Tuesday, June 10, 2014

Noting SCOTUS continues to dodge (inevitable?) ruling on Miller retroactivity

This Philadelphia Inquirer article, headlined "U.S. Supreme Court won't hear case of Pa. juveniles serving life," reports on the only significant sentencing news that has come from the Supreme Court so far this week. Here are the details (with original paragraphs re-ordered a bit for exposition):

Pennsylvania has more inmates convicted as juveniles for murder and sentenced to life without parole than any other place in the world.  Pennsylvania has more than 500 people convicted as juveniles and given mandatory life sentences — 300 of them from Philadelphia, advocates say.  The United States is the only country that doles out mandatory life sentences to juveniles. And Pennsylvania has 25 percent of such offenders, advocates say - more than any other state or nation....

Monday [the] U.S. Supreme Court ... declined to hear an appeal by juvenile-justice advocates to revisit the sentences of those prisoners.  "We are obviously disappointed," said Marsha Levick, deputy director and chief counsel of the Juvenile Law Center, a national, nonprofit, public-interest law firm for children, based in Center City. The center had brought the appeal to the high court....

In June 2012, the Supreme Court ruled that children under 18 convicted of homicide could no longer receive mandatory sentences of life without parole.  Such automatic sentences, the court found, are unconstitutional, violating the Eighth Amendment's prohibition against cruel and unusual punishment.  Life sentences for juveniles committing murder are allowable; they just cannot be mandatory....

The ruling caused confusion, however.  While it said that juveniles committing murder could not receive mandatory sentences of life without parole in 2012 and beyond, it did not address inmates already serving such sentences.

In October 2013, the Pennsylvania Supreme Court stepped into the void. It found that the U.S. Supreme Court's ruling could not be applied retroactively. Anyone given a mandatory sentence of life without parole who had exhausted all appeals by 2012 would not fall under the federal ruling, the state court said.

Advocates were troubled by the notion that the year a person was sentenced would determine whether he or she would face life without parole.  "The vagaries of timing should not determine if a juvenile should spend the rest of his or her life in prison with no possibility of parole," according to a Juvenile Law Center statement last year.

The center, along with the Defender Association of Philadelphia, appealed the Pennsylvania decision to the U.S. Supreme Court.  Monday's nondecision was the result. "This is a surprise, and not a very good one," said Bradley Bridge, an assistant defender with the association. "It's puzzling."  Bridge said Pennsylvania had become the third state to say the U.S. Supreme Court ruling is not retroactive.  Six states have gone the other way.

Such a split cannot stand for long, said Emily Keller of the Law Center.  Bridge agreed, saying it was "intolerable for a citizen of Pennsylvania to be denied relief, while a citizen of Texas [one of the six states that allows the ruling to be retroactive] gets relief.  That is not a just result." At some point, Keller and Bridge said, the U.S. Supreme Court will have to make a ruling that will stand for every state.

Hugh Burns, chief of the appeals unit of the Philadelphia District Attorney's Office, agreed that "it's not fair" that "those who take a life after a certain date get a break others do not." But, he added, "law is all about line drawing."

More important, Burns said, he takes issue with the U.S. Supreme Court's saying that a juvenile's young brain can't determine right from wrong.  "The idea that a person's brain isn't developed to understand that murdering someone is wrong and subject to serious penalty is to me very odd," he said.

As the title of this post is meant to suggest, I think it is probably only a matter of time before the Supreme Court takes up the issue of whether its 2012 Miller ruling is to be applied retroactively.  But I am not too surprised that the Justices have decided to continue to dodge this issue for the time being, especially in the context of a direct appeal from a state Supreme Court ruling as in Pennsylvania.  I expect the Justices will eventually take up this issue via a traditional habeas appeal from a federal circuit court, but only if and when a significant circuit split develops on this issue in the federal courts.

June 10, 2014 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, June 09, 2014

Two years after Miller, Iowa still muddling through juve sentencing

As highlighted by this local article, headlined "Iowa juvenile sentencing rules in legal limbo," the Hawkeye state is still struggling with how to revamp its juvenile sentencing rules to comply with modern Eighth Amendment restrictions. Here are the details:

Iowa prosecutors want clarification on the state’s sentencing laws for juveniles convicted of murder. The U.S. Supreme Court in 2012 struck down the use of mandatory life terms in prison for defendants who committed murder when they were under 18. The court ruled that judges have to take a person's age and the severity of crime into consideration.

Iowa legislators have been working since then to determine whether to change state sentencing rules. Rep. Chip Baltimore, R-Boone, chairman of the House Judiciary Committee, said lawmakers are struggling to decide the best approach given the “hodgepodge of judicial rulings” that have left in question what is the minimum number of years a juvenile who commits first-degree murder should be required to serve in prison before being eligible for parole.

“It’s a situation that we’re trying to deal with the amorphous concept of cruel and unusual punishment not only as it’s interpreted through the federal constitution but the Iowa Supreme Court has decided that the cruel and unusual punishment provision in the Iowa Constitution means something different that what it means at the federal level,” he said.

Iowa Assistant Attorney General Kevin Cmelik said prosecutors want clear guidelines. “There is no clear answer as to what is required by the law right now because we don’t have a statute that’s applicable anymore," he said.

Prosecutors like Black Hawk County Attorney Tom Ferguson tried to get lawmakers to set a mandatory minimum of at least 35 years for juveniles convicted of first-degree murder, but it failed to gain traction last legislative session....

Prosecutors say judges should have discretion to re-impose a life sentence with or without parole but they worry that lesser penalties potentially could create a situation where someone sentenced for second-degree murder could be facing more prison time that an offender found guilty of a Class A crime.

Forty-eight youth in Iowa who have been sentenced to life in prison without the possibility of parole since 1964, state data shows.

June 9, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, May 09, 2014

Connecticut debate spotlights how fights over death penalty can impede other needed reforms

Long time readers know that one of my enduring frustrations with debates over the fate of death penalty concerns how this debate can sometimes get in the way of other important criminal justice work.  A notable new example of this dynamic was on display this week in Connecticut, as evidenced by this local article headlined "Juvenile Sentencing Bill Fails Second Year In A Row." Here are the basic details:

A barrage of amendments, a planned Republican filibuster over the merits of reviving the death penalty, and recent charges against a Milford teen in the fatal stabbing of a classmate scuttled a criminal justice bill on the last day of the 2014 session.

The bill would have offered inmates serving long prison sentences for crimes they committed at a young age a chance at freedom.  The measure was crafted in response to two U.S. Supreme Court rulings, in 2010 and 2012.  The court held that life sentences for offenders younger than 18 are unconstitutional and that juvenile offenders must be given a "meaningful opportunity" to seek release.

