Wednesday, October 26, 2016
Two interesting reviews of the (in)application of Graham and MIller in two states
In my upper-level sentencing course, we are now discussing the past, present and future of Eighth Amendment jurisprudence placing limits on the imposition of prison terms. Of course, this discussion now culminates in a review of the Supreme Court's recent work in Graham v. Florida and Miller v. Alabama and their continuing fallout. Conveniently, just this past weekend, two different newspapers in two different states published these two articles on how that fallout is playing out:
From Jacksonville.com here about developments in Florida, "No Second Chance: Why juvenile offenders stay locked away"
From the Milwaukee Journal Sentinel here about developments in Wisconsin, "Juvenile offenders in legal limbo: Although life sentences without parole banned for youths, 68 state inmates not likely to benefit"
This passage from the first of these articles highlights some reasons why, even years after Graham and Miller were decided and required resentencing of certain juvenile offenders, most of these offenders are still going to be spending many decades in prison before even having a chance at release:
In striking down these harsh sentences, the Supreme Court “obviously was concerned, No. 1, about locking kids up and throwing away the key,” said Marsha Levick, Philadelphia attorney and co-founder of the Juvenile Law Center. “The court was very clear that it believes kids are truly different.” Indeed Justice Elena Kagan has written that, “given all that we have said … about children’s diminished culpability, and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”
But in Courtroom 12, Circuit Judge John H. Skinner was unmoved. Despite hundreds of hours of legal work, stacks of documents and a morning of arguments, the judge told Thomas, “I haven’t really changed my mind at all as far as what you should get in this case.”
So Thomas, the youngest child in a tight-knit military family, was sentenced again to 40 years. This time, there will be a review in front of a judge and chance for release after 15 years, a provision that brings the penalty into compliance with state law.
Scenes like this one in a Jacksonville suburb are playing out around the state and across the country as judges resentencing juvenile offenders continue to issue lengthy sentences that advocates say defy the intent of the Supreme Court.
It will take years for the courts to work through the 58 Duval County homicide cases in which the juveniles’ original sentences have been deemed unconstitutional. Preparing for a resentencing hearing is intensive, and an area where the case law is constantly evolving.
But if the results from some of the earliest resolved Jacksonville cases are any indication, judges will continue to hand down long punishments. In the nine cases in which teens were first sentenced to life for childhood crimes that weren’t murder, seven of the defendants will be 60 or older when they are released.
Tuesday, October 18, 2016
"Children are Different: The Abolition of Mandatory Minimum Sentencing in Florida"
The title of this post is the title of this short essay by Paolo Annino now available via SSRN. Here is the abstract:
This essay argues that juvenile mandatory minimum sentences violate the Eighth Amendment based on the US Supreme Court's Miller v. Alabama requirement of individualized assessment and the Iowa Supreme Court's State v. Lyle application of individualized assessment to all juvenile sentencing. This essay discusses the issue of juvenile mandatory minimum sentencing in the context of recent Florida decisions.
October 18, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)
Monday, October 17, 2016
Federal judge troubled by how Philadelphia DA is dealing with post-Miller resentencing
This interesting local article, headlined "Federal judge blasts Philly DA's 'juvenile lifers' policy," highlights the continued struggle in some quarters to give meaningful effect to the Supreme Court's Eighth Amendment ruling in Miller v. Alabama more than four years later. Here are excerpts:
The Philadelphia District Attorney's office has conceded that a judge resentencing "juvenile lifers" may impose a minimum sentence lower than the 35 years the office has been offering in such cases.
The possibility was raised Monday as the office agreed to move ahead with resentencing for Kempis Songster, 44, serving life without parole for a murder he committed in 1987 at age 15. An openly frustrated U.S. District Judge Timothy J. Savage — who had ordered a new sentence for Songster four years ago, and again in August with a 120-day deadline — said the office's policy of offering all inmates the same deal for a new sentence was inconsistent with a U.S. Supreme Court ruling that had put back into play about 300 murder cases in Philadelphia involving juveniles.
Savage's Aug. 17 order had urged resentencings in which a judge would have discretion to impose "individualized, proportionate sentences," take into consideration an inmate's rehabilitation, and impose a maximum of life only in "the rarest of permanently incorrigible" cases.
"Here's the problem that I have," Savage told Assistant District Attorney Susan Affronti on Monday. "If you're saying you have all these offers out, it seems you're treating all of these folks the same way — 35 years to life. I don't get that. That to me appears to show a lack of due diligence, of looking at each case individually. I understand you want to do this for policy reasons. Maybe because it looks good."
Songster's case and others are back in the courts as a consequence of Montgomery v. Louisiana, a U.S. Supreme Court decision in January that made retroactive the court's ban on automatic life-without-parole sentences for juveniles. The ruling affects about 2,300 cases nationwide, about 500 of which are in Pennsylvania - including about 300 in Philadelphia.
Affronti, accompanied by Tariq el-Shabazz, one of District Attorney Seth Williams' top deputies, agreed to drop the appeal of Savage's order directing Songster to be resentenced as well as its request for a stay of the 120-day time frame. Savage's earlier ruling had questioned the district attorney's reliance on parole as the means of release by leaving maximum life sentences in place....
Bradley Bridge of the Defender Association of Philadelphia, who is handling many of the "juvenile lifer" cases, said the district attorney's dropping of its appeal was significant because it left Savage's opinion in place. "His vision of what is a lawful sentence is substantially different than the prosecutor's view of what is a lawful sentence," Bridge said. "The prosecutor has now conceded that Judge Savage wins. They're not challenging him on it."
Up until now, Williams has offered about 60 defendants plea agreements of 35 years to life, which, Savage previously noted, in effect passes the decision on release over to the parole board, which has approved the release of a handful of defendants in the oldest of the cases. Williams' office has argued that allowing parole in these cases was an acceptable way to comply with the Supreme Court ruling. Savage wrote in an earlier ruling, however, that a sentence with a maximum of less than life had to be considered by the resentencing judge. The life maximum should be ordered only in rare cases, but was allowable, he said.
Affronti acknowledged that the office had not been willing to offer a negotiated new sentence of less than 35 years to life for those were were 15 to 17 at the time of their crime, which is the current sentence set by Pennsylvania for first-degree murder involving a juvenile defendant 15 and older, set after the Supreme Court invalidated sentences of life without parole. Pennsylvania law also now allows for a more lenient sentence of 25 to life for juveniles who were younger than 15 at the time of the crime.
Affronti said the D.A.'s office would continue to use the new Pennsylvania law as a guideline for offers to the lifers, even though it does not legally apply retroactively, because "I believe a 15-year-old that commits first-degree murder in 1974 should be treated the same as a 15-year-old in 2016." The state Supreme Court ruled, however, that that new penalty could not be applied retroactively - a ruling sought by the commonwealth to avoid reopening these cases at all, prior to the U.S. Supreme Court retroactive ruling.
Tuesday, September 20, 2016
"The Constitutional Right to Collateral Post-Conviction Review"
The title of this post is the title of this new and timely new article authored by Carlos Manuel Vazquez and Stephen Vladeck. Here is the abstract:
For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post-conviction habeas review all-but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding — for the first time — that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a state prisoner seeks retroactively to enforce a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.
On the surface, Montgomery held only that state courts are required to employ Teague’s retroactivity framework when and if they adjudicate habeas petitions relying on new substantive rules of federal law. But, in reaching that conclusion, the Court clarified that Teague’s holding that new substantive rules of federal law are retroactively applicable on collateral review was a constitutional one, a holding that, as we explain, was both novel and important.
We next consider which courts — state or federal — have the constitutional obligation to provide the constitutionally required collateral review recognized in Montgomery. Either way, the implications of Montgomery are far-reaching. To conclude that the state courts must provide collateral review would run counter to the conventional wisdom that states are under no obligation to permit collateral attacks on convictions that have become final. On the other hand, the conclusion that federal courts must have jurisdiction to grant such collateral review is in significant tension with the Madisonian Compromise. In our view, the Supreme Court’s Supremacy Clause jurisprudence establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts — even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims. The state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction over such claims. Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners.
Finally, we examine some of the important questions raised by the conclusion that state and federal prisoners have a constitutional right to collateral relief. Although the questions are complex, and not all of the answers are clear, the uncertainties surrounding some of the contours of the remedy recognized in Montgomery should not obscure the fact this seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review, a result that could have a breathtaking impact on both commentators’ and courts’ understanding of the relationship between collateral post-conviction remedies and the Constitution.
When I got involved in writing a little commentary about the Montgomery opinion earlier this year, Montgomery's Messy Trifecta, I came to see themes and language in the Montgomery opinion that struck me as very important and very ground-breaking. Thus, I am especially pleased to discover that I am not the only one who believes (and arguably welcomes) the fact that a "seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review."
Wednesday, September 14, 2016
"Righting Wrongs: The Five-Year Groundswell of State Bans on Life Without Parole for Children"
In just five years — from 2011 to 2016 — the number of states that ban death-in-prison sentences for children has more than tripled. In 2011, only five states did not permit children to be sentenced to life without parole. Remarkably, between 2013 and 2016, three states per year have eliminated life-without- parole as a sentencing option for children. Seventeen states now ban the sentence.
This rapid rate of change, with twelve states prohibiting the penalty in the last four years alone, represents a dramatic policy shift, and has been propelled in part by a growing understanding of children’s unique capacity for positive change. Several decades of scientific research into the adolescent brain and behavioral development have explained what every parent and grandparent already know — that a child’s neurological and decision-making capacity is not the same as those of an adult. Adolescents have a neurological proclivity for risk-taking, making them more susceptible to peer pressure and contributing to their failure to appreciate long-term consequences. At the same time, these developmental deficiencies mean that children’s personalities are not as fixed as adults, making them predisposed to maturation and rehabilitation. In other words, children can and do change. In fact, research has found that most children grow out of their criminal behaviors by the time they reach adulthood.
Drawing in part from the scientific research, as well as several recent U.S. Supreme Court cases ruling that life-without-parole sentences violate the U.S. Constitution for the overwhelming majority of children, there is growing momentum across state legislatures to reform criminal sentencing laws to prohibit children from being sentenced to life without parole and to ensure that children are given meaningful opportunities to be released based on demonstrated growth and positive change. This momentum has also been fueled by the examples set by formerly incarcerated individuals who were once convicted of serious crimes as children, but who are now free, contribute positively to their communities, and do not pose a risk to public safety.
In addition to the rapid rate of change, legislation banning life without parole for children is notable for the geographic, political, and cultural diversity of states passing these reforms, as well as the bipartisan nature in which bills have passed, and the overwhelming support within state legislatures.
Currently, Nevada, Utah, Montana, Wyoming, Colorado, South Dakota, Kansas, Kentucky, Iowa, Texas, West Virginia, Vermont, Alaska, Hawaii, Delaware, Connecticut, and Massachusetts all ban life without parole sentences for children. Additionally California, Florida, New York, New Jersey, and the District of Columbia ban life without parole for children in nearly all cases.
It is also important to note that three additional states — Maine, New Mexico, and Rhode Island — have never imposed a life-without-parole sentence on a child. Several other states have not imposed the sentence on a child in the past five years, as states have moved away from this inappropriate sentence both in law and in practice.
September 14, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13)
Monday, August 29, 2016
Detailing efforts by Michigan prosecutors to have LWOP juveniles resentenced to LWOP
This lengthy local article, headlined "Michigan prosecutors defying U.S. Supreme Court on ‘juvenile lifers’," details some of the remarkable efforts of Michigan's local prosecutors in response to the Supreme Court's Miller and Montgomery rulngs requiring the resentencing of juvenile murderers preiously given mandatory LWOP sentences. Here are some extended excerpts:
Prosecutors across Michigan are fighting to uphold sentences for most of the 350-plus prison inmates now serving mandatory life terms for crimes they committed as juveniles. Their stance is in apparent defiance of a U.S. Supreme Court directive this year that courts across the nation are supposed to reduce life sentences for young offenders except in only “rare” cases.
According to data, which Bridge obtained from a network of Michigan lawyers, at least nine county prosecutors are asking judges to uphold life sentences for every so-called “juvenile lifer” convicted in their courts. They argue that these inmates, including some who have behind bars for decades, can never be safely returned to society.
“I think what the prosecutors are doing is appalling,” said Ann Arbor lawyer Deborah LaBelle, a prisoner rights advocate who is organizing free legal representation for about 100 juvenile lifers. “The Supreme Court says the vast majority have to have the chance at being paroled,” LaBelle said. “You can’t just lock them up and throw away the key for things they did as a child.”
Among the most resistant to the Supreme Court’s ruling: Saginaw County Prosecutor John McColgan Jr., who wants to uphold 21 of 21 sentences in which life terms were given to juvenile defendants. It’s nine of nine in Kalamazoo County. And seven of seven in Muskegon County.
Meanwhile, Oakland County Prosecutor Jessica Cooper has asked judges to uphold mandatory life sentences for 44 of 49 inmates who committed crimes as juveniles. In Genesee County, Prosecutor David Leyton is asking the same in 23 of 27 cases.
More broadly, four large Michigan counties — Genesee, Oakland, Saginaw and Wayne — account for 150 of the 218 cases for which prosecutors are seeking to uphold life without parole. In Wayne County, which includes Detroit, Prosecutor Kym Worthy is seeking life without parole in 61 of 153 cases – hardly rare at 40 percent, but lower than Oakland County’s request to uphold 90 percent of juvenile life sentences.
Oakland County Sheriff Michael Bouchard put an incendiary exclamation mark on the position of prosecutors when he held a press conference in July in which he compared juvenile lifers to a famous fictional serial killer. “I looked at a sample of these individuals and they are Hannibal Lecters who committed very heinous murders — often, multiple murders — and then they’ve continued to display very assaultive behavior in prison and show no remorse,” Bouchard said.
Overall, according to the data, prosecutors are seeking to uphold life-without-parole sentences for 218 of the 363 men and women in state prisons for crimes committed as minors. Most were convicted of first-degree murder or of abetting first-degree murder. Some were as young as 14. The oldest is now 71. The effort to keep juvenile lifers permanently behind bars faces pushback from legal advocates, as well as some federal prosecutors....
Prosecutors in Michigan were given a July deadline to name juvenile lifers within their jurisdictions who they contend remain too dangerous to ever walk free. Those named will face an eventual mini-trial in which prosecutors have to prove they were among the irretrievably depraved. The facts of the original crime, statements by friends or relatives of the victim and each inmate’s background and behavior in prison are to be weighed. For those lifers not targeted by prosecutors, legislation signed by Gov. Snyder in 2014 spells out a default minimum sentence of 25 years in prison to maximum of 60 years....
In an interview with Bridge, Oakland County prosecutor Cooper called the 44 cases that she challenged for parole some of the most “heinous” crimes she has seen. She said her decision on those cases was reached only after months of exhaustive review. “We are talking about victims who were stabbed, drowned, bludgeoned and decapitated,” Cooper said. “We are not talking about people who took Dad’s car and drove over somebody’s lawn. Many of these crimes were totally random. They walked up to a car and decided to shoot in it. On and on and on and on. We are really talking about awful cases.”...
Michael Dettmer, former U.S. Attorney for Michigan’s Western District, joined with another former Western District U.S. Attorney, James Brady, and Richard Rossman, former U.S. Attorney for the Eastern District, recently wrote an op-ed condemning the move by state prosecutors to challenge lesser sentences for juvenile lifers. “As former U.S. Attorneys,” they wrote, “we would have expected Michigan prosecutors to understand Montgomery’s central tenet that children are uniquely capable of growth and maturation and must be able to demonstrate their rehabilitation.
“Instead, too many prosecutors are focusing on the crime committed by a troubled adolescent without exercising the judgment to recognize whether the adult before them today has rehabilitated himself.” Dettmer said he considers state prosecutors’ push to keep so many in prison for life “a slap in the face” of the court’s instruction on rehabilitation.
But county prosecutors have a powerful ally in Michigan Attorney General Bill Schuette. Schuette has vigorously fought reconsideration of juvenile life sentences, filing a friend of the court brief in 2015 in the Montgomery case on behalf of Michigan and 15 other states opposing any retroactive look at those sentences. Asked to comment on the high rate of challenges by county prosecutors, a Schuette spokesperson said, “In general, Attorney General Schuette supports local prosecutors and their decisions.”
Thursday, August 18, 2016
Empirical SCOTUS highlights how sentencing cases of OT 15 already "have the greatest downstream effects" in lower courts
I just saw this fascinating new Empirical SCOTUS post by Adam Feldman titled "Five SCOTUS Decisions Making Waves in the Lower Courts." I was not at all surprised that three of the five cases making the list are sentencing cases (and the other two deal with criminal procedure matters), and here are snippets from the post providing the highlights:
[Supreme Court] rulings in many cases each Term go under the radar [because] they deal with less politically salient issues. Some of these cases, however, have the greatest downstream effects.
This post looks at five “sleeper cases” from this past Term that have made their major impact through the lower courts. The immediate significance of these decisions is in how they change or clarify rules and laws and consequently the trajectory of many lower court decisions. They are especially impactful in criminal cases as they tend to arise when dealing with rights of those accused or convicted of crimes.
The post ranks the cases based on the relative number of times they have been cited by a combination of federal and state lower courts (even though these decisions were made across several months of the Term, the number of times they were cited makes it unlikely that the variation in decision timing has a substantial effect on this list of cases).
5) Mathis v. United States, decided June 23, 2016 (75 lower court citations)...
4) Ross v. Blake, decided June 6, 2016 (107 lower court citations)...
3) Mullenix v. Luna (per curiam), decided November 9, 2015 (213 lower court citations)...
2) Montgomery v. Louisiana, decided January 25, 2016 (373 lower court citations) ....
1) Welch v. United States, decided April 18, 2016 (765 lower court citations) ...
My colleagues and students are certainly tired of hearing me claim that sentencing issues are often the most important public policy issues of this generation and that SCOTUS sentencing rulings are often the most consequential of all cases. Needless to say, these notable empirics is not going to reduce my tendency to aggrandize the issues and cases that are my own professional obsession.
Thursday, July 28, 2016
New Fair Punishment Project report laments frequent and persistent use of juve LWOP in one Michigan county
In this post earlier this year, I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And the first big project of the FPP was this interesting report highlighting the history of Philadelphia frequently using life without parole sentences for juvenile murderers. Now, as reported via this blog posting, FPP has another notabe report on this topic focused on another region another northern state. Here are the details (and links) via the start of the blog posting:
A new report [focused on Michigan juvenile sentencing realities] highlights Wayne County’s frequent use of juvenile life without parole (JLWOP) sentences, calling the county an “extreme outlier” in its use of the punishment. The report also criticizes D.A. Worthy’s decision, which was announced Friday, to again seek life sentences for at least one out of three individuals currently serving this sentence.
The report urges District Attorney Kym Worthy to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively, and that the punishment is only appropriate in the rarest of cases where a juvenile is determined to be “irreparably corrupt.”
The report, Juvenile Life Without Parole in Wayne County: Time to Join the Growing National Consensus?, notes that Wayne County is responsible for the highest number of juvenile life without parole sentences in the country now that Philadelphia District Attorney Seth Williams has recently announced that he will not be seeking LWOP sentences for any of the individuals previously sentenced to JLWOP there.
Currently there are more than 150 individuals serving JLWOP in Wayne County. While Wayne County has just 18% of the statewide population, it has at least 40% of the JLWOP sentences in the state of Michigan. Most incredibly, African-Americans are 39% of Wayne County’s population, but more than 90% of the individuals serving juvenile life with parole sentences from the county are Black. D.A. Worthy’s office obtained 27 JLWOP sentences during her tenure.
Saturday, July 23, 2016
Michigan prosecutor wants 71-year-old "juve lifer" to still have no chance of parole
This local AP article, headlined "Prosecutor: No sentencing break for Michigan's oldest juvenile lifer," reports on the disinclination of a Michigan prosecutor to be open to considering even the possibility of parole for an elderly prisoner given LWOP more than a half-century ago. Here are the details:
Oakland County prosecutor Jessica Cooper said Friday she'll seek another no-parole sentence for a 71-year-old man who is the oldest so-called juvenile lifer in the Michigan prison system. Sheldry Topp has been in prison for nearly 54 years. He was 17 in 1962 when he ran away from a state hospital, broke into an Oakland County home and fatally stabbed the owner.
Life sentences with no chance for parole are no longer automatic for anyone under 18. Juvenile lifers have a right to new hearings as a result of a U.S. Supreme Court decision. Judges now have discretion and can consider an offender's childhood, education and a variety of other factors.
Prosecutors across Michigan are filing their sentencing proposals this week in more than 350 cases.
The prosecutor said she'll seek no-parole sentences again for 44 people who are in prison, including Topp. She declined to explain her position in Topp's case during an interview with The Associated Press, referring a reporter to a court filing, which wasn't available after business hours.
"When we talk about doing due diligence, we did an incredible amount of due diligence in these cases," said Cooper, a former judge. "The cases that we've been reviewing are not the kids who were at the wrong place at the wrong time. We're talking about stabbings, shootings and strangulations. ... I'm shocked."
Topp, who turns 72 in September, is in a prison in Muskegon. In a recent court filing, attorney Deborah LaBelle said he was in a hospital with heart problems. She couldn't be reached for comment Friday. In 1987 and 2007, the state parole board recommended that Topp's sentence be reduced, but governors declined.
Meanwhile, in Wayne County — the state's largest — prosecutor Kym Worthy said she would seek no-parole sentences again for at least 60 prisoners who were convicted of murder as teens.
Worthy said she'll ask that 81 people be given a certain number of years in prison instead of a no-parole sentence. That could lead to freedom for some who already have been locked up for decades.
Wednesday, July 06, 2016
The title of this post is the title of this notable new paper authored by Perry Moriearty and now available via SSRN. Here is the abstract:
Over the last fourteen years, the Supreme Court has issued five decisions that impose substantive constraints on our harshest punishments -- forbidding the execution of those with “mental retardation” in Atkins v. Virginia, of juveniles in Roper v. Simmons, and of those convicted of child sexual assault in Kennedy v. Louisiana, and forbidding the sentence of life without parole for juveniles who had not killed in Graham v. Florida and for all juveniles when it is imposed mandatorily in Miller v. Alabama. Because the offenders in question were categorically less culpable, the proscribed punishment was disproportionately severe, the Court held.
In many respects, these decisions reinvigorated the Court’s substantive proportionality jurisprudence, which had been virtually dormant for two decades. Yet, three of the five decisions simply have not yielded in practice what they promised in principle. The implementation of Atkins, Graham and Miller has been so protracted, litigious and encumbered by procedural obstacles that, of the nearly 3,000 inmates nominally impacted by the decisions, only a fraction has been relieved of their sentences. In the meantime, inmates with IQs of 61 have been executed, and others have died waiting to hear whether the Court’s decisions apply retroactively.
This Article argues that, despite its transformative potential, the Court’s contemporary proportionality jurisprudence has been diminished in scope and potency in the course of its implementation -- a dynamic that has been called “slippage.” In many respects, the “slippage” of these mandates can be attributed to the decisions themselves, which are deregulatory and, in concert with the Court’s broader efforts to limit federal court jurisdiction over state criminal justice processes, tie the scope of relief to the political whims and majoritarian preferences of the States. On some issues, the procedural docility of these decisions has proven so problematic that the Court has twice within the last two years had to intervene, striking portions of Florida’s capital sentencing scheme in 2014 and, just weeks ago, declaring in Montgomery v. Louisiana that Miller does in fact apply retroactively.
While the Court’s reluctance to regulate the implementation of its proportionality mandates may be rationalized as necessary deference to the principles of federalism and finality, these justifications are far less compelling in the Eighth Amendment context. The very establishment of federal habeas, executive clemency, and Supreme Court review suggests that the Framers themselves recognized that there are normative points when interests in federalism and finality simply must yield. By contrast, the risk of offending constitutional norms through slippage may be at their most pronounced since one of the Eighth Amendment’s primary purposes is to protect the politically powerless from government overreach. I conclude that, if the Court is serious about implementing in practice the substantive constraints on punishment it has imposed over the last fourteen years, it must accompany its substantive mandates with a minimum threshold of procedural prescription.
July 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Jackson and Miller Eighth Amendment cases, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Monday, June 13, 2016
"Taking Dignity Seriously: Excavating the Backdrop of the Eighth Amendment"
The title of this post is the title of this notable new paper authored by Meghan Ryan now available via SSRN. Here is the abstract:
The U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess.
The Court has been consistent in stating that a focus on offender dignity is at the core of the Amendment’s prohibition on cruel and unusual punishments, but there has been virtually no analysis of what this dignity requirement means. This Article takes the first foray into this unexplored landscape and finds that the Constitution demands that the individuality of offenders be considered in imposing and carrying out sentences. While this appears to be a simple concept, it raises significant concerns about several modern-day sentencing practices. Punishments rooted in pure utilitarianism, by neglecting the importance of the individual offender, run afoul of this dignity demand. This sheds doubt on the propriety of some judges’ assertions that defendants’ freestanding innocence claims cannot stand because policy considerations like finality are of paramount importance; an individual offender cannot be ignored purely for the sake of societal goals.
For the same reason, the importance of individual dignity should lead us to question statutes supporting only utilitarian aims of punishment. While this raises questions about the constitutionality of pure deterrence, rehabilitation, and incapacitation, these purposes of punishment may be reconceptualized to account for the individual offender. For example, rehabilitation could be reformulated to consider not only the offender’s effects on society when he is returned to the community but also whether the offender’s character has been reformed. Finally, the importance of Eighth Amendment dignity raises questions about the constitutionality of mandatorily imposed punishments, which overlook the importance of individualization in sentencing. If we take seriously the dignity core of the Eighth Amendment, then many of these practices must be reconsidered.
June 13, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Friday, May 27, 2016
Split Iowa Supreme Court decides any and every "sentence of life without the possibility of parole for a juvenile offender violates article I, section 17 of the Iowa Constitution"
As noted in prior posts here and here, yesterday brought notable post-Miller juve sentencing decisions from state supreme courts in California and Florida. But today the Iowa Supreme Court has one-upped its colleagues via its post-Miller ruling in Iowa v. Sweet, No. 14–0455 (Iowa May 27, 2016) (available here). The lengthy majority opinon in Sweet wraps up this way:
In sum, we conclude that sentencing courts should not be required to make speculative up-front decisions on juvenile offenders’ prospects for rehabilitation because they lack adequate predictive information supporting such a decision. The parole board will be better able to discern whether the offender is irreparably corrupt after time has passed, after opportunities for maturation and rehabilitation have been provided, and after a record of success or failure in the rehabilitative process is available. See Seats, 865 N.W.2d at 557 (“Even if the judge sentences the juvenile to life in prison with parole, it does not mean the parole board will release the juvenile from prison.”); see also State v. Andrews, 329 S.W.3d 369, 379 (Mo. 2010) (Wolff, J., dissenting) (noting an offender sentenced to life with parole may nonetheless “spend the rest of his life in prison if the parole board does not determine that he is suitable for parole release”). Steinberg has poignantly made this very point:
It’s not only adolescents’ immature judgment that demands that we treat them differently when they break the law. If the plasticity of the adolescent brain makes juveniles more amenable to rehabilitation, this argues against mandatory life sentences that don’t allow courts to consider whether an impulsive or impressionable teenager might grow into a law-abiding adult who can control his impulses and stand up to peer pressure. Of course, a teenager who kills another person deliberately should be punished — no one is arguing otherwise. But should he be incarcerated for the rest of his life, with no chance to prove that he has matured?
Steinberg at 188. Thus, juvenile offenders’ prospects for rehabilitation augur forcefully against speculative, up-front determinations of opportunities for parole and leads inexorably to the categorical elimination of life-without-the-possibility-of-parole sentences for juvenile offenders.
For the above reasons, we adopt a categorical rule that juvenile offenders may not be sentenced to life without the possibility of parole under article I, section 17 of the Iowa Constitution. As a result, the sentence of the district court in this case is vacated and the matter remanded to the district court for resentencing.
Nothing in this opinion, of course, suggests that a juvenile offender is entitled to parole. The State is not required to make such a guarantee, and those who over time show irredeemable corruption will no doubt spend their lives in prison. The determination of irredeemable corruption, however, must be made when the information is available to make that determination and not at a time when the juvenile character is a work in progress.
A lengthy dissent authored by Justice Mansfield gets started this way:
Recognizing that our legislature and our trial courts have the primary role in determining criminal sentences, I would affirm the life-without-parole (LWOP) sentence for this seventeen year old who murdered his grandparents who had raised him.
Today, the court breaks new ground in finding that the Iowa Constitution categorically forbids such sentences. As I will explain below, I believe the justification offered by the majority for its ruling is insufficient. More is needed before we strike down a legislatively authorized sentence — especially one the general assembly reauthorized by large majorities in both houses just last year.
Thursday, May 26, 2016
California Supreme Court says juve killers sentenced before Miller get benefits of new post-Miller state parole statute
Today seems to be a specical day for big states to have their Supreme Court's issue big rulings concerning the sentencing of juve murderers after Miller. I noted in this prior post a ruling from the Florida Supreme Court in this arena, and now I have seen that the California Supreme Court also did some work in this space via California v. Franklin, No. S217699 (Cal. May 26, 2016) (available here). Here is the start of the majority opinion in Franklin:
Defendant Tyris Lamar Franklin was 16 years old at the time he shot and killed another teenager. A jury convicted Franklin of first degree murder and found true a personal firearm-discharge enhancement. The trial court was obligated by statute to impose two consecutive 25-year-to-life sentences, so Franklin‘s total sentence was life in state prison with the possibility of parole after 50 years.
After Franklin was sentenced, the United States Supreme Court held that the Eighth Amendment to the federal Constitution prohibits a mandatory life without parole (LWOP) sentence for a juvenile offender who commits homicide. (Miller v. Alabama (2012) 567 U.S. __, __ [132 S.Ct. 2455, 2460] (Miller).) Shortly thereafter, we held in People v. Caballero (2012) 55 Cal.4th 262 (Caballero) that the prohibition on life without parole sentences for all juvenile nonhomicide offenders established in Graham v. Florida (2010) 560 U.S. 48 (Graham) applied to sentences that were the "functional equivalent of a life without parole sentence," including Caballero‘s term of 110 years to life. (Caballero, at p. 268.) Franklin challenges the constitutionality of his 50-year-to-life sentence under these authorities.
We granted review to answer two questions: Does Penal Code section 3051 moot Franklin‘s constitutional challenge to his sentence by requiring that he receive a parole hearing during his 25th year of incarceration? If not, then does the state‘s sentencing scheme, which required the trial court to sentence Franklin to 50 years to life in prison for his crimes, violate Miller‘s prohibition against mandatory LWOP sentences for juveniles?
We answer the first question in the affirmative: Penal Code sections 3051 and 4801 — recently enacted by the Legislature to bring juvenile sentencing in conformity with Miller, Graham, and Caballero — moot Franklin‘s constitutional claim. Consistent with constitutional dictates, those statutes provide Franklin with the possibility of release after 25 years of imprisonment (Pen. Code, § 3051, subd. (b)(3)) and require the Board of Parole Hearings (Board) to "give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity" (id., § 4801, subd. (c)). In light of this holding, we need not decide whether a life sentence with parole eligibility after 50 years of incarceration is the functional equivalent of an LWOP sentence and, if so, whether it is unconstitutional in Franklin‘s case.
Split Florida Supreme Court finds technical eligibility for parole insufficient to comply with Miller Eighth Amendment requirements
The Florida Supreme Court today handed down a notable new opinion applying Miller in a case involving a juvenile offender who got a life sentence for a murder back in 1990. Here is how the opinion in Atwell v. Florida, No. SC14-193 (Fla. May 26, 2016) (available here), gets started:
Angelo Atwell was sixteen years old when, in August 1990, he committed armed robbery and first-degree murder. Under the statute then in effect, Atwell was sentenced for the first-degree murder to a mandatory term of life imprisonment, with the possibility of parole after twenty-five years, and was sentenced to life imprisonment without the possibility of parole for the armed robbery.
As mandated by the existing statutory scheme, Florida’s parole process requires “primary weight” to be given to the “seriousness of the offender’s present offense and the offender’s past criminal record.” See § 947.002, Fla. Stat. (2015). Under this statutory scheme, twenty-five years after Atwell was sentenced, the Commission on Offender Review conducted a parole hearing and set Atwell’s presumptive parole release date, which is the earliest date he may be released from prison as determined by objective parole guidelines, for the year 2130—one hundred and forty years after the crime and far exceeding Atwell’s life expectancy. Thus, while technically Atwell is parole-eligible, it is a virtual certainty that Atwell will spend the rest of his life in prison.
The issue we consider is whether Atwell’s sentence for first-degree murder is constitutional, in light of the United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), which held that the Eighth Amendment “forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” We conclude that Florida’s existing parole system, as set forth by statute, does not provide for individualized consideration of Atwell’s juvenile status at the time of the murder, as required by Miller, and that his sentence, which is virtually indistinguishable from a sentence of life without parole, is therefore unconstitutional.
"Creating Meaningful Opportunities for Release: Graham, Miller and California's Youth Offender Parole Hearings"
The title of this post is the title of this notable new paper authored by Beth Caldwell now available via SSRN. Here is the abstract:
This article presents findings from a study on the implementation of California’s new Youth Offender Parole Hearing law, which aims to provide juvenile offenders with meaningful opportunities to obtain release from adult prison. It contributes to the debate surrounding how to apply the “meaningful opportunity to obtain release” standard that the Supreme Court deliberately left open to interpretation in Graham v. Florida and, to some extent, in Miller v. Alabama. The Supreme Court’s recent opinion in Montgomery v. Louisiana reinforces the idea that juveniles who demonstrate that they are capable of change are entitled to release.
The data contained in this Article was obtained by reviewing the transcripts of the first 107 Youth Offender Parole Hearings; this sample represents all but two of the Youth Offender Parole Hearings that took place between January 2014 and June 2014. In the first six months of the law’s implementation, juvenile offenders were found suitable for parole at younger ages than the general population. Further, youth offenders appeared to have a more realistic chance of being released under the new law. This reform is, at the very least, an important step towards offering juvenile offenders more meaningful opportunities to earn their release from prison. At the same time, it does not go far enough. After discussing some limitations of the law, this Article concludes by recommending guidelines that would provide youth offenders more meaningful opportunities for release in parole hearings.
May 26, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Monday, May 23, 2016
SCOTUS concurrences explore what Montgomery GVRs might mean for juve murderers originally sentenced to death
Continuing its recent trend, the short-staffed Supreem Court opted in this new order list not to grant certiorari review in any new cases. But the list still has some intrigue for sentencing fans thanks to dueling concurrences in a set of cases vacated and remanded for further consideration in light of Montgomery v. Louisiana. The start of Justice Alito's corcurrence in Adams v. Alabama sets up what makes these cases potentially different from other post-Montgomery GVRs:
The present case differs from most of those in which the Court grants, vacates, and remands for reconsideration in light of Montgomery. The petitioner in this case — as with a few others now before the Court — was sentenced to death prior to our decision in Roper v. Simmons, 543 U. S. 551 (2005), which held that the Eighth Amendment prohibits a death sentence for a minor. During that pre-Roper period, juries in capital cases were required at the penalty phase to consider “all relevant mitigating evidence,” including “the chronological age of a minor” and a youthful defendant’s “mental and emotional development.” Eddings v. Oklahoma, 455 U. S. 104, 116–117 (1982); see also Roper v. Simmons, supra, at 603 (O’Connor, J., dissenting) (“A defendant’s youth or immaturity is, of course, a paradigmatic example” of the type of mitigating evidence to which a “sentencer in a capital case must be permitted to give full effect”). After Roper, death sentences imposed on prisoners convicted of murders committed as minors were reduced to lesser sentences.
Justice Alito goes on to explain his view that this case history might be of constitutional consequence now:
In cases like this, it can be argued that the original sentencing jury fulfilled the individualized sentencing requirement that Miller subsequently imposed. In these cases, the sentencer necessarily rejected the argument that the defendant’s youth and immaturity called for the lesser sentence of life imprisonment without parole. It can therefore be argued that such a sentencer would surely have felt that the defendant’s youth and immaturity did not warrant an even lighter sentence that would have allowed the petitioner to be loosed on society at some time in the future. In short, it can be argued that the jury that sentenced petitioner to death already engaged in the very process mandated by Miller and concluded that petitioner was not a mere “‘child’” whose crimes reflected “‘unfortunate yet transient immaturity,’” post, at 2 (SOTOMAYOR, J., concurring in decision to grant, vacate, and remand), but was instead one of the rare minors who deserves life without parole.
Justice Stotmayor is not so sure that Justice Alito's view on this matter should carry the day on remand, and she explains why in her concurrence:
Miller v. Alabama, 567 U. S. ___ (2012), did not merely impose an “individualized sentencing requirement”; it imposed a substantive rule that life without parole is only an appropriate punishment for “the rare juvenile offender whose crime reflects irreparable corruption.” Montgomery, 577 U.S., at ___ (slip op., at 17) (internal quotation marks omitted). “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Id., at ___–___ (slip op., at 16–17) (same). There is no indication that, when the factfinders in these cases considered petitioners’ youth, they even asked the question Miller required them not only to answer, but to answer correctly: whether petitioners’ crimes reflected “transient immaturity” or “irreparable corruption.” 577 U.S., at ___–___ (slip op., at 16–17).
The last factfinders to consider petitioners’ youth did so more than 10 — and in most cases more than 20 — years ago. (Petitioners’ post-Roper resentencings were generally automatic.) Those factfinders did not have the benefit of this Court’s guidance regarding the “diminished culpability of juveniles” and the ways that “penological justifications” apply to juveniles with “lesser force than to adults.” Roper, 543 U.S., at 571. As importantly, they did not have the benefit of this Court’s repeated exhortation that the gruesomeness of a crime is not sufficient to demonstrate that a juvenile offender is beyond redemption: “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.” Id., at 570; see also id., at 573; Miller, 567 U. S., at __ (slip op., at 17).
Thursday, May 19, 2016
Implementing Graham and Miller: just what qualifies as a "meaningful opportunity to obtain release"?
This new Marshall Project piece effectively details the enduring challenges that states necessarily face in honoring both the letter and spirit of the Supreme Court's modern Eighth Amendment work limiting LWOP sentences for juveniles. The piece's full headline highlights its themes: "When Parole Boards Trump the Supreme Court: The high court has said most kids shouldn't be sentenced to life without parole, but some prisoners' fate are in the hands of politics." Here is how the piece started (with links from the original):
Almost everyone serving life in prison for crimes they committed as juveniles deserves a shot at going home. That’s the thrust of a series of Supreme Court rulings, the fourth and most recent of which was decided this year. Taken together, the high court’s message in these cases is that children are different than adults when it comes to crime and punishment — less culpable for their actions and more amenable to change. As such, court rulings have determined all but the rarest of juvenile lifers are entitled to “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
The court left it up to states how to handle this year's new ruling but suggested parole boards were a good choice. “Allowing those offenders to be considered for parole,” Justice Anthony Kennedy wrote in January, gives states a way to identify “juveniles whose crimes reflected only transient immaturity—and who have since matured.” Most states have taken this option, changing juvenile lifers’ sentences en masse from life without to lifewith the possibility of parole.
But prisoner’s rights advocates and attorneys have begun to argue whether parole boards, as they usually operate, may not be capable of providing a meaningful opportunity for release. A handful of courts have agreed.
Last month, a New York state appeals court judge ruled that the state’s parole board had not “met its constitutional obligation” when it denied parole to a man who had killed his girlfriend when he was 16. Dempsey Hawkins is now 54 and has been denied parole nine times in hearings that, the court said, did not adequately weigh what role his youth and immaturity had played in his crime.
Also last month, a group of juvenile lifers in Maryland filed suit, arguing that not a single juvenile lifer had received parole in that state in the last 20 years. “Rather than affording youth a meaningful and realistic opportunity for release…grants of release are exceptionally rare, are governed by no substantive, enforceable standards, and are masked from view by blanket assertions of executive privilege,” the lawsuit says.
“There are just two relevant kinds of sentences: those that provide a meaningful opportunity for release and those that don’t,” says Sarah French Russell, a Quinnipiac University law professor who studies juvenile justice. “Sentences that are not technically labeled life without parole can deny a meaningful opportunity for release because of the procedures or criteria used by the parole board.”
A few of many prior related posts:
- Noting that Henry Montgomery (and many other juve LWOPers) are still awaiting impact from Montgomery
- "Montgomery's Messy Trifecta"
- What should we expect after Montgomery from states that had resisted Miller retroactivity?
- Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively
May 19, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Monday, May 16, 2016
Noting that Henry Montgomery (and many other juve LWOPers) are still awaiting impact from Montgomery
At Jost on Justice, Ken Jost has this notable new piece, headlined "For Juvenile Lifers, Wheels of Justice Grind Slow," about the application of the Supreme Court's ruling in Montgomery v. Louisiana in state systems. Here are excerpts:
Henry Montgomery has lived behind prison walls for 53 years now, but even so he is a “little bit antsy” according to his lawyer while waiting to learn when he will get a chance at freedom under a new Supreme Court decision.
Montgomery is one of 300 or so Louisiana inmates serving time under life-without-parole sentences imposed for murders they committed as juveniles — sentences ruled unconstitutional by the Supreme Court four years ago. The court followed with a 6-3 ruling in January that the earlier decision applies retroactively to prisoners even if their regular appeals had already ended....
The hang-up in Louisiana and in several other states stems not only from the customarily slow pace of judicial proceedings but from uncertainty about how to comply with the high court’s ruling. The 6-3 decision in Montgomery v. Louisiana appeared to prescribe parole hearings as the remedy rather than court resentencings for inmates now seeking release.
The court’s earlier decision, Miller v. Alabama (2012), prohibited states from automatically sentencing juvenile murderers to life-without-parole but left open the possibility of such sentences in some murder cases. In the new opinion, Justice Anthony M. Kennedy said that prisoners “who have shown an inability to reform will continue to serve life sentences.” Citing Montgomery’s record as a model prisoner, however, Kennedy said that inmates like him “must be given the opportunity to show their crime did not reflect irreparable corruption.”
Kennedy appeared to be letting states off easy by negating any need to resentence the juvenile lifers in court, much less to review their convictions. But leaders of a juvenile justice advocacy group working to abolish life-without-parole sentences view courts as a more receptive forum than state parole boards for inmates to gain their freedom. Heather Renwick, legal counsel for the Washington-based Campaign for the Fair Sentencing of Youth, says courts are a more favorable forum than politically appointed parole boards....
Nationwide, there are an estimated 1,300 prisoners serving life-without-parole sentences for offenses committed as juveniles. Louisiana and two other states, Michigan and Pennsylvania, account for the lion’s share. In Louisiana, Montgomery’s lawyer is impatient for the state’s high court to act. “It’s in limbo right now,” says Mark Plaisance, a private lawyer representing Montgomery on contract with the East Baton Rouge Parish public defender’s office.
Montgomery, who turns 70 in November, was sentenced for killing a school truancy officer in 1963 when he was 17. Plaisance says Montgomery shares his impatience with the delayed follow-up. “Not only him but several of the defendants are antsy about how quick can we get back into court,” Plaisance says.
For its part, the juvenile sentencing group acknowledges the slow pace but takes encouragement from recent moves by Utah and South Dakota to become the 15th and 16th states to abolish life-without-parole for juvenile offenders altogether. “There is broad bipartisan support for alternatives to death-in-prison sentences for children,” says Jody Kent Levy, the group’s director and national coordinator. “Still, there is work to be done to ensure reforms are implemented meaningfully.”
Prior related post with my scholarly take on Montgomery:
Wednesday, May 11, 2016
Sixth Circuit panel sends Miller litigation about Michigan juve LWOPers needs review anew after Montgomery
A Sixth Circuit panel today issues an interesting (non)opinion about the state and fate of federal litigation over the fate and future of Michigan juveniles serving LWOP sentences that are unconstitutional because imposed under a mandatory sentencing system. Here is how the opinion in Hill v. Snyder, No. 13-2661 (6th Cir. May 11, 2012) (available here), gets started:
This long-running case returns us to the difficult topic of juvenile crime and punishment. Our return, however, is to a new legal landscape, one defined by the Supreme Court’s developing jurisprudence recognizing that the unique characteristics of youth matter in determining the propriety of their punishment. This case began when Michigan charged and tried the named plaintiffs as adults for acts they committed while under the age of 18. Each received a conviction for first-degree murder and a mandatory sentence of life in prison. Michigan laws in place at the time rendered anyone convicted of firstdegree murder ineligible for parole, meaning that the plaintiffs in this case effectively received mandatory sentences of life in prison without the possibility of parole for acts they committed as children.
Plaintiffs filed suit in federal district court in 2010 challenging, among other things, the constitutionality of the Michigan statutory scheme that barred them from parole eligibility. Since that time, at least three important legal events have come to pass. First, the Supreme Court held in Miller v. Alabama, 132 S. Ct. 2455 (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.’” Id. at 2460. Second, Michigan amended its juvenile offender laws in light of Miller, but made some of those changes contingent upon either the Michigan Supreme Court or the United States Supreme Court announcing that Miller’s holding applied retroactively. See Mich. Comp. Laws Ann. §§ 769.25, 769.25a (2014). And, third, the United States Supreme Court recently held in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), that Miller’s prohibition on mandatory life without parole for juvenile offenders is indeed retroactive.
The district court wisely (and presciently) reached the conclusion that Miller should apply retroactively when it ruled on the parties’ cross-motions for summary judgment in 2013. That conclusion also drove the district court’s issuance of an injunctive order against defendants requiring compliance with Miller. In light of the legal changes described above, however, and for the reasons that follow, we VACATE the challenged district court orders and REMAND for the district court to address these issues under the legal landscape established by Montgomery v. Louisiana, Miller v. Alabama, and this opinion.
Monday, April 18, 2016
Seeing Montgomery and Welch as SCOTUS Teague make-up calls
A few years ago I wrote this extended article, titled "Re-Balancing Fitness, Fairness, and Finality for Sentences," which made the case for modern doctrines to be far less concerned about sentence finality, and far more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences. Though I did not in that article call for the Supreme Court's Teague doctrines to be ignored, passages from it suggesting Teague's limit on retroactivity ought to be narrowly construed appeared in amicus briefs I signed in Montgomery and Welch.
I have been pleased that Montgomery and now Welch both resulted in a significant block of Justices declaring prior Eighth And Fifth Amendment rulings fully retroactive. But how the Court majority has gotten there has been more than a bit puzzling because, as I see, the Court keeps massaging Teague while it suggests that it is faithfully applying the doctrine. In Montgomery, as I explain in this new commentary, six Justices signed on to an opinion (including Chief Justice Roberts) that seems, at least indirectly, to rewrite significantly the very foundational legal basis for Teague. And, in the final line of his solo dissent in Welch today, Justice Thomas complains that the majoity opinion in Welch (which has the votes of both Chief Justice Roberts and Justice Alito) shows that "the Court keeps moving the [retroactivity] goalposts" through its "unprincipled expansion of Teague [so that] every end is instead a new beginning."
I bring all this up because, upon reading Welch, this one passage from the majority opinion stood out for a couple of reasons:
[W]here the conviction or sentence in fact is not authorized by substantive law, then finality interests are at their weakest. As Justice Harlan wrote, “[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.” Mackey, 401 U. S., at 693 (opinion of Harlan, J.).
First and foremost, I am pleased and I think it potentially quite important (and in harmony with my own writings) to see the Supreme Court state expressly that "finality interests are at their weakest" when substantive law has changed and a defendant is still dealing with the consequences of the conviction or sentence based on the now-changed substantive law.
Second, as explained in the title of this post, the quote from Justice Harlan seems especially notable here in describing the limited societal interest in "permitting the criminal process to rest at a point where it ought properly never to repose." I suspect that Chief Justice Roberts was somewhat more comfortable with the Teague rewriting in Montgomery and that both the Chief and Justice Alito were content with the Court's work in Welch because they may have come to the conclusion the Court ultimately took unfairly long before finally finding constitutional problems with mandatory juve LWOP and the residual clause of ACCA. In both settings, lots and lots of defendants subject to really long prison terms have been persistently complaining for decades that these extreme sentencing laws were constitutionally problematic. I would guess that, as judicial umpires calling balls and strikes, the Chief and Justice Alito could live with a "Teague" make-up call to help the defendants who before kept getting strikes called against them.
Sunday, April 17, 2016
"Montgomery's Messy Trifecta"
A few weeks ago, I finally found a bit of extra time to dig into the doctrinal particulars of the Supreme Court's important ruling in Montgomery v. Louisiana, which finally clarified that its 2012 ruling in Miller v. Alabama was to be applied retroactively. Because I was pleased with the substantive outcome in Montgomery, at the time of the decision I did not give too much attention or thought to just how the Justices got to that outcome. But once I found time to focus on the doctrine developed in Montgomery, I decided I was not too impressed. Indeed, troubled by the Montgomery doctrinal particulars, I got motivated to write this little commentary which carries the same title as the title of this post. And, via SSRN, here is the abstract for my short commentary about Montgomery:
Montgomery v. Louisiana arrived at the Supreme Court at the intersection of three conceptually challenging and jurisprudentially opaque areas of law. First, Montgomery came to the Court as an Eighth Amendment case requiring the Justices to struggle yet again with the counter-majoritarian question of what limits the Cruel and Unusual Punishments Clause puts on government powers to impose certain sentences on certain defendants for certain crimes. Second, Montgomery came to the Court as a retroactivity case requiring the Justices to struggle with the practical question of how new constitutional rules are to apply to old and seemingly settled criminal judgments. Third, Montgomery became a federalism case because the Justices, when granting certiorari review, added the jurisdictional question of whether the Court even had authority to review how Louisiana had implemented the Supreme Court’s prior decisions on Eighth Amendment and retroactivity issues.
In this short essay, I briefly discuss the doctrinal puzzles of Montgomery in each of these three areas of law --- Eighth Amendment limits on sentences, retroactivity of new constitutional rules, and federal review of state criminal adjudications. Specifically, I explain how the Montgomery opinion achieved a messy trifecta: through one relatively short opinion, the Supreme Court managed to make each of these areas of law significantly more conceptually challenging and jurisprudentially opaque than they already were.
Tuesday, April 12, 2016
Ninth Circuit talks through requirements for Miller resentencing a decade after mandatory LWOP
The Ninth Circuit yesterday issued an interesting opinion faulting a district court for how it limited the evidence it considered and other problems with how it conducted a resentencing of a juvenile murderer given a mandatory LWOP sentence a decade before such a sentences was deemed unconstitutional by the Surpeme Court. Miller fan will want to read US v. Pete, No. 14-103 (9th Cir. April 11, 2016) (available here), in full, and here is how the opinion starts and along with some key passages from the heart of its analysis:
Branden Pete was 16 years old when he committed a crime that resulted in a mandatory sentence of life without the possibility of parole. Later, Miller v. Alabama, 132 S. Ct. 2455 (2012), held unconstitutional for juvenile offenders mandatory terms of life imprisonment without the possibility of parole. On resentencing, the district court refused to appoint a neuropsychological expert pursuant to 18 U.S.C. § 3006A(e) to help Pete develop mitigating evidence.
Our principal question on appeal is whether the district court abused its discretion in declining to appoint such an expert to aid the defense. We conclude that it did, and so remand for appointment of an expert, and for resentencing after considering any expert evidence offered. We also consider, and reject, Pete’s other challenges to his resentencing....
In rejecting the motion to appoint an expert, the district court ... noted that Pete’s upbringing and the circumstances of the crime have not changed, and maintained that because a psychiatric evaluation had been done in 2003, a second evaluation would be “duplicative.” “[I]t is difficult to conceive how,” the district court stated, “the passage of time may impact [the psychiatric] evidence” presented during the pretrial proceedings nearly ten years before. Further, the district court held that the impact of incarceration on Pete “is not the type of mitigating evidence which Miller contemplates.” We disagree with the district court as to all three aspects of its reasoning....
When the district court ruled that no expert testimony was “necessary,” it ignored Miller’s reasoning and directives. At the time of resentencing, Pete’s neuropsychological condition had not been evaluated in more than a decade. An updated evaluation could have revealed whether Pete was the same person psychologically and behaviorally as he was when he was 16. Rather than being “duplicative,” as the district court believed, a new evaluation could have shown whether the youthful characteristics that contributed to Pete’s crime had dissipated with time, or whether, instead, Pete is the “rare juvenile offender whose crime reflects irreparable corruption.” Id. at 2469 (citation omitted); see also Montgomery, 136 S. Ct. at 733. Similarly, without current information relating to the policy rationales applicable specifically to juvenile offenders, Pete was hamstrung in arguing for a more lenient sentence.
More specifically, the significant mitigating evidence available to Pete at resentencing, other than his own testimony and that of his lawyer (neither of which the district court credited), would have been information about his current mental state — in particular, whether and to what extent he had changed since committing the offenses as a juvenile. This information was directly related to Pete’s prospects for rehabilitation, including whether he continued to be a danger to the community, and therefore whether the sentence imposed was “sufficient, but not greater than necessary, to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a); see id. (a)(2)(C), (D). Such information is pertinent to determining whether, as Miller indicates is often the case, Pete’s psychological makeup and prospects for behavior control had improved as he matured, with the consequence that his prospects for rehabilitation and the need for incapacitation had changed.
April 12, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2)
Taking a close look at the prosecutor dealing with Miller and Montgomery on the ground in Philly
Daniel Denvir has this intriguing piece in Salon about the resentencing of juvenile murderers in the City of Brotherly Love and Sisterly Affection. The full headline highlights its themes: "The unconstitutional outrage of juvenile life sentences: Why Philadelphia will be a case study for this criminal-justice reform: The city is faced with deciding what to do about 300 now-unconstitutional juvenile life sentences." Here is how it starts:
Children convicted of committing murder on Philadelphia’s violent streets long faced the prospect of receiving the harshest sentence short of death: life without parole. Today, the city has more juvenile offenders locked up for life than any other. It has been a grim and predictable cycle: Young black men mourned at premature funerals and their killers packed into state prisons with only the narrowest hope of ever leaving. And then the tough-on-crime pendulum began to swing back.
In 2012, the U.S. Supreme Court ruled that mandatory life without parole for juveniles was unconstitutional, and in a January decision they made that ruling retroactive. And so Philadelphia District Attorney Seth Williams has roughly 300 big decisions to make: How long will he seek to imprison the onetime juveniles, many now much older, who until recently were set to die behind bars?
States responded to the 2012 Miller v. Alabama decision in a hodgepodge manner, including by abolishing juvenile life without parole entirely. In Pennsylvania, however, then-Gov. Tom Corbett signed a law that angered reform advocates for its harshness, changing the sentence for first-degree murder to 35 years to life for older juveniles, and 25 to life for younger ones. Those convicted of second-degree murder now face sentences of 20 or 30 years to life.
Critically, the law did not make the new sentences retroactive, leaving hundreds of Pennsylvania juvenile lifers in limbo. The Court’s January decision in Montgomery v. Louisiana means that prosecutors and judges throughout Pennsylvania will soon face a deluge of prisoners asking to be re-sentenced. In Philadelphia, advocates are concerned that Williams, who has taken a tough line in the past, will fight to keep many behind bars for a long time.
“The District Attorney has a pretty stark choice,” emails Marc Bookman, director of the Atlantic Center for Capital Representation. “He can either follow the very obvious trend away from sentencing juveniles to life without parole sentences, or he can swim against the tide and against the dictates of the Supreme Court and continue to seek such sentences.”
Williams’ office, which declined to comment for this story, must navigate the gap between the Supreme Court and the current state law. It’s unclear how he will proceed. The Supreme Court only barred mandatory life without parole sentences, so he could try to keep some locked up. The Court did make it clear, however, that life without parole sentences should only be applied in rare cases where an offender is “irreparably corrupted.”
Brad Bridge, a lead attorney at the Defender Association of Philadelphia, criticized Williams’ past opposition to making Miller retroactive and says that he should move quickly to resolve the cases of those who have been incarcerated the longest. “Based upon [these court rulings,] we now must re-sentence over 300 juvenile lifers in Philadelphia,” emails Bridge. “Given that over 100 of these juvenile lifers have been incarcerated for over 30 years, we should quickly resolve those cases immediately by agreeing to release those who have done well in prison. It is only by prompt resolution of 100, and maybe 200, of these cases that the resources of the judiciary, prosecutor and defense can be properly focused on the 100 cases that cannot be resolved by agreement.”
Bridge and the Juvenile Law Center, a leading critic of juvenile life without parole, have called for the prisoners to be re-sentenced on third-degree murder, carrying a sentence of 20 to 40 years. But Richard Long, executive director of the Pennsylvania District Attorneys Association, has argued that the harsher sentences meted out by the state’s new law should be applied.
Seth Williams is the association’s vice president, and last fall conveyed his opposition to re-sentencing, telling WHYY that the prisoners “aren’t kids in fifth grade doing these things… We’re talking about killings. Not someone who stole someone’s laptop. We’re talking about the loss of life. And us having to look into the eyes of victims’ families, who want something done.”
Wednesday, April 06, 2016
The title of this post is the title of this timely new piece by William Berry now available via SSRN. Here is the abstract:
When the Court interprets the Constitution to accord a new right to criminal offenders, the question quickly becomes which prisoners might benefit from the new rule. The current retroactivity doctrine relies on a confusing substance-procedure dichotomy. Drawn from Teague v. Lane, this test often results in lower court splits on the retroactivity question. Just this term, the Supreme Court has already decided the question of retroactivity in one case — Montgomery v. Louisiana, and has granted certiorari in another — Welch v. United States.
This Article rejects the substance-procedure dichotomy and offers a competing theoretical frame for considering the question of retroactivity. Specifically, the Article develops the concept of “normative retroactivity,” arguing that retroactivity should relate directly to the normative impact of the new rule on previous guilt and sentencing determinations. Further, the article advances a doctrinal test for assessing normative retroactivity of new rules of criminal constitutional law that combines the normative impact of the rule with a balancing test that weighs the applicable values of fundamental fairness and equality under the law against the competing values of finality, comity, and government financial burden.
April 6, 2016 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)
Examining how Michigan, thanks to Montgomery, is struggling through Miller retroactivity
A couple of month ago I flagged here a press report on the legal and practical challenges unfolding in Pennsylvania after the Supreme Court's ruling in Montgomery v. Louisana forced the state to start dealing with all its now-unconstitutional mandatory juve LWOP sentences. Now I see this similar story from Michigan headlined " Hundreds of Mich. juvenile lifer cases to be reviewed." The lengthy and details article gets started this way:
Hundreds of killers sentenced to mandatory life without parole while in their teens could be resentenced this year, but a debate over how to process the cases has left prosecutors and lawyers in limbo. The Michigan Court of Appeals has been asked to decide whether a judge or jury should consider whether to give offenders new sentences. A hearing is anticipated, but a date to make arguments hasn’t been set.
The U.S. Supreme Court ruled in 2012 that sentencing a person under 18 to life in prison without parole constitutes “cruel and unusual punishment.” The decision potentially affects 363 cases in Michigan dating to 1962.
Prosecutors have been required to provide a list to the chief judge in every county of the cases that may require resentencing. Wayne County has the most, at 152. Oakland is second with 49, followed by Genesee with 26 and Kent with 24. Macomb has 12 cases to be reconsidered for sentencing. Prosecutors will have to make legal motions to resentence those they feel still deserve life without parole. Other defendants will get a minimum of 25-40 years and a maximum of 60 years to serve before automatically being considered for parole.
Critics, including families of victims, argue mandatory resentencing may be unjust and open old wounds for victims who thought their cases were settled. Local law enforcement officials and prosecutors predict the process will be lengthy, costly and could further traumatize families.
Gov. Rick Snyder has recommended adding $1.1 million to the state budget to fund 11 full-time employees at the State Appellate Defenders Office for compliance with the Supreme Court ruling. But prosecutors, struggling with smaller staffs and tighter budgets, say they need more money too. Defense and appellate attorneys agree it’ll cost money to process the cases, but they argue it’s the right thing to do.
Many young offenders are immature, act impulsively and often are under the direction of older defendants, advocates say. Some juvenile lifers already have served beyond the minimum sentences that would have otherwise taken effect under resentencing, but for the pending hearing in the Michigan Court of Appeals.
“The bottom line is we’re not opening the doors and letting them all out — there will be a process and a hearing and some will be determined unfit for release,” said Valerie Newman, an assistant defender in the State Appellate Defenders Office. “And there will still be parole hearings.”
County prosecutors in Michigan say the process will take time, money and care to ensure that people who should be in prison stay there. St. Clair County Prosecutor Michael Wendling, who recently testified before a state Senate subcommittee on potential problems with resentencing, said: “It will tie up my staff and also challenge our resources — and I have only four cases; some counties have more than a hundred.” Wendling said after it is determined a case will be resentenced, it will mean locating victims, witnesses and experts and diverting assistant prosecutors from new cases.
Among Wendling’s old cases is one from 2010 in which Tia Skinner, then 17, plotted with a boyfriend to kill her parents after they took away her cellphone. Skinner has been resentenced twice, Wendling said. Another involves James Porter, then 17, of Yale who on one morning in 1982, balanced a .22 rifle on the handlebars of his bicycle, pedaled to the house of a friend with whom he had a dispute and fatally shot the teen and four family members. “I suspect we will be seeking the same sentences on all four of our juvenile lifers — these aren’t shoplifting cases,” Wendling said.
