Thursday, February 19, 2015

The back-story of George Toca's case (and its impact on other juve LWOPers)

George TocaThis new Bloomberg article authored by by Matt Stroud provides an interesting account of the stories behind what was, until it was settled a few weeks ago, the case the Supreme Court had planned to use to resolve the retroactive application of its Miller Eighth Amendment ruling. The piece is headlined "Prisoners Sentenced to Life as Kids Just Lost Their Best Chance for Freedom: How the criminal justice system failed George Toca — and 1,500 others like him," and it is a must-read and a must-watch based on the video linked to the story. Here are excerpts:

In 1984, when Toca was 17, he was charged with accidentally shooting and killing his best friend, Eric Batiste, during a failed carjacking.  Victims picked him out of lineups, despite initial statements to police describing an older, heavier shooter who was at least five inches taller than Toca and who did not have four gleaming gold caps on his top front teeth.

Largely on the basis of eyewitness testimony, Toca was convicted of second-degree murder in 1985 and given a mandatory sentence of life in prison without the possibility of parole. He has spent most of the last 31 years in Louisiana’s notorious Angola state penitentiary....

Toca has had an interesting winter.  In addition to denying responsibility for his friend’s killing — and working with lawyers at the Innocence Project New Orleans since 2003 to prove his case — Toca appealed to be resentenced based on his age at the time of the alleged crime. The U.S. Supreme Court selects less than 2 percent of the cases presented to it. In December, it agreed to hear Toca’s appeal....

[I]n 2012, in Miller v. Alabama, the court ruled that a mandatory sentence of life without parole, handed down in 29 states’ murder cases as well as those in federal court, is unconstitutional for offenders younger than 18.  The decision left a question on the table: What about those who had already been convicted?  Should they be resentenced?

Some states have said that all juveniles sentenced to mandatory life without parole should have a new sentencing hearing. Others — Louisiana, Pennsylvania, Michigan, and Minnesota — have decided against retroactivity.  The exact numbers are in dispute, but according to figures from Human Rights Watch and estimates from the Juvenile Law Center in Philadelphia, that means about 1,500 sentences nationwide hang in the balance.  By agreeing to hear and decide Toca’s appeal, the Supreme Court planned to end the uncertainty of those cases.

But in the weeks after the court agreed to hear the case, Toca was approached by Orleans Parish District Attorney Leon Cannizzaro with a tempting offer.  Toca had long maintained his innocence in the shooting, but now the D.A. had a deal for him. If he signed a plea agreement admitting to armed robbery, Cannizzaro would drop the original conviction and Toca would be paroled immediately....

Since he agreed to a plea deal, though, the Supreme Court dismissed his case and he is no longer standing in for 1,500 juvenile lifers like him in front of the nation’s highest court.

For those who believe juveniles sentenced to life behind bars should be forced to spend their lives there, Toca’s release is actually good news.  “This shows me that the system works,” said Bobbi Jamriska, whose pregnant sister was brutally beaten and stabbed to death in 1993 by a 16-year-old in suburban Pittsburgh.  “They went back and they questioned his case and raised their concerns, and [Toca] ended up being let out of jail.”

Jamriska has fought hard to keep both the death penalty and life without parole on the table for juvenile offenders.  As Pennsylvania director of the National Organization of Victims of Juvenile Murderers, she said her organization didn’t want Toca’s case in front of the Supreme Court anyway.  His case is “an extreme,” she said. “Even the victim’s family is saying, ‘Get him out of jail,’ ” Jamriska said.  “We’d prefer to have a case that’s more representative of some of the horrific crimes juveniles commit.”...

Will the Supreme Court [take up] another [case]?  Marsha Levick, deputy director and chief counsel of the Juvenile Law Center in Philadelphia, believes it will.  At least five cases —three in Louisiana, two in Michigan — have been sent for Supreme Court review and could replace Toca’s, but not until the next term at the earliest. That's in October.

Levick doesn’t blame Toca for his decision. “First and foremost, good for him,” she said. “I don’t think anybody who has been waiting for the retroactivity issue to be ruled upon would in any way question the decision that George Toca made. How could he not walk out of prison after 30 years?” For the other juvenile lifers nationwide, “obviously it was disappointing,” she said. “They’re still waiting, just as they have been for 30, 40, 50 years. And they think it’s time for them to get out as well.”

Toca hopes they do, too. Sitting outside with the sun shining above him, he looked down and offered an apology. “I know they was really relying on my case to get the retroactivity of the Miller case resolved,” he said. “All I can say is, I’m sorry that I let ’em down. This was all I could do.”

February 19, 2015 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, February 15, 2015

"Procedural Proportionality"

The title of this post is the title of this notable new paper by William Berry III now available via SSRN. Here is the abstract:

Given the Supreme Court’s recent foray into applying the Eighth Amendment to non-capital cases combined with its long history of applying procedural restrictions at sentencing in death cases, this Article argues for the application of procedural due process principles to criminal sentencing under the Eighth Amendment.  Specifically, the Article develops the concept of procedural proportionality, which contemplates a relationship between the extent of the deprivation and the amount of procedure required.