The legislation cleared the House of Representatives on a broad and bipartisan vote in early April. But for the second year in a row, it failed to come up in the Senate by midnight Wednesday, when the General Assembly adjourned.  Republicans signaled to Democratic leaders that they were going to block the bill by filing 22 amendments, including one to reinstate the death penalty in Connecticut for convicted terrorists and another to eliminate a program that aims to rehabilitate prisoners by offering them credit toward early release....

Senate President Pro Tempore Donald Williams said there were enough votes to pass the measure. But, facing Republican opposition and wanting to avoid votes on controversial issues like the death penalty, Williams opted not to bring the bill up....

The proposed bill was based on recommendations by the non-partisan Connecticut Sentencing Commission. It would have permitted prisoners who committed crimes as teenagers and are serving prison terms of 20 years or less to be eligible for a sentence review after they had served 60 percent of their time.  Inmates serving 50 years or more could receive that "second look" 30 years into their sentences.  The proposal would not have guaranteed freedom for the inmates but would have given them the opportunity to argue their case at a special parole hearing with highly restrictive criteria.

"We're disappointed with what happened in the Senate," said David M. Borden, a retired state Supreme Court justice who chairs the Sentencing Commission, the panel charged with reviewing criminal justice policy and proposing legislation.  The commission's members include prosecutors, defense attorneys, police, corrections officials and the state victims advocate.  "When you look at the bill dispassionately and look at the facts dispassionately and clear away all the underbrush of things that don't have anything to do with it, it's a very good bill," Borden said Thursday.  "To the extent politics got in the way, well, we live in the real world ... we'll take the consequences."

The commission will meet in June and determine whether it will push for the measure again in 2015.  "I don't think there's going to be a strong sentiment for giving up this fight," Borden said.  He said 70 inmates in Connecticut already have filed cases seeking revisions in their sentences, based on the two Supreme Court rulings.  "This bill would have set down reasonable parameters for how these cases should be handled," Borden said.

In the absence of legislation setting a legal framework, the decision of how to comply with the U.S. Supreme Court rulings likely will be left to state courts, Gov. Dannel P. Malloy said Thursday. "Don't be surprised if it goes to court,"  Malloy said. The courts "will do what the [legislature] should have done and perhaps do more." 

May 9, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, May 06, 2014

California Supreme Court decides Miller demands altering presumption for juve LWOP

As reported in this Los Angeles Times article, headlined "Ruling could reduce life-without-parole terms for juvenile offenders," the California Supreme Court issued a significant post-Miller ruling about juve murder sentencing in the state.  Here are the basics:

In a decision likely to reduce life-without-parole sentences for teenage offenders, the California Supreme Court ruled Monday that judges are free to hand down 25-year-to-life terms for older juveniles convicted of serious crimes and must consider the defendants' youth before sentencing.

Before the unanimous ruling, California law had been interpreted as requiring judges to lean toward life without parole for 16-year-olds and 17-year-olds convicted of murder with special circumstances.  The decision overturned decades of lower-court rulings and gave two men who were 17 at the time they killed the opportunity to have their sentences reconsidered by trial judges.

The court said the sentences should be reviewed because they were handed down when state law was being misconstrued and before the U.S. Supreme Court decided in 2012 that judges must consider a juvenile's immaturity and capacity for change. The ruling, written by Justice Goodwin Liu, stemmed from appeals in two cases.

In one, Andrew Lawrence Moffett robbed a store and his accomplice killed a police officer in Pittsburg, Calif. Moffett was convicted of murder, robbery and driving a stolen vehicle. Because the victim was a police officer and Moffett used a gun during the crime, he was subject to life without parole. In the other case, Luis Angel Gutierrez killed his uncle's wife while living with the family in Simi Valley. He received life without parole because the jury determined he had murdered Josefina Gutierrez while also raping or attempting to rape her.

"Because Moffett and Gutierrez have been convicted of special circumstance murder, each will receive a life sentence," wrote Justice Goodwin Liu for the court. "The question is whether each can be deemed, at the time of sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to reenter society."

Certain juvenile offenders became subject to life without parole when voters passed Proposition 115, the 1990 "Crime Victims Justice Reform Act." State appeals' courts ruled that the law required judges to favor imposing life without parole over a sentence that allowed for release after 25 years. For two decades, those rulings stood.

But Monday's decision said the lower courts had erred in the interpretation of the law. "Proposition 115 was intended to toughen penalties for juveniles convicted of first-degree murder by making them eligible for life without parole upon a finding of one or more special circumstances," Liu wrote. But he said neither the wording of the ballot measure nor any of the official analyses resolved whether "the initiative was intended to make life without parole the presumptive sentence." The court concluded it was not.

Four justices joined a separate opinion to stress that California judges may still sentence older juveniles to life without parole, despite the 2012 Supreme Court ruling. Justice Carol A. Corrigan, who wrote the concurrence, said the high court's ruling came under a law that was different from California's and involved mandatory lifetime sentences for much younger children.

Attorneys in the case said it was uncertain whether Monday's decision would apply retroactively to cases in which appeals have already been completed. Courts across the country have been divided over whether the 2012 U.S. Supreme Court ruling on juvenile sentencing applied retroactively, the lawyers said.

The full ruling in California v. Gutierrez, No. S206365 (Cal. May 5, 2014), is available at this link.

May 6, 2014 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, April 15, 2014

NY Times editorial laments "Echoes of the Superpredator"

While traveling, I missed this recent New York Times editorial discussing the persistence of tough juve sentencing laws after superpredator fears have receded.  Here are excerpts:

News reports — usually featuring images of glowering black teenagers — warned of the coming wave of violence that would flood the country. Respected criminologists bought into and amplified the hysteria.  Most destructively, almost every state passed laws making it easier to prosecute juveniles as adults, by increasing the number of crimes or reducing the age that triggered adult prosecution — and in some cases eliminating the minimum age altogether....

Two decades later, it’s easy to look back in judgment, but it would be a mistake to think the nation has fully moved beyond that mind-set.  Many states continue to punish juveniles as harshly as they can, even though the Supreme Court has held in a series of landmark rulings since 2005 that young people are “constitutionally different” from adults....

Some states have taken the court’s rulings, and its reasoning, to heart.  Since the ruling in Miller, five states have abolished juvenile life without parole in all cases.  In March, West Virginia lawmakers passed a bipartisan bill that provides parole review for any juvenile who serves at least 15 years in adult prisons.  Similar legislation is pending in Connecticut and Hawaii.

But other states keep fighting to prevent their juvenile offenders from ever having the chance to see the light of day.  Michigan now gives judges the “choice” of imposing a minimum sentence of 25 to 60 years instead of life without parole. Courts in other states have refused to apply the Supreme Court’s ruling retroactively, stranding many of the more than 2,000 inmates who were sentenced before the Miller decision.

The issue is not, as supporters of mandatory sentencing would have it, about going easy on criminals.  No one is ordering judges to release inmates who are not rehabilitated, or who pose a threat to society.  Rather, it is about giving legal meaning to the neurological, psychological and emotional vulnerabilities of young people. Those who make mistakes — even terrible ones — should not be sentenced to die in prison.

The myth of the superpredator helped spawn a generation of misguided laws that treated young people as adults, despite evidence that doing so actually increases recidivism. Most of these laws remain in effect.  The Supreme Court has rightly begun to dismantle their constitutional foundations, but some states are determined to act as if it were always 1995.

Recent related post:

April 15, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Saturday, April 12, 2014

"Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy"

The title of this post is the title of this symposium foreword authored by Paul Litton and now available via SSRN.  Here is the abstract:

This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper.  

First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences.  The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles.  This essay briefly explores whether there is a principled reason for the Court to invoke Woodson but not Roper from its capital jurisprudence.

Second, the Court does cite Roper for its “foundational principle,” which is, according to the Court, “that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.”  However, this principle cannot be the bedrock of Roper.  Since Lockett, state capital sentencing schemes have not proceeded as though juvenile offenders were not children.  Juvenile capital defendants could introduce their youth and accompanying characteristics in mitigation.  Roper, therefore, is based on a much stronger principle, one that requires categorical removal of juveniles from the universe of death-eligible defendants and, thus, should imply the same for penalties equivalent to death.

This Foreword also provides a guide to the symposium’s wonderful contributions by Nancy Gertner, Will Berry, Frank Bowman, Josh Gupta-Kagan, Michael O’Hear, Clark Peters, Mary Price, and Mae Quinn.  In doing so, it highlights a fascinating theme running through many authors’ answer to whether Miller represents a “bombshell or babystep”: Miller’s implications for the Court’s methodology for conducting proportionality analyses and, specifically, for the role of “objective indicia” of public attitudes in such analyses.

April 12, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, April 09, 2014

Retro Report provides reminder of "When Youth Violence Spurred ‘Superpredator’ Fear."

WeeklyStandard-1995nov27The New York Times together with Retro Report puts together articles and videos looking back a media coverage and the aftermath of high-profile stories of years gone by. The latest production is available here under the headline "hen Youth Violence Spurred ‘Superpredator’ Fear." Here are excerpts from the article that goes along with the great 10-minute video on the topic:

Social scientists like James A. Fox, a criminologist, warned of “a blood bath of violence” that could soon wash over the land. That fear, verging on panic, is the subject of this week’s segment of Retro Report, a series of video documentaries that examine major news stories from years ago and explore what has happened since.

What happened with the superpredator jeremiads is that they proved to be nonsense. They were based on a notion that there would be hordes upon hordes of depraved teenagers resorting to unspeakable brutality, not tethered by conscience. No one in the mid-1990s promoted this theory with greater zeal, or with broader acceptance, than John J. DiIulio Jr., then a political scientist at Princeton. Chaos was upon us, Mr. DiIulio proclaimed back then in scholarly articles and television interviews. The demographics, he said, were inexorable. Politicians from both major parties, though more so on the right, picked up the cry. Many news organizations pounced on these sensational predictions and ran with them like a punt returner finding daylight.

But a funny thing happened on the way to the apocalypse. Instead of exploding, violence by children sharply declined. Murders committed by those ages 10 to 17 fell by roughly two-thirds from 1994 to 2011, according to statistics kept by the Justice Department’s Office of Juvenile Justice and Delinquency Prevention. Mugged by reality, a chastened Mr. DiIulio has offered a mea culpa. “Demography,” he says, “is not fate.” The trouble with his superpredator forecast, he told Retro Report, is that “once it was out there, there was no reeling it in.”

It certainly had consequences. It energized a movement, as one state after another enacted laws making it possible to try children as young as 13 or 14 as adults... Many hundreds of juveniles were sent to prison for life, though in the last few years the United States Supreme Court has ruled that such sentences must not be automatic, even in murder cases. Individual circumstances and possible mitigating factors should be weighed, the justices said....

The superpredator scare fit neatly with a “lock ‘em up and throw away the key” approach to rising crime that had taken hold even before the ‘90s. Many states are now moving in the opposite direction, if only because incarceration is expensive, in both its human toll and its burden on strapped government budgets....

Fears about predators, super or not, have not entirely disappeared. Of late, some are concerned about what is called “the knockout game.” It involves a young man or group of young men punching a stranger on the street. This is cast essentially as a black-on-white crime, perhaps a gang initiation rite. No question, such assaults have taken place. But are they part of an organized “game”? In New York, the police seem unsure if they amount to more than isolated incidents.

As for superpredators, not everyone has abandoned the notion. In the ‘90s, Mr. DiIulio called those youngsters “remorseless” and “impulsive,” describing them as unburdened by “pangs of conscience.” Hmm, said Richard Eskow. Or words to that effect. Mr. Eskow, a senior fellow with the Campaign for America’s Future, wrote for The Huffington Post two years ago that he knew a group of people who matched those very descriptions. They were, he said, the reckless bankers and Wall Street high rollers who almost brought the United States economy to its knees a few years ago.

April 9, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Tuesday, April 08, 2014

How many states now require judges to consider military service and/or PTSD at sentencing?

The question in the title of this post is prompted in part by this short local article headlined "Calif. Bill Urges Judges To Consider PTSD In Sentencing Of Military Veterans." Here are the basics:

A bill moving through the state Legislature would urge judges to grant probation and give shorter prison terms to defendants who have mental health problems stemming from their military service.

AB2098 passed the Assembly on Monday on a 70-1 vote.  It requires courts to consider post-traumatic stress disorder and other mental health issues in sentencing.  The bill’s author, Democrat Marc Levine of San Rafael, says as many as one in five soldiers returning from Iraq and Afghanistan have PTSD and are more likely to commit crimes.

California law already requires judges to consider ordering treatment when granting probation for veterans with mental illness.  The bill is one of several that address how to deal with veterans in the criminal justice system.  It now heads to the Senate.

I view legislative action regarding consideration of military service and/or PTSD at sentencing to be part of a broader set of modern sentencing developments focused on the importance of offender characteristics. The modern structured/guidelines sentencing reform era has often generated laws and practices suggesting sentencing decision-making could and should focus much more, if not exclusively, on the specifics of an offense rather than the nature of the offender.

But the Supreme Court's recent Eighth Amendment rulings in Graham and Miller now suggest that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings).  State sentencing laws requiring consideration of military service and/or PTSD seems another example of the (post-modern?) view that consideration at sentencing of at least some offender characteristics may be essential to a fair and effective sentencing system.

Some older related posts:

April 8, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (11) | TrackBack

Friday, April 04, 2014

"Should T.J. Lane's 3 life sentences get another look from the appellate court?"

TJ laneThe title of this post is the question in the headline of this local editorial discussion of a high-profile school shooter who might be the type of juvenile murderer that even the US Supreme Court would conclude can be given a juvenile LWOP sentence.  Here are a few excerpts:

The lawyer for Chardon High School shooter T.J. Lane wants an appellate court to overturn Lane's three consecutive life sentences for the 2012 shootings in which three students died and three were wounded on the grounds that the sentencing judge didn't explicitly consider Lane's age — 17 at the time of the crime — as a mitigating factor in the sentencing. A recent Ohio Supreme Court ruling in another case said a judge must specifically address the age of a juvenile defendant when sentencing a youth to life without parole. Geauga County prosecutors say the appeal is frivolous because Geauga County Common Pleas Judge David Fuhry was well aware of Lane's age throughout the proceedings and that his age also featured prominently in the many reports on T.J. Lane's psychological state and life going back to kindergarten that Fuhry had before him at sentencing.

Does Lane's lawyer raise a valid point or should the three life sentences stand?  Editorial board members share their thoughts on this case...

Thomas Suddes, editorial writer: The appeal of T.J. Lane's sentencing is a perfect example of why so many Ohioans, like Charles Dickens' Mr. Bumble, think "the law is a ass  — a idiot." First, Lane pleaded guilty to killing three students, and wounding three others, in Chardon High School's cafeteria.  His guilty plea is a fact. There is no question about his guilt, no doubt his guilty plea was voluntary.  Those, too, are facts.  Second, Lane's sentence — three consecutive life terms in prison without parole — was, is, eminently just. Third, unless an Ohioan was on Mars, virtually everyone who knew of the Chardon murders, and just about everybody in Ohio did know about them, also knew that Lane was 17 when he embarked on his homicidal rampage....

The facts of the sentencing that resulted from the Cincinnati case are whatever those facts are.  But no rational bystander can claim that Fuhry was unaware of, or failed to take into account, Lane's age when he murdered.  Everyone charged with a crime is entitled to a vigorous legal defense, but given the facts of the Lane case, and his guilty plea, this appeal represents the privileging of form over substance.  In Lane's case, justice was done. And justice was seen to be done.  And justice requires the dismissal of this appeal.

Kevin O'Brien, deputy editorial page editor, The Plain Dealer:  Age is an arbitrary measure that often comes into play in the law.  People under 21 cannot legally consume alcohol — a rule made based on the supposition that allowing otherwise would be detrimental to social order.  T.J. Lane’s lawyer is making a general argument about 17-year-olds that doesn’t fit the specifics of his client’s case.  Lane knew what he was doing in the school cafeteria, and he certainly was aware that it was wrong.  He knew what he was doing at his sentencing hearing, when he wore his disgustingly boastful T-shirt.  He is a cowardly assassin who, far from showing any remorse, has gone out of his way to compound the emotional hurt to his victims’ loved ones.   He is right where he belongs, and three consecutive life sentences are perfectly appropriate.

Elizabeth Sullivan, opinion director, Northeast Ohio Media Group: Judges should consider a young offender's age when sentencing someone to life in prison without any possibility of parole.  The Ohio Supreme Court is absolutely right about that, and if any judge fails to do so, he or she should be challenged on it.  But it seems the most trivial of technicalities to suggest that Judge David Fuhry in Geauga County didn't consider T.J. Lane's age simply because he didn't explicitly reference it in his sentencing decision.  Lane's age was a factor throughout this case, whether or not the judge spoke to it during sentencing. That's why this appeal is likely going nowhere.  And if the appellate court takes a second look, what then?  Two consecutive life terms instead of three?  All the data before the judge at the time of sentencing pointed to the fact that T.J. Lane, a clearly disturbed and dangerous young man, should be locked up for life.

Christopher Evans, editorial writer, Northeast Ohio Media Group: The cold-blooded executions of three Chardon High School students and the wounding of three others, the lack of remorse and the contempt for the families, the community and the justice system made Lane ageless. He wasn't 17. He was psycho. The smirk, the handwritten "Killer" T-shirt — which mirrored the one he wore when he opened fire in the school cafeteria — and his offensive comments to the packed courthouse all speak to that. Lane earned every minute of those three life sentences for the three lives he took.  But we're better than T.J. Lane.  Reduce his sentence to two life sentences without parole.  I can live with that.

Prior related post:

April 4, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (20) | TrackBack

Monday, March 24, 2014

What procedural rights should juve killers have at parole proceedings?

The question in the title of this post is prompted by this intriguing article in the Boston Herald headlined "Killers convicted as teens could make bids for parole concessions." The piece highlights some of the intriguing and potentially controversial procedural issues that necessarily arise if and whenever a state has to figure out just what it means to give serious juvenile offenders a meaningful chance to secure parole release from a life sentence.  Here are the details:

A killer whose court victory cleared the way for dozens of lifers convicted as teens to seek freedom is expected to make new demands before a judge today, including giving cons the opportunity to cross-examine anyone who argues against their release. But Suffolk District Attorney Daniel F. Conley said Gregory Diatchenko — who was 17 in 1981 when he plunged a knife through the face and heart of 55-year-old Thomas Wharf in Kenmore Square while screaming, “Give me your money, you (expletive),” — is asking too much.

“What he’s asking for would essentially give him a new trial on a first-degree murder charge for which he was already found guilty. This is a case of a convicted killer being given an inch and now demanding a mile,” Conley said.

The Supreme Judicial Court, in a controversial bombshell decision dropped on Christmas Eve that mirrored a 2012 ruling by the U.S. Supreme Court, ruled that keeping teen killers behind bars without a chance of parole was cruel and unusual punishment because children under age 18 lack the ability to appreciate their crimes. The court, ruling on an appeal by Diatchenko, found teen killers should be given a “meaningful opportunity to be considered for parole suitability” after 15 years of incarceration.

A single SJC justice, Margot Botsford, will hear Diatchenko’s arguments today for new Parole Board rules for those convicted of murder as teens. Lawyers for Diatchenko and the Parole Board did not respond to requests for comment. Conley’s office said Diatchenko’s requests include having an appointed hearing attorney, expert defense witnesses, and the opportunity to cross-examine witnesses against him.

Conley contends, “The SJC has determined that this defendant is entitled to a parole hearing.  He shouldn’t also be afforded an unprecedented array of tactics to use at that hearing.”

Steve Brodie of Groveland, whose daughter Beth was bludgeoned to death in 1992 at age 15, told the Herald he is alarmed to learn hearings could include cross-
examination. “We don’t know where it ends,” Brodie said. Richard Baldwin, 37, who was 16 when he killed Beth Brodie, is among 61 lifers whose hearings for parole are expected to begin soon.

Personally, I do not view a defendant's request for an attorney and an opportunity to present and cross-examine witnesses at a significant sentencing proceeding to amount to a demand to "be afforded an unprecedented array of tactics."  But then again, it is easy for a lawyer and law professor like me to say that the traditional trial procedures secured for defendants by the Sixth and Fourteenth Amendments ought to be given very broad application in parole proceedings. 

The US Supreme Court has never thoroughly considered or carefully articulated exactly which traditional trial rights defendants retain or lack throughout traditional parole decision-making, though SCOTUS jurisprudence suggests that all defendants retain at least some minimal due process rights in parole proceedings.  Critically, though, these important procedural issues have not (yet) been seriously explored in the wake of the Supreme Court's recent substantive and procedural Eighth Amendment decisions in Graham and Miller concerning limits on juve LWOP sentencing. 

March 24, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (16) | TrackBack

Thursday, March 20, 2014

Illinois Supreme Court deems Miller ruling substantive and thus retroactive

As reported in this Chicago Tribune piece, headlined "Ruling allows new hearings for 100 convicted killers," earlier today the Illinois Supreme Court "ruled that state prison inmates serving life without parole for murders they committed years ago as juveniles will receive new sentencing hearings." Here is more about the ruling:

The ruling means that the inmates, some of whom were as young as 14 when they committed murder, will be allowed to present evidence to mitigate their responsibility and obtain a shorter sentence that would allow them to be set free at some point. Prosecutors will be able to offer to try to persuade judges to re-impose the life sentences....

With the ruling, Illinois joins states such as Iowa, Massachusetts and Texas in deciding a 2012 ruling from the U.S. Supreme Court applies to prisoners whose crimes were committed before the ruling.  Minnesota, Pennsylvania and Louisiana are among the states that have refused....

“A minor may still be sentenced to natural life imprisonment without parole so long as the sentence is at the trial court’s discretion rather than mandatory,” the Illinois Supreme Court wrote in today’s unanimous opinion written by Justice Charles Freeman.

The ruling in Illinois v. Davis, No. 115595 (Ill. March 20, 2014) (available here), provides this account of its retroactivity assessment:

As the Iowa Supreme Court recognized:  “From a broad perspective, Miller does mandate a new procedure.  Yet, the procedural rule for a hearing is the result of a substantive change in the law that prohibits mandatory life-without-parole sentencing.” State v. Ragland, 836 N.W.2d 107, 115 (Iowa 2013).  In other words, Miller places a particular class of persons covered by the statute — juveniles — constitutionally beyond the State’s power to punish with a particular category of punishment — mandatory sentences of natural life without parole.  See Miller, 567 U.S. at ___, ___, 132 S. Ct. at 2464, 2468; Diatchenko v. District Attorney for the Suffolk District, 1 N.E.3d 270, 277 (Mass. 2013).  Since Miller declares a new substantive rule, it applies retroactively without resort to TeagueSee Schriro, 542 U.S. at 351-52 & n.4.

Also, we find it instructive that the Miller companion case, Jackson v. Hobbs, arose on state collateral review.  Notwithstanding its finality, the Court retroactively applied Miller and vacated Jackson’s sentence.  While our analysis is independent as a matter of Illinois law, the relief granted to Jackson under Miller tends to indicate that Miller should apply retroactively on collateral review.  See People v. Williams, 2012 IL App (1st) 111145, ¶ 54; People v. Morfin, 2012 IL App (1st) 103568, ¶ 57.

We observe that defendant and several amici assert that this court should depart from Teague and adopt a different rule of retroactivity.  However, we do not rely on Teague in our analysis because we view Miller as a new substantive rule, which is outside of Teague rather than an exception thereto. Accordingly, we need not and do not address this argument.  See People v. Campa, 217 Ill. 2d 243, 269-70 (2005) (reviewing court will not decide nonessential issues or render advisory opinions).

March 20, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Saturday, March 15, 2014

Top Texas criminal court, in split ruling, decides Miller is to be applied retroactively

As reported in this Austin American-Statesman article, headlined "Court tosses out sentence for Austin killer," the Texas Court of Criminal Appeals ruled this past week that the US Supreme Court's Miller ruling is to apply retroactively.  Here are the basics:

The state’s highest criminal court Wednesday ordered a new sentence for Terrell Maxwell, who is serving life in prison without the possibility of parole for shooting an Austin man in the head during a 2007 robbery.  Maxwell was 17 at the time of the shooting, and the Texas Court of Criminal Appeals ruled that his automatic sentence of life without parole violated the U.S. Constitution’s prohibition on cruel and unusual punishment when applied to defendants who were under the age of 18 at the time of the crime.

The 5-4 ruling left intact Maxwell’s conviction for capital murder in the death of Fernando Santander, who was shot while sitting in a van in the parking lot of his apartment complex near Rundberg Lane.  Two accomplices testified that Maxwell shot Santander when the 31-year-old, startled to find a gun pointing at his cheek, quickly raised his hands in surrender, court records show.

The Texas court split on whether a 2012 U.S. Supreme Court ruling — Miller v. Alabama, which established that automatic no-parole sentences for juveniles were unconstitutional — applied retroactively to defendants like Maxwell.

Writing for the Texas court’s majority [opinion available here], Judge Cathy Cochran said the Miller ruling required that Maxwell be given the opportunity to argue in court that life without parole was not an appropriate sentence.  The Miller ruling did not prevent life without parole for juvenile murderers, Cochran wrote.  But before such a sentence can be imposed, jurors must consider “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” she noted.

Two dissents — written by Judges Michael Keasler and Paul Womack, joined by Presiding Judge Sharon Keller and Judge Barbara Hervey [available here and here] — said the Miller ruling should not be applied retroactively....

Texas no longer allows the practice, but 17 Texans are serving life without parole for murders committed while they were juveniles between 2005 and 2009. In 2005, Texas juries were given the choice between execution and life without parole for those convicted of capital murder. Because capital punishment was unconstitutional for offenders younger than 18, a guilty verdict meant a mandatory life sentence without parole for teens tried as adults.

Four years later, the law was amended to ban no-parole sentences for juveniles. Several legislators said the move was intended to correct an oversight in the 2005 law, but the no-parole ban was not made retroactive.

March 15, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, March 12, 2014

Ohio Supreme Court explains how Miller is to be applied in discretionary juve LWOP system

The Ohio Supreme Court this morning handed down a lengthy split decision in Ohio v. Long, No. . 2014-Ohio-849 (March 12, 2014) (available here), which explain how the Eighth Amendment rules in Miller, which only formally declare conconstitutional a mandatory juve LWOP sentencing scheme, are to be applied in a system that already gave sentencing judges discretion in cases in which juve killers were made eligible for an LWOP sentence. Here is the start and some additional excerpts from the majority opinion: 

In this case, we are asked whether a trial court violates the Eighth Amendment by imposing a sentence of life imprisonment without parole for an aggravated murder committed by a juvenile.  We hold that a court, in exercising its discretion under R.C. 2929.03(A), must separately consider the youth of a juvenile offender as a mitigating factor before imposing a sentence of life without parole in light of Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)....

As applied to a juvenile found guilty of aggravated murder under R.C. 2929.03(A), then, Ohio’s sentencing scheme does not fall afoul of Miller, because the sentence of life without parole is discretionary.  Nor is our criminal procedure flawed under Graham and Miller by failing to take into account that a defendant is a youthful offender.  Nevertheless, for clarification we expressly hold that youth is a mitigating factor for a court to consider when sentencing a juvenile.  But this does not mean that a juvenile may be sentenced only to the minimum term.  The offender’s youth at the time of the offense must still be weighed against any statutory consideration that might make an offense more serious or an offender more likely to recidivate.  Yet because a life-without-parole sentence implies that rehabilitation is impossible, when the court selects this most serious sanction, its reasoning for the choice ought to be clear on the record....

Although Miller does not require that specific findings be made on the record, it does mandate that a trial court consider as mitigating the offender’s youth and attendant characteristics before imposing a sentence of life without parole.  For juveniles, like Long, a sentence of life without parole is the equivalent of a death penalty.  Miller, 132 S.Ct. at 2463, 183 L.Ed.2d 407.  As such, it is not to be imposed lightly, for as the juvenile matures into adulthood and may become amenable to rehabilitation, the sentence completely forecloses that possibility...

The United States Supreme Court has indicated in Roper, Graham, and Miller that juveniles who commit criminal offenses are not as culpable for their acts as adults are and are more amenable to reform. We agreed with this sentiment in In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729.  Miller did not go so far as to bar courts from imposing the sentence of life without the possibility of parole on a juvenile.  Yet because of the severity of that penalty, and because youth and its attendant circumstances are strong mitigating factors, that sentence should rarely be imposed on juveniles.  Miller, ___ U.S. ___, 132 S.Ct. at 2469, 183 L.Ed.2d 407.  In this case, the trial court must consider Long’s youth as mitigating before determining whether aggravating factors outweigh it.

March 12, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Friday, March 07, 2014

Florida Supreme Court hears arguments on Miller retroactivity and application

As effectively reported in this lengty local article, the Florida Supreme Court on Thursday heard arguments on whether a teenage murderer given mandatory LWOP over a decade ago can now secure a resentencing because of the US Supreme Court's Miller ruling.  Here are the basics:

Rebecca Lee Falcon, now 32, represents a group of more than 200 Florida prisoners serving life without the possibility of parole for murders committed while they were under the age of 18.

The issue before the state's highest court is whether a 2012 U.S. Supreme Court ruling — which held that mandatory life without parole sentences for juveniles are unconstitutional — should apply since Falcon and the other prisoners' sentences were final before the nation's highest court ruled.

The immediate matter is whether the ruling in Miller vs. Alabama is retroactive.  But it also represents a broader issue at play in the Florida courts and state Legislature as judges and lawmakers struggle with conforming the state's laws with a series of U.S. Supreme Court rulings that have determined juveniles need to be treated differently than adults in the justice system....

Karen Gottlieb, a lawyer representing Falcon, argued that the Miller ruling should be retroactive since it represented a change in Florida law of "fundamental significance," when the federal court held mandatory life sentences for juveniles were unconstitutionally cruel and unusual and should be uncommon.  "Post-conviction relief must be afforded to avoid obvious injustice," Gottlieb said.

Gottlieb noted that unlike adult prisoners who face the death penalty and receive extensive sentencing reviews, where many factors are weighed, the 200 juveniles — with mandatory life sentences after 1994 — received no review.   "We have every child sentenced to life without parole in these cases with no review of any factor about their youth and the attendant circumstances, their lack of judgment and impetuousness, their maturity, the prospect for rehabilitation and reform, the outside influences, peer influences," Gottlieb said. "None of that has been considered."

Trisha Meggs Pate, an appellate lawyer representing the state, argued against retroactivity, saying the federal ruling did not abolish life without parole sentences for juveniles convicted of murder but only rejected mandatory sentencing.  "It is not a substantive change in law that forbids the state from imposing a new sentence," Pate said. "It's not a categorical ban against life without parole sentencing.  She may go back to the trial court and face the exact same punishment."

Pate also raised the issue of the burden on the state courts if the more than 200 prisoners had to return to court for resentencing hearings.  "You're going to have to have witnesses. We're going to have to have facts about the crime scene, how the crime occurred, what happened, medical examiners," Pate said.  "And some of these cases are 20 years old. They have been final for a long time."...

[Certain] justices seemed troubled by the prospect of letting the Miller ruling apply to cases that were under appeal at the time of the ruling and for future cases but not being applied to the 200 older cases.  "So we just turn our backs on the fact that there are 200, even if you say 500, young people who are sitting in jail forever, and we just turn (our) backs on that when the Supreme Court has said clearly that that is not an appropriate sentence if they have not had an opportunity to have their situation looked at individually?" Justice Peggy Quince asked.

The justices seemed to move past the issue of retroactivity and were asking questions of both sides on what procedures Florida should use in sentencing juveniles under the Miller rulings....  The issue has been complicated by the fact that the state abolished parole in 1994, although the system is still used for prisoners who were incarcerated before that time.  And the Florida Legislature has been unable to pass a new law taking into account Miller and other court rulings that impact the sentencing of juveniles. Bills are now pending in the 2014 session on those issues.

As noted in this recent post, the Michigan Supreme Court also heard arguments yesterday on Miller retroactivity issues.  This coincidence sets up an interesting natural experiment concerning which state supreme court has reach a ruling on this importand and challenging issue first.  

Importantly, the Michigan Supreme Court has the benefit of not having to sort completely through how Miller resentencings can and should be done because the Michigan legislature has already enacted a Miller fix statute.  In contrast, the failure to date of Florida's legislature to formally respond to Miller essentially forces the Florida Supreme Court to have to make even more hard decisions about how Miller can and should get implemented.  

March 7, 2014 in Assessing Miller and its aftermath, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Wednesday, March 05, 2014

Michigan enacts Miller fix for current and future cases, just as its Justices are to consider past cases

As reported in this local article, headlined "Gov. Rick Snyder signs 'juvenile lifer' update as old cases head to Michigan Supreme Court," the Great Lakes State is busy this week working through all the fall-out from the U.S. Supreme Court's Miller Eighth Amendment ruling.  Here are some of the details:

Michigan Gov. Rick Snyder on Tuesday signed legislation updating state sentencing guidelines in the wake of a 2012 U.S. Supreme Court decision that outlawed mandatory life terms without the possibility of parole for minors....

Senate Bill 319, sponsored by state Sen. Rick Jones (R-Grand Ledge), changes Michigan law for all pending and future cases involving juvenile defendants convicted of first-degree murder, felony murder or certain repeat sexual assault offenses. Instead of handing down mandatory life sentences in those cases, judges can also consider a term of between 25 and 60 years. Prosecutors may still file a request for a natural life sentence, but judges now have new authority to consider other options....

Michigan is home to some 360 juvenile lifers -- more than all but one other state -- but the new law will not have an immediate impact on most inmates already behind bars.  The U.S. Supreme Court, in banning mandatory life sentences for minors, did not indicate whether the ruling should apply retroactively.  The new law contains a "trigger" for resentencing hearings in case of a future court ruling.

The Michigan Supreme Court is set to consider the "retroactivity" question on Thursday, when justices are scheduled to hear oral arguments in three juvenile lifer cases. Two of the offenders, Raymond Carp and Cortez Davis, have exhausted the traditional appeals process but are seeking resentencing.

The third, Dakotah Eliason, is entitled to resentencing because his case is still on appeal, but his attorneys disputed the limited relief offered by the Michigan Court of Appeals, which told a sentencing judge to consider only two options: life with or without the possibility of parole. Michigan's new law, which also allows for a term of years less than life, makes that particular issue moot.  The Eliason case asks the Michigan Supreme Court to consider other issues as well, however, so it's unclear how oral arguments will proceed.

It may be just coincidence that the Michigan legislature got a Miller fix enacted into law just before the Michigan Supreme Court considers retroactive application of Miller to past cases. But I have to think the Michigan Supreme Court might feel (consciously or unconsciously) at least a bit more comfortable concluding that Miller applies retroactively now that the state has a new sentencing scheme for juve murderers on the books.

Michigan media has been covering the Miller application/litigation story quite effectively in the run up to the state's Supreme Court hearing, and here are the headline links to some of the coverage in the last few weeks:

March 5, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Wednesday, February 26, 2014

"The Supreme Court and the Rehabilitative Ideal"

The title of this post is the title of this notable new paper by Chad Flanders now available via SSRN. Here is the abstract:

Graham v. Florida was a watershed decision, not least because of the centrality of the so-called “rehabilitative ideal” to its holding that life in prison for juveniles convicted of nonhomicide crimes was cruel and unusual.  The Court’s emphasis on rehabilitation was surprising both in terms of the Court’s previous decisions on punishment, in which rehabilitation was barely included as a “purpose of punishment,” but also in terms of the history of academic and legislative skepticism if not hostility toward the idea of rehabilitation (which includes two recently decided sentencing cases, Tapia and Pepper). Courts and commentators have struggled to make sense of both the meaning and the scope of Graham’s rehabilitative holding.  Their struggle is one about defining how (and whether) rehabilitation should play any substantial role in sentencing.

My essay places Graham in the context of the recent history of rehabilitation, and views its attempt to “rehabilitate” rehabilitation in light of that history.  The rehabilitative ideal encompasses not just one model, but three: the mostly discredited model of rehabilitation as treatment, a more modest model of rehabilitation as training, and an older model of rehabilitation as reform.  Both the language and the result of Graham show it to be squarely in the tradition of the third model, where rehabilitation is not something the state provides, but something the offender is supposed to undergo, through a process of reflection, remorse, and atonement.  Rehabilitation as reform is notable because it is compatible with a suspicion that prison in general is a bad place for rehabilitation and that it is unlikely that the state can do anything to positively aid the offender in reforming.  At best, the state must get out of the way.  Whether we want to extend Graham or reject it depends on whether we find its ideal of rehabilitation as reform appealing.

February 26, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, February 11, 2014

"The Illusory Eighth Amendment"

The title of this post is the title of this notable new article by John Stinneford now available via SSRN. Here is the abstract:

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology.  In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation.  In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a substitute for constitutional interpretation.  A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation.  Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication.

This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation.  When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning.  Such rules also narrow the scope of the Constitution itself, denying protection to any claimant who does not come within the rules.  The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it.

February 11, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, February 09, 2014

Nebraska Supreme Court gives Miller retroactive impact with new statutory law

As reported in this local article, headlined "Nebraska Supreme Court ruling could affect 27 teen murder cases," late last week the Nebraska Supreme Court resolved how the SCOTUS Eighth Amendment ruling in Miller concerning juve LWOP sentences would be applied in the Cornhusker State. Here are the details:

The Nebraska Supreme Court issued precedent-­setting decisions Friday that gave hope to 27 prison inmates serving life terms for murders they committed as juveniles.  Nebraska's high court ruled that three Omaha men who were convicted when teenagers were unconstitutionally sentenced to life in prison without the possibility of parole.  While the Supreme Court upheld their murder convictions, it ordered that all three be given new sentences....

The three inmates will return to Douglas County District Court to be resentenced under a law passed last year that allows sentences from 40 years to life.  The new law also requires judges to consider factors that could mitigate the youth's responsibility....

Although the Nebraska court ruled largely in favor of the inmates on the constitutional issues, it rejected arguments that sought to remove life as an option during resentencing. Nor was the court in unanimous agreement on all of the issues involving juvenile killers.  In a dissent, two of the judges said the U.S. Supreme Court's decision should not apply to inmates who long ago lost their direct appeals....

Nebraska has 27 inmates serving life for homicides committed when they were younger than 18.  The oldest is Luigi Grayer, 58, who was 15 in 1970 when he killed an Omaha woman....

Assistant Attorney General James Smith argued that Nebraska's sentencing law didn't violate the Miller ruling because the juveniles were sentenced to life in prison, not life “without parole.”  Under Nebraska's system, such inmates would have to get their sentences reduced to a term of years by the Nebraska Board of Pardons before earning parole. Having to first win executive clemency is not the same as parole, the high court ruled, rejecting the state's argument.  In other words, a life sentence effectively means life without parole....

The second pivotal question before the court was whether the Miller decision applied to inmates whose convictions had already been upheld on appeal.  Because the high court found that the Miller ruling resulted in a “substantive” change to how juvenile killers must be sentenced, it found that the ruling applied retroactively to Mantich.  The Nebraska judges quoted from an opinion of the Iowa Supreme Court, which also determined that juvenile killers should get new hearings.

Via How Appealing, here is additional coverage of these rulings and links to the decisions:

The Lincoln Journal Star reports that "Nebraska high court vacates life sentences of 3 men" [and] the Supreme Court of Nebraska  three decisions applying the U.S. Supreme Court's 2012 ruling in Miller v. Alabama  [are] herehere, and here.

February 9, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, February 05, 2014

Michigan legislature nearing enactment of Miller fix without retroactivity

As reported in this AP article, headlined "Mich. House OKs Sentencing Rules For Young Killers," a state that has imposed LWOP on a very large number of juvenile murderers is getting close to revising its laws in response to the Supreme Court's constitutional concerns with mandating this punishment.  Here are the details:

Young killers could no longer be sentenced to mandatory life without parole under legislation nearing final approval in Michigan, but those now incarcerated for crimes committed under age 18 would stay locked up despite pleas for a second look.

The Republican-controlled state House voted 62-48 Tuesday, mostly along party lines, to approve the new sentencing rules, 19 months after the U.S. Supreme Court struck down mandatory no-parole sentences for juveniles. The Senate is expected to send the bill to Gov. Rick Snyder; it approved an earlier version in the fall.

The Supreme Court’s June 2012 decision – based on the constitutional prohibition against cruel and unusual punishment – is silent on retroactivity, and courts across the country have been divided ever since on the issue. It is especially relevant in Michigan, home to around 360 juvenile lifers, the second-highest number in the U.S.

House Criminal Justice Committee Chairman Kurt Heise said he wishes the high court had settled the retroactivity question, but lawmakers put guidelines in place in case it does in the future. The bill includes a “trigger” so prisoners now behind bars would be resentenced if the U.S. Supreme Court or Michigan Supreme Court determines the 2012 ruling should apply retroactively....

Juveniles can still be sentenced to life without parole after the high court’s decision. The sentence just cannot be mandatory on judges, who also must consider factors such as defendants’ immaturity, rehabilitation chances, family and home environment, peer pressures and inability as youths to navigate possible plea deals.

If Michigan juveniles charged as adults commit first-degree murder or other serious crimes causing death and do not receive life without parole, judges would have to sentence them to a minimum of at least 25 years and a maximum of at least 60 years under the bill....

It is estimated that 150 prisoners serving life without parole for crimes committed as juveniles were accomplices, not the actual killers.

Over objections from Michigan Attorney General Bill Schuette, U.S. District Judge John Corbett O’Meara in November directed the state to give juvenile lifers an opportunity to apply for release or face the appointment of a special master to oversee the process. His ruling was appealed.

Jody Robinson’s brother was killed by a 16-year-old and 20-year-old in Pontiac in 1990, and she later co-founded the National Organization of Victims of Juvenile Lifers. “This legislation will not only put Michigan laws in compliance with the U.S. Supreme Court, but it also gives victims’ families the hope that legal finality is a possibility and the nightmare of repeatedly reliving their loved one’s murder may soon come to an end,” Robinson said in a statement released by Schuette’s office.

February 5, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, January 24, 2014

Notable early Massachusetts legislative response to elimination of juve LWOP

This Boston Globe article, headlined "Bill seeks at least 35 years for young killers," reports on a proposed statutory response to the recent ruling by the Supreme Judicial Court of Massachusetts (discussed here) which declared that that "all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights." Here are the basics:

A group of state lawmakers is proposing legislation that would require juvenile murderers to serve at least 35 years in prison before being eligible for parole, in direct response to a Supreme Judicial Court ruling that struck down life sentences without the possibility of parole for young killers.

The bipartisan bill would also require the state Parole Board, in deciding whether to grant early release, to consider whether a teenager convicted of murder had the maturity and sense of responsibility of an adult when carrying out the crime.

The bill was based on the recommendation last week of the Massachusetts District Attorneys Association and was meant to fill a legal void left by the Supreme Judicial Court decision in December that eliminated sentences of life without parole for juveniles, even those convicted of the most horrendous crimes. “It’s about the injustice this would mean for the victims’ families,” said state Senator Barry Finegold, a Democrat from Andover and one of the sponsors of the legislation.

Senator minority leader Bruce Tarr, a Republican from Gloucester who cosponsored the bill, added that he has spoken with the families of murder victims and “their loss is no less because their suffering was at the hands of a juvenile.”...

According to state officials, approximately 66 prisoners who were sentenced to life without the possibility of parole for crimes they committed as juveniles could now be eligible for parole. No hearings have been scheduled.

Joshua Dohan — director of the youth advocacy division for the state Committee for Public Counsel Services, the state’s public defender agency — questioned how the state legislators reached the 35-year mark. Dohan pointed out that international standards, agreeing that teenagers have mindsets that are different from those of adults, call for juvenile sentences of, on average, no more than 20 years in prison, even for murder.

He said legislators are reacting quickly to a sensitive issue, but that they should slow down the process. He called for lawmakers to give judges discretion to hand out punishments, so they could consider a teenager’s culpability in a crime. “These are really important decisions that are going to affect the defendant, but also their families and the families of their victims,” he said....

Tarr and Finegold, flanked by a group of legislators who sponsored the bill, said the 35-year limit is a balance between holding a teenager accountable for his or her crimes and preserving the constitutional issues cited by the courts. Other states, reacting to the US Supreme Court decision, have passed a variety of laws: Wyoming, for instance, offers parole after 25 years.

“While it’s not an ideal situation, we hope this will bring a measure of comfort to the victims’ families,” said Finegold, who said he was working on behalf of Colleen Ritzer, the Danvers High School teacher who was killed in October, allegedly by a student.

A few other recent related posts:

January 24, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack