Thursday, December 26, 2013

Extending Graham and Miller, Massachusetts SJC bars LWOP for all juve offenders

Mass sjcThanks 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.

November 30, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

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.

November 13, 2013 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, November 12, 2013

Can and should brain science research become a regular (and regulated) part of sentencing decision-making?

Brainscans2The 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."

The full 40+ page ruling reference here is available at this link, which I found via this helpful page from the helpful folks at the Juvenile Law Center.

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:

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.

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.

November 5, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

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."

October 30, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, October 24, 2013

Michigan Senate passes (prospective-only) Miller fix proposal

As 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.

October 20, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

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.

October 4, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, September 30, 2013

Detailing Florida's continuing struggle to deal with Graham and Miller

This 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:

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 jurisprudence

Winds-of-changeLinda 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.

September 16, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack