Friday, May 09, 2014
Connecticut debate spotlights how fights over death penalty can impede other needed reforms
Long time readers know that one of my enduring frustrations with debates over the fate of death penalty concerns how this debate can sometimes get in the way of other important criminal justice work. A notable new example of this dynamic was on display this week in Connecticut, as evidenced by this local article headlined "Juvenile Sentencing Bill Fails Second Year In A Row." Here are the basic details:
A barrage of amendments, a planned Republican filibuster over the merits of reviving the death penalty, and recent charges against a Milford teen in the fatal stabbing of a classmate scuttled a criminal justice bill on the last day of the 2014 session.
The bill would have offered inmates serving long prison sentences for crimes they committed at a young age a chance at freedom. The measure was crafted in response to two U.S. Supreme Court rulings, in 2010 and 2012. The court held that life sentences for offenders younger than 18 are unconstitutional and that juvenile offenders must be given a "meaningful opportunity" to seek release.
The legislation cleared the House of Representatives on a broad and bipartisan vote in early April. But for the second year in a row, it failed to come up in the Senate by midnight Wednesday, when the General Assembly adjourned. Republicans signaled to Democratic leaders that they were going to block the bill by filing 22 amendments, including one to reinstate the death penalty in Connecticut for convicted terrorists and another to eliminate a program that aims to rehabilitate prisoners by offering them credit toward early release....
Senate President Pro Tempore Donald Williams said there were enough votes to pass the measure. But, facing Republican opposition and wanting to avoid votes on controversial issues like the death penalty, Williams opted not to bring the bill up....
The proposed bill was based on recommendations by the non-partisan Connecticut Sentencing Commission. It would have permitted prisoners who committed crimes as teenagers and are serving prison terms of 20 years or less to be eligible for a sentence review after they had served 60 percent of their time. Inmates serving 50 years or more could receive that "second look" 30 years into their sentences. The proposal would not have guaranteed freedom for the inmates but would have given them the opportunity to argue their case at a special parole hearing with highly restrictive criteria.
"We're disappointed with what happened in the Senate," said David M. Borden, a retired state Supreme Court justice who chairs the Sentencing Commission, the panel charged with reviewing criminal justice policy and proposing legislation. The commission's members include prosecutors, defense attorneys, police, corrections officials and the state victims advocate. "When you look at the bill dispassionately and look at the facts dispassionately and clear away all the underbrush of things that don't have anything to do with it, it's a very good bill," Borden said Thursday. "To the extent politics got in the way, well, we live in the real world ... we'll take the consequences."
The commission will meet in June and determine whether it will push for the measure again in 2015. "I don't think there's going to be a strong sentiment for giving up this fight," Borden said. He said 70 inmates in Connecticut already have filed cases seeking revisions in their sentences, based on the two Supreme Court rulings. "This bill would have set down reasonable parameters for how these cases should be handled," Borden said.
In the absence of legislation setting a legal framework, the decision of how to comply with the U.S. Supreme Court rulings likely will be left to state courts, Gov. Dannel P. Malloy said Thursday. "Don't be surprised if it goes to court," Malloy said. The courts "will do what the [legislature] should have done and perhaps do more."
May 9, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, May 06, 2014
California Supreme Court decides Miller demands altering presumption for juve LWOP
As reported in this Los Angeles Times article, headlined "Ruling could reduce life-without-parole terms for juvenile offenders," the California Supreme Court issued a significant post-Miller ruling about juve murder sentencing in the state. Here are the basics:
In a decision likely to reduce life-without-parole sentences for teenage offenders, the California Supreme Court ruled Monday that judges are free to hand down 25-year-to-life terms for older juveniles convicted of serious crimes and must consider the defendants' youth before sentencing.
Before the unanimous ruling, California law had been interpreted as requiring judges to lean toward life without parole for 16-year-olds and 17-year-olds convicted of murder with special circumstances. The decision overturned decades of lower-court rulings and gave two men who were 17 at the time they killed the opportunity to have their sentences reconsidered by trial judges.
The court said the sentences should be reviewed because they were handed down when state law was being misconstrued and before the U.S. Supreme Court decided in 2012 that judges must consider a juvenile's immaturity and capacity for change. The ruling, written by Justice Goodwin Liu, stemmed from appeals in two cases.
In one, Andrew Lawrence Moffett robbed a store and his accomplice killed a police officer in Pittsburg, Calif. Moffett was convicted of murder, robbery and driving a stolen vehicle. Because the victim was a police officer and Moffett used a gun during the crime, he was subject to life without parole. In the other case, Luis Angel Gutierrez killed his uncle's wife while living with the family in Simi Valley. He received life without parole because the jury determined he had murdered Josefina Gutierrez while also raping or attempting to rape her.
"Because Moffett and Gutierrez have been convicted of special circumstance murder, each will receive a life sentence," wrote Justice Goodwin Liu for the court. "The question is whether each can be deemed, at the time of sentencing, to be irreparably corrupt, beyond redemption, and thus unfit ever to reenter society."
Certain juvenile offenders became subject to life without parole when voters passed Proposition 115, the 1990 "Crime Victims Justice Reform Act." State appeals' courts ruled that the law required judges to favor imposing life without parole over a sentence that allowed for release after 25 years. For two decades, those rulings stood.
But Monday's decision said the lower courts had erred in the interpretation of the law. "Proposition 115 was intended to toughen penalties for juveniles convicted of first-degree murder by making them eligible for life without parole upon a finding of one or more special circumstances," Liu wrote. But he said neither the wording of the ballot measure nor any of the official analyses resolved whether "the initiative was intended to make life without parole the presumptive sentence." The court concluded it was not.
Four justices joined a separate opinion to stress that California judges may still sentence older juveniles to life without parole, despite the 2012 Supreme Court ruling. Justice Carol A. Corrigan, who wrote the concurrence, said the high court's ruling came under a law that was different from California's and involved mandatory lifetime sentences for much younger children.
Attorneys in the case said it was uncertain whether Monday's decision would apply retroactively to cases in which appeals have already been completed. Courts across the country have been divided over whether the 2012 U.S. Supreme Court ruling on juvenile sentencing applied retroactively, the lawyers said.
The full ruling in California v. Gutierrez, No. S206365 (Cal. May 5, 2014), is available at this link.
May 6, 2014 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, April 15, 2014
NY Times editorial laments "Echoes of the Superpredator"
While traveling, I missed this recent New York Times editorial discussing the persistence of tough juve sentencing laws after superpredator fears have receded. Here are excerpts:
News reports — usually featuring images of glowering black teenagers — warned of the coming wave of violence that would flood the country. Respected criminologists bought into and amplified the hysteria. Most destructively, almost every state passed laws making it easier to prosecute juveniles as adults, by increasing the number of crimes or reducing the age that triggered adult prosecution — and in some cases eliminating the minimum age altogether....
Two decades later, it’s easy to look back in judgment, but it would be a mistake to think the nation has fully moved beyond that mind-set. Many states continue to punish juveniles as harshly as they can, even though the Supreme Court has held in a series of landmark rulings since 2005 that young people are “constitutionally different” from adults....
Some states have taken the court’s rulings, and its reasoning, to heart. Since the ruling in Miller, five states have abolished juvenile life without parole in all cases. In March, West Virginia lawmakers passed a bipartisan bill that provides parole review for any juvenile who serves at least 15 years in adult prisons. Similar legislation is pending in Connecticut and Hawaii.
But other states keep fighting to prevent their juvenile offenders from ever having the chance to see the light of day. Michigan now gives judges the “choice” of imposing a minimum sentence of 25 to 60 years instead of life without parole. Courts in other states have refused to apply the Supreme Court’s ruling retroactively, stranding many of the more than 2,000 inmates who were sentenced before the Miller decision.
The issue is not, as supporters of mandatory sentencing would have it, about going easy on criminals. No one is ordering judges to release inmates who are not rehabilitated, or who pose a threat to society. Rather, it is about giving legal meaning to the neurological, psychological and emotional vulnerabilities of young people. Those who make mistakes — even terrible ones — should not be sentenced to die in prison.
The myth of the superpredator helped spawn a generation of misguided laws that treated young people as adults, despite evidence that doing so actually increases recidivism. Most of these laws remain in effect. The Supreme Court has rightly begun to dismantle their constitutional foundations, but some states are determined to act as if it were always 1995.
Recent related post:
Saturday, April 12, 2014
"Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy"
The title of this post is the title of this symposium foreword authored by Paul Litton and now available via SSRN. Here is the abstract:
This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper.
First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences. The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles. This essay briefly explores whether there is a principled reason for the Court to invoke Woodson but not Roper from its capital jurisprudence.
Second, the Court does cite Roper for its “foundational principle,” which is, according to the Court, “that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” However, this principle cannot be the bedrock of Roper. Since Lockett, state capital sentencing schemes have not proceeded as though juvenile offenders were not children. Juvenile capital defendants could introduce their youth and accompanying characteristics in mitigation. Roper, therefore, is based on a much stronger principle, one that requires categorical removal of juveniles from the universe of death-eligible defendants and, thus, should imply the same for penalties equivalent to death.
This Foreword also provides a guide to the symposium’s wonderful contributions by Nancy Gertner, Will Berry, Frank Bowman, Josh Gupta-Kagan, Michael O’Hear, Clark Peters, Mary Price, and Mae Quinn. In doing so, it highlights a fascinating theme running through many authors’ answer to whether Miller represents a “bombshell or babystep”: Miller’s implications for the Court’s methodology for conducting proportionality analyses and, specifically, for the role of “objective indicia” of public attitudes in such analyses.
April 12, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
Wednesday, April 09, 2014
Retro Report provides reminder of "When Youth Violence Spurred ‘Superpredator’ Fear."
The New York Times together with Retro Report puts together articles and videos looking back a media coverage and the aftermath of high-profile stories of years gone by. The latest production is available here under the headline "hen Youth Violence Spurred ‘Superpredator’ Fear." Here are excerpts from the article that goes along with the great 10-minute video on the topic:
Social scientists like James A. Fox, a criminologist, warned of “a blood bath of violence” that could soon wash over the land. That fear, verging on panic, is the subject of this week’s segment of Retro Report, a series of video documentaries that examine major news stories from years ago and explore what has happened since.
What happened with the superpredator jeremiads is that they proved to be nonsense. They were based on a notion that there would be hordes upon hordes of depraved teenagers resorting to unspeakable brutality, not tethered by conscience. No one in the mid-1990s promoted this theory with greater zeal, or with broader acceptance, than John J. DiIulio Jr., then a political scientist at Princeton. Chaos was upon us, Mr. DiIulio proclaimed back then in scholarly articles and television interviews. The demographics, he said, were inexorable. Politicians from both major parties, though more so on the right, picked up the cry. Many news organizations pounced on these sensational predictions and ran with them like a punt returner finding daylight.
But a funny thing happened on the way to the apocalypse. Instead of exploding, violence by children sharply declined. Murders committed by those ages 10 to 17 fell by roughly two-thirds from 1994 to 2011, according to statistics kept by the Justice Department’s Office of Juvenile Justice and Delinquency Prevention. Mugged by reality, a chastened Mr. DiIulio has offered a mea culpa. “Demography,” he says, “is not fate.” The trouble with his superpredator forecast, he told Retro Report, is that “once it was out there, there was no reeling it in.”
It certainly had consequences. It energized a movement, as one state after another enacted laws making it possible to try children as young as 13 or 14 as adults... Many hundreds of juveniles were sent to prison for life, though in the last few years the United States Supreme Court has ruled that such sentences must not be automatic, even in murder cases. Individual circumstances and possible mitigating factors should be weighed, the justices said....
The superpredator scare fit neatly with a “lock ‘em up and throw away the key” approach to rising crime that had taken hold even before the ‘90s. Many states are now moving in the opposite direction, if only because incarceration is expensive, in both its human toll and its burden on strapped government budgets....
Fears about predators, super or not, have not entirely disappeared. Of late, some are concerned about what is called “the knockout game.” It involves a young man or group of young men punching a stranger on the street. This is cast essentially as a black-on-white crime, perhaps a gang initiation rite. No question, such assaults have taken place. But are they part of an organized “game”? In New York, the police seem unsure if they amount to more than isolated incidents.
As for superpredators, not everyone has abandoned the notion. In the ‘90s, Mr. DiIulio called those youngsters “remorseless” and “impulsive,” describing them as unburdened by “pangs of conscience.” Hmm, said Richard Eskow. Or words to that effect. Mr. Eskow, a senior fellow with the Campaign for America’s Future, wrote for The Huffington Post two years ago that he knew a group of people who matched those very descriptions. They were, he said, the reckless bankers and Wall Street high rollers who almost brought the United States economy to its knees a few years ago.
Tuesday, April 08, 2014
How many states now require judges to consider military service and/or PTSD at sentencing?
The question in the title of this post is prompted in part by this short local article headlined "Calif. Bill Urges Judges To Consider PTSD In Sentencing Of Military Veterans." Here are the basics:
A bill moving through the state Legislature would urge judges to grant probation and give shorter prison terms to defendants who have mental health problems stemming from their military service.
AB2098 passed the Assembly on Monday on a 70-1 vote. It requires courts to consider post-traumatic stress disorder and other mental health issues in sentencing. The bill’s author, Democrat Marc Levine of San Rafael, says as many as one in five soldiers returning from Iraq and Afghanistan have PTSD and are more likely to commit crimes.
California law already requires judges to consider ordering treatment when granting probation for veterans with mental illness. The bill is one of several that address how to deal with veterans in the criminal justice system. It now heads to the Senate.
I view legislative action regarding consideration of military service and/or PTSD at sentencing to be part of a broader set of modern sentencing developments focused on the importance of offender characteristics. The modern structured/guidelines sentencing reform era has often generated laws and practices suggesting sentencing decision-making could and should focus much more, if not exclusively, on the specifics of an offense rather than the nature of the offender.
But the Supreme Court's recent Eighth Amendment rulings in Graham and Miller now suggest that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings). State sentencing laws requiring consideration of military service and/or PTSD seems another example of the (post-modern?) view that consideration at sentencing of at least some offender characteristics may be essential to a fair and effective sentencing system.
Some older related posts:
- Should prior military service reduce a sentence?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- "Judge suggests more sentencing options for war veterans"
- Can downloading of child porn be blamed on post-traumatic stress disorder?
- "Judges Consider New Factor at Sentencing: Military Service"
- Kansas legislature considering bill for PTSD-based sentence reductions for veterans
- Ohio bill to require consideration of military service at sentencing
- "Neuroscience, PTSD, and Sentencing Mitigation"
- "Military Veterans, Culpability, and Blame"
Friday, April 04, 2014
"Should T.J. Lane's 3 life sentences get another look from the appellate court?"
The title of this post is the question in the headline of this local editorial discussion of a high-profile school shooter who might be the type of juvenile murderer that even the US Supreme Court would conclude can be given a juvenile LWOP sentence. Here are a few excerpts:
The lawyer for Chardon High School shooter T.J. Lane wants an appellate court to overturn Lane's three consecutive life sentences for the 2012 shootings in which three students died and three were wounded on the grounds that the sentencing judge didn't explicitly consider Lane's age — 17 at the time of the crime — as a mitigating factor in the sentencing. A recent Ohio Supreme Court ruling in another case said a judge must specifically address the age of a juvenile defendant when sentencing a youth to life without parole. Geauga County prosecutors say the appeal is frivolous because Geauga County Common Pleas Judge David Fuhry was well aware of Lane's age throughout the proceedings and that his age also featured prominently in the many reports on T.J. Lane's psychological state and life going back to kindergarten that Fuhry had before him at sentencing.
Does Lane's lawyer raise a valid point or should the three life sentences stand? Editorial board members share their thoughts on this case...
Thomas Suddes, editorial writer: The appeal of T.J. Lane's sentencing is a perfect example of why so many Ohioans, like Charles Dickens' Mr. Bumble, think "the law is a ass — a idiot." First, Lane pleaded guilty to killing three students, and wounding three others, in Chardon High School's cafeteria. His guilty plea is a fact. There is no question about his guilt, no doubt his guilty plea was voluntary. Those, too, are facts. Second, Lane's sentence — three consecutive life terms in prison without parole — was, is, eminently just. Third, unless an Ohioan was on Mars, virtually everyone who knew of the Chardon murders, and just about everybody in Ohio did know about them, also knew that Lane was 17 when he embarked on his homicidal rampage....
The facts of the sentencing that resulted from the Cincinnati case are whatever those facts are. But no rational bystander can claim that Fuhry was unaware of, or failed to take into account, Lane's age when he murdered. Everyone charged with a crime is entitled to a vigorous legal defense, but given the facts of the Lane case, and his guilty plea, this appeal represents the privileging of form over substance. In Lane's case, justice was done. And justice was seen to be done. And justice requires the dismissal of this appeal.
Kevin O'Brien, deputy editorial page editor, The Plain Dealer: Age is an arbitrary measure that often comes into play in the law. People under 21 cannot legally consume alcohol — a rule made based on the supposition that allowing otherwise would be detrimental to social order. T.J. Lane’s lawyer is making a general argument about 17-year-olds that doesn’t fit the specifics of his client’s case. Lane knew what he was doing in the school cafeteria, and he certainly was aware that it was wrong. He knew what he was doing at his sentencing hearing, when he wore his disgustingly boastful T-shirt. He is a cowardly assassin who, far from showing any remorse, has gone out of his way to compound the emotional hurt to his victims’ loved ones. He is right where he belongs, and three consecutive life sentences are perfectly appropriate.
Elizabeth Sullivan, opinion director, Northeast Ohio Media Group: Judges should consider a young offender's age when sentencing someone to life in prison without any possibility of parole. The Ohio Supreme Court is absolutely right about that, and if any judge fails to do so, he or she should be challenged on it. But it seems the most trivial of technicalities to suggest that Judge David Fuhry in Geauga County didn't consider T.J. Lane's age simply because he didn't explicitly reference it in his sentencing decision. Lane's age was a factor throughout this case, whether or not the judge spoke to it during sentencing. That's why this appeal is likely going nowhere. And if the appellate court takes a second look, what then? Two consecutive life terms instead of three? All the data before the judge at the time of sentencing pointed to the fact that T.J. Lane, a clearly disturbed and dangerous young man, should be locked up for life.
Christopher Evans, editorial writer, Northeast Ohio Media Group: The cold-blooded executions of three Chardon High School students and the wounding of three others, the lack of remorse and the contempt for the families, the community and the justice system made Lane ageless. He wasn't 17. He was psycho. The smirk, the handwritten "Killer" T-shirt — which mirrored the one he wore when he opened fire in the school cafeteria — and his offensive comments to the packed courthouse all speak to that. Lane earned every minute of those three life sentences for the three lives he took. But we're better than T.J. Lane. Reduce his sentence to two life sentences without parole. I can live with that.
Prior related post:
- Is TJ Lane eager to be the "uncommon" juvenile murderer who can constitutionally get an LWOP sentence?
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 Teague. See 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.
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] here, here, and here.
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.
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:
- Extending Graham and Miller, Massachusetts SJC bars LWOP for all juve offenders
- One tale (of thousands) of a juve LWOPer now with a glimmer of hope
- Years after Graham and Miller, Florida still working on its legislative response
- A victim's perspective from Iowa on the aftermath of Graham and Miller
- "Juvenile Lifers and Judicial Overreach: A Curmudgeonly Meditation on Miller v. Alabama"
- "Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment"
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
Tuesday, January 21, 2014
"Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment"
The title of this post is the title of this informative and interesting new paper by Sarah French Russell now available via SSRN. Here is the abstract:
State parole boards have historically operated free from constitutional constraints when making decisions about whether to release prisoners. Recent Supreme Court decisions subject states to a new constitutional requirement to provide a “meaningful opportunity to obtain release” for at least some categories of juvenile offenders. Using original data collected through a survey, this Article provides the first comprehensive description of existing parole board release procedures nationwide and explores whether these practices comply with the Court's Eighth Amendment mandate.
The Court's recent decisions in Graham v. Florida and Miller v. Alabama prohibit sentences of life without the possibility of release (LWOP) for juvenile offenders in nonhomicide cases and forbid mandatory LWOP sentences in homicide cases. States must now provide nonhomicide juvenile offenders with a “meaningful opportunity to obtain release” and give judges the option of imposing a sentence with the chance of release on homicide offenders. Around the country, state courts, legislatures, and governors have started to respond to Graham and Miller. Yet there is little scholarship focusing on a central issue raised by these cases: What constitutes a meaningful opportunity to obtain release under the Eighth Amendment? The Court has declined to provide detailed guidance on the matter, stating that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance.”
Viewed in the context of the Court's earlier Eighth Amendment jurisprudence, the meaningful opportunity for release requirement appears to encompass three distinct components: (1) a chance of release at a meaningful point in time, (2) a realistic likelihood of release for the rehabilitated, and (3) a meaningful opportunity to be heard. For the most part, states have responded to Graham and Miller by making juvenile offenders eligible for release under existing and long-standing parole board procedures. To date, the debate in the states has focused primarily on the first component of the meaningful opportunity requirement-when a juvenile offender should be eligible for release. Most states have paid little attention to whether existing parole board practices satisfy the other two components of the meaningful opportunity requirement. These practices, which were designed for a different purpose, may not offer a realistic chance of release and meaningful hearings for juvenile offenders.
Parole procedures in every state are different, and many parole boards operate under unwritten and unpublished rules. To understand existing practices, I sent a survey to every parole board in the country. The survey results revealed procedures that, while adequate for adult offenders, may not survive Eighth Amendment scrutiny when applied to juvenile offenders under Graham and Miller. Such procedures include (1) preventing prisoners from appearing before decision makers, (2) denying prisoners the right to see and rebut evidence, and (3) limiting the role of counsel. I conclude that some states may not be able to rely on their existing parole board practices to provide a meaningful opportunity for release, and may need to craft special rules for considering release of juvenile offenders serving lengthy sentences.
January 21, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, January 20, 2014
One tale (of thousands) of a juve LWOPer now with a glimmer of hope
Former federal judge and law professor Nancy Gertner authored this notable Boston Globe commentary concerning a former client of hers who might now benefit from how Massachusetts courts are responding to the Supreme Court's new Eighth Amendment jurisprudence. The piece is headlined "Locking up kids for life? A new court decision takes a step toward juvenile justice reform," and here are excerpts:
Three decades ago, Edward Palmariello, 17, and his 21-year-old friend Bruce Chambers were arrested in the murder of Edward’s mother, Marion. Then a defense attorney, I represented Edward at trial. The jury found both men guilty and the sentence was mandatory — life in prison without any possibility of parole....
The Commonwealth’s story in court was simple: Edward and his mother fought all the time. He had said things to her like “Shut up or I’m going to cut you up and put you into the toilet bowl,” and he once waved an open switchblade at her....
There was another narrative about Edward and his mother, one the jury never heard. The mother had abused Edward’s sisters and brother. The abuses were reflected in Department of Social Services records. In fact, each one had moved out — “escaped,” as one sister put it — as soon as he or she could. Edward, the youngest, had no place to go. His mother abused him physically, but when he grew stronger than she was, her abuse became psychological. Still, as a defense lawyer, I was reluctant to offer the complete DSS records (even if they were admissible). While they explained the family’s dysfunction, there was a risk that a prosecutor, bent on conviction, would spin them as a motive for murder.
With the first-degree murder conviction, there would be no opportunity for testimony from the social workers who knew the family or even the family members themselves who had “escaped.” Only one sentence was possible: life without parole. On appeal, the Supreme Judicial Court affirmed Edward’s conviction (one judge dissented). All other appeals failed.
In most countries, Edward’s sentence would have been impossible. Juvenile life without parole is prohibited by the UN Convention on the Rights of the Child, a measure that has been ratified by every UN nation except the United States and Somalia (Somalia announced in November that it will ratify). Edward has spent the past 32 years in jail. He had no hope, no future. Perhaps, until now.
In 2012, in Miller v. Alabama, the US Supreme Court held that a mandatory sentence of life in prison without parole on any offender under 18 is contrary to the constitutional prohibition on “cruel and unusual punishments.” While the decision’s implications were momentous, it focused only on the mandatory nature of the punishment.
But on December 24, 2013, the Supreme Judicial Court of Massachusetts went further. In Diatchenko v. District Attorney for the Suffolk District, the court held that the state constitution barred the imposition of life without parole altogether for defendants under age 18 at the time they committed murder....
In language that resonates for Edward, the US Supreme Court criticized sentencing that “prevents taking into account the family and the home environment that surrounds [the offender] — from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.” It “disregards the possibility of rehabilitation even when the circumstances most suggest it.”
Edwards’s case, along with some 60 others, will now go before the Massachusetts Parole Board. Will this be a real review or just a Kabuki ritual? Governor Deval Patrick dismissed five of the seven board members after a parolee killed a Woburn police officer in 2010. Parole rates have dropped dramatically. Perhaps that was why three SJC justices wrote a special commentary urging a “real meaningful opportunity to obtain release” for the juveniles affected by the decision. Parole Board, take heed.
At the very least, for Edward Palmariello, the board will finally hear the whole story.
Meanwhile, as this new front-page New York Times article highlights, the stories of hope for juve LWOPers in Massachusetts may be more of an exception than the rule in the wake of Miller. That article, which is headlined "Juveniles Facing Lifelong Terms Despite Rulings" spotlights that "most states have taken half measures, at best, to carry out the rulings [in Graham and Miller], which could affect more than 2,000 current inmates and countless more in years to come, according to many youth advocates and legal experts."
January 20, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Saturday, January 04, 2014
"Juvenile Lifers and Judicial Overreach: A Curmudgeonly Meditation on Miller v. Alabama"
The title of this post is the title of this notable new paper now available on SSRN and authored by Frank O. Bowman III. Here is the abstract:
This Article considers with a skeptical eye the Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), finding unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishments Clause all laws subjecting murderers who killed before their eighteenth birthdays to a sentence of mandatory life without parole (“LWOP”).
Miller and Graham v. Florida, 130 S. Ct. 2011 (2010), in which the Court voided statutes imposing life without parole on juveniles who committed non-homicide crimes, are striking for several reasons. First, they impact juvenile justice because the Court has continued down the path it took in Roper v. Simmons, 543 U.S. 551 (2005), when it ruled the death penalty cruel and unusual for juveniles, regardless of the crimes they committed, and declared categorically that the relative immaturity of juveniles made them less culpable for crime and thus both ineligible for certain very harsh punishments and subject to different procedures than adults for others. Second, the Court’s reasoning in Miller and Graham has potentially far-reaching implications for the sentencing of adults. These opinions extend to non-capital crimes the unique body of Eighth Amendment law the Court had hitherto restricted to death penalty cases. And the language of Justice Elena Kagan’s majority opinion in Miller casts at least some doubt on the power of legislatures to impose any mandatory sentence, whether of death or a term of imprisonment.
This Article contends that, while the results of Miller and Graham are gratifying as sentencing policy, the opinions announcing those results are troubling as a constitutional matter because they are badly theorized and because they are two strands of a web of decisions in which the Court has consistently used doubtful constitutional interpretations to transfer power over criminal justice policy from the legislatures – state and federal – to the courts.
Thursday, January 02, 2014
A victim's perspective from Iowa on the aftermath of Graham and Miller
This notable local article from Iowa, headlined "As juvenile re-sentencing looms, murder victim's family speaks out," provides a useful reminder of the folks other than juvenile offenders who are very concerned with how the Supreme Court's rulings in Graham and Miller are going to be implemented in the states. Here are excerpts:
34 Iowa criminals currently sit in prison cells who, once sentenced to life in prison as juveniles, can file for the possibility of parole. In 2010, the U.S. Supreme Court ruled sending a juvenile to life in prison without the possibility of parole is unconstitutional. Gov. Branstad then commuted those life sentences to 60 years in prison. 2012, however, brought the Iowa Supreme Court to rule 60 years as still unconstitutional.
“Because of the nature of the crimes that these individuals have committed, it has a very serious impact on the criminal justice system,” said Black Hawk County Attorney Tom Ferguson.
The ripple effect of these two court rulings extends past those just sitting in prison cells. Karen Salisbury was murdered in her Evansdale home in 1998. 17-year-old Matthew Payne was charged with the killing; a first-degree murder charge that, back then, sent him to spend the rest of his life in prison.
Salisbury’s three daughters — Rhonda Hoffman, Marsha DeWiese and Vicky Bolin — said they wrestled with those 1998 images of their mother’s death for years. Now — they must relive the nightmare. Payne, along with the other 33 Iowa criminals, can file to correct a now illegal sentence, hoping for parole. “I don't ever want to have to go into the grocery store or somewhere and run into him,” Hoffman said.
Attorneys said parole, however, is not guaranteed. A judge could grant the possibility of parole, or not at all. Nevertheless, these parole hearings are annual; potentially bringing families back to the court room year after year. “Every year if that comes up every year I will be there and I will make sure they hear my voice and they don't let him out,” Bolin said.
The daughters said the possibility of parole for Payne is extremely concerning for them; a thought that is nearly unbearable. “What good are they in this society when they've been in prison for so long and know nothing else,” DeWiese said.
Hoffman said if Payne is ever granted parole, she hopes she never has to see him. “Don’t come back to Waterloo, I’d go somewhere else.”
Thursday, December 26, 2013
Extending Graham and Miller, Massachusetts SJC bars LWOP for all juve offenders
Thanks to this Christmas night post at How Appealing, I just discovered that on Christmas eve the Supreme Judicial Court of Massachusetts issued two big related rulings (available here and here) which not only held that the Supreme Court's Miller ruling is to be applied retroactively but also that "all life-without-parole sentences for juvenile offenders, whether mandatory or discretionary, violate art. 26 of the Massachusetts Declaration of Rights." Because I am on the road today, I will not have the chance to consume this significant rulings fully, but I can here link to and quote from this lengthy report on the rulings from the Boston Globe:
The state’s highest court struck down life sentences without parole for juveniles on Tuesday, saying scientific research shows that lifelong imprisonment for youths is cruel and unusual because their brains are “not fully developed.”
The Massachusetts Supreme Judicial Court decision is retroactive, meaning that, as one example, John Odgren, the suburban special needs student who stabbed 15-year-old James F. Alenson in the bathroom at Lincoln-Sudbury Regional High School on Jan. 19, 2007, and received a mandatory life sentence, now could have a chance of parole one day.
“We are very hopeful that the parole board is going to examine these kids’ lives carefully and will be giving them a real meaningful opportunity for release,” said Patty Garin, Odgren’s attorney. But some district attorneys said they were concerned about the ruling and would argue against parole in some cases.
The decision is a marked reversal for Massachusetts, where juveniles found guilty of murder have faced some of the harshest laws in the nation. The decision also is notable for its reliance on the growing field of research into the juvenile brain.
“Simply put, because the brain of a juvenile is not fully developed, either structurally or functionally, by the age of eighteen, a judge cannot find with confidence that a particular offender, at that point in time, is irretrievably depraved,” the court wrote. “Therefore, it follows that the judge cannot ascertain, with any reasonable degree of certainty, whether imposition of this most severe punishment is warranted.”...
The ruling goes farther than the Supreme Court decision in 2012 that struck down automatic sentences of life without parole for juveniles.... Because the Massachusetts high court’s decision is retroactive, prisoners sentenced as juveniles will “at the appropriate time” be afforded a parole hearing.
Lawyers said such inmates will have to have served at least 15 years before being considered for parole. There are currently 63 inmates in Massachusetts who were sentenced when they were juveniles to life sentences without the possibility of parole for first-degree murder....
The decision drew immediate praise from Governor Deval Patrick, who in September signed legislation that raises the age of juvenile jurisdiction from 17 to 18 and has pushed to reduce the number of teenagers sentenced to life without the possibility of parole. “I applaud today’s Supreme Judicial Court’s ruling,” the governor said in a statement. “Young people, even ones who commit terrible crimes, are developmentally and now constitutionally different from adults. Our SJC has wisely held that, while violent felons will be held accountable, youthful ones deserve every opportunity for rehabilitation.”
Some district attorneys questioned the decision. Essex District Attorney Jonathan W. Blodgett said the ruling will strip away the closure that victims’ families believed they had gained. “I am concerned for families who thought they had finality about their loved ones being murdered,” said Blodgett, who is president of the Massachusetts District Attorneys Association. “Now they have to go through these parole hearings.”
Suffolk District Attorney Daniel F. Conley said in a statement, “We are mindful of the literature on young adults’ brain development, and we already exercise great discretion in charging juveniles with murder. But we’re also keenly aware of the cases at issue here. Some fact patterns demand life imprisonment. Some defendants do not deserve parole. We will argue — as often and as forcefully as necessary — against parole in those cases.”
For years, Massachusetts has had some of the most punitive penalties in the country for juvenile offenders convicted of murder. Two decades ago a series of brutal murders galvanized public demands for harsher penalties. In 1996, legislators responded with a law that mandated that juveniles 14 years and older charged with murder be tried as adults.
Because Massachusetts’ penalties for first-degree murder is mandatory life without parole juveniles found guilty of that crime faced a lifetime of incarceration. As a result, Massachusetts became a leader in the number of youths facing life sentences without parole.
As of last year, the majority of youth with such sentences were concentrated in Massachusetts and four other states: California, Louisiana, Michigan, and Pennsylvania, according to the Campaign for the Fair Sentencing of Youth. “People thought if we have an extreme response, kids would stop doing bad things, and that has not turned out to be true,” said Naoka Carey, executive director of Citizens for Juvenile Justice, a nonprofit based in Massachusetts.
Carey said the SJC ruling brings Massachusetts back to the middle — she noted that other states that have abolished life without parole for juveniles include Wyoming, Colorado, and Texas. “We’re in some conservative company,” she said.
State legislative leaders said they plan to move quickly to overhaul juvenile sentencing laws that might conflict with Tuesday’s ruling. “The legislation currently pending that require the eradication of such sentences will be fast-tracked to ensure constitutional compliance with the ruling of the SJC,” said Representative Eugene L. O’Flaherty, a Chelsea Democrat who is the House chairman of the Judiciary Committee. Carey said there are currently a number of legislative options, but that any law will have to give meaningful opportunity for parole.
The SJC’s ruling came in the case of Gregory Diatchenko, who was 17 in 1981 when he murdered a man in a car in Kenmore Square. He has been in prison for more than three decades. The court ruled that he was eligible to be considered for parole immediately....
“I’m happy that Gregory Diatchenko is going to have a meaningful opportunity for release, which he deserves. He’s a living embodiment of what the [Supreme Court] case was all about. He does not deserve to die in prison. He’s not who he was when he was 17,” said Benjamin Keehn, Diatchenko’s attorney. Keehn was on his way to see his client at MCI Norfolk on Tuesday to relay the news. He said his client is 49 years old, two credits shy of a bachelors degree, and has been a Buddhist for over 10 years.
The court also ruled in the separate case of Marquise Brown, who was convicted of first-degree murder in a 2009 slaying. He has not been sentenced. The court ruled that because Brown was 17 at the time of his crime, he cannot be sentenced to life without parole.
The Diatchenko ruling was unanimous. In a concurring opinion, Justices Ralph Gants, Barbara Lenk, and Fernande R.V. Duffly, emphasized that defendants need to have a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” They urged that decisions on parole be informed by an attention to the “distinctive attributes of youth.
December 26, 2013 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 (6) | TrackBack
Monday, December 02, 2013
What sentencing issues should SCOTUS be taking up to fill out its docket?
I have noted (and been disappointed by) the relative paucity of major sentencing cases on the Supreme Court docket this Term. But, as highlighted by this new Washington Post article, headlined "Supreme Court busy looking for cases — but finding fewer than usual," SCOTUS is now facing a relative paucity of all cases on its docket.
That all said, this recent Politico article, headlined "Digital era confounds the courts," spotlights that a number of cases concerning the intersection of the Fourth Amendment and new technology likely to be on the SCOTUS docket soon:
[T]he nation’s top court is set to consider whether to take up three key related cases ... [with] big tech issues that could finally get decided:...
Lower courts have been split on the authority of police to search your technology [incident to an arrest]. Currently, court rulings have required warrants to search a cellphone in six states, while they are not required in 20 other states, according to a map put together by Forbes and the Electronic Frontier Foundation.....
In the age of encryption and passwords, law enforcement officials can obtain a warrant for a hard drive, but they may not be able to access the material on it. So can police compel someone to provide a password or to unlock an account or decrypt a file? Courts have in some cases ruled that individuals can refuse to provide a password under their Fifth Amendment right not to incriminate themselves....
Another nettlesome issue brought up in part by the ubiquity of cellphones and smartphones is the ability of police to track a person’s movements. While the Supreme Court ruled last year that police cannot affix a GPS tracking device to a car without a warrant, it decided U.S. v. Jones based on a question of trespassing, which doesn’t apply when police get location information from a suspect’s devices or service provider.
The courts are also split on this issue. In July alone, two courts made opposite rulings: The 5th Circuit Court of Appeals in Texas found that law enforcement may get cell location data from service providers without a warrant. In a New Jersey case, a very different result -- the state supreme court held that the state’s constitution requires a warrant.
Like all criminal procedure issues, these constitutional search question are sure to have eventual sentencing echoes. But, of course, hard-core sentencing issues are the ones that really get me excited, and I think there are plenty the Justices should be taking up to fill out their docket.
Some of the most obvious sentencing issues seemingly ready for SCOTUS review are follow-ups to its recent Eighth Amendment work in Graham and Miller. Lower courts are deeply split over the retroactivity of Miller and also concerning what kinds of crimes and sentences fit within the categorical ban of juve LWOP sentences for nonhomicide offenses announced in Graham.
In addition, plenty of federal sentencing issues in the post-Booker world are still roiling district and circuit courts. I personally would like to see the Justices throw some more dirt on the worst guidelines by taking up, and then reversing as unreasonable, a poorly-justified, within-guideline sentence based on guidelines widely recognized to be badly broken (e.g., the crack or CP or fraud guidelines). But I doubt many Justices are eager to spend their spring further fighting with Justice Breyer over the mysteries of his Booker remedy.
I could go on issue spotting here for the Justices, but I am really eager to hear from informed readers about the question in the title of this post. What issues do folks working day-to-day in the sentencing vineyards believe the Supreme Court should take up ASAP?
December 2, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack
Saturday, November 30, 2013
Years after Graham and Miller, Florida still working on its legislative response
As reported in this local article, Florida is continuing to struggle with how it wants to respond legislatively to the Supreme Court's determination that the state cannot be so quick to give so many juvenile offenders life without parole. Here are the details:
After a stinging defeat last year on the floor of the Senate, Rob Bradley, a Fleming Island Republican, has again filed legislation to align Florida’s juvenile-sentencing laws with recent United States Supreme Court rulings.
In 2010, the Supreme Court said it’s unconstitutional to sentence a juvenile to life in prison without the possibility of parole, though it allowed exceptions for juveniles convicted of murder. Ever since, lawmakers have failed to pass legislation changing Florida’s juvenile sentencing laws to comply with those opinions. There are 265 inmates in custody of the Department of Corrections that were given life sentences as juveniles.
Additionally, without a tweak to state law, courts across the state have been left to interpret the Supreme Court’s decisions differently. “We owe it to our courts to provide guidance,” Bradley said. “It’s the Legislature’s job.”
During the 2013 legislative session, Bradley, a private attorney, ushered a proposed legislative fix through three committee stops, but halted his own bill on the Senate floor after opponents tacked on an amendment he opposed. Bradley’s bill would have required a judge to consider factors like background and ability for rehabilitation during a mandatory hearing before sentencing a juvenile convicted of murder to life in prison.... Bradley’s bill also capped at 50 years the sentence a judge could give a juvenile who did not commit murder.
The amendment, offered by state Sen. Rene Garcia, R-Hialeah, would have allowed a parole hearing every 25 years for juveniles given life sentences for non-fatal crimes and for those who committed murder. “Why not give that judge the ability to review a case after 25 years?” Garcia asked during April floor debate.
This year, Bradley’s legislation offers parole hearings after 25 years for juveniles convicted of non-fatal crimes, and caps sentences for those offenders at 35 years. It does not offer hearings for juveniles convicted of homicide. “The bill I filed still does not offer hearings to murderers,” Bradley said.
Wednesday, November 27, 2013
"Reducing Incarceration for Youthful Offenders with a Developmental Approach to Sentencing"
The title of this post is the title of this notable new paper by Samantha Buckingham now available via SSRN. Here is the abstract:
Current sentencing practices have proven to be an ineffective method of rehabilitating criminal defendants. Such practices are unresponsive to developmental science breakthroughs, fail to promote rehabilitation, and drain society’s limited resources. These deficiencies are most acute when dealing with youthful offenders. Incarcerating youthful offenders, who are amenable to rehabilitative efforts, under current sentencing practices only serves to ensure such individuals will never become productive members of society.
Drawing on the author’s experiences as a public defender, studies in developmental psychology and neuroscience, and the Supreme Court’s recent line of cases that acknowledge youthful offenders’ biological differences from adult offenders, the author proposes a restorative-justice approach to replace current sentencing practices. This solution includes tailoring a youthful offender’s sentence to his or her developmental level and offering a community-based mediation between victims and offenders.
The proposal counteracts a major deficiency of current sentencing practices — the failure to offer youthful offenders an opportunity to truly understand their crimes. Only by providing an opportunity to learn from an offense will a youthful offender be in a position to rehabilitate. This Article responds to possible critiques of the proposal, including concerns about the ability to accurately measure the success of a restorative-justice sentencing model, the fear of implicating the offender’s Fifth Amendment right against self-incrimination, and the cost of implementing mediation-based efforts. Ultimately, this Article determines that a developmentally appropriate, community-based sentencing scheme — with restorative justice overtones — best addresses the unique situation youthful offenders find themselves in. A sentence for a youthful offender should — indeed, must — present meaningful opportunities for the youthful offender to rehabilitate, and age-appropriate sentences grounded in restorative-justice principles will do this effectively.
November 27, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (7) | TrackBack
Friday, November 22, 2013
Two notable Sixth Circuit rejections of notable sentencing appeals by notable defendants
While I was distracted by teaching responsibilities, the Sixth Circuit yesterday handed down two notable (and lengthy) opinions rejecting two distinct defendants' intriguing claims concerning two distinct sentencing outcomes. The first paragraphs of each opinion highlights why both cases are worthy of full reads:
US v. Volkman, No. 12-3212 (6th Cir. Nov. 21, 2013) (available here):
When a doctor first enters the practice of medicine, he or she swears to abide by a prime directive of the profession: “First, do no harm.” Paul Volkman breached this sacrosanct tenet when he prescribed narcotics to addicts and individuals with physical, mental, and psychological frailties. A federal jury looked at Volkman’s actions and found him guilty of breaking several laws, chief among them the law prohibiting the unlawful distribution of controlled substances. After receiving the jury’s verdict, the district court sentenced Volkman to four consecutive terms of life imprisonment, to be served concurrently with a number of less-lengthy terms.
Volkman now appeals, contending that several errors arose throughout the course of his trial and sentencing. We disagree, and we AFFIRM Volkman’s convictions and sentence.
US v. Marshall, No. 12-3805 (6th Cir. Nov. 21, 2013) (available here):
Dylan Marshall pled guilty to receiving child pornography over a period of 5 years, from the time he was 15 un til he was 20. The district court varied downward from the guideline range and sentenced him to 5 years in prison — the mandatory minimum sentence for the offense — expressing its concerns with the perceived harshness of that sentence as it did so. Marshall has a rare physiological condition called Human Growth Hormone Deficiency, which he believes entitles him to the Eighth Amendment protections accorded to juveniles. But despite his condition, Marshall was an adult at the time of the offense. We therefore affirm his sentence.
November 22, 2013 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Thursday, November 14, 2013
"Misconstruing Graham & Miller"
The title of this post is the title of this notable new piece by Cara Drinan now up at SSRN. Here is the abstract:
In the last three years the Supreme Court has decreed a sea change in its juvenile Eighth Amendment jurisprudence. In particular, in its Graham v. Florida and Miller v. Alabama rulings, the Court struck down a majority of the states’ juvenile sentencing laws, outlawing life without parole for juveniles who commit non-homicide offenses and mandating individualized sentencing for those children who commit even the most serious crimes. An examination of state laws and sentencing practices, however, suggests that the Graham and Miller rulings have fallen on deaf ears. After briefly describing what these two decisions required of the states, in this Essay, I outline the many ways in which state actors have failed to comply with the Court’s mandate. Finally, I map out a path for future compliance that relies heavily upon the strength and agility of the executive branch.
November 14, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Wednesday, November 13, 2013
Fourth Circuit rejects effort to use Miller to assail ACCA enhancements based on juve priors
In a not surprising but still noteworthy panel opinion, the Fourth Circuit today in US v. Hunter, No. 12-5035 (4th Cir. Nov. 13, 2013) (available here), rejected a federal defendant's effort to use the Supreme Court's Miller ruling to contest a lengthy mandatory minimum sentence for an adult crime based on prior offenses committed when the defendant was a juvenile. Here is how Hunter begins:
In Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), the Supreme Court announced that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Relying on Miller, Defendant Jimmy Eliab Hunter appeals from his sentence for being a felon in possession of a firearm, asserting that the district court erred in sentencing him as an armed career criminal based on violent felonies he committed as a juvenile. But unlike the juveniles in Miller, Defendant’s sentence here punishes him for an offense he committed at the age of thirty-three, well past an age when “the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences.” Id. at 2465. Thus, proportionality concerns expressed in Miller regarding youthful offenders are not implicated here. Finding Miller, Defendant’s sole basis for his Eighth Amendment challenge, inapplicable, we affirm.
Tuesday, November 12, 2013
Can and should brain science research become a regular (and regulated) part of sentencing decision-making?The question in the title of this post is prompted by this notable new NPR segment (misleadingly?) headlined "The Case Against Brain Scans As Evidence In Court." Here are excerpts from the piece:
It's not just people who go on trial these days. It's their brains.
More and more lawyers are arguing that some defendants deserve special consideration because they have brains that are immature or impaired, says Nita Farahany, a professor of law and philosophy at Duke University who has been studying the use of brain science in court.
About 5 percent of murder trials now involve some neuroscience, Farahany says. "There's a steady increase of defendants seeking to introduce neuroscience to try to reduce the extent to which they're responsible or the extent to which they're punished for a crime," she says.
Farahany was a featured speaker at the Society for Neuroscience meeting in San Diego this week. Also featured were several brain scientists who are uncomfortable with the way courts are using brain research....
The approach has been most successful with cases involving teenagers, Farahany says. "It seems like judges are particularly enamored with the adolescent brain science," she says. "Large pieces of their opinions are dedicated to citing the neuroscientific studies, talking about brain development, and using that as a justification for treating juveniles differently."...
So judges and juries are being swayed by studies showing that adolescent brains don't function the same way adult brains do. One study like that was presented at the neuroscience meeting by Kristina Caudle, a neuroscientist at Weill Cornell Medical College. The study, funded by the National Institutes of Health, used a technology called functional MRI to look at how the brains of people from 6 to 29 reacted to a threat.
"The typical response — and what you might think is a logical response — is to become less impulsive, to sort of withdraw, to not act when there is threat in the environment," Caudle says. "But what we saw was that adolescents uniquely seemed to be more likely to act. So their performance on this task became more impulsive." And Caudle found that in adolescents, an area of the brain involved in regulating emotional responses had to work much harder to prevent an impulsive response. This sort of study is great for understanding adolescent brain development in a general way, Caudle says.
"What it doesn't do is allow us to predict, for example, whether one particular teenager might be likely to be impulsive or to commit criminal behavior," she says. And Caudle worries that a study like hers could be used inappropriately in court. "Jurors tend to really take things like MRI scans as fact, and that gives me great pause," she says.
When it comes to nature versus nurture, brain scientists think both matter. A lot of the neuroscience presented in court is simply unnecessary, says Joshua Buckholtz, a psychologist at Harvard. "Anyone who's every had a teenager would be able to tell you that their decision-making capacities are not comparable to adults," he says.
And relying on brain science to defend juveniles could have unexpected consequences, Buckholtz says. For example, he says, if a prosecutor used an MRI scan to show that a 16-year-old who committed a capital crime had a very mature brain, "Would we then insist that we execute that juvenile?"
The task of integrating brain science into the judicial system will in large part be the responsibility of judges, Buckholtz says. And how it works will depend on how well judges understand "what a scientific study is and what it says and what it doesn't say and can't say," he says.
I do not see anything in this piece which suggests that brain scans amount to "junk science," and thus I do not fully understand why NPR thinks this segment reveals a "case against" against brain science as evidence in legal proceedings.
Of course, I fully understand concerns expressed by scientists about the potential misuse or misunderstanding of their nuanced brain scan research. But juries and judges are drawn to scientific research largely because the decision-making alternative is to rely more on gut feelings, emotions, instincts or biases. Unless brain scans provide a worse foundation for making judgments than gut feelings, emotions, instincts or biases, it seems to me they ought to have a role in legal decision-making.
As the question in the title of this post suggests, I think the really tough questions here are not whether brain science is worthy of consideration, but rather when and how brain science should be considered by judges and juries. Indeed, the Supreme Court's Eighth Amendment rulings in Roper and Graham and Miller have already given brain science research some constitutional import, and thus I hope both scientists and law professors will now turn their attention to debating how the legal system might most fairly and effectively operationalize what the brain research is telling us about the scientific realities of human behaviors and personal development.
November 12, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (16) | TrackBack
Thursday, November 07, 2013
State judge in Pennsylvania finds lifetime sex offender registration for juve offenders unconstitutional
As reported in this local article, "a York County judge has ruled unconstitutional a two-year-old Pennsylvania law that imposes lifetime registration requirements on juvenile sex offenders." Here is more:
Senior Judge John C. Uhler issued his ruling against the juvenile registration provisions of the Sexual Offender Registration and Notification Act while weighing the cases of seven county teens adjudicated as having committed serious sex crimes.
Uhler found that the registration mandate "unconstitutionally forecloses a court's considerations of the many unique attributes of youth and juvenile offenders" under age 18 and improperly treats them the same as adult sex offenders. SORNA, as the act is known, also doesn't take into account the greater capacity juvenile offenders have to reform, he noted.
The state law was passed by the Legislature in late 2011 to comply with a federal law, the Adam Walsh Act. The state faced a loss of federal funding if it didn't adopt a measure compatible with the Walsh Act.
Uhler's ruling is in reply to a challenge mounted on behalf of the seven York County youths by the county public defender's office, the Juvenile Law Center and the Defender Association of Philadelphia. The children involved were subject to registration after being found to have committed crimes including rape, involuntary deviate sexual intercourse and aggravated indecent assault. They were ages 14 to 17 when the offenses occurred.
In a statement issued Thursday, officials of the Juvenile Law Center and the defender association called Uhler's decision a "landmark ruling."
"It is our hope that this decision will result in similar findings across the commonwealth," said Riya Saha Shah, a staff attorney with the law center. "To impose this (registration) punishment on children is to set them up for failure."
County Chief Deputy Prosecutor Tim Barker said his office is reviewing Uhler's decision for a possible appeal to the state Supreme Court. A decision is expected next week, he said. "We're thoroughly going through everything," Barker said.
Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorney's Association, predicted an appeal is likely. Prosecutors are well aware of arguments for and against the juvenile sex offender registration requirement, he said. "I'm not surprised that the judge would rule this way," Freed said. "We'll see what happens in the appeals courts."
November 7, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack
Tuesday, November 05, 2013
When and how will SCOTUS take up Miller retroactivity issues?The question in the title of this post is promoted by this local piece reporting on reactions to the Pennsylvania Supreme Court's decision last week (reported here) that its state teens given mandatory LWOP before the US Supreme Court's Miller ruling should not get any retroactive benefit from that decision. Here is an excerpt:
There seems little reason to doubt SCOTUS will be taking up this issue before too long. But when and how is a real interesting question, not only because the facts of the case taken up by the Justices could influence the public and legal discourse, but also because arguments about Miller retroactivity could (and I think should) prompt some reconsideration and modification of Teague habeas review jurisprudence.
Nicholas White was 17 when a judge sentenced him to life in prison without parole for killing his father, Robert Grant White, 43, in 1998 in their home along Route 356.
Last year, the Supreme Court declared such sentences unconstitutional, saying they amount to cruel and unusual punishment. But the Pennsylvania Supreme Court last week ruled, 4-3, that the opinion does not apply retroactively to cases such as White's that were final before June 2012.
The decision means White and more than 450 Pennsylvania inmates, including as many as 40 from Allegheny County, are not eligible for resentencing. “I can't believe that it's fair — that if your sentence came down one day, you get nothing, and if it came down the next day, you get a new hearing,” said Marc Bookman, director of the Atlantic Center for Capital Representation in Philadelphia.
“But there is a silver lining here, and that is that the Pennsylvania Supreme Court does have another round of review, and that is with the U.S. Supreme Court,” said Turtle Creek attorney David Chontos. He represents Jeremy Melvin, 26, of McKeesport, who was 16 in 2005 when a Mercer County judge sentenced him to life without parole for killing a counselor at George Junior Republic, a private residential juvenile treatment center.
Several legal experts said the case likely is bound for the Supreme Court, because Iowa, Mississippi and Illinois deemed the high court's ruling retroactive, although Pennsylvania, Minnesota, Michigan and Florida have said it is not.
Wednesday, October 30, 2013
Split Pennsylvania Supreme Court rules that Miller does not apply retroactively
Thanks to How Appealing, I see that the Supreme Court of Pennsylvania today finally handed down its long awaited ruling as to whether the hundreds of state teens given mandatory LWOP before the Supreme Court's Miller ruling would get any retroactive benefit from that decision. The 4-3 split decision consists of a this majority opinion, this concurring opinion, and this dissenting opinion.
Here is how the majority opinion concludes:
All Justices of this Court and the United States Supreme Court share the sentiment that “[d]etermining the appropriate sentence for a teenager convicted of murder presents grave and challenging questions of morality and social policy.” Miller, ___ U.S. at ___, 132 S. Ct. at 2477 (Roberts, C.J., dissenting, joined by Scalia, Thomas, and Alito, JJ.). Our role in establishing social policy in the arena is a limited one, however. Here, applying settled principles of appellate review, nothing in Appellant’s arguments persuades us that Miller’s proscription of the imposition of mandatory life-without-parole sentences upon offenders under the age of eighteen at the time their crimes were committed must be extended to those whose judgments of sentence were final as of the time of Miller’s announcement. See generally Geter, 115 So. 3d at 377 (“Clearly and unequivocally, the Supreme Court distinguished between the substantive determinations of a categorical bar prohibiting a ‘penalty for a class of offenders or type of crime,’ as in Roper and Graham, and the procedural determination in Miller that merely requires consideration of mitigating factors of youth in the sentencing process.” (quoting Miller, ___ U.S. at ___, 132 S. Ct. at 2471)). See generally LAFAVE, 1 CRIM. PROC. §2.11(e) (“Teague has made new rulings very rarely applicable retroactively on habeas review[.]”).
Here is a key part of start of the concurring opinion by the Chief Justice: "I write separately to express my own view of what, if anything, might be done to mitigate the seeming inequity that is a result of the High Court’s ruling in Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012). The 'seeming inequity' here arises from the fact that the prospect of an individualized, discretionary judicial determination of whether a juvenile murderer should ever be afforded parole eligibility depends solely upon the happenstance of the moment that the defendant’s conviction became final."
And here is the first sentence of the dissent: "While I find merit in much of the Majority’s analysis, I ultimately conclude that Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012), should apply retroactively to juveniles sentenced to life without parole on timely collateral as well as direct review because I find Miller to be an effectively substantive rule."UPDATE: How Appealing provides links via this posting to some local media coverage of this Cunningham ruling, including this Allentown Morning Call article which provides some sense of the impact and reactions to the ruling:
The decision upholds the sentence of Ian Cunningham, a man serving life in prison for a murder he committed when he was 17. It also affects as many as 450 Pennsylvania inmates including six from Lehigh County.
Ultimately, the question will have to be decided by the federal courts, and may end up back before the U.S. Supreme Court, said Kimberly Makoul, an Allentown attorney who represents Joseph G. Romeri, who is 35 years into a life sentence for bludgeoning to death an 80-year-old city woman in 1978, when he was 16. "There is still hope," Makoul said. "It's not over yet and all hope certainly isn't lost."
Marsha Levick, an attorney with the Juvenile Law Center in Philadelphia, said the Pennsylvania high court's decision misses the ethical importance of the federal decision. "When the U.S. Supreme Court puts down a marker … it is morally unconscionable to leave any juvenile offender on the other side of that marker," she said....
The Pennsylvania court's decision was welcomed by families whose loved ones were killed by juveniles. Since the federal decision, they have been bracing for new sentencing hearings that they feared would reopen old wounds by forcing them to relive painful memories. "It's really good to hear. Really," said Darryl Romig, whose 12-year-old daughter, Danni Reese, was raped and strangled in 2003 in Allentown by a 17-year-old killer who received an automatic life sentence.
Brian A. Bahr, now 27 and jailed at the State Correctional Institution-Mahanoy, is among six once-young killers in Lehigh County whose appeals were put on hold pending Cunningham's case. "I'm just glad that he doesn't have the chance to be resentenced," Romig said in a telephone interview. "He did what he did and he deserved what he got."
Thursday, October 24, 2013
Michigan Senate passes (prospective-only) Miller fix proposalAs reported in this local article, headlined "Michigan juvenile lifers: Senate moves to fix unconstitutional law, not offer resentencing," the Michigan legislature is finally making some progress on reforming unconstitutional aspects of its juvenile sentencing scheme. Here are the details:
The Michigan Senate on Thursday unanimously approved legislation that would allow some minors convicted of murder to avoid life in prison -- unless they are already behind bars and have exhausted appeal.
Senate Bills 318 and 319, now headed to the House for consideration, would update Michigan laws that currently allow mandatory life sentences without the possibility of parole for offenders who were under 18 at the time of their crime....
Under the Senate proposal, prosecutors could still seek life sentences without the possibility of parole for minors. But judges, after considering aggravating and mitigating circumstances, would be given new discretion to impose a prison term of between 25 and 60 years. With good behavior, an individual convicted at 15 could have the chance to request a parole hearing and make their case for release when they reached 40.
The bills would not apply retroactively, meaning that "juvenile lifers" already behind bars and out of appeals would not have the opportunity for parole. Michigan is home to more than 360 juvenile lifers, the second-highest total in the nation.
State Sen. Bert Johnson, D-Detroit, proposed an amendment that would have added retroactivity to the legislation, but sponsoring Sen. Rick Jones, R-Grand Ledge, argued against it, and the amendment was shot down. "The bill brings us into compliance with the Supreme court ruling," said Jones. "It does not go into retroactivity because they didn't address that."
Advocates say that juvenile lifers deserve the same opportunities for release as future convicts, but victim families have argued that opening old cases would also open old wounds.
The Supreme Court did not address the retroactivity question, and state and federal courts have offered different answers. U.S. District Court Judge John Corbet O'Meara has said Michigan juvenile lifers deserve a "fair and meaningful possibility of parole," but he has not yet determined what that possibility should look like.
State Rep. Joe Haveman, R-Holland, has introduced House measures that include retroactivity for juvenile lifers. But those bills, the subjects of an emotional hearing in August and opposition from Attorney General Bill Schuette, have not advanced out of committee.
October 24, 2013 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Sunday, October 20, 2013
"Alleyne v. United States, Age as an Element, and the Retroactivity of Miller v. Alabama"The title of this post is the title of this intriguing Essay by Beth Colgan recently published on the UCLA Law Review's on-line supplement. The introduction previews the issues and argument in the piece:
The U.S. Supreme Court announced in Miller v. Alabama, that the mandatory imposition of life in prison without the possibility of parole against juveniles is cruel and unusual punishment in violation of the Eighth Amendment. The million-dollar question is whether it would do any good for the over 2000 juveniles who had previously been so sentenced. For those jurisdictions that follow or rely heavily on the dictates of retroactivity set out by the Supreme Court in Teague v. Lane, the touchstone of Miller’s retroactivity hinges on whether the rule it announced is substantive — and therefore retroactive — or procedural.
The Miller opinion provides no clear guidance. On the one hand, the opinion sounded in procedure, with the Court requiring “that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty.” On the other hand, the opinion sounded in substantive law, in that it required fundamental changes in criminal laws that mandate the imposition of life without parole in homicide cases where the crime was committed before the defendant’s eighteenth birthday. Prior to Miller, states and the federal government could require that a court impose a sentence of life without parole on a juvenile without consideration of the defendant’s youth. But the Miller Court rejected such mandatory sentencing, reasoning that “age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” a juvenile’s history of abuse, the role the juvenile played in the homicide, the existence of peer pressure, the difficulties juveniles have navigating the legal system, and juveniles’ unique capacity for rehabilitation are all constitutionally relevant and therefore a sentencer must have an opportunity to consider such facts at sentencing.
The quasi-substantive/quasi-procedural nature of the opinion created a conundrum for lower courts assessing the retroactivity of the decision. The answer to this puzzle may come from an unlikely source: the Court’s Sixth Amendment jury trial jurisprudence, and particularly its June 2013 interpretation of that right in Alleyne v. United States. Though unrelated to both juvenile sentencing and the question of retroactivity, the Alleyne Court did determine that where the existence of a fact dictates whether a mandatory minimum applies, the fact is, in effect, an element of the underlying offense. This Essay extrapolates from the Alleyne holding to argue that Miller’s requirement that sentencers consider age and its attendant consequences in cases involving juveniles — making age at the time of the offense a fact that triggers whether the mandatory minimum sentence of life without parole applies — converts age to an element of the underlying offense, rendering Miller a substantive rule that must be applied retroactively.
Monday, October 14, 2013
Florida legislature told to "End confusion on juvenile sentencing"The title of this post is drawn from the headline of this effective recent editorial from the Tampa Bay Times, which makes these points about the post-Miller mess in Florida:
By reinstating the original sentence of life in prison without parole for Nicholas Lindsey on Friday, a Pinellas-Pasco Circuit Court judge entered muddy legal waters. Lindsey and other juveniles convicted of murder continue to be sentenced under a state statute that is now unconstitutional as applied to them. There is no clear road map for judges, because the Florida Legislature has failed to bring state law into conformance with a U.S. Supreme Court ruling. Lindsey's reconsidered sentence for shooting and killing a St. Petersburg police officer will likely be challenged, wasting resources and prolonging the pain for the victim's family. Had the Legislature acted responsibly, the courts would not be operating in the dark and creating law as they go.
State courts are puzzling through what to do with juveniles who were convicted of first-degree murder and sentenced under state law that provides for a death sentence or life in prison without the possibility of parole. Minors cannot be sentenced to death because of a 2005 U.S. Supreme Court ruling. Last year, the court ruled that a life sentence without parole cannot be mandatory for juvenile offenders — people who committed their crime before reaching 18 years old. The court said that in light of a young person's lack of maturity and capacity to change as he grows up, courts must be permitted to take these circumstances into account in sentencing. Florida law gives judges no discretion to impose a lesser sentence....
Other circuit court judges have ruled inconsistently. A judge in Hillsborough County recently resentenced Amer Ejak, now 20 years old, to life without parole for clubbing and strangling a man in 2009 — the same sentence Ejak originally received. But compare that to a teen murderer in Pasco County who was sentenced last month to life in prison with the possibility of parole after 25 years, even though state law makes no provision for it. An August ruling by the 5th District Court of Appeal in Daytona Beach said that the only legal sentence for juveniles guilty of capital murder is life with the possibility of parole after 25 years, but that decision is only controlling precedent for part of the state.
The Florida Legislature surely knew that by not rewriting state law to reflect the U.S. Supreme Court ruling and giving judges the opportunity to impose lesser sentences it would cause confusion and result in disparate treatment of juvenile offenders across the state. Lawmakers shifted their responsibility to the courts. The Florida Supreme Court will have to bring clarity to the law. In the meantime, trial courts faced with resentencing some of Florida's more than 200 inmates who were convicted and sentenced on murder charges should follow the U.S. Supreme Court's ruling as best they can.
October 14, 2013 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 (0) | TrackBack
Friday, October 04, 2013
Third Circuit concludes juves serving LWOP made "prima facie showing that Miller is retroactive"As reported in this AP article, headlined "3 Lifers Win Ruling in Juvenile Sentencing Case," the Third Circuit yesterday handed down an important, but nuanced, ruling concerning the retroactive application of the Supreme Court's Eighth Amendment ruling in Miller concerning mandatory LWOP sentencing for juvenile offenders. Here is a summary of the ruling and some initial reactions thereto via the AP:
Three men who have been serving life sentences since they were juveniles won a fresh chance to convince judges they deserve to be resentenced under a decision Thursday by the federal appeals court based in Philadelphia.
The 3rd U.S. Circuit Court of Appeals said there was at least some reason to think last year's U.S. Supreme Court decision in the case of Miller v. Alabama, throwing out mandatory life without parole sentences for juveniles, should be applied retroactively.
The court stressed its decision is tentative and made under a standard that means there is enough possible merit to warrant a full exploration of the matter. The defendants must still convince the district judges they should be resentenced.
Defendants Michael J. Pendleton and Franklin X. Baines are in Pennsylvania prisons, while defendant Corey Grant is serving life in New Jersey.
Baines' lawyer, David R. Fine, said the decision means the appeals court "agreed there's at least an argument that Miller is retroactive." Baines is "going to have to convince that judge that Miller applies retroactively," Fine said. "And if he convinces the judge of that, obviously, there can be appeals."
The opinion noted a split in similar decisions being made by other federal circuit courts across the country, and Tasha Jamerson, a spokeswoman for the Philadelphia district attorney's office, called it an issue "that will be finally resolved by the United States Supreme Court."
Her counterpart in Pittsburgh said the Allegheny County district attorney's office might appeal to the U.S. Supreme Court. "We're going to talk to Philadelphia," said Mike Manko, spokesman for Allegheny County District Attorney Stephen Zappala. "They had a co-filing, and we'll see what the best thing to do is at this point."
Grant's lawyer, David B. Glazer, said the next step will probably be a scheduling order by the district judge, possibly including a requirement for legal briefs. He said Grant was convicted of a drug-related murder that occurred a few days after his 16th birthday. "It's one of the hurdles along the way," Glazer said. "We're just excited about the possibility of getting him back to court."
Pendleton's lawyer, federal public defender Lisa Freeland, said she was very happy with the decision. Her client was convicted of second-degree murder for the 1997 shooting death of a Pittsburgh jitney driver during a robbery, according to a magistrate judge's report in his federal court file. "We still have a ways to go, but this is a necessary first step to getting relief for Mr. Pendleton," Freeland said.
The panel opinion from the Third Circuit in these consolidated cases is available at this link; here are key excerpts:
In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2010), the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'” Corey Grant, Franklin X. Baines, and Michael J. Pendleton (collectively, “Petitioners”), each of whom claims to be serving a mandatory sentence of life without the possibility of parole for offenses committed as juveniles, seek our authorization to file successive habeas corpus petitions under 28 U.S.C. §§ 2254 (for Baines and Pendleton) and 2255 (for Grant) to raise Miller claims. Both Baines and Pendleton were convicted in state court in Pennsylvania, and Grant was convicted in federal court in New Jersey....
After extensive briefing and oral argument, we conclude that Petitioners have made a prima facie showing that Miller is retroactive. In doing so, we join several of our sister courts of appeals. See, e.g., Wang v. United States, No. 13-2426 (2d Cir. July 16, 2013) (granting motion to file a successive habeas corpus petition raising a Miller claim); In re James, No. 12-287 (4th Cir. May 10, 2013) (same); Johnson v. United States, 720 F.3d 720 (8th Cir. 2013) (per curiam) (same). But see In re Morgan, 713 F.3d 1365 (11th Cir. 2013) (concluding that Miller is not retroactive), reh’g en banc denied, 717 F.3d 1186; Craig v. Cain, No. 12-30035, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (per curiam) (same).
Because of the circuit split noted by the Third Circuit (which has a notable north/deep south quality to it), the Supreme Court is surely likely to take up this issue in some form at some point in the not too distant future.
Monday, September 30, 2013
Detailing Florida's continuing struggle to deal with Graham and MillerThis lengthy and interesting local article, headlined "Lawmakers committed to solving juvenile sentencing," highlights how legislators in the Sunshine State have been struggling to fix its sentencing laws in the wake of two Supreme Court rulings concerning limits on LWOP sentences for juvenile offenders. Here are excerpts:
With the courts threatening to intercede, Florida lawmakers say they are committed to finding a solution to sentencing juveniles under U.S. Supreme Court rulings that restrict the use of life sentences. The issue is likely to be a focal point of debate in next year’s legislative session and could affect two local cases.
But lawmakers have failed to find an agreement for the last three years, leaving Florida Supreme Court justices to suggest earlier this month that they could impose a parole system to review lengthy sentences for juveniles in light of the Legislature’s inaction....
Heading toward their 2014 session, lawmakers must address two groups of juvenile offenders. One group is juveniles convicted of non-homicide crimes — for which the U.S. Supreme Court banned life sentences in 2010. The other group is juveniles convicted of murder, who can be sentenced to life but their punishment must follow protocols outlined by the nation’s highest court in a 2012 ruling.
In the 2013 session, the sentencing legislation failed when [Sen. Rob Bradley, R-Fleming Island, a former state prosecutor] advanced a bill capping sentences at 50 years for non-homicide juvenile crimes and establishing a sentencing procedure for juvenile murderers, who would face a minimum 50-year sentence if they were not sentenced to life. But senators, who believed the bill was still too harsh, amended the bill in 20-19 vote, calling for a sentence review at 25 years for the juvenile offenders. In response, Bradley killed the legislation.
He and other lawmakers say they understand the frustration of the state’s highest court — where two cases are pending involving juveniles who received 70- and 90-year sentences for non-homicide crimes — but they said they hope to resolve the issue without putting the burden on the court....
Rep. Ray Pilon, R-Sarasota, who sponsored the House version of the sentencing bill, said he understood why the courts are not happy with the lack of legislative action. “They’re pushing us to do something,” Pilon said. “I think it was kind of travesty that we couldn’t come to a compromise last year. I’m certainly hopeful that we do this year. It’s our responsibility.”
There has been tension between the Legislature and the court in recent years, with some legislative leaders suggesting the justices have intruded into the legislative arena. But some lawmakers say the failure to act on the juvenile sentencing would leave the court little choice. “If we’re lawmakers we need to make the law,” said Rep. Dave Kerner, D-Lake Worth, a member of the House Criminal Justice Subcommittee, which would initiate the juvenile sentencing legislation. “We talk a lot about judges acting outside their authority. But it’s hard to blame them when we don’t write the laws.”...
Lawyers for an Orlando juvenile facing a 90-year sentence have suggested the state Supreme Court re-impose a parole system — which was abolished for non-capital crimes in 1983 and for all crimes in 1995 — to review lengthy juvenile sentences. In their questioning during oral arguments on the case, several justices talked about using the Parole Commission, which still exists to handle prisoners sentenced before parole was abolished.
But reviving the parole system would likely meet resistance from lawmakers. “Parole has become a dirty word in Florida,” said House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach. “I don’t know that there is enough momentum to sort of change that cultural shift that has occurred in our state.”
Nonetheless, lawmakers generally agree that they may have to come up with some review process for the non-homicide juveniles since the U.S. Supreme Court has said they must be given “some realistic opportunity to obtain release” before the end of their prison term. “We can call it whatever you want but we have to have that ability to go back and look,” Kerner said.
While acknowledging a review process for the non-homicide juveniles is necessary, Bradley said he would strongly resist any type of review for the juveniles convicted of murder. He said that would impose an emotional burden on the families of the crime victims, calling it unfair “to bring them back for a hearing and to go relive the crime over and over again.”
Under Bradley’s previous legislation, juveniles could be sentenced to a life sentences for murder if the judge weighed some 10 factors in the sentencing, including the offender’s level of maturity and the nature of the crime. The U.S. Supreme Court ruling has called for “individualized sentencing decisions” for juveniles based on the argument that they were different from adult offenders.
September 30, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, September 29, 2013
"Life Without Parole as a Conflicted Punishment"The title of this post is the title of this lengthy and notable new article available now via SSRN and authored by Craig Lerner. Here is the abstract:
Life without parole (LWOP) has displaced the death penalty as the distinctive American punishment. Although the sentence scarcely exists in Europe, roughly 40,000 inmates are serving LWOP in America today. Despite its prevalence, the sentence has received little academic scrutiny. This has begun to change, a development sparked by a pair of Supreme Court cases, Graham v. Florida (2010) and Miller v. Alabama (2012), which express European-styled reservations with America’s embrace of LWOP. Both opinions, like the nascent academic commentary, lament the irrevocability of the sentence and the expressive judgment purportedly conveyed -- that a human being is so incorrigible that the community brands him with the mark of Cain and banishes him forever from our midst. In the tamer language of the Graham opinion, LWOP “forswears altogether the rehabilitative ideal.”
This Article tests whether that phrase is a fair characterization of LWOP today, and concludes that the Graham Court’s treatment of LWOP captures only a partial truth. Life without parole, the Article argues, is a conflicted punishment. The community indulges its thirst for revenge when imposing the sentence, but over time softer impulses insinuate themselves. LWOP is in part intended as a punishment of incalculable cruelty, more horrible than a prison term of many years, and on par with or worse than death itself. In practice, however, LWOP also emerges as a softer punishment, accommodating a concern for the inmate’s humanity and a hope for his rehabilitation.
September 29, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Friday, September 20, 2013
NY Times debates "Reconsidering Young Lifers’ Sentences"
The Room for Debate section of the New York Times has this new set of pieces discussing whether all juve murderers should get the retroactive benefit of the Supreme Court's Miller Eighth Amendment ruling. Here is the section's set up:
In the wake of last year’s Supreme Court ruling in Miller v. Alabama that juveniles may never receive a mandatory sentence of life without parole, The Times editorial board has called for courts and legislators to apply this principle regardless of the date of conviction.
Courts in some states agree. Earlier this month, the Louisiana Supreme Court took on this question in the case of Darryl Tate, who was 17 when he robbed two men and killed one of them in 1981.
Should all people in prison for life without parole who committed their crimes before their 18th birthday be eligible for a new sentencing hearing?
Here are the contributions, with links via the commentary titles:
"Give Them Another Chance" by Jody Kent Lavy, Campaign for the Fair Sentencing of Youth
"Judgments Should Remain Intact" by Kent Scheidegger, Criminal Justice Legal Foundation
"The Problem With Retroactivity Rules" by William Baude, Volokh Conspiracy
"It Won’t Be Easy, But It Must Be Done" by R. Daniel Okonkwo, D.C. Lawyers for Youth
"Time to Affirm What We Mean by ‘Juvenile’" by Annie Salsich, Vera Institute of Justice
September 20, 2013 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (3) | TrackBack
Thursday, September 19, 2013
Linda Greenhouse reflects on changing crime culture changing SCOTUS jurisprudenceLinda Greenhouse's new commentary piece at the New York Times "Opinionator" blog is focused on crime and punishment issues. The lengthy piece, headlined "Winds of Change," is worth a full read and here are excerpts:
Back in 1991, the Supreme Court upheld a Michigan man’s prison sentence of life without the possibility of parole for possessing more than 1.5 pounds of cocaine. The sentence did not represent the third strike of a three-strikes law: the prisoner, Ronald A. Harmelin, 45, had no previous criminal record. The police found the drugs when they stopped him for running a red light. Since simple possession was enough to trigger Michigan’s mandatory life-without-parole sentence, the prosecution didn’t even have to bother trying to prove that Mr. Harmelin intended to sell the cocaine.
In upholding the sentence, the court rejected the argument that it was so disproportionate to the crime as to violate the Eighth Amendment’s prohibition on cruel and unusual punishment. The three justices who then occupied the middle of the court (yes, there was a multi-justice middle back then) — Anthony M. Kennedy, Sandra Day O’Connor and David H. Souter — voted with the 5-to-4 majority.
In “Five Chiefs,” the very interesting (and underappreciated) Supreme Court memoir he published in retirement, Justice John Paul Stevens reflected on the Harmelin decision, from which he dissented. Those three justices were all relatively new to the court at the time, he wrote. The justices they had replaced — Lewis F. Powell Jr., Potter Stewart and William J. Brennan Jr. — were all long-serving veterans who Justice Stevens speculated would have voted to invalidate the sentence. It may be, he added, that “the views of individual justices become more civilized after 20 years of service on the court.”
That was an intriguing thought, and when I had a chance last year to interview Justice Stevens, I asked him to say more. He said he still thought about the case “a lot.” He was “quite sure” that Justice Kennedy would come to the opposite conclusion today, and that the other two probably would as well if they were still on the court. Nonetheless, he added, “the precedent is still there, and it’s really a very unfortunate case.”
I’ve been thinking a lot myself about the Harmelin decision in light of recent events. First there was the announcement last month by Attorney General Eric H. Holder Jr. that the Justice Department was revising its prosecution strategy in order to avoid the impact of mandatory minimum sentences for low-level drug offenses. That was followed by the announcement that the federal government wouldn’t sue to block state laws that have legalized marijuana for medical or recreational use. Either policy shift would have been greeted with amazement not too many years ago, but neither provoked anything approaching a fuss....
Something is clearly in the wind. I’ve also been thinking about the New York City mayoral primary. It’s impossible to read the election outcome as other than, at least in part, a public repudiation of the Bloomberg administration’s law-enforcement policies, particularly the administration’s embrace of stop-and-frisk. Mayor Michael R. Bloomberg not only denounced Federal District Judge Shira A. Scheindlin’s ruling last month that stop-and-frisk as the police were using it was unconstitutional, but he also attacked the judge herself as an “ideologically driven” judicial activist.
Unlike the days when politicians could score easy points by attacking courts as soft on crime, however, the mayor got no traction. Bill de Blasio, the Democratic primary winner, ran as the non-Bloomberg, making opposition to stop-and-frisk a centerpiece of his campaign. An exit poll indicated that black New Yorkers and white New Yorkers were equally supportive of Mr. de Blasio, who also received nearly identical support across the income spectrum — a fascinating development. People so often separated by race and class, seemed to unite around the conclusion that enough was enough.
The question is what this shift in public attitudes might mean for the courts, the Supreme Court in particular. The Supreme Court operates inside the mainstream culture — which is, after all, where the justices live — influenced not by the “weather of the day” but by the “climate of the age,” as Justice Ruth Bader Ginsburg likes to say, quoting the great constitutional scholar Paul Freund....
In his reflection on the Harmelin decision, Justice Stevens offered the tantalizing idea that longevity on the bench makes justices “more civilized.” Can that prediction apply not only to individual members of the court, but also to the court as a whole? As the Roberts court begins year nine, that may be a distant hope, but one worth clinging to.
The recent SCOTUS Eighth Amendment rulings in Graham and Miller reflect, in my view, the impact of these "winds of change." But it remains to see whether and when these winds will blow hard enough to knock over the problematic precedent set by the Harmelin decision 22 years ago.
September 19, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack
Monday, September 16, 2013
New York Times editorial says "End Mandatory Life Sentences"The title of this post is drawn from the headline of this new New York Times editorial, which is actually focused mostly on giving Miller v. Alabama retroactive application. Here are excerpts:
Young people are different. The Supreme Court has delivered that message repeatedly over the last decade in limiting or flatly prohibiting the most severe criminal punishments for those under 18 at the time of their crime.
In 2005, the court banned the death penalty for juveniles. In 2010, it outlawed sentences of life without parole for juveniles convicted of crimes other than homicide. And, in a 2012 case, Miller v. Alabama, it said juveniles may never receive a mandatory sentence of life without parole, which prisoners refer to as “the other death penalty.”...
In each case, the court was silent on the question of whether its ruling applied retroactively to inmates who had already been convicted. The just answer would surely be yes, and courts have largely agreed, making those first two juvenile justice rulings retroactive. But some states insist that the ban on mandatory life without parole does not apply to offenders who have already been sentenced.
In the Miller case, the court required lower courts to make “individualized sentencing decisions” for juvenile defendants because juveniles are not as morally culpable as adults, and they are more capable of changing over time. If the ban on mandatory life without parole is retroactive, more than 2,000 prisoners would be eligible for a new sentencing hearing. So far, whether these individuals can get a new hearing depends on where they live.
Courts in Michigan, Iowa and Mississippi have ruled that the ban applies to previously sentenced juveniles. The Department of Justice takes that position as well. Yet the Minnesota Supreme Court and one federal appeals court have taken the opposite view....
Critics fear that allowing resentencing would increase violent crime. But courts may still impose life without parole, provided that the judge first gives proper consideration to the mitigating effects of youth. The Alabama Supreme Court set out guidelines last week that require a court to consider 14 factors, including a defendant’s age, emotional maturity, family environment and potential for rehabilitation before issuing such a sentence.
Ideally, life without parole would never be a sentencing option for juveniles. The Supreme Court’s own logic suggests this, even if it was not willing to go that far. After the Miller case, three states entirely eliminated juvenile life without parole, joining six other states that had already banned the sentence, and lawsuits on the retroactivity issue are pending in several states. As lawmakers and courts deal with this issue, they should remember — as the Supreme Court has declared — that adolescents are not adults, and that principle should apply regardless of the date of a conviction.
Saturday, September 14, 2013
Alabama Supreme Court reworks state law for juve killers after MillerAs reported in this effective local article, headlined "Alabama Supreme Court sets out how juvenile killers are to be sentenced," yesterday brought a major state court ruling on how juvenile murderers must be dealt with in the wake of the Supreme Court's Miller ruling. Here are the basics via the news report:
The unanimous 50+ page opinion from the Alabama Supreme Court is available at this link, and here is its critical closing paragraph discussing the factors that are now to be considered by Alabama sentencing judges in juve murder cases:
The Alabama Supreme Court [has] issued a ruling that says state judges can give juvenile killers sentences of life with the possibility of parole under Alabama's current capital punishment law. The court also set out 14 factors judges could use in determining whether to sentence a juvenile convicted of a capital crime to life with or without the possibility of parole.
"This is a great result for the state and its justice system," Alabama Attorney General Luther Strange said in a statement issued this afternoon. "The Court has unanimously agreed with our position that prosecutors can try juveniles for capital murder and seek sentences of life without parole in appropriate cases. This gives prosecutors and judges clarity going forward, and it eliminates the limbo that victims' families have been dealing with in recent months."
The court's ruling came in response to requests by two teens charged with capital murder in two Jefferson Count cases who sought to have their capital-murder indictments dismissed because of a ruling last year by the U.S. Supreme Court. Judges have had two options to sentence people under Alabama's capital punishment law -- death or life without the possibility of parole....
A bill had been presented this spring in the Alabama Legislature. That bill called for giving judges the option of a life sentence with one chance at parole after 40 years. Legislators, however, did not enact that bill before their session ended May 20.
Meanwhile attorneys for the two Jefferson County teens -- Rashad Stoves and Larry Henderson -- had argued before the Alabama Supreme Court to overturn circuit court judges rulings in their cases to dismiss the capital murder indictments pending against them because the courts did not yet have a new law in place....
"What they've done is legislate from the bench," Wendell Sheffield, an attorney for Stoves said this morning of the Alabama Supreme Court's ruling. "They are saying it is within their equitable powers ... They've taken an unconstitutional statute and have attempted to make it constitutional." Sheffield and law partner John Lentine said at this point they are reviewing the court's decision in depth and will decide whether to take the case further.
In its ruling, the court stated that it had the right to delete the portion of the law struck down by the U.S. Supreme Court. The Alabama justices stated that the U.S. Supreme Court did not give guidance on what factors judges should use in sentencing. "It is well settled that should a statute become invalid or unconstitutional in part, the part that is valid will be sustained where it can be separated from that part that is void," the court ruled....
The Alabama justices stated that with their ruling juveniles now will know that, if convicted, they face a sentence of life imprisonment without the possibility of parole as a "ceiling" and life with the possibility of parole as the "floor." To help judges decide whether the sentences should be life with or without parole, the Alabama Supreme Court set out 14 factors the judges should use based on a Pennsylvania court ruling....
Sheffield and Lentine also said that it appears from the ruling that the juvenile sentencing will be done by the trial judge, without a jury's recommendation. In capital cases involving adults in which the death penalty is an option, juries are asked to make a recommendation.
Today's ruling also will be of interest to a number of people already serving life without the possibility of parole sentences in Alabama who were considered juveniles when the crime occurred. Some of those prisoners have already filed appeals seeking to be have their sentences changed in light of last year's U.S. Supreme Court ruling.
We agree with the juveniles that the Miller Court did not delineate specifically which factors to use in sentencing a juvenile convicted of a capital offense. We find helpful Commonwealth v. Knox, 50 A.3d 732 (Pa. Super. Ct. 2012), which ordered that a juvenile sentenced to a mandatory life-without-parole sentence must be resentenced with a consideration of the principles annunciated in Miller. We hold that a sentencing hearing for a juvenile convicted of a capital offense must now include consideration of: (1) the juvenile's chronological age at the time of the offense and the hallmark features of youth, such as immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the juvenile's diminished culpability; (3) the circumstances of the offense; (4) the extent of the juvenile's participation in the crime; (5) the juvenile's family, home, and neighborhood environment; (6) the juvenile's emotional maturity and development; (7) whether familial and/or peer pressure affected the juvenile; (8) the juvenile's past exposure to violence; (9) the juvenile's drug and alcohol history; (10) the juvenile's ability to deal with the police; (11) the juvenile's capacity to assist his or her attorney; (12) the juvenile's mental-health history; (13) the juvenile's potential for rehabilitation; and (14) any other relevant factor related to the juvenile's youth. See generally Commonwealth v. Knox. We recognize that some of the factors may not apply to a particular juvenile's case and that some of the factors may overlap. Nevertheless, we believe that providing the trial court with guidance on individualized sentencing for juveniles charged with capital murder comports with the guidelines of Miller.
Monday, September 09, 2013
"Talking About Cruelty: The Eighth Amendment and Juvenile Offenders after Miller v. Alabama"The title of this post is the title of this notable new paper by Samuel Pillsbury now available via SSRN. Here is the abstract:
After setting out the issues and approach of the U.S. Supreme Court majority in Miller v. Alabama, the article develops cruelty as a constitutional norm. Initially cruelty as a norm for Enlightenment thinkers in the late 18th century and in the creation of the American penitentiary in the early nineteenth century is considered. Then the article examines cruelty as a modern norm that condemns both sadism and indifference towards the serious suffering of others. This norm supports the Miller conclusion that mandatory life without chance of parole sentences for certain juvenile offenders are cruel, because such sentences mandate a form of culpable indifference to individual value.
The article then describes how a cruelty norm may guide courts in resolving the constitutionality of a life without chance of parole sentence for juvenile by a judge who had discretion to order a lesser sentence. The cruelty norm described would find unconstitutional a life sentence for a juvenile unless a subsequent opportunity was provided for the offender to seek release based on personal reform. Otherwise, a life sentence would disregard the basic value of the offender in the person that he or she might become.
Wednesday, September 04, 2013
Another effective review of the messy Miller aftermathThis morning's Wall Street Journal has this new article reviewing all the legal uncertainty which persists in state courts more than a year after the Supreme Court's Miller ruling declared unconstitutional mandatory LWOP sentences for juvenile murderers. (Regular readers may recall similar recent AP and Stateline piecesfocused mostly on legislative responses to Miller discussed here and here.) This new WSJ piece is headlined "Courts Split Over Ruling on Juvenile Life Sentence: Confusion on 2012 Decision Creates a Legal Limbo for Inmates, Their Lawyers," and here are excerpts:
Jeffrey Ragland, sentenced to life without parole in 1986 for his involvement in the killing of a fellow teen with a tire-iron blow to the head, could soon be a free man. That outcome is the result of a ruling by the Iowa Supreme Court last month that found the sentence handed down to Mr. Ragland, now 44 years old, unconstitutional. The court concluded that a June 2012 ruling from the U.S. Supreme Court outlawing mandatory life-without-parole sentences for juveniles should be applied retroactively, rather than only to future cases.
Other high-level courts, including the Minnesota Supreme Court and the Eleventh U.S. Circuit Court of Appeals in Atlanta, have ruled otherwise, finding the Supreme Court's ruling in Miller v. Alabama shouldn't reach backward in time. Inmates challenging their sentences in those cases had their appeals denied.
This schism over the Miller ruling has helped sow deep confusion among inmates, their lawyers, lawmakers and sentencing-policy advocates. More than a year after the high court ruling, many of the approximately 2,100 people sentenced as juveniles to mandatory life-without-parole sentences before June 2012 are being held in a sort of legal limbo — with few answers in sight.
"The situation is an absolute mess," said Wendell Sheffield, a criminal defense lawyer in Birmingham, Ala., who represents a juvenile being held in jail on capital murder charges. "We got an opinion from the highest court in the land, but nobody knows how to implement it."... [S]o far, courts have largely divided over a highly technical question of constitutional law: whether the rule established in Justice Kagan's opinion is "substantive" in nature, and therefore should apply retroactively, or "procedural," which would only alter the method of determining a sentence going forward.
Several Supreme Court rulings in recent years in regard to sentencing, such as the 2002 decision that banned the death penalty for the mentally disabled, were in the former category and applied to sentences already imposed. Justice Kagan's opinion didn't explicitly label the new rule as procedural or substantive....
Advocates for overhauling the juvenile-justice system hailed the Ragland ruling. "An incentive to rehabilitate should be part of most juvenile sentences," said Jody Kent, director of the Campaign for the Fair Sentencing of Youth. "So often we have no idea what a child is going to be like in 10, 20 or 30 years."
A spokesman for Iowa Gov. Terry Branstad, a Republican whose office had argued against Mr. Ragland's new sentence, said victims "must never be re-victimized and can never be forgotten from the process." It is a concern echoed by other victims' rights supporters, who think renewed parole hearings, with their promise of springing convicted murderers from prison, would open old wounds.
Since the Miller ruling, a handful of the 28 states with mandatory life-without-parole sentences for at least some juveniles have changed their laws. Some, like Delaware and Texas, scrapped the option of such sentences entirely. Others, like Arkansas and Nebraska, still allow judges to impose the sentence, but also let them consider a life sentence with the possibility of parole.
But the majority of states have yet to change their laws, leaving the status of scores of inmates and defendants up in the air. Mr. Sheffield said his client in Alabama is "completely stuck in a holding pattern" until the legislature or the Alabama courts give some clarity. "I think the [U.S.] Supreme Court was hopeful that state legislatures would deal with this fairly quickly," he said. "But they haven't — and it's just adding to the chaos."
I suspect the US Supreme Court will eventually feel compelled to take up the issue of whether and how the Miller ruling is to apply retroactively to long ago final cases. If (and when?) the Justice take up this matter, I think the case could end up being one of the most significant SCOTUS retroactivity decisions since Teague.
A few recent related posts:
- Effective press review of some state responses to SCOTUS Miller ruling
- Terrific Stateline review of states' varied applications of and reactions to Miller
- A year after Miller confirmed kids are different, how may kids have different sentences?
- Iowa Supreme Court rules in favor of juve defendants in three post-Graham appeals
- In lengthy split opinion, Minnesota Supreme Court concludes Miller should not apply retroactively
September 4, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack
Monday, September 02, 2013
"Against Juvenile Sex Offender Registration"The title of this post is the title of this notable new paper by Catherine Carpenter now available via SSRN. Here is the abstract:
Imagine if you were held accountable the rest of your life for something you did as a child?
This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration. And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives.
No matter the constitutionality of adult sex offender registration — and on that point, there is debate — this article argues that child sex offender registration violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses. Low recidivism rates and varied reasons for their misconduct demonstrate that a child’s criminal sexual act does not necessarily portend future predatory behavior. And with a net cast so wide it ensnares equally the child who rapes and the child who engages in sex with an underage partner, juvenile sex offender registration schemes are not moored to their civil regulatory intent.
Compounding the problem is mandatory lifetime registration for child offenders. This paper analogizes this practice to juvenile sentences of life imprisonment without the possibility of parole, which the Supreme Court declared unconstitutional in Miller v. Alabama and Graham v. Florida. This article argues that mandatory lifetime registration applied to children in the same manner as adult offenders is cruel and unusual punishment because it violates fundamental principles that require sentencing practices to distinguish between adult and child offenders.
Scrutiny of child sex offender registration laws places front and center the issue of what it means to judge our children. And on that issue, we are failing. The public’s desire to punish children appears fixed despite our understanding that child offenders pose little danger of recidivism, possess diminished culpability, and have the capacity for rehabilitation. In a debate clouded by emotion, it is increasingly clear that juvenile sex offender registration is cruel and unusual punishment.
September 2, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack
Monday, August 26, 2013
Terrific Stateline review of states' varied applications of and reactions to MillerMaggie Clark over at Stateline has this notable new article (and this amazing associated resource) reviewing all the diverse ways states are deal with the Supreme Court's Miller ruling. the piece is headlined "After Supreme Court Ruling, States Act on Juvenile Sentences," and here are excerpts:
Last year, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory life sentences for offenders under 18 are cruel and unusual punishment, and therefore unconstitutional. In the wake of that decision, a federal court this month ruled that ... more than 300 other Michigan juvenile lifers are entitled to a parole hearing.
Michigan is one of at least 11 states that have revisited their sentencing laws in response to the Supreme Court decision (see Stateline chart). Generally, juvenile killers in those states will be eligible for a parole hearing after serving a mandatory minimum sentence of about 25 years.