Saturday, April 02, 2016
Noticing the notable nature of states now categorically banning LWOP for juvenile murderers
This Washington Post piece by Amber Phillips spotlights an interesting reality as states continue to engage with some of the Supreme Court's recent Eighth Amendment jurisprudence. This piece is headlined "States are getting rid of life sentences for minors. And most of them are red states." Here are excerpts:
As America revisits its tough-on-crime policies from decades past, much of how to fix our criminal justice system is still up for debate. Most prominently, a bipartisan bill to rewrite the nation's sentencing laws is slogging through Congress and may well get stuck there.
But criminal justice reform advocates are celebrating a surprising amount of success in one area largely off the radar of the national debate: banning the practice of sentencing minors to life in prison without parole.
Twenty-one states ban entirely or in most cases the practice of sentencing minors to life without parole. Many of those bans have been instituted in the past decade. Lately, Republican-leaning states have been picking up the cause, an indication that the sentencing practice instituted in the 1990s is on its way out.
On Tuesday, Utah became the second state this year to ban such sentences, after South Dakota. And in the past few years, Wyoming, Nevada and West Virginia have instituted some version of the ban. Since a critical 2012 Supreme Court decision on this issue, the number of states that have banned the practice has more than tripled, said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth.
The debate, like many others in criminal justice reform, is hard to separate from race; advocates say the minors who have been sentenced to life without parole are 10 times as likely to be black than white. "There's clearly been a shift and a recognition that young people need to be held accountable in more age-appropriate ways, and we've really gone too far in our approach to youth sentencing," Lavy said....
In Utah, the debate to eliminate the practice from the books went pretty smoothly, said state Rep. Lowry Snow (R), who sponsored the bill. "I didn't have to twist a lot of arms," he said.
Snow and advocates say the arguments speak for themselves; they cite research that adolescents' brains are still growing and, thus, are not as skilled as adults' in controlling impulses or thinking through long-term actions. "They're not the same people when they're 16, 17, 18 than they are when they're 40 and 50 years old," he said.
Another argument that seems to resonate among more conservative, religious lawmakers is one of redemption. "Utah is very prone to a recognition that there can be redemption and people can be given a second chance," Snow said....
At its basic level, the debate over whether to keep or get rid of life sentences without parole mirrors the debate over the death penalty: What's the most appropriate way to punish someone for a heinous crime? In that sense, there is still opposition to the idea of banning life-without-parole sentences for minors.
Some crimes "are so heinous, so violent, so destructive … that maybe in rare cases they should receive the sentence of life without parole," state Rep. Merrill Nelson (R) said on the floor of the Utah statehouse after he spoke with the father of a teen who was killed by another teen. "Why should we take that discretion away from the judge?"
A victims advocacy group, the National Organization of Victims of Juvenile Murderers, says a ban is out of step for several reasons: The potentially un-ending parole process is often "torture" for a victim's family, and while it doesn't advocate for any specific sentence, it does not see why the life-without-parole option should be taken off the table....
And success, as described here, is relative. More than half of U.S. states still allow the sentence, after all. But given the broader political context in which these bans are coming, criminal justice reform advocates will take what they can get.
Thursday, March 31, 2016
Fair Punishment Project releases first major report: "Juvenile Life Without Parole in Philadelphia: A Time for Hope?"
In this post yesterday I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). Today I received an email concerning the great new work of this great new initiative. Here is part of this email reporting on this new report from FPP:
As Pennsylvania prepares for hundreds of resentencing hearings, a new report released today by the Fair Punishment Project and Phillips Black highlights Philadelphia’s frequent use of life without parole sentences for juveniles, calling the county an “extreme outlier” in its use of the punishment. The report urges District Attorney Seth Williams to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively.
The report, Juvenile Life Without Parole in Philadelphia: A Time for Hope?, notes that Philadelphia County is responsible for the highest number of juvenile life without parole sentences in the country. By way of comparison, Philadelphia County is home to just .5% of all Americans, but at least 9% of all juveniles sentenced to life without parole — or nearly one in 10.
“The latest scientific research show us that juveniles have a tremendous capacity to change their behaviors as they age,” stated Johanna Wald, a spokesperson for the Fair Punishment Project. “It is an injustice, and waste of taxpayer resources, to keep individuals locked up until their death for crimes they committed when they were teenagers. They should have an opportunity to prove they are worthy of a second chance.”
Wald notes that the Supreme Court has set a high bar to justify a life without parole sentence for juveniles. “The court has said that juvenile life without parole sentences should be reserved for exceptional cases that reflect ‘irreparable corruption.’ Given that adolescent brains are not fully developed and the capacity children have to change, the court rightfully assumes that it will be rare for an individual to meet this standard.”...
“Philadelphia has sentenced more juveniles to life without parole than anywhere else in the United States,” said John Mills of Phillips Black. “It is an outlier jurisdiction that, thanks to the court’s ruling, now has the opportunity to right the harsh punishments of the past by providing a thoughtful and measured approach to resentencing.”
March 31, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Wednesday, March 30, 2016
Fourth Circuit refuses to allow federal juvenile defendant to be tried as adult on charge carrying death or madatory LWOP
A number of helpful readers alerted me to this interesting Fourth Circuit panel ruling today in US v. Under Seal, No. 15-4265 (4th Cir. March 30, 2016) (available here), which gets started this way:
Pursuant to 18 U.S.C. § 5032, the Government filed a motion to transfer the Defendant -- who was a juvenile at the time of the alleged offense -- for prosecution as an adult for murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). This crime carries a mandatory statutory penalty of either death or life imprisonment. The district court denied the Government’s motion after concluding that the prosecution would be unconstitutional given that recent Supreme Court decisions have held that the United States Constitution prohibits sentencing juvenile offenders to either of these punishments. See Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life imprisonment); Roper v. Simmons, 543 U.S. 551 (2005) (death penalty).
The Government appeals the district court’s decision, contending that its transfer motion should have been granted because the Defendant could have been sentenced to a term of years up to a discretionary life sentence. For the reasons set forth below, we affirm the district court’s decision.
Sunday, March 20, 2016
South Dakota bans all juve LWOP sentences
As reported in this local article, as of last week "South Dakota has banned the practice of sentencing children to life in prison without the possibility of parole." Here is more about this notable legislative development:
Gov. Dennis Daugaard signed SB 140 sponsored by Sen. Craig Tieszen, into law on Wednesday. In making this change, South Dakota joins states such as Wyoming, Nevada and West Virginia in implementing less punitive accountability measures for children.
“Every year I try to bring at least one bill that I truly believe in while knowing it will be a struggle,” said Sen. Tieszen. “I believe that children, even children who commit terrible crimes, can and do change. And, I believe they deserve a chance to demonstrate that change and become productive citizens. In the end, I gathered a very diverse set of legislators from across the political spectrum and passed the bill with solid margins.”
SB 140 eliminates all life sentences for people who were younger than 18 at the time of their crimes. Fifteen states now ban life-without-parole sentences for children.
“South Dakota is helping to lead important change in the ways that we hold our children accountable,” said Jody Kent Lavy, director and national coordinator at the Campaign for the Fair Sentencing of Youth. “Teenagers who commit serious crimes will now have an opportunity after several years to demonstrate that they have been rehabilitated and are ready to re-enter society. Jurisprudence and adolescent development research document that appropriate sentences consider children’s age at the time of a crime, the trauma they have experienced and their capacity for change.”
Friday, March 11, 2016
Pennsylvania struggling with what law applies to nearly 500 juve LWOPers needing resentencing after Montgomery
The local article, headlined "Juvenile lifers will get new sentences, but what law applies?," effectively reviews the many headaches that the SCOTUS rulings in Miller and Montgomery have created for folks in Pennsylvania. Here are excerpts:
In 1990, on Robert Holbrook's 16th birthday, he joined a group of men on a robbery that turned into a killing. He received the only sentence Pennsylvania law allowed for murder: life without parole. In 2012, the U.S. Supreme Court decided that mandatory life-without-parole sentences were unconstitutional for those younger than 18. This January, the court ruled that the ban must be applied retroactively, to people like Holbrook. Since then, Pennsylvania's high courts have vacated dozens of life sentences.
It is now clear that Holbrook — along with about 480 other juvenile lifers across the state, 300 of them from Philadelphia — will receive new sentencing hearings following the Supreme Court's ruling in Montgomery v. Louisiana. But a key question remains: What sentencing law applies?
"Nobody has any real answer," said State Sen. Stewart Greenleaf, a Montgomery County Republican who chairs the Judiciary Committee. "We're in uncharted territory here," he said, "because we have a situation where the law these juveniles have been sentenced under has now been found to be unconstitutional, and the laws that we adopted as a legislature were adopted after they were sentenced originally" and do not apply to them.
The most straightforward resolution might be new legislation, but it's not so simple. After the 2012 decision in Miller v. Alabama, Pennsylvania enacted new sentences for juvenile killers: 25 years to life for those younger than 15, and 35 to life for those 15 to 17. But that law excluded anyone whose sentence was final before the Miller decision. Greenleaf said there's no changing that. "The problem is, even if we pass something, it would be ex post facto," or retroactive, he said. "I don't think the legislature can do anything at this point, because it could be unconstitutional what we do."
Marsha Levick, chief counsel at the Juvenile Law Center, said no new law is needed. Her solution: Resentence juveniles to 20 to 40 years in prison, the punishment for third-degree murder. "Because there is no constitutional sentencing statute that applies to these individuals, we would argue the court should apply the next-harshest sentence," she said. "That's all the court can do. It can only apply a constitutional sentence."
But Pennsylvania courts have already gone a different route. About two dozen juvenile lifers — all sentenced, but still in the appeals process, when Miller came down - have received new sentences based on judges' discretion. The results have varied wildly. Pennsylvania's Supreme Court, in the case of Qu'eed Batts — who at age 14 committed a gang-related murder — said the appropriate sentence for individuals such as him would carry a minimum number of years in prison and a maximum of life. So brothers Devon and Jovon Knox, who were convicted in a Pittsburgh carjacking and murder, received new sentences, of 35 years to life and 25 years to life respectively.
But in re-sentencing Ian Seagraves, who committed a brutal murder in Monroe County, a judge told him, "At this point in time, I have the option of life with parole or life without parole." The judge concluded that life without parole was still the appropriate sentence....
Pennsylvania Victim Advocate Jennifer Storm has been inundated with calls and emails from prosecutors and judges trying to figure out how to handle the cases and what sentencing laws apply. "I know some of these D.A.s are going to go back and ask for the highest minimum they can because there's a public safety question here," she said.
She said if courts are guided by the state's new sentencing law created after Miller, 189 offenders out of 480 would be immediately eligible for parole. The average time served among the 480 is 36 years, and the longest is 62 years. "In some of these cases, you're going to see time served become the new minimum. Obviously that needs to be very carefully negotiated with the D.A., the defender, and the surviving family members."...
Prosecutors, judges, and defense lawyers across the state, which the Pennsylvania Corrections Department says has more juvenile lifers than any other, have been tangling with this question and coming to disparate conclusions. One Chester County judge converted the cases on his docket to "time served to life," triggering the immediate possibility of parole.
But Richard Long, executive director of the Pennsylvania District Attorneys Association, said there was some consensus among prosecutors: "We believe that the sentencing provision enacted by the legislature for those cases after June 2012 can serve as good guidance."
Bradley Bridge, who's working on the cases for the Defender Association of Philadelphia, said he had been meeting with prosecutors and judges in Philadelphia to set up a structure to resolve the cases, including what sentences could be imposed. To him, one thing is clear: Resentencing juveniles to life is not permissible. "They must be given new sentences that have both a minimum and a maximum," he said. "That is what is required under Pennsylvania law."...
Levick said, one outcome is all but certain: There will be even more legal appeals.
Monday, March 07, 2016
Lots of Montgomery GVRs in latest SCOTUS order list
I am on a plane this morning on my way to the Alternative Sentencing Key-Stakeholder Summit (ASKS) taking place today and tomorrow at Georgetown University Law Center. But conveniently, the Supreme Court released this order list just before I had to shut down my computer, and I see it has a lot of cases from a lot of states with variations on this note as part of a GVR:
The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Court of Criminal Appeals of Alabama for further consideration in light of Montgomery v. Louisiana, 577 U. S. ___ (2016).
Justice Thomas, with whom Justice Alito joins, concurring in the decision to grant, vacate, and remand in this case: The Court has held the petition in this and many other cases pending the decision in Montgomery v. Louisiana, 577 U. S. ___ (2016). In holding this petition and now vacating and remanding the judgment below, the Court has not assessed whether petitioner’s asserted entitlement to retroactive relief “is properly presented in the case.” Id., at ___ (slip op., at 13). On remand, courts should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief. The Court’s disposition does not, for example, address whether an adequate and independent state ground bars relief, whether petitioner forfeited or waived any entitlement to relief (by, for example, entering into a plea agreement waiving any entitlement to relief), or whether petitioner’s sentence actually qualifies as a mandatory life without parole sentence.
I also see a notable split per curiam summary reversal finding a due process Brady problem in a Louisiana capital case. I will discuss that merits ruling and any others of criminal justice interest that may still today come down from SCOTUS in future posts.
Thursday, February 25, 2016
Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively
This local article from Florida, headlined "Killer's brain development at issue in re-sentencing," provide a significant and sobering (and ultimately incomplete) account of the challenges many courts in many states are to face as they comply with the SCOTUS mandates in Miller and Montgomery that require the resentencing of any and every teen killer previously given a mandatory LWOP sentence. Here are the basic details about this local case:
Maddie Clifton's killer will have his brain development reviewed by an expert before his re-sentencing hearing, a judge decided Thursday. Joshua Phillips, now 31, was convicted in the 1998 murder of 8-year-old Maddie and was sentenced to life without parole. At the time of the murder, Phillips was 14....
The U.S. Supreme Court ruled in 2012 that automatic life without parole sentences for juveniles are unconstitutional. In 2015, the Supreme Court said that law applies to previous cases and that it is retroactive ....
“We have a duty to re-sentence the man and give him a proper opportunity,” Judge Waddell Wallace said in court Thursday.
Phillips' attorney, Tom Fallis, filed two motions with the court: one for a new sentencing hearing and another to have the court cover the costs of calling new experts to determine the proper sentencing. Both motions were granted.
Fallis said some of the medical expertise from Phillips' original trial is no longer relevant, because of current research into juvenile psychology. "We're going to need a lot of experts," Fallis said. "This is going to be a very long hearing when it's set, and there will be evidence from what's happened in the last 20 years, what's happened in prison. I suspect there may be experts on prison life and how it affected a 14-year-old' who's now 30 some odd years old' and so the court needs to be educated. And the way you do that is through experts."
The state argued that calling new specialists and expert could be “absurd” and costly, but Wallace agreed to hiring a new expert and said the findings will be essential to the case, because of Phillips' brain development.
Police said Phillips, Maddie's neighbor, stabbed her and clubbed her to death in his San Jose area home. He hid her body under his waterbed in his room. Phillips' mother discovered the body a week later, after a massive search for the missing girl. Phillips was convicted a year later.
I submitted amicus briefs in both Miller and Montgomery arguing for the Eighth Amendment rules as adopted and applied in those case, and I think it appropriate that this defendant finally have a chance for a discretionary sentencing hearing after he was decades ago mandatorily given an LWOP sentence for a crime committed at age 14. And, though I am not quite sure this defendant really needs " a lot of experts" funded by the state to proceed with a proper resentencing, I also think it appropriate that the judge in this case recognized the need for giving the defense some additional resources to conduct a sound "Miller" resentencing.
That all said, I also think it appropriate for any and everyone like me who approved of the results in Miller and Montgomery to note and cope with the considerable costs that taxpayers and individuals are now going to have to endure. Court resources are always finite, both in terms of time and money, and this press story highlights that it seems a significant amount of the limited court resources are now going to have to be devoted to the very challenging task of figuring out what now is a fair and effective sentence for "Maddie Clifton's killer," Joshua Phillips. Moreover, and not mentioned in this story, I can only begin to imagine the emotional challenges that resentencing in this case will create for any and everyone connected to both the defendant and the victim.
Though I continue to believe that mandatory juve LWOP sentencing is very wrong, this story is a reminder that it did have the notable virtue of being very easy.
February 25, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)
Friday, February 12, 2016
Pennsylvania, thanks to Montgomery, now forced to struggle through Miller retroactivity
This local article, headlined "Pa. courts scramble to catch up to juvenile-lifers decision," reports on how the Keystone state is starting to deal with all its now unconstitutional mandatory juve LWOP sentences. Here is how it gets started:
Recently, Earl Rice Jr., an inmate at Graterford Prison, got unexpected news from a relative: A judge had unceremoniously changed his sentence from life without parole to life with parole. Chester County Court Judge James MacElree later explained: "That's what the Supreme Court of the United States said I had to do. I have no discretion whatsoever."
He was referencing the recent opinion in Montgomery v. Louisiana, which made retroactive the court's 2012 decision that automatic life-without-parole sentences for juveniles are unconstitutional. "If I'm wrong," he said, "an appeals court can figure it out."
It's one of many sometimes-conflicting ways that judges, public defenders, prosecutors, and prison officials are interpreting the ruling and scrambling to catch up to it. And Rice is facing one of the mind-numbing consequences: a life-with-parole sentence in a state that doesn't allow parole in life sentences.
It's an unprecedented challenge. The ruling affects nearly 500 juvenile lifers in Pennsylvania, about 300 of them from Philadelphia. The Philadelphia District Attorney's Office expects individual resentencing hearings will be required.
To buy time to accomplish that, the district attorney wrote a letter to the U.S. District Court for the Eastern District, asking it to dismiss — or at least stay — each of 218 federal petitions filed by juvenile lifers from Philadelphia. Those cases, seeking relief following the 2012 decision, Miller v. Alabama, had been in limbo until Montgomery could be decided. Now, it's likely a single judge will be appointed to oversee the process, according to the letter.
Bradley Bridge of the Defender Association of Philadelphia said he hopes to resolve a "significant number" of cases by agreement between the defendants and prosecutors. He said agreements are most likely for inmates who have been in prison the longest, like Joe Ligon, who has served 63 years for crimes committed when he was 15. "If it's not a significant number, it's going to be complicated, messy, and really unwieldy," he said. "To have 300 hearings . . . we simply don't have the resources." Bridge and others have organized a series of training sessions for lawyers on presenting mitigating evidence; the first was so popular, they had to turn people away.
Sunday, February 07, 2016
A useful reminder that, even after Montgomery, SCOTUS will continue to be asked to address juve LWOP
BuzzFeed News reporter Chris Geidner has this effective new piece discussing the reality that SCOTUS is sure to be presented in the years ahead with Eighth Amendment challenges to any and every LWOP sentence given to a juvenile offender. The piece is headlined "An Uncertain Path Ahead For Juvenile Sentencing Cases Still Before The Supreme Court," and here are excerpts:
Cortez Davis is serving life in prison under Michigan’s felony murder statute for a killing that occurred when he was 16 years old. Davis was not the gunman, the trial judge in his case found, but was a participant in a robbery when the fatal shooting took place. Nonetheless, under the Michigan law, because he was a key participant in the underlying felony, he was charged with felony murder. Davis was sentenced to life without the possibility of parole — the mandatory sentence in the mid-1990s.
More than a year ago, lawyers for Davis asked the Supreme Court to take up their client’s challenge to a lower court decision that upheld that sentence. Now, following a recent Supreme Court decision, his challenge and several others are likely to be sent back to lower courts — a move that could, depending on what state courts do next, put off even further the chance people like Davis have to reduce or end sentences the court has repeatedly thrown into question in recent years.
The petitions ask the justices to address how and under what circumstances states can sentence juveniles to life without parole, including in a handful of cases in which the convictions are for felony murder. Over the past decade, the court has taken up several cases addressing juvenile justice issues. The court ended the eligibility of juveniles for the death penalty in 2005, and has since, in a series of rulings, narrowed the eligibility of juveniles for life sentences.
Last week, the court handed down yet another significant ruling on juvenile sentencing — this one in the case of Henry Montgomery — that deals with complicated legal issues, but has major consequences. The court, in an opinion by Justice Anthony Kennedy, held that the 2012 ban on sentences of mandatory juvenile life in prison without the possibility of parole applied not just going forward, but also to those sentenced in the past like Montgomery. Montgomery is in jail for a killing he committed at 17 in 1963....
Far from a narrow procedural ruling, Kennedy explained that the 2012 ruling — Miller v. Alabama — was a substantive one, and, in its wake, “it will be the rare juvenile offender who can receive that same sentence.” While Montgomery’s case was pending, however, the court left several related cases like Davis’s one — all of which ask the court to go further down this path — waiting for action from the justices.
Most expect the justices now to send those cases back to lower courts to consider how the Montgomery decision affects their respective cases. During that period, how state courts interpret the Supreme Court’s ruling could vary widely. How rare is the “rare juvenile” that Kennedy writes about whose crime reflects “irreparable corruption”? How do states make that determination?...
On Jan. 25, Kennedy detailed the court’s decision that Louisiana had to give retroactive effect to the Supreme Court’s 2012 decision in the Miller. In the wake of that decision, it’s likely that the justices will send Davis’s case back to the Michigan Supreme Court to reconsider it. As Kennedy suggested in the Montgomery decision, Michigan either could re-sentence Davis — considering whether his crime reflects “permanent incorrigibility” — or make him eligible for parole consideration.
If Davis is re-sentenced instead of being granted a chance at parole, however, and if he is sentenced to life again, then he likely would go back to the U.S. Supreme Court — asking the court, again, to hear his case on the felony murder question. (As is already being seen in Montgomery’s case, state officials in Louisiana have told the state’s supreme court that their aim is to re-sentence those with mandatory life without parole sentences, rather than give them the possibility of parole.)
February 7, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Tuesday, February 02, 2016
"The Irrationality of Natural Life Sentences"
The title of this post is the headline of this New York Times Opinionator column authored by Jennifer Lackey. Here are excerpts:
[Personal] transformations can be seen most clearly by considering the two ends of the spectrum of life. On the early side, it is often noted that the prefrontal cortex of the brains of adolescents is still developing, and so they are more likely than adults to act on impulse, engage in dangerous or risky behavior, and misread social cues and emotions. This raises a host of questions about the level of responsibility that juveniles bear for their crimes and the appropriate punishments that should be handed out to them. If the underdeveloped brains of adolescents at least partly explain their criminal behavior, then holding them fully responsible for their actions, and punishing them as adults, seems wildly off the mark.
On the later side of the spectrum, only 1 percent of serious crime is committed by people over the age of 60. According to Jonathan Turley, a professor of public interest law at George Washington University: “Everyone agrees on what is the most reliable predictor of recidivism: age. As people get older, they statistically become less dangerous.” Turley refers to this period as “criminal menopause,” a phenomenon that raises serious questions about the rationale for incarcerating the elderly. Still, researchers project that the elderly prison population in the United States will be over 400,000 in 2030, compared with 8,853 in 1981.
At the early end of the spectrum of life, then, there is the possibility that prisoners might change; at the later end, there is the reality that they have changed. Both facts bump up against natural life sentences. A sentence of “natural life” means that there are no parole hearings, no credit for time served, no possibility of release. Short of a successful appeal or an executive pardon, such a sentence means that the convicted will, in no uncertain terms, die behind bars.
Many types of arguments have been leveled against natural life sentences. Economic ones focus on the ballooning costs of mass incarceration and the toll this takes on government budgets, especially as the age and medical expenses of prisoners rapidly increase. Legal ones ask whether such sentences are cruel and unusual and therefore violate the Eighth Amendment, particularly for juveniles. Social arguments ask whether natural life sentences discourage reform by providing no incentive for rehabilitation. Moral concerns are grounded in the dignity and rights of prisoners, while psychological objections call attention to the myriad causes of deviant behavior and their responsiveness to appropriate treatment.
But one argument that is surprisingly absent from these conversations is an epistemic one that has to do with us. For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal. Nothing. So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated. Our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.
Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform. Even if we set aside the other arguments against natural life sentences — economic, legal, moral and so on — the question I want to ask here is this: how is it rational to screen off the relevance of this information? How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades-from-now prisoner deserves?...
Notice that nothing in the epistemic argument here suggests that no prisoners should, in fact, spend the rest of their natural lives behind bars. Instead, the point is that rationality requires that we leave the epistemic door open to acquiring new information. Put bluntly, the argument says that it is irrational for the possibility of parole to be taken off the table at the outset of any sentence.
If Hume is right that “a wise man proportions his belief to the evidence,” then our beliefs about the punishment a person deserves at any given time need to be sensitive to the evidence available at that time. But if we screen off huge amounts of potentially relevant information decades before the beliefs about what a prisoner deserves are even formed, then it is impossible for them to be proportioned to the evidence.
February 2, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)
Wednesday, January 27, 2016
What should we expect after Montgomery from states that had resisted Miller retroactivity?
The question in the title of this post is prompted by this extended and effective Intercept article headlined "Supreme Court Gives New Hope to Juvenile Lifers, But Will States Deliver?". Here are excerpts:
[I]t took three-and-a-half years and much litigation for the Supreme Court to force the states to apply Miller retroactively. Even now, the Montgomery ruling is no guarantee for release. “Today’s decision simply provides an opportunity for review,” Mark Plaisance, the Louisiana attorney who argued the case before the Court last fall, reminded reporters on Monday. The ruling is “just the first step in a long process for Mr. Montgomery.”
At 69, Henry Montgomery does not have the luxury of time. Yet he is among the lucky ones — at least he has representation. For other prisoners, finding a lawyer to challenge their continued incarceration is the first in a daunting series of hurdles. According to [Sister Alison] McCrary, word at Angola is that local attorneys will soon be visiting the prison to instruct “offender counsel substitutes” — jailhouse lawyers — on how to begin filing petitions on behalf of fellow inmates. But juvenile lifers must also wait for the state to decide on the legal venue for such a challenge. Then, ultimately, they must convince the state’s chosen decision-makers that they are worthy of early release.
From state to state, the question of who will make these decisions is still up in the air. After Miller, several states simply abolished juvenile life without parole, restoring parole eligibility or imposing lesser determinate sentences on those already imprisoned. Other states opted for resentencing hearings, putting individual prisoners’ fates in the hands of a judge. For those recalcitrant states that refused to do either, Justice Kennedy sought to provide reassurance in Montgomery that the 6-3 ruling “does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole.” Instead, he suggested, writing for the majority, states can give a chance for such prisoners “to be considered for parole.”
In New Orleans, the Louisiana Center for Children’s Rights was quick to embrace this suggestion. The state “has a choice to make,” the legal nonprofit explained on its website following Monday’s ruling. It can offer prisoners “costly, lengthy, substantive hearings” to the tune of $3 million to fund the first year of defense attorneys alone, according to an estimate by the Louisiana Public Defender Board. Or it can grant juvenile lifers some shot at release by allowing them to go before a parole board — an option the group’s director argues saves money, preserves public safety (“by ensuring that nobody is released without review”), and is “fairer for victims, because it will mean that they do not have to go through the difficulties of a new court hearing.”...
Still, as in most states, winning parole in Louisiana is exceedingly difficult. Last summer, following a thorough review of the state of parole across the country, the Marshall Project found parole boards nationwide to be secretive, driven by politics, and “vested with almost unlimited discretion to make decisions on almost any basis. Hearsay, rumor and instinct are all fair game.”...
As lawyers and scholars continue to parse the ruling in Montgomery, the broader implications are yet to be seen. For now, although it continues to chip away at the harshest sentences for youth, with Montgomery, the Supreme Court has decided once more to preserve the option of juvenile life without parole, meaning that defendants will continue to be sent to die behind bars for crimes they committed as children. There is good reason to think such sentences will be rare — existing data after Miller shows a large drop in new sentences of life without parole for juvenile crimes across the country. And some legal experts have interpreted Montgomery to mean that a prosecutor pursuing such a punishment will now have to somehow “prove to a judge that a particular youth is beyond saving as a reformed person” — a dubious proposition that should be burdensome in theory.
Yet, it is not hard to imagine that in such cases, the “nature of the crime” will continue to have the final say. After all, even as it seeks to narrow life without parole sentences for youth offenders, Montgomery keeps intact the same assumption that set the stage for them in the first place. “Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption,” Kennedy wrote in Montgomery. It remains possible that a court “might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified.”
It was this image of irredeemably bad youth — applied along starkly racist lines — that created the superpredator myth, fueling the very sentences states are now being forced to reconsider. After all, while it may be easy to accept that, as an old man, Henry Montgomery is not the same person he was in 1963, it is difficult to imagine such sober perspective governing the fate of a 17-year-old who today committed the same crime — the fatal shooting of a police officer. These are the very crimes for which mandatory sentencing was invented — and for which parole will be routinely denied.
It is this enduring idea — that a crime tells us everything we need to know about the person who committed it — that must be overcome, by parole boards, by judges, and by the legions of people who now claim the broader mantle of criminal justice reform. The Supreme Court has taken another important step in recognizing that people in prison can change. It is up to the states to give juvenile lifers a meaningful chance to go home — before prison becomes the only home they know.
Prior related post on Montgomery:
- SCOTUS declares Miller juve LWOP rule retroactive in Montgomery v. Louisiana
- Do SCOTUS watchers really expect the Justices to take up the basic constitutionality of the death penalty soon?
Monday, January 25, 2016
Does SCOTUS ruling in Montgomery actually minimize likelihood of full constitutional ban on juve LWOP sentences?
The question in the title of this post is my first "now what" thought concerning the Supreme Court's ruling today in Montgomery v. Louisiana, No. 14–280 (S. Ct. Jan. 25, 2016) (available here), and the future of Eighth Amendment jurisprudence. It was prompted in part by the first post-Montgomery e-mail I received: it stressed that juvenile justice advocates have "urged the Court to rule that JLWOP is unconstitutional in all cases [and now] two cases with petitions for certiorari currently pending, Houston v. Utah and Jacobs v. Louisiana, ask the Court to invalidate JLWOP in all cases."
For a host of reasons, I am pleased that a majority of Justices in Montgomery concluded that the Eight Amendment rule announced in Miller precluding the mandatory imposition of life without parole to juvenile murderers is to be applied retroactively to all cases. But the fact that the Justices reached this result by calling Miller substantive, and especially the fact that Chief Justice Roberts joined the Court's opinion in Montgomery, leads me to think we might not see the Justices show interest in even considering a categorical ban on all juve LWOP sentences for some time.
Of course, I am just reading broad Eighth Amendment tea leaves here (and doing so even before I have had a chance to read Montgomery closely). Of course, the five Justices who made up the Graham and Miller majorities could on their own, without the Chief Justice along for the ride, decide to extend their Eighth Amendment jurisprudence to create a categorical bar on all juve LWOP sentences. But this five-some of Justices had their chance to reach such a result in the original Miller case and amici urged the Court to use Montgomery as another chance to do the same. The fact that the Supreme Court has now twice resisted extending Graham to all juvenile crimes, and especially now that the Justices have ensured (with the help of the Chief Justice) that no juve offenders will ever be subject to LWOP without a sentencing judge deciding such a sentence was truly justified, leads me to predict that it may now be quite a while before the Justices consider seriously a categorical ban on all juve LWOP sentences as a constitutional mandate.
Prior related post on Montgomery:
SCOTUS declares Miller juve LWOP rule retroactive in Montgomery v. Louisiana
Via a 6-3 ruling authored by Justice Kennedy, the Supreme Court this morning decided via Montgomery v. Louisiana, No. 14–280 (S. Ct. Jan. 25, 2016) (avaialable here), that "Miller announced a substantive rule that is retroactive in cases on collateral review." This is huge news for lots of reasons, and I will likely have a series of posts on this ruling and its reasoning in the hours and days and weeks ahead.
Intriguingly, the majority opinion for the Court spent relatively more energy justifying jurisdiction in the case than the declaration that Miller is a substantive rule under Teague's framework for retroactive applicaton of new constitutional rules. In any event, here are a few key passages from the tail end of the Court's Montgomery opinion explaining its ruling:
The Court now holds that Miller announced a substantive rule of constitutional law. The conclusion that Miller states a substantive rule comports with the principles that informed Teague. Teague sought to balance the important goals of finality and comity with the liberty interests of those imprisoned pursuant to rules later deemed unconstitutional. Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.
Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. §6–10–301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity — and who have since matured — will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.
Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition — that children who commit even heinous crimes are capable of change.
Monday, January 04, 2016
Notable new reporting on juve LWOP as we await SCOTUS ruling on Miller retroactivity
As helpful reader alerted me to notable new reporting from The Marshall Project and Mother Jones focused on one particular juvenile offender serving a mandatory LWOP sentence in Louisiana as well as broader juve LWOP realities. The lengthy main piece, available here via the Marshall Project, is headlined "This Boy’s Life: At 16, Taurus Buchanan threw one deadly punch — and was sent away for life. Will the Supreme Court give him, and hundreds like him, a chance at freedom?". Here are a couple of paragraphs setting the table for the case-specific tale:
Taurus Buchanan stood trial in the era of the “superpredator,” the label applied to violent juveniles in the mid-1990s, when states and the federal government passed one tough-on-crime law after another. Today, two decades later, a trio of rulings from the US Supreme Court has peeled back some of those laws, recognizing the folly of assigning equal culpability to adults and kids. In October, the court heard arguments in a fourth case, and how that ruling comes down could determine what happens to hundreds of lifers sent to prison when they were kids....
Between 1992 and 1999, 49 states and the District of Columbia made it easier to try juveniles as adults. Some states removed consideration of youth altogether, replacing discretion with compulsory triggers. By 2012, there were 28 states across the nation that were handing out mandatory life-without-parole sentences to juveniles.
One was Louisiana, where Taurus exemplified how mandatory sentencing could render a defendant’s youth meaningless. Once he was charged with second-degree murder, Taurus was automatically tried as an adult because he was over the age of 14. If convicted, he would automatically be sentenced to life without parole.
By 2015, more than 2,230 people in the United States were serving life without parole for crimes committed as juveniles, according to data compiled by the Phillips Black Project, a nonprofit law practice that collected information on all 50 states. In 2007, the Equal Justice Initiative, a nonprofit law organization based in Alabama, found that there were 73 cases in which kids were sent away for crimes they committed at age 13 or 14. One was sentenced to life for kidnapping, another for sexual battery, another for taking part in a robbery in which someone was shot but survived.
The Phillips Black data shows that, with 376, Pennsylvania currently has the most people serving juvenile life sentences. But Louisiana has a higher number of such inmates per capita than any other state. Of the 247 inmates in Louisiana, 199 are African American. In East Baton Rouge Parish, where Taurus stood trial, the racial disparity is even starker: Almost half of the parish population is white, but 32 of the 33 serving juvenile life-without-parole sentences are black.
These two companion pieces provide more details on the Phillips Black juve LWOP data and how it was compiled:
January 4, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (1)
Tuesday, November 03, 2015
"The Retroactivity Roadmap"
The title of this post is the title of this notable new essay by William Berry III available via SSRN. Here is the abstract:
In Miller v. Alabama, the Supreme Court held that imposing a mandatory life-without-parole (“LWOP”) sentence on a juvenile offender constituted a cruel and unusual punishment in violation of the Eighth Amendment. Three years later, the question remains whether the holding in Miller applies retroactively. As explained below, the applicable exception to the Teague presumption of prospective application of new criminal rules concerns whether the new rule is substantive or procedural. Generally, if the rule is substantive, its application is retroactive; if the rule is procedural, its application is prospective. This term, the Court will take up that question in Montgomery v. Louisiana.
This short essay argues that the new rule articulated in Miller possesses both substantive and procedural characteristics. This essay then explains why, for purposes of retroactivity, the substantive content of Miller matters more than the procedural content. As a result, Miller should apply retroactively. Finally, the essay suggests that the argument in Montgomery provides a roadmap for future Eighth Amendment challenges. Specifically, each characterization of Miller — substantive and procedural — has novel implications for the scope of the Eighth Amendment, and offers intriguing opportunities for future petitioners to challenge the constitutionality of mandatory sentences and LWOP sentences.
Tuesday, October 13, 2015
Lots of talk about all the talk about jurisdiction during SCOTUS oral argument in Montgomery
Given that the Supreme Court added on its own question about its jurisdiction to review a state habeas application of Teague when granting cert in Montgomery v. Louisiana, I was not all that surprised that a number of Justice were quite eager to debate the issue with the advocates during oral argument on Tuesday. And, there are now helpful reviews of the Montgomery oral argument and the jurisdiction issue from Lyle Denniston here at SCOTUSblog and from Kent Scheidegger here at Crime & Consequences and from Chris Geidner here at BuzzFeed.
In addition, my terrific research assintant this afternoon sent me his summary take concerning the argument for sharing here:
In today’s oral argument for Montgomery v. Louisiana, a majority of the time was spent discussing whether or not the Court had jurisdiction to address the merits. While the merits were discussed, neither the Justices nor the advocates addressed them at length or with much vigor.
Justices Scalia and Alito led the charge against the Court’s jurisdiction. They were deeply concerned by the Louisiana Supreme Court’s deliberate voluntariness in adopting Teague’s retroactivity standards. In their view, if the Court ruled that it had jurisdiction and then decided the merits in a way the Louisiana Supreme Court found unfavorable, the Louisiana Supreme Court could simply elect to abandon Teague effectively overruling the Court’s decision in this case. I think it is safe to say, based on the oral arguments, that Justices Scalia and Alito are voting that the Court lacks jurisdiction to address the merits here. Given that, I would say Justice Thomas will also vote that the Court lacks jurisdiction.
Nonetheless, Justices Kagan, Breyer, and Sotomayor made it quite clear that they will be voting in favor of the Court’s jurisdiction. Justices Kennedy and Ginsburg made similar manifestations.
On the merits, Justices Kagan, Breyer, and Sotomayor suggested that they would find Miller’s rule retroactive. Justices Kennedy and Ginsburg were markedly silent on this point. Justices Scalia and Alito were the only vocal opponents of petitioner’s arguments on the merits, but assuming both they and Justice Thomas vote against the Court’s having jurisdiction, such manifestations are moot.
The most perplexing figure in today’s arguments was the Chief Justice. He spoke infrequently and did not tip his hand in any overt way. However, he did make one pretty incredible point regarding the merits. He suggested that simply “provid[ing] parole” to individuals given mandatory LWOP sentences for homicides they committed as juveniles would be a remedy to this problem. To be fair, he made this suggestion, but did not necessarily endorse it as the right move or the proper disposition of the case. Still, it is a bold proposition coming from the Chief Justice.
Lots of tea leaves (readings may vary) from SCOTUS arguments in Montgomery and Hurst
I have now had just enough time to skim the SCOTUS oral argument transcripts in Montgomery v. Louisiana (which is here) and in Hurst v. Florida (which is here). Both transcripts showcase, albeit in somewhat different ways, all the complicated and intersecting jurisprudential issues in play in both cases.
At this stage, and based perhaps more on my pre-argument beliefs than on what I surmised from my first review of the transcripts, I would predict narrow wins for the defendants in both cases. And by narrow, I mean holdings that are fairly fact-based, case-specific and that also produce somewhat split rulings. But maybe others read the tea leaves in these transcripts differently, and will share their insights in the comments.
Lots of media previews of today's two big SCOTUS sentencing cases
The Supreme Court returns from a long weekend with two cases that should remake, or at least will refine, retroactivity jurisprudence and capital sentencing procedures. I have previewed Montgomery v. Louisiana and Hurst v. Florida in a bunch of prior posts, and here I will provide links to a handful of mainstream media coverage of the cases:
- "Justices to decide on sentences for young prison 'lifers'"
Monday, October 12, 2015
Montgomery wards: noticing the lack of originalism analysis of sentencing finality
As noted in this prior post, I have been doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana, and today's post is of the "dog that didn't bark" variety. Specifically, upon quickly reviewing the 20+ briefs that have been submitted in Montgomery (all of which can be found via this SCOTUSblog page), I noticed that there was essentially no discussion of what an originalist constitutional interpretation would have to say about finality/retroactivity doctrines like Teague and their application to Eighth Amendment doctrines or sentencing outcomes more generally. (Notably and tellingly, a number of briefs discussing the jurisdictional issue flagged by SCOTUS in Montgomery do provide some originalism analysis of that issue. But these briefs, nor any of those just focused on the finality/retroactivity issue, had anything to say about how an originalist perspective might inform the Court's work in this case.)
For those who are not big fans of originalist constitutional interpretation, perhaps the absence of any discussion or debate in the Montgomery briefing about what the Framers would have thought about Eighth Amendment retroactivity is a welcome development. But as I sought to spotlight in this recent law review article and this blog post last year, I think it would be interesting and potentially quite useful to examine at some lengthy whether and how the Framing generation considered finality/retroactivity issues. Of particular note, as I explain in my article, the text of the Constitution itself reveals, at least indirectly, that the Framers likely did not have an especially strong commitment to criminal justice finality interests:
The Constitution’s text can be read to suggest the Framers were decidedly eager to provide or preserve opportunities for defendants to seek review and reconsideration of their treatment by government authorities. Article I, Section 9 instructs Congress that the “Privilege of the Writ of Habeas Corpus shall not be suspended,” Article II, Section 2 provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States,” and Article III, Section 2 provides that the Supreme Court “shall have appellate Jurisdiction.” These provisions codify in our nation’s charter all the traditional mechanisms long used by individuals to challenge or seek modification of the exercise of government power through criminal justice systems. These provisions alone may not support a strong originalist claim that the Framers disfavored treating criminal judgments as final. Nevertheless, by precluding Congress from suspending habeas review, by empowering the President to grant clemency, and by authorizing the Supreme Court to hear appeals, the Constitution ensured that criminal defendants in a new America would have various means to seek review and reconsideration of the application of governmental power even after an initial criminal conviction and sentencing.
In part because I am neither a historian nor especially enthralled by originalism, I did not pursue these ideas in this SCOTUS amicus brief that I helped submit in the Montgomery case. But I was hoping that maybe someone or some group drawn to originalism would discuss what an originalist constitutional interpretation might have to say about finality/retroactivity doctrines like Teague and their application to Eighth Amendment doctrines or sentencing outcomes more generally. One Justice who often seems drawn to Eighth Amendment originalism, Justice Thomas, almost never asks questions, and thus I am not expecting him to bring up the issue during oral argument. But maybe I can dream, at least for the next few hours, that Justice Scalia might enjoy puzzling the advocates by asking a question on this front during argument.
Prior posts in this series and concerning finality matters:
- Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case
- Montgomery wards: might SCOTUS decide it lacks jurisdiction to resolve juve LWOP retroactivity case?
- Montgomery wards: certain victims' family members voicing support for juve murderers getting a chance at resentencing
- Examining "sentence finality" at length in new article and series of posts
- Finality foundations: is it uncontroversial that "conviction finality" and "sentence finality" raise distinct issues?
- Is it fair to read the Constitution as evidence the Framers were not fans of finality?
- Form, function and finality of sentences through history: the Founding Era
Tuesday, October 06, 2015
Montgomery wards: certain victims' family members voicing support for juve murderers getting a chance at resentencing
As noted in this prior post, I am doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana, and I have a terrific research assistant drafting summaries of various amicus briefs submitted in Montgomery (all of which can be found via this SCOTUSblog page). Here is how he summarized some portions of this Brief of Amici Curiae of Certain Family Members of Victims Killed by Youths in Support of Petitioner:
A collection of people who have lost loved ones, including friends and family, to violent murders submitted an amicus brief in support of the petitioner in Montgomery v. Louisiana. Their argument is both emotional and sensible; it does not appeal to the formalisms of legal argument or precedent.
At its heart, this brief addresses the emotional and personal impact of locking away a person away forever for a crime they committed as a child. This brief pleads the Court to acknowledge the merits of leniency, compassion, and the rehabilitative potential of children. All of the stories contained in this brief are moving and important. Here are a few summarized excerpts.
“Jeanne Bishop lost her younger sister, Nancy Bishop Langert, brother-in-law Richard Langert, and their unborn child on April 7, 1990.” Brief for Amici Curiae of Certain Family Members of Victims Killed by Youths in Support of Petitioner, Montgomery v. Louisiana, (No. 14-280), at 4. Sixteen year-old David Biro shot and killed the couple in their home after breaking into their home while they were out and lying in wait for their return. After a two-week trial, David was convicted of the murders and sentenced to mandatory life without parole—the only possible punishment for a double-murder committed by a child in Illinois. Neither Jeanne nor anyone else in her family was not allowed to make a victim impact statement during sentencing.
Due to her religious beliefs, Jeanne forgave David, but she was happy that he “would be locked up forever.” Id. at 5. However, over time, Jeanne’s belief that David was a remorseless killer came under question and she decided to write to him. In response, David sent Jeanne a 15-page letter confessing to the crime for the first time and expressing “deep regret.” Id. Jeanne began to visit David in prison after this initial correspondence and has developed a “strong, honest, and respectful” relationship with him. Id. at 6.
“Jeanne knows that many want to write off people like David because, in their mind, people like him can never change. But, she wonders ‘whether what we are truly afraid of is not that they will never get better, but that they might.’” Id.
On November 18, 1986, Linda White’s 26 year-old daughter Cathy was murdered by two teenage boys. Id. at 10. The boys asked Cathy for a ride out of town to avoid abusive parents. After Cathy had agreed and driven the boys a distance, the boys brandished guns and ordered Cathy to pull over. After stopping the car, the boys raped Cathy and shot her four times.
After being arrested, one of the boys — Gary — pled guilty to the murder. Gary, who was 15 years old at the time of the murder, was sentenced to 54 years in prison.
Many years after he was incarcerated, Gary agreed to let Linda, his victim’s mother, visit him. “When Linda and Gary finally met, Linda found that he was no longer the child who had callously raped and killed her daughter. Gary was a different person – a remorseful grown man who was desperately seeking both forgiveness and a chance to start making up for all of the hurt that he had inflicted.” Id. at 12.
As of 2015, “Gary has been out of prison for nearly six years. In that time, he has immersed himself in a new community, found and held a job, and begun working with drug and alcohol addicts at his church in a role in which his minister says he has made an incredible difference. Gary has kept himself out of trouble. He and Linda remain in contact, and he never stops apologizing for the pain that he caused. To Linda, Gary is a perfect example for why life sentences are so unjust, especially for children.” Id.
Prior posts in series:
- Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case
- Montgomery wards: might SCOTUS decide it lacks jurisdiction to resolve juve LWOP retroactivity case?
Thursday, October 01, 2015
Montgomery wards: might SCOTUS decide it lacks jurisdiction to resolve juve LWOP retroactivity case?
As noted in this prior post, I am doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana in large part because I find the substantive issues that surround Eighth Amendment retroactivity so dynamic and interesting. But, critically, the Justices ordered briefing on a preliminary question for consideration in the Montgomery case: "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?"
I have a terrific research assistant drafting summaries of various amicus briefs submitted in Montgomery (all of which can be found via this SCOTUSblog page). Here is how he summarized and assessed this amicus filing which was requested by the court to make the argument against jurisdiction:
The United States Supreme Court appointed Willkie Farr & Gallagher LLP (“WFG”) to file an amicus brief arguing that the Court lacks jurisdiction to address the merits of whether or not Miller applies retroactively in state collateral proceedings. That is, the Court has charged WFG with the task of arguing that the Louisiana Supreme Court’s decision that Miller does not apply retroactively cannot be reviewed by the Court.
WFG’s amicus brief argues against the Court’s jurisdiction in two steps. First, WFG argues that whether or not Miller is retroactive in the state collateral review context can only present a federally reviewable issue if Teague is binding in such proceedings. Second, WFG argues that Teague is not binding in state collateral review proceedings because its holding was predicated upon a federal statute and nothing more. Consequently, Montgomery presents no question of federal law and so any opinion on the merits of the Miller retroactivity issue would be only advisory (or so goes WFG’s argument). Thus, the Court lacks jurisdiction to address the Miller retroactivity issue in Montgomery, at least in the case’s present procedural posture.
WFG’s argument turns entirely on the way in which the Louisiana Supreme Court adopted Teague some 23 years ago in a case called Taylor v. Whitley, 606 So. 2d 1292 (La. 1992). In that case, the Louisiana Supreme Court, in addressing the retroactive application of new constitutional rules, stated:
[W]e have yet to consider the issue of retroactivity on collateral review in light of Teague. We now do so and adopt the Teague standards for all cases on collateral review in our state courts. In doing so, we recognize that we are not bound to adopt the Teague standards. [. . .] [W]e now adopt Justice Harlan’s views on retroactivity, as modified by Teague and subsequent decisions, for all cases on collateral review in our state courts. Taylor, 606 So. 2d at 1296–97.
WFG argues that since the Louisiana Supreme Court expressly held that it was “not bound to adopt the Teague [retroactivity] standards,” its subsequent retroactivity decisions, while based entirely on Teague and its progeny, do not “fairly appear to rest primarily on federal law or be interwoven with federal law” such that the presumption of federal jurisdiction articulated in Michigan v. Long, 463 U.S. 1032, 1044 (1983), applies.
While this is surely one reading of Taylor, it is a narrow one. The argument can be made (and was made by both parties in this case, see Brief of Court-Appointed Amicus, Montgomery v. Louisiana, (No. 14-280), at 10) that the Court does have jurisdiction under the Long presumption.
Taylor supports this argument. The Taylor court states throughout its opinion that it is closely following and examining the federal case law on retroactivity. See Taylor, 606 So. 2d at 1293 (“In order to address the issue of retroactivity, we begin by tracing the evolution of the United States Supreme Court’s decisions in this area.”). Further, while the Taylor court stated that it did not feel compelled to adopt the Teague standards, it definitively held that it was adopting those standards and was doing so “as modified by ... subsequent decisions” for all cases in Louisiana under collateral review. Id. at 1297. In this way, Taylor supports the notion that Louisiana state law does not just “rest primarily on federal law” and is not just “interwoven with federal law,” but evolves with federal law in a expressly lock-step manner.
As a consequence, Louisiana law vis-à-vis retroactivity in state collateral review proceedings is (arguably) federal law vis-à-vis retroactivity in federal collateral review proceedings as expressed by Teague and “subsequent decisions.” Accordingly, if ever the presumption of jurisdiction embodied in Long applied in a case, this would be the case. To be fair, WFG’s argument is unsurprising given its task. Nonetheless, it will in all likelihood be a minor opening act to the main event during oral argument.
I share my RA's sentiment that it is very unlikely a majority of the Supreme Court will decides it lacks jurisdiction in Montgomery, and I suspect relatively little of the oral argument will be focused on this issues. But I suspect the Chief Justice (and perhaps a few other Justices) may be eager to use Montgomery to contend that state courts are never obligated to apply any part of the Teague doctrines that now control federal court retroactivity decisions. Consequently, this issue may get more attention in the argument and in the ultimate opinion than some may want.
Prior posts in series:
Wednesday, September 30, 2015
Missouri Supreme Court considering constitutional challenge to lifetime sex offender registration for 14-year-old offender
As reported in this local article, headlined "Missouri’s juvenile sex offender registry challenged as unconstitutional," the top court in the Show Me state heard argument today on a notable constitutional question involve a juve sex offender. Here are the details:
A 14-year-old Missouri boy’s vicious sexual assault on his adult sister landed him in the juvenile justice system. But should it land him on the Missouri sex offender registry for the rest of his life?
That’s the question the Missouri Supreme Court is being asked to answer by attorneys for the St. Louis boy, identified in court documents as S.C.. The court heard oral arguments on the case Wednesday morning and took the matter under advisement.
Attorneys for S.C. argue that subjecting a juvenile to the same registration requirement imposed on adult sex offenders is cruel and unusual punishment, and it contradicts the goal of the juvenile justice system to “rehabilitate and reintegrate.” They say several studies show that juvenile sex offenders are no more likely to commit sex offenses as adults than other juveniles.
“Lifetime sex offender registration has no relationship to the goal of protecting society from re-offenders and yet imposes severe hardship on juvenile offenders by impairing their ability to rehabilitate and function as productive members of society,” according to documents filed by S.C.’s lawyers.
The Missouri Attorney General’s Office argues that S.C.’s appeal should be dismissed. They say that Missouri is following federal law in requiring certain juveniles to register as offenders, and federal appeals courts have upheld the constitutionality of similar laws in other states.
“The risk posed by someone who, like S.C., has attempted to forcibly rape another, creates a sufficient basis...to mandate actions that will protect the public against the likelihood of similar future offenses,” the state says in its written answer to the appeal.
The American Civil Liberties Union of Missouri has filed a brief supporting the boy’s case. “When children are treated and punished as adults, we see constitutional difficulties,” said Gillian Wilcox, an ACLU staff attorney in Kansas City....
Under Missouri law, most juveniles placed on the registry are removed when they turn 21. But those, like S.C., who were 14 or older when they committed certain serious crimes, have to register as adults when they turn 21.
Statewide, more than 300 people are now on the registry for crimes committed while juveniles.... Once on the adult registry, placement is for life, and the law does not allow for a way to petition for removal....
In its arguments in support of S.C., the ACLU of Missouri cites research by social scientists that shows that requiring lifelong sex offender registration for juveniles can actually increase their chances of recidivism because offenders “find themselves isolated from important social, educational and family networks.”
“No opportunity exists for children or their counsel to present evidence demonstrating they should not be required to register publicly for the rest of their lives,” the ACLU argues.
Attorneys for the state, however, argue that appeals courts have found that sex offender registry laws are not criminal punishments, but are civil in nature and are designed with the “rational basis” of giving the public information about individuals who pose “a significant risk.”
Tuesday, September 22, 2015
"No Hope: Re-Examining Lifetime Sentences for Juvenile Offenders"
The title of this post is the title of this notable new research report released today by Phillips Black, a nonprofit, public interest law office. The report, authored by John Mills, Anna Dorn, and Amelia Hritz, is timely with the Supreme Court due in three weeks to hear oral argument in Montgomery v. Louisiana concerning the retroactivity of its 2012 Miller juve LWOP ruling. In addition, I think this report (and related material assembled here) merits extra attention because it gives extra attention to racial realities that surround juve LWOP sentencing. Here is the report's executive summary:
In a handful of U.S. counties, teenagers are still being sentenced to a lifetime in prison with no chance of release. This harsh and increasingly isolated practice falls disproportionately on black and Hispanic youth and is a remnant of an earlier period of punitiveness based on an unfounded prediction of a new class of superpredators that never actually materialized.
While the use of this sentence has dramatically declined in recent years, it continues to be practiced in a relatively small number of jurisdictions. The Supreme Court now has the opportunity to declare juvenile life without parole a cruel and unusual punishment, far outside our standards of decency in the twenty-first century.
In Miller v. Alabama, the Court took the first step by forbidding mandatory sentences of life without parole for homicide offenses committed by juveniles ( JLWOP). The opinion, however, left open the question of whether the Eighth Amendment prohibits the imposition of life without parole upon juveniles entirely.
That question, the constitutionality of life without parole sentences for juvenile offenders, is being presented to the Court in two cases. In one case to be argued in October, the Court will consider whether its earlier rulings on this subject apply to past cases and not just cases going forward. A brief offered by the Charles Hamilton Institute for Race and Justice urges the Court to tackle the constitutional question of whether the punishment should stand at all. In another case, an inmate serving a JLWOP sentence has directly presented the question: “Does the Eighth Amendment prohibit sentencing a child to life without possibility of parole?”
This report examines the key evidence for answering the question of whether there is now a national consensus against juvenile life without parole. To make this assessment, the Court generally examines legislative enactments and actual sentencing practices. This report catalogs the rapid abandonment of JLWOP, both legislatively and in terms of actual use.
Although JLWOP dramatically expanded between 1992 and 1999—an era of hysteria over juvenile superpredators—since Miller states have rapidly abandoned JLWOP in law and practice.
Nine states have abolished JLWOP after Miller, bringing the current number of jurisdictions completely banning the sentence to fifteen. California and Florida, two of the most frequent users of the sentence, have dramatically limited the reach of JLWOP by restricting its application to a narrow set of circumstances. Moreover, North Carolina, Pennsylvania, and Washington have abolished JLWOP for a category of offenders. This pace of abolition far outstrips those that occurred in the years prior to the high Court’s rulings that the executions of juveniles and the intellectually disabled are unconstitutional. This report provides an in-depth analysis of state and county JLWOP sentencing practices. At the state level, just nine states account for over eighty percent of all JLWOP sentences. A single county, Philadelphia County, Pennsylvania, is responsible for nearly ten percent of all JLWOP sentences nationwide. Orleans Parish, Louisiana, has tenfold the number of JLWOP sentences as its population would suggest. Five counties account for more than one fifth of all JLWOP sentences. JLWOP, in practice, is isolated in a handful of outlier jurisdictions.
Finally, state sentencing practices also show marked racial disparities in JLWOP’s administration. Starting in 1992, the beginning of the superpredator era, a black juvenile offender would be twice as likely to receive a JLWOP sentence as his white counterpart. The disproportionate application of the punishment on juveniles of color is stark. All of Texas’s JLWOP sentences were imposed on persons of color. Pennsylvania has imposed it eighty percent of the time on persons of color.
There is now a growing consensus against JLWOP, calling into question its constitutionality. The policy’s suspect origins and disparate implementation require rigorous examination to determine whether it serves any legitimate penological purpose.
September 22, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)
Monday, September 14, 2015
Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case
In four weeks, the US Supreme Court will hear oral argument in Montgomery v. Louisiana. Here, via this SCOTUSblog posting and this official SCOTUS page, are the questions that the Justices will be considering in Montgomery:
Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?
Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.
Because both of these questions engage many interesting, important and dynamic issues, I am planning to do a (lengthy?) series of posts about this case and the various arguments that have been presented to the Justices via amicus briefs (including one I filed thanks to the efforts of good folks at the Columbus offices of Jones Day). As the title of this post reveals, I have decided to use "Montgomery wards" as the cheeky title for this coming series of posts.
Notably, as this new SCOTUSblog posting highlights, it would now appear that the Justices share my sense that the Montgomery case raises many interesting, important and dynamic issues because they have now scheduled additional argument time for the case. Here are the basics via Lyle Denniston's SCOTUSblog report:
The Supreme Court on Monday added fifteen minutes to the argument schedule for its hearing October 13 on Montgomery v. Louisiana, a case that could decide which juveniles convicted of murder can take advantage of a 2012 decision limiting sentences of life without parole for minors. The added time will allow a Court-appointed attorney to argue a question about the Court’s authority to actually rule on the legal issue in the case.
In March, the Justices agreed to hear the appeal of Henry Montgomery of Baton Rouge, who is seeking retroactive application of the Court’s decision in Miller v. Alabama, which had all but eliminated states’ power to sentence youths to life without parole, as punishment for committing a murder when they were under the age of eighteen. In taking on the case, however, the Court also added the question whether it has jurisdiction to review and rule on the Louisiana Supreme Court decision refusing to apply the Miller precedent to cases that had become final before June 25, 2012, when Miller was decided. Louisiana had raised that issue in a filing in an earlier case on the juvenile sentencing question.
Instead of the usual one hour of argument time, the Court in the Montgomery case will hear seventy-five minutes. The time will be divided this way: the Court-appointed attorney, Richard Bernstein of Washington, D.C., will have fifteen minutes to argue against the Court’s jurisdiction, Montgomery’s attorney will have fifteen minutes to argue both points, an attorney from the office of the U.S. Solicitor General will have fifteen minutes to argue both issues, and a lawyer for the state of Louisiana will have thirty minutes of time to argue both questions. The order also said that Bernstein and Montgomery’s lawyer will be allowed to save time for rebuttal.
The federal government, in a brief filed by the Solicitor General, supported Montgomery’s plea to apply Miller retroactively and argued that the Court does have jurisdiction to decide that question. The brief noted that there are twenty-seven inmates in federal prisons whose sentences could be affected by the retroactivity issue.
September 14, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Friday, August 21, 2015
Split Michigan appeals court finds juve has Sixth Amendment right to jury findings for LWOP sentence
Thanks to a few helpful readers, I learned about a very interesting split panel ruling today from the Michigan Court of Appeals in Michigan v. Skinner, No. 317892 (Mich. Ct. App. Aug. 21, 2015). Here is how this majority opinion starts in Skinner:
This case presents a constitutional issue of first impression as to whether the Sixth Amendment mandates that a jury make the findings set forth by Miller v Alabama, 576 US ___; 132 S Ct 2455; 183 L Ed 2d 407 (2012) as codified in MCL 769.25(6), before sentencing a juvenile homicide offender to life imprisonment without the possibility of parole. We find that the Sixth Amendment mandates that juveniles convicted of homicide who face the possibility of a sentence of life without the possibility of parole have a right to have their sentence determined by a jury. In so finding, we expressly reserve the issue of whether this defendant should receive the penalty of life in prison without the possibility of parole for a jury. In this case, defendant requested and was denied her right to have a jury decide her sentence. Accordingly, we vacate her sentence for first-degree murder and remand for resentencing on that offense consistent with this opinion.
Here is how this dissenting opinion in Skinner gets started:
I am going to need some time to read these opinions closely before I weigh in, but I would guess that the Michigan Supreme Court (and maybe even the US Supreme Court) will have its say before long on this matter.
I respectfully dissent. While the majority sets forth a strong argument, it ultimately fails because it is based upon a false premise: that Apprendi and its progeny requires that all facts relating to a sentence must be found by a jury. Rather, the principle set forth in those cases establishes only that the Sixth Amendment right to a jury trial requires the jury to find those facts necessary to impose a sentence greater than that authorized by the legislature in the statute itself based upon the conviction itself. And the statute adopted by the Michigan Legislature with respect to juvenile lifers does not fit within that category.