significant circuit split develops on this issue in the federal courts.
Monday, June 09, 2014
Two years after Miller, Iowa still muddling through juve sentencing
As highlighted by this local article, headlined "Iowa juvenile sentencing rules in legal limbo," the Hawkeye state is still struggling with how to revamp its juvenile sentencing rules to comply with modern Eighth Amendment restrictions. Here are the details:
Iowa prosecutors want clarification on the state’s sentencing laws for juveniles convicted of murder. The U.S. Supreme Court in 2012 struck down the use of mandatory life terms in prison for defendants who committed murder when they were under 18. The court ruled that judges have to take a person's age and the severity of crime into consideration.
Iowa legislators have been working since then to determine whether to change state sentencing rules. Rep. Chip Baltimore, R-Boone, chairman of the House Judiciary Committee, said lawmakers are struggling to decide the best approach given the “hodgepodge of judicial rulings” that have left in question what is the minimum number of years a juvenile who commits first-degree murder should be required to serve in prison before being eligible for parole.
“It’s a situation that we’re trying to deal with the amorphous concept of cruel and unusual punishment not only as it’s interpreted through the federal constitution but the Iowa Supreme Court has decided that the cruel and unusual punishment provision in the Iowa Constitution means something different that what it means at the federal level,” he said.
Iowa Assistant Attorney General Kevin Cmelik said prosecutors want clear guidelines. “There is no clear answer as to what is required by the law right now because we don’t have a statute that’s applicable anymore," he said.
Prosecutors like Black Hawk County Attorney Tom Ferguson tried to get lawmakers to set a mandatory minimum of at least 35 years for juveniles convicted of first-degree murder, but it failed to gain traction last legislative session....
Prosecutors say judges should have discretion to re-impose a life sentence with or without parole but they worry that lesser penalties potentially could create a situation where someone sentenced for second-degree murder could be facing more prison time that an offender found guilty of a Class A crime.
Forty-eight youth in Iowa who have been sentenced to life in prison without the possibility of parole since 1964, state data shows.
Friday, May 09, 2014
Connecticut debate spotlights how fights over death penalty can impede other needed reforms
Long time readers know that one of my enduring frustrations with debates over the fate of death penalty concerns how this debate can sometimes get in the way of other important criminal justice work. A notable new example of this dynamic was on display this week in Connecticut, as evidenced by this local article headlined "Juvenile Sentencing Bill Fails Second Year In A Row." Here are the basic details:
A barrage of amendments, a planned Republican filibuster over the merits of reviving the death penalty, and recent charges against a Milford teen in the fatal stabbing of a classmate scuttled a criminal justice bill on the last day of the 2014 session.
The bill would have offered inmates serving long prison sentences for crimes they committed at a young age a chance at freedom. The measure was crafted in response to two U.S. Supreme Court rulings, in 2010 and 2012. The court held that life sentences for offenders younger than 18 are unconstitutional and that juvenile offenders must be given a "meaningful opportunity" to seek release.
The legislation cleared the House of Representatives on a broad and bipartisan vote in early April. But for the second year in a row, it failed to come up in the Senate by midnight Wednesday, when the General Assembly adjourned. Republicans signaled to Democratic leaders that they were going to block the bill by filing 22 amendments, including one to reinstate the death penalty in Connecticut for convicted terrorists and another to eliminate a program that aims to rehabilitate prisoners by offering them credit toward early release....
Senate President Pro Tempore Donald Williams said there were enough votes to pass the measure. But, facing Republican opposition and wanting to avoid votes on controversial issues like the death penalty, Williams opted not to bring the bill up....
The proposed bill was based on recommendations by the non-partisan Connecticut Sentencing Commission. It would have permitted prisoners who committed crimes as teenagers and are serving prison terms of 20 years or less to be eligible for a sentence review after they had served 60 percent of their time. Inmates serving 50 years or more could receive that "second look" 30 years into their sentences. The proposal would not have guaranteed freedom for the inmates but would have given them the opportunity to argue their case at a special parole hearing with highly restrictive criteria.
"We're disappointed with what happened in the Senate," said David M. Borden, a retired state Supreme Court justice who chairs the Sentencing Commission, the panel charged with reviewing criminal justice policy and proposing legislation. The commission's members include prosecutors, defense attorneys, police, corrections officials and the state victims advocate. "When you look at the bill dispassionately and look at the facts dispassionately and clear away all the underbrush of things that don't have anything to do with it, it's a very good bill," Borden said Thursday. "To the extent politics got in the way, well, we live in the real world ... we'll take the consequences."
The commission will meet in June and determine whether it will push for the measure again in 2015. "I don't think there's going to be a strong sentiment for giving up this fight," Borden said. He said 70 inmates in Connecticut already have filed cases seeking revisions in their sentences, based on the two Supreme Court rulings. "This bill would have set down reasonable parameters for how these cases should be handled," Borden said.
In the absence of legislation setting a legal framework, the decision of how to comply with the U.S. Supreme Court rulings likely will be left to state courts, Gov. Dannel P. Malloy said Thursday. "Don't be surprised if it goes to court," Malloy said. The courts "will do what the [legislature] should have done and perhaps do more."
May 9, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, May 06, 2014
California Supreme Court decides Miller demands altering presumption for juve LWOP
As reported in this Los Angeles Times article, headlined "Ruling could reduce life-without-parole terms for juvenile offenders," the California Supreme Court issued a significant post-Miller ruling about juve murder sentencing in the state. Here are the basics:
In a decision likely to reduce life-without-parole sentences for teenage offenders, the California Supreme Court ruled Monday that judges are free to hand down 25-year-to-life terms for older juveniles convicted of serious crimes and must consider the defendants' youth before sentencing.
Before the unanimous ruling, California law had been interpreted as requiring judges to lean toward life without parole for 16-year-olds and 17-year-olds convicted of murder with special circumstances. The decision overturned decades of lower-court rulings and gave two men who were 17 at the time they killed the opportunity to have their sentences reconsidered by trial judges.
The court said the sentences should be reviewed because they were handed down when state law was being misconstrued and before the U.S. Supreme Court decided in 2012 that judges must consider a juvenile's immaturity and capacity for change. The ruling, written by Justice Goodwin Liu, stemmed from appeals in two cases.
In one, Andrew Lawrence Moffett robbed a store and his accomplice killed a police officer in Pittsburg, Calif. Moffett was convicted of murder, robbery and driving a stolen vehicle. Because the victim was a police officer and Moffett used a gun during the crime, he was subject to life without parole. In the other case, Luis Angel Gutierrez killed his uncle's wife while living with the family in Simi Valley. He received life without parole because the jury determined he had murdered Josefina Gutierrez while also raping or attempting to rape her.
"Because Moffett and Gutierrez have been convicted of special circumstance murder, each will receive a life sentence," wrote Justice Goodwin Liu for the court. "The question is whether each can be deemed, at the time of sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to reenter society."
Certain juvenile offenders became subject to life without parole when voters passed Proposition 115, the 1990 "Crime Victims Justice Reform Act." State appeals' courts ruled that the law required judges to favor imposing life without parole over a sentence that allowed for release after 25 years. For two decades, those rulings stood.
But Monday's decision said the lower courts had erred in the interpretation of the law. "Proposition 115 was intended to toughen penalties for juveniles convicted of first-degree murder by making them eligible for life without parole upon a finding of one or more special circumstances," Liu wrote. But he said neither the wording of the ballot measure nor any of the official analyses resolved whether "the initiative was intended to make life without parole the presumptive sentence." The court concluded it was not.
Four justices joined a separate opinion to stress that California judges may still sentence older juveniles to life without parole, despite the 2012 Supreme Court ruling. Justice Carol A. Corrigan, who wrote the concurrence, said the high court's ruling came under a law that was different from California's and involved mandatory lifetime sentences for much younger children.
Attorneys in the case said it was uncertain whether Monday's decision would apply retroactively to cases in which appeals have already been completed. Courts across the country have been divided over whether the 2012 U.S. Supreme Court ruling on juvenile sentencing applied retroactively, the lawyers said.
The full ruling in California v. Gutierrez, No. S206365 (Cal. May 5, 2014), is available at this link.
May 6, 2014 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, April 15, 2014
NY Times editorial laments "Echoes of the Superpredator"
While traveling, I missed this recent New York Times editorial discussing the persistence of tough juve sentencing laws after superpredator fears have receded. Here are excerpts:
News reports — usually featuring images of glowering black teenagers — warned of the coming wave of violence that would flood the country. Respected criminologists bought into and amplified the hysteria. Most destructively, almost every state passed laws making it easier to prosecute juveniles as adults, by increasing the number of crimes or reducing the age that triggered adult prosecution — and in some cases eliminating the minimum age altogether....
Two decades later, it’s easy to look back in judgment, but it would be a mistake to think the nation has fully moved beyond that mind-set. Many states continue to punish juveniles as harshly as they can, even though the Supreme Court has held in a series of landmark rulings since 2005 that young people are “constitutionally different” from adults....
Some states have taken the court’s rulings, and its reasoning, to heart. Since the ruling in Miller, five states have abolished juvenile life without parole in all cases. In March, West Virginia lawmakers passed a bipartisan bill that provides parole review for any juvenile who serves at least 15 years in adult prisons. Similar legislation is pending in Connecticut and Hawaii.
But other states keep fighting to prevent their juvenile offenders from ever having the chance to see the light of day. Michigan now gives judges the “choice” of imposing a minimum sentence of 25 to 60 years instead of life without parole. Courts in other states have refused to apply the Supreme Court’s ruling retroactively, stranding many of the more than 2,000 inmates who were sentenced before the Miller decision.
The issue is not, as supporters of mandatory sentencing would have it, about going easy on criminals. No one is ordering judges to release inmates who are not rehabilitated, or who pose a threat to society. Rather, it is about giving legal meaning to the neurological, psychological and emotional vulnerabilities of young people. Those who make mistakes — even terrible ones — should not be sentenced to die in prison.
The myth of the superpredator helped spawn a generation of misguided laws that treated young people as adults, despite evidence that doing so actually increases recidivism. Most of these laws remain in effect. The Supreme Court has rightly begun to dismantle their constitutional foundations, but some states are determined to act as if it were always 1995.
Recent related post:
Saturday, April 12, 2014
"Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy"
The title of this post is the title of this symposium foreword authored by Paul Litton and now available via SSRN. Here is the abstract:
This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper.
First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences. The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles. This essay briefly explores whether there is a principled reason for the Court to invoke Woodson but not Roper from its capital jurisprudence.
Second, the Court does cite Roper for its “foundational principle,” which is, according to the Court, “that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” However, this principle cannot be the bedrock of Roper. Since Lockett, state capital sentencing schemes have not proceeded as though juvenile offenders were not children. Juvenile capital defendants could introduce their youth and accompanying characteristics in mitigation. Roper, therefore, is based on a much stronger principle, one that requires categorical removal of juveniles from the universe of death-eligible defendants and, thus, should imply the same for penalties equivalent to death.
This Foreword also provides a guide to the symposium’s wonderful contributions by Nancy Gertner, Will Berry, Frank Bowman, Josh Gupta-Kagan, Michael O’Hear, Clark Peters, Mary Price, and Mae Quinn. In doing so, it highlights a fascinating theme running through many authors’ answer to whether Miller represents a “bombshell or babystep”: Miller’s implications for the Court’s methodology for conducting proportionality analyses and, specifically, for the role of “objective indicia” of public attitudes in such analyses.
April 12, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
Wednesday, April 09, 2014
Retro Report provides reminder of "When Youth Violence Spurred ‘Superpredator’ Fear."
The New York Times together with Retro Report puts together articles and videos looking back a media coverage and the aftermath of high-profile stories of years gone by. The latest production is available here under the headline "hen Youth Violence Spurred ‘Superpredator’ Fear." Here are excerpts from the article that goes along with the great 10-minute video on the topic:
Social scientists like James A. Fox, a criminologist, warned of “a blood bath of violence” that could soon wash over the land. That fear, verging on panic, is the subject of this week’s segment of Retro Report, a series of video documentaries that examine major news stories from years ago and explore what has happened since.
What happened with the superpredator jeremiads is that they proved to be nonsense. They were based on a notion that there would be hordes upon hordes of depraved teenagers resorting to unspeakable brutality, not tethered by conscience. No one in the mid-1990s promoted this theory with greater zeal, or with broader acceptance, than John J. DiIulio Jr., then a political scientist at Princeton. Chaos was upon us, Mr. DiIulio proclaimed back then in scholarly articles and television interviews. The demographics, he said, were inexorable. Politicians from both major parties, though more so on the right, picked up the cry. Many news organizations pounced on these sensational predictions and ran with them like a punt returner finding daylight.
But a funny thing happened on the way to the apocalypse. Instead of exploding, violence by children sharply declined. Murders committed by those ages 10 to 17 fell by roughly two-thirds from 1994 to 2011, according to statistics kept by the Justice Department’s Office of Juvenile Justice and Delinquency Prevention. Mugged by reality, a chastened Mr. DiIulio has offered a mea culpa. “Demography,” he says, “is not fate.” The trouble with his superpredator forecast, he told Retro Report, is that “once it was out there, there was no reeling it in.”
It certainly had consequences. It energized a movement, as one state after another enacted laws making it possible to try children as young as 13 or 14 as adults... Many hundreds of juveniles were sent to prison for life, though in the last few years the United States Supreme Court has ruled that such sentences must not be automatic, even in murder cases. Individual circumstances and possible mitigating factors should be weighed, the justices said....
The superpredator scare fit neatly with a “lock ‘em up and throw away the key” approach to rising crime that had taken hold even before the ‘90s. Many states are now moving in the opposite direction, if only because incarceration is expensive, in both its human toll and its burden on strapped government budgets....
Fears about predators, super or not, have not entirely disappeared. Of late, some are concerned about what is called “the knockout game.” It involves a young man or group of young men punching a stranger on the street. This is cast essentially as a black-on-white crime, perhaps a gang initiation rite. No question, such assaults have taken place. But are they part of an organized “game”? In New York, the police seem unsure if they amount to more than isolated incidents.
As for superpredators, not everyone has abandoned the notion. In the ‘90s, Mr. DiIulio called those youngsters “remorseless” and “impulsive,” describing them as unburdened by “pangs of conscience.” Hmm, said Richard Eskow. Or words to that effect. Mr. Eskow, a senior fellow with the Campaign for America’s Future, wrote for The Huffington Post two years ago that he knew a group of people who matched those very descriptions. They were, he said, the reckless bankers and Wall Street high rollers who almost brought the United States economy to its knees a few years ago.
Tuesday, April 08, 2014
How many states now require judges to consider military service and/or PTSD at sentencing?
The question in the title of this post is prompted in part by this short local article headlined "Calif. Bill Urges Judges To Consider PTSD In Sentencing Of Military Veterans." Here are the basics:
A bill moving through the state Legislature would urge judges to grant probation and give shorter prison terms to defendants who have mental health problems stemming from their military service.
AB2098 passed the Assembly on Monday on a 70-1 vote. It requires courts to consider post-traumatic stress disorder and other mental health issues in sentencing. The bill’s author, Democrat Marc Levine of San Rafael, says as many as one in five soldiers returning from Iraq and Afghanistan have PTSD and are more likely to commit crimes.
California law already requires judges to consider ordering treatment when granting probation for veterans with mental illness. The bill is one of several that address how to deal with veterans in the criminal justice system. It now heads to the Senate.
I view legislative action regarding consideration of military service and/or PTSD at sentencing to be part of a broader set of modern sentencing developments focused on the importance of offender characteristics. The modern structured/guidelines sentencing reform era has often generated laws and practices suggesting sentencing decision-making could and should focus much more, if not exclusively, on the specifics of an offense rather than the nature of the offender.
But the Supreme Court's recent Eighth Amendment rulings in Graham and Miller now suggest that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings). State sentencing laws requiring consideration of military service and/or PTSD seems another example of the (post-modern?) view that consideration at sentencing of at least some offender characteristics may be essential to a fair and effective sentencing system.
Some older related posts:
- Should prior military service reduce a sentence?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- "Judge suggests more sentencing options for war veterans"
- Can downloading of child porn be blamed on post-traumatic stress disorder?
- "Judges Consider New Factor at Sentencing: Military Service"
- Kansas legislature considering bill for PTSD-based sentence reductions for veterans
- Ohio bill to require consideration of military service at sentencing
- "Neuroscience, PTSD, and Sentencing Mitigation"
- "Military Veterans, Culpability, and Blame"
Friday, April 04, 2014
"Should T.J. Lane's 3 life sentences get another look from the appellate court?"
The title of this post is the question in the headline of this local editorial discussion of a high-profile school shooter who might be the type of juvenile murderer that even the US Supreme Court would conclude can be given a juvenile LWOP sentence. Here are a few excerpts:
The lawyer for Chardon High School shooter T.J. Lane wants an appellate court to overturn Lane's three consecutive life sentences for the 2012 shootings in which three students died and three were wounded on the grounds that the sentencing judge didn't explicitly consider Lane's age — 17 at the time of the crime — as a mitigating factor in the sentencing. A recent Ohio Supreme Court ruling in another case said a judge must specifically address the age of a juvenile defendant when sentencing a youth to life without parole. Geauga County prosecutors say the appeal is frivolous because Geauga County Common Pleas Judge David Fuhry was well aware of Lane's age throughout the proceedings and that his age also featured prominently in the many reports on T.J. Lane's psychological state and life going back to kindergarten that Fuhry had before him at sentencing.
Does Lane's lawyer raise a valid point or should the three life sentences stand? Editorial board members share their thoughts on this case...
Thomas Suddes, editorial writer: The appeal of T.J. Lane's sentencing is a perfect example of why so many Ohioans, like Charles Dickens' Mr. Bumble, think "the law is a ass — a idiot." First, Lane pleaded guilty to killing three students, and wounding three others, in Chardon High School's cafeteria. His guilty plea is a fact. There is no question about his guilt, no doubt his guilty plea was voluntary. Those, too, are facts. Second, Lane's sentence — three consecutive life terms in prison without parole — was, is, eminently just. Third, unless an Ohioan was on Mars, virtually everyone who knew of the Chardon murders, and just about everybody in Ohio did know about them, also knew that Lane was 17 when he embarked on his homicidal rampage....
The facts of the sentencing that resulted from the Cincinnati case are whatever those facts are. But no rational bystander can claim that Fuhry was unaware of, or failed to take into account, Lane's age when he murdered. Everyone charged with a crime is entitled to a vigorous legal defense, but given the facts of the Lane case, and his guilty plea, this appeal represents the privileging of form over substance. In Lane's case, justice was done. And justice was seen to be done. And justice requires the dismissal of this appeal.
Kevin O'Brien, deputy editorial page editor, The Plain Dealer: Age is an arbitrary measure that often comes into play in the law. People under 21 cannot legally consume alcohol — a rule made based on the supposition that allowing otherwise would be detrimental to social order. T.J. Lane’s lawyer is making a general argument about 17-year-olds that doesn’t fit the specifics of his client’s case. Lane knew what he was doing in the school cafeteria, and he certainly was aware that it was wrong. He knew what he was doing at his sentencing hearing, when he wore his disgustingly boastful T-shirt. He is a cowardly assassin who, far from showing any remorse, has gone out of his way to compound the emotional hurt to his victims’ loved ones. He is right where he belongs, and three consecutive life sentences are perfectly appropriate.
Elizabeth Sullivan, opinion director, Northeast Ohio Media Group: Judges should consider a young offender's age when sentencing someone to life in prison without any possibility of parole. The Ohio Supreme Court is absolutely right about that, and if any judge fails to do so, he or she should be challenged on it. But it seems the most trivial of technicalities to suggest that Judge David Fuhry in Geauga County didn't consider T.J. Lane's age simply because he didn't explicitly reference it in his sentencing decision. Lane's age was a factor throughout this case, whether or not the judge spoke to it during sentencing. That's why this appeal is likely going nowhere. And if the appellate court takes a second look, what then? Two consecutive life terms instead of three? All the data before the judge at the time of sentencing pointed to the fact that T.J. Lane, a clearly disturbed and dangerous young man, should be locked up for life.
Christopher Evans, editorial writer, Northeast Ohio Media Group: The cold-blooded executions of three Chardon High School students and the wounding of three others, the lack of remorse and the contempt for the families, the community and the justice system made Lane ageless. He wasn't 17. He was psycho. The smirk, the handwritten "Killer" T-shirt — which mirrored the one he wore when he opened fire in the school cafeteria — and his offensive comments to the packed courthouse all speak to that. Lane earned every minute of those three life sentences for the three lives he took. But we're better than T.J. Lane. Reduce his sentence to two life sentences without parole. I can live with that.
Prior related post:
- Is TJ Lane eager to be the "uncommon" juvenile murderer who can constitutionally get an LWOP sentence?