Part I of the Article explains the procedural components of the cruel and unusual punishment clause and explores the expansion of these principles to non-capital cases.  Part II of the Article articulates the theory of procedural proportionality, describing the procedural rights needed at sentencing and outlining a sliding scale for its application.

February 15, 2015 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, January 19, 2015

"Graham's Gatekeeper and Beyond: Juvenile Sentencing and Release Reform in the Wake of Graham and Miller"

The title of this post is the title of this timely and important new article by Megan Annitto now available via SSRN. Here is the abstract:

In Graham v. Florida and Miller v. Alabama, the Supreme Court imposed limits on the use of the life sentences for juveniles.  The decisions require states and the federal government to craft new procedures when and if courts levy life and lengthy sentences upon juveniles.  But the Court’s decisions are not self-actualizing and there is little within them that creates a bright line about the substance or procedures states should follow. This article focuses on three of the questions that states face in the implementation of the Court’s decisions.  First, who is the best gatekeeper for the release of these offenders on the back end of sentencing — the judiciary, parole boards, or something new? Second, what procedural and substantive guidance should states provide for these chosen gatekeepers? And, finally, what role will modern risk assessment tools play in this decision making?

The answers to these questions must fairly balance public safety with the possibility of redemption the Court recognized is inherent in childhood.  They will also affect the public’s perception of legitimacy in the release process.  State and the federal government answers to those questions are even more pressing given the applicability of Graham’s rationale to a larger category of offenders — the American Bar Association and American Law Institute both recommend the creation of some form of sentencing review for all juveniles sentenced under an adult regime.

Despite the importance of these questions, in the early aftermath of the Court’s opinions, legislative and judicial attention has primarily focused on issues related to the length of sentences that should be alternatives to life terms, the time at which review should occur when life sentences are imposed, and retroactivity.  But some pioneering states have passed legislation tinkering with broader reform and legislatures are rapidly taking up the issues presented. Some courts have broadened the reach of Graham and Miller, striking down juvenile life without parole altogether. But many legislatures are embattled over decisions about whether to enact only the perceived minimal requirements of Graham and Miller or whether to extend the Court’s reasoning to broader release policies affording back end sentencing review at reasonable time periods. Choices that provide for expanded but careful opportunities for relief can counterweigh some of the harsh results of juvenile transfer laws that have brought, and continue to bring, increasing numbers of juveniles under the rubric of adult sentencing schemes in ways that were not necessarily intentional or desirable.  The Article discusses the implications of the chosen gatekeeper for release and discusses the accompanying procedural and substantive considerations that states and the federal government should consider upon implementation.

January 19, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath | Permalink | Comments (0) | TrackBack

Friday, December 12, 2014

Supreme Court grants cert to (finally!?!) resolve whether Miller applies retroactively

The Supreme Court, as revealed by this order list, finally appears set to resolve an issue that it has been avoiding for a few years as lower courts have split over implementing its Eighth Amendment work in Miller v. Alabama.  Here is the basic news as set out in the order list:

TOCA, GEORGE V. LOUISIANA

The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following questions: 1) Does the rule announced in Miller v. Alabama, 567 U. S. ____ (2012), apply retroactively to this case? 2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception?

December 12, 2014 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, November 30, 2014

"The Retroactivity of Substantive Rules to Cases on Collateral Review and the AEDPA, with a Special Focus on Miller v. Alabama"

The title of this post is the title of this notable new paper on SSRN authored by Jason Zarrow and William Milliken. Here is the abstract:

Teague v. Lane established a general bar on the retroactive application of criminal rules in habeas proceedings.  Substantive rules, however, are not subject to that bar.  In this Article, we consider whether a habeas petitioner may retroactively invoke a substantive rule notwithstanding 28 U.S.C. § 2254(d)(1), a provision of the Anti-Terrorism and Effective Death Penalty Act that precludes federal courts from granting habeas relief to state prisoners unless the state-court adjudication was contrary to “clearly established Federal law.”

We answer this question through the lens of the Supreme Court’s decision in Miller v. Alabama, holding that sentencing schemes mandating life-without-parole sentences for juveniles are unconstitutional.  By tracing the Court’s jurisprudence on substantive rules to its historical roots, we conclude that Miller, while not substantive in toto, contains a substantive component, and that § 2254(d)(1) does not bar habeas petitioners from relying on substantive rules announced after their convictions become final.

November 30, 2014 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, November 12, 2014

Split South Carolina Supreme Court declares Miller retroactive AND applicable to state's nonmandatory LWOP sentencing scheme

As reported in this local article, "at least 15 South Carolina felons serving life sentences for homicides they committed while they were minors are eligible to return to court to be resentenced for their crimes, a divided S.C. Supreme Court ruled Wednesday." Here are the basics of the ruling: 

The 3-2 decision cites the U.S. Supreme Court's 2012 decision in Miller v. Alabama, which banned mandatory life sentences without the possibility of parole in instances where juveniles commit murder....

The [Miller] ruling applied to mandatory sentences and the U.S. Supreme Court justices avoided declaring whether the new standard should be applied retroactively to older cases. South Carolina's high court, however, not only called for a rehearing of older cases but applied the new parameters to all juveniles cases where life sentences were imposed, even when that decision was at a judge's discretion.

Colin Miller, an associate professor at the University of South Carolina School of Law, and who participated in a moot court dry run of the Supreme Court arguments with attorney John Blume, called the high court's ruling "significant" and a victory for juvenile rights.  He said the court went beyond what many observers expected in extending projections to all juveniles facing life without parole.  "That was not a foregone conclusion," he said. "Here we have the Supreme Court of South Carolina saying the state will not impose life without parole on a juvenile without looking at the totality of the person in this situation."

I concur with the view of Professor Miller that this new South Carolina Supreme Court ruling in Aiken v. Byars, No. 27465 (S.C. Nov. 12, 2014) (available here), is a big win for juvenile justice advocates. Here are a few passages from the majority opinion that lead me to this view:

We conclude Miller creates a new, substantive rule and should therefore apply retroactively.  The rule plainly excludes a certain class of defendants — juveniles — from specific punishment — life without parole absent individualized considerations of youth. Failing to apply the Miller rule retroactively risks subjecting defendants to a legally invalid punishment....

We recognize that in holding the Eighth Amendment proscribes a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders, the Court did not expressly extend its ruling to states such as South Carolina whose sentencing scheme permits a life without parole sentence to be imposed on a juvenile offender but does not mandate it.  Indeed, the Court noted that because its holding was sufficient to decide the cases before it, consideration of the defendants' alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles was unnecessary.  Id. at 2469.  However, we must give effect to the proportionality rationale integral to Miller's holding — youth has constitutional significance. As such, it must be afforded adequate weight in sentencing.

Thus, we profoundly disagree with the position advanced by the respondents and the dissent that the import of the Miller decision has no application in South Carolina. Miller is clear that it is the failure of a sentencing court to consider the hallmark features of youth prior to sentencing that offends the Constitution.  Contrary to the dissent's interpretation, Miller does more than ban mandatory life sentencing schemes for juveniles; it establishes an affirmative requirement that courts fully explore the impact of the defendant's juvenility on the sentence rendered.

As evidenced by the record, although some of the hearings touch on the issues of youth, none of them approach the sort of hearing envisioned by Miller where the factors of youth are carefully and thoughtfully considered.  Many of the attorneys mention age as nothing more than a chronological fact in a vague plea for mercy.  Miller holds the Constitution requires more.

November 12, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Sunday, November 09, 2014

Florida Supreme Court dealing with Miller retroactivity issue after legislative fix

As reported in this local Florida piece, headlined "Supreme Court ponders life sentences for juveniles," the Sunshine State's top court this past week was starting to puzzle through what Miller and new state legislation mean for old juve LWOP sentences. Here are the details:

The Florida Supreme Court on Thursday heard arguments in a debate about sentencing for juveniles convicted of first-degree murder. Pointing to a 2012 U.S. Supreme Court ruling, two inmates who are serving life in prison for murders they committed as juveniles are challenging their sentences.

The ruling, in a case known as Miller v. Alabama, banned mandatory life sentences for juveniles convicted of murder. Juveniles can still face life sentences in such cases, but judges must weigh criteria such as the offenders’ maturity and the nature of the crimes before imposing that sentence.

On Thursday, attorneys for Rebecca Lee Falcon and Anthony Duwayne Horsley argued that the ruling — and a new state law that carries it out — should apply retroactively to their clients, giving them the possibility of release.

The session was lively, with most of the Florida justices’ questions directed at what the Legislature intended by passing the new law. An underpinning of the Miller ruling was that juveniles are different from adults and function at different stages of brain development, so that a life sentence without the possibility of parole violates the Eighth Amendment ban on cruel and unusual punishment....

Lawmakers this spring approved new juvenile sentencing guidelines that went into effect July 1 in response to Miller and to a 2010 U.S. Supreme Court ruling in a case known as Graham v. Florida.

The Miller and Graham rulings have spawned legal questions in Florida courts since the Graham ruling was handed down. It took lawmakers that long to agree on the sentencing guidelines, but this year — reluctant to leave it to courts to decide on a case-by-case basis — did so unanimously. That’s almost unheard of,” Justice Barbara Pariente said. “It’s the entire Legislature saying, after lots of hearings, ‘We think this is both good from a policy point of view as well as faithful to Miller.’ “

Under the new law, a juvenile convicted of a murder classified as a capital felony could be sentenced to life in prison after a hearing to determine whether such a sentence is appropriate. If a judge finds that a life sentence is not appropriate, the juvenile would be sentenced to at least 35 years. Also, juveniles convicted in such cases would be entitled to reviews after 25 years....

On Thursday, Assistant Attorney General Kellie Nielan argued that a life sentence does not violate the Constitution if it includes the option of parole. But Justice Ricky Polston said that would create new questions, due to Florida abolishing parole decades ago on new crimes. A commission still hears cases from before the time parole was abolished.

“If there’s no parole, are you asking this court to order the parole commission to hear these cases even though we don’t have the power of the purse?” Polston asked. “We can’t give them the money or authorization to do this. Are you asking us to — from the bench — require a branch of government to enact the parole commission that’s been abolished?”

“I’m asking this court to follow precedent,” Nielan said. “I understand that we have to fashion a remedy for this.” But while the new law was designed to bring Florida into compliance with the U.S. Supreme Court rulings, it doesn’t mention retroactivity.

And in July, when the Florida Supreme Court asked attorneys representing juvenile offenders to weigh in on the new law, Senate Criminal and Civil Justice Appropriations Chairman Rob Bradley, the Senate sponsor, said it was not intended to address retroactivity. “We were simply looking at a statutory scheme that was clearly unconstitutional,” the Fleming Island Republican told The News Service of Florida. “We were looking at two United States Supreme Court decisions that set forth certain parameters, and we developed a sentencing framework that complied with those two decisions. As far as how that applied individually to individual defendants, we’ll leave that to the court system.”

November 9, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, October 15, 2014

"Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane"

The title of this post is the title of this notable new paper by Brandon Buskey and Daniel Korobkin now available via SSRN. Here is the abstract:

This Article proposes a framework establishing that the United States Supreme Court’s decision in Miller v. Alabama, which forbids states from automatically sentencing juveniles to life imprisonment without any meaningful opportunity for release, must apply retroactively to hundreds of juveniles whose convictions and life sentences were already final at the time of the decision.  Such a framework is timely and critical. Although the lower state and federal courts are almost evenly divided on the question, the Supreme Court has yet to settle the divide.

The Article reviews how, absent guidance from the Supreme Court, a host of states, led recently by Michigan, have invoked the Miller majority’s statement that it was merely requiring states to follow a "certain process" before sentencing a juvenile to life imprisonment without parole.  By this reasoning, Miller is not retroactive under the Supreme Court’s federal retroactivity doctrine established by Teague v. Lane.  The Court has always applied new substantive rules retroactively under Teague, while it has never done so for a new procedural rule.

The Article rejects this "process" language as a basis for resolving whether Miller is retroactivity.  It concludes that Miller in fact has little to do with process and is instead primarily concerned with sentencing outcomes for youth.  In striking down mandatory life without parole for juveniles, Miller adapted the individualized sentencing requirement from Woodson v. North Carolina, which invalidated the mandatory death penalty.  This individualized sentencing requirement obligates states to always offer juveniles a sentencing outcome carrying the possibility of release and to consider the essential, mitigating fact of youth before imposing an irrevocable life sentence.  These obligations are inherently substantive. By contrast, Miller’s alleged procedural component is undefined and collateral to its substantive altering of juvenile sentencing. Miller therefore announces a substantive rule that must apply retroactively.

October 15, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Friday, October 10, 2014

Wyoming Supreme Court joins group deciding SCOTUS Miller ruling is retroactive

As reported in this local article, headlined "Casper man convicted of murder as a teenager now has possibility of parole," the Wyoming Supreme Court had a big ruling yesterday on juve life sentences.  In Wyoming v. Mares, 2014 WY 126 (Wyo. Oct. 9, 2014) (available here), the Court held that Miller v. Alabama announced a substantive rule that is to be applied retroactively under Teague and also that a Wyoming statute enacted last year making juves parole eligible should be applied retroactively. Here is how the unanimous opinion in Mares gets started:

In 1995, Edwin Mares was convicted of felony murder as a juvenile and sentenced to life in prison, which sentence was by operation of law the equivalent of a sentence of life imprisonment without the possibility of parole.  In 2013, Mr. Mares filed a motion, pursuant to Rule 35 of the Wyoming Rules of Criminal Procedure, to correct an illegal sentence. Through that motion, Mr. Mares contended that his sentence of life without the possibility of parole was unconstitutional in light of the United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).  This Court accepted certification of two questions from the district court.  The first question concerns the test to be used in determining the retroactivity of new constitutional rules when a judgment is challenged on collateral review.  The second question is whether Miller applies retroactively under our chosen test.

We conclude that as a result of amendments to Wyoming’s parole statutes in 2013, Mr. Mares’ life sentence was changed from one of life imprisonment without the possibility of parole to one of life with the possibility of parole in twenty-five years.  This change occurred by operation of the amended law, and the sentence Mr. Mares challenged in his Rule 35 motion therefore no longer exists.  We are aware, however, that other collateral challenges to juvenile offender sentences are pending throughout our district courts, and we therefore, in the interests of judicial economy and to avoid conflicting rulings, choose to answer the certified questions.  In response to the first certified question, we hold that the proper rule for determining whether a new constitutional rule applies retroactively to cases on collateral review is the test announced by the Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).  In response to the second question, we conclude that under a Teague analysis, the rule announced in Miller applies retroactively to cases on collateral review.

October 10, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, October 06, 2014

SCOTUS keeps rejecting important follow-up Graham and Miller issues

The Supreme Court this morning issued this lengthy order list that has 60+ pages listing case after case for which the Justices have denied certiorari review.  Not suprisingly, folks are surprised to discover that all the same-sex marriage cases brought to the court over the summer are on the cert denied list (SCOTUSblog discussion here, AP discussion here).  

Sentencing fans will also be interested to learn about another group of notable state cases on the cert denied list this morning.  A helpful reader provided this account: "For what it’s worth, the US Supreme Court declined to hear at least three virtual LWOP cases (Goins v. Lazaroff, Barnette v. Ohio, and Bunch v. Ohio). They also declined to hear at least two cases on the retroactivity of Miller, including one that was an appeal by a state (Evans v. Ohio and Nebraska v. Mantich)."  

I have long believed it will only be a matter of time before the Justices take up at least a few important follow-up Graham and Miller Eighth Amendment issues. These cert denials suggest that the Justices are content to let the issues continue to be resolved only by lower courts for the foreseeable future.  

October 6, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, August 26, 2014

Notable federal case impacted by SCOTUS Miller ruling nearly two decades after initial sentencing

This local story out of Kansas City, headlined "Judge orders new sentencing hearing for defendant in deaths of six KC firefighters," reports on a notable new legal development in an old case as a result of the Supreme Court's Eighth Amendment ruling in Miller v. Alabama.  Here are excerpts (with my emphasis added for reasons explained below):

A man serving a life sentence for his role in the 1988 explosion deaths of six Kansas City firefighters will get a new sentencing hearing, a federal judge has ruled.

U.S. District Judge Fernando Gaitan signed orders Monday setting aside the life sentence given to Bryan E. Sheppard in 1997.  Gaitan ordered probation officers to prepare a new sentencing report on Sheppard and told prosecutors and Sheppard’s lawyers to write sentencing memos to be submitted to him by Sept. 26.  After that, Gaitan will review the paperwork, confer with attorneys and set a date for Sheppard to be re-sentenced, according to federal court records.

Sheppard, who was 17 at the time of the explosion, asked for a new sentencing hearing because the U.S. Supreme Court ruled in 2012 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.’”

In February, prosecutors agreed that Sheppard was covered by the Supreme Court ruling and deserved a chance to make his case for a reduced sentence before a federal judge.

Firefighters Thomas Fry, Gerald Halloran, Luther Hurd, James Kilventon Jr., Robert D. McKarnin and Michael Oldham died before dawn Nov. 29, 1988, while fighting a fire in a construction trailer parked near the site of a U.S. 71 widening project. The trailer contained 25,000 pounds of ammonium nitrate mixed with fuel oil. It erupted in a massive explosion that ignited a second explosives trailer. The two blasts were felt for miles.

A federal jury convicted five defendants nearly nine years later. All were sentenced to life in prison.

The passage I have highlighted is noteworthy because it reveals that federal prosecutors in this case (and I am pretty sure in others) agree that the Supreme Court's Miller ruling should be applied retroactively.  As regular readers know, the issue of Miller retroactivity has split state courts and it seems only a matter of time before the SCOTUS resolves the split.

August 26, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, August 05, 2014

"The Miller Revolution"

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

In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits mandatory life without parole sentences for juveniles — even those convicted of homicide. In this Article, I argue that the Miller decision was, indeed, revolutionary and that, if lower courts and legislators heed the moral leadership of the Miller Court, they could set in motion a return to the juvenile justice model this country began with more than a century ago.

This article proceeds in three parts.  Part I traces the development of mandatory juvenile sentences in this country and identifies two key forces driving that development: the practice of transferring juvenile cases to adult court and the emergence of determinate sentencing schemes.  Part II is the heart of the article.  It examines the Miller decision, as well as its immediate predecessor cases, at a granular level.  Having done so, Part II surveys the numerous calls for an expansive reading of Miller that academics and advocates have made to date.  Part II then shifts to argue that, indeed, Miller should be read expansively, but that some corollaries of Miller are more readily defensible than others.  In particular, I argue that Miller lays the foundation for: 1) the elimination of mandatory minimums as they apply to children and 2) the creation of procedural safeguards for children facing life without parole comparable to those in place for adults facing the death penalty.  Part III addresses the likely objections to my two specific proposals and maintains that, despite the concerns of the dissenting Justices in Miller, there are several limiting principles even to an expansive reading of Miller.  Finally, by way of conclusion, I note that already there are signs of progressive juvenile justice reform at the state level consistent with the reading of Miller I propose herein and that, in some ways, the Miller revolution is already underway.

August 5, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Monday, August 04, 2014

Check your local PBS listings for "15 to Life: Kenneth's Story"

1234959_719906504692104_315759303_nPremiering this week on PBS stations is this new documentary titled "15 to Life: Kenneth's Story." The documentary discusses life without parole sentences for juvenile offenders with a focus on a Florida defendant, Kenneth Young, who at age 15 received four consecutive life sentences for a series of armed robberies. Here is part of the description of the film from this PBS website:

In June 2000, 14-year-old Kenneth Young was convinced by a 24-year-old neighborhood crack dealer — Kenneth's mother's supplier — to join him on a month-long spree of four armed robberies.  The older man planned the Tampa, Fla. heists and brandished the pistol— and, on one occasion, he was talked out of raping one of the victims by his young partner.  Fortunately, no one was physically injured during the crimes, although the trauma that resulted was immeasurable.

When they were caught, Kenneth didn't deny his part.  It was his first serious scrape with the law.  But at 15, he was tried under Florida law as an adult.  Astoundingly, he received four consecutive life sentences — guaranteeing that he would die in prison.  15 to Life: Kenneth's Story follows the young African-American man’s battle for release, after more than 10 years of incarceration, much of it spent in solitary confinement.  The film is also a disturbing portrait of an extraordinary fact: The United States is the only country in the world that condemns juveniles to life without parole.

Kenneth’s sentence was not a rarity.  As 15 to Life shows, there are more than 2,500 juveniles serving life sentences in the United States for non-lethal crimes, as well as for murder.  In the 1990s, many states reacted to a rise in violent youth crimes by amending their laws to allow more juveniles to be tried as adults.  Then, in 2010, the U.S. Supreme Court ruled in Graham v. Florida that life sentences for juveniles convicted of crimes other than murder were unconstitutional.  That made 77 Florida inmates, including Kenneth, eligible for early release.  But how would the Florida courts, historically in favor of juvenile life sentences, apply the Supreme Court decision to a decade-old case?...

At the core of the story, of course, stands Kenneth, now 26, who is candid about his crimes.  He says he has followed a path of self-improvement and is remorseful for what he did, even as he remains flabbergasted about his punishment.  (Oddly enough, in a separate trial, Jacques Bethea, the older man who organized the robberies and who carried the gun, received a single life sentence.)

At his hearing for a reduced sentence, Kenneth tells the court, "I have lived with regret every day ... I have been incarcerated for 11 years and I have taken advantage of every opportunity available for me in prison to better myself ... I am no longer the same person I used to be.  First Corinthians, Chapter 13, Verse 11 says: 'When I was a child I thought as a child.  When I became a man I put away all childish things.'  I want to turn around and apologize to my victim for what I did."

Kenneth's plight elicits mixed reactions.  While some of his victims are inclined to see him let go, others, along with the prosecutor, defend the original punishment.  Kenneth's contention that the older man coerced his cooperation by threatening his mother is dismissed, because he didn't speak up as a 15-year-old at his original trial.  And arguments that Kenneth's new sentence should take into account his rehabilitation may not convince this Florida court.

UPDATE A helpful reader noted that through September 3, folks can view the program online at the PBS website here.

August 4, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Film, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Thursday, July 10, 2014

Split Michigan Supreme Court rejects retroactivity of Miller for hundreds of juve lifers

MichThough I am on the road and behind on a number of blogging fronts, a number of helpful readers made sure I did not miss an important state Miller application from Michigan.  This local article, headlined "Michigan Supreme Court denies parole hearings to juvenile lifers," provides these basics:

The Michigan Supreme Court ruled 4-3 Tuesday that juveniles given automatic life-without-parole sentences aren’t eligible for parole — even though the U.S. Supreme Court decided in 2012 that such sentences were unconstitutional. The ruling involved three of what some estimates say are at least 350 Michigan “juvenile lifers” — the highest number in any state — who are seeking parole hearings....

A four-justice majority, in a decision written by Justice Stephen Markman, said the 2012 U.S. Supreme Court ruling does not apply retroactively to these Michigan inmates, under either federal or state court precedents.

Attorney General Bill Schuette, who has argued that parole for any of the juvenile lifers would be disrespectful to murder victims and heart-wrenching to their families, hailed the decision. “Today the Michigan Supreme Court upheld the rights of crime victims and their families,” he said....

Kary Moss, executive director of the American Civil Liberties Union of Michigan, called the decision “heartbreaking.”

“Here we have a practice that the U.S. Supreme Court has said violates the Eighth Amendment as cruel and unusual punishment ... yet the Michigan Supreme Court is unwilling ever to give the 350 juvenile lifers currently in Michigan’s prisons a parole hearing in their lifetime,” Moss said. She said the ACLU is reviewing its options for a further federal legal challenge. “We are not letting this issue drop,” Moss said....

Neither the Eighth Amendment nor the state Constitution “categorically bars the imposition of a sentence of life without parole on a juvenile homicide offender,” the court’s majority said.

Justices Mary Beth Kelly, Bridget Mary McCormack and Michael Cavanagh dissented and said the court should have ruled in favor of parole hearings. They noted that state lawmakers this year passed a juvenile sentencing law that “significantly altered Michigan’s sentencing scheme for juvenile offenders convicted of crimes that had previously carried a sentence of life without parole.”

Under the new law, judges can impose 40- to 60-year sentences in cases where prosecutors don’t ask for life-without-parole for murder and other heinous crimes....

The Michigan Catholic Conference said the decision is disappointing. “We call upon the Legislature to pass a measure that will allow for juveniles sentenced to a life term before the (2012 U.S. Supreme Court) decision to have the opportunity for a parole hearing at some point during their sentence,” said a statement issued by spokesman David Maluchnik....

State Rep. Joe Haveman called the Michigan Supreme Court’s ruling disappointing and said individuals incarcerated as juveniles “deserve a hearing to re-evaluate their case.”

“It is baffling how this can be considered equal treatment under the law,”said the Holland Republican. “I said before, and I still believe, that the Supreme Court of the United States needs to revisit this issue and clarify whether the intent was for their original ruling to apply retroactively. .... If a juvenile sentence without the opportunity for parole is cruel and unusual punishment going forward, it is also cruel and unusual punishment for those who entered prison as children, who don’t have even the faintest glimmer of hope that even if they completely change who they are, they will ever walk free. It is further cruel and unusual punishment for the judge who didn’t want to hand down a mandatory life sentence, and wanted to consider mitigating factors, but wasn’t allowed to, and now must live with the guilt of sending a child to prison for their entire adult life.”

The fully lengthy Michigan Supreme Court ruling in this matter runs 120+ pages and covers more ground than just Miller retroactivity.  The full ruling is available at this link, and I hope to have a chance to blog about the substance of both the lengthy majority and dissenting opinions in the days and weeks ahead.  

For now, I will simply assert that the Supreme Court no long has any good reason or justification for continuing to refuse to take up the issue of Miller retroactivity that has split state courts nationwide.  Now that just about every state with a large number of mandatory juve LWOPers has ruled on this issue, this matter has plainly "percolated" more than sufficiently and the resulting jurisprudential split has profound consequences for many hundreds of juve lifers in many states.    

A few (of many) prior posts on Miller retroactivity:

 

July 10, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, July 03, 2014

Hawaii legislatively eliminates all juve LWOP sentences for all crimes

As reported in this AP piece, headlined "Hawaii ends juvenile life sentences without parole," a new piece of legislation means and and all "life sentences without parole for minors are now abolished in Hawaii." Here are the basics:

Gov. Neil Abercrombie signed a bill Wednesday recognizing that children convicted of first-degree murder should be treated differently than murderous adults.

Advocates say children are impressionable and sometimes can't get out of horrific, crime-ridden environments. Honolulu prosecutors argued the measure isn't fair to people who are born weeks apart from slightly younger perpetrators of the same crime.

July 3, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, June 25, 2014

New Sentencing Project analysis details states' sluggish response to Miller

The Sentencing Project has released this notable new briefing paper reviewing state responses to the Supreme Court's Miller ruling that the Eighth Amendment prohibits mandatory juve LWOP sentencing schemes. The title and introduction to the paper highlights its themes:

Slow to Act: State Responses to 2012 Supreme court mandate on life without parole

Two years have passed since the Supreme Court, on June 25, 2012, ruled that juveniles cannot be automatically sentenced to life without a chance at parole, striking down laws in 28 states.  A majority of the states have not yet passed any statutory reform.  Of the states that have done so, many require decades-long minimum sentences and few have applied the changes retroactively.

Here are a few data snippets from the body of the paper:

Thirteen of the 28 states that previously required LWOP for juveniles convicted of homicide offenses have since passed laws to address their sentencing structures, while 15 have not....

Statutes passed since Miller set the minimum sentence for juveniles convicted of homicide offenses between 25 and 40 years.... In Nebraska and Texas, the minimum sentence for juveniles convicted of homicide is 40 years.  Pennsylvania, Louisiana and Florida have set the minimum sentence at 35 years.  Arkansas, Delaware, Michigan, North Carolina, Washington, and Wyoming will sentence juveniles to minimum terms ranging from 25 of 30 years....

Miller left unstated whether the estimated 2,000 people already mandatorily sentenced to life without parole for crimes committed as juveniles could be resentenced. Most of these juveniles are denied the opportunity to apply for a new sentence.  Of the 13 states that have passed legislation, only four -- Delaware, North Carolina, Washington, and Wyoming – allow for resentencing among the current JLWOP population....

State Supreme Courts in Illinois, Iowa, Massachusetts, Mississippi, Nebraska, and Texas have ruled that Miller applies retroactively; some people will attain a new sentencing hearing.  Supreme Courts in Louisiana, Minnesota, and Pennsylvania have ruled that Miller does not apply retroactively.  Cases pushing the question of retroactivity remain before Supreme Courts in Alabama, Colorado, Florida, and North Carolina; these and other states have not yet issued rulings.

June 25, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, June 20, 2014

"A Suggested Minor Refinement of Miller v. Alabama"

The title of this post is the title of this new Comment by Devina Douglas now available via SSRN. Here is part of the abstract:

While some heralded the recent United States Supreme Court’s Miller v. Alabama decision — forbidding mandatory life without parole (LWOP) sentences for juveniles — as a step in the right direction for protecting the interests of juveniles within the adult criminal justice system, the decision is also a step backwards for the ability states to sentence their criminals as they sees fit....  This Comment argues the Court spoke too broadly applying its rule to all minors.

This essay will first summarize the Supreme Court’s previous sentencing precedent, the cases that paved the way for the Miller decision — establishing that “children are different,” — and then the Miller decision.  Next, it will highlight the troubles lower courts have faced in trying to implement the decision, the flaws in, and alternative interpretations of, the science relied upon, and then turn to the question of whether juveniles over the age of sixteen have reached sufficient maturity as to allow the system to hold them as accountable as adults for homicide crimes.  In response to the likelihood that those sixteen and over are sufficiently mature, this Comment will propose a way to preserve deference to the various state legislatures’ sentencing decisions while addressing increasing concern that juveniles should be treated differently.  The Miller pre-sentencing evaluation factors should only apply categorically to those under sixteen, and those sixteen and seventeen in cases where the juvenile offender is quite young or possesses what the Court calls twice-diminished culpability: where the system convicted the offender under an aiding and abetting or accomplice theory, or felony murder.

June 20, 2014 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 (2) | TrackBack

Wednesday, June 11, 2014

Fascinating account of post-Miller realities for juve killers with new chance for eventual freedom

At Slate, Beth Schwartzapfel has this terrific new essay about what might be called "life after Miller" for juvenile murderers who now have a possible chance for release from a life prison sentence as a result of the Supreme Court's modern Eighth Amendment jurisprudence. The piece merits a full read, and it carries the headline, "'Where Do You Think That Rage Came From?' To get parole, people sentenced to life as juveniles must reckon with their pasts." Here is how the piece gets started:

Last week, the Massachusetts Parole Board announced that Frederick Christian might go home.  He would be one of the first people to be released based on the Supreme Court’s 2012 ruling, in Miller v. Alabama, finding mandatory life sentences for juveniles unconstitutional.

Christian was 17 when he was involved in a drug robbery that ended with the shooting deaths of two men.  Now he is 37.  In prison, he got his GED, enrolled in violence prevention programs, and converted to Islam.  The five-times-a-day prayers, he said, “taught me discipline.”  He has maintained a steady job cleaning the prison, gone regularly to Narcotics Anonymous and Alcoholics Anonymous meetings, and helped to grow vegetables for the homeless.

Across the country, some 2,500 people are serving life without parole sentences for crimes they committed as juveniles.  Some have already served 30 years or more.  Yet it’s likely few of them will get out.  Before he can be paroled, Christian still has to complete a behavior modification program and live for a year in a minimum security prison. And his hearing is one of only a handful like it around the country since Miller.  The Supreme Court said that the young people’s capacity to mature and change entitle them to a second chance.  But lower courts, legislatures, and parole boards have more incentive to maintain the status quo than to show mercy — to follow the letter of Miller but not its spirit.

That’s because letting more prisoners like Christian go free requires a return to an idea that the country largely abandoned a generation ago: that criminals can be rehabilitated, and there is a limit to just retribution.  As costs rise for the growing prison population, legislators from every corner of the political map are now calling for a softening of sentencing laws.  But legislation about the future is one thing.  Giving a second chance to people who have already been sentenced for doing terrible things is another.

June 11, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Tuesday, June 10, 2014

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, June 09, 2014

Two years after Miller, Iowa still muddling through juve sentencing

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

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

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

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

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

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

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

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

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

Friday, May 09, 2014

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

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

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

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

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

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

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

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

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

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

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

Tuesday, May 06, 2014

California Supreme Court decides Miller demands altering presumption for juve LWOP

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, April 15, 2014

NY Times editorial laments "Echoes of the Superpredator"

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

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

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

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

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

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

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

Recent related post:

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

Saturday, April 12, 2014

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

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

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

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

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

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

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

Wednesday, April 09, 2014

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

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

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

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

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

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

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

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

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

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

Tuesday, April 08, 2014

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

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

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

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

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

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

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

Some older related posts:

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

Friday, April 04, 2014

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

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

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

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

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

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

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

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

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

Prior related post:

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

Monday, March 24, 2014

What procedural rights should juve killers have at parole proceedings?

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

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

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

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

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

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

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

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

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

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

Thursday, March 20, 2014

Illinois Supreme Court deems Miller ruling substantive and thus retroactive

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

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

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

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

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

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

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

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

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

Saturday, March 15, 2014

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

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

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

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

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

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

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

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

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

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

Wednesday, March 12, 2014

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

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

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

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

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

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

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

Friday, March 07, 2014

Florida Supreme Court hears arguments on Miller retroactivity and application

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, March 05, 2014

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

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

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

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

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

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

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

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

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

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

Wednesday, February 26, 2014

"The Supreme Court and the Rehabilitative Ideal"

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

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

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

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

Tuesday, February 11, 2014

"The Illusory Eighth Amendment"

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

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

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

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

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

Sunday, February 09, 2014

Nebraska Supreme Court gives Miller retroactive impact with new statutory law

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

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

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

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

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

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

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

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

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

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

Wednesday, February 05, 2014

Michigan legislature nearing enactment of Miller fix without retroactivity

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

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

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

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

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

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

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

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

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

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

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

Friday, January 24, 2014

Notable early Massachusetts legislative response to elimination of juve LWOP

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

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

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

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

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

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

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

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

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

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

A few other recent related posts:

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

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.

January 4, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (22) | TrackBack

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.”

January 2, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (23) | TrackBack

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