Thursday, June 21, 2018

Split Michigan Supreme Court rejects Sixth Amendment challenge to state's new juve LWOP statute

Ruling 4-2, the Michigan Supreme Court issued a lengthy opinion yesterday upholding the procedures of its new juvenile sentencing statute.  The majority opinion in Michigan v. Skinner, No. 152448 (Mich. June 20, 2018) (available here), gets started this way:

At issue here is whether MCL 769.25 violates the Sixth Amendment because it allows the decision whether to impose a sentence of life without parole to be made by a judge, rather than by a jury beyond a reasonable doubt.  We hold that MCL 769.25 does not violate the Sixth Amendment because neither the statute nor the Eighth Amendment requires a judge to find any particular fact before imposing life without parole; instead, life without parole is authorized by the jury’s verdict alone.  Therefore, we reverse the judgment of the Court of Appeals in Skinner and affirm the part of Hyatt that held that “[a] judge, not a jury, must determine whether to impose a life-without-parole sentence or a term-of-years sentence under MCL 769.25.”  People v Hyatt, 316 Mich App 368, 415; 891 NW2d 549 (2016).  However, we reverse the part of Hyatt that adopted a heightened standard of review for life-without-parole sentences imposed under MCL 769.25 and that remanded this case to the trial court for it to “decide whether defendant Hyatt is the truly rare juvenile mentioned in [Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012)] who is incorrigible and incapable of reform.” Hyatt, 316 Mich App at 429. No such explicit finding is required.  Finally, we remand both of these cases to the Court of Appeals for it to review defendants’ sentences under the traditional abuse-of-discretion standard of review.

The dissenting opinion gets started this way:

There is much in the majority opinion with which I agree.  For example, I agree that if MCL 769.25 can reasonably be construed in a constitutional manner, we should so construe it.  And I generally agree with the majority’s discussion of the applicable legal principles.  But I respectfully dissent from the majority’s conclusion that there are two reasonable ways of interpreting MCL 769.25, one of which is constitutional.  Reading the statute as “murder-plus” would violate the Sixth Amendment under Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), and its progeny.  And I disagree with the majority that reading the statute as “murder-minus” cures all its constitutional deficiencies. In my view, reading the statute as murder-minus renders it unconstitutional under the Eighth Amendment as interpreted by the United States Supreme Court in Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and Montgomery v Louisiana, 577 US ___; 136 S Ct 718; 193 L Ed 2d 599 (2016). Read either way, MCL 769.25 suffers from a constitutional deficiency.

June 21, 2018 in Assessing Miller and its aftermath, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Thursday, June 14, 2018

Sixth Circuit panel struggles to figure out Tennessee law to assess Miller challenge in high-profile case

As reported in this local article, headlined "While considering Cyntoia Brown's case, appeals court scrutinizes conflicting sentencing laws," an interesting federal circuit panel struggled during oral argument today to sort through applicable state sentencing law in an interesting Eighth Amendment habeas case. Here are the details:

A federal appeals court seems poised to consult the Tennessee Supreme Court before they rule on the case of Cyntoia Brown, a Nashville woman serving a life sentence in prison for a murder she committed at 16.  Brown's attorneys this year appealed to the Sixth Circuit Court of Appeals in Cincinnati, arguing her life sentence was unconstitutional. The U.S. Supreme Court ruled in 2012 that giving juveniles life sentences without parole was cruel and unusual in most cases.

Brown, now 30, has been locked up since 2004, when she was convicted of shooting 43-year-old Nashville real estate agent Johnny Allen. Allen had picked her up at an East Nashville fast food restaurant and drove her to his home.  Prosecutors said she committed a cold blooded murder, then robbed Allen before she fled with his car. Advocates for Brown say she was a victim of child sex trafficking who feared for her life, and that her age and fetal alcohol syndrome made it impossible for her to consider the full ramifications of her actions.

Attorneys representing the state have argued the 2012 ruling from the U.S. Supreme Court does not apply in Brown's case because she is not serving a true life sentence. They cite parts of Tennessee law that suggest Brown could be eligible for release after 51 years behind bars.  The three-judge panel in Cincinnati suggested at multiple points that if she was serving a 51-year sentence, the U.S. Supreme Court ruling might not apply.

But Brown's attorneys pushed back, citing another section of the law that says "there shall be no release eligibility" for offenders convicted of first degree murder, like she was. Thorny questions on sentencing law in Tennessee dominated the debate on both sides of the oral arguments Thursday morning, which lasted less than an hour....

At multiple points, the judges read directly from contradictory passages in Tennessee code, as they tried to decipher what portions applied to Brown's case. They suggested that they might seek clarification from the Tennessee Supreme Court before moving forward.  Judge Joan L. Larsen, who was appointed by President Donald Trump, asked multiple questions about the proper way to do so.

Judge Amul Thapar, another Trump appointee, aggressively questioned the argument from state attorneys that case law had established a way to cherry pick parts of Tennessee sentencing law to apply to Brown while ignoring other parts. Thapar rubbed his face and shook his head while questioning attorneys on dueling sections of the law. "We're trying to guess what Tennessee is doing here," Thapar said, later adding, "The way I read this statute is that she's got life without the possibility of parole."

The Tennessee Court of Criminal Appeals has already sided with the state on this issue, saying that Brown's sentence is not entirely for life.  But Brown's attorneys say the Tennessee Court of Appeals issued a conflicting ruling.

Judge Julia Smith Gibbons, who was appointed by former President George W. Bush, said she couldn't believe a Tennessee court hadn't issued a definitive ruling on the appropriate reading of the sentencing law.  Gibbons said Brown's case "raises some interesting, tricky issues."

If the panel does ask the Tennessee Supreme Court to clarify sentencing in this case, that court could decide whether or not it would offer an answer. The appeals court would then take the response into consideration while ruling on the broader case.  "Can we certify that to the Tennessee Supreme Court and ask them?" Thapar said.  "If they're ever going to answer one question that's the one to answer."...

The judges did not address the argument from Brown's attorneys that she should not be held responsible for a premeditated murder at 16 because fetal alcohol syndrome had slowed her mental development.

The pending federal appeal is one of multiple tracks Brown's attorneys are pursuing in their high-profile attempt to get her out of prison.  Brown also is asking Gov. Bill Haslam for clemency; the state parole board made conflicting recommendations to the governor after a hearing in May. Brown's previous appeals have been denied.  But a surge of interest from news outlets, celebrities and national legal groups has galvanized efforts that are unusual for a case like hers.

Brown was featured in the documentary "Me Facing Life: Cyntoia's Story" by filmmaker Dan Birman. In 2016, a joint reporting project on juvenile sentencing laws by the USA TODAY NETWORK - Tennessee, Dan H. Birman Productions and "Independent Lens" explored Brown's trial and conviction in depth.  Then, in 2017, celebrities including Rihanna and Kim Kardashian West called for Brown's release, dramatically increasing the scrutiny of the case.  On social media, the hashtag #FreeCyntoiaBrown went viral.

June 14, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Saturday, May 19, 2018

Noting the distinctive juve sentencing realities to face the Texas school mass murderer

Yet another horrific school shooting, this time by a juvenile offender, provides yet another need to work through modern sentencing realities facing a mass murderers.  This local article reviews the sentencing basics under the headline "The accused Santa Fe shooter will never get the death penalty. Here’s why." Here are excerpts:

The high school junior accused of gunning down 10 students and teachers at a Santa Fe school is facing a capital murder charge - but he’ll never face the death penalty, even in Texas. Some day, he’ll even be eligible for parole.

Though Dimitrios Pagourtzis was charged as an adult and jailed without bond, even if he’s found guilty he can’t be sentenced to death because of a 2005 U.S. Supreme Court ruling. And in the Lone Star State, he can’t be sentenced to life without parole as the result of a 2013 law that banned the practice for minors....

The Santa Fe High School student admitted to the mass shooting that killed 10 and wounded 10 others early Friday, according to court documents. He planted fake explosives and selected his targets so as to spare the students he liked, he later told police.

For an adult, that sort of crime could lead to the death chamber.  Murders involving multiple victims can be charged as capital offenses, and for adults that leaves two options: death or life without parole.

At one time, those options were both on the table for teens, too. But then in 2005, Christopher Simmons, a Missouri killer condemned to die, won a landmark case in the Supreme Court. After surveying practices in death penalty states, the justices decided that the national consensus was against executing minors.  Only a few states — including Texas —  were the outliers still carrying out death sentences for those convicted of crimes committed as minors....

Before the court’s decision, Texas had been the biggest executioner of juvenile offenders, Dunham said.  Across the nation, there were 22 convicts executed for crimes committed as juveniles - and more than half of them were in Texas. After the court eliminated the practice, in June 2005 Gov. Rick Perry commuted a slew of death sentences to life, removing 28 prisoners from death row, including 12 from Harris County.

Then in 2012, the Supreme Court took it one step further when the justices struck down mandatory life without parole sentences for juveniles.  The following year, Texas legislators passed a law making life with parole — instead of life without parole — the only sentencing option for minors charged with capital crimes. For life sentences where parole is an option, Marzullo said, the first chance at release comes after 40 years in prison.

Whether or not he’s ultimately convicted, the accused Santa Fe shooter will be behind bars for the foreseeable future.  During his first court appearance Friday night, a judge opted to hold him without bond. "At the moment he's in solitary confinement," Judge Mark Henry said after the teen's first court appearance Friday evening. "He's going to be here a while."

Because Pagourtzis slaughtered 10 people and injured many more, his case has me wondering about the application of consecutive sentences under Texas laws to potentially extend the period in which a juvenile offender would not be eligible for parole under life sentences. As regular readers know, there is a robust debate in lower courts about whether and how the Supreme Court's announced Eighth Amendment jurisprudence limiting life without parole for juvenile offenders ought to be applied in cases in which a juvenile has committed multiple very serious crimes. That debate may well end up impacting how this latest school shooter gets sentenced.

May 19, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (11)

Thursday, May 17, 2018

"Legal Innocence and Federal Habeas"

The title of this post is the title of this notable new paper available via SSRN authored by Leah Litman that is a must read for anyone following post-Miller or post-Johnson litigation (and who isn't?). Here is the abstract:

Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence — the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted.  The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant.  The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them in innocence-related considerations. 

This Article highlights how the doctrine has started to treat these “legal innocence” cases as cases in which defendants are innocent, as well as the reasons why it has done so.  As this Article explains, legal innocence is conceptually and inextricably linked with factual innocence; in both kinds of cases, the defendant was convicted or sentenced under a law she did not violate.  These cases raise similar concerns and implicate many of the same features of our criminal law system.  By recognizing the emerging category of legal innocence as a kind of innocence, this Article maps out how the existing federal habeas system can provide relief to legally innocent defendants.

May 17, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

Tuesday, May 15, 2018

Lots of juvenile sentencing developments as Oklahoma sorts through application of Miller

Last week brought interesting developments in the arena of juvenile sentencing in Oklahoma thanks to all three branches of the state government.   As this local article details, the Oklahoma legislature earlier this month passed, with some controversy, a new law to seeking to operationalize existing Eighth Amendment limits on LWOP sentences for juveniles:

Senate Bill 1221 would put sentencing for teen killers in the hands of a judge, not the jury that convicted them....  The bill passed Wednesday in the state Senate would require judges to determine sentencing based on a number of factors including the underage killers’ maturity, psych tests, and take jury’s out of the sentencing equation.

But some lawmakers cried foul. “We are going to circumvent an Americans right to equal protection under the law because the kid is 17 years old not 21,” said Senator AJ Griffin (R) Guthrie....  “It’s disrespectful to the citizens of this state that elected us and put us here in order to do our job. If an adult deserves a jury a kid deserves a jury,” Senator Griffin said.

As this excerpt indirectly reveals, because jury sentencing is the norm in Oklahoma, this new law would have created a distinctive judge-centric sentencing procedure just for juvenile murders in Oklahoma.  But before Oklahoma's Governor acted on this bill, the Oklahoma Court of Criminal Appeals (the state's highest criminal court) handed down a big new juve sentencing ruling in Stevens v. Oklahoma, 2018 OK CR 11 (Ok. Crim. App. May 10, 2018) (available here). Stevens is yet another notable example of another state court working through just how Miller and Montgomery should be applied, and it includes these notable passages (with most cites removed):

In all future trials where the State intends to seek a sentence of life without the possibility of parole for an offender who committed his or her offense under the age of eighteen (18) years of age the State shall give notice of this fact by stating at the bottom of the Information in bold type: "The State is seeking the punishment of life without the possibility of parole for the offense of Murder in the First Degree, as Defendant (state last name here) is irreparably corrupt and permanently incorrigible." See Parker v. State, 1996 OK CR 19, ¶ 24, 917 P.2d 980, 986 (adopting notice pleading). Both parties shall be afforded full discovery on this issue in accordance with established discovery law. 22 O.S.2011, § 2001 et seq. The assigned trial judge has the authority under our Discovery Code to issue any orders necessary to accomplish this task.

The Sixth Amendment demands that the trial necessary to impose life without parole on a juvenile homicide offender must be a trial by jury, unless a jury is affirmatively waived. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The defendant's trial shall be bifurcated and the issue of the defendant's guilt shall be separately determined from the enhancement of his or her sentence.... [E]ach party shall be afforded the opportunity to present evidence in support of its position as to punishment in the second stage of the trial. The trial court shall submit a special issue to the jury as to whether the defendant is irreparably corrupt and permanently incorrigible....

It is the State's burden to prove, beyond a reasonable doubt, that the defendant is irreparably corrupt and permanently incorrigible. Luna, 2016 OK CR 27, ¶ 21 n. 11, 387 P.3d at 963 n. 11; see also Ring v. Arizona, 536 U.S. 584 (2002) (holding facts increasing punishment beyond the maximum authorized by a guilty verdict must be proven beyond a reasonable doubt). The State shall have the opportunity to present any evidence tending to establish this fact subject to the limitations of 12 O.S.2011, § 2403. Generally, this will include, but not be limited to, evidence concerning the defendant's: (1) sophistication and maturity; (2) capability of distinguishing right from wrong; (3) family and home environments; (4) emotional attitude; (5) pattern of living; (6) record and past history, including previous contacts with law enforcement agencies and juvenile or criminal courts, prior periods of probation and commitments to juvenile institutions; and (7) the likelihood of the defendant's rehabilitation during adulthood. See Luna, 2016 OK CR 27, ¶ 20, 387 P.3d at 962; Cf. 10A O.S.2011, § 2-5-205(E).

Similarly, the defendant must be permitted to introduce relevant evidence concerning the defendant's youth and its attendant characteristics. Miller, 567 U.S. at 489 ("[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for a juveniles."). Generally, this will include, but not be limited to, evidence concerning the defendant's: "(1) chronological age and its hallmark features--among them, immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the incompetencies associated with youth--for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys; and (3) whether the circumstances suggest possibility of rehabilitation." Luna, 2016 OK CR 27, ¶ 20, 387 P.3d at 962 (quotations and citation omitted).

If the sentencer unanimously finds that the defendant is irreparably corrupt and permanently incorrigible it is then authorized to consider imposing a sentence of life without the possibility of parole.  If the sentencer does not make this finding it is prohibited from considering a sentence of life without the possibility of parole and may only impose a sentence of life imprisonment.

Notably, Oklahoma's Governor followed up all this activity by vetoing the bill that would allow for juvenile sentencing to be before a judge.  Gov Mary Fallin's veto statement here states:

Senate Bill 1221, also known as the Alyssa Wiles Juvenile Life Without Parole Sentencing Act, has provisions that, are in my opinion, in violation of the United States Supreme Court decision in Miller v. Alabama, 567 U.S. 460, 132 SCt. 2455, 183 L.Ed.2d 407. That decision was followed by the Oklahoma Court of Criminal Appeals in its decision rendered May 10, 2018, in Roberts A. Stevens v. The State of Oklahoma. Case No. PC-2017-219.

In case anyone cares, I believe there is at least a plausible argument that Apprendi jurisprudence does not demand that a jury make the essential "findings" that Miller and Montgomery seem to make constitutionally required under the Eighth Amendment for sentencing a juvenile to life without parole.  Readers with long memories may recall that I have long argued that Blakely's Sixth Amendment rule makes most sense only when applied to offense facts rather than to offender characteristics.  The Supreme Court has vaguely, but not conclusively, rejected such a conceptual distinction in the reach of the Sixth Amendment.  But even though I can see possible constitutional uncertainty as to how offender-eligibility factors are must be adjudicated under the Supreme Court's Sixth and Eighth Amendment jurisprudence, I think it may well be sound practice for these kinds of determinations to be given to juries (perhaps particularly in a state with a strong tradition of jury involvement in sentencing decision-making).

May 15, 2018 in Assessing Miller and its aftermath, Blakely Commentary and News, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Thursday, May 10, 2018

Oregon Supreme Court upholds 112-year aggregate sentence for juve mass murderer Kip Kinkel

A helpful reader made sure I did not miss the notable Oregon Supreme Court's ruling today in Kinkel v. Persson, 363 Or 1 (Oregon May 10, 2018) (available here). The defendant in this case, Kip Kinkel, is a high-profile juvenile offender because back in 1998, at age 15, he killed his parents and then the next day at his high school shot two classmates and wounded 25 others.  The start of the Oregon Supreme Court majority opinion explains the sentencing proceedings and the court's ruling: 

Petitioner pled guilty to four counts of murder and 25 counts of attempted murder, as well as pleading no contest to a twenty-sixth count of attempted murder.  As part of a plea bargain, petitioner and the state agreed that he would receive concurrent 25-year sentences for the four murders.  They also agreed that each side would be free to argue that the mandatory 90-month sentences for each of the attempted murders should run consecutively or concurrently.  After a six-day sentencing hearing, the trial court ordered that 50 months of each 90-month sentence for attempted murder would run concurrently but that 40 months of each of those sentences would run consecutively to each other and to the four concurrent 25-year sentences. As a result of that ruling, petitioner’s aggregate sentence totals slightly less than 112 years.

In this post-conviction proceeding, petitioner argues that, because he was a juvenile when he committed his crimes, the Eighth Amendment prohibits the imposition of an aggregate sentence that is the functional equivalent of a life sentence without the possibility of parole. Petitioner’s federal argument entails primarily three issues.  The first is whether, as a matter of state law, petitioner’s Eighth Amendment claim is procedurally barred.  See ORS 138.550(2) (barring post-conviction petitioners from raising grounds for relief that were or reasonably could have been raised on direct appeal); Verduzco v. State of Oregon, 357 Or 553, 355 P3d 902 (2015) (applying a related statute).  If it is, the second issue is whether Montgomery v. Louisiana, ___ US ___, 136 S Ct 718, 193 L Ed 2d 599 (2016), requires this court to reach petitioner’s Eighth Amendment claim despite the existence of that state procedural bar.  Third, if petitioner’s Eighth Amendment claim is not procedurally barred, the remaining issue is whether and how Miller v. Alabama, 567 US 460, 132 S Ct 2455, 183 L Ed 2d 407 (2012), applies when a court imposes an aggregate sentence for multiple crimes committed by a juvenile.

As explained below, we hold that, even if ORS 138.550(2) does not pose a procedural bar to petitioner’s Eighth Amendment claim, his claim fails on the merits.  More specifically, the issue in Miller was whether the Eighth Amendment prohibited a juvenile from being sentenced to life imprisonment without the possibility of parole for a single homicide.  The Court held that such a sentence could be imposed but only if the trial court found that the crime reflected irreparable corruption rather than the transience of youth.  The Court did not consider in Miller whether a juvenile who has been convicted of multiple murders and attempted murders, as in this case, may be sentenced to an aggregate consecutive sentence that is the equivalent of life without the possibility of parole.  This case thus poses a different issue from the issue in Miller.  Beyond that, we conclude that the facts in this case, coupled with the sentencing court’s findings, bring petitioner within the narrow class of juveniles who, as Miller recognized, may be sentenced to life without the possibility of parole.

May 10, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Wednesday, May 09, 2018

Detailed review of Illinois juve offenders serving just barely "less than life"

Less-than-life-featureThe Chicago Sun-Times has published this extensive look by Injustice Watch at how the Illinois has sentenced (and largely failed to resentence) a set of juvenile offenders serving extreme long prison sentences . The full lengthy title of this piece sets forth its essential elements: "Less than life: Across the country, juvenile offenders are being released from prison based on recognition that human brains continue to develop for the first two and a half decades of life.  Nevertheless in Illinois, many who commit crimes as teenagers are likely destined to die in custody."  Here is an excerpt:

In Illinois, it is rare for juveniles who did not receive automatic life prison terms to win new chances at sentencing, leaving most of those with long sentences to languish in prison for decades, an Injustice Watch review found.

A review of custody data from the Illinois Department of Corrections revealed that, as of last December, at least 167 current inmates were arrested for crimes as juveniles and are set to serve 50 years or more in prison without parole eligibility, leaving them likely to die in custody but not eligible for resentencing under the dictates of Miller. (It is not possible to know the exact number of young offenders serving long sentences at the Illinois Department of Corrections because the agency does not specifically keep track of that information.)

The imposition of long sentences is especially harsh in Illinois, a state which does not afford parole to most prisoners and which requires offenders convicted of murder to serve 100 percent of their punishment, with no chance of early release based on factors like good conduct or rehabilitation. Such sentences almost certainly lead these inmates to either spend the rest of their lives incarcerated or be released with precious little life left.

Research indicates that incarceration has a jarring effect on life expectancy. In studying a group of inmates released from New York state correctional facilities over a 10-year period, Vanderbilt University Professor Evelyn Patterson found that the former prisoners could expect to shave two years off of their average life expectancy for every one year of incarceration. Furthermore, Patterson found, undoing the negative effect on longevity takes time. It took former inmates two-thirds of the time spent in custody back on the outside to recover from the harm of incarceration on life expectancy. The United States Sentencing Commission considers a 39-year prison sentence the equivalent of life.

Because Illinois almost entirely abolished parole in 1978, these juvenile offenders do not get the same chance to show rehabilitation and change that they might get in other states. About a third of states do not currently employ the traditional practice of parole for newly convicted inmates, according to a report published by the University of Minnesota’s Robina Institute of Criminal Law and Criminal Justice, but Illinois is one of three states nationwide that stopped utilizing parole four decades ago, making it nearly non-existent for the current prison population.

The approximately 80 juvenile offenders in Illinois who became eligible to have their sentences reconsidered [after Miller] all were convicted of killing more than one person — Illinois law mandates life for anyone convicted of multiple murders. By contrast, Illinois state appellate judges have mostly declined to find that the cases of other violent youthful offenders ... fall under the protections outlined in Miller.

There is no national legal standard on how many years is too many for a juvenile to serve. Courts across the country have differed on the issue, creating varied standards on what length of a prison term can legally be considered a life sentence. “Getting rid of formal life without parole was the tip of the iceberg,” said Marsha Levick, deputy director and chief counsel for the Pennsylvania-based Juvenile Law Center, which has advocated for lesser sentences for juveniles convicted of crimes.

Across the country, about a dozen states have passed laws requiring that young defendants sentenced to long prison terms get a chance at parole. Legislators in Illinois have proposed a bill that would give periodic parole opportunities to newly convicted young offenders; so far those efforts have stalled.

May 9, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, April 25, 2018

New Jersey Supreme Court finds unconstitutional requiring juveniles to be subject to lifetime sex-offender registration

The Supreme Court of New Jersey yesterday handed down a lengthy unanimous opinion in Interest of C.K., No. A-15-16 (N.J. April 24, 2018) (available here) declaring that the state's sex-offender registry law is unconstitutional as applied to some juvenile offenders. Here is how the opinion begins:

Juveniles adjudicated delinquent of certain sex offenses are barred for life from seeking relief from the registration and community notification provisions of Megan’s Law. N.J.S.A. 2C:7-1 to -11, -19; N.J.S.A. 2C:7-2(g).  That categorical lifetime bar cannot be lifted, even when the juvenile becomes an adult and poses no public safety risk, is fully rehabilitated, and is a fully productive member of society.  Defendant C.K. was adjudicated delinquent for sex offenses committed more than two decades ago and now challenges the constitutionality of N.J.S.A. 2C:7-2(g)’s permanent lifetime registration and notification requirements as applied to juveniles.

Subsection (f) of N.J.S.A. 2C:7-2 subjects all sex offenders, including juveniles, to presumptive lifetime registration and notification requirements.  Unlike subsection (g), however, subsection (f) allows a registrant to seek relief from those requirements fifteen years after his juvenile adjudication, provided he has been offense-free and is “not likely to pose a threat to the safety of others.”  Subsection (g) imposes an irrebuttable presumption that juveniles, such as defendant, are irredeemable, even when they no longer pose a public safety risk and are fully rehabilitated.

The record in this case reveals what is commonly known about juveniles -- that their emotional, mental, and judgmental capacities are still developing and that their immaturity makes them more susceptible to act impulsively and rashly without consideration of the long-term consequences of their conduct.  See State v. Zuber, 227 N.J. 422 (2017).  The record also supports the conclusion that juveniles adjudicated delinquent of committing sex offenses, such as C.K., who have been offense-free for many years and assessed not likely to reoffend, pose little risk to the public. Indeed, categorical lifetime notification and registration requirements may impede a juvenile’s rehabilitative efforts and stunt his ability to become a healthy and integrated adult member of society.

We conclude that subsection (g)’s lifetime registration and notification requirements as applied to juveniles violate the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution. Permanently barring juveniles who have committed certain sex offenses from petitioning for relief from the Megan’s Law requirements bears no rational relationship to a legitimate governmental objective.  In the absence of subsection (g), N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period.

Defendant may apply for termination from the Megan’s Law requirements fifteen years from the date of his juvenile adjudication, and be relieved of those requirements provided he meets the standards set forth in N.J.S.A. 2C:7-2(f).

April 25, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Sunday, April 15, 2018

Interesting intricate ruling from Wyoming Supreme Court about limits on extreme aggregate sentences for juve murderers

For whatever reason, the last few months have brought a number of big notable opinions from an array of courts concerning the reach and application of the Supreme Court's Eighth Amendment jurisprudence limiting severe sentences for juvenile offenders. See examples here and here and here and here from the Third Circuit, the District of Connecticut, and the Iowa Supreme Court and the Georgia Supreme Court. 

The latest (and perhaps longest) such opinion was handed down on Friday by the Wyoming Supreme Court in Davis v. Wyoming, 2018 WY 40 (April 13, 2018) (available here).  The majority opinion in Davis covers an array of substantive and procedural issues, and it start and ending provide a flavor of its work:

In 1982, when Donald Clyde Davis was seventeen years old, he and a friend picked up a hitchhiker, robbed, and then murdered him.  Mr. Davis pled guilty to first degree murder, felony murder, and aggravated robbery. He was sentenced to life imprisonment with a consecutive twenty-to-fifty-year sentence for aggravated robbery.  Following the decisions of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Montgomery v. Louisiana, U.S. , 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo. 2013) (Bear Cloud II), and the Wyoming Legislature’s amendment to Wyo. Stat. Ann. § 6-10-301(c), after serving over thirty-three years, Mr. Davis was granted parole from his life sentence, began serving his consecutive twenty-to-fifty-year sentence, and received a new individualized sentencing hearing.  After the hearing, the district court declined to modify his original sentence.  Mr. Davis appeals and raises a number of issues regarding his sentence. We will reverse and remand with instructions to conduct a new individualized sentencing hearing....

We find that the district court abused its discretion by weighing Mr. Davis’ youth as an aggravating instead of mitigating factor; considering the nature of the crime to only a limited extent and failing to consider the participation and potential peer pressure of Mr. Davis’ codefendant; placing undue significance on dated psychological evaluations; concluding that he was not capable of rehabilitation without the benefit of expert testimony concerning Mr. Davis’s potential for rehabilitation, and by considering Mr. Davis’ disciplinary record in prison without taking into account the fact that for the majority of his incarceration he had no hope of release, and without weighing his accomplishments and personal growth while in the penitentiary.  The district court’s failure to consider Mr. Davis’ family and home environment and whether he might have been convicted of a lesser offense but for incompetencies associated with youth, without providing an explanation for omitting analysis of those factors, also constituted an abuse of discretion. Finally, the district court abused its discretion by failing to make a finding of permanent incorrigibility based upon its analysis of all the Miller factors.  When the Miller factors are not properly considered and weighed and when there is no finding of permanent incorrigibility, or when a finding of permanent incorrigibility is not supported by the Miller factors, the resulting sentence violates the Eighth Amendment.

Accordingly, we reverse.  At the time of the hearing and the district court’s decision, the parties and the district court did not have the advantage of our rulings concerning the procedure, burdens, and potentially relevant evidence for a Miller determination, contained here.  Consequently, remand for an additional sentencing hearing and resentencing is appropriate.  On remand, the sentencing court should approach the case with the understanding that, more likely than not, life without parole is a disproportionate sentence for Mr. Davis, and it should consider the Miller factors and decide whether he is the truly rare individual mentioned in Miller who is incapable of reform.

The dissent opinion in Davis likewise covers lots of group, but its start spotlights an issue that I suspect will be setting US Supreme Court attention relatively soon:

As I observed in Sam v. State, 2017 WY 98, ¶ 88, 401 P.3d 834, 862 (Wyo. 2017), reh’g denied, and Sen v. State, 2017 WY 30, ¶¶ 36-37, 390 P.3d, 769, 779 (Wyo. 2017) (Sen III), the United States Supreme Court has not prohibited consecutive sentences for juveniles who commit multiple crimes including murder.  The U.S. Supreme Court never found such sentences to be “the functional equivalent of life without parole.”  I continue to disagree with the concept of “de facto life without parole” arising from consecutive sentences for separate crimes.  In my opinion, the U.S. Supreme Court established a process to assure that a juvenile offender’s age, immaturity and potential for improvement are considered in sentencing.  Unfortunately, some courts, including this one, have focused on the result of the sentencing, rather than on the process.

I recognize some states have concluded that Miller, Graham and Montgomery point to a conclusion that lengthy consecutive sentences for juveniles, when aggregated, are the same as a single sentence of life without parole.  Other states have not done so.  I find the better logic supports those states who have not expanded the holdings in Miller, Graham and Montgomery.  Within the past year, Missouri, Colorado and Pennsylvania have all determined that Miller and Montgomery do not apply to the aggregation of consecutive term of years sentences for multiple crimes committed by a defendant under the age of 18.

April 15, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Tuesday, April 10, 2018

Federal district judge finds Michigan's elimination of good-time credit in Miller fix unconstitutional

As reported in this local article, a "federal judge has ruled a Michigan law violates the constitution by not allowing juvenile lifers to earn good-time and disciplinary credits while in prison." Here is more: 

Following [the Supreme Court's ruling in Miller], the state put into law the ability to sentence child killers to a number of years with a chance of parole. Because that law does not allow those offenders to earn good-time credits, Goldsmith ruled it is unconstitutional and ordered the state calculate good-time and disciplinary credits for those who have already been re-sentenced under that law within 14 days.

“Today’s ruling is a tremendous victory for fairness in our criminal justice system,” Dan Korobkin, ACLU of Michigan Deputy Legal Director and one of the plaintiffs’ attorneys said in a statement. “Hundreds of youth who were serving unconstitutional life sentences will now benefit from good-time credits they earned in prison for good behavior, credits that were taken away from them by mean-spirited retroactive legislation in 2014.”

There are more than 360 people in the system who were children at the time of their crimes, including four from St. Clair County: Jimmy Porter, Raymond Carp, Michael Hills and Tia Skinner. “Restoring these credits to individuals who earned them will likely save the state millions of dollars, and will give deserving individuals a chance to reunite with their families when they no longer pose a threat to society,” Korobkin said.

The full ruling in Hill v. Snyder, No. 10-cv-14568 (April 9, 2018), is available at this link. Here is how it begins:

The United States Supreme Court has ruled that juveniles convicted of first-degree murder cannot be subject to mandatory life sentences without parole.  Because of their lesser culpability and greater capacity to change, they must be sentenced under a process that gives them an individualized opportunity to present mitigating circumstances to avert such a harsh sentence.  In response, the Michigan legislature enacted legislation that purported to comply with the Court’s ruling, which included the possibility of being resentenced to prison for a term of years.  However, the legislature provided that in calculating any such sentence, the youth offenders were not to receive any credit -- known as good time or disciplinary credit -- even though such credits were earned while the youth offenders served their illegally imposed sentences.  In that respect, the legislative response ran afoul of our Constitution’s ban on ex post facto laws -- the constitutional guarantee that laws may not retroactively criminalize conduct or enhance the punishment for criminal acts already perpetrated.  For this reason, the Court must declare that provision of the statute unconstitutional and order that the youth offenders receive the credit that they have previously earned.

April 10, 2018 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (8)

Monday, April 09, 2018

Big Third Circuit panel ruling asserts age of retirement should be central to applying Eighth Amendment limits on long juvenile sentences

The Third Circuit today handed down a huge ruling today in US v. Grant, No. 16-3820 (3d CIr. April 9, 2018) (available here), to address the application of Eighth Amendment limits on juvenile sentences.  The panel opinion runs nearly 50 pages (followed by a 10+ page partial dissent), but these paragraph sets up the context and part of the heart of the opinion (with emphasis in original):

This case presents several difficult challenges for this Court. It calls upon us to decide a novel issue of constitutional law: whether the Eighth Amendment prohibits a term-of-years sentence for the duration of a juvenile homicide offender’s life expectancy (i.e., “de facto LWOP”) when the defendant’s “crimes reflect transient immaturity [and not] . . . irreparable corruption.” Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016). Next, if we find that it does, then we must decide what framework will properly effectuate the Supreme Court’s determination that the Eighth Amendment affords nonincorrigible juvenile offenders a right to a meaningful opportunity for release. Furthermore, we must take great pains throughout our discussion to account for the substantive distinction that the Supreme Court has made between incorrigible and non-incorrigible juvenile offenders in order to ensure that the latter is not subjected to “a punishment that the law cannot impose upon [them].” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004)).

Our decision today therefore represents an incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders....

[W]hat is clear is that society accepts the age of retirement as a transitional life stage where an individual permanently leaves the work force after having contributed to society over the course of his or her working life.  See, e.g., Retirement, BLACK’S LAW DICTIONARY (10th ed. 2014) (“Termination of one’s own employment or career, esp. upon reaching a certain age . . . .”). It is indisputable that retirement is widely acknowledged as an earned inflection point in one’s life, marking the simultaneous end of a career that contributed to society in some capacity and the birth of an opportunity for the retiree to attend to other endeavors in life.

As we stated above, a non-incorrigible juvenile offender is not guaranteed an opportunity to live a meaningful life, and certainly not to a meaningful retirement.  Nevertheless, in order to effectuate the Eighth Amendment’s requirement of meaningful opportunity for release, a juvenile offender that is found to be capable of reform should presumptively be afforded an opportunity for release at some point before the age of retirement.  Cf. Graham, 560 U.S. at 58 (“To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.” (internal quotation marks omitted) (quoting Estelle, 429 U.S. at 102)).  A sentence that preserves the juvenile offender’s opportunity to contribute productively to society inherently provides him or her with “hope” to “reconcil[e] with society” and achieve “fulfillment outside prison walls.” Id. at 79.  It also accounts for the Court’s trepidation that LWOP sentences deprive non-incorrigible juvenile offenders of vocational training opportunities, which presumably otherwise prepare them to become productive members of society’s working class.  See id. at 74.

Accordingly, lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform.  Critically, under all circumstances, lower courts must only consider the uniform national age of retirement.  Otherwise, estimates of retirement ages that account for locality, state, gender, race, wealth or other differentiating characteristics raise similar constitutional concerns to those plagued by reliance on life-expectancy tables alone. Without fixing the age of retirement to a uniform standard, classes of juvenile defendants that retire on average later in life would unreasonably be subjected to longer sentences.  Cf. Mathurin, 868 F.3d at 932 (sentencing juveniles based solely on mortality tables “would unquestionably lead to challenges from defendants from longer-living ethnic groups who would be subject to longer sentences based on that ethnicity”).

Because I am on the road today, I may not be able to review and further comment on this big opinion for some time. But I surmise there is a whole to worth discussing in this opinion, and I hope commentors might share a range of thoughts about it.

April 9, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Sunday, April 01, 2018

"The Intersection between Young Adult Sentencing and Mass Incarceration"

The title of this post is the title of this notable new article authored by Josh Gupta-Kagan available on SSRN. Here is its abstract:

This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system more leniently than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in depth connections between the two.

Connecting the two bodies of literature helps identify and strengthen arguments for reform. First, changing charging, detention, and sentencing practices for young adults is one important tool to reduce mass incarceration. Young adults commit a disproportionate number of crimes. Because so many offenders are young adults, treating young adults less severely could have significant impacts on the number of individuals incarcerated.

Second, focusing on young adults responds to retributive arguments in defense of existing sentencing policies, especially for violent offenses. The mass incarceration literature shows that sentences for violent offenses explain much, if not most, of recent decades’ prison growth. Young adult violent offenders deserve punishment, but their youth mitigates their culpability and thus offers a response to retributive calls for long sentences.

Third, considering mass incarceration can add both urgency and new ideas to the growing debate about reforming sentencing of young adults. Such reforms have thus far been tentative, following well-grounded desires to test different alternative interventions for young adults. The mass incarceration literature adds an important consideration – the status quo demands prompt and far-reaching reform – and new ideas, such as prosecutorial charging guidelines that encompass defendants’ age.

April 1, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, March 30, 2018

US District Judge concludes Miller applies to 18-year-old murderer to find his mandatory LWOP sentence violates the Eighth Amendment

I just saw this fascinating federal ruling handed down yesterday by US District Judge Janet C. Hall, the Chief Judge of the US District Court for the District of Connecticut, in Cruz v. US, No. 11-CV-787 (D. Conn. March 29, 2018) (available here). The ruling runs 50+ pages, so I will need to read it carefully before opining about it at length. But these excerpts from the start art end of the opinion should reveal why it is worth attention:

Cruz turned 18 on December 25, 1993. On May 14, 1994, when Cruz was 18 years and 20 weeks old, Cruz and another member of the Latin Kings, Alexis Antuna, were given a mission by gang leader Richard Morales. See United States v. Diaz, 176 F.3d 52, 84 (2d Cir. 1999). The mission was to kill Arosmo “Rara” Diaz. See id. Carrying out that mission, Cruz and Antuna shot and killed Diaz and his friend, Tyler White, who happened to be with Diaz at the time. See id. Cruz testified at the hearing before this court that he now admits to committing both murders. See Cruz Tr. at 27. He further testified that Antuna informed him at the time that the leaders of the Latin Kings were debating what would happen to him as a result of his attempt to leave the gang. See id. at 19. According to his testimony, Cruz believed that, if he did not carry out the mission, he himself would be killed. See id....

[W]hen the Roper Court drew the line at age 18 in 2005, the Court did not have before it the record of scientific evidence about late adolescence that is now before this court.

Thus, relying on both the scientific evidence and the societal evidence of national consensus, the court concludes that the hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds.  As such, the penological rationales for imposing mandatory life imprisonment without the possibility of parole cannot be used as justification when applied to an 18-year-old.

The court therefore holds that Miller applies to 18-year-olds and thus that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole” for offenders who were 18 years old at the time of their crimes.  See Miller, 567 U.S. at 479.  As applied to 18-year-olds as well as to juveniles, “[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” See id.  As with Miller, this Ruling does not foreclose a court’s ability to sentence an 18-year-old to life imprisonment without parole, but requires the sentencer to take into account how adolescents, including late adolescents, “are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” See id. at 480.

I think it a near certainty that the feds will appeal this consequential ruling to the Second Circuit and it will be interesting to watch how that court approaches this issue. And, in all likelihood, whatever the outcome in the Second Circuit, a cert petition would follow. So, stay tuned.

March 30, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Saturday, March 10, 2018

Iowa Supreme Court issues latest major ruling on juve sentencing limits and process after Miller

As reported in this local article, the "Iowa Supreme Court on Friday offered guidance to judges for interpreting a 2015 law that lays out sentencing guidelines for juveniles convicted of murder."  Here is more from the press report about the latest in a series of rulings following up on the US Supreme Court's juve sentencing jurisprudence:

Some justices also signaled in concurring opinions that they believe rigid sentences for other crimes committed by juveniles should eventually be rolled back.

The court ruled Friday in a murder case in which Rene Zarate stabbed Jorge Ramos to death in 1999, when Zarate was 15.  Zarate, now 34, originally received a mandatory sentence of life without parole, but requested a resentencing hearing after a 2012 U.S. Supreme Court ruling prohibited such sentences for juveniles.  His new sentence makes him eligible for parole after 25 years, with credit for time served.

Zarate challenged his sentence as well as the constitutionality of a 2015 Iowa law that revised how juveniles who commit first-degree murder are sentenced. Under the law, the sentencing judge could choose from a variety of options including life without the possibility of parole, life with parole after a certain amount of the sentence is served, and life with the immediate possibility of parole.  The law further outlined 25 factors for the court to take into consideration when sentencing juveniles for murder.

In 2016, after that law was passed, the Iowa Supreme Court found that life sentences without parole are unconstitutional for juveniles.  But Friday's ruling was the first time the Iowa Supreme Court addressed the new law. A majority of justices said Friday that the guidelines laid out in the law are constitutional — except for the subsection that allowed for life sentences without parole....

They said judges must give juvenile offenders an individualized hearing taking the circumstances of the case into account, and must consider as mitigating factors things such as the offender's age at the time of the crime, family and home environment and the possibility for rehabilitation and change. But the district court judge who re-sentenced Zarate did so based on his belief that anyone that anyone who takes the life of another individual should spend a certain amount of time in prison, according to the opinion joined by four of the seven justices. "The sentencing judge allowed the nature of Zarate’s offense to taint his analysis by imposing a mandatory minimum sentence of imprisonment due to his belief that there should be a minimum term of imprisonment for anyone who commits murder, regardless of their age at the time of the offense," Justice Bruce Zager wrote in the majority opinion....

The court's remaining three justices issued separate concurrences urging the court to go further in striking down mandatory minimums for juveniles as unconstitutional. Justice Brent Appel, who authored the court's earlier opinion against life sentences without parole for juveniles, said it's time to re-examine the constitutionality of all mandatory minimum sentences for minors who commit crimes. "Instead of imposing mandatory minimums through an unreliable judicial guess, the constitutionally sound approach is to abolish mandatory minimum sentences on children and allow the parole board to make periodic judgments as to whether a child offender has demonstrated maturity and rehabilitation based on an observable track record," Appel wrote in his concurrence.

Justice Daryl Hecht, writing a concurrence joined by Justice David Wiggins, wrote that he believes mandatory minimums for juveniles are categorically prohibited by the Iowa Constitution. "Whether imposed by legislative mandate or by a sentencing court, the constitutional infirmity of mandatory minimum sentences for juvenile offenders is the same in my view," Hecht wrote.

The full opinion in Iowa v. Zarate, No. 15-2203 (Iowa Mar. 9, 2018), which rests much of its constitutional analysis on the Iowa Constitution's prohibition against cruel and unusual punishment (rather than the US Constitution's Eighth Amendment), is available at this link.

March 10, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, February 25, 2018

What a difference a DA can make: new Philly District Attorney taking new approach to juve lifer resentencings

This recent local article, headlined "Why Philly DA Krasner could let 180+ juvenile lifers out of prison early," reports on the impact the recently elected Philadelphia prosecutor is having local cases demanding resentencing in the wake of the Supreme Court's Eighth Amendment ruling in Miller. Here are the details:

Philadelphia has sentenced more teens to life in prison with no chance of parole than any other jurisdiction in the world — and that meant it had the largest number to resentence after the U.S. Supreme Court two years ago ruled that its 2012 ban on mandatory life-without-parole sentences for minors must be applied retroactively.

As of this week, 127 out of approximately 315 juvenile lifers from Philadelphia have been resentenced. For those whose cases are still in process, the election of District Attorney Larry Krasner appears to have immediately and dramatically changed the outlook.

It means new deals are already on the table for 17 who had rejected offers made under the previous District Attorney’s Office, which mostly stuck close to current state sentencing guidelines that set minimums at 35 years to life for first-degree murder and 30 to life for second-degree murder. The latest offers make all but two of the lifers eligible for parole right away; it would also keep them all on parole for life. Some set minimums as low as 21 years for first-degree murder.

As for the remaining resentencings, Krasner said he intends to consider each case individually. Rather than relying on the sentencing guidelines, he said he would look to the historical, national and international context that has made Pennsylvania second in the nation in imposing life-without-parole sentences. “We are being consistent as we do our duty, which is to consider all these unique factors in resentencing,” he said. “It’s worth bearing in mind that Pennsylvania is an extreme outlier in excessive sentencing, and the United States is an extreme outlier in excessive sentencing.”

What’s unclear, however, is whether a Philadelphia judge will sign off on those agreements. At a recent status hearing, Common Pleas Judge Kathryn Streeter-Lewis, who is in charge of approving agreements in juvenile-lifer cases, asked the district attorney to submit briefs defending the deals’ legality in light of precedent-setting rulings by Pennsylvania’s appellate courts in the case of Qu’eed Batts, an Easton man who was 14 when he participated in a gang-related execution. In his case, the court acknowledged each judge has discretion to craft individualized minimum sentences, but said “sentencing courts should be guided” by current state law. “I understand that there is a different administration,” she said, but added, “Some of these [offers] are very much below the guidelines the decision required. … I’m going to need some reasons.”

One such case involved Avery Talmadge, who’s been locked up 22 years and was offered a time-served deal that — in a departure from past practice for the District Attorney’s Office — contemplates whether the original conviction was even appropriate. “The case was a street fight that turned into a shooting,” Assistant District Attorney Chesley Lightsey told Streeter-Lewis. “The [DAO’s internal resentencing] committee believes this is closer to a third-degree, though it was a first-degree conviction.” She said he also had an excellent prison record, reflecting the Supreme Court’s underlying rationale that kids, while impulsive and immature, also have a great capacity for rehabilitation.

Bradley Bridge of the Defender Association, which represents many of the lifers, believes the new offers will withstand judicial scrutiny — and that of the public. Krasner, he said, “sees the dangers of overincarceration and has come up with a meaningful solution.  He has reevaluated offers and, consistent with the protection of the public, has recognized that new offers can take into account to a more significant degree the juvenile’s growth while in prison.”...

Krasner said offers he’s approved so far have included minimums ranging between 40 years and just under 20 years.  He declined to specify a floor for minimum sentences. “I see no arbitrary number. We are approaching this the way the Anglo-American court system has approached these for centuries: on a case-by-case basis.”

February 25, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Thursday, February 22, 2018

Florida Supreme Court finds that state's Miller fix statute to death with Eighth Amendment problems has Alleyne Sixth Amendment problem

The Florida Supreme Court issues an interesting ruling today dealing with juvenile sentencing in Williams v. Florida, No. SC17-506 (Fla. Feb 22, 2018) (available here). Here are the basics from the start of the ruling: 

This case is before the Court for review of the decision of the Fifth District Court of Appeal in Williams v. State (Williams II), 211 So. 3d 1070 (Fla. 5th DCA 2017).  In its decision, the Fifth District ruled upon the following question certified to be of great public importance:

DOES ALLEYNE V. UNITED STATES, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), REQUIRE THE JURY AND NOT THE TRIAL COURT TO MAKE THE FACTUAL FINDING UNDER SECTION 775.082(1)(b), FLORIDA STATUTES (2016), AS TO WHETHER A JUVENILE OFFENDER ACTUALLY KILLED, INTENDED TO KILL, OR ATTEMPTED TO KILL THE VICTIM?

Id. at 1073. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we hold that Alleyne requires a jury to make the factual finding, but conclude that Alleyne violations are subject to harmless error review. Where the error cannot be deemed harmless, the proper remedy is to resentence the juvenile offender pursuant to section 775.082(1)(b)2., Florida Statutes (2016).

As the opinion goes on to explain, the statute here was passed when Florida had to comply with the Supreme Court's Eighth Amendment Miller ruling precluding mandatory LWOP sentences for juvenile murderers.  The statute provides that a finding that "a juvenile offender actually killed, intended to kill, or attempted to kill the victim leads to a minimum forty-year sentence with a sentence review after twenty-five years — whereas a finding that the offender did not actually kill, intend to kill, or attempt to kill the victim results in there being no minimum sentence and a sentence review after fifteen years."

The Florida Supreme Court was unanimous here in concluding that this statute has to comply with Alleyne's Sixth Amendment ruling that jury trial rights extend to any fact that raises a binding minimum sentence.  Hard-core sentencing proceduralists might still want to check out the Court's discussion, especially because there is an interesting partial dissent that starts this way:

I agree with the majority that under Alleyne v. United States, 570 U.S. 99 (2013), the factual findings provided for in section 775.082(1)(b), Florida Statutes (2016), must be made by the jury and that the absence of such jury findings in this case requires reversal of the sentence imposed under section 775.082(1)(b)1. and resentencing in the trial court.  But I dissent from the majority’s direction regarding the remand, which requires imposition of the less severe sanction available under the statute.  Because the issue of the remedy on remand has not been briefed in this case, I would simply direct remand for resentencing rather than preclude jury proceedings that might result in imposition of the more severe sentence under the statute.

February 22, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Sunday, February 18, 2018

Is Henry Montgomery of Montgomery v. Louisiana perhaps on the verge of a parole grant? UPDATE: NO by 2-1 vote by parole board

The question in the title of this post is prompted by this new commentary by Jody Kent Lavy, executive director of the Campaign for the Fair Sentencing of Youth, who write about a high-profile defendant soon to be considered for parole at age 71. Here are excerpts:

Henry Montgomery has been incarcerated in Louisiana prisons since he was 17 years old, and today he is 71.   He was sentenced to life without the possibility of parole when he was only a child, for the impulsive shooting of a sheriff's deputy decades ago.

As a result, he has missed a lifetime’s worth of events, learning, and relationships.  The United States Supreme Court ruled two years ago in his case, Montgomery v. Louisiana, that it is unconstitutional to impose a life-without-parole sentence on the vast majority of youth — a sentence the United States alone imposes on its children.  Still, Montgomery remains incarcerated, and will finally see the parole board just days from now....

And although Montgomery’s case has become emblematic of the fight to end the brutal practice of sentencing children to life without parole (and to other extreme sentences), Montgomery is not yet free.  Prosecutors in Louisiana are fighting his freedom, despite the U.S. Supreme Court ruling his sentence unconstitutional, along with such sentences for all youth whose crimes reflect “transient immaturity” rather than “irreparable corruption” — a trait I cannot imagine any child possessing, given where they are developmentally.  But it certainly isn’t true of Montgomery, whom I was fortunate to meet last year.  He is a soft-spoken, gentle man who has tried to make the most of his time in prison by coaching boxing, silk-screening, and serving as a mentor.

While Montgomery and his supporters look forward to his hearing Monday, there is a sea change afoot, just about everywhere but Louisiana, where prosecutors are seeking to reimpose life-without-parole sentences on approximately one-third of those given relief by Montgomery.  Meanwhile, in the rest of the country, hundreds of individuals like Henry Montgomery have come home over the past two years because of the court’s ruling and over a thousand have been resentenced to lesser terms.  States across the nation are abandoning life without parole at a remarkable rate.  And the sky has not fallen.

Few of us make decisions today like we did when we were 15, 16, or 17.  Our brains, not just our bodies, matured.  A growing number of courts, legislatures, prosecutors, and parole boards understand this.  And still, Montgomery — a gentle man, guilty of a crime for which he deserved to be held accountable in ways which reflected his age and life experiences — sits in prison.

UPDATE: This local article, headlined "Board denies parole to man who served 50 plus years after killing deputy when he was juvenile," reports the results of Henry Montgomery's parole hearing this morning. It starts this way:

The Louisiana parole board on Monday morning denied freedom to 71-year-old Henry Montgomery, whose case was central in a Supreme Court decision about juvenile offenders sentenced to life in prison without parole.

The three-member Louisiana Board of Pardons and Committee on Parole voted 2 to 1 to deny parole to Montgomery, who was convicted of first-degree murder in the 1963 shooting of an East Baton Rouge Sheriff's deputy.

"This is a parole hearing, it's not a sentencing hearing," said James Kuhn, the chairman of the parole panel. "I don't know what the victim would want, but he's a law enforcement officer. ... One of the things that society demands is that everyone abide by the rule of law and when you don't, there are consequences."

Kuhn and parole board member Kenneth Loftin, who both voted against Montgomery's parole, primarily cited the fact that Montgomery only completed two classes during his 54 years in prison.

However, Montgomery's lawyer, Keith Nordyke, argued that his client had received a waiver saying he could not complete his GED, and many classes were not available to inmates serving life during the first few decades of his time in prison.

February 18, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7)

Tuesday, February 13, 2018

Retired Missouri judge now expressing regret about giving 16-year-old offender 241 years in prison for role in two armed robberies

Evelyn Baker, a retired Missouri circuit court judge, has this notable new opinion piece in the Washington Post under the headline "I sentenced a teen to die in prison. I regret it." Here are excerpts:

“You will die in the Department of Corrections.” Those are the words I spoke as a trial judge in 1997 when I sentenced Bobby Bostic to a total of 241 years in prison for his role in two armed robberies he committed when he was just 16 years old.

Bostic and an 18-year-old friend robbed a group of six people who were delivering Christmas presents to a needy family in St. Louis.  Two shots were fired.  A bullet grazed one person, but no one was seriously injured.  The two then abducted and robbed another woman — who said she was groped by Bostic’s accomplice before the two released her. They used the money they stole from her to buy marijuana.  Despite overwhelming evidence against him, Bostic chose to go to trial.  He was found guilty.

Bostic had written me a letter trying to explain his actions, but despite this, he had not, in my view, demonstrated sufficient remorse.

I told him: “You are the biggest fool who has ever stood in front of this court. . . . You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice. . . . Your mandatory date to go in front of the parole board will be the year 2201.  Nobody in this room is going to be alive in the year 2201.”

I thought I was faulting Bostic for his crimes.  Looking back, I see that I was punishing him both for what he did and for his immaturity.  I am now retired, and I deeply regret what I did.  Scientists have discovered so much about brain development in the more than 20 years since I sentenced Bostic.  What I learned too late is that young people’s brains are not static; they are in the process of maturing.  Kids his age are unable to assess risks and consequences like an adult would.  Overwhelming scientific research shows that children lack maturity and a sense of responsibility compared with adults because they are still growing.  But for the same reason, they also have greater capacity for reform.

That’s perhaps not surprising.  As a society, we recognize that children and teens cannot and do not function as adults.  That’s why below a certain age you cannot vote, join the military, serve on a jury or buy cigarettes or alcohol....

Most courts have understood the Supreme Court’s 2010 decision to mean that the Constitution prohibits sentences like the one I gave to Bostic.  While I did not technically give him “life without parole,” I placed on his shoulders a prison term of so many years combined that there is no way he will ever be considered for release.  He won’t become eligible for parole until he is 112 years old — which means he will die in prison, regardless of whether he rehabilitates himself or changes as he grows older.

I see now that this kind of sentence is as benighted as it is unjust.  But Missouri and a handful of other states still allow such sentences, and the Missouri courts have affirmed the sentence I handed down.

This week, the Supreme Court will consider whether to take Bostic’s case and, if the justices do, they will decide whether his sentence is an outcome the Constitution can countenance.  The court should take the case and give Bostic the chance I did not: to show that he has changed and does not deserve to die in prison for something he did when he was just 16.

Imposing a life sentence without parole on a child who has not committed murder — whether imposed in a single sentence or multiple sentences, for one crime or many — is wrong.  Bostic was immature, and I punished him for that.  But to put him, and children like him, in prison for life without any chance of release, no matter how they develop over time, is unfair, unjust and, under the Supreme Court’s 2010 decision, unconstitutional.

I am pleased to see a judge who imposed a functional LWOP sentence now recognizing and advocating that functional LWOP sentences create the same constitutional concerns as formal LWOP sentences that the Supreme Court found to violate the Eighth Amendment in Graham.  That said, I find it a little rich this judge now asserting that she "learned too late" that juvenile brains are different than adult brains.  Also, as the judge's commentary hints and as this local article from a few years ago about the case confirms, it seems Bostic's decision to go to trial rather than his crimes largely accounts for his need now to seek constitutional relief from the Supreme Court:

Bostic is serving a vastly greater sentence than Hutson, his accomplice, who received 30 years and will be eligible for parole six years from now.

Both men were accused of firing guns that night. The only difference: Bostic went to trial and Hutson pleaded guilty.

February 13, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Monday, February 05, 2018

Georgia Supreme Court refuses to extend Miller Eighth Amendment limits on juve sentencing to non-LWOP sentences

A helpful colleague made sure I saw the new short ruling on juvenile sentencing limits handed down by the Supreme Court of Georgia today in Veal v. Georgia, No. S17A1758 (Ga. Feb. 5, 2018) (available here). Here is the meat of the opinion in Veal:

Citing OCGA § 42-9-39(c), appellant notes that the aggregate sentence imposed on him mandates 60 years of prison service before the first opportunity for paroled release.  Given his life expectancy, appellant states that even this new sentence is unconstitutional because it amounts to a de facto LWOP sentence, again without any determination of the factors set forth in Veal I which a court is required to find before imposing an LWOP sentence on a convicted defendant who was younger than 18 at the time of the crime. Appellant asserts that reading the Miller and Montgomery Supreme Court opinions as applying only to actual LWOP sentences elevates form over substance and permits the label of the sentence to supersede the actual result of the imposed sentence.

Appellant acknowledges that he is asking this Court to expand the holdings of the Miller and Montgomery Supreme Court opinions.  As noted by this Court in Veal I, those cases read together create a substantive rule that before an LWOP sentence may be imposed on one who was a juvenile at the time the crime was committed, the sentencing court must conduct a hearing to determine if that person is one of the exceptionally rare juveniles for whom such a sentence is appropriate because of “a specific determination that he is irreparably corrupt.”  Veal I, supra, 298 Ga. at 702.  But neither Miller nor Montgomery addressed the imposition of aggregate life-with-parole sentences for multiple convictions or whether sentences other than LWOP require a specific determination that the sentence is appropriate given the offender’s youth and its attendant characteristics, and the nature of the crimes.  See Miller, supra, at 465.  Appellant points to courts in other jurisdictions that have found Miller-like protections are required for a prison sentence imposed upon a juvenile that exceeds the individual’s life expectancy.  See, e.g., State v. Zuber, 152 A3d 197 (N.J. 2017); State v. Null, 836 NW2d 41 (Iowa 2013) (holding under the Iowa constitution that “an offender sentenced to a lengthy term-ofyears sentence should not be worse off than an offender sentenced to life in prison without parole who has the benefit of an individualized hearing under Miller”).  On the other hand, other state and federal courts have determined that Miller and Montgomery do not apply to cases that do not involve LWOP sentences but nevertheless involve sentences that, according to the convicted juvenile, are the functional equivalent to a life sentence without the opportunity for parole.  See, e.g., Starks v. Easterling, 659 Fed. Appx. 277 (6th Cir. 2016); Bell v. Nogan, 2016 WL 4620369 (D.N.J. Sept. 6, 2016); People v. Sanchez, 2013 WL 3209690 (Cal. Ct. App. June 25, 2013).

Because the Supreme Court has not expanded its mandate that the Eighth Amendment’s prohibition of cruel and unusual punishment as it applies to juvenile offenders requires a sentencer to consider a juvenile’s youth and its attendant characteristics before imposing a sentence other than LWOP, this Court will not do so.  Although appellant mentions “the analogous provision of the Georgia Constitution” in his enumerations of error, he offers no argument or citation of authority whatsoever regarding the application of the Georgia Constitution to the case.  We therefore deem any state constitutional claim abandoned.

February 5, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Examining whether juve life with parole in Maryland really means a real chance at parole

This lengthy new Washington Post article, headlined "The life sentence he got as a teen came with a chance at parole. But is it a real chance?," provides a deep dive into what parole eligibility means these days in one state and highlights why there is sure to be debates and litigation over the Supreme Court's rulings in Graham and Miller for many years to come.  Here are excerpts:

Walter Irving Maddox was on the phone making New Year’s Eve plans when he heard a knock on the door of his secluded cottage steps from the creek where he’d spent decades hauling crabs.  He laid the phone on a bed.  From the other end of the line, his girlfriend heard voices.  Then, sharp banging and doors slamming, followed by groans and gurgling.

The metallic sound, she would soon learn, was neighborhood teenager, James E. Bowie, pummeling 68-year-old Maddox with an aluminum baseball bat.  Bowie was a high school dropout, fueled by drugs and anger.  He never intended to hurt Maddox so severely, just to subdue him while a friend grabbed the waterman’s cash, he said recently.

Maddox, now 90, was never the same. “It just destroyed his memory,” said Maddox’s son, who shares his father’s name. “They took his life away from him, but they didn’t finish the job.”

Bowie was 17. He was sentenced in 1997 to life in prison with the possibility of parole — a possibility his lawyers say exists on paper, but carries no real chance for release.

Maryland is one of three states, with California and Oklahoma, that requires the governor’s signature to parole inmates sentenced to life. In the last two decades, no Maryland governor has signed off on a parole board recommendation to release a lifer like Bowie who committed his crime before he turned 18.  Bowie has spent his 20s and 30s in prison, more time locked up than he was on the outside.

“My life experience stopped at 17,” Bowie, now 40, said in interviews from state prison in Hagerstown, Md., for attempted murder and robbery. “I needed to be punished for what I did and needed to have time to be corrected, but the rest of my life is overkill.  I’m not the same person I was.”

His case is one of four being considered this week by the state’s highest court in Annapolis in a challenge to the legality of the Maryland parole system.  Prison reform advocates say the system is unconstitutional because while the punishment in the cases involving juvenile offenders technically includes parole, the state hasn’t paroled any inmate in that position in more than 20 years.

The office of Attorney General Brian Frosh says Bowie’s sentence is legal and his challenge is premature.  He hasn’t been recommended for parole or formally denied release by any governor. “If they are unhappy with the way parole is implemented, their issue is with the executive branch,” said Frosh’s spokeswoman Raquel Coombs.

The question for the Maryland Court of Appeals is whether a young person can be sentenced to life without what advocates say is any realistic chance of parole. The outcome of the cases could affect an estimated 300 lifers locked up for crimes they committed as juveniles....

“The Supreme Court has been so clear and so forceful about how the landscape has changed,” said Sonia Kumar of the American Civil Liberties Union, an attorney challenging Maryland’s parole system in a separate federal case. “There really isn’t any excuse for why Maryland is still operating the way it is and denying people who were sent to prison as kids any hope of relief no matter how thoroughly they’ve turned their lives around,” she said.

The Maryland attorney general’s office says the fact that parole on life sentences is infrequent and has declined “is not proof of a constitutional violation” but rather “proof, perhaps, of changes in the way that governors and parole commissioners exercise their discretion, but nothing more.”

Inmates with life sentences with the possibility of parole must serve at least 15 years before being considered for release. Parole commissioners, appointed by the governor, review records, notify victims and interview the prisoner before making a recommendation to the governor, who must act within 180 days.  In Bowie’s case, the parole board recommended him for a rehearing after his first review in 2007.  Changes to the system, the attorney general’s office says, must come from the legislature or the governor. But legislation to take the governor — and politics — out of the parole process, proposed again this session, has been stymied for years in part because of opposition from elected state prosecutors.

Between 1969 and 1994, three Maryland governors paroled 181 lifers. As governor, Parris N. Glendening in 1995 said resolutely he would sign no paroles in life-term cases, standing in front of a state prison to announce: “A life sentence means life.” In the following two decades, court records show none were paroled. Governors rejected recommendations on 24 lifers — juveniles and adults — without explanation.

More recently, Gov. Larry Hogan (R) has approved parole for two adult inmates sentenced to life.  Like each governor since Glendening, he also has used separate clemency powers to reduce prison sentences and bring early release for a small number of lifers.  But reform advocates say acts based on prerogative do not fix an unconstitutional life sentence or the parole system.

“Not only is the governor not bound by any standards or forced to consider any particular factors, but the governor is not required in any way to explain his decision,” said James Johnston, director of the Youth Resentencing Project within the Maryland Office of the Public Defender, which has brought dozens of court challenges throughout the state, including Bowie’s.

The three other cases before the appeals court this week involve crimes committed by teenagers who are now serving life and in one case a term of 100 years: a 1989 home invasion in Prince George’s County that resulted in three deaths; a 1999 murder in Baltimore; and a 2004 shooting outside Randallstown High School that paralyzed a student.

February 5, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, January 27, 2018

"Montgomery Momentum: Two Years of Progress since Montgomery v. Louisiana"

Download (6)The title of this post is the title of this short interesting document produced by the Campaign for the Fair Sentencing of Youth. I recommend the whole document, and here are excerpts (with endnotes removed):

On January 25, 2016, the United States Supreme Court decided Montgomery v. Louisiana, giving hope and a chance for life outside of prison to individuals sentenced to life without parole for offenses committed as children.

When the Supreme Court decided Montgomery, over 2,600 individuals in the U.S. were serving juvenile life without parole (JLWOP), a sentence only imposed in the United States. In the two years since Montgomery was decided, seven states and the District of Columbia have banned JLWOP, and the number of individuals serving JLWOP has been cut in half, both through resentencing hearings and state legislative reform.

More than 250 individuals previously serving life without parole for crimes committed as children are now free.  Collectively, they have served thousands of years in prison. These former juvenile lifers now have the chance to contribute meaningfully to their communities....

Henry Montgomery, the petitioner in Montgomery v. Louisiana, remains incarcerated.  The U.S. Supreme Court recognized Mr. Montgomery’s “evolution from a troubled, misguided youth to a model member of the prison community.” Montgomery was resentenced and is now eligible for parole, but because of delays at the parole board and prosecutor opposition, the 71-year-old remains in prison, where he has been since 1963.

Children of color are disproportionately sentenced to life without parole.  When Montgomery was decided, over 70 percent of all individuals serving JLWOP were people of color. These extreme disparities have persisted during the resentencing process following Montgomery, underscoring the racially disparate imposition of JLWOP....

For the approximately 1,300 individuals whose unconstitutional JLWOP sentences have been altered through legislative reform or judicial resentencing to date, the median sentence nationwide is 25 years before parole or release eligibility. This means that most individuals who were unconstitutionally sent to die in prison as children will not be eligible for review or release until at least their 40s. Although Montgomery suggested that providing review after 25 years is an avenue for minimal compliance with Miller, these lengthy sentences continue to violate international human rights standards and far outstrip terms of incarceration for youth in the rest of the developed world.

UPDATE: A helpful tweet led me to think this is a good place to note that the Juvenile Sentencing Project has lots of great juve LWOP/Graham and Miller resources detailing responsive legislation and significant state case law and leading reseach reports.  That Project also helps maintain this great national map that enables one to see how many juve LWOP prisoners were in each state at the time of Miller and now.

January 27, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (5)

Thursday, January 25, 2018

Might some members of SCOTUS want to take up juve sentencing case to limit reach of Graham and Miller?

The question in the title of this post is prompted by this little news item from Wyoming headlined "Wyo asks US Supreme Court to review juvenile murder sentence." Here are the basics:

Wyoming is asking the U.S. Supreme Court to review a Wyoming Supreme Court decision to overturn a minimum 52-year prison sentence for a teen who, as a juvenile, shot and killed a man and injured several others in a Cheyenne park in 2014.

Last August, the Wyoming Supreme Court ordered Phillip Sam re-sentenced, saying his minimum 25-year sentence for first-degree murder followed by a 27-year sentence for aggravated assault effectively constituted a life sentence....

Attorney General Peter Michael argued in his Jan. 4 petition that the practical effect of the state Supreme Court order would be that juveniles could commit additional crimes without additional punishment.

I blogged here about the notable opinion handed down by the Supreme Court of Wyoming in Sam v. Wyoming, No. S-16-0168 (Wy. Aug. 24, 2017) (available here).  I know there have been a lot of opinions from juve offenders looking to extend the reach of Graham and Miller, none of which have yet been granted. I am not sure if there have been many state appeals on Graham and Miller, and I am also not sure if there might be some Justices eager to wade into this arena.

UPDATE:  Coincidentally, SCOTUSblog here has Wyoming v. Sam as its "Petition of the Day."  The full petition sets forth this sole Question Presented:

When a juvenile is sentenced for murder and other violent crimes, does the Eighth Amendment limit a judge to an aggregate term of years that allows a meaningful opportunity for release even though none of the separate sentences are cruel and unusual?

January 25, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Sunday, December 31, 2017

Looking at enduring challenges in Miller's application in Louisiana and elsewhere

This new lengthy AP piece, headlined "Ruling but no resolution on which teen killers merit parole," details the continuing debate in Louisiana and other states over application of the Supreme Court's recent Eighth Amendment jurisprudence on juve LWOP sentences. Here are excerpts:

Nearly two years after the U.S. Supreme Court ruled that prison inmates who killed as teenagers are capable of change and may deserve eventual freedom, the question remains unresolved: Which ones should get a second chance? Now the ruling — which came in the case of a 71-year-old Louisiana inmate still awaiting a parole hearing — is being tested again in that same state, where prosecutors have moved in recent months to keep about 1 in 3 former juvenile offenders locked up for the rest of their lives.

“There is no possible way to square these numbers with the directive of the Supreme Court,” said Jill Pasquarella, supervising attorney with the Louisiana Center for Children’s Rights, which found that district attorneys are seeking to deny parole eligibility to 84 of 255 juvenile life inmates whose cases are up for review.

Some prosecutors countered that the heinousness of some of the crimes makes these inmates the rare teen offenders the court said could still be punished with life behind bars. “In this community, some of the most violent crimes we’ve had have been committed by juveniles,” said Ricky Babin, district attorney for Ascension, Assumption and St. James parishes, who has filed motions seeking new life-without-parole sentences in four of five cases.

The moves by Louisiana prosecutors echo the aggressive approach in Michigan, where district attorneys are seeking to keep two-thirds of 363 juvenile life inmates behind bars for good. That state’s cases have been on hold for months now awaiting a ruling on whether judges or juries should decide them. The friction prompts agreement by prosecutors and advocates that the nation’s highest court likely needs to step back into the debate over how the U.S. punishes juvenile offenders.

“It’s definitely clear now that the court does need to ... clarify that life without parole is unconstitutional for all children,” said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth. “We’ve seen in certain states, in certain jurisdictions, that the standard that was set by the court ... is one that prosecutors and judges don’t necessarily feel compelled to follow.”

The court’s January 2016 ruling extended a ban on mandatory life without parole for juvenile offenders to those already in prison for murders committed when they were under 18. The decision didn’t lay out specific procedures for states to follow in reviewing the cases of those 2,000-plus inmates nationwide. Rather it said only that a lifetime behind bars should be reserved for the “rarest” offenders whose crimes reflect “irreparable corruption.”...

The decision ushered in a wave of new sentences and the release of dozens of inmates in states from Pennsylvania to Michigan, Arkansas and beyond — but also brought confusion and inconsistent approaches in other states, an Associated Press investigation earlier this year found.

In Louisiana, a law that took effect in August makes former teen offenders with no-release life terms eligible for parole after serving 25 years — unless a prosecutor intervenes. District attorneys had until the end of October to ask a judge to deny parole eligibility. Several district attorneys refused to discuss individual cases, and court paperwork they filed does not detail arguments against release. But prosecutors said their decisions were based on reviews of offenders’ crimes, their records in prison and talks with victims’ families. “These are all sensitive cases to victims. They lost a loved one in this,” said Scott Stassi, first assistant district attorney for Point Coupee, West Baton Rouge and Iberville parishes. His office is seeking life without parole in all four of its cases....

Louisiana is being closely watched because the state has so many cases — only Pennsylvania and Michigan have more — and its justice system has a reputation for stiff punishment. A new U.S. Supreme Court petition filed by Pasquarella’s group and the national Juvenile Law Center calls out Louisiana for continuing to sentence juveniles to life without parole in 62 percent of new cases since 2012, including those in which offenders were convicted of second-degree murder. The petition seeks an outright ban on life without parole for juveniles; 20 states and the District of Columbia already prohibit the sentence for teens....

In New Orleans, with more juvenile life cases than any other judicial district in Louisiana, prosecutors are seeking to deny 30 inmates a chance for parole. The district has 64 cases, but nearly a quarter had been resolved before the new law took effect. District Attorney Leon Cannizzaro Jr. said the decisions should have been left to the state’s parole board, because it is better able than prosecutors to assess how inmates may have changed. The board will pass judgment on inmates whose parole eligibility is not opposed by prosecutors, but cases in dispute will be argued before a judge....

E. Pete Adams, executive director of the Louisiana District Attorneys Association, thinks it is inevitable that the nation’s top court will be pressed to weigh in as prosecutors test the boundaries of the 2016 ruling. “Ultimately, whatever the court says we’ll abide by,” he said. The Supreme Court recently declined to hear two related cases, including an Idaho petition asking the justices for an all-out ban on juvenile life without parole. For now, that leaves decisions to local prosecutors, judges and parole officials.

A few recent related posts:

December 31, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Tuesday, December 05, 2017

Notable advocate makes notable pitch to abolish juve LWOP

Malcolm Jenkins, who I still remember as a great Buckeye ballplayer, is now an NFL star using his voice and platform to discuss criminal justice reform issues.  He has this notable new commentary about juve LWOP under this full headline "America is the only country in the world still sentencing our kids to die in prison:For too long we have depicted our youth, especially our black youth, as lost causes. But they can change."  Here are excerpts:

As a black man in America, I’m keenly aware that people who look a lot like me are over-represented in the criminal justice system. The way adults of color are treated in our justice system is already upsetting, but the way our justice system treats children, especially black children, is simply deplorable.

Nowhere is this more clearly evident than on the issue of juvenile sentencing. Black children are grossly over-represented when it comes to kids sentenced to life without parole. This disturbing reality is personal to me: In Pennsylvania, where I live and play football for the Philadelphia Eagles, nearly 80% of juvenile lifers are black.

In 2012, the Supreme Court ruled that life sentences without parole should only be given to juveniles in the rarest of circumstances.  Last year, it ruled that those individuals currently serving life sentences without parole should have their cases reviewed.  Currently, more than 2,100 people who were sentenced as children are eligible to have their sentences reviewed and earn a second chance.  Approximately 300 of these people are from the city of Philadelphia alone.

In its decision, the Supreme Court said that juvenile life without parole, where kids are sentenced to literally die in prison, should only be given to teens found to be “irreparably corrupt.”  But in reality, according to the Fair Punishment Project, the “irreparably corrupt” child is a myth.  We have to stop locking up kids and throwing away the key. According to human rights groups, America is the only country that sentences kids to life without parole....

The infuriating irony here is that the kids who have received life without parole sentences are, in many ways, the young people who needed our help the most.  According to study conducted by the Sentencing Project, 79% of this population witnessed violence in their homes growing up, 40% were enrolled in special education classes, nearly half experienced physical abuse, and three-quarters of the girls had experienced sexual abuse.

America failed them once.  Today, these kids deserve a second chance.  Contrary to the super-predator rhetoric utilized by politicians in the past to justify locking up kids for life, adolescents really are different from adults — in almost every way.  Their brains are underdeveloped, they struggle with judgment, they are susceptible to peer pressure.

For too long, we have depicted our youth, especially our black youth, as fully developed adults who are a lost cause.  But they can change.  These are not the soulless “super-predators” the media scared its readers with in the 70s and 80s.  These are children.  Studies show that even those accused of the most serious crimes age out of crime....

A lot of people might question why, as a professional athlete, I’m speaking out on criminal justice issues.  I believe that it is my duty to use my platform to raise awareness of the kinds of institutional injustices that so rarely make the news — and that we so rarely question.  And I want to elevate the work that so many amazing community grassroots organizations are doing to try and bring about this change.

Fortunately, there is some hope, finally, in my hometown.  Philadelphia’s newly elected District Attorney has stated he will not seek juvenile life without parole (JLWOP) for any kid, no matter the crime. He has also vowed to allow older cases to be considered for parole.  This is a great start.  Now, other prosecutors should follow suit.

No matter their race or hometown, rehabilitation is a beautiful thing. After all, there is nothing more American than giving someone who has worked hard a (second) chance to pursue life, liberty and the pursuit of happiness.

December 5, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Tuesday, November 21, 2017

"Justice at Last for the Youngest Inmates?"

13046135_1510955771706The question in the title of this post is the headline of this New York Times editorial about juve LWOP sentencing that starts with another question and answer: "How many times does the Supreme Court have to repeat itself before its message gets through?  In the case of life-without-parole sentences for juveniles, the answer seems to be: at least one more time." Here is more:

On Tuesday, the justices will meet to consider whether to hear two separate cases asking them to ban those sentences categorically, in line with the Eighth Amendment’s guarantee against cruel and unusual punishments.  It should be an easy call.  For more than a decade, the court has been moving in the right direction, growing ever more protective of juveniles who are facing the harshest punishments in our justice system.

In 2005, the court banned the death penalty for people who committed their crimes before turning 18.  In 2010, it outlawed juvenile sentences of life without the possibility of parole in all cases but homicide.  In 2012, it barred mandatory sentences of life without parole for juveniles in all cases.  And in 2016, it made that ruling retroactive for the more than 2,000 inmates already sentenced....

[S]ince the court’s string of rulings, many more states have come on board; 20 states and the District of Columbia now ban the sentence in all cases. In four other states it exists on the books but is never imposed in practice. Even Pennsylvania, the juvenile-lifer capital of the country, has since the 2016 ruling avoided seeking such sentences in all but the rarest circumstances.  Not surprisingly, new sentences of life without parole for juveniles have also dropped sharply.

But in a few states, prosecutors are still behaving as though the last 12 years never happened. The problem is worst in Louisiana and Michigan, which together account for more than a quarter of all juvenile lifers. In Michigan, prosecutors are seeking resentences of life without parole in more than half of all the state’s cases, which meets no one’s definition of “uncommon.”  In Louisiana, the state wants life without parole for 82 of the 258 people whose mandatory sentence was struck down last year.  The numbers are even worse at the local level. New Orleans prosecutors are seeking life without parole in half of all cases; in West Baton Rouge Parish, 100 percent.

Statistics like these have nothing to do with careful consideration of “the mitigating qualities of youth,” as Justice Elena Kagan put it in the Miller case, and everything to do with blind retribution. The insistence on maximum punishment is even harder to understand when one considers that the court has hardly issued a get-out-of-jail card to those juveniles serving life without parole.  It has said only that people whose crime occurred when they were too young to vote or buy beer should get “some meaningful opportunity,” usually only after decades in prison, to make a case for release.

As long as there’s a loophole, however, Michigan and Louisiana appear eager to drive a truck through it.  For the sake of the hundreds of juveniles in those states, many of whom have spent decades rehabilitating themselves, and to reaffirm the court’s role as the ultimate arbiter of the Constitution, the justices should ban these sentences for good.

I suspect that Justice Kennedy is still not yet ready to embrace a categorical ban on juve LWOP sentences in all circumstances, and this means there are likely not the SCOTUS five votes needed to move Eighth Amendment jurisprudence where the New York Times is urging.

Meanwhile, the Detroit Free Press has this recent lengthy article under the headline "Michigan remains a battleground in a juvenile justice war keeping hundreds in prison," which further details the ugly record of the state up north in this arena. Here is a snippet:

A year and a half after the Supreme Court ruled that all juvenile lifers across the nation should have the opportunity to be re-sentenced and come home, fewer than 10% of those in Michigan — a total of 34 — have been discharged.

The number, while low, could be chalked up to byzantine bureaucracy and the many moving parts of the criminal justice system. Civil rights activists, however, contend that while an array of procedures have slowed down the re-sentencing process nationally, Michigan is unique in its simple reluctance to recommend shorter sentences.

According to data from court records and the Michigan Department of Corrections, prosecutors in 18 Michigan counties have recommended continued life without parole sentences for all of the juvenile lifers under their purview. Statewide, 66% of Michigan's juvenile lifers have been recommended for the continued life sentence — a sentence which the Supreme Court declared unconstitutional but for the rarest of cases.

"First, Michigan took the strongest position in the country against children having a second chance, and now Michigan prosecutors are defying the Supreme Court’s holding that all children are entitled to a meaningful and realistic opportunity for release," said civil rights attorney Deborah LaBelle, who is one of several leading the charge to upturn the current status quo. "They are resisting the explicit ruling of the Supreme Court that this sentence can only be imposed on the rarest of children who commit a homicide and is irreparably corrupted," she continued.

And while the recommendations are a moving target, with some county prosecutors re-evaluating their filings — Saginaw County, for example, originally recommended 20 out of 22 defendants for continued life, but now contends that over half their recommendations have either changed or are now "undetermined" — the uncertainty means hundreds remain in the dark. They recognize the prospect of maybe, possibly, one day coming home, but have no clear roadmap of how this can come to be.

As the legal players dispute the intentions of the high court, men and women just like Hines, persist in a criminal justice limbo, while family members of victims are asked to grapple with unresolved emotions surrounding some of the most traumatic experiences in their lives. The disconnect has meant Michigan — already a touchstone in the juvenile lifer debate, with one of the largest populations in the nation — remains a battleground in a war many assumed to be over.

November 21, 2017 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 (1)

Monday, October 16, 2017

Colorado judge finds state's statutory response to Miller unconstitutionally favors certain juve defendants at resentencing

This local article reports on an interesting (and quirky?) ruling from a Colorado state judge last week finding constitutional problems with how the state responded to the Supreme Court's Eighth Amendment ruling in Miller precluding any mandatory LWOP sentencing for juvenile murderers.  The full headline of the article provides the basics: "Colorado law giving a break to some serving life for crimes committed as juveniles is unconstitutional, judge rules: Judge Carlos Samour Jr. ruled state can’t set preferential sentence for offenders convicted of felony murder." Here are more particulars: 

Part of a 2016 Colorado law that offers special sentencing considerations for some of the 50 people serving life without parole for crimes they committed as juveniles has been ruled unconstitutional by an Arapahoe County judge. Chief District Court Judge Carlos Samour Jr. this week entered his ruling in a case filed by Curtis Brooks, who was sentenced in 1997 to life in prison without parole after his conviction for felony murder.

The law, Samour ruled, gives preferential treatment to Brooks and 15 other offenders convicted of felony murder, offering them reduced sentences of 30 to 50 years in prison, while 34 other convicts serving life without parole could get new sentences of life in prison with the possibility of parole.  “Under the circumstances present, the court finds that the challenged provisions grant the 16 defendants a special or exclusive privilege,” his ruling says.

Brooks had applied to have his sentence reduced under the law, which the legislature passed last year. Felony murder holds defendants liable for first-degree murder if they commit or attempt certain felonies, such as burglary or robbery, and someone dies “in the course of or in furtherance of the crime.” In Brooks’ case, the owner of a car was killed by someone else as they tried to steal the vehicle. Brooks was 15.

Although Samour’s ruling is very well-reasoned, it is not binding precedent, said Ann Tomsic, chief deputy attorney for the 18th Judicial District.  Other judges probably will read Samour’s ruling and base their sentencing decisions on what he wrote, she said.... Brooks’ attorneys, including Dru Nielsen, said they could not comment on the facts of the case. Nor would they say whether they would appeal Samour’s decision....

Samour concluded that because the portion of the 2016 law applying only to those convicted of felony murder is unconstitutional, he must sentence Brooks to life in prison with the possibility of parole.

The Colorado legislature said juveniles convicted of felony murder cannot be sentenced to life without parole. Had lawmakers passed a bill that applied equally to all people convicted as an adult for crimes committed as a juvenile, it would have been constitutional, Samour said.  “What the legislature could not do, however, is what it, in fact, did: arbitrarily single out the 16 defendants and bestow preferential treatment upon them,” Samour ruled. Emphasizing his point, he wrote that the legislature cannot act as a sentencing court or a parole board.

I was unable to find on-line the formal opinion in this case, but in doing a bit of research I found this other local Colorado article from August reporting on a similar decision by another state judge which explains that Colorado prosecutors are apparently the ones objecting to the new Colorado statutory rule providing for a lower resentencing range for juveniles previously convicted of only felony murder. Here is how this other article explains the legal dynamics seemingly in play:

In his ruling, Epstein found that the state Legislature exceeded its authority when it provided the possibility of a 30- to 50-year sentence for felony murder convicts. He granted a motion by the El Paso County District Attorney's Office that attacked the law on procedural grounds, arguing that the sentencing range is unconstitutional because the reduced sentence wouldn't be available to anyone convicted of felony murder before or after the 16-year period. One of Medina's attorneys, Nicole Mooney, said prosecutors in at least three other jurisdictions have filed similar motions, and suggested that prosecutors' success in El Paso County could encourage more challenges — and embolden judges to grant them.

Prosecutor Jennifer Viehman, who mounted the successful challenge, said the 2016 law violated the state Constitution's provisions for special legislation by creating a "closed class" of beneficiaries. "You can't just single out a little special class of people, and make laws just for them," she said. "That's what the judge agreed with." Without the chance for parole after 30 years, then only one sentence is available — life in prison with the chance for parole after 40 years.

I surmise from this second article that judges are finding the distinct resentencing provisions for those convicted of felony murder to be a kind of problematic "special" legislation under Colorado constitutional law. Without expertise in state constitutional law, I cannot quite be sure if that is a sound or suspect conclusion.

UPDATE A helpful reader sent me a copy of the 48-page opinion in the Brooks case, which can be downloaded below and has the following section in its introductory paragraphs:

For the reasons articulated in this Order, the Court finds that the defendant must be resentenced, but concludes that the statutory provisions authorizing a determinate prison sentence of thirty to fifty years with ten years of mandatory parole are invalid because they constitute prohibited special legislation under the Colorado Constitution. The Court, therefore, grants the People’s motion to declare the relevant statutory provisions unconstitutional and denies the defendant’s request for a thirty-year prison sentence with ten years of mandatory parole.  In light of these rulings, and based on the legislature’s intent, the Court determines that the defendant must be resentenced to a term of life in prison with the possibility of parole after forty years.

Download Brooks - Post-Conviction Order

October 16, 2017 in Assessing Miller and its aftermath, New USSC crack guidelines and report, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, August 31, 2017

Interesting accounting of effort by Michigan juve killer to get Miller resentencing relief even though he is parole eligible

I was intrigued to see this local Michigan story, headlined "Sides plea on re-sentencing of teen killer," discussing a courtroom debate over whether a juvenile killer long ago sentenced to life with parole should still be able to secure resentencing thanks to the Supreme Court's recent Eighth Amendment jurisprudence. I find the story intriguing not only because of an effort to expand the reach of Miller, but also because the murder victim's family is apparently supportive of the offender's effort to secure release nearly four decades after the crime:

Members of both families packed a courtroom Wednesday as lawyers argued for and against a re-sentencing for a man who killed a high school classmate in 1980. Relatives of Michael Johnson, serving a life sentence for murdering Sue Ellen Machemer, and relatives of Sue Ellen sat on the same side of the courtroom during his bid for re-sentencing. For years, the victim’s family, as well as Johnson’s, have supported his release from prison.

Johnson, 54, was 17 when he killed Sue Ellen, a 15-year-old classmate at Lakeshore High School, where they were both juniors. Johnson, who is in the Ionia Correctional Facility, did not appear at Wednesday’s hearing. His lawyer, Mary Chartier of Lansing, argued for a re-sentencing for Johnson, saying his life sentence, though parolable, is unconstitutional and invalid based on new information about the brain development and characteristics of juveniles. Also, because the Michigan Parole Board has not taken an interest in Johnson’s case, he has no meaningful opportunity for release, Chartier told Berrien County Trial Court Judge John Donahue.

Berrien Assistant Prosecutor Aaron Mead argued that the Parole Board’s action, or lack of, has nothing to do with the validity of the sentence, and that Johnson’s case would be better fought by suing the Parole Board. “Frankly, allowing somebody to back door the Parole Board by saying a sentence is invalid is a very bad precedent,” Mead told the judge at a hearing Wednesday on Johnson’s motion for a re-sentencing.

Donahue took the lawyers’ arguments under advisement and said he will rule in four to eight weeks whether Johnson should be re-sentenced.

Chartier said Johnson’s sentence is unconstitutional because it began when he was a juvenile. The U.S. Supreme Court has ruled that mandatory life imprisonment without the possibility of parole violates the Eighth Amendment when applied to juveniles. Because the ruling is retroactive, courts are working through a number of first-degree murder cases involving juvenile offenders, and in some cases re-sentencing them.

Mead argues that Johnson’s case does not apply because he pleaded guilty to second-degree murder, and was sentenced by the late Judge Julian Hughes to life in prison with the possibility of parole. After serving 10 years, Johnson came into the parole board’s jurisdiction, but the board has never expressed interest in paroling him.

In 2010, Johnson lost on a motion to set aside his life prison sentence. Donahue, who hears Johnson’s motions because he is Hughes’ predecessor on the bench, rejected Johnson’s earlier argument that a change in Michigan Parole Board policies invalidated his sentence. Sue Ellen’s parents, Mel and Ellen Machemer, sat next to Johnson’s family in court, as they did during the hearing in 2010. The Machemers say they have gotten to know Johnson as an adult in prison, have forgiven him, and think it may be time for his release. His own family also supports him and says he has a place to live and a job waiting for him.

Chartier told the judge Wednesday that when Johnson’s file is looked at every five years, he gets a notice of “no interest” from the Parole Board and therefore has repeatedly been denied any meaningful opportunity for release. She said his sentence has been more harsh than that of juveniles convicted of first-degree murder because their cases now have to be reconsidered. “The Supreme Court says that juveniles must be offered some meaningful opportunity for release, and mere hope is not enough,” Chartier told the court. “The Supreme Court says juveniles are different, that wasn’t (considered) in Michael Johnson’s case. These rulings are retroactive, and he’s being denied the (high court’s) mandate for a meaningful opportunity for release.”

Chartier further argued that because Johnson’s sentence was life rather than a term of years, he is being treated in the same manner as someone sentenced to life without parole. She said someone sentenced to a term of years, when up for parole review, is told why if parole is not granted. “In his case, they don’t have to state a reason for not hearing it. He is a juvenile serving a life sentence. He’s gotten no guidance regarding what he needs to do to be released,” Chartier told Donahue....

Mead argued that a sentence can only be reviewed if it is determined to be invalid. Johnson was sentenced to parolable life for second-degree murder, a sentence that is valid, Mead told the court. He said the Supreme Court ruling regarding juveniles applied “only to non-parolable life, nothing else.” He said the Berrien County Trial Court cannot find the sentence invalid based on the Parole Board process. “Where do you draw the line regarding meaningful opportunity (for release)? You don’t draw it in this court,” Mead told Donahue. “Nobody has had the Parole Board answer for itself. The defendant is asking you to be a Super Parole Board. If prisoners say the Parole Board is the problem, then by all means hold them accountable.”

August 31, 2017 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Friday, August 25, 2017

Supreme Court of Wyoming continues to interpret Graham and Miller broadly

A helpful colleague made sure I did not miss an interesting opinion handed down yesterday by the Supreme Court of Wyoming in Sam v. Wyoming, No. S-16-0168 (Wy. Aug. 24, 2017) (available here), involving the Supreme Court's juve sentencing jurisprudence.  Here are concluding passages from the majority opinion ruling for the defendant in Sam:

Mr. Sam argues that his consecutive sentences of a minimum of 52 years, with release possible when he is 70 years old, is unconstitutional....

In Bear Cloud III, we analyzed the United States Supreme Court case law leading up to Miller and concluded that the prohibition of life without parole sentences required a “‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’” 2014 WY 113, ¶ 21, 334 P.3d at 139 (quoting Graham, 560 U.S. at 75, 130 S.Ct. at 2030). And we held that “‘[t]he prospect of geriatric release . . . does not provide a meaningful opportunity to demonstrate the maturity and rehabilitation required to obtain release and reenter society as required by Graham . . . .’” Bear Cloud III, 2014 WY 113, ¶ 34, 334 P.3d at 142 (quoting State v. Null, 836 N.W.2d 41, 71 (Iowa 2013) (internal quotation marks omitted)).   Since then, the United States Supreme Court has confirmed that the release for juveniles contemplated by the Roper, Graham, and Miller courts should allow them “hope for some years of life outside prison walls . . . .” Montgomery, 136 S. Ct. at 736-37. We held in Mr. Bear Cloud’s case that his sentence of a minimum of 45 years, with possible release when he is 61, was the functional equivalent of life without parole. Bear Cloud III, 2014 WY 113, ¶¶ 11, 33, 334 P.3d at 136, 142. In this case, the sentencing court has made the determination that Mr. Sam is not one of the juvenile offenders whose crime reflects irreparable corruption. An aggregated minimum sentence exceeding the 45/61 standard is the functional equivalent of life without parole and violates Bear Cloud III and Miller and its progeny. The sentence imposed on Mr. Sam of a minimum 52 years with possible release at age 70 clearly exceeds that. We therefore reverse and remand with instructions to the sentencing court to sentence Mr. Sam within the confines set forth in Bear Cloud III.

A dissenting justice in Sam took a distinct view, and here are conclusing passages from the dissenting opinion:

Mr. Sam did not act from impulse, immaturity, or at the invitation or inducement of others.  He intentionally prepared for his crimes, baited the victims into an ambush, committed multiple aggravated assaults on numerous victims, and culminated the spree with an execution-style murder.  Proportionality requires that those factors be considered in his sentence, as well as the remote possibility of rehabilitation.

The U.S. Supreme Court has not defined a “meaningful opportunity to obtain release.”  Nothing in any Supreme Court decision suggests that a “meaningful opportunity to obtain release” must be the same for every defendant.  To the contrary, the proportionality required by the Eighth Amendment indicates that a more mature defendant who commits multiple crimes including murder should receive a lengthier sentence than someone who is less mature or commits only one crime.

In this case, the district court did all it was required to do in sentencing Mr. Sam.  It conducted a thorough individualized sentencing hearing and considered multiple times Mr. Sam’s youthful factors, family history, and participation in the crime as required by Miller and Bear Cloud III. It crafted a sentence it felt was appropriate based upon all of these factors, and it believed this sentence did not constitute a de facto life sentence.  It concluded that Mr. Sam deserved a longer sentence than if he had only committed the murder, or the murder and one additional aggravated assault.

The majority remands this case to the district court to impose an aggregate sentence of something less than the 45 years that was rejected in Bear Cloud III, concluding that Mr. Sam’s sentence denies him any meaningful opportunity for release before he is “geriatric.”  I disagree.  If Mr. Sam is motivated by the possibility of parole and comports himself well while in prison he will receive credit for “good time” under Wyo. Stat. Ann. § 7-13-420 (LexisNexis 2017) and Department of Corrections rules.  He will then be eligible for parole on the last of his sentences at about age 61.  I do not agree that release at that age deprives Mr. Sam of all meaningful portions of life.

August 25, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (4)

Thursday, August 24, 2017

"Procedures for Proportionate Sentences: The Next Wave of Eighth Amendment Noncapital Litigation"

The title of this post is the title of this notable paper recently posted to SSRN and authored by Sarah French Russell and Tracy Denholtz. Here I the abstract:

With its 2010 decision in Graham v. Florida, the U.S. Supreme Court for the first time placed categorical Eighth Amendment limits on noncapital sentences.  Graham prohibits life-without-parole sentences for juveniles in nonhomicide cases and requires states to provide these juveniles with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”  In 2012, in Miller v. Alabama, the Court again set a categorical Eighth Amendment limit — prohibiting mandatory life-without-parole sentences for all juveniles and requiring sentencers to give mitigating effect to youth-related factors when juveniles face life-without-parole sentences.

Following Graham and Miller, 23 states have enacted statutes responding to the decisions and there has been extensive litigation nationwide.  The first wave of litigation has largely focused on the scope of the Court’s categorical holdings, with lower courts considering questions such as: How long is a “life” sentence?  Which crimes are “nonhomicides?”  Do the decisions apply retroactively?

A new wave of litigation is beginning to examine what procedures are required to ensure proportionate sentences under the Eighth Amendment.  Across the country, states are using a range of approaches.  In providing a “second look” for juveniles, some states are simply using existing parole systems, whereas other states have reformed their parole practices for juveniles or created special mechanisms for sentencing review through the courts. With respect to sentencing procedures, some states have adopted special procedures for serious juvenile cases.  Other states have provided little guidance to sentencing courts.

In the past several years, many individuals have been sentenced or resentenced under Miller, and parole boards have started holding hearings in some states. W ith these sentencing and second look proceedings underway, advocates have started to challenge the procedures that states are using.  Are state parole boards in fact providing a “meaningful opportunity” for release to juveniles based on demonstrated maturity and rehabilitation?  Are courts conducting sentencing hearings in compliance with Miller’s mandates?

Eighth Amendment capital litigation has often focused on the procedures governing capital cases, and much can be accomplished by pushing for better procedures in the noncapital sentencing context.  With hope, reforms to parole and sentencing processes for juveniles will not only improve outcomes for juveniles but will also lead to better procedures and outcomes for adults.  Yet at the same time, advocates should not abandon efforts to push for further substantive Eighth Amendment limits on sentences — not only for children but for adults.

August 24, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Wednesday, August 16, 2017

DC sniper Lee Malvo loses one bid for Miller resentencing in Maryland state courts

As reported in this Washington Post piece, "Lee Boyd Malvo’s six life sentences, for the six Montgomery County, Md., slayings he committed as a 17-year-old in 2002, were allowed to stand Wednesday after a Montgomery judge found that Malvo was not given mandatory life terms." Here is more about this latest ruling in a high-profile case:

Malvo, now 32, could still have the sentences overturned by a federal court in Maryland, which is also considering his appeal. In Virginia, life sentences for his jury conviction in one murder case and his guilty pleas to two other murders were overturned in May by a federal judge because of the Supreme Court’s ruling. Virginia is appealing the order that Malvo must be resentenced in those three cases.

Malvo and John Allen Muhammad began a cross-country shooting rampage in Washington state in February 2002 and concluded with a series of 13 shootings, 10 of them fatal, in the D.C. area in October of that year. Malvo was tried first for a fatal shooting in Falls Church, Va., and a jury in Chesapeake, Va., convicted him but chose a life sentence without parole rather than a death sentence. Muhammad was tried for a slaying in Manassas, Va., and a jury in Virginia Beach convicted him and sentenced him to death. Malvo then pleaded guilty to two more slayings near Fredericksburg, Va., and received two more life sentences.

Having already been convicted of three slayings in Virginia, Malvo in 2006 testified against Muhammad in his trial in Montgomery County and then pleaded guilty to six counts of first-degree murder. Montgomery Circuit Court Judge James L. Ryan then imposed six more consecutive life sentences on Malvo....

Judge Ryan has since retired. But Judge Robert A. Greenberg issued a 20-page ruling Tuesday, released publicly on Wednesday, that concluded that “Judge Ryan is presumed to have known the law,” and that Malvo was not facing mandatory life-without-parole sentences when he was sentenced. “Clearly, Maryland employs a discretionary sentencing scheme,” Greenberg wrote, noting that Ryan had a range of options from a suspended sentence to life without parole. “Judge Ryan would have been well aware that a juvenile (albeit one four months from majority) ought to be beyond rehabilitation before life-without-parole could be imposed … the court expressly considered Defendant’s youth in sentencing him. ”

But even if Malvo’s sentences were mandatory, Greenberg ruled, “Judge Ryan affirmatively considered all the relevant factors at play,” to include extensive biographical and psychological reports on Malvo, “and the plain import of his words at the time of sentencing was that Defendant is ‘irreparably corrupted.’ ”

Ryan’s ruling does not affect Malvo’s appeal of his sentences in the federal court in Maryland or his Virginia cases.

August 16, 2017 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Friday, August 11, 2017

Lamenting the role of prosecutors in continued pursuit of juve LWOP sentences

This New York Times op-ed by Rashad Robinson zeroes in on the role of prosecutors in the continuance of juve LWOP sentences in the wake of Graham and Miller.  The piece is headlined "No Child Deserves a Life Sentence. But Try Telling Prosecutors That." Here are excerpts:

In 2012, the Supreme Court took a step toward righting a terrible wrong by banning mandatory life sentences without the possibility of parole for children. Last year, the court said that ban should apply retroactively: It told prosecutors to conduct resentencing hearings for the approximately 2,500 people who were serving life sentences for crimes they committed as adolescents. Many of them had been in prison for decades.

But if you walked into many courthouses today, you wouldn’t know that the Supreme Court had called for resentencing these juvenile offenders, the majority of them black. That’s because prosecutors are choosing to pursue life-without-parole sentences for these cases again.  Part of the problem is that the court kept the door open for overreach when it allowed prosecutors to impose a life sentence on the rare defendant who is “irreparably corrupt” and “permanently incorrigible.”

Consider Michigan, where prosecutors are denying parole or shorter sentences for 60 percent of juvenile lifers, even in cases where parole boards have recommended them. In Oakland County, northwest of Detroit, the share is a whopping 90 percent. While nearly half of all juvenile lifers are concentrated in Michigan, Pennsylvania and Louisiana, prosecutors elsewhere, like Scott Shellenberger in Baltimore County, Md., who has opposed ending such sentences for children, have also effectively thumbed their nose at the court’s ruling.

On top of this, many prosecutors are resentencing juvenile lifers to de facto life-without-parole sentences. The district attorney of Orleans Parish in Louisiana defended a “reduced” sentence for a juvenile lifer to a term that would have let him leave prison at age 101. (A Louisiana Supreme Court justice later reprimanded the district attorney for this “stunning” and “constitutionally untenable” position).

This is happening not because our prisons are full of unrepentant juvenile offenders who can never be rehabilitated, but because of a racist structure of perverse incentives that encourages prosecutors to pursue mass incarceration instead of justice.

For decades, prosecutors have sought high conviction rates and long sentences in the belief that appearing tough on crime would advance their careers. Indeed, prosecutors in any given local district or state attorney’s office, from the most junior rookie to the top elected official, tend to view their career prospects through the lens of average sentence length....

Black communities have borne the brunt of this overzealous approach, and racial disparities can be found anywhere prosecutors have control over sentences.  But in recent years, this racist incentive structure has begun to shift, as multiracial coalitions led by black Americans have elected prosecutors across the country who value safety and justice.  This is no liberal pipe dream, but it does require sustained activism and perseverance.  That’s what it took last November when voters in Chicago, Houston and other cities ousted prosecutors who were not serving their interests and elected reform-minded candidates. In those cities, community advocates and my organization, Color of Change, helped make criminal justice issues a key part of the debate.

But communities must work to hold all prosecutors accountable, even those who promise reforms.  Prosecutors are the most powerful actors in the criminal justice system; they aren’t going to start caring about the Supreme Court’s rulings on juvenile sentences and other vital reforms until voters give them a reason to.

Though there are evident racial skews in who gets subject to the most severe sentences in the US, I struggle to understand just how the political pressure and benefits that prosecutors experience from appearing tough on crime amounts to a "racist incentive structure."  Having prosecutors regularly subject to voter concerns through local elections creates what might be called a "politicized" or "majoritarian incentive structure," but I am not sure I see how the label "racist" is a sensible or helpful way to describe the traditional election process facing many local prosecutors.  I wonder if this author would likewise assert that mayors or local representatives (or other elected local officials who also can in various ways impact the operation of criminal justice systems) are subject to a "racist incentive structure" that impacts their governmental decision-making.

Because this op-ed ai part of a wave of important recent advocacy and scholarship emphasizing the importance of prosecutorial decision-making, I do not wish to make too much of my puzzlement over the assertion that local prosecutors are subject to a "racist structure of perverse incentives."  But I do wish to hear from anyone who might help me better understand what the author has in mind when referencing the "racist incentive structure" facing prosecutors.

August 11, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

Thursday, August 10, 2017

"Why are we sentencing children to life in prison without parole?"

The question in the title of this post is the headline of this new Newsweek commentary authored by Vincent Southerland and Jody Kent Lavy.  Here are excerpts from the start and end of the commentary:

The barbaric practice of sentencing children to life in prison without the possibility of parole remains one of the most radically inhumane aspects of our criminal justice system.

For those of us who work daily to abolish this practice, the good news is that there are several recent U.S. Supreme Court decisions that deem this brand of sentencing unconstitutional and attempt to limit its use.

The bad news is that despite these decisions and a national trend moving away from this practice, several outlier states and counties refuse to comply with the Supreme Court’s most recent mandate, which effectively banned life without parole for all children capable of rehabilitation.

The shameful news is that the United States is the only country in the world that sentences children to life in prison without the possibility of parole, and that children of color -- African American children in particular -- and children who have been abused and traumatized are disproportionately handed these sentences.

Taken together, these facts lead to a simple conclusion: The time has come to put an end to life without parole sentencing for children....

By tackling our most extreme sentences for children, and acknowledging that this harshest of punishments is imposed disproportionately on children of color coming from some of our most vulnerable communities, we must come to terms with the fact that race and socioeconomic status play a huge role in determining how much compassion the justice system will show a young person.

This should not be the case -- all children are created equal, and there is no such thing as a throwaway child. Our sentencing policies should reflect those truths.

State lawmakers would be well served to join the national trend abandoning the practice of sentencing children to life in prison without a hope of release.  It is imperative that together we work toward a justice system that offers the mercy that all children deserve.

August 10, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners | Permalink | Comments (1)

Sunday, August 06, 2017

Guest post: "It’s Time to End Life without Parole for Children in the United States"

Guest-postI recently received a kind request to publish here a commentary authored by Rob Smith and Heather Renwick.  Rob is the Executive Director of the Fair Punishment Project at Harvard Law School, and Heather is Legal Director at the Campaign for the Fair Sentencing of Youth in Washington DC.  Here is what they have to say:

Sweeping reform over the past five years has brought the United States to a critical tipping point in the movement to end the arbitrary and cruel practice of sentencing kids to life in prison without parole. The Associated Press just reported that the number of youth serving life without parole around the country has dramatically fallen in the past five years due to legislative reforms and judicial opinions that recognize sentencing kids to life in prison is unnecessarily harsh and unconstitutional in most, if not all, cases.

In 2012, only five states banned life without parole sentences for juveniles. Today, just five years later, the number of states that ban life sentences for children has nearly quadrupled, bringing the total to nineteen states and District of Columbia. Another four states do not sentence children to life in prison, despite the fact that penalty is technically available.

The states that ban or no longer use life without parole for children reflect geographical, political, and ideological diversity. For example, West Virginia enacted the most progressive law in the country in 2014, and Nevada’s Republican-majority legislature unanimously passed a law that provides parole eligibility for all children sentenced in adult court.

Even Pennsylvania, the historical epicenter of juvenile life without parole in the United States, is moving unequivocally away from the practice. In the past year, over 100 individuals sentenced as children to life without parole in Pennsylvania have been resentenced, more than 60 of whom have returned home so far.

When the U.S. Supreme Court abolished the juvenile death penalty in 2005 in a case called Roper v. Simmons, it looked to the number of states that legislatively or functionally abandoned the juvenile death penalty as evidence of national consensus. The rapid movement away from life without parole sentences for youth has far surpassed the pace of reform that preceded Roper

Yet a handful of states remain outliers in their treatment of young people convicted of serious crimes.  Virginia has flouted U.S. Supreme Court opinions limiting the imposition of life sentences on children, and in Michigan, children continue to be sentenced to life without parole at a rate that far outstrips the rest of the country. So whether a child is sentenced to life without parole is entirely dependent on the state in which he or she is sentenced.

Last year in a case called Montgomery v. Louisiana — a clarification of its 2012 opinion Miller v. Alabama — the U.S. Supreme Court said that a sentence of life without parole should not be imposed on a child in most, if not all, cases. The Supreme Court rooted these decisions in the understanding that even children who commit serious crimes are capable of positive growth and change.

Yet as the AP just reported, inconsistent implementation of these U.S. Supreme Court decisions means that “[t]he odds of release or continued imprisonment vary from state to state, even county to county, in a pattern that can make justice seem arbitrary.” And our nation’s kids deserve more than arbitrary justice.  It’s time for the U.S. Supreme Court to recognize what a rapidly growing number of states already have: that no child should be sentenced to life in prison without parole. 

August 6, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics | Permalink | Comments (7)

Monday, July 31, 2017

AP series looks deeply at a "patchwork of justice" for juve lifers after Graham and Miller

The AP has some new in-depth reporting on juvenile LWOP sentences and resentencings in this series labeled "Locked Up For Life."   This lead article published today is headlined "AP Investigation: A patchwork of justice for juvenile lifers," and here are some excerpts from the extended piece:

Five years ago, the U.S. Supreme Court banned mandatory life without parole for juveniles in murder cases.  Last year, the court went further, saying the more than 2,000 already serving such sentences must get a chance to show their crimes did not reflect “irreparable corruption” and, if not, have some hope for freedom.

But prison gates don’t just swing open. Instead, uncertainty and opposition stirred by the new mandate have resulted in an uneven patchwork of policies as courts and lawmakers wrestle with these complicated, painful cases.  The odds of release or continued imprisonment vary from state to state, even county to county, in a pattern that can make justice seem arbitrary.

The Associated Press surveyed all 50 states to see how judges and prosecutors, lawmakers and parole boards are re-examining juvenile lifer cases. Some have resentenced and released dozens of those deemed to have rehabilitated themselves and served sufficient time.  Others have delayed review of cases, skirted the ruling on seeming technicalities or fought to keep the vast majority of their affected inmates locked up for life.

Many victims’ relatives are also battling to keep these offenders in prison.  They “already had their chance, their days in court, their due process,” says Candy Cheatham. Her father, Cole Cannon, was killed in 2003 in Alabama by Evan Miller, the 14-year-old whose no-parole sentence was the basis for the 2012 sentencing ban....

The AP’s review found very different brands of justice from place to place.  For years, officials in states with the most juvenile life cases were united in arguing that the Supreme Court’s ban on life without parole did not apply retroactively to inmates already serving such sentences. Now, states are heading in decidedly different directions....

The AP also found that while many states have taken steps to make former teen criminals eligible for parole, in practice, officials regularly deny release.  In Missouri, the parole board has turned down 20 of 23 juvenile lifers, according to the MacArthur Justice Center, which filed a federal lawsuit this year claiming the board is denying the state’s juvenile life-without-parole inmates a meaningful chance for release as required by the Supreme Court....  Maryland, meantime, has 271 juvenile lifers whose sentences have always given them a chance for release.  But no such prisoner has won parole in more than 20 years, prompting a lawsuit by the American Civil Liberties Union....

The impact of last year’s Supreme Court ruling goes far beyond the 2,000-plus offenders who faced mandatory no-parole sentences as teens.  In many states, legal challenges are being mounted on behalf of juveniles sentenced to life without parole at the discretion of a judge or jury, or those who are legally entitled to parole but serving such lengthy terms they are unlikely to ever get out.  The latter group encompasses some 7,300 inmates, according to The Sentencing Project.  The Supreme Court didn’t specifically address these cases, however, and that’s led to different outcomes.

July 31, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Monday, July 17, 2017

When will SCOTUS take up a follow-up to Graham and Miller?

The question in the title of this post is prompted in part by this recent Atlantic article headlined "The Reckoning Over Young Prisoners Serving Life Without Parole." Here are excerpts:

It’s been more than seven years since the U.S. Supreme Court began to chip away at life-without-parole sentences for juvenile offenders, and lower courts are still wrestling with how to apply the justices’ logic to the American criminal-justice system.

Life sentences are an American institution. According to a recent Sentencing Project report, more than 200,000 people are serving either life in prison or a “virtual” life sentence: They haven’t been explicitly sentenced to spend their natural lives behind bars, but their prison terms extend beyond a typical human lifespan. Of these prisoners, thousands were sentenced as juveniles. More than 2,300 are serving life without parole, often abbreviated LWOP, and another 7,300 have virtual life sentences. Only after they serve decades in prison do members of the latter group typically become eligible for parole....

What happens to those previously sentenced under old laws has been left to the courts, as with three cases decided in Missouri earlier this week. Lower-court judges are forced to face complex legal and moral questions about when and if it’s proper to lock people up for most of their natural life for crimes they committed as minors. As those judges reach different conclusions, each ruling increases the likelihood the Supreme Court will need to reckon with juvenile LWOP again.

I was a bit surprised that SCOTUS took up the Miller case so soon after they decided Graham, and now I find myself a bit surprised that SCOTUS has not seemed much interested in the further development of this new line of Eighth Amendment jurisprudence. (Of course, the Montgomery case clarifying that Miller must be applied retroactively is a recent ruling in this arena and it (arguably) broke some new jursprudential ground.)

July 17, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Sentences Reconsidered | Permalink | Comments (6)

Wednesday, July 12, 2017

Missouri Supreme Court extends Miller to juvenile sentenced to mandatory life without parole eligibility for 50 years

The Supreme Court of Missouri yesterday handed down a notable ruling in State ex rel. Carr v. Wallace, No. SC93487 (Mo. July 11, 2017) (available here), which extends the reach of the US Supreme Court Miller ruling beyond mandatory LWOP sentencing.  Here is how the majority opinion in Carr gets going: 

In 1983, Jason Carr was convicted of three counts of capital murder for killing his brother, stepmother, and stepsister when he was 16 years old.  He was sentenced to three concurrent terms of life in prison without the possibility of parole for 50 years.  His sentences were imposed without any consideration of his youth.  Mr. Carr filed a petition for a writ of habeas corpus in this Court. He contends his sentences violate the Eighth Amendment because, following the decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), juvenile offenders cannot be sentenced to life without parole pursuant to mandatory sentencing schemes that preclude consideration of the offender’s youth and attendant circumstances.

Mr. Carr was sentenced under a mandatory sentencing scheme that afforded the sentencer no opportunity to consider his age, maturity, limited control over his environment, the transient characteristics attendant to youth, or his capacity for rehabilitation.  As a result, Mr. Carr’s sentences were imposed in direct contravention of the foundational principle that imposition of a state’s most severe penalties on juvenile offenders cannot proceed as though they were not children.  Consequently, Mr. Carr’s sentences of life without the possibility of parole for 50 years violate the Eighth Amendment.  Mr. Carr must be resentenced so his youth and other attendant circumstances surrounding his offense can be taken into consideration to ensure he will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.  Habeas relief is granted.

Chief Justice Fischer dissenting from the decision, and here is the heart of his short opinion:

Carr's three concurrent terms of life in prison without the possibility of parole for 50 years do not run afoul of Miller. Miller only applies to cases in which a sentencing scheme "mandates life in prison without possibility of parole for juvenile offenders." 132 S. Ct. at 2469.  Therefore, Miller does not require vacating Carr's sentences.  Nor are Carr's sentences inconsistent with this Court's or any of the Supreme Court's current Eighth Amendment jurisprudence. Indeed, the principal opinion's holding that Miller applies to Carr's sentences is, undoubtedly, not just an extension of Miller, but also calls into question whether any mandatory minimum sentence for murder could be imposed on a juvenile offender.  Accordingly, I decline to concur with that implication and remain bound by this Court's unanimous decision in Hart to apply Miller only to cases involving a mandatory sentence of life in prison without the possibility of parole.

July 12, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Thursday, July 06, 2017

Highlighting efforts to expand Miller (and Graham?) to older "kids" in Pennsylvania

This new local article, headlined "In Philly courts, whether they'll die in prison comes down to their birthday," reports on efforts by young adult offenders to expand the Supreme Court's recent Eighth Amendment doctrines limiting severe juvenile punishments.  Here are excerpts:

In 1982, when Judge Armand Della Porta sentenced Orlando Stewart to spend the rest of his life in prison, he did it with apparent regret.  “This is the best example of how wrong mandatory sentencing is,” he said.  Stewart was the last of 10 West Philadelphia teenagers sentenced in the 1981 death of University of Pennsylvania graduate student Douglas Huffman. They’d gone out in a pack, looking for someone to rob.  One teen hit Huffman, knocking him to the pavement where he hit his head hard enough to fracture his skull. Huffman declined medical treatment, and was found dead in his bed two days later.

Seven of the teens served short sentences, some as little as a year.  Ronald Saunders, who orchestrated the attack, was sentenced to life.  But he was made eligible for parole this March after a U.S. Supreme Court ruling that drew on evolving brain science to conclude juveniles are less culpable than adults, and cannot be doomed to life without parole under mandatory sentencing rules.  Charles Manor, the teen who knocked Huffman to the ground, was also made eligible for parole.

But Stewart, who never touched Huffman, won’t get a new sentence.  That’s because two months and 10 days before the crime, Stewart turned 18.  Those two months were the difference between kid and adult under the law — and between the “hope for some years of life outside prison walls” promised in that 2016 Supreme Court decision and the certainty of death in prison.

Now, appeals by 18-, 19-, and 20-year-old lifers like Stewart have begun to reach Pennsylvania’s highest court.  One was filed in June by Charmaine Pfender, who was 18 when she shot a man she says was attempting to rape her at knifepoint, killing him.  Such petitions argue that the same immaturity and impulsivity that diminish younger teens’ culpability continue well into the 20s, as a person’s brain continues to develop.  If successful, the appeals could have sweeping implications: More than half of Pennsylvania’s lifers entered the state prison system between age 18 and 25.  That’s 2,763 inmates.

These arguments appear to be gaining traction elsewhere.  An Illinois appeals court in December granted a new sentencing hearing to Antonio House, who was 19 when he participated in a gang-related killing.  And a federal judge has agreed to hear arguments in the Connecticut case of Luis Noel Cruz, who was 18 when he participated in a murder.

Laurence Steinberg, a Temple University psychologist specializing in brain development, says such arguments have a scientific basis. His research shows that, while cognitive abilities mature by age 16, other parts of the brain mature later. Areas that influence criminal culpability, like impulsiveness, risk-aversion, and resistance to peer pressure, continue maturing well into the 20s.  “The science would certainly say there’s significant brain maturation that continues to go on at least until age 21, if not beyond,” he said. “The legal question is harder than the scientific question.”...

In light of evolving neuroscience, some jurisdictions have begun to set up young-adult courts, targeting those between 18 and 25 for consideration that is somewhere between juvenile and adult proceedings. San Francisco, Brooklyn, and Chicago have all launched such initiatives.  But in a string of U.S. Supreme Court cases, beginning with Roper v. Simmons, the 2005 case that abolished the juvenile death penalty, the court determined “a line must be drawn.” Age 18 seemed a conventional choice.

This line has led to perplexing moments in the courtroom over the last year and a half, as Pennsylvania judges have worked to resentence some 500 juvenile lifers — the largest such population in the nation.  Their sentences were deemed illegal under Miller vs. Alabama, a 2012 case, but it took a second case, Montgomery v. Louisiana, to get Pennsylvania courts to apply the ruling retroactively.

At least a half-dozen lifers who sought new sentences in Philadelphia waited for months while lawyers tracked down birth certificates from the 1950s, ’60s, or ’70s to determine whether they were on the right side of 18 at the time of the crime.  One, Steven Drake — the only 18-year-old in a group of 11 youths charged in a 1971 stabbing in West Philadelphia — was 23 days too old to make the cut, according to the date of birth on his court docket.

As the title of this post highlights, while this article discusses efforts to expanded the reach of the Supreme Court's Miller ruling precluding mandatory LWOP sentencing of juvenile murderers, this kind of litigation also would carry the potential to expanded the reach of the Supreme Court's prior Graham ruling precluding any LWOP sentencing for juvenile non-homicide offenders.

July 6, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Who Sentences? | Permalink | Comments (3)

Tuesday, June 27, 2017

Pennsylvania Supreme Court issues major Miller ruling declaring presumption against the imposition of LWOP on juvenile killers

The Pennsylvania Supreme Court yesterday handed down a major ruling on the application and implementation of the Supreme Court's modern Miller Eighth Amendment jurisprudence. The lengthy ruling in Pennsylvania v. Batts, No. 45 MAP 2016 (Pa. June 26, 2017 (available here), gets started this way:

Qu’eed Batts (“Batts”) was convicted of a first-degree murder that he committed when he was fourteen years old. His case returns for the second time on discretionary review for this Court to determine whether the sentencing court imposed an illegal sentence when it resentenced him to life in prison without the possibility of parole. After careful review, we conclude, based on the findings made by the sentencing court and the evidence upon which it relied, that the sentence is illegal in light of Miller v. Alabama, 567 U.S. 460 (2012) (holding that a mandatory sentence of life in prison without the possibility of parole, imposed upon a juvenile without consideration of the defendant’s age and the attendant characteristics of youth, is prohibited under the Eighth Amendment to the United States Constitution), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (holding that the Miller decision announced a new substantive rule of constitutional law that applies retroactively and clarifying the limited circumstances in which a life-without-parole sentence is permissible for a crime committed when the defendant was a juvenile).

Pursuant to our grant of allowance of appeal, we further conclude that to effectuate the mandate of Miller and Montgomery, procedural safeguards are required to ensure that life-without-parole sentences are meted out only to “the rarest of juvenile offenders” whose crimes reflect “permanent incorrigibility,” “irreparable corruption” and “irretrievable depravity,” as required by Miller and Montgomery.  Thus, as fully developed in this Opinion, we recognize a presumption against the imposition of a sentence of life without parole for a juvenile offender.  To rebut the presumption, the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the juvenile offender is incapable of rehabilitation.

Because Pennsylvania has a large JLWOP population impacted by Miller and because proving rehabilitation incapacity beyond a reasonable doubt seem to be perhaps close to impossible, this Batts ruling strikes me as a  big deal jurisprudentially and practically.  (And, for any remaining Apprendi/Blakely fans, it bears noting that the Batts opinion expressly rejects the defendant's contention that a "jury must make the finding regarding a juvenile’s eligibility to be sentenced to life without parole.)

June 27, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, June 21, 2017

Henry Montgomery (of Montgomery v. Louisiana) re-sentenced to life with parole

As reported in this lengthy local article, a defendant whose surname means a lot to a lot of juvenile offenders long ago sentenced to life without parole was resentenced today in Louisiana. Here are just some of the details of the latest chapter of a truly a remarkable case:

A Baton Rouge judge Wednesday gave a 71-year-old man convicted of killing a sheriff's deputy when he was 17 a chance to leave prison before he dies.

Henry Montgomery has been locked up for 54 years in the killing of East Baton Rouge sheriff's deputy Charles Hurt. But Judge Richard Anderson on Wednesday re-sentenced Montgomery to a life sentence with the possibility of parole, following a pair of recent U.S. Supreme Court rulings — including Montgomery's own case — that say defendants convicted of murder for killings committed as juveniles cannot automatically be sent away to serve life without parole.

"This is not an easy thing for me to do … because one man is dead and the family is still living through the consequences. But the law is the law," said Anderson, referencing the higher court decisions that said sentences of life without parole for young killers must be "rare and uncommon" and reserved only for those who display "irretrievable depravity."

Anderson's decision during the brief hearing came nearly two months after defense attorneys presented the judge with extensive testimony about Montgomery's conduct in prison and the rough circumstances of his childhood.  Officials from the Louisiana State Penitentiary at Angola, where Montgomery has spent nearly all of the last half-century, described him as a trustworthy inmate and reliable worker who accumulated a remarkably low number of infractions during his time at the once-notorious prison.

Lindsay Jarrell Blouin, an East Baton Rouge Parish public defender who represents Montgomery, also detailed rough circumstances of Montgomery's childhood, which she wrote included neglect, physical abuse and a lack of education. Court filings also detailed Montgomery's mental limitations, including an IQ estimated by psychologists during his 1969 trial as somewhere in the 70s....

"He's been a model prisoner for 54 years, he's been a mentor and, by all appearances, he's been rehabilitated," Anderson said. "It does not appear (Montgomery) is someone the Supreme Court would consider 'irreparably corrupt.'"

Montgomery was walking near Scotlandville High School on Nov. 13, 1963, when he ran from Hurt and other deputies who'd arrived to investigate a theft complaint called in by the school.  Hurt tried to detain Montgomery, according to trial transcripts, and Montgomery killed him with a single shot from a .22-caliber pistol.  Hurt's partner that day wrote in an initial report that Hurt had his hands up and was backing away when Montgomery shot him.  But the officer testified at trial that he was some 350 yards away and couldn't see Hurt or Montgomery at the moment of the shooting, according to recent filings by Montgomery's attorneys.  The deputy was wearing plain clothes, Montgomery's attorneys wrote, and the teenager told investigators following his arrest that he thought Hurt was reaching for a gun when he fired. "This was a terrible, split-second decision made by a scared 17-year-old boy who thought he was going to be killed."

Hurt's family did not attend Wednesday's hearing.  But in April, as Anderson considered evidence in the case, Hurt's two daughters took the stand to testify to how that single gunshot upended their family, snapped previously happy childhoods and continues to reverberate in painful ways decades later.  Becky Wilson and Linda Woods both told Anderson through tears that they'd come to forgive and pray for Montgomery.  The deputy's daughters met privately with Montgomery at Angola earlier this year.

But the sisters, as well as Jean-Paul deGravelles, Hurt's grandson who's now a Lafourche Parish sheriff's deputy, all said they felt Montgomery received a just sentence when a jury in 1969 found him guilty of murder "without capital punishment" — a verdict that spared Montgomery the death penalty but sent him away for the remainder of his life.

Anderson echoed that view, noting from the bench that he felt Montgomery's life-without-parole sentence was fair. But the law has changed, Anderson said, regardless of whether the judge agrees with the Supreme Court rulings.

Prosecutors didn't argue for either life with or without parole for Montgomery but noted the gravity of the crime and its impact on the victim's family.  Lawyers with the Attorney General's Office who represented the state at the hearing declined to comment Wednesday.  East Baton Rouge District Attorney Hillar Moore III said Anderson's "difficult but well-reasoned decision" acknowledged the suffering caused by Montgomery but was bound by the U.S. Supreme Court's decision.

Wilson, who was 9 years old when her father was killed, said Wednesday she believes Anderson reached "the only decision he could" under current law in offering Montgomery a chance at parole and said she appreciates the judge's careful consideration of the case.  "As for Mr. Montgomery, I just pray for God’s perfect will to be done in his life and hope and pray he is blessed wherever he might be, today and in his future," Wilson said by email. "If he should be paroled, I hope, if given the opportunity, he will use his life experience to help keep young men and women from going down the same path he went down. Also, I pray that he will truly be thankful and humbled by the gift of freedom."

Montgomery's 1969 conviction came after the Louisiana Supreme Court overturned an earlier verdict, ruling that widespread and often racially tinged attention to the case "permeated the atmosphere" in Baton Rouge during his first trial.  The court ruled that "no one could reasonably say that the verdict and the sentence were lawfully obtained." Anderson on Wednesday noted the jury in Montgomery's second trial in 1969 chose not to impose a death sentence even though the law allowed it.  Montgomery's attorneys argued earlier that the jury's decision for a lesser sentence suggested they didn't see Montgomery as among the worst killers.

Anderson also admonished Montgomery, who stood before the judge stooped with his hands closely shackled to a belly chain, to take advantage of his opportunity at freedom.  Montgomery didn't speak during the hearing and was quickly led away after the judge read out his new sentence.  Blouin, his attorney, said after the hearing that Montgomery was pleased with the decision but "still grieves for the victim's family and the impact this has had on them."

The next step for Montgomery will be a request for a parole board hearing.  He's already served more than twice as many years as required before parole consideration and has met other requirements to apply for release. Keith Nordyke, an attorney with the Louisiana Parole Project, a nonprofit firm representing Montgomery in the parole process, said a hearing could come before the end of the year.

June 21, 2017 in Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Close examination of some JLWOP girls who should benefit from Graham and Miller

The latest issue of The Nation has two lengthy articles examining the application and implementation of the Supreme Court's modern juvenile offender Eighth Amendment jurisprudence.  Both are good reads, but the second one listed below covers especially interesting ground I have not seen covered extensively before.  Here are their full headlines, with links, followed by an excerpt from the second of the pieces: 

"The Troubled Resentencing of America’s Juvenile Lifers: When SCOTUS outlawed mandatory juvenile life without parole, advocates celebrated — but the outcome has been anything but fair" by Jessica Pishko

"Lisa, Laquanda, Machelle, and Kenya Were Sentenced as Children to Die in Prison: Decades later, a Supreme Court ruling could give them their freedom" by Danielle Wolffe

The country’s approximately 50 female JLWOP inmates represent a small fraction of the juvenile-lifer population, but the number of women serving life sentences overall is growing more quickly than that of men, according to a study by Ashley Nellis, a senior research analyst at the Sentencing Project. The women interviewed for this article also told me that they felt less informed about what was going on with their cases legally than their male counterparts.

The culpability of girls in their commission of crimes is often entwined with their role as caretakers for younger siblings. They’re also more likely to suffer sexual abuse during childhood. A 2012 study found that 77 percent of JLWOP girls, but only 21 percent of juvenile lifers overall, experienced sexual abuse. Internalized shame made them easier targets for violence by male correctional officers. From my own conversations with these women, many were teenage mothers who were separated from their babies shortly after giving birth. Others were incarcerated throughout their viable childbearing years.

I have been traveling the country to interview female juvenile lifers. Every time I visited one of these women in prison, I was haunted by the things we had in common. We were all approaching middle age. As a young adult, I too had gone off the rails and done dangerous things—the sort of things that could easily have gotten me arrested, even killed. Yet unlike the women I was interviewing, I had the option of leaving those aspects of my past behind.

The women I spoke with represent a distinct minority among juvenile lifers. They do not fit a narrative that is often centered around young men. Their stories are rarely told, even when the law demands it. The Miller and Montgomery decisions call for consideration of a teenager’s upbringing and maturation in prison, but as these women describe it, their experiences are rarely explored in depth in the courtroom. Instead, women’s resentencing is all too often shaped by ignorance and sexism. By interviewing these women, I hoped to share their unheard stories with the public. I hoped, too, that their unconventional stories might help us to reconsider our attitudes toward juvenile crime and rehabilitation—attitudes that still pervade the resentencing process.

June 21, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Wednesday, June 07, 2017

Spotlighting the continued challenges for juve lifers like Henry Montgomery even after SCOTUS victories in Miller and Montgomery

Mother Jones has this notable new article about Henry Montgomery and other juveniles who are still fighting to get relief after seemingly helpful recent Supreme Court Eighth Amendment rulings. The full headline of this piece is "The Supreme Court Said His Prison Sentence Was Unconstitutional. He’s Still Behind Bars. Despite a ruling in their favor, Henry Montgomery and other juvenile lifers are no closer to getting out."  Here are excerpts:

But although the Supreme Court often appears all-powerful, its clout is more limited than it seems. Nearly 18 months after his victory, Montgomery is still sitting in Angola, and there’s no guarantee that he — or many of the roughly 1,000 others serving similar sentences across the country — will ever get out....

Montgomery’s saga began in November 1963 in East Baton Rouge, Louisiana, during a turbulent time of racial tensions, Ku Klux Klan activity, and cross-burnings. Montgomery, who is African American, was in 10th grade and playing hooky when he encountered the local sheriff, Charles Hurt, who was white. In a panic at being caught out of school, Montgomery allegedly shot and killed Hurt with his grandfather’s gun, which he had stolen....

[If sentenced today], Montgomery would be allowed to present evidence of mitigating circumstances, and his lawyers could argue that his youth and mental disability — he had an IQ of around 70 — should be grounds for a reduced sentence. Instead, a state appellate court upheld his mandatory life sentence, and that was the end of his contact with a lawyer for decades to come....

In 2012, the US Supreme Court offered juvenile lifers such as Montgomery a glimmer of hope. In Miller v. Alabama, a case of two men who’d been sentenced to mandatory life without parole for crimes they committed at the age of 14, the court ruled 5-4 that such sentences were unconstitutional. Mandatory life without parole violated the Eighth Amendment prohibition on cruel and unusual punishment, the court said, because such sentences failed to recognize that adults differ from children, who have “diminished culpability and greater prospects for reform.” The court held that life-without-parole sentences should be used only for “the rare juvenile offender whose crime reflects irreparable corruption.”

The decision set off a flurry of litigation by inmates incarcerated as children who argued that the Miller decision should be applied retroactively. Montgomery filed a petition to have his sentence overturned without the help of a lawyer, but the Baton Rouge public defender’s office eventually took up his case. The local district attorney fought him every step of the way, and he lost in all the state appeals courts. But in 2015, the US Supreme Court agreed to hear his case.

In January 2016, the court ruled in Montgomery’s favor, with Kennedy writing that the decision, which gave juvenile lifers a shot at parole, “would afford someone like Montgomery, who submits that he has evolved from a troubled, misguided youth to a model member of the prison community, the opportunity to demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”

But the decision was only the beginning of Montgomery’s fight.  The Supreme Court decision gave states a lot of leeway in how they handle cases like Montgomery’s and punted the details to lower-court judges and state legislators.  In Louisiana, a judge could reduce Montgomery’s sentence to life with parole, but that would leave his fate to Louisiana’s notoriously stringent parole board, which could deny him release.  The Supreme Court also left room for judges to simply resentence eligible inmates to life without parole by declaring them irreparably corrupt. And that’s exactly what the Baton Rouge district attorney pushed for in Montgomery’s case....

Montgomery’s case has languished in part because the state didn’t know quite how to handle Louisiana’s 300 juvenile lifers who’d won the right to resentencing.  Should an inmate have a full-blown sentencing hearing that would resemble those used in capital cases?  And who should decide the outcome, a jury or a judge?  The courts put Montgomery’s case on hold while the state Legislature considered a bill that would automatically grant juvenile lifers a shot at parole after they’d served 30 years in prison.  But the bill died last summer, and although it’s been taken up again this year, the courts have decided to move forward without any new legislation.  Some juvenile lifers have been able to win plea bargains that freed them, but they aren’t the majority.

Working against Montgomery is the fact that the adult children and grandchildren of his victim have been involved in the process and are opposed to his release....

Montgomery is one of many juvenile lifers whose sentences remain in limbo after the Supreme Court decision. Michigan, for example, has about 350 juvenile lifers behind bars. Since the Supreme Court decision in Montgomery, the state has begun resentencing them.  [Juvenile Law Center's Marsha] Levick says that in about 85 percent of those cases, prosecutors are again seeking life without parole.  In one jurisdiction, the local prosecutor is the same former judge who sentenced many of the inmates to life in the first place. She has requested new life sentences for 44 of 49 inmates serving life without parole for murders they committed before the age of 18....

Jody Kent Lavy, executive director of the Campaign for Fair Sentencing of Youth, visited Montgomery in Angola earlier this year and says that because of the resistance of states like Louisiana and Michigan to implementing the Montgomery decision, the high court really “needs to take another step to bar life without parole [for juveniles] outright.”  She notes that local district attorneys are usually elected, and so the Montgomery decision “still leaves room for racially charged decisions, politically motivated decisions, as opposed to what is fair.  It keeps me up at night.”

A state court judge heard Montgomery’s case last month and promised a decision by late June.

June 7, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Wednesday, May 31, 2017

"Random If Not 'Rare'? The Eighth Amendment Weakness of Post-Miller Legislation"

The title of this post is the title of this new paper authored by Kimberly Thomas and available via SSRN. Here is the abstract:

First, this Article surveys the U.S. Supreme Court’s decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes.  Second, this Article examines the state legislative response to Miller v. Alabama, and scrutinizes it with the Court’s Eighth Amendment death penalty law — and the states’ responses to this case law — in mind.  This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of offenders to the most likely to have demonstrated “irreparable corruption,”; and 3) provide for meaningful appellate review, among other deficiencies. 

May 31, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, May 28, 2017

DC sniper Lee Malvo to get resentencing thanks to Miller Eighth Amendment rule

As reported in this AP piece, a "federal judge on Friday tossed out two life sentences for one of Virginia's most notorious criminals, sniper Lee Boyd Malvo, and ordered Virginia courts to hold new sentencing hearings."  Here is why:

In his ruling, U.S. District Judge Raymond Jackson in Norfolk said Malvo is entitled to new sentencing hearings after the U.S. Supreme Court ruled that mandatory life sentences for juveniles are unconstitutional.

Malvo was 17 when he was arrested in 2002 for a series of shootings that killed 10 people and wounded three over a three-week span in Virginia, Maryland and the District of Columbia, causing widespread fear throughout the region. His accomplice, John Allen Muhammad, was executed in 2009.

Malvo also was sentenced to life in prison in Maryland for the murders that occurred there. But his lawyers have made an appeal on similar grounds in that state.  A hearing is scheduled in June.

Fairfax County Commonwealth's Attorney Ray Morrogh, who helped prosecute Malvo in 2003, said the Virginia attorney general can appeal Jackson's ruling.  If not, Morrogh said he would pursue another life sentence, saying he believes Malvo meets the criteria for a harsh sentence....

Michael Kelly, spokesman for Virginia Attorney General Mark Herring, said Friday evening that the office is "reviewing the decision and will do everything possible, including a possible appeal, to make sure this convicted mass murderer serves the life sentences that were originally imposed."  He also noted that the convictions themselves stand and emphasized that, even if Malvo gets a new sentencing hearing, he could still be resentenced to a life term....

Jackson, in his ruling, wrote that Malvo was entitled to a new sentencing hearing because the Supreme Court's ruling grants new rights to juveniles that Malvo didn't know he had when he agreed to the plea bargain.

The full 25-page opinion resolving Malvo's habeas petition is available at this link.

May 28, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Tuesday, May 23, 2017

Colorado Supreme Court rules Graham and Miller do not limit aggregate term-of-years sentence

Yesterday I noted in this post a Minnesota Supreme Court ruling from last week that resisted extending the Supreme Court's recent limits on LWOP sentences for juvenile offenders to aggregate lengthy sentences for multiple crimes.  Perhaps exactly as I was writing that post, the Colorado Supreme Court handed down a similar ruling in Lucero v. Colorado, No. 13SC624 (Colo. May 22, 2017) (available here). Here is a key passage from the start of the majority opinion in Lucero:

[W]e hold that neither Graham nor Miller applies to an aggregate term-of-years sentence, which is the sentence Lucero challenges. In Graham, the U.S. Supreme Court held unconstitutional a life without parole sentence imposed on a juvenile for a single nonhomicide offense. 560 U.S. at 57, 82. In Miller, the Court held that a sentence of “mandatory life without parole for those under the age of 18 at the time of their crimes” violates the Eighth Amendment. 132 S. Ct. at 2460. Life without parole is a specific sentence, distinct from sentences to terms of years. Lucero was not sentenced to life without parole.  Rather, he received multiple term-of-years sentences for multiple convictions.  Therefore, Graham and Miller are inapplicable to, and thus do not invalidate, Lucero’s aggregate sentence.

The concurring opinion in Lucero notes that a significant number of state supreme courts and other courts have held that the Eighth Amendment rule articulated in Graham "extends to cases in which a juvenile offender receives the functional equivalent of an LWOP sentence." At some point (though I have no idea when), the U.S Supreme Court will have to clarify whether and how Graham nor Miller limit the imposition of sentences other than LWOP.

May 23, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (7)

Monday, May 22, 2017

Minnesota Supreme Court upholds consecutive sentences adding up to 90 years before parole eligibility for juve killer of three

Via this new commentary criticizing the opinion, I just learned of this notable ruling handed down last week by the Minnesota Supreme Court concerning the application of the Supreme Court's Eighth Amendment rulings in Miller and Montgomery. The commentary provides a helpful summary of the ruling and the concerns it might engender for those eager for Miller to have a broad reach:

In 2010, at the age of 16, Mahdi Hassan Ali committed a terrible crime in Minneapolis.  During the course of a store robbery, Ali shot and killed three people.  He was tried as an adult, and a jury found him guilty of two counts of felony murder and one count of first-degree murder.  On the felony murder convictions, the Hennepin County District Court sentenced Ali to two consecutive life sentences with the possibility of release on each after 30 years; on the first-degree murder conviction, Ali was sentenced to mandatory life imprisonment without the possibility of release....

In light of Miller [decided in 2012], the Minnesota Supreme Court overturned Ali’s sentence of mandatory life imprisonment and remanded the case back to the Hennepin County District Court for a new sentence.  On Jan. 6, 2016, Ali was sentenced to three consecutive sentences of life imprisonment with the possibility of release on each after 30 years. The sentences render Ali ineligible for release until he is 106 years old.

Shortly after the district court’s decision, the U.S. Supreme Court issued a new opinion in Montgomery vs. Louisiana, which offered fresh insight into the Miller ruling. Montgomery explained that the court intended Miller to bar all sentences of life without parole, not just mandatory ones, for any but the rarest of juvenile offenders who were permanently incorrigible and unable ever to be reformed....

Notwithstanding these decisions, the Minnesota Supreme Court filed an opinion last week upholding Ali’s sentences of three consecutive life terms.  In an opinion authored by the newly elected Justice Natalie Hudson, the Minnesota court decided that Miller and Montgomery apply only to single sentences of life without parole, refusing to extend the principles articulated in Miller and Montgomery to consecutive sentences that have the same effect.

Rather than requiring a special hearing to determine Ali’s prospects for reform, as Montgomery requires for sentences of life imprisonment without parole, the court decided that consecutive life sentences require no such hearing, even when they will likely result in a juvenile offender’s being imprisoned until death.

Last week’s opinion from the Minnesota Supreme Court will offer state prosecutors a new tool when seeking to imprison children for the duration of their natural lives.  For juvenile offenders convicted of serious offenses, prosecutors will seek lengthy consecutive sentences rather than seeking sentences of life imprisonment without parole.  Under the opinion, this tack will obviate the need for a hearing to determine whether the juvenile is amenable to reform, regardless of the length of the child’s sentence.

Like the author of this commentary, I am troubled whenever it seems courts are embracing formal rather than functional considerations to limit the reach of the Eighth Amendment juvenile sentencing proportionality rules set forth in Graham and Miller and Montgomery.  Still, for reasons the majority opinion in this Ali case stresses, I can understand why many courts have in various settings given constitutional significance in Eighth Amendment analysis to the fact that a defendant has been sentenced to an extreme term for multiple serious crimes rather than just one. Notably, the US Supreme Court has never formally addressed just how multiple-offense, consecutive sentencing should be analyzed under the Eighth Amendment, and this Minnesota case serves to highlight how this is one of a number of Graham and Miller and Montgomery application issues challenging lower courts nationwide.

May 22, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (20)

Thursday, May 04, 2017

South Carolina Supreme Court rejects constitutional challenge to juve sex offender's mandatory lifetime registration/monitoring

Yesterday the South Carolina Supreme Court handed down an opinion in In the Interest of Justin B., No. 27716 (S. Ct. May 3, 2017) (available here), unanimously rejecting the contention that "mandatory imposition of lifetime registration and electronic monitoring on juveniles is unconstitutional."  The relatively short opinion is a bit curious because, after reviewing a bunch of previous rulings in which it had "upheld the constitutionality of the mandatory lifetime sex offender registry requirement with electronic monitoring for adults and juveniles," the opinion does not discuss Graham or Miller but does confront and reject the juvenile's assertion that the constitutional analysis should "yield a different result under the reasoning of Roper v. Simmons."

Roper is, indisputably, a relevant precedent if and when a juvenile offender is arguing against mandatory imposition of lifetime registration and electronic monitoring.  But, in my view, the more recent precedents of Graham and Miller are even more critical and central to mounting an Eighth Amendment argument against any mandatory lifetime sanction for a juvenile offender. (As noted in this prior post, more than five years ago the Ohio Supreme Court relied heavily on Graham to find unconstitutional a mandatory lifetime registration requirement for juvenile sex offenders.)

In the end, I do not think engagement with Graham and Miller would have made any real difference to the South Carolina Supreme Court.  As this conclusion to the opinion highlights, that court has long deemed registration and monitoring to be civil non-punitive provisions that are not really subject to traditional constitutional limits on punishment:

The requirement that adults and juveniles who commit criminal sexual conduct must register as a sex offender and wear an electronic monitor is not a punitive measure, and the requirement bears a rational relationship to the Legislature's purpose in the Sex Offender Registry Act to protect our citizens — including children — from repeat sex offenders.  The requirement, therefore, is not unconstitutional.  If the requirement that juvenile sex offenders must register and must wear an electronic monitor is in need of change, that decision is to be made by the Legislature — not the courts.  The decision of the family court to follow the mandatory, statutory requirement to impose lifetime sex offender registration and electronic monitoring on Justin B. is AFFIRMED

May 4, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Wednesday, May 03, 2017

PBS Frontline covers the impact of Miller via "Second Chance Kids"

Pbs-frontline-merged-logoAs detailed via this posting, the PBS series Frontline premiered a new documentary last night titled Second Chance Kids. Here is a kind of preview from the posting:

What happens when prisoners convicted of murder as teenagers are given the chance to re-enter society? In the wake of Miller v. Alabama — the 2012 Supreme Court ruling that found mandatory life sentences without the chance of parole for juveniles unconstitutional — some 2,000 offenders across the country are hoping to find out.

With unique access, the new FRONTLINE documentary, Second Chance Kids, follows the cases of two of the first juvenile lifers in the country to seek parole following the landmark ruling — including Anthony Rolon of Massachusetts.

At age 17, Rolon stabbed 20-year-old Bobby Botelho to death. He was given life without parole during the country’s crackdown on so-called juvenile “superpredators” — teenagers who were labeled violent, dangerous and incapable of change. The theory, which was popularized by academics and embraced by Democrats and Republicans alike, resulted in disproportionately extreme sentencing of black and Latino youths.

As the documentary explores, the “superpredator” theory has now largely been discredited and disavowed. And a series of Supreme Court rulings, relying heavily on developmental science, has said that the personal circumstances of teenage offenders must be taken into account when they’re sentenced. The court has also ruled that many of them should have the chance to prove they’ve changed.

In the above excerpt from Second Chance Kids, go inside the parole hearing that will decide Rolon’s fate. Watch as Rolon and his legal team plead for his release after 18 years, and as Botelho’s family argues against it.

As juvenile offenders across the country await their potential re-sentencing, the documentary asks tough questions about crime and punishment in America, and what happens when some offenders are given a second chance.

The PSB website allows one to watch the documentary in full, and it also has these two companion articles:

"They Were Sentenced as “Superpredators.” Who Were They Really?"

"How Brain Science Is Changing How Long Teens Spend in Prison"

May 3, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (9)

Sunday, March 05, 2017

Five years after his SCOTUS victory, Evan Miller scheduled to be resentenced

This local article, headlined "Re-sentencing of Evan Miller ordered by US Supreme Court set for March 13," reports on the upcoming resentencing of a defendant's whose surname now represents a big part of modern "kids-are-different" Eighth Amendment jurisprudence.  Here are some of the particulars from the article, which prompts some questions for me:

A sentencing hearing has been scheduled for March 13 in Lawrence County for Evan Miller, whose original sentence on a capital murder conviction was overturned by the U.S. Supreme Court and led to sentencing laws being changed for juveniles nationwide.

The Supreme Court in 2012 ordered that Miller be re-sentenced because the state’s only sentencing option for a juvenile convicted of capital murder was life in prison without the chance of parole.  A state law adopted last year now gives a judge the option of sentencing a juvenile convicted of capital murder to life in prison with the chance of parole after serving at least 30 years in prison.

Miller, now 28, was convicted of capital murder in 2006 for the 2003 killing of Cole C. Cannon in Cannon’s home in a Five Points mobile home park. Miller, who was 14 when the beating death occurred, is an inmate at St. Clair Correctional Facility in Springville.

Cannon’s daughter, Cindy Cheatham, said she thinks next month’s sentence hearing before a jury will be the the last court proceeding for the Cannon family in the case. “Even though there is anticipation, it makes me sort of edgy and emotional,” Cheatham said. “I’m ready for it to be over.  But it will never really be over.”...

When Miller was sentenced in 2006, Circuit Court Judge Philip Reich, who is now retired, sentenced Miller to life in prison without the possibility of parole.  The only sentences allowed by state law at the time for capital murder were the death penalty or life in prison without parole.  Reich could not sentence Miller to death because the Supreme Court in 2005 declared the death penalty for defendants younger than age 18 to be unconstitutional.

The Equal Justice Initiative appealed Miller’s sentence to the Supreme Court, which voted 5-4 that the state must have another sentencing option available for juveniles in a capital case other than life without parole.  The court sent the case back to Lawrence County for re-sentencing.  The new state law that a juvenile can be eligible for parole after 30 years does not preclude a judge from sentencing a juvenile capital murder defendant to life in prison without parole.

My first question after reading this article concerned why it took nearly five years for Evan Miller to have a resentencing, but this local article from last year suggests that resentencing was delayed until the Alabama legislature created a "Miller fix" in its sentencing law.  That "fix" now gives an Alabama judge, as detailed above and more fully in this local article, in this kind of case the discretion to impose LWOP or life with a chance at parole after 30 years.

But when remains unclear to me is why Evan Miller is apparently scheduled to appear before a jury at resentencing.  I suspect this may be because technically he is being resentenced on a capital conviction, but some have suggested in this juve sentencing setting that the Supreme Court's work in  Miller and the follow-up case Montgomery, combined with the Apprendi line of cases, now requires a jury finding of "irreparable corruption" to permit  giving a juve an LWOP sentence.  I would be grateful to hear from anyone in the know about Alabama sentencing procedures about why this article talks about Miller's upcoming sentence hearing being "before a jury."

March 5, 2017 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Thursday, March 02, 2017

Washington Supreme Court rules Eighth Amendment precludes applying mandatory minimum adult sentencing scheme to juvenile offenders

The Supreme Court of Washington issued a very significant new ruling expanding the reach of the Eighth Amendment as adumbrated by the Supreme Court in Graham and Miller. The extended ruling in Washington v. Houston-Sconiers, No. 92605-1 (Wash. March 2, 2016) (available here), gets started this way:

"[C]hildren are different." Miller v. Alabama,_ U.S. _, 132 S. Ct. 2455, 2470, 183 L. Ed. 2d 407 (2012). That difference has constitutional ramifications: "An offender's age is relevant to the Eighth Amendment, and [so] criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed." Graham v. Florida, 560 U.S. 48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); U.S. CONST. amend. VIII.  The defendants in this case -- Zyion Houston-Sconiers and Treson Roberts -- are children. On Halloween night in 2012, they were 17 and 16 years old, respectively.  They robbed mainly other groups of children, and they netted mainly candy.

But they faced very adult consequences.  They were charged with crimes that brought them automatically into adult (rather than juvenile) court, without any opportunity for a judge to exercise discretion about the appropriateness of such transfers.  They had lengthy adult sentencing ranges calculated under adult Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, rules.  And they received lengthy adult firearm sentence enhancements, with their mandatory, consecutive, flat-time consequences, without any opportunity for a judge to exercise discretion about the appropriateness of that sentence increase, either.

As a result, Houston-Sconiers faced a sentencing range of 501-543 months (41.75-45.25 years) in prison.  Clerk's Papers (Houston-Sconiers) (CPHS) at 227.  Of that, 3 72 months (31 years) was attributable to the firearm sentence enhancements and would be served as '"flat time,"' meaning "in total confinement" without possibility of early release. Id.; RCW 9.94A.533(3)(e).  Roberts faced a sentencing range of 441-483 months (36.75-40.25 years) in prison. Clerk's Papers (Roberts) (CPR) at 154.  Of that, 312 months (26 years) would be "'flat time"' attributable to the firearm sentence enhancements. Id.

To their credit, all participants in the system balked at this result. But they felt their hands were tied by our state statutes.

We now hold that the sentencing judge's hands are not tied.  Because "children are different" under the Eighth Amendment and hence "criminal procedure laws" must take the defendants' youthfulness into account, sentencing courts must have absolute discretion to depart as far as they want below otherwise applicable SRA ranges and/or sentencing enhancements when sentencing juveniles in adult court, regardless of how the juvenile got there.  We affirm all convictions but remand both cases for resentencing.

March 2, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (10)

Wednesday, March 01, 2017

Is anyone tracking comprehensively data on resentencings (and release and recidivism) of those aided by Graham and Miller?

The question in the title of the post was recently posed to me, and I did not have a good answer. But this seems like a timely question now that it has been nearly a full seven years since Graham v. Florida declared LWOP unconstitutional for juvenile non-homicide offenders and five years since Miller v. Alabama declared mandatory LWOP unconstitutional for juvenile homicide offenders. (Of course, it has only been a year since SCOTUS in Montgomery v. Louisiana declared Miller fully retroactive and thereby required a number of states to start dealing with Miller's impact on prior offenders.)

I know that the Campaign for the Fair Sentencing of Youth a few months ago produced this publication about legal reforms in the wake of Graham and Miller under the title "Righting Wrongs: The Five-Year Groundswell of State Bans on Life Without Parole for Children."   But that report has more stories than numbers.  Similarly, two 2015 reports from the public interest firm Phillip Black, titled "Juvenile Life Without Parole After Miller" and "No Hope: Re-examining Lifetime Sentences for Juvenile Offenders," look mainly at state litigation and legislative responses to Graham and Miller.  The Fair Punishment Project has also done some significant work on juve LWOP, including some notable locality-specific analysis of post-Miller litigation, but I do not see any comprehensive or detailed data runs on its site.  The Juvenile Law Center, which has played an integral role in a lot of post-Miller state-court litigation, helped produced this thoughtful and detailed report on the import and impact of Graham and Miller under the title "The Supreme Court and the Transformation of Juvenile Sentencing."  But that report, which is already nearly two years old, also lacks any detailed empirics.

I have seen estimates of the population of juve LWOPers with sentences impacted by Graham and Miller to be around 2500, and I am hopeful and somewhat confident that someone somewhere is at least trying to track comprehensively data on how this population is being resentenced.  But I have not yet seen such data published, and perhaps I am wrong to assume that it is being systematically collected.

March 1, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Sentences Reconsidered | Permalink | Comments (2)