Still, there are at least 15 states that have not yet eliminated mandatory life without parole sentences for juveniles. In many states, legislatures and courts aren’t sure how the Miller decision should apply to offenders such ... already serving such sentences. Nationwide, there are more than 2,000 prisoners in 43 states serving life without parole sentences for crimes they committed as juveniles....
[I]n Pennsylvania, which has largest number of inmates whose sentences are covered by the Supreme Court ruling, the state Supreme Court has been considering the retroactivity question for over a year. The court’s decision could lead to the resentencing and eventual release of over 400 convicted murderers.
In Michigan, Iowa, Illinois, Louisiana and Mississippi, judges have ruled that the Supreme Court decision applies retroactively to all prisoners serving such sentences. But in Minnesota and Florida, judges have ruled that the Supreme Court decision only applies to future cases.
State Supreme Courts in Illinois, Florida, Massachusetts and Colorado will likely consider the retroactivity question this fall, said Marsha Levick, chief counsel at the Juvenile Law Center, a legal advocacy group for youth....
The super-predator theory, popular in the early 1990s, predicted a wave of juvenile violent crime in the following decade. States reacted by treating many juvenile offenders as if they were adults. Between 1992 and 1995, 48 states increased penalties for juveniles convicted of violent crime, according to the Department of Justice. But that wave never came: Juvenile crime started to drop in the early 1990s, and it has continued to decline in the years since, as has adult crime.
The harsher juvenile sentencing laws likely were not a factor in the decline, since data show there was no difference in the crime rate for states with mandatory life without parole sentences and those without. Crime has declined nationwide, and across all demographics....
Considering youth as a mitigating factor is part of the Supreme Court’s broader move toward treating kids differently than adults. In two decisions banning the death penalty for juveniles for both homicide and non-homicide crimes, the justices relied heavily on neuroscience showing that brains are still growing and changing well through the teenage years, meaning that juveniles are likely to grow out of their criminal behavior, especially if they’re put in a rehabilitative setting.
Still, kids are committing adult crimes, and in these cases, victims’ families were promised life without parole sentences for their family member’s killer, said Joy Yearout, spokeswoman for Michigan Attorney General Bill Schuette. “Families were told that (the killers) would never be paroled, and that could have been 20 or 30 years ago,” Yearout said. “Now the families are being told that’s not true anymore and that’s very frightening. It’s very important to have truth in sentencing so that victims have assurance that the sentence will actually be what’s set.” Schuette has said he will appeal the Michigan federal court decision.
Most of the 11 states that have changed their laws to comply with Miller v. Alabama have either discouraged the use of life without parole sentences for juveniles, or scrapped them altogether.
But because the Supreme Court only struck down mandatory life without parole for juveniles, and not all such sentences, states are not required to completely overhaul their juvenile sentencing policies. In Alabama, where the Supreme Court case originated, the attorney general recently advised district attorneys to seek life with parole in two ongoing juvenile murder cases. The Alabama legislature has not yet approved any changes in mandatory sentencing laws to comply with the Supreme Court ruling.
August 26, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Monday, August 19, 2013
Effective press review of some state responses to SCOTUS Miller rulingThe AP has this notable new article on the wire discussing at lengthy some of the response at the state level to the Supreme Court's Miller ruling last year prohibiting madatory LWOP sentences for juvenile murderers. Here is an excerpt:
[There are] an estimated 2,100 so-called juvenile lifers across the country — inmates sentenced to lengthy prison terms without parole — who hope for a reprieve in the wake of a 2012 U.S. Supreme Court ruling, Miller v. Alabama. The decision determined such sentences are cruel and unusual punishment and therefore unconstitutional. The court ruled, 5-4, that the proportionality of the sentence must take into account "the mitigating qualities of youth," such as immaturity and the failure of young people to understand the ramifications of their actions.
In part to head off an avalanche of expected appeals, at least 10 states have changed laws to comply with the ruling. In June, Delaware Gov. Jack Markell signed a bill eliminating mandatory life sentences without parole for juvenile killers, who are also ineligible for the death penalty. The new law requires juveniles convicted of first-degree murder to serve at least 25 years in prison while still allowing judges the discretion to impose a sentence of life without parole. Juvenile offenders convicted of first-degree murder are also allowed to petition for a sentence modification after serving 30 years.
Wyoming Gov. Matt Mead signed a bill in February specifying that juveniles convicted of murder would be eligible for parole after serving 25 years in prison. Last fall, Pennsylvania Gov. Tom Corbett signed legislation giving judges options other than life in prison when sentencing juveniles in murder cases. Other states with new juvenile sentencing laws include Arkansas, California, Montana, Nebraska, North Carolina, South Dakota and Utah, according to data collected by the National Conference of State Legislatures this summer.
In Connecticut, [there are] about 200 inmates who could be affected by the high court's ruling, a proposal that would have allowed parole hearings for teen offenders who've served at least 12 years or 60 percent of their sentence died this year. There are plans to resurrect the bill next year.
But the prospect of possibly shortening sentences has been met with mixed reaction from relatives of crime victims. "If you can't believe a judge's final decision in a courtroom, who can you believe?" asked John Cluny, whose wife and teenage son were shot to death in 1993 by his son's 15-year-old friend, Michael Bernier. Bernier was sentenced to 60 years for the murders. Cluny calls him "a cold-blooded killer."
Despite good behavior in prison and years of reflection and maturity, Cluny questions giving such killers another chance at freedom. "You're in prison for what you did, not for what you've become," he said.
August 19, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Friday, August 16, 2013
Iowa Supreme Court rules in favor of juve defendants in three post-Graham appealsAs reported in this local article, headlined "Hundreds of juveniles could appeal felony sentences under Iowa court rulings," the Iowa Supreme COurt handed down three notable opinions today that operationalize the US Supreme Court's opinion in Graham concerning LWOP sentences for juve non-homicide offendes. Here are the basics:
Hundreds of juveniles convicted of felonies could apply to have their sentences reviewed under three decisions handed down Friday by the Iowa Supreme Court.
Iowa's high court upheld a lower court's decision to reduce the sentence of Jeffrey Ragland, now 44, to life in prison with a possibility of parole after 25 years. Ragland, when he was 17 was convicted of first-degree murder, which carries a mandatory sentence of life in prison without parole, even though he did not swing the tire iron that killed a man.
The Iowa court also ordered two other juvenile cases for resentencing that did not involve mandatory life sentences without parole: Denem Anthony Null, now 20, is serving a minimum sentence of more than 52 years for a 2010 murder and robbery. He was 16 at the time of his crimes. Desirae Monique Pearson, now 19, is serving a minimum of 35 years for robbery and burglary committed in 2010....
In today's rulings, the court said Gov. Terry Branstad overreached last year when he sought to keep 38 juveniles in prison who were convicted to life in prison without a chance of parole. The governor imposed life sentences with a chance of parole after 60 years after the U.S. Supreme Court ruled a teenager convicted of murder must be sentenced differently than adults.
Friday's decisions produced sharp divisions on the high court. Justice Edward Mansifeld, in his dissent in Pearson's case, cautioned the high court's broad interpretation of the U.S. Supreme Court ruling regarding juvenile sentencing could produce a "flurry" of court hearings. He said the 425 juvenile inmates serving time in Iowa prisons “may now have a ticket to court and a potential resentencing.”
"This would be unprecedented," said Mansfield, noting other state courts have chosen to reconsider sentences that locked up juveniles for life without parole.
The impact of the court’s decision remains to be seen. Dozens, or even hundreds of cases, spread across Iowa should not strain the court system, said Robert Rigg, a Drake University law professor. The fact that juveniles convicted of serious felonies can ask for new sentences only opens the door to a hearing, and does not guarantee anything beyond that, Rigg said. The high court has required a judge consider a variety of factors during sentencing, such as a youth's history, socioeconomic background, history of substance abuse and psychiatric evaluations, he said.
All this information is already gathered. But under mandatory sentencing laws, a judge is not allowed to consider these factors, Rigg said. "When we have mandatory minimums, you order these investigations but can't use them in sentencing," Rigg said.
Gov. Terry Branstad intends to work with the legislature to establish criminal sentences that keeps convicted juveniles in prison, said Tim Albrecht, the governor’s spokesman. The high court’s decision does not affect the governor’s authority to grant clemency, which includes commutation of life sentences, he said. “Victims must never be re-victimized and can never be forgotten from the process,” Albrecht said. “The governor and lieutenant governor look forward to working with the Iowa Legislature to find a way to keep dangerous juvenile murderers off the streets and keep Iowans safe.”
Lawmakers could find it difficult to change the state's juvenile sentencing laws if they disagree with the court's rulings, because justices used the Iowa constitution to make its case. Those who disagreed with the court's 2009 decision that legalized same sex marriage ran into similar roadblocks, said Rigg, the Drake professor, who noted this approach also means the decision can't be appealed to the U.S. Supreme Court.
State law until last year required anyone sentenced for first-degree murder, regardless of age, to spend life in prison without parole. Other mandatory sentences also existed for serious felonies. In June 2012, though, U.S. Supreme Court in Miller v. Alabama found such sentences to be cruel and unusual based on brain research showing that juveniles are less culpable for their crimes due to differences in brain development and impulse control.
Branstad's immediate response to that federal ruling was a blanket commutation order that allowed parole for teen murderers only after they had spent 60 years behind bars. That move was widely criticized by lawyers and advocates for the 38 people serving time for such murders. Several of the offenders are appealing saying that 60 years still constitutes a long period of time behind bars....
After the U.S. Supreme Court, Ragland's attorney sought parole for his client. The district court ruled that Branstad exceeded his authority and resentenced Ragland to life in prison with the possibility of parole after 25 years.
The Iowa Supreme Court, in Friday's unanimous decision, upheld the lower court's ruling. The court agreed with the district court's findings that the governor's commutation still amounted to a life sentence without parole. Ragland would be 78 before he could possibly be released and near the end of his statistical life expectancy....
The court continued in its opinion: “In light of our increased understanding of the decision making of youths, the sentencing process must be tailored to account in a meaningful way for the attributes of juveniles that are distinct from adult conduct. At the core of all of this also lies the profound sense of what a person loses by beginning to serve a lifetime of incarceration as a youth.”
In a concurring opinion, Justice David Wiggins wrote that Branstad’s imposition of a sentence “might constitute a denial of due process.” In his concurring opinion Justice Bruce Zager wrote that he believed Branstad exceeded his constitutional authority when Branstad removed Ragland’s ability to earn good time credit against the commuted sentence.
Jon Kinnamon, Ragland’s attorney, said the court’s decision will open the door for his client to seek parole. He doesn’t know when Ragland’s case could be reviewed by the board, he said. He said he planned to contact Ragland and his family yet today. “I would presume that the next step would be that he would be in front of the parole board,” he said.
All three of the Iowa Supreme Court opinions are available via this webpage, and the Ragland opinion reference above is at this link. The longest opinion of the three is in Iowa v. Null, and its 83 pages can be found at this link.
August 16, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack
Tuesday, August 13, 2013
US District Judge tells Michigan that all its mandatory juve LWOP sentences are unconstitutionalAs reported in this local piece, headlined "Judge upholds ban on life, no parole for juveniles in Michigan," a federal district judge in the state up north has issued a new little opinion with significant impact for juve LWOP defendants sentenced before Miller. Here are the basics:
A federal judge ruled Monday that Michigan must grant parole consideration to anyone convicted of murder as a juvenile, rejecting the state attorney general’s request that an earlier decision to implement the U.S. Supreme Court’s ban on no-parole sentences for juveniles apply only to the convicts who challenged the state’s law.
Michigan has an automatic life-without-parole sentence for first-degree murder convictions, and applies at any age. The U.S. Supreme Court ruled last year that it is cruel and unusual punishment to deny parole consideration to those who are under 18 when convicted. The state said at the time said it had more than 350 prisoners in that category, out of about 2,000 nationwide....
Acting on a 2010 suit by nine Michigan prisoners who received no-parole sentences as juveniles, U.S. District Judge John Corbett O’Meara in Ann Arbor ruled Jan. 30 that Michigan must allow the possibility of parole in cases where the defendant is under 18 when convicted. The U.S. Supreme Court ruled on mandatory no-parole punishments while that lawsuit was pending.
Michigan Attorney General Bill Schuette filed a motion that O’Meara’s decision apply only to those who brought the suit, while the ACLU asked that it apply to those now serving life without parole for convictions as juveniles. Schuette’s office has contended that the Supreme Court’s decision didn’t automatically apply to past sentences, only to those sentenced since the 2012 high court ruling.
On Monday, O’Meara rejected Schuette’s request and said the high court’s ruling applied to past as well as future sentences. State prosecutors “believe they may enforce the statute, which the court has declared unconstitutional, with respect to other juveniles sentenced to life in prison,” the judge wrote. “As this court now makes clear, defendants are incorrect.”
“Every person convicted of first-degree murder in the state of Michigan as a juvenile and who was sentenced to life in prison shall be eligible for parole,” the judge said.
Schuette spokeswoman Joy Yearout said the attorney general “disagrees strongly” with the ruling and said it would subject victims’ families “to re-live horrible tragedies at future parole hearings for teenage murderers already sentenced by a jury of their peers to life in prison without parole.”
“Once a final order is entered in this case, Attorney General Schuette intends to file an immediate appeal,” Yearout said in an email.
The order referenced here runs only two pages and is available at this link. I think it kind of "resolves" the issue of whether and how the Supreme Court's Miller rulong applies retroactively in a potent and (unduly?) simplistic way. It will be interest to see just how the Michigan AG develops his arguments on appeal and what the Sixth Circuit ultimately has to say about them.