Monday, April 18, 2016
Seeing Montgomery and Welch as SCOTUS Teague make-up calls
A few years ago I wrote this extended article, titled "Re-Balancing Fitness, Fairness, and Finality for Sentences," which made the case for modern doctrines to be far less concerned about sentence finality, and far more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences. Though I did not in that article call for the Supreme Court's Teague doctrines to be ignored, passages from it suggesting Teague's limit on retroactivity ought to be narrowly construed appeared in amicus briefs I signed in Montgomery and Welch.
I have been pleased that Montgomery and now Welch both resulted in a significant block of Justices declaring prior Eighth And Fifth Amendment rulings fully retroactive. But how the Court majority has gotten there has been more than a bit puzzling because, as I see, the Court keeps massaging Teague while it suggests that it is faithfully applying the doctrine. In Montgomery, as I explain in this new commentary, six Justices signed on to an opinion (including Chief Justice Roberts) that seems, at least indirectly, to rewrite significantly the very foundational legal basis for Teague. And, in the final line of his solo dissent in Welch today, Justice Thomas complains that the majoity opinion in Welch (which has the votes of both Chief Justice Roberts and Justice Alito) shows that "the Court keeps moving the [retroactivity] goalposts" through its "unprincipled expansion of Teague [so that] every end is instead a new beginning."
I bring all this up because, upon reading Welch, this one passage from the majority opinion stood out for a couple of reasons:
[W]here the conviction or sentence in fact is not authorized by substantive law, then finality interests are at their weakest. As Justice Harlan wrote, “[t]here is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose.” Mackey, 401 U. S., at 693 (opinion of Harlan, J.).
First and foremost, I am pleased and I think it potentially quite important (and in harmony with my own writings) to see the Supreme Court state expressly that "finality interests are at their weakest" when substantive law has changed and a defendant is still dealing with the consequences of the conviction or sentence based on the now-changed substantive law.
Second, as explained in the title of this post, the quote from Justice Harlan seems especially notable here in describing the limited societal interest in "permitting the criminal process to rest at a point where it ought properly never to repose." I suspect that Chief Justice Roberts was somewhat more comfortable with the Teague rewriting in Montgomery and that both the Chief and Justice Alito were content with the Court's work in Welch because they may have come to the conclusion the Court ultimately took unfairly long before finally finding constitutional problems with mandatory juve LWOP and the residual clause of ACCA. In both settings, lots and lots of defendants subject to really long prison terms have been persistently complaining for decades that these extreme sentencing laws were constitutionally problematic. I would guess that, as judicial umpires calling balls and strikes, the Chief and Justice Alito could live with a "Teague" make-up call to help the defendants who before kept getting strikes called against them.
Sunday, April 17, 2016
"Montgomery's Messy Trifecta"
A few weeks ago, I finally found a bit of extra time to dig into the doctrinal particulars of the Supreme Court's important ruling in Montgomery v. Louisiana, which finally clarified that its 2012 ruling in Miller v. Alabama was to be applied retroactively. Because I was pleased with the substantive outcome in Montgomery, at the time of the decision I did not give too much attention or thought to just how the Justices got to that outcome. But once I found time to focus on the doctrine developed in Montgomery, I decided I was not too impressed. Indeed, troubled by the Montgomery doctrinal particulars, I got motivated to write this little commentary which carries the same title as the title of this post. And, via SSRN, here is the abstract for my short commentary about Montgomery:
Montgomery v. Louisiana arrived at the Supreme Court at the intersection of three conceptually challenging and jurisprudentially opaque areas of law. First, Montgomery came to the Court as an Eighth Amendment case requiring the Justices to struggle yet again with the counter-majoritarian question of what limits the Cruel and Unusual Punishments Clause puts on government powers to impose certain sentences on certain defendants for certain crimes. Second, Montgomery came to the Court as a retroactivity case requiring the Justices to struggle with the practical question of how new constitutional rules are to apply to old and seemingly settled criminal judgments. Third, Montgomery became a federalism case because the Justices, when granting certiorari review, added the jurisdictional question of whether the Court even had authority to review how Louisiana had implemented the Supreme Court’s prior decisions on Eighth Amendment and retroactivity issues.
In this short essay, I briefly discuss the doctrinal puzzles of Montgomery in each of these three areas of law --- Eighth Amendment limits on sentences, retroactivity of new constitutional rules, and federal review of state criminal adjudications. Specifically, I explain how the Montgomery opinion achieved a messy trifecta: through one relatively short opinion, the Supreme Court managed to make each of these areas of law significantly more conceptually challenging and jurisprudentially opaque than they already were.
Tuesday, April 12, 2016
Ninth Circuit talks through requirements for Miller resentencing a decade after mandatory LWOP
The Ninth Circuit yesterday issued an interesting opinion faulting a district court for how it limited the evidence it considered and other problems with how it conducted a resentencing of a juvenile murderer given a mandatory LWOP sentence a decade before such a sentences was deemed unconstitutional by the Surpeme Court. Miller fan will want to read US v. Pete, No. 14-103 (9th Cir. April 11, 2016) (available here), in full, and here is how the opinion starts and along with some key passages from the heart of its analysis:
Branden Pete was 16 years old when he committed a crime that resulted in a mandatory sentence of life without the possibility of parole. Later, Miller v. Alabama, 132 S. Ct. 2455 (2012), held unconstitutional for juvenile offenders mandatory terms of life imprisonment without the possibility of parole. On resentencing, the district court refused to appoint a neuropsychological expert pursuant to 18 U.S.C. § 3006A(e) to help Pete develop mitigating evidence.
Our principal question on appeal is whether the district court abused its discretion in declining to appoint such an expert to aid the defense. We conclude that it did, and so remand for appointment of an expert, and for resentencing after considering any expert evidence offered. We also consider, and reject, Pete’s other challenges to his resentencing....
In rejecting the motion to appoint an expert, the district court ... noted that Pete’s upbringing and the circumstances of the crime have not changed, and maintained that because a psychiatric evaluation had been done in 2003, a second evaluation would be “duplicative.” “[I]t is difficult to conceive how,” the district court stated, “the passage of time may impact [the psychiatric] evidence” presented during the pretrial proceedings nearly ten years before. Further, the district court held that the impact of incarceration on Pete “is not the type of mitigating evidence which Miller contemplates.” We disagree with the district court as to all three aspects of its reasoning....
When the district court ruled that no expert testimony was “necessary,” it ignored Miller’s reasoning and directives. At the time of resentencing, Pete’s neuropsychological condition had not been evaluated in more than a decade. An updated evaluation could have revealed whether Pete was the same person psychologically and behaviorally as he was when he was 16. Rather than being “duplicative,” as the district court believed, a new evaluation could have shown whether the youthful characteristics that contributed to Pete’s crime had dissipated with time, or whether, instead, Pete is the “rare juvenile offender whose crime reflects irreparable corruption.” Id. at 2469 (citation omitted); see also Montgomery, 136 S. Ct. at 733. Similarly, without current information relating to the policy rationales applicable specifically to juvenile offenders, Pete was hamstrung in arguing for a more lenient sentence.
More specifically, the significant mitigating evidence available to Pete at resentencing, other than his own testimony and that of his lawyer (neither of which the district court credited), would have been information about his current mental state — in particular, whether and to what extent he had changed since committing the offenses as a juvenile. This information was directly related to Pete’s prospects for rehabilitation, including whether he continued to be a danger to the community, and therefore whether the sentence imposed was “sufficient, but not greater than necessary, to comply with the purposes” of sentencing. 18 U.S.C. § 3553(a); see id. (a)(2)(C), (D). Such information is pertinent to determining whether, as Miller indicates is often the case, Pete’s psychological makeup and prospects for behavior control had improved as he matured, with the consequence that his prospects for rehabilitation and the need for incapacitation had changed.
April 12, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (2)
Taking a close look at the prosecutor dealing with Miller and Montgomery on the ground in Philly
Daniel Denvir has this intriguing piece in Salon about the resentencing of juvenile murderers in the City of Brotherly Love and Sisterly Affection. The full headline highlights its themes: "The unconstitutional outrage of juvenile life sentences: Why Philadelphia will be a case study for this criminal-justice reform: The city is faced with deciding what to do about 300 now-unconstitutional juvenile life sentences." Here is how it starts:
Children convicted of committing murder on Philadelphia’s violent streets long faced the prospect of receiving the harshest sentence short of death: life without parole. Today, the city has more juvenile offenders locked up for life than any other. It has been a grim and predictable cycle: Young black men mourned at premature funerals and their killers packed into state prisons with only the narrowest hope of ever leaving. And then the tough-on-crime pendulum began to swing back.
In 2012, the U.S. Supreme Court ruled that mandatory life without parole for juveniles was unconstitutional, and in a January decision they made that ruling retroactive. And so Philadelphia District Attorney Seth Williams has roughly 300 big decisions to make: How long will he seek to imprison the onetime juveniles, many now much older, who until recently were set to die behind bars?
States responded to the 2012 Miller v. Alabama decision in a hodgepodge manner, including by abolishing juvenile life without parole entirely. In Pennsylvania, however, then-Gov. Tom Corbett signed a law that angered reform advocates for its harshness, changing the sentence for first-degree murder to 35 years to life for older juveniles, and 25 to life for younger ones. Those convicted of second-degree murder now face sentences of 20 or 30 years to life.
Critically, the law did not make the new sentences retroactive, leaving hundreds of Pennsylvania juvenile lifers in limbo. The Court’s January decision in Montgomery v. Louisiana means that prosecutors and judges throughout Pennsylvania will soon face a deluge of prisoners asking to be re-sentenced. In Philadelphia, advocates are concerned that Williams, who has taken a tough line in the past, will fight to keep many behind bars for a long time.
“The District Attorney has a pretty stark choice,” emails Marc Bookman, director of the Atlantic Center for Capital Representation. “He can either follow the very obvious trend away from sentencing juveniles to life without parole sentences, or he can swim against the tide and against the dictates of the Supreme Court and continue to seek such sentences.”
Williams’ office, which declined to comment for this story, must navigate the gap between the Supreme Court and the current state law. It’s unclear how he will proceed. The Supreme Court only barred mandatory life without parole sentences, so he could try to keep some locked up. The Court did make it clear, however, that life without parole sentences should only be applied in rare cases where an offender is “irreparably corrupted.”
Brad Bridge, a lead attorney at the Defender Association of Philadelphia, criticized Williams’ past opposition to making Miller retroactive and says that he should move quickly to resolve the cases of those who have been incarcerated the longest. “Based upon [these court rulings,] we now must re-sentence over 300 juvenile lifers in Philadelphia,” emails Bridge. “Given that over 100 of these juvenile lifers have been incarcerated for over 30 years, we should quickly resolve those cases immediately by agreeing to release those who have done well in prison. It is only by prompt resolution of 100, and maybe 200, of these cases that the resources of the judiciary, prosecutor and defense can be properly focused on the 100 cases that cannot be resolved by agreement.”
Bridge and the Juvenile Law Center, a leading critic of juvenile life without parole, have called for the prisoners to be re-sentenced on third-degree murder, carrying a sentence of 20 to 40 years. But Richard Long, executive director of the Pennsylvania District Attorneys Association, has argued that the harsher sentences meted out by the state’s new law should be applied.
Seth Williams is the association’s vice president, and last fall conveyed his opposition to re-sentencing, telling WHYY that the prisoners “aren’t kids in fifth grade doing these things… We’re talking about killings. Not someone who stole someone’s laptop. We’re talking about the loss of life. And us having to look into the eyes of victims’ families, who want something done.”
Wednesday, April 06, 2016
The title of this post is the title of this timely new piece by William Berry now available via SSRN. Here is the abstract:
When the Court interprets the Constitution to accord a new right to criminal offenders, the question quickly becomes which prisoners might benefit from the new rule. The current retroactivity doctrine relies on a confusing substance-procedure dichotomy. Drawn from Teague v. Lane, this test often results in lower court splits on the retroactivity question. Just this term, the Supreme Court has already decided the question of retroactivity in one case — Montgomery v. Louisiana, and has granted certiorari in another — Welch v. United States.
This Article rejects the substance-procedure dichotomy and offers a competing theoretical frame for considering the question of retroactivity. Specifically, the Article develops the concept of “normative retroactivity,” arguing that retroactivity should relate directly to the normative impact of the new rule on previous guilt and sentencing determinations. Further, the article advances a doctrinal test for assessing normative retroactivity of new rules of criminal constitutional law that combines the normative impact of the rule with a balancing test that weighs the applicable values of fundamental fairness and equality under the law against the competing values of finality, comity, and government financial burden.
April 6, 2016 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)
Examining how Michigan, thanks to Montgomery, is struggling through Miller retroactivity
A couple of month ago I flagged here a press report on the legal and practical challenges unfolding in Pennsylvania after the Supreme Court's ruling in Montgomery v. Louisana forced the state to start dealing with all its now-unconstitutional mandatory juve LWOP sentences. Now I see this similar story from Michigan headlined " Hundreds of Mich. juvenile lifer cases to be reviewed." The lengthy and details article gets started this way:
Hundreds of killers sentenced to mandatory life without parole while in their teens could be resentenced this year, but a debate over how to process the cases has left prosecutors and lawyers in limbo. The Michigan Court of Appeals has been asked to decide whether a judge or jury should consider whether to give offenders new sentences. A hearing is anticipated, but a date to make arguments hasn’t been set.
The U.S. Supreme Court ruled in 2012 that sentencing a person under 18 to life in prison without parole constitutes “cruel and unusual punishment.” The decision potentially affects 363 cases in Michigan dating to 1962.
Prosecutors have been required to provide a list to the chief judge in every county of the cases that may require resentencing. Wayne County has the most, at 152. Oakland is second with 49, followed by Genesee with 26 and Kent with 24. Macomb has 12 cases to be reconsidered for sentencing. Prosecutors will have to make legal motions to resentence those they feel still deserve life without parole. Other defendants will get a minimum of 25-40 years and a maximum of 60 years to serve before automatically being considered for parole.
Critics, including families of victims, argue mandatory resentencing may be unjust and open old wounds for victims who thought their cases were settled. Local law enforcement officials and prosecutors predict the process will be lengthy, costly and could further traumatize families.
Gov. Rick Snyder has recommended adding $1.1 million to the state budget to fund 11 full-time employees at the State Appellate Defenders Office for compliance with the Supreme Court ruling. But prosecutors, struggling with smaller staffs and tighter budgets, say they need more money too. Defense and appellate attorneys agree it’ll cost money to process the cases, but they argue it’s the right thing to do.
Many young offenders are immature, act impulsively and often are under the direction of older defendants, advocates say. Some juvenile lifers already have served beyond the minimum sentences that would have otherwise taken effect under resentencing, but for the pending hearing in the Michigan Court of Appeals.
“The bottom line is we’re not opening the doors and letting them all out — there will be a process and a hearing and some will be determined unfit for release,” said Valerie Newman, an assistant defender in the State Appellate Defenders Office. “And there will still be parole hearings.”
County prosecutors in Michigan say the process will take time, money and care to ensure that people who should be in prison stay there. St. Clair County Prosecutor Michael Wendling, who recently testified before a state Senate subcommittee on potential problems with resentencing, said: “It will tie up my staff and also challenge our resources — and I have only four cases; some counties have more than a hundred.” Wendling said after it is determined a case will be resentenced, it will mean locating victims, witnesses and experts and diverting assistant prosecutors from new cases.
Among Wendling’s old cases is one from 2010 in which Tia Skinner, then 17, plotted with a boyfriend to kill her parents after they took away her cellphone. Skinner has been resentenced twice, Wendling said. Another involves James Porter, then 17, of Yale who on one morning in 1982, balanced a .22 rifle on the handlebars of his bicycle, pedaled to the house of a friend with whom he had a dispute and fatally shot the teen and four family members. “I suspect we will be seeking the same sentences on all four of our juvenile lifers — these aren’t shoplifting cases,” Wendling said.
Saturday, April 02, 2016
Noticing the notable nature of states now categorically banning LWOP for juvenile murderers
This Washington Post piece by Amber Phillips spotlights an interesting reality as states continue to engage with some of the Supreme Court's recent Eighth Amendment jurisprudence. This piece is headlined "States are getting rid of life sentences for minors. And most of them are red states." Here are excerpts:
As America revisits its tough-on-crime policies from decades past, much of how to fix our criminal justice system is still up for debate. Most prominently, a bipartisan bill to rewrite the nation's sentencing laws is slogging through Congress and may well get stuck there.
But criminal justice reform advocates are celebrating a surprising amount of success in one area largely off the radar of the national debate: banning the practice of sentencing minors to life in prison without parole.
Twenty-one states ban entirely or in most cases the practice of sentencing minors to life without parole. Many of those bans have been instituted in the past decade. Lately, Republican-leaning states have been picking up the cause, an indication that the sentencing practice instituted in the 1990s is on its way out.
On Tuesday, Utah became the second state this year to ban such sentences, after South Dakota. And in the past few years, Wyoming, Nevada and West Virginia have instituted some version of the ban. Since a critical 2012 Supreme Court decision on this issue, the number of states that have banned the practice has more than tripled, said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth.
The debate, like many others in criminal justice reform, is hard to separate from race; advocates say the minors who have been sentenced to life without parole are 10 times as likely to be black than white. "There's clearly been a shift and a recognition that young people need to be held accountable in more age-appropriate ways, and we've really gone too far in our approach to youth sentencing," Lavy said....
In Utah, the debate to eliminate the practice from the books went pretty smoothly, said state Rep. Lowry Snow (R), who sponsored the bill. "I didn't have to twist a lot of arms," he said.
Snow and advocates say the arguments speak for themselves; they cite research that adolescents' brains are still growing and, thus, are not as skilled as adults' in controlling impulses or thinking through long-term actions. "They're not the same people when they're 16, 17, 18 than they are when they're 40 and 50 years old," he said.
Another argument that seems to resonate among more conservative, religious lawmakers is one of redemption. "Utah is very prone to a recognition that there can be redemption and people can be given a second chance," Snow said....
At its basic level, the debate over whether to keep or get rid of life sentences without parole mirrors the debate over the death penalty: What's the most appropriate way to punish someone for a heinous crime? In that sense, there is still opposition to the idea of banning life-without-parole sentences for minors.
Some crimes "are so heinous, so violent, so destructive … that maybe in rare cases they should receive the sentence of life without parole," state Rep. Merrill Nelson (R) said on the floor of the Utah statehouse after he spoke with the father of a teen who was killed by another teen. "Why should we take that discretion away from the judge?"
A victims advocacy group, the National Organization of Victims of Juvenile Murderers, says a ban is out of step for several reasons: The potentially un-ending parole process is often "torture" for a victim's family, and while it doesn't advocate for any specific sentence, it does not see why the life-without-parole option should be taken off the table....
And success, as described here, is relative. More than half of U.S. states still allow the sentence, after all. But given the broader political context in which these bans are coming, criminal justice reform advocates will take what they can get.
Thursday, March 31, 2016
Fair Punishment Project releases first major report: "Juvenile Life Without Parole in Philadelphia: A Time for Hope?"
In this post yesterday I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). Today I received an email concerning the great new work of this great new initiative. Here is part of this email reporting on this new report from FPP:
As Pennsylvania prepares for hundreds of resentencing hearings, a new report released today by the Fair Punishment Project and Phillips Black highlights Philadelphia’s frequent use of life without parole sentences for juveniles, calling the county an “extreme outlier” in its use of the punishment. The report urges District Attorney Seth Williams to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively.
The report, Juvenile Life Without Parole in Philadelphia: A Time for Hope?, notes that Philadelphia County is responsible for the highest number of juvenile life without parole sentences in the country. By way of comparison, Philadelphia County is home to just .5% of all Americans, but at least 9% of all juveniles sentenced to life without parole — or nearly one in 10.
“The latest scientific research show us that juveniles have a tremendous capacity to change their behaviors as they age,” stated Johanna Wald, a spokesperson for the Fair Punishment Project. “It is an injustice, and waste of taxpayer resources, to keep individuals locked up until their death for crimes they committed when they were teenagers. They should have an opportunity to prove they are worthy of a second chance.”
Wald notes that the Supreme Court has set a high bar to justify a life without parole sentence for juveniles. “The court has said that juvenile life without parole sentences should be reserved for exceptional cases that reflect ‘irreparable corruption.’ Given that adolescent brains are not fully developed and the capacity children have to change, the court rightfully assumes that it will be rare for an individual to meet this standard.”...
“Philadelphia has sentenced more juveniles to life without parole than anywhere else in the United States,” said John Mills of Phillips Black. “It is an outlier jurisdiction that, thanks to the court’s ruling, now has the opportunity to right the harsh punishments of the past by providing a thoughtful and measured approach to resentencing.”
March 31, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Wednesday, March 30, 2016
Fourth Circuit refuses to allow federal juvenile defendant to be tried as adult on charge carrying death or madatory LWOP
A number of helpful readers alerted me to this interesting Fourth Circuit panel ruling today in US v. Under Seal, No. 15-4265 (4th Cir. March 30, 2016) (available here), which gets started this way:
Pursuant to 18 U.S.C. § 5032, the Government filed a motion to transfer the Defendant -- who was a juvenile at the time of the alleged offense -- for prosecution as an adult for murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). This crime carries a mandatory statutory penalty of either death or life imprisonment. The district court denied the Government’s motion after concluding that the prosecution would be unconstitutional given that recent Supreme Court decisions have held that the United States Constitution prohibits sentencing juvenile offenders to either of these punishments. See Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life imprisonment); Roper v. Simmons, 543 U.S. 551 (2005) (death penalty).
The Government appeals the district court’s decision, contending that its transfer motion should have been granted because the Defendant could have been sentenced to a term of years up to a discretionary life sentence. For the reasons set forth below, we affirm the district court’s decision.
Sunday, March 20, 2016
South Dakota bans all juve LWOP sentences
As reported in this local article, as of last week "South Dakota has banned the practice of sentencing children to life in prison without the possibility of parole." Here is more about this notable legislative development:
Gov. Dennis Daugaard signed SB 140 sponsored by Sen. Craig Tieszen, into law on Wednesday. In making this change, South Dakota joins states such as Wyoming, Nevada and West Virginia in implementing less punitive accountability measures for children.
“Every year I try to bring at least one bill that I truly believe in while knowing it will be a struggle,” said Sen. Tieszen. “I believe that children, even children who commit terrible crimes, can and do change. And, I believe they deserve a chance to demonstrate that change and become productive citizens. In the end, I gathered a very diverse set of legislators from across the political spectrum and passed the bill with solid margins.”
SB 140 eliminates all life sentences for people who were younger than 18 at the time of their crimes. Fifteen states now ban life-without-parole sentences for children.
“South Dakota is helping to lead important change in the ways that we hold our children accountable,” said Jody Kent Lavy, director and national coordinator at the Campaign for the Fair Sentencing of Youth. “Teenagers who commit serious crimes will now have an opportunity after several years to demonstrate that they have been rehabilitated and are ready to re-enter society. Jurisprudence and adolescent development research document that appropriate sentences consider children’s age at the time of a crime, the trauma they have experienced and their capacity for change.”
Friday, March 11, 2016
Pennsylvania struggling with what law applies to nearly 500 juve LWOPers needing resentencing after Montgomery
The local article, headlined "Juvenile lifers will get new sentences, but what law applies?," effectively reviews the many headaches that the SCOTUS rulings in Miller and Montgomery have created for folks in Pennsylvania. Here are excerpts:
In 1990, on Robert Holbrook's 16th birthday, he joined a group of men on a robbery that turned into a killing. He received the only sentence Pennsylvania law allowed for murder: life without parole. In 2012, the U.S. Supreme Court decided that mandatory life-without-parole sentences were unconstitutional for those younger than 18. This January, the court ruled that the ban must be applied retroactively, to people like Holbrook. Since then, Pennsylvania's high courts have vacated dozens of life sentences.
It is now clear that Holbrook — along with about 480 other juvenile lifers across the state, 300 of them from Philadelphia — will receive new sentencing hearings following the Supreme Court's ruling in Montgomery v. Louisiana. But a key question remains: What sentencing law applies?
"Nobody has any real answer," said State Sen. Stewart Greenleaf, a Montgomery County Republican who chairs the Judiciary Committee. "We're in uncharted territory here," he said, "because we have a situation where the law these juveniles have been sentenced under has now been found to be unconstitutional, and the laws that we adopted as a legislature were adopted after they were sentenced originally" and do not apply to them.
The most straightforward resolution might be new legislation, but it's not so simple. After the 2012 decision in Miller v. Alabama, Pennsylvania enacted new sentences for juvenile killers: 25 years to life for those younger than 15, and 35 to life for those 15 to 17. But that law excluded anyone whose sentence was final before the Miller decision. Greenleaf said there's no changing that. "The problem is, even if we pass something, it would be ex post facto," or retroactive, he said. "I don't think the legislature can do anything at this point, because it could be unconstitutional what we do."
Marsha Levick, chief counsel at the Juvenile Law Center, said no new law is needed. Her solution: Resentence juveniles to 20 to 40 years in prison, the punishment for third-degree murder. "Because there is no constitutional sentencing statute that applies to these individuals, we would argue the court should apply the next-harshest sentence," she said. "That's all the court can do. It can only apply a constitutional sentence."
But Pennsylvania courts have already gone a different route. About two dozen juvenile lifers — all sentenced, but still in the appeals process, when Miller came down - have received new sentences based on judges' discretion. The results have varied wildly. Pennsylvania's Supreme Court, in the case of Qu'eed Batts — who at age 14 committed a gang-related murder — said the appropriate sentence for individuals such as him would carry a minimum number of years in prison and a maximum of life. So brothers Devon and Jovon Knox, who were convicted in a Pittsburgh carjacking and murder, received new sentences, of 35 years to life and 25 years to life respectively.
But in re-sentencing Ian Seagraves, who committed a brutal murder in Monroe County, a judge told him, "At this point in time, I have the option of life with parole or life without parole." The judge concluded that life without parole was still the appropriate sentence....
Pennsylvania Victim Advocate Jennifer Storm has been inundated with calls and emails from prosecutors and judges trying to figure out how to handle the cases and what sentencing laws apply. "I know some of these D.A.s are going to go back and ask for the highest minimum they can because there's a public safety question here," she said.
She said if courts are guided by the state's new sentencing law created after Miller, 189 offenders out of 480 would be immediately eligible for parole. The average time served among the 480 is 36 years, and the longest is 62 years. "In some of these cases, you're going to see time served become the new minimum. Obviously that needs to be very carefully negotiated with the D.A., the defender, and the surviving family members."...
Prosecutors, judges, and defense lawyers across the state, which the Pennsylvania Corrections Department says has more juvenile lifers than any other, have been tangling with this question and coming to disparate conclusions. One Chester County judge converted the cases on his docket to "time served to life," triggering the immediate possibility of parole.
But Richard Long, executive director of the Pennsylvania District Attorneys Association, said there was some consensus among prosecutors: "We believe that the sentencing provision enacted by the legislature for those cases after June 2012 can serve as good guidance."
Bradley Bridge, who's working on the cases for the Defender Association of Philadelphia, said he had been meeting with prosecutors and judges in Philadelphia to set up a structure to resolve the cases, including what sentences could be imposed. To him, one thing is clear: Resentencing juveniles to life is not permissible. "They must be given new sentences that have both a minimum and a maximum," he said. "That is what is required under Pennsylvania law."...
Levick said, one outcome is all but certain: There will be even more legal appeals.
Monday, March 07, 2016
Lots of Montgomery GVRs in latest SCOTUS order list
I am on a plane this morning on my way to the Alternative Sentencing Key-Stakeholder Summit (ASKS) taking place today and tomorrow at Georgetown University Law Center. But conveniently, the Supreme Court released this order list just before I had to shut down my computer, and I see it has a lot of cases from a lot of states with variations on this note as part of a GVR:
The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Court of Criminal Appeals of Alabama for further consideration in light of Montgomery v. Louisiana, 577 U. S. ___ (2016).
Justice Thomas, with whom Justice Alito joins, concurring in the decision to grant, vacate, and remand in this case: The Court has held the petition in this and many other cases pending the decision in Montgomery v. Louisiana, 577 U. S. ___ (2016). In holding this petition and now vacating and remanding the judgment below, the Court has not assessed whether petitioner’s asserted entitlement to retroactive relief “is properly presented in the case.” Id., at ___ (slip op., at 13). On remand, courts should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief. The Court’s disposition does not, for example, address whether an adequate and independent state ground bars relief, whether petitioner forfeited or waived any entitlement to relief (by, for example, entering into a plea agreement waiving any entitlement to relief), or whether petitioner’s sentence actually qualifies as a mandatory life without parole sentence.
I also see a notable split per curiam summary reversal finding a due process Brady problem in a Louisiana capital case. I will discuss that merits ruling and any others of criminal justice interest that may still today come down from SCOTUS in future posts.
Thursday, February 25, 2016
Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively
This local article from Florida, headlined "Killer's brain development at issue in re-sentencing," provide a significant and sobering (and ultimately incomplete) account of the challenges many courts in many states are to face as they comply with the SCOTUS mandates in Miller and Montgomery that require the resentencing of any and every teen killer previously given a mandatory LWOP sentence. Here are the basic details about this local case:
Maddie Clifton's killer will have his brain development reviewed by an expert before his re-sentencing hearing, a judge decided Thursday. Joshua Phillips, now 31, was convicted in the 1998 murder of 8-year-old Maddie and was sentenced to life without parole. At the time of the murder, Phillips was 14....
The U.S. Supreme Court ruled in 2012 that automatic life without parole sentences for juveniles are unconstitutional. In 2015, the Supreme Court said that law applies to previous cases and that it is retroactive ....
“We have a duty to re-sentence the man and give him a proper opportunity,” Judge Waddell Wallace said in court Thursday.
Phillips' attorney, Tom Fallis, filed two motions with the court: one for a new sentencing hearing and another to have the court cover the costs of calling new experts to determine the proper sentencing. Both motions were granted.
Fallis said some of the medical expertise from Phillips' original trial is no longer relevant, because of current research into juvenile psychology. "We're going to need a lot of experts," Fallis said. "This is going to be a very long hearing when it's set, and there will be evidence from what's happened in the last 20 years, what's happened in prison. I suspect there may be experts on prison life and how it affected a 14-year-old' who's now 30 some odd years old' and so the court needs to be educated. And the way you do that is through experts."
The state argued that calling new specialists and expert could be “absurd” and costly, but Wallace agreed to hiring a new expert and said the findings will be essential to the case, because of Phillips' brain development.
Police said Phillips, Maddie's neighbor, stabbed her and clubbed her to death in his San Jose area home. He hid her body under his waterbed in his room. Phillips' mother discovered the body a week later, after a massive search for the missing girl. Phillips was convicted a year later.
I submitted amicus briefs in both Miller and Montgomery arguing for the Eighth Amendment rules as adopted and applied in those case, and I think it appropriate that this defendant finally have a chance for a discretionary sentencing hearing after he was decades ago mandatorily given an LWOP sentence for a crime committed at age 14. And, though I am not quite sure this defendant really needs " a lot of experts" funded by the state to proceed with a proper resentencing, I also think it appropriate that the judge in this case recognized the need for giving the defense some additional resources to conduct a sound "Miller" resentencing.
That all said, I also think it appropriate for any and everyone like me who approved of the results in Miller and Montgomery to note and cope with the considerable costs that taxpayers and individuals are now going to have to endure. Court resources are always finite, both in terms of time and money, and this press story highlights that it seems a significant amount of the limited court resources are now going to have to be devoted to the very challenging task of figuring out what now is a fair and effective sentence for "Maddie Clifton's killer," Joshua Phillips. Moreover, and not mentioned in this story, I can only begin to imagine the emotional challenges that resentencing in this case will create for any and everyone connected to both the defendant and the victim.
Though I continue to believe that mandatory juve LWOP sentencing is very wrong, this story is a reminder that it did have the notable virtue of being very easy.
February 25, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)
Friday, February 12, 2016
Pennsylvania, thanks to Montgomery, now forced to struggle through Miller retroactivity
This local article, headlined "Pa. courts scramble to catch up to juvenile-lifers decision," reports on how the Keystone state is starting to deal with all its now unconstitutional mandatory juve LWOP sentences. Here is how it gets started:
Recently, Earl Rice Jr., an inmate at Graterford Prison, got unexpected news from a relative: A judge had unceremoniously changed his sentence from life without parole to life with parole. Chester County Court Judge James MacElree later explained: "That's what the Supreme Court of the United States said I had to do. I have no discretion whatsoever."
He was referencing the recent opinion in Montgomery v. Louisiana, which made retroactive the court's 2012 decision that automatic life-without-parole sentences for juveniles are unconstitutional. "If I'm wrong," he said, "an appeals court can figure it out."
It's one of many sometimes-conflicting ways that judges, public defenders, prosecutors, and prison officials are interpreting the ruling and scrambling to catch up to it. And Rice is facing one of the mind-numbing consequences: a life-with-parole sentence in a state that doesn't allow parole in life sentences.
It's an unprecedented challenge. The ruling affects nearly 500 juvenile lifers in Pennsylvania, about 300 of them from Philadelphia. The Philadelphia District Attorney's Office expects individual resentencing hearings will be required.
To buy time to accomplish that, the district attorney wrote a letter to the U.S. District Court for the Eastern District, asking it to dismiss — or at least stay — each of 218 federal petitions filed by juvenile lifers from Philadelphia. Those cases, seeking relief following the 2012 decision, Miller v. Alabama, had been in limbo until Montgomery could be decided. Now, it's likely a single judge will be appointed to oversee the process, according to the letter.
Bradley Bridge of the Defender Association of Philadelphia said he hopes to resolve a "significant number" of cases by agreement between the defendants and prosecutors. He said agreements are most likely for inmates who have been in prison the longest, like Joe Ligon, who has served 63 years for crimes committed when he was 15. "If it's not a significant number, it's going to be complicated, messy, and really unwieldy," he said. "To have 300 hearings . . . we simply don't have the resources." Bridge and others have organized a series of training sessions for lawyers on presenting mitigating evidence; the first was so popular, they had to turn people away.
Sunday, February 07, 2016
A useful reminder that, even after Montgomery, SCOTUS will continue to be asked to address juve LWOP
BuzzFeed News reporter Chris Geidner has this effective new piece discussing the reality that SCOTUS is sure to be presented in the years ahead with Eighth Amendment challenges to any and every LWOP sentence given to a juvenile offender. The piece is headlined "An Uncertain Path Ahead For Juvenile Sentencing Cases Still Before The Supreme Court," and here are excerpts:
Cortez Davis is serving life in prison under Michigan’s felony murder statute for a killing that occurred when he was 16 years old. Davis was not the gunman, the trial judge in his case found, but was a participant in a robbery when the fatal shooting took place. Nonetheless, under the Michigan law, because he was a key participant in the underlying felony, he was charged with felony murder. Davis was sentenced to life without the possibility of parole — the mandatory sentence in the mid-1990s.
More than a year ago, lawyers for Davis asked the Supreme Court to take up their client’s challenge to a lower court decision that upheld that sentence. Now, following a recent Supreme Court decision, his challenge and several others are likely to be sent back to lower courts — a move that could, depending on what state courts do next, put off even further the chance people like Davis have to reduce or end sentences the court has repeatedly thrown into question in recent years.
The petitions ask the justices to address how and under what circumstances states can sentence juveniles to life without parole, including in a handful of cases in which the convictions are for felony murder. Over the past decade, the court has taken up several cases addressing juvenile justice issues. The court ended the eligibility of juveniles for the death penalty in 2005, and has since, in a series of rulings, narrowed the eligibility of juveniles for life sentences.
Last week, the court handed down yet another significant ruling on juvenile sentencing — this one in the case of Henry Montgomery — that deals with complicated legal issues, but has major consequences. The court, in an opinion by Justice Anthony Kennedy, held that the 2012 ban on sentences of mandatory juvenile life in prison without the possibility of parole applied not just going forward, but also to those sentenced in the past like Montgomery. Montgomery is in jail for a killing he committed at 17 in 1963....
Far from a narrow procedural ruling, Kennedy explained that the 2012 ruling — Miller v. Alabama — was a substantive one, and, in its wake, “it will be the rare juvenile offender who can receive that same sentence.” While Montgomery’s case was pending, however, the court left several related cases like Davis’s one — all of which ask the court to go further down this path — waiting for action from the justices.
Most expect the justices now to send those cases back to lower courts to consider how the Montgomery decision affects their respective cases. During that period, how state courts interpret the Supreme Court’s ruling could vary widely. How rare is the “rare juvenile” that Kennedy writes about whose crime reflects “irreparable corruption”? How do states make that determination?...
On Jan. 25, Kennedy detailed the court’s decision that Louisiana had to give retroactive effect to the Supreme Court’s 2012 decision in the Miller. In the wake of that decision, it’s likely that the justices will send Davis’s case back to the Michigan Supreme Court to reconsider it. As Kennedy suggested in the Montgomery decision, Michigan either could re-sentence Davis — considering whether his crime reflects “permanent incorrigibility” — or make him eligible for parole consideration.
If Davis is re-sentenced instead of being granted a chance at parole, however, and if he is sentenced to life again, then he likely would go back to the U.S. Supreme Court — asking the court, again, to hear his case on the felony murder question. (As is already being seen in Montgomery’s case, state officials in Louisiana have told the state’s supreme court that their aim is to re-sentence those with mandatory life without parole sentences, rather than give them the possibility of parole.)
February 7, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Tuesday, February 02, 2016
"The Irrationality of Natural Life Sentences"
The title of this post is the headline of this New York Times Opinionator column authored by Jennifer Lackey. Here are excerpts:
[Personal] transformations can be seen most clearly by considering the two ends of the spectrum of life. On the early side, it is often noted that the prefrontal cortex of the brains of adolescents is still developing, and so they are more likely than adults to act on impulse, engage in dangerous or risky behavior, and misread social cues and emotions. This raises a host of questions about the level of responsibility that juveniles bear for their crimes and the appropriate punishments that should be handed out to them. If the underdeveloped brains of adolescents at least partly explain their criminal behavior, then holding them fully responsible for their actions, and punishing them as adults, seems wildly off the mark.
On the later side of the spectrum, only 1 percent of serious crime is committed by people over the age of 60. According to Jonathan Turley, a professor of public interest law at George Washington University: “Everyone agrees on what is the most reliable predictor of recidivism: age. As people get older, they statistically become less dangerous.” Turley refers to this period as “criminal menopause,” a phenomenon that raises serious questions about the rationale for incarcerating the elderly. Still, researchers project that the elderly prison population in the United States will be over 400,000 in 2030, compared with 8,853 in 1981.
At the early end of the spectrum of life, then, there is the possibility that prisoners might change; at the later end, there is the reality that they have changed. Both facts bump up against natural life sentences. A sentence of “natural life” means that there are no parole hearings, no credit for time served, no possibility of release. Short of a successful appeal or an executive pardon, such a sentence means that the convicted will, in no uncertain terms, die behind bars.
Many types of arguments have been leveled against natural life sentences. Economic ones focus on the ballooning costs of mass incarceration and the toll this takes on government budgets, especially as the age and medical expenses of prisoners rapidly increase. Legal ones ask whether such sentences are cruel and unusual and therefore violate the Eighth Amendment, particularly for juveniles. Social arguments ask whether natural life sentences discourage reform by providing no incentive for rehabilitation. Moral concerns are grounded in the dignity and rights of prisoners, while psychological objections call attention to the myriad causes of deviant behavior and their responsiveness to appropriate treatment.
But one argument that is surprisingly absent from these conversations is an epistemic one that has to do with us. For natural life sentences say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal. Nothing. So no matter how much a juvenile is transformed behind bars, and no matter how unrecognizable an elderly prisoner is from his earlier self, this is utterly irrelevant to whether they should be incarcerated. Our absence of knowledge about the future, our ignorance of what is to come, our lack of a crystal ball, is in no way a barrier to determining now what someone’s life ought to be like decades from now.
Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform. Even if we set aside the other arguments against natural life sentences — economic, legal, moral and so on — the question I want to ask here is this: how is it rational to screen off the relevance of this information? How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades-from-now prisoner deserves?...
Notice that nothing in the epistemic argument here suggests that no prisoners should, in fact, spend the rest of their natural lives behind bars. Instead, the point is that rationality requires that we leave the epistemic door open to acquiring new information. Put bluntly, the argument says that it is irrational for the possibility of parole to be taken off the table at the outset of any sentence.
If Hume is right that “a wise man proportions his belief to the evidence,” then our beliefs about the punishment a person deserves at any given time need to be sensitive to the evidence available at that time. But if we screen off huge amounts of potentially relevant information decades before the beliefs about what a prisoner deserves are even formed, then it is impossible for them to be proportioned to the evidence.
February 2, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)
Wednesday, January 27, 2016
What should we expect after Montgomery from states that had resisted Miller retroactivity?
The question in the title of this post is prompted by this extended and effective Intercept article headlined "Supreme Court Gives New Hope to Juvenile Lifers, But Will States Deliver?". Here are excerpts:
[I]t took three-and-a-half years and much litigation for the Supreme Court to force the states to apply Miller retroactively. Even now, the Montgomery ruling is no guarantee for release. “Today’s decision simply provides an opportunity for review,” Mark Plaisance, the Louisiana attorney who argued the case before the Court last fall, reminded reporters on Monday. The ruling is “just the first step in a long process for Mr. Montgomery.”
At 69, Henry Montgomery does not have the luxury of time. Yet he is among the lucky ones — at least he has representation. For other prisoners, finding a lawyer to challenge their continued incarceration is the first in a daunting series of hurdles. According to [Sister Alison] McCrary, word at Angola is that local attorneys will soon be visiting the prison to instruct “offender counsel substitutes” — jailhouse lawyers — on how to begin filing petitions on behalf of fellow inmates. But juvenile lifers must also wait for the state to decide on the legal venue for such a challenge. Then, ultimately, they must convince the state’s chosen decision-makers that they are worthy of early release.
From state to state, the question of who will make these decisions is still up in the air. After Miller, several states simply abolished juvenile life without parole, restoring parole eligibility or imposing lesser determinate sentences on those already imprisoned. Other states opted for resentencing hearings, putting individual prisoners’ fates in the hands of a judge. For those recalcitrant states that refused to do either, Justice Kennedy sought to provide reassurance in Montgomery that the 6-3 ruling “does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole.” Instead, he suggested, writing for the majority, states can give a chance for such prisoners “to be considered for parole.”
In New Orleans, the Louisiana Center for Children’s Rights was quick to embrace this suggestion. The state “has a choice to make,” the legal nonprofit explained on its website following Monday’s ruling. It can offer prisoners “costly, lengthy, substantive hearings” to the tune of $3 million to fund the first year of defense attorneys alone, according to an estimate by the Louisiana Public Defender Board. Or it can grant juvenile lifers some shot at release by allowing them to go before a parole board — an option the group’s director argues saves money, preserves public safety (“by ensuring that nobody is released without review”), and is “fairer for victims, because it will mean that they do not have to go through the difficulties of a new court hearing.”...
Still, as in most states, winning parole in Louisiana is exceedingly difficult. Last summer, following a thorough review of the state of parole across the country, the Marshall Project found parole boards nationwide to be secretive, driven by politics, and “vested with almost unlimited discretion to make decisions on almost any basis. Hearsay, rumor and instinct are all fair game.”...
As lawyers and scholars continue to parse the ruling in Montgomery, the broader implications are yet to be seen. For now, although it continues to chip away at the harshest sentences for youth, with Montgomery, the Supreme Court has decided once more to preserve the option of juvenile life without parole, meaning that defendants will continue to be sent to die behind bars for crimes they committed as children. There is good reason to think such sentences will be rare — existing data after Miller shows a large drop in new sentences of life without parole for juvenile crimes across the country. And some legal experts have interpreted Montgomery to mean that a prosecutor pursuing such a punishment will now have to somehow “prove to a judge that a particular youth is beyond saving as a reformed person” — a dubious proposition that should be burdensome in theory.
Yet, it is not hard to imagine that in such cases, the “nature of the crime” will continue to have the final say. After all, even as it seeks to narrow life without parole sentences for youth offenders, Montgomery keeps intact the same assumption that set the stage for them in the first place. “Miller drew a line between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption,” Kennedy wrote in Montgomery. It remains possible that a court “might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified.”
It was this image of irredeemably bad youth — applied along starkly racist lines — that created the superpredator myth, fueling the very sentences states are now being forced to reconsider. After all, while it may be easy to accept that, as an old man, Henry Montgomery is not the same person he was in 1963, it is difficult to imagine such sober perspective governing the fate of a 17-year-old who today committed the same crime — the fatal shooting of a police officer. These are the very crimes for which mandatory sentencing was invented — and for which parole will be routinely denied.
It is this enduring idea — that a crime tells us everything we need to know about the person who committed it — that must be overcome, by parole boards, by judges, and by the legions of people who now claim the broader mantle of criminal justice reform. The Supreme Court has taken another important step in recognizing that people in prison can change. It is up to the states to give juvenile lifers a meaningful chance to go home — before prison becomes the only home they know.
Prior related post on Montgomery:
- SCOTUS declares Miller juve LWOP rule retroactive in Montgomery v. Louisiana
- Do SCOTUS watchers really expect the Justices to take up the basic constitutionality of the death penalty soon?
Monday, January 25, 2016
Does SCOTUS ruling in Montgomery actually minimize likelihood of full constitutional ban on juve LWOP sentences?
The question in the title of this post is my first "now what" thought concerning the Supreme Court's ruling today in Montgomery v. Louisiana, No. 14–280 (S. Ct. Jan. 25, 2016) (available here), and the future of Eighth Amendment jurisprudence. It was prompted in part by the first post-Montgomery e-mail I received: it stressed that juvenile justice advocates have "urged the Court to rule that JLWOP is unconstitutional in all cases [and now] two cases with petitions for certiorari currently pending, Houston v. Utah and Jacobs v. Louisiana, ask the Court to invalidate JLWOP in all cases."
For a host of reasons, I am pleased that a majority of Justices in Montgomery concluded that the Eight Amendment rule announced in Miller precluding the mandatory imposition of life without parole to juvenile murderers is to be applied retroactively to all cases. But the fact that the Justices reached this result by calling Miller substantive, and especially the fact that Chief Justice Roberts joined the Court's opinion in Montgomery, leads me to think we might not see the Justices show interest in even considering a categorical ban on all juve LWOP sentences for some time.
Of course, I am just reading broad Eighth Amendment tea leaves here (and doing so even before I have had a chance to read Montgomery closely). Of course, the five Justices who made up the Graham and Miller majorities could on their own, without the Chief Justice along for the ride, decide to extend their Eighth Amendment jurisprudence to create a categorical bar on all juve LWOP sentences. But this five-some of Justices had their chance to reach such a result in the original Miller case and amici urged the Court to use Montgomery as another chance to do the same. The fact that the Supreme Court has now twice resisted extending Graham to all juvenile crimes, and especially now that the Justices have ensured (with the help of the Chief Justice) that no juve offenders will ever be subject to LWOP without a sentencing judge deciding such a sentence was truly justified, leads me to predict that it may now be quite a while before the Justices consider seriously a categorical ban on all juve LWOP sentences as a constitutional mandate.
Prior related post on Montgomery:
SCOTUS declares Miller juve LWOP rule retroactive in Montgomery v. Louisiana
Via a 6-3 ruling authored by Justice Kennedy, the Supreme Court this morning decided via Montgomery v. Louisiana, No. 14–280 (S. Ct. Jan. 25, 2016) (avaialable here), that "Miller announced a substantive rule that is retroactive in cases on collateral review." This is huge news for lots of reasons, and I will likely have a series of posts on this ruling and its reasoning in the hours and days and weeks ahead.
Intriguingly, the majority opinion for the Court spent relatively more energy justifying jurisdiction in the case than the declaration that Miller is a substantive rule under Teague's framework for retroactive applicaton of new constitutional rules. In any event, here are a few key passages from the tail end of the Court's Montgomery opinion explaining its ruling:
The Court now holds that Miller announced a substantive rule of constitutional law. The conclusion that Miller states a substantive rule comports with the principles that informed Teague. Teague sought to balance the important goals of finality and comity with the liberty interests of those imprisoned pursuant to rules later deemed unconstitutional. Miller’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the Constitution.
Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g., Wyo. Stat. Ann. §6–10–301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity — and who have since matured — will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.
Extending parole eligibility to juvenile offenders does not impose an onerous burden on the States, nor does it disturb the finality of state convictions. Those prisoners who have shown an inability to reform will continue to serve life sentences. The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition — that children who commit even heinous crimes are capable of change.
Monday, January 04, 2016
Notable new reporting on juve LWOP as we await SCOTUS ruling on Miller retroactivity
As helpful reader alerted me to notable new reporting from The Marshall Project and Mother Jones focused on one particular juvenile offender serving a mandatory LWOP sentence in Louisiana as well as broader juve LWOP realities. The lengthy main piece, available here via the Marshall Project, is headlined "This Boy’s Life: At 16, Taurus Buchanan threw one deadly punch — and was sent away for life. Will the Supreme Court give him, and hundreds like him, a chance at freedom?". Here are a couple of paragraphs setting the table for the case-specific tale:
Taurus Buchanan stood trial in the era of the “superpredator,” the label applied to violent juveniles in the mid-1990s, when states and the federal government passed one tough-on-crime law after another. Today, two decades later, a trio of rulings from the US Supreme Court has peeled back some of those laws, recognizing the folly of assigning equal culpability to adults and kids. In October, the court heard arguments in a fourth case, and how that ruling comes down could determine what happens to hundreds of lifers sent to prison when they were kids....
Between 1992 and 1999, 49 states and the District of Columbia made it easier to try juveniles as adults. Some states removed consideration of youth altogether, replacing discretion with compulsory triggers. By 2012, there were 28 states across the nation that were handing out mandatory life-without-parole sentences to juveniles.
One was Louisiana, where Taurus exemplified how mandatory sentencing could render a defendant’s youth meaningless. Once he was charged with second-degree murder, Taurus was automatically tried as an adult because he was over the age of 14. If convicted, he would automatically be sentenced to life without parole.
By 2015, more than 2,230 people in the United States were serving life without parole for crimes committed as juveniles, according to data compiled by the Phillips Black Project, a nonprofit law practice that collected information on all 50 states. In 2007, the Equal Justice Initiative, a nonprofit law organization based in Alabama, found that there were 73 cases in which kids were sent away for crimes they committed at age 13 or 14. One was sentenced to life for kidnapping, another for sexual battery, another for taking part in a robbery in which someone was shot but survived.
The Phillips Black data shows that, with 376, Pennsylvania currently has the most people serving juvenile life sentences. But Louisiana has a higher number of such inmates per capita than any other state. Of the 247 inmates in Louisiana, 199 are African American. In East Baton Rouge Parish, where Taurus stood trial, the racial disparity is even starker: Almost half of the parish population is white, but 32 of the 33 serving juvenile life-without-parole sentences are black.
These two companion pieces provide more details on the Phillips Black juve LWOP data and how it was compiled:
January 4, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (1)
Tuesday, November 03, 2015
"The Retroactivity Roadmap"
The title of this post is the title of this notable new essay by William Berry III available via SSRN. Here is the abstract:
In Miller v. Alabama, the Supreme Court held that imposing a mandatory life-without-parole (“LWOP”) sentence on a juvenile offender constituted a cruel and unusual punishment in violation of the Eighth Amendment. Three years later, the question remains whether the holding in Miller applies retroactively. As explained below, the applicable exception to the Teague presumption of prospective application of new criminal rules concerns whether the new rule is substantive or procedural. Generally, if the rule is substantive, its application is retroactive; if the rule is procedural, its application is prospective. This term, the Court will take up that question in Montgomery v. Louisiana.
This short essay argues that the new rule articulated in Miller possesses both substantive and procedural characteristics. This essay then explains why, for purposes of retroactivity, the substantive content of Miller matters more than the procedural content. As a result, Miller should apply retroactively. Finally, the essay suggests that the argument in Montgomery provides a roadmap for future Eighth Amendment challenges. Specifically, each characterization of Miller — substantive and procedural — has novel implications for the scope of the Eighth Amendment, and offers intriguing opportunities for future petitioners to challenge the constitutionality of mandatory sentences and LWOP sentences.
Tuesday, October 13, 2015
Lots of talk about all the talk about jurisdiction during SCOTUS oral argument in Montgomery
Given that the Supreme Court added on its own question about its jurisdiction to review a state habeas application of Teague when granting cert in Montgomery v. Louisiana, I was not all that surprised that a number of Justice were quite eager to debate the issue with the advocates during oral argument on Tuesday. And, there are now helpful reviews of the Montgomery oral argument and the jurisdiction issue from Lyle Denniston here at SCOTUSblog and from Kent Scheidegger here at Crime & Consequences and from Chris Geidner here at BuzzFeed.
In addition, my terrific research assintant this afternoon sent me his summary take concerning the argument for sharing here:
In today’s oral argument for Montgomery v. Louisiana, a majority of the time was spent discussing whether or not the Court had jurisdiction to address the merits. While the merits were discussed, neither the Justices nor the advocates addressed them at length or with much vigor.
Justices Scalia and Alito led the charge against the Court’s jurisdiction. They were deeply concerned by the Louisiana Supreme Court’s deliberate voluntariness in adopting Teague’s retroactivity standards. In their view, if the Court ruled that it had jurisdiction and then decided the merits in a way the Louisiana Supreme Court found unfavorable, the Louisiana Supreme Court could simply elect to abandon Teague effectively overruling the Court’s decision in this case. I think it is safe to say, based on the oral arguments, that Justices Scalia and Alito are voting that the Court lacks jurisdiction to address the merits here. Given that, I would say Justice Thomas will also vote that the Court lacks jurisdiction.
Nonetheless, Justices Kagan, Breyer, and Sotomayor made it quite clear that they will be voting in favor of the Court’s jurisdiction. Justices Kennedy and Ginsburg made similar manifestations.
On the merits, Justices Kagan, Breyer, and Sotomayor suggested that they would find Miller’s rule retroactive. Justices Kennedy and Ginsburg were markedly silent on this point. Justices Scalia and Alito were the only vocal opponents of petitioner’s arguments on the merits, but assuming both they and Justice Thomas vote against the Court’s having jurisdiction, such manifestations are moot.
The most perplexing figure in today’s arguments was the Chief Justice. He spoke infrequently and did not tip his hand in any overt way. However, he did make one pretty incredible point regarding the merits. He suggested that simply “provid[ing] parole” to individuals given mandatory LWOP sentences for homicides they committed as juveniles would be a remedy to this problem. To be fair, he made this suggestion, but did not necessarily endorse it as the right move or the proper disposition of the case. Still, it is a bold proposition coming from the Chief Justice.
Lots of tea leaves (readings may vary) from SCOTUS arguments in Montgomery and Hurst
I have now had just enough time to skim the SCOTUS oral argument transcripts in Montgomery v. Louisiana (which is here) and in Hurst v. Florida (which is here). Both transcripts showcase, albeit in somewhat different ways, all the complicated and intersecting jurisprudential issues in play in both cases.
At this stage, and based perhaps more on my pre-argument beliefs than on what I surmised from my first review of the transcripts, I would predict narrow wins for the defendants in both cases. And by narrow, I mean holdings that are fairly fact-based, case-specific and that also produce somewhat split rulings. But maybe others read the tea leaves in these transcripts differently, and will share their insights in the comments.
Lots of media previews of today's two big SCOTUS sentencing cases
The Supreme Court returns from a long weekend with two cases that should remake, or at least will refine, retroactivity jurisprudence and capital sentencing procedures. I have previewed Montgomery v. Louisiana and Hurst v. Florida in a bunch of prior posts, and here I will provide links to a handful of mainstream media coverage of the cases:
- "Justices to decide on sentences for young prison 'lifers'"
Monday, October 12, 2015
Montgomery wards: noticing the lack of originalism analysis of sentencing finality
As noted in this prior post, I have been doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana, and today's post is of the "dog that didn't bark" variety. Specifically, upon quickly reviewing the 20+ briefs that have been submitted in Montgomery (all of which can be found via this SCOTUSblog page), I noticed that there was essentially no discussion of what an originalist constitutional interpretation would have to say about finality/retroactivity doctrines like Teague and their application to Eighth Amendment doctrines or sentencing outcomes more generally. (Notably and tellingly, a number of briefs discussing the jurisdictional issue flagged by SCOTUS in Montgomery do provide some originalism analysis of that issue. But these briefs, nor any of those just focused on the finality/retroactivity issue, had anything to say about how an originalist perspective might inform the Court's work in this case.)
For those who are not big fans of originalist constitutional interpretation, perhaps the absence of any discussion or debate in the Montgomery briefing about what the Framers would have thought about Eighth Amendment retroactivity is a welcome development. But as I sought to spotlight in this recent law review article and this blog post last year, I think it would be interesting and potentially quite useful to examine at some lengthy whether and how the Framing generation considered finality/retroactivity issues. Of particular note, as I explain in my article, the text of the Constitution itself reveals, at least indirectly, that the Framers likely did not have an especially strong commitment to criminal justice finality interests:
The Constitution’s text can be read to suggest the Framers were decidedly eager to provide or preserve opportunities for defendants to seek review and reconsideration of their treatment by government authorities. Article I, Section 9 instructs Congress that the “Privilege of the Writ of Habeas Corpus shall not be suspended,” Article II, Section 2 provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States,” and Article III, Section 2 provides that the Supreme Court “shall have appellate Jurisdiction.” These provisions codify in our nation’s charter all the traditional mechanisms long used by individuals to challenge or seek modification of the exercise of government power through criminal justice systems. These provisions alone may not support a strong originalist claim that the Framers disfavored treating criminal judgments as final. Nevertheless, by precluding Congress from suspending habeas review, by empowering the President to grant clemency, and by authorizing the Supreme Court to hear appeals, the Constitution ensured that criminal defendants in a new America would have various means to seek review and reconsideration of the application of governmental power even after an initial criminal conviction and sentencing.
In part because I am neither a historian nor especially enthralled by originalism, I did not pursue these ideas in this SCOTUS amicus brief that I helped submit in the Montgomery case. But I was hoping that maybe someone or some group drawn to originalism would discuss what an originalist constitutional interpretation might have to say about finality/retroactivity doctrines like Teague and their application to Eighth Amendment doctrines or sentencing outcomes more generally. One Justice who often seems drawn to Eighth Amendment originalism, Justice Thomas, almost never asks questions, and thus I am not expecting him to bring up the issue during oral argument. But maybe I can dream, at least for the next few hours, that Justice Scalia might enjoy puzzling the advocates by asking a question on this front during argument.
Prior posts in this series and concerning finality matters:
- Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case
- Montgomery wards: might SCOTUS decide it lacks jurisdiction to resolve juve LWOP retroactivity case?
- Montgomery wards: certain victims' family members voicing support for juve murderers getting a chance at resentencing
- Examining "sentence finality" at length in new article and series of posts
- Finality foundations: is it uncontroversial that "conviction finality" and "sentence finality" raise distinct issues?
- Is it fair to read the Constitution as evidence the Framers were not fans of finality?
- Form, function and finality of sentences through history: the Founding Era
Tuesday, October 06, 2015
Montgomery wards: certain victims' family members voicing support for juve murderers getting a chance at resentencing
As noted in this prior post, I am doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana, and I have a terrific research assistant drafting summaries of various amicus briefs submitted in Montgomery (all of which can be found via this SCOTUSblog page). Here is how he summarized some portions of this Brief of Amici Curiae of Certain Family Members of Victims Killed by Youths in Support of Petitioner:
A collection of people who have lost loved ones, including friends and family, to violent murders submitted an amicus brief in support of the petitioner in Montgomery v. Louisiana. Their argument is both emotional and sensible; it does not appeal to the formalisms of legal argument or precedent.
At its heart, this brief addresses the emotional and personal impact of locking away a person away forever for a crime they committed as a child. This brief pleads the Court to acknowledge the merits of leniency, compassion, and the rehabilitative potential of children. All of the stories contained in this brief are moving and important. Here are a few summarized excerpts.
“Jeanne Bishop lost her younger sister, Nancy Bishop Langert, brother-in-law Richard Langert, and their unborn child on April 7, 1990.” Brief for Amici Curiae of Certain Family Members of Victims Killed by Youths in Support of Petitioner, Montgomery v. Louisiana, (No. 14-280), at 4. Sixteen year-old David Biro shot and killed the couple in their home after breaking into their home while they were out and lying in wait for their return. After a two-week trial, David was convicted of the murders and sentenced to mandatory life without parole—the only possible punishment for a double-murder committed by a child in Illinois. Neither Jeanne nor anyone else in her family was not allowed to make a victim impact statement during sentencing.
Due to her religious beliefs, Jeanne forgave David, but she was happy that he “would be locked up forever.” Id. at 5. However, over time, Jeanne’s belief that David was a remorseless killer came under question and she decided to write to him. In response, David sent Jeanne a 15-page letter confessing to the crime for the first time and expressing “deep regret.” Id. Jeanne began to visit David in prison after this initial correspondence and has developed a “strong, honest, and respectful” relationship with him. Id. at 6.
“Jeanne knows that many want to write off people like David because, in their mind, people like him can never change. But, she wonders ‘whether what we are truly afraid of is not that they will never get better, but that they might.’” Id.
On November 18, 1986, Linda White’s 26 year-old daughter Cathy was murdered by two teenage boys. Id. at 10. The boys asked Cathy for a ride out of town to avoid abusive parents. After Cathy had agreed and driven the boys a distance, the boys brandished guns and ordered Cathy to pull over. After stopping the car, the boys raped Cathy and shot her four times.
After being arrested, one of the boys — Gary — pled guilty to the murder. Gary, who was 15 years old at the time of the murder, was sentenced to 54 years in prison.
Many years after he was incarcerated, Gary agreed to let Linda, his victim’s mother, visit him. “When Linda and Gary finally met, Linda found that he was no longer the child who had callously raped and killed her daughter. Gary was a different person – a remorseful grown man who was desperately seeking both forgiveness and a chance to start making up for all of the hurt that he had inflicted.” Id. at 12.
As of 2015, “Gary has been out of prison for nearly six years. In that time, he has immersed himself in a new community, found and held a job, and begun working with drug and alcohol addicts at his church in a role in which his minister says he has made an incredible difference. Gary has kept himself out of trouble. He and Linda remain in contact, and he never stops apologizing for the pain that he caused. To Linda, Gary is a perfect example for why life sentences are so unjust, especially for children.” Id.
Prior posts in series:
- Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case
- Montgomery wards: might SCOTUS decide it lacks jurisdiction to resolve juve LWOP retroactivity case?
Thursday, October 01, 2015
Montgomery wards: might SCOTUS decide it lacks jurisdiction to resolve juve LWOP retroactivity case?
As noted in this prior post, I am doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana in large part because I find the substantive issues that surround Eighth Amendment retroactivity so dynamic and interesting. But, critically, the Justices ordered briefing on a preliminary question for consideration in the Montgomery case: "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?"
I have a terrific research assistant drafting summaries of various amicus briefs submitted in Montgomery (all of which can be found via this SCOTUSblog page). Here is how he summarized and assessed this amicus filing which was requested by the court to make the argument against jurisdiction:
The United States Supreme Court appointed Willkie Farr & Gallagher LLP (“WFG”) to file an amicus brief arguing that the Court lacks jurisdiction to address the merits of whether or not Miller applies retroactively in state collateral proceedings. That is, the Court has charged WFG with the task of arguing that the Louisiana Supreme Court’s decision that Miller does not apply retroactively cannot be reviewed by the Court.
WFG’s amicus brief argues against the Court’s jurisdiction in two steps. First, WFG argues that whether or not Miller is retroactive in the state collateral review context can only present a federally reviewable issue if Teague is binding in such proceedings. Second, WFG argues that Teague is not binding in state collateral review proceedings because its holding was predicated upon a federal statute and nothing more. Consequently, Montgomery presents no question of federal law and so any opinion on the merits of the Miller retroactivity issue would be only advisory (or so goes WFG’s argument). Thus, the Court lacks jurisdiction to address the Miller retroactivity issue in Montgomery, at least in the case’s present procedural posture.
WFG’s argument turns entirely on the way in which the Louisiana Supreme Court adopted Teague some 23 years ago in a case called Taylor v. Whitley, 606 So. 2d 1292 (La. 1992). In that case, the Louisiana Supreme Court, in addressing the retroactive application of new constitutional rules, stated:
[W]e have yet to consider the issue of retroactivity on collateral review in light of Teague. We now do so and adopt the Teague standards for all cases on collateral review in our state courts. In doing so, we recognize that we are not bound to adopt the Teague standards. [. . .] [W]e now adopt Justice Harlan’s views on retroactivity, as modified by Teague and subsequent decisions, for all cases on collateral review in our state courts. Taylor, 606 So. 2d at 1296–97.
WFG argues that since the Louisiana Supreme Court expressly held that it was “not bound to adopt the Teague [retroactivity] standards,” its subsequent retroactivity decisions, while based entirely on Teague and its progeny, do not “fairly appear to rest primarily on federal law or be interwoven with federal law” such that the presumption of federal jurisdiction articulated in Michigan v. Long, 463 U.S. 1032, 1044 (1983), applies.
While this is surely one reading of Taylor, it is a narrow one. The argument can be made (and was made by both parties in this case, see Brief of Court-Appointed Amicus, Montgomery v. Louisiana, (No. 14-280), at 10) that the Court does have jurisdiction under the Long presumption.
Taylor supports this argument. The Taylor court states throughout its opinion that it is closely following and examining the federal case law on retroactivity. See Taylor, 606 So. 2d at 1293 (“In order to address the issue of retroactivity, we begin by tracing the evolution of the United States Supreme Court’s decisions in this area.”). Further, while the Taylor court stated that it did not feel compelled to adopt the Teague standards, it definitively held that it was adopting those standards and was doing so “as modified by ... subsequent decisions” for all cases in Louisiana under collateral review. Id. at 1297. In this way, Taylor supports the notion that Louisiana state law does not just “rest primarily on federal law” and is not just “interwoven with federal law,” but evolves with federal law in a expressly lock-step manner.
As a consequence, Louisiana law vis-à-vis retroactivity in state collateral review proceedings is (arguably) federal law vis-à-vis retroactivity in federal collateral review proceedings as expressed by Teague and “subsequent decisions.” Accordingly, if ever the presumption of jurisdiction embodied in Long applied in a case, this would be the case. To be fair, WFG’s argument is unsurprising given its task. Nonetheless, it will in all likelihood be a minor opening act to the main event during oral argument.
I share my RA's sentiment that it is very unlikely a majority of the Supreme Court will decides it lacks jurisdiction in Montgomery, and I suspect relatively little of the oral argument will be focused on this issues. But I suspect the Chief Justice (and perhaps a few other Justices) may be eager to use Montgomery to contend that state courts are never obligated to apply any part of the Teague doctrines that now control federal court retroactivity decisions. Consequently, this issue may get more attention in the argument and in the ultimate opinion than some may want.
Prior posts in series:
Wednesday, September 30, 2015
Missouri Supreme Court considering constitutional challenge to lifetime sex offender registration for 14-year-old offender
As reported in this local article, headlined "Missouri’s juvenile sex offender registry challenged as unconstitutional," the top court in the Show Me state heard argument today on a notable constitutional question involve a juve sex offender. Here are the details:
A 14-year-old Missouri boy’s vicious sexual assault on his adult sister landed him in the juvenile justice system. But should it land him on the Missouri sex offender registry for the rest of his life?
That’s the question the Missouri Supreme Court is being asked to answer by attorneys for the St. Louis boy, identified in court documents as S.C.. The court heard oral arguments on the case Wednesday morning and took the matter under advisement.
Attorneys for S.C. argue that subjecting a juvenile to the same registration requirement imposed on adult sex offenders is cruel and unusual punishment, and it contradicts the goal of the juvenile justice system to “rehabilitate and reintegrate.” They say several studies show that juvenile sex offenders are no more likely to commit sex offenses as adults than other juveniles.
“Lifetime sex offender registration has no relationship to the goal of protecting society from re-offenders and yet imposes severe hardship on juvenile offenders by impairing their ability to rehabilitate and function as productive members of society,” according to documents filed by S.C.’s lawyers.
The Missouri Attorney General’s Office argues that S.C.’s appeal should be dismissed. They say that Missouri is following federal law in requiring certain juveniles to register as offenders, and federal appeals courts have upheld the constitutionality of similar laws in other states.
“The risk posed by someone who, like S.C., has attempted to forcibly rape another, creates a sufficient basis...to mandate actions that will protect the public against the likelihood of similar future offenses,” the state says in its written answer to the appeal.
The American Civil Liberties Union of Missouri has filed a brief supporting the boy’s case. “When children are treated and punished as adults, we see constitutional difficulties,” said Gillian Wilcox, an ACLU staff attorney in Kansas City....
Under Missouri law, most juveniles placed on the registry are removed when they turn 21. But those, like S.C., who were 14 or older when they committed certain serious crimes, have to register as adults when they turn 21.
Statewide, more than 300 people are now on the registry for crimes committed while juveniles.... Once on the adult registry, placement is for life, and the law does not allow for a way to petition for removal....
In its arguments in support of S.C., the ACLU of Missouri cites research by social scientists that shows that requiring lifelong sex offender registration for juveniles can actually increase their chances of recidivism because offenders “find themselves isolated from important social, educational and family networks.”
“No opportunity exists for children or their counsel to present evidence demonstrating they should not be required to register publicly for the rest of their lives,” the ACLU argues.
Attorneys for the state, however, argue that appeals courts have found that sex offender registry laws are not criminal punishments, but are civil in nature and are designed with the “rational basis” of giving the public information about individuals who pose “a significant risk.”
Tuesday, September 22, 2015
"No Hope: Re-Examining Lifetime Sentences for Juvenile Offenders"
The title of this post is the title of this notable new research report released today by Phillips Black, a nonprofit, public interest law office. The report, authored by John Mills, Anna Dorn, and Amelia Hritz, is timely with the Supreme Court due in three weeks to hear oral argument in Montgomery v. Louisiana concerning the retroactivity of its 2012 Miller juve LWOP ruling. In addition, I think this report (and related material assembled here) merits extra attention because it gives extra attention to racial realities that surround juve LWOP sentencing. Here is the report's executive summary:
In a handful of U.S. counties, teenagers are still being sentenced to a lifetime in prison with no chance of release. This harsh and increasingly isolated practice falls disproportionately on black and Hispanic youth and is a remnant of an earlier period of punitiveness based on an unfounded prediction of a new class of superpredators that never actually materialized.
While the use of this sentence has dramatically declined in recent years, it continues to be practiced in a relatively small number of jurisdictions. The Supreme Court now has the opportunity to declare juvenile life without parole a cruel and unusual punishment, far outside our standards of decency in the twenty-first century.
In Miller v. Alabama, the Court took the first step by forbidding mandatory sentences of life without parole for homicide offenses committed by juveniles ( JLWOP). The opinion, however, left open the question of whether the Eighth Amendment prohibits the imposition of life without parole upon juveniles entirely.
That question, the constitutionality of life without parole sentences for juvenile offenders, is being presented to the Court in two cases. In one case to be argued in October, the Court will consider whether its earlier rulings on this subject apply to past cases and not just cases going forward. A brief offered by the Charles Hamilton Institute for Race and Justice urges the Court to tackle the constitutional question of whether the punishment should stand at all. In another case, an inmate serving a JLWOP sentence has directly presented the question: “Does the Eighth Amendment prohibit sentencing a child to life without possibility of parole?”
This report examines the key evidence for answering the question of whether there is now a national consensus against juvenile life without parole. To make this assessment, the Court generally examines legislative enactments and actual sentencing practices. This report catalogs the rapid abandonment of JLWOP, both legislatively and in terms of actual use.
Although JLWOP dramatically expanded between 1992 and 1999—an era of hysteria over juvenile superpredators—since Miller states have rapidly abandoned JLWOP in law and practice.
Nine states have abolished JLWOP after Miller, bringing the current number of jurisdictions completely banning the sentence to fifteen. California and Florida, two of the most frequent users of the sentence, have dramatically limited the reach of JLWOP by restricting its application to a narrow set of circumstances. Moreover, North Carolina, Pennsylvania, and Washington have abolished JLWOP for a category of offenders. This pace of abolition far outstrips those that occurred in the years prior to the high Court’s rulings that the executions of juveniles and the intellectually disabled are unconstitutional. This report provides an in-depth analysis of state and county JLWOP sentencing practices. At the state level, just nine states account for over eighty percent of all JLWOP sentences. A single county, Philadelphia County, Pennsylvania, is responsible for nearly ten percent of all JLWOP sentences nationwide. Orleans Parish, Louisiana, has tenfold the number of JLWOP sentences as its population would suggest. Five counties account for more than one fifth of all JLWOP sentences. JLWOP, in practice, is isolated in a handful of outlier jurisdictions.
Finally, state sentencing practices also show marked racial disparities in JLWOP’s administration. Starting in 1992, the beginning of the superpredator era, a black juvenile offender would be twice as likely to receive a JLWOP sentence as his white counterpart. The disproportionate application of the punishment on juveniles of color is stark. All of Texas’s JLWOP sentences were imposed on persons of color. Pennsylvania has imposed it eighty percent of the time on persons of color.
There is now a growing consensus against JLWOP, calling into question its constitutionality. The policy’s suspect origins and disparate implementation require rigorous examination to determine whether it serves any legitimate penological purpose.
September 22, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1)
Monday, September 14, 2015
Montgomery wards: gearing up for SCOTUS juve LWOP retroactivity case
In four weeks, the US Supreme Court will hear oral argument in Montgomery v. Louisiana. Here, via this SCOTUSblog posting and this official SCOTUS page, are the questions that the Justices will be considering in Montgomery:
Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U.S. ____ (2012)?
Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison.
Because both of these questions engage many interesting, important and dynamic issues, I am planning to do a (lengthy?) series of posts about this case and the various arguments that have been presented to the Justices via amicus briefs (including one I filed thanks to the efforts of good folks at the Columbus offices of Jones Day). As the title of this post reveals, I have decided to use "Montgomery wards" as the cheeky title for this coming series of posts.
Notably, as this new SCOTUSblog posting highlights, it would now appear that the Justices share my sense that the Montgomery case raises many interesting, important and dynamic issues because they have now scheduled additional argument time for the case. Here are the basics via Lyle Denniston's SCOTUSblog report:
The Supreme Court on Monday added fifteen minutes to the argument schedule for its hearing October 13 on Montgomery v. Louisiana, a case that could decide which juveniles convicted of murder can take advantage of a 2012 decision limiting sentences of life without parole for minors. The added time will allow a Court-appointed attorney to argue a question about the Court’s authority to actually rule on the legal issue in the case.
In March, the Justices agreed to hear the appeal of Henry Montgomery of Baton Rouge, who is seeking retroactive application of the Court’s decision in Miller v. Alabama, which had all but eliminated states’ power to sentence youths to life without parole, as punishment for committing a murder when they were under the age of eighteen. In taking on the case, however, the Court also added the question whether it has jurisdiction to review and rule on the Louisiana Supreme Court decision refusing to apply the Miller precedent to cases that had become final before June 25, 2012, when Miller was decided. Louisiana had raised that issue in a filing in an earlier case on the juvenile sentencing question.
Instead of the usual one hour of argument time, the Court in the Montgomery case will hear seventy-five minutes. The time will be divided this way: the Court-appointed attorney, Richard Bernstein of Washington, D.C., will have fifteen minutes to argue against the Court’s jurisdiction, Montgomery’s attorney will have fifteen minutes to argue both points, an attorney from the office of the U.S. Solicitor General will have fifteen minutes to argue both issues, and a lawyer for the state of Louisiana will have thirty minutes of time to argue both questions. The order also said that Bernstein and Montgomery’s lawyer will be allowed to save time for rebuttal.
The federal government, in a brief filed by the Solicitor General, supported Montgomery’s plea to apply Miller retroactively and argued that the Court does have jurisdiction to decide that question. The brief noted that there are twenty-seven inmates in federal prisons whose sentences could be affected by the retroactivity issue.
September 14, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)
Friday, August 21, 2015
Split Michigan appeals court finds juve has Sixth Amendment right to jury findings for LWOP sentence
Thanks to a few helpful readers, I learned about a very interesting split panel ruling today from the Michigan Court of Appeals in Michigan v. Skinner, No. 317892 (Mich. Ct. App. Aug. 21, 2015). Here is how this majority opinion starts in Skinner:
This case presents a constitutional issue of first impression as to whether the Sixth Amendment mandates that a jury make the findings set forth by Miller v Alabama, 576 US ___; 132 S Ct 2455; 183 L Ed 2d 407 (2012) as codified in MCL 769.25(6), before sentencing a juvenile homicide offender to life imprisonment without the possibility of parole. We find that the Sixth Amendment mandates that juveniles convicted of homicide who face the possibility of a sentence of life without the possibility of parole have a right to have their sentence determined by a jury. In so finding, we expressly reserve the issue of whether this defendant should receive the penalty of life in prison without the possibility of parole for a jury. In this case, defendant requested and was denied her right to have a jury decide her sentence. Accordingly, we vacate her sentence for first-degree murder and remand for resentencing on that offense consistent with this opinion.
Here is how this dissenting opinion in Skinner gets started:
I am going to need some time to read these opinions closely before I weigh in, but I would guess that the Michigan Supreme Court (and maybe even the US Supreme Court) will have its say before long on this matter.
I respectfully dissent. While the majority sets forth a strong argument, it ultimately fails because it is based upon a false premise: that Apprendi and its progeny requires that all facts relating to a sentence must be found by a jury. Rather, the principle set forth in those cases establishes only that the Sixth Amendment right to a jury trial requires the jury to find those facts necessary to impose a sentence greater than that authorized by the legislature in the statute itself based upon the conviction itself. And the statute adopted by the Michigan Legislature with respect to juvenile lifers does not fit within that category.
Thursday, August 13, 2015
New juve research suggests punishment certainty matters over severity to achieve deterence
This recent posting via the Juvenile Justice Information Exchange, titled "Report: Certainty, Not Severity, Key in Deterring Juvenile Crime," spotlights recent research on juvenile punishment's impact. Here are excerpts:
Researchers first reported several years ago that a major longitudinal study of serious adolescent offenders showed the severity of their punishments had little effect on their recidivism rates. Digging into the data, the researchers also found that teenagers who commit serious crimes do respond to the threat or risk of sanctions, though not in a one-size-fits-all way.
In a new report released by the federal Office of Juvenile Justice and Delinquency Prevention [available here], researchers say the findings point to the need to devote resources to change risk perceptions, rather than prisons.
The report, “Studying Deterrence Among High-Risk Adolescents,” is one of several OJJDP bulletins based on research from “Pathways to Desistance,” the study that followed more than 1,300 young offenders for seven years after their court involvement.
The resulting research has found no meaningful reduction in offending or arrests due to more severe punishment, such as correctional placement versus probation or longer periods of institutional placement, the researchers said. But it did find that the certainty of punishment can play a role in deterring future crimes. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.
Edward Mulvey, the principal investigator on the Pathways study, said the idea that adolescents respond to the certainty of punishment, not severity, has found an audience with some policymakers. They are asking whether states should have to justify why the criminal justice system should hold an adolescent offender for a long time....
The new bulletin looks at how young offenders evaluate the risks of crime, which has a deterrence effect. Young people slightly increased their risk perceptions in response to an arrest, it found. The researchers said, though, there is no standard response to the certainty of punishment because risk perceptions vary based on individuals’ prior experiences or history of offenses and other factors.
August 13, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)
Thursday, July 30, 2015
"Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity"
The title of this post is the title of this timely piece available via SSRN and authored by Beth Caldwell. Here is the abstract:
Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment. Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced in Miller applies retroactively to the cases of over 2,100 prisoners whose convictions were final when the case was decided. The Supreme Court granted certiorari in Montgomery v. Louisiana and is now poised to decide whether Miller must apply retroactively. The issue has primarily been framed as a question of whether the Miller rule is substantive, and therefore retroactive, or procedural, and therefore not retroactive. Ten state supreme courts have concluded that Miller is retroactive because it created a new substantive rule. The four states that have determined Miller is not retroactive have done so on the basis that its rule is procedural, rather than substantive. However, Miller’s rule is not clearly substantive or procedural.
This Essay presents an alternative argument for concluding that Miller is retroactive — one that has been marginalized in the discourse thus far but was just relied upon by the Connecticut Supreme Court in Casiano v. Commissioner. I argue that even if the Supreme Court were to determine that Miller announced a new procedural rule, it should still apply retroactively because of its groundbreaking nature. The Miller decision has sparked a transformation in juvenile sentencing across the country. Directly in response to Miller, eight states have passed legislation expressly outlawing LWOP sentences for juveniles. Nine other states have created new resentencing or parole procedures that go far beyond the requirements of Miller to offer juvenile offenders more meaningful opportunities for release at younger ages. Given the widespread changes the opinion has inspired, it should be categorized as a watershed rule and should apply retroactively.
July 30, 2015 in Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Tuesday, July 07, 2015
"Juvenile Sentencing in Illinois: Addressing The Supreme Court Trend Away from Harsh Punishments for Juvenile Offenders"
The title of this post is the title of this notable piece by Maureen Dowling now available via SSRN. Here is the abstract:
The United States Supreme Court has steadily been changing the way it approaches juvenile sentencing since 2005. This ideological shift has occurred as a response to the increase in biological and sociological studies, which point toward fundamental differences between juveniles and adults. This Note addresses how the new mandates by the Supreme Court have been implemented around the country, with a focus on statutory changes Illinois should make moving forward. Specifically, this Note argues that there are several adjustments Illinois will have to make in regards to the way it sentences juvenile homicide offenders, in order to be considered Constitutional based on the analysis set forth by the Supreme Court in Roper v. Simmons, Graham v. Florida, and Miller v. Alabama.
First, lengthy, consecutive term-of-years sentences should be abolished because it does not give juvenile offenders the “meaningful opportunity for release” required by Graham. This Note suggests that courts need to look at the idea of a “meaningful opportunity for release” differently when sentencing juveniles as opposed to adult offenders, because studies have shown that adolescents who are imprisoned have a much lower life expectancy than average. Second, Illinois should amend its sentencing statutes to require judges to consider several factors, while on record at a sentencing hearing, before sentencing a juvenile homicide offender to life in prison. These factors, laid out within this Note, will put Illinois at the forefront of ethical juvenile sentencing, while also ensuring that it does not violate the authority of Miller. Admittedly, these theories have been criticized for being too ‘soft’ on punishment for juveniles who are convicted of felony murder. However, the suggestions in this Note are meant to allow for the protection of the adolescent’s Eighth Amendment right to be free of cruel and unusual punishment, while also considering the severity and nature of the offense.
Saturday, June 20, 2015
"Jury Sentencing and Juveniles: Eighth Amendment Limits and Sixth Amendment Rights"
The title of this post is the title of this interesting and important new article by Sarah French Russell recently posted to SSRN. Here is the abstract:
Across the country, states are grappling with how to comply with the U.S. Supreme Court’s recent decision in Miller v. Alabama, which held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. Following Miller, it appears a sentencer may impose life without parole on a juvenile homicide offender only in those rare instances in which the sentencer determines, after considering the mitigating qualities of youth, that the juvenile’s crime reflects “irreparable corruption.” Courts are preparing to conduct resentencing hearings in states nationwide, and new cases where juveniles face the possibility of life in prison are entering the courts.
Yet courts and scholars have not addressed a fundamental question: Who is the sentencer? Can a judge decide that a particular juvenile should die in prison or does the Constitution give juveniles the right to require that a jury make that determination? Courts and state legislatures responding to Miller have assumed that a judge can impose life without parole on a juvenile, as long as the judge has discretion to impose a less severe sentence. But viewing Miller in light of the Supreme Court’s recent Sixth Amendment jury right jurisprudence raises questions about the role of the jury in these post-Miller sentencing hearings.
In particular, does an Eighth Amendment limit on a sentence operate in the same way as a statutory maximum sentence and set a ceiling that cannot be raised absent a jury finding? If so, a jury must find the facts beyond a reasonable doubt that expose a juvenile to life without parole. Understanding how the Court’s recent Sixth and Eighth Amendment cases interact has broad implications for how sentencing authority is allocated not only in serious juvenile cases but also in our justice system more widely.
Wednesday, May 27, 2015
Split Connecticut Supreme Court applies Miller retroactively to 50-year discretionary juve sentence
Yesterday the Connecticut Supreme Court, splitting 4-3, gave the Supreme Court's Eighth Amendment jurisprudence concerning juvenile LWOP sentencing the furthest reach of any major ruling I have seen through its opinion in Casiano v. Commissioner of Correction, No. SC19345 (Conn. May 26, 2015) (majority opinion here, dissents here and here). Here is how the majority opinion gets started:
We recently held in State v. Riley, 315 Conn. 637, 659, A.3d (2015), that, to comport with the eighth amendment to the federal constitution, the trial court must give mitigating weight to the youth related factors set forth in Miller v. Alabama, U.S. , 132 S. Ct. 2455, 2464–65, 2468, 183 L.Ed. 2d 407 (2012), when considering whether to impose a life sentence without the possibility of parole on a juvenile homicide offender. In Riley, the defendant challenged on direct appeal a total effective sentence of 100 years with no possibility of parole before his natural life expired, a sentence that the state conceded was the functional equivalent to life without parole. State v. Riley, supra, 642. The different procedural posture and sentence in the present case raises two significant issues regarding the reach of Miller: whether Miller applies retroactively under Connecticut law to cases arising on collateral review, and, if so, whether Miller applies to the imposition of a fifty year sentence on a juvenile offender. We answer both questions in the affirmative and, therefore, reverse the habeas court’s decision rendering summary judgment in favor of the respondent, the Commissioner of Correction, on the petition for a writ of habeas corpus filed by the petitioner, Jason Casiano.
May 27, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Thursday, May 21, 2015
Examining what qualifies as an LWOP sentence for purposes of Graham and Miller
This new piece at The Marshall Project, headlined "Life Expectancy: How many years make a life sentence for a teenager?," spotlights an Eighth Amendment issue that has been engaging lower courts in the five years since SCOTUS in Graham began putting limits of LWOP sentences for juvenile offenders. Eventually the Supreme Court will have to resolve the issue of just what qualifies as an LWOP sentence, and here is an account of issue (with some links to notable rulings):
James Comer was 17 when he, an older cousin, and their friend made a series of violent and irreversible decisions: One night in April 2000, they robbed four people at gunpoint. They followed one of their victims for miles as she drove home from her night shift as a postal worker, then pointed a gun at her head outside her house. Comer’s friend, 17-year-old Ibn Ali Adams, killed their second victim when he discovered the man had no money.
Comer’s youth, his lawyers argue, was at least partly responsible for his poor judgment and impulsive behavior. And it is his youth that may save him from dying in prison. Earlier this month, an Essex County, New Jersey, judge ordered a new sentencing hearing for Comer in light of Miller v. Alabama. ...
But Comer isn’t serving life without parole, at least not technically. For felony murder and multiple counts of armed robbery, he was sentenced to 75 years. He will be eligible for parole, but not until his 86th birthday — more than 20 years past his life expectancy, according to actuarial data his lawyers cited. This sentence “amounts to de facto life without parole and should be characterized as such,” the judge wrote.
Miller v. Alabama was the third in what’s come to be known as the “Roper/Graham/Miller trilogy” of cases in which the Supreme Court ruled, essentially, that kids are different. Teenagers’ still-developing brains make them more impulsive, more susceptible to peer pressure, and less able to understand the consequences of their actions. This makes them less culpable than adults and more amenable to rehabilitation as they mature, the court said.
With Roper, the court outlawed the death penalty for juveniles. With Graham, it struck down life-without-parole sentences for non-homicide crimes. With Miller, the justices forbid mandatory life-without-parole sentences, even for murder. Life sentences for juveniles are allowed only if the judge first has the chance to consider how youth and immaturity may have contributed to the crime....
Now a growing number of courts are interpreting the trilogy even more broadly, applying their principles to cases, like Comer’s, that aren’t explicitly covered by the court’s rulings.
“When read in light of Roper and Graham,” Miller v. Alabama “reaches beyond its core holding,” the Connecticut Supreme Court held last month in State v. Riley. In that case, 17-year-old Ackeem Riley was sentenced to 100 years in prison after he shot into a crowd in a gang-related incident, killing one teenager and wounding two children. The court ordered a new sentencing hearing, finding that the sentencing judge had not adequately considered Riley’s youth. Though Miller specifically targeted mandatory life without parole sentences — technically, Riley’s sentence was neither mandatory nor life without parole — the Supreme Court’s reasoning “counsels against viewing these cases through an unduly myopic lens,” the Connecticut court said.
In Brown v. Indiana, the state supreme court ordered a new sentencing hearing for Martez Brown, who was 16 when he and two friends killed a couple in a botched robbery. Quoting Miller, the court ruled that “similar to a life without parole sentence, Brown’s 150 year sentence ‘forswears altogether the rehabilitative ideal.’” Although Brown’s sentence was not formally a life-without-parole sentence, they wrote, “we focus on the forest — the aggregate sentence — rather than the trees — consecutive or concurrent, number of counts, or length of the sentence on any individual count.”
May 21, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack
Monday, May 11, 2015
"Brain Science and the Theory of Juvenile Mens Rea"
The title of this post is the title of this notable new paper by Jenny Carroll now available via SSRN. Here is the abstract:
The law has long recognized the distinction between adults and children. A legally designated age determines who can vote, exercise reproductive rights, voluntarily discontinue their education, buy alcohol or tobacco, marry, drive a car, or obtain a tattoo. The Supreme Court has repeatedly upheld such age-based restrictions, most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders. In the cases of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Court's jurisprudence of youth relies on emerging neuroscience to confirm what the parents of any teenager have long suspected: adolescents' cognitive abilities and thought processes differ from their adult counterparts. Children are different than adults.
In these rulings, the Court recognized that brain development affects the legal construct of culpability and so should affect punishment. The Court reasoned that without mature thought processes and cognitive abilities, adolescents as a class fail to achieve the requisite level of culpability demonstrated in adult offenders. As such, juveniles were categorically spared the death penalty and, in some instances, a sentence of life in prison without the possibility of parole. To date, the Court has limited the application of this principle to punishment. The logic of the Court's decisions, however, applies just as strongly to the application of substantive criminal law. Just as modern neuroscience counsels against the imposition of certain penalties on juvenile offenders, so it counsels toward a reconsideration of culpability as applied to juvenile offenders through the element of mens rea. In this paper I argue that the failure to extend this jurisprudence of youth to the mental element undermines the very role of mens rea as a mechanism to determine guilt.
Sunday, April 12, 2015
Considering one defendant getting a second look due to Miller retroactivity
One big reason I believe the Supreme Court's Eighth Amendment ruling in Miller v. Alabama ought to be fully retroactive is because doing so will not be any kind of windfall for juve murderers given a mandatory LWOP. Rather, as this new New York Times article highlights, all that Miller retroactivity entails is that an offender get a new sentencing hearing in which a judge will consider whether an LWOP sentence was truly justified in light of the nature and circumstances of the offense and the full history and characteristics of the defendant. The article, headlined "A Murderer at 14, Then a Lifer, Now a Man Pondering a Future," merits a full read, and here is a teaser from the start of the piece:
Adolfo Davis admits he was a swaggering thug by the age of 14 as he roamed and dealt drugs with a South Side gang.
He also describes a childhood of emotional and physical deprivation: a mother fixated on crack, an absent father, a grandmother’s overflowing and chaotic apartment.
From the age of 6 or 7, he often had to buy his own food or go hungry, so he collected cans, pumped gas for tips and shoplifted. At 10, he went to juvenile hall for wresting $3 worth of food stamps and 75 cents from a girl. At 12, he fell in with the Gangster Disciples. “I loved them, they protected me, they were my family,” Mr. Davis said in a recent interview.
At 14, in 1990, he was out with two gang members when they robbed a rival drug house and shot the occupants, leaving two dead. Now 38, he has spent the last 24 years in prison on a mandatory sentence of life without parole.
But his future will be reconsidered in a new sentencing hearing here on Monday. It is one of the first such proceedings in Illinois to result from the Supreme Court’s landmark ruling in Miller v. Alabama that juvenile murderers should not be subject to mandatory life without parole....
The 2012 decision did not say whether the new rules should apply retroactively, to cases long closed. Since then, state and lower federal courts have disagreed, creating drastic differences for prisoners depending on where they live.
Ten states, including Illinois, are applying the standard to pre2012 cases and have started the process of resentencing. Four states — Louisiana, Michigan, Minnesota and Pennsylvania, with about 1,130 prisoners who could be affected — have declined to make the ruling retroactive. The Supreme Court is expected to clarify the issue next fall, when it hears the appeal of a convict in Louisiana....
Here and around the country, victim rights groups have strongly opposed the reopening of past sentences. “The families of the victims will suffer the most,” said Jennifer Bishop-Jenkins, a cofounder and board member of the National Organization of Victims of Juvenile Murderers.
She became a champion of victim rights 25 years ago when her pregnant sister and her sister’s husband were murdered in Winnetka, Ill., by a 16-year-old who received a mandatory life sentence. “When I started thinking of the possibility that we’d have to go back to court, I couldn’t sleep for four months,” she said. “Our mother was devastated.”
A new sentencing hearing in that case is scheduled for this month. While Ms. Bishop-Jenkins feels confident that the killer, because of the particulars of his acts, will have the life sentence renewed, she noted that the transcript of his original sentencing hearing was missing and that key witnesses were dead or gone.
Recreating a fair sentencing process is often impossible in old cases, she said, and there are ample existing ways to pursue what seem to be unwarranted life sentences, such as executive clemency or other petitions.
Mr. Davis’s supporters said they had not been able to find any relatives of the two murder victims in his case; none have come forward to comment on his resentencing....
Before the hearing on Monday, Mr. Davis’s lawyers — Patricia Soung of the Loyola Law School in Los Angeles and Rachel Steinback, a lawyer with the civil rights law firm Loevy & Loevy in Chicago — prepared a sentencing memo calling for his release because of his remorse, his growth and his mentoring of others while in prison.
The Cook County prosecutors have not prepared a written statement, but they are expected to argue for a new life sentence. Opposing the 2012 clemency bid, the prosecutors said young Adolfo had been “an active and willing participant in the murders” and “was not simply a naïve child being led astray by older friends.”...
The two sides will present their cases orally before Judge Angela Petrone of the Cook County Circuit Court. During or after the hearing, the judge could order anything from a new life term to an immediate release for time served.
April 12, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Friday, April 10, 2015
Controversy surrounding California judge who sentenced 19-year-old child rapist way below mandatory minimum 25-year-term
As reported in this lengthy CNN piece, headlined "California judge faces recall try over sentence in child rape case," a judge's decision to impose only a 10-year prison term on a child rapist is causing a big stir in Los Angeles. Here are some of the details:
Three county supervisors in California announced Thursday a campaign to recall a judge who sentenced a man to 10 years in prison -- instead of the state mandatory minimum of 25 years -- for sodomizing a 3-year-old girl who is a relative.
At the center of the controversy is Orange County Judge M. Marc Kelly who, according to transcripts of a February court proceeding, was moved by the plea for leniency by the mother of the defendant. The judge expressed "some real concerns" about the state's minimum sentence of 25 years to life in prison for a child sodomy conviction and about "whether or not the punishment is disproportionate to the defendant's individual culpability in this particular case," according to a transcript of the February proceeding.
"I have not done this before, but I have concerns regarding or not this punishment as prescribed would fall into the arena of cruel and unusual punishment and have constitutional ramifications under the Eighth Amendment," the judge said in February, according to the transcript. "I know this is a very rare situation. It doesn't come up very often."... [An] account of [the April 3] sentencing quoted the judge as saying the mandatory sentence would be appropriate in most circumstances, but "in looking at the facts of ... (the) case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," Kelly said. The judge noted that the defendant "almost immediately" stopped and "realized the wrongfulness of his act," according to the newspaper.
"Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child," the judge said, according to the newspaper. "There was no violence or callous disregard for (the victim's) well-being."
Three Orange County supervisors held a press conference Thursday to announce the campaign to collect 90,829 signatures needed to hold a recall election of Kelly. They were Orange County Board of Supervisors Chairman Todd Spitzer, County Supervisor and Vice Chairwoman Lisa Bartlett and Supervisor Shawn Nelson. ...
Spitzer said he was responding to "a huge community outcry" against the judge's sentence and his comments from the bench. "We as a community spoke on behalf of the victim today, the 3-year-old child," Spitzer said. "If it was a stranger, the mom would have thrown the book at the guy. The family cares about the perpetrator. It's a family member," Spitzer said. "The victim is related to the perpetrator, and that is what is so difficult here."
But Spitzer said the judge didn't follow state law. "We don't want a judge that legislates from the bench," Spitzer said. "It's just unfathomable that the judge would try to describe what is a brutal sodomy," Spitzer added. "Sodomy of a 3-year-old child is a brutal, violent act in itself."...
Orange County District Tony Rackauckas has called the sentence "illegal," and his office will appeal it, said his chief of staff, Susan Kang Schroeder. "We believe that his decision, his sentencing was illegal because there was a mandatory minimum set up by statute by the legislature," Schroeder said. "We're doing what the people of Orange County have asked us to do. We're going to fight through the courts."...
The June crime occurred in the garage of the family home in Santa Ana, where the defendant, then 19, was playing video games, prosecutors said. CNN is not identifying any family members so the victim can remain anonymous. The defendant also made the victim touch his penis, and he covered the girl's mouth while the mother called out to her, prosecutors said....
"As a 19-year-old, defendant appears to be mentally immature and sexually inexperienced. It is difficult to explain away defendant's actions, however, as sexual frustration," prosecutors said in court papers. "All things considered, defendant appeared to be a relatively normal 19-year-old, aside from the crime of which he is convicted." But the defendant "poses a great danger to society and probably will for the majority of his life," prosecutors added.
During the February court proceeding, a statement by the mother was read aloud to the court by her husband, according to the transcript. "While a mother's love is nothing less than unconditional, I am clearly aware of the gravity of my son's actions and the inevitable discipline that he must now confront," the mother's statement said. "It has been not only extremely difficult, but utterly devastating for me and my family to fully come to terms with the events that took place."
The mother said she hadn't had the strength or courage yet "to directly talk" to her son about the crime, but she said her son "has allowed God into his heart and has committed himself to God's guidance." Her son "is not a bad person," and she asked for forgiveness for his "transgressions and for the opportunity to have a second chance at liberty," the husband told the judge, summarizing his wife's statement.
The judge remarked about the rarity of the mother's plea. "I have never had a situation before like this where a mother is the mother of the victim of the crime and the mother of the defendant who was convicted of the crime," the judge said. "It's very rare in these situations. So I know it must be very difficult for you."
Defense attorney Erfan Puthawala said his client never denied his responsibility "for the heinous act he committed" and, in fact, cooperated with investigators. "He made a statement essentially incriminating himself, which he did not have to do," the attorney said.
"He expressed remorse for the actions he took and the mistake he made. He understands that a momentary lapse has had lifelong ramifications for his sister the victim, for his family, and for himself," Puthawala added. "It is important to note that (my client) is not a pedophile, he is not a sexual deviant, he is not a sexually violent predator, and he poses a low risk of recidivism." Those findings came from an independently appointed psychologist who wrote a report to assist the judge in sentencing, Puthawala said.
Intriguingly, the judge at the center of this controversial sentencing was a senior local prosecutors for more than a decade before he became a member of the state judiciary. Perhaps because of that history, this judge perhaps though the prosecutor who charged this case likely had some discretion not to charge an offense that carried a 25-year mandatory minimum and thus perhaps he thought he should have some discretion not to sentence based on the mandatory minimum. Based on this case description, too, I wonder if this judge found that some of the Eighth Amendment themes stressed by the Supreme Court in Graham and Miller had some applicability in this setting because the defendant was only 19.
April 10, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Tuesday, April 07, 2015
"Miller V. Alabama and the Retroactivity of Proportionality Rules"
The title of this post is the title of this very timely new article by Perry Moriearty just now available via SSRN. Here is the abstract:
In its 2012 decision in the companion cases of Miller v. Alabama and Jackson v. Hobbs, the Supreme Court declared that it was unconstitutional to sentence children to mandatory life without parole because such sentences preclude an individualized consideration of a defendant’s age and other mitigating factors. What Miller did not address, however, and what has confounded lower courts over the last two years, is whether the ruling applies to the more than 2,100 inmates whose convictions were already final when Miller was decided. In all but one case, the question has come down to an exercise in line drawing. If, under the Court’s elusive Teague retroactivity doctrine, Miller articulated a “substantive” rule of constitutional law, it is retroactive; if the rule is merely “procedural,” it is not. The Supreme Court is all but certain to decide the issue in the near future.
I make two primary arguments in this Article. The first adds to the growing body of commentary concluding that, while Miller has “procedural” attributes, they are components of a constitutional mandate that is fundamentally “substantive.” The second argument applies broadly to all new constitutional rules which, like the Miller rule, are grounded in the Eighth Amendment’s proportionality guarantee. As even those who favor of limitations on retroactivity have acknowledged, there is a normative point at which interests in “finality” simply must yield to competing notions of justice and equality. I argue that finality interests may be at their weakest when the Court announces a new proportionality rule, because the practical burdens of review and theoretical concerns about undermining the consequentialist goals of punishment are simply not as pronounced with sentences of incarceration as they are with convictions. The risks of offending basic notions of “justice” may be at their most pronounced with new proportionality rules, however, because to deny relief to those whose sentences have been deemed “excessive” (or at a high risk of excessiveness) is to undermine the very principles of proportionality and fundamental fairness in which such rules are grounded. Proportionality rules should therefore be afforded something close to a presumption of retroactivity.
Regular readers and SCOTUS fans know this article is timely because the Supreme Court has recently taken up a new case to finally resolve the lower court split over Miller's retroactivity. But I call this piece very timely because this very afternoon I am in Cambridge to talk about these exact issues with Judge Nancy Gertner's Harvard Law School sentencing class. Coincidence?
Thursday, March 26, 2015
"Mandating Discretion: Juvenile Sentencing Schemes after Miller v. Alabama"
The title of this post is the title of this notable new and timely paper available via SSRN authored by Jennifer Breen and John Mills. Here is the abstract:
Miller v. Alabama established that “children are different” and it required profound changes in the way states adjudicate juveniles within the criminal justice system. This Article moves beyond standard interpretations of this significant decision and argues that Miller requires much more than abolition of mandatory juvenile life-without-parole sentences. In addition to that sentence-specific ban, Miller establishes a right for juveniles to have their young age taken into consideration during sentencing.
This holding demands individualized consideration of a child’s age at sentencing, akin to sentencing procedures demanded by the Court in death penalty cases. At the very least, it is clear that states may no longer treat a juvenile defendant as an adult without any opportunity to consider the impact of youth upon the defendant. Yet this Article identifies eighteen states that continue to utilize these now unconstitutional sentencing schemes, contravening the most basic holding of the Court in Miller: “[C]hildren are constitutionally different from adults for purposes of sentencing.”
After contextualizing both the Miller decision and the process of transferring juveniles to adult court, this Article identifies a subset of states that fail to allow for consideration of the unique qualities of youth at any stage of the juvenile adjudication process. These states are outliers and defy both the national consensus on juvenile adjudication and the Court’s mandate in Miller. This Article concludes by proposing reforms to aid states in accommodating the implications of Miller while increasing reliability in juvenile sentencing.
March 26, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Monday, March 23, 2015
The extra state habeas question (and its answer?) in Montgomery, the new SCOTUS Miller retroactivity case
Notably, the Supreme Court's cert grant in in another Miller retroactivity case from Louisiana (basics here) included some extra homework for the parties:
14-280 MONTGOMERY, HENRY V. LOUISIANA
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: “Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. __ (2012)?"
This added question in Montgomery echoes an issue that the Justices had sought to consider in the prior Toca case, and I think it reflects the thought of some Justices that state courts on state habeas review may not be constitutionally required to apply the modern Teague jurisprudence that federal courts now use in federal habeas review of final state convictions. If state courts are not required to follow at least the Teague standard, arguably there is not a federal question presented by whether and how a state court applies Teague in a state habeas case.
Notably, in a case from 2008, Danforth v. Minnesota, 552 U.S. 264, 266 (2008), the Supreme Court held that states were permitted to give greater retroactive effect to new federal constitutional procedural rules that did not satisfy a Teague exception. Thus is it already clear that state courts can give state prisoners in state habeas cases more retroactive benefits than Teague requires. The added Montgomery question essentially asks whether a federal issue is presented if state courts decide to give state prisoners in state habeas cases less retroactive benefits than Teague requires.
In some sense from the prisoner's perspective, this second question is kind of an academic exercise: even if the Supreme Court were to decide that it lacks jurisdiction to review whether and how a state court applies Teague in a state habeas case, it is clear that lower federal courts (and the US Supreme Court) have jurisdiction and will apply Teague if and when the state prisoner brings a federal habeas case. But, then again, this is not an entirely academic exercise because there could be cases in which the state prisoner is not able to bring a federal habeas case (perhaps because of statutory or other problems with bringing such a case).
If this discussion already makes your head hurt and leads you to think you need to take a law school Federal Courts class again, join the club. Fortunately for all of us, a very insightful Assistant U.S. Attorney, Steven G. Sanders, published last month a great New Jersey Law Journal article about all this titled "Can US Supreme Court Require States to Apply New Fed Rules Retroactively on State Collateral Attack?". Thanks to Steven and the NJLJ, I can provide this article in full linked below with this disclaimer: “Reprinted with permission from the February 9, 2015 issue of the New Jersey Law Journal. © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.”
March 23, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack
Supreme Court takes up a replacement juve LWOP retroactivity case from Louisiana
As reported in this AP piece, the US Supreme Court this morning found a replacement for the prior resolved case (Toca) dealing with the retroactivity of its 2012 Miller decision. Here are the basics:
The Supreme Court is adding a new case to decide whether its 3-year-old ruling throwing out mandatory life in prison without parole for juveniles should apply to older cases. The court was scheduled to hear arguments in a case from Louisiana in late March, but the state released inmate George Toca after 30 years in prison.
The justices on Monday said they would consider a new Louisiana case involving a man who has been held since 1963 for killing a sheriff's deputy in Baton Rouge. Henry Montgomery was a 17-year-old 10th grader who was playing hooky from school when he shot Deputy Charles Hurt at a park near the city's airport. The officer and his partner were looking to round up truants.
The case will be argued in the fall.... The case is Montgomery v. Louisiana, 14-280.
Some SCOTUS-related posts on the prior Toca case and Miller retroactivity:
- Supreme Court grants cert to (finally!?!) resolve whether Miller applies retroactively
- George Toca now a free man ... and SCOTUS now lacks a live Miller retroactivity case
- The back-story of George Toca's case (and its impact on other juve LWOPers)
- "Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane"
- Examining "sentence finality" at length in new article and series of posts
Thursday, March 19, 2015
Florida Supreme Court decides unanimously that Miller applies retroactively to all mandatory juve LWOP sentences
As reported in this local piece, the "Florida Supreme Court unanimously ruled Thursday that all of the state’s juvenile killers who received automatic sentences of life in prison must be resentenced under a law passed in 2014." Here is more:
The long-awaited ruling answers the question of whether the U.S. Supreme Court’s 2012 decision in Miller v. Alabama, which effectively banned automatic life sentences for juvenile killers, applies retroactively. An estimated 250 state prisoners, 17 of them from Lee and Collier counties, are serving life sentences for murders committed before they turned 18.
Under Florida’s 2014 law, passed to conform with the U.S. Supreme Court decision, only juveniles who committed homicides after July 2014 were subject to a revised sentencing structure, which required a judge to consider several factors before determining a prison term. For about 20 years before the law’s passage, Florida mandated a life sentence for juveniles convicted of first-degree murder.
Since the state’s law was passed, Florida trial and appeal courts have grappled with whether juveniles who killed before July 2014 and received automatic life sentences should also receive the same consideration. After the state’s five appeals courts gave conflicting opinions, the Florida Supreme Court weighed in Thursday.
The seven justices found that the U.S. Supreme Court’s ban “constitutes a development of fundamental significance,” the standard used to determine whether changes to Florida law apply retroactively. “The patent unfairness of depriving indistinguishable juvenile offenders of their liberty for the rest of their lives, based solely on when their cases were decided, weighs heavily in favor of applying the (U.S.) Supreme Court’s decision in Miller retroactively,” Justice Barbara J. Pariente wrote in the opinion....
Under Florida’s new law, juveniles can still receive life behind bars. That sentence, however, must be made after a judge considers several factors, including the juvenile’s personal background, maturity and criminal history. At a minimum, a juvenile convicted of first-degree murder who committed the homicide must receive 40 years in prison.
The full ruling in Falcon v. Florida, No. SC13-865 (Fla. March 19, 2015), is available at this link.
Wednesday, March 11, 2015
"Trial Defense Guidelines: Representing a Child Client Facing a Possible Life Sentence"
The title of this post is the title of this notable new report/guidelines from The Campaign for Fair Sentencing of Youth . As this webpage notes, these new guidelines draw from the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in the capital context and the NJDC National Juvenile Defense standards in the juvenile court context. Here is the introduction to the report/guidelines:
The objective of these guidelines is to set forth a national standard of practice to ensure zealous, constitutionally effective representation for all juveniles facing a possible life sentence (“juvenile life”) consistent with the United States Supreme Court’s holding in Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012) that trial proceedings “take into account how children are different, and how those differences counsel against irrevocably sentencing [children] to a lifetime in prison.”
The representation of children in adult court facing a possible life sentence is a highly specialized area of legal practice, therefore these guidelines address the unique considerations specific to the provision of a zealous trial defense. These guidelines set forth the roles and responsibilities of the defense team for the duration of a trial proceeding and outline child-specific considerations relevant to pre-trial, trial, and sentencing representation. Direct appeal and collateral review are not explicitly addressed in these guidelines.
These guidelines are premised on the following foundational principles:
children are constitutionally and developmentally different from adults;
children, by reason of their physical and mental immaturity, need special safeguards and care;
children must not be defined by a single act;
juvenile life defense is a highly specialized legal practice, encompassing the representation of children in adult court as well as the investigation and presentation of mitigation;
juvenile life defense requires a qualified team trained in adolescent development;
juvenile life defense requires communicating with clients in a trauma-informed, culturally competent, developmentally and age-appropriate manner;
juvenile life defense is based on the client’s expressed interests, informed by meaningful and competent child client participation;
juvenile life defense counsel must ensure that child clients and their families are treated with dignity and respect;
juvenile life defense counsel must ensure that victims’ families are treated with dignity and respect;
juvenile life defense counsel must litigate for a presumption against life sentences for children; and
juvenile life defense counsel must litigate to ensure a meaningful individualized sentencing determination, in which defense counsel is able to fully and effectively present mitigation to the court.
Monday, March 09, 2015
Profile of one (of thousands) of the juve LWOP stories full of post-Miller uncertainty
Thanks to How Appealing, I saw this interesting article from North Carolina about the history of an offender long serving an LWOP sentence for a juvenile murder who still awaits resolution of whether he can benefit from the Supreme Court's work three years ago in Miller v. Alabama. The piece is headlined "Convicted of murder at 16, Anthony Willis is hoping a Supreme Court decision will overturn his sentence," and merits a full read for those following post-Miller developments closely. Here is an excerpt from the lengthy piece:
[I]f nothing else, prison gives a man time to reflect. Willis slowly came to realize — even though he was expected to die behind bars — that he needed his life to matter. The best way to do that, he decided, was to lean on God and to educate himself. After earning his GED, Willis began taking anger- and stress-management classes and attending prison fellowship seminars.
He earned back-to-back-to-back associate degrees from Western Piedmont Community College and a bachelor's degree from California Coast University. His mother attended his graduation ceremony for his first associate degree. "That's my baby," Brenda Willis yelled as Willis walked down the aisle. She was so proud of her son.
That's a big part of Willis' motivation today. He wants his mother to know that his actions as a teenager were never her fault.... Now 35, his appearance and demeanor are nothing like one might expect from a man who has spent slightly more than half his life in prison. Most of the other prisoners call him Smiley, a nickname that has transferred with him from prison to prison.
Thin, polite, boyish and articulate, Willis seems to have been transformed by prison into a man who has gained respect by learning to stop following the herd. Willis said he has found comfort in the Lord and teaches those virtues to other prisoners. He said he regularly leads prison fellowship seminars and takes pride in his role as a mentor and recreational leader. Willis said he often counsels new prisoners almost as soon as they get off the bus. Most mistake his optimism for someone who is about to get released — anyone but a lifer....
Willis acknowledges that serving a life sentence isn't easy. "It's hard to hold onto hope in here," he said. "It's like holding onto a ledge by your fingertips." But he endures the best he can, buoyed by his faith, his new-found purpose in life and a U.S. Supreme Court ruling called Miller vs. Alabama.
On June 25, 2012, the Supreme Court ruled that mandatory life in prison without parole for people who committed murder as juveniles constitutes cruel and unusual punishment. The ruling effectively struck down laws in 28 states, including North Carolina....
The court did not bar mandatory life sentences without parole in all juvenile homicide cases. It said lower courts could impose such a sentence only after examining mitigating factors, including family environment, the circumstances of the offense and the possibility of rehabilitation. But the court didn't make its order retroactive, so it does not apply to Willis and 87 other murderers convicted as juveniles and now serving life sentences in North Carolina.
In December, the Supreme Court agreed to consider whether the Miller ruling should be made retroactive in a Louisiana murder. But the case was resolved at the state level, leaving no issue for the federal court to hear. So making Miller retroactive remains in limbo, at least in North Carolina.
Less than two weeks after the Miller ruling, North Carolina's General Assembly responded by approving a law that requires a parole review after a juvenile murderer has spent a minimum of 25 years in prison. But again, the law applies only to sentences handed down after the Miller ruling. Courts in at least nine states — including South Carolina — have ruled that the ruling will be applied retroactively. Five other states have ruled that the decision is not retroactive. North Carolina's appellate courts continue to consider the issue.
Friday, March 06, 2015
Fourth Circuit holds that Miller is not retroactive on collateral review under Teague
Like many who follow Eighth Amendment jurisprudence or care about juvenile justice, I had been hopeful that the Supreme Court was finally going to resolve this Term whether its Miller ruling barring mandatory LWOP sentences for juvenile offenders was to be applied retroactively. But Toca, the case on which cert had been granted a few months ago, got resolved on other grounds and now lower court rulings continue to be central to this issue for the time being. Consequently, I am grateful to a reader who alerted me that the Fourth Circuit yesterday, in Johnson v. Ponton, No. 13-7824 (4th Cir. March 5, 2015) (available here), formally addressed this matter. Here is how the panel's unanimous opinion starts and winds down:
Petitioner-Appellant Shermaine Ali Johnson appeals the district court’s dismissal of his habeas petition under 28 U.S.C. § 2254, challenging his sentence of life imprisonment without parole. He argues that the rule announced in Miller v. Alabama, 132 S. Ct. 2455 (2012), is retroactively applicable to him on collateral review. Miller held that imposing mandatory life imprisonment without the possibility of parole for juvenile homicide offenders -- i.e., imposing that sentence without any individualized consideration of their status as juveniles -- violates the Eighth Amendment. For the reasons that follow, we conclude that the Miller rule is not retroactively applicable to cases on collateral review. We therefore affirm....
We therefore hold that the Supreme Court has not held the Miller rule retroactively applicable, and that the Court’s holdings do not dictate retroactivity because the rule is neither substantive nor a watershed rule of criminal procedure. In so deciding, we join the Eleventh Circuit. We also note that our holding is consistent with that of the only other circuit court panel to have answered the question of Miller’s retroactivity. See Craig v. Cain, No. 12-30035, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (per curiam) (unpublished).
Friday, February 27, 2015
Split Connecticut Supreme Court works through Miller application issues
As reported in this local AP piece, headlined "Connecticut court tosses 100-year sentence imposed on teen," the top court in the Nutmeg State issued a notable and significant ruling on juvenile sentencing in the wake of recent SCOTUS Eighth Amendment jurisprudence. Here are the basics:
The Connecticut Supreme Court on Friday overturned a 100-year prison sentence that was imposed on a Hartford teenager in a murder case, saying juveniles cannot be treated the same as adults when being sentenced for violent crimes.
In a 5-2 ruling, justices ordered a new sentencing hearing for Ackeem Riley, who was 17 in November 2006 when he sprayed gunfire into a Hartford crowd from a passing car. Three bystanders were shot, including 16-year-old honor student Tray Davis, who died....
The Miller decision was one of three U.S. Supreme Court rulings since 2005 that “fundamentally altered the legal landscape for the sentencing of juvenile offenders to comport with the ban on cruel and unusual punishment,” Connecticut Justice Andrew McDonald wrote in the majority decision. The rulings also barred capital punishment for all juvenile offenders and prohibited life imprisonment without the possibility of parole for juveniles in non-homicide cases.
McDonald wrote in Friday’s ruling, which overturned a state Appellate Court decision, that it didn’t appear trial Judge Thomas V. O’Keefe Jr. adequately considered Riley’s age at the time of the shooting. “The court made no mention of facts in the presentence report that might reflect immaturity, impetuosity, and failure to appreciate risks and consequences,” McDonald wrote. “In the entire sentencing proceeding, only defense counsel made an oblique reference to age.”
Justices Carmen Espinoza and Peter Zarella dissented....
State lawmakers are now considering a bill that would revamp Connecticut’s juvenile sentencing rules to conform to the U.S. Supreme court rulings. A similar measure failed last year. There are about 50 Connecticut prisoners serving sentences of 50 or more years for crimes committed when they were under 18, and most are not eligible for parole. Defense lawyers say they expect more appeals involving the juvenile sentencing issue.
The extended majority ruling in Connecticut v. Riley is available at this link, and it gets started with these passages:
The defendant, Ackeem Riley, was seventeen years old when he committed homicide and nonhomicide offenses for which the trial court imposed, in the exercise of its discretion, a total effective sentence of 100 years imprisonment. The defendant has no possibility of parole before his natural life expires. In his certified appeal to this court, the defendant claims that his sentence and the procedures under which it was imposed violate Graham and Miller, and, hence, the eighth amendment....
We agree with the defendant’s Miller claim. Therefore, he is entitled to a new sentencing proceeding at which the court must consider as mitigation the defendant’s age at the time he committed the offenses and the hallmarks of adolescence that Miller deemed constitutionally significant when a juvenile offenderis subject to a potential life sentence. We decline, however, to address the defendant’s Graham claim. As we explain later in this opinion, the legislature has received a sentencing commission’s recommendations for reforms to our juvenile sentencing scheme to respond to the dictates of Graham and Miller. Therefore, in deference to the legislature’s authority over such matters and in light of the uncertainty of the defendant’s sentence upon due consideration of the Miller factors, we conclude that it is premature to determine whether it would violate the eighth amendment to preclude any possibility of release when a juvenile offender receives a life sentence.
The dissenting Riley opinion is available at this link, and it starts this way:
I disagree with the majority’s conclusion that the total effective sentence of 100 years imprisonment imposed by the trial court on the defendant, Ackeem Riley, violates the eighth amendment to the United States constitution. I agree with the Appellate Court’s conclusion that, "[b]ecause the court exercised discretion in fashioning the defendant’s sentence, and was free to consider any mitigating evidence the defendant was able to marshal, including evidence pertaining to his age and maturity"; State v. Riley, 140 Conn. App. 1, 4, 58 A.3d 304 (2013); the sentence complied with the decision of the United States Supreme Court in Miller v. Alabama, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), which held that "the [e]ighth [a]mendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." (Emphasis added.) Id., 2469. To be clear, therefore, Miller applies only to mandatory sentencing schemes. Accordingly, I respectfully dissent.
February 27, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Wednesday, February 25, 2015
"Eighth Amendment Presumptions: A Constitutional Framework for Curbing Mass Incarceration"
The title of this post is the title of this notable new article by William Berry II now available via SSRN. Here is the abstract:
The Supreme Court’s conceptualization of the Eighth Amendment over the past decade has focused on narrow exceptions to the ability of the states to punish criminal offenders, excising particular punishments based on characteristics of the offender or crime. What is missing, however, is a set of broader guiding principles delineating the line between acceptable and impermissible punishments. The Court itself, in Kennedy v. Louisiana, acknowledged as much, describing the case law as “still in search of a unifying principle.” In light of this vacuum, this article proposes a new approach to the application of the Eighth Amendment.
The absence of regulation of excessive and disproportionate punishments by state legislatures over the past two decades has resulted in the largest prison population in the history of the human race. Instead of merely being a tool that merely removes a few types of offenses and offenders from the purview of state legislatures, the Eighth Amendment should also serve as a more robust guide to shape state penal practices.
To that end, this Article argues for the development of a series of Eighth Amendment presumptions — guiding principles that would govern the punishment practices of legislatures without excluding them from the conversation. Currently, the Eighth Amendment serves to identify the constitutional “exceptions” to the “rules” promulgated by the legislatures. This Article’s approach would reverse that status quo, with the Court articulating general rules and the legislatures then developing (and justifying through careful study) the exceptions to the rules. Indeed, an examination of the Court’s Eighth Amendment cases suggests this “presumptive” sentiment is already implicit in much of the thinking of the Court.
Part I of the Article briefly explains the shortcomings of the current evolving standards of decency doctrine and its devastating consequences. Part II of the Article explores the concept of presumptions, exploring how presumptions operate and demonstrating their virtues. The Article then argues in Part III for the reimagining of the Eighth Amendment as an Amendment of constitutional presumptions combining elements from the Court’s past cases with the needs arising from three decades of neglecting the decisions of legislatures. Finally, Part IV demonstrates how this conceptual framework would work in practice.
February 25, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack