Wednesday, May 19, 2010

Originalist Graham crackers: would the Eighth Amendment ratifiers really be indifferent about LWOP?

GC Having now had a chance to read and reflect on Justice Thomas's dissent in the Graham Eighth Amendment case, I am back to using the tasty term Graham crackers to flag what I view to be the really deep and really hard (and thus really tasty) intellectual questions that Graham raises.  Specifically, as flagged by the title of this post, I am wondering if all originalists agree with Justice Thomas's seeming conclusion that the LWOP sentence at issue in Graham is obviously constitutionally sound.  There are two aspect of this question I wish here to unpack.

1.  Might an originalist see extreme incarceration as a worrisome "method" of punishment?:   A key move in Part II of Justice Thomas's dissent is to assert that Eighth Amendment proportionality analysis is an improper jurisprudential creation by the modern Supreme Court.  According to Justice Thomas, it is "now well established that the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment — specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted."  Dissent at 3-5 (emphasis in original; cites omitted).  In this discussion, via a parenthetical to a legal history cite, Justice Thomas thereafter notes that "crimes in the late 18th-century colonies generally were punished either by fines, whipping, or public 'shaming,' or by death, as intermediate sentencing options such as incarceration were not common."  Id.

Significantly, Justice Thomas does not take a moment to connect these historical dots before launching into a (relatively effective) attack on aspects of the majority's proportionality work.  That is, though he notes that the so-called "intermediate sentencing option" of incarceration was uncommon at the time of the Constitution was written, Justice Thomas never explains or explores whether the Framers and/or ratifiers of the Eighth Amendment might have considered permanently locking a person in a cage for his entire life to be a "torturous method of punishment" that is akin to punishment "considered cruel and unusual at the time the Bill of Rights was adopted." 

In modern times, there is a broad tendency to assume that death is obviously a more extreme punishment then LWOP.  Whether this is true as a modern reality, I do not think it would be so obviously true for the Framers and/or ratifiers of the Eighth Amendment.  After all, Patrick Henry famously cried "Give me liberty or give me death!"  Moreover, there is little doubt that certain forms of extreme incarceration could readily become a "torturous method of punishment."  For example, imagine if a legislature as a cost-cutting measure ordered that prisoners who committed the certain crimes should receive only one serving of bread and water per day or that certain offenders should be kept permanently in a minuscule cell without any light or ventilation or toilet facilities.  I suspect some (many? most?) originalists would think this kind of use of incarceration as method of punishment would be akin to what the Framers sought to prevent via the Eighth Amendment.  Is it too mcuh of a stretch, then, for some originalists to view use of LWOP, which tells an offender he will never again have even a chance to live outside a cage and will only be able to leave prison via a coffin, as a potentially "torturous method of punishment"? 

2.  Might an originalist see LWOP as a structural constitutional problem?:  Thinking about Justice Thomas's originalist instincts against the backdrop of the second-look ideas in the Graham concurrences leads me to another (originalist?) point.  I have been lately thinking about the Eighth Amendment in light of the Constitution's obvious affinity for separating government powers and structural checks and balances.  Of particular note, the Framers through the Reprieves and Pardons Clause, granted the U.S. President what might be called broad criminal justice second-look power.  Indeed, this Clause has been interpreted to mean that Congress cannot pass a law that in any way restricts the President's clemency authority.

If an originalist were now to view parole boards as the modern loci for historic clemency powers --- and that is a big IF --- such an originalist might have structural concerns with any legislative efforts to entirely eliminate a parole board's authority to give relief to certain offenders.  Stretching these concepts may bring one perhaps problematically close to claiming that the Constitution creates a kind of right to parole in all cases, and this would seem to be a hard (originalist?) argument to make truly compelling.  But I do think there is something to the idea that the Framers would be uniquely troubled by the way LWOP sentences  concentrate permanent power over certain types of offenses or offenders; in turn, I think some originalists could find especially appealing at least Chief Justice Roberts' sense that appellate judges must sometimes use the Eighth Amendment as a kind of constitutional backstop for extreme imprisonment punishments.


Because I am not a true originalist, I may be crazy to even try to unpack my instincts that there is more to say about originalism and the Eighth Amendment than what gets said by Justices Scalia and Thomas in this setting and others.  But, perhaps because some true originalists may inclined to read and respond to my musings here, I hope that what I have said in this post could start a dialogue about originalism and modern punishment practices.

Some recent related posts with Graham analysis:

UPDATE: In the comments, Sara Mayeux points to this terrific post of hers from a few days ago at Prison Law Blog, where she makes these trenchant points (among others) that echo my musings in point 1 above:

Both Stevens and Thomas ... seem to assume that 18th century and 21st century beliefs about the hierarchy of punishments are basically the same, even if beliefs may change about where on that hierarchy punishment stops being “decent” and starts being “cruel and unusual” (and even if Stevens and Thomas disagree about whether that move matters for Eighth Amendment jurisprudence).  That is, both justices seem to assume that, just like a 21st century person, an 18th century person would obviously have thought death was worse than LWOP....

Here’s the big problem: I suspect that late 18th century people would have had simply and utterly no way to conceive of LWOP, much less place it on a hierarchy with the death penalty.  Some jurisdictions used prison terms as punishment by the late 18th century, but it wasn’t yet the default (not until about 1810 in Northern states and later in other regions), sentences weren’t nearly as long as they are today, there was no such thing as “parole,” prisons were very different sorts of institutions, etc., etc., etc.  I actually wonder if a late 18th century person might not have thought LWOP crueler than a quick execution, or at any rate very bizarre (why not just end the child’s life if he is truly irredeemable, is what I expect an 18th century person might have thought), but I don’t study that period enough to be confident in that.  I do know enough to be confident that to answer this question satisfactorily would take a lot more research into late 18th century beliefs about crime, punishment, the nature of life and death, etc., than just assuming that whatever we today think is a “harsher” punishment is also what a person in an entirely different time and place would think.

In another related originalist reference, a helpful reader reminded me that NYU's Center on the Administration of Criminal Law filed this amicus brief which sought to provide some originalist arguments in favor of Sullivan and Graham.  The NYU amicus brief's principal histoircal point is that "the elimination of proportionality review in the noncapital context would be inconsistent with the Eighth Amendment's tect and original meaning." 

May 19, 2010 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, May 18, 2010

Fasincating on-line discussion of Graham ruling from the New York Times

I am pleased and intrigued to see that the New York Times has this spectial on-line section with four astute criminal justice commentators providing their views on the Supreme Court's work yesterday in Graham. The heading for this section is "Redefining Cruel Punishment for Juveniles," and here is a list of the commentors with links to their pieces:

All of these relatively short pieces are worthy of a close read, and there are astute insights (and turns of phrases) in all these commentaries.  But I especially want to highlight these interesting comments from the end of Paul Butler's piece:

The breaking news is Chief Justice Roberts. He broke away from his usual conservative running buddies to agree with the more progressive justices that the sentence in this case was unconstitutionally harsh. For liberals who thought that the chief justice could never be rehabilitated, judicially speaking, now there’s a glimmer of hope.

All of this helps make the liberal case for nominee Elena Kagan. President Obama’s stated hope is that Ms. Kagan would bring to the Supreme Court the consensus-building skills she displayed as dean of Harvard Law School. Though Justices Alito, Thomas and Scalia remain lost causes, it might be worthwhile for Justice Kagan to treat John Roberts to a mocha frappuccino every now and then.

This case also sends a message that President Obama knows how to pick justices with his same progressive values. Liberals had some concern about where Justice Sotomayor, the former prosecutor, would be on criminal justice issues, but in this case she signed a separate opinion with the two most liberal members of the court. That opinion basically says “Clarence Thomas, shame on you!”

So maybe Ms. Kagan’s liberal critics should chill out some. The president, when he interviews prospective Supreme Court nominees, seems to be doing a fine job of either speaking persuasively or listening deeply.

May 18, 2010 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases | Permalink | Comments (4) | TrackBack

Monday, May 17, 2010

Recapping my coverage of today's significant SCOTUS action

Since I have done a lot of posts (too many?) on today's significant sentencing rulings by the Supreme Court, I thought it might be useful in this final post of the day to recap my coverage via these links:

On the Graham juve LWOP Eighth Amendment ruling:

On the Comstock federal sex offender civil commitment ruling:

May 17, 2010 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Comments from EJI about the Graham decision and Joe Sullivan's case

Among the folks who likely should get significant "credit" for today's landmark Eighth Amendment ruling in Graham are Bryan Stevenson and the other folks at the Equal Justice Initiative who have kept a bright spotlight on the juve LWOP issue ever since the Supreme Court's juve capital decision in Roper.  EJI represented Joe Sullivan in his appeals up through the Supreme Court, and the folks there have done important legal and policy work on these issues that surely played a huge role in today's events.  And though the Justices ended up DIGing Joe Sullivan's case, the majority opinion in Graham used the facts of Joe Sullivan's case to justify its holding; I feel confident that SCOTUS granted cert on this issue in the first instance in large part because of the extraordinary advocacy efforts of EJI and Bryan Stevenson.

On its website, EJI now has this press release about the decision, which describes the ruling as "historic."  (Side questions for SCOTUS adjective mavens:  is it more impressive for a SCOTUS opinion to be called landmark or historic?  Which is a better label for Graham?)  In addition, the folks at EJI sent me a note about Joe Sullivan's situation via e-mail which I reprint here:

A number of journalists have asked about how today's decision in Graham v. Florida applies to Joe Sullivan and the other juvenile offenders serving life in prison without parole sentences in non-homicide cases.  Here is background information on that question from attorneys for Joe Sullivan at Equal Justice Initiative:

The Supreme Court’s decision today in Graham v. Floridacreates a categorical rule barring life imprisonment without parole for children under age 18 who commit a non-homicide offense.  Joe Sullivan, and other juvenile offenders sentenced to life in prison without parole for nonhomicide crimes, are entitled to relief under today’s ruling.  The Court “dismissed as improvidently granted” rather than issue a separate decision in Joe Sullivan’s case because it was unnecessary: the Court did not draw a line between young kids and older kids, and the ruling in Graham applies to Joe Sullivan.  Joe’s case is discussed in the Graham decision as an example why the categorical rule created by the Court is necessary.  Every categorical rule of the sort announced by the Court today has been held retroactive because it puts outside of governmental authority the ability to impose this punishment.  There should be no confusion that Joe Sullivan’s life in prison without parole sentence has been invalidated by today’s decision.

The procedural issue involved in the Sullivan case was whether the Court’s decision in Roper v. Simmons, barring the death penalty for juveniles, applied to cases involving life in prison without parole as a “new rule” that would give more Joe time to appeal his sentence.  Bryan Stevenson, counsel for Joe Sullivan, said the Court unquestionably held that it did, but even if it did not, Grahamitself is a new ruling that permits Joe and all other juveniles sentenced to life without parole for nonhomicides to appeal their sentences and entitles them to a “realistic opportunity to obtain release.”

May 17, 2010 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

The political and PR benefits for SCOTUS (and others) from Comstock and Graham coming down together

Anyone who thinks the Justices of the Supreme Court are not attuned to issues of politics and public relations needs to explain to me why the anti-sex-offender ruling in Comstock just happened to be handed down on the same day as the pro-defendant ruling in Graham.  For a host of reasons, I suspect the Justices made a conscious effort to release these opinions together (and, to quote a famous Seinfeld episode, "Not that there's anything wrong with that!"). I am not sure there is any reason to lament this PR strategic decision).  Consider how the Wall Street Journal announced today's SCOTUS work via my e-mail in-box as a "news alert":

The Supreme Court said the U.S. can keep "sexually dangerous" prisoners in custody past the completion of their sentences, overruling arguments that only states hold such power.  The ruling was 7-2, with Justices Antonin Scalia and Clarence Thomas in dissent.

In a separate case, the court ruled 5-4 that teenagers may not be locked up for life with no chance of parole if they haven't killed anyone. (Correction: A previous alert said the Supreme Court ruled 6-3 on the juvenile-parole case.)

For those who does not follow the Supreme Court and/or sentencing issues closely, I suspect the first reaction to this breaking "news alert" was "seems like the Supreme Court is being pretty sensible."  Thanks to Comstock coming down with Graham, we learn that "sexually dangerous" prisoners can be kept locked up before we learn that teenagers cannot be "locked up for life with no chance of parole if they haven't killed anyone." 

For those especially eager to reflect on the Justices' as PR and political strategists, one might also focus on the fact that the juve who committed a sexual offense, Joe Sullivan, got his case DIGed today.  Thus, the Justices found a way not only to make their landmark Eighth Amendment ruling the "second" SCOTUS story of the day, they also made sure that individuals (and legislators) most focused on how we deal with sex offenders paid attention principally to the pro-government ruling in Comstock.

May 17, 2010 in Graham and Sullivan Eighth Amendment cases, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (33) | TrackBack

Doesn't the logic and language of Graham put juve LWOP for "lesser" homicides on thin ice?

The opinion for the Court in Grahamstates at the outset and stresses in various settings that the ruling is directly applicable only to nonhomicide offenses.  Nevertheless, the logic and language of the opinion puts special emphasis on the diminished culpability of juvenile offenders as a class and on the unique severity of a life without parole prison sentence.  Consider, for example, this paragraph toward the end of the opinion for the Court in Graham:

Terrance Graham’s sentence guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.

Obviously, this paragraph mentions that the juvenile defendant's severe LWOP punishment was "based solely on a nonhomicide crime."  Still, if we replace the word "nonhomicide" with, say, "less serious homicide," the paragraph retains all its force.  Consequently, I suspect that lawyers for any and all juvenile offender sentenced to LWOP for a killing that was not first-degree murder may argue that the logic and language of Graham readily extended to cases involving lesser homicides.

I am not sure if there are many (or even any) juvenile killers who are serving LWOP sentences after conviction for homicides that did not qualify as first-degree murder under applicable state law.  I am sure that, if such sentences are currently in place, lower courts are going to have to decide whether and how to give effect or to cabin some of the broader logic and language used by the Court in Graham.

Early posts on the Graham ruling:

May 17, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Offense Characteristics | Permalink | Comments (6) | TrackBack

Some notable quotables from the opinion of the Court in Graham

Based on my first read of the Supreme Court's Graham opinion, I have a feeling I will be reading the opinion dozens, if not hundreds, of more times; in Graham, there is so much "there there."  Here are just a few of the many lines from just Justice Kennedy's pinion for the Court that jumped out during my first read (with cites left out):

[Our] cases underscore the essential principle that, underthe Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes....

The concept of proportionality is central to the Eighth Amendment....

Actual sentencing practices are an important part of the Court’s inquiry into consen-sus. Here, an examination of actual sentencing practices in jurisdictions where the sentence in question ispermitted by statute discloses a consensus against its use....

The judicial exercise of independent judgment requires considerationof the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question....

Roper established that because juveniles have lessened culpability they are less deserving of the most severepunishments....  No recent data provide reason to reconsider the Court’sobservations in Roper about the nature of juveniles.  As petitioner’s amici point out, developments in psychology and brain science continue to show fundamental differ-ences between juvenile and adult minds....

The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms ofpunishment than are murderers....

It follows that, when compared to an adult murderer, ajuvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the of-fender and the nature of the crime each bear on the analysis....

[L]ife without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender’s life by a forfeiture that is irrevocable.  It deprives the convictof the most basic liberties without giving hope of restora-tion, except perhaps by executive clemency — the remote possibility of which does not mitigate the harshness of the sentence....

Incapacitation cannot override all other considerations, lest the Eighth Amendment’s rule against disproportionate sentences be a nullity....

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.  What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance.  It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life.  Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives.  The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life.  It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society....

An offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.

May 17, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Other than the holdings, what are the biggest "stories" of the Graham and Comstock rulings?

I have barely skimmed the Graham and Comstock rulings, and already I have so many thoughts about the holdings and their potential consequences (especially regarding future non-capital Eighth Amendment litigation).  But, before going too blog crazy, I am planning to head to a local coffee shop so I can read the full opinions without too many distractions and without getting my own views colored too much by what others start saying about these cases.  Yet I wanted to do this quick post to encourage readers to opine on what they think are some of the biggest "stories" emerging from the Graham and Comstock rulings.

My first take concerns the votes and authorship of various opinions in Graham.  First, that Justice Kennedy wrote the opinion for the Court is notable and important for various political reasons, and the fact that Chief Justice Roberts voted for the defendant (in order to make the head-count 6-3) seems to me to be especially notable and important for similar reasons.  Second, that Justice Sotomayor (and not Justice Breyer) joined the separate opinion of Justice Stevens strikes me as notable and important for jurisprudential reasons.

I could go on and make some similar observations about Comstock (which was authored by Justice Breyer with a Justice Kennedy concurrence and a Justice Thomas dissent).  But now I have to actually go read these opinions carefully (and then read whatever readers have to say in the comments) concerning what they think are the most important parts to what the Supreme Court did today.

Early posts on the Comstock and Graham rulings:

May 17, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Can and should Florida's Governor commute the sentence of Joe Sullivan in light of the SCOTUS Graham ruling?

I will have lots and lots of coming commentary of the Graham ruling ASAP, but I want to start the discussion with some debate over the likely and appropriate fate of Joe Sullivan's sentence.  As this prior post briefly explains, due to procedural complications with his case, Sullivan may not be able to get relief from his LWOP sentence in Florida state courts.  But, in light of the substance of the Supreme Court's Graham ruling, I have to think some folks in Florida should be a bit troubled keeping his sentence in place. 

Consequently, I wonder if Florida's Governor has the authority and the good sense to get Joe Sullivan's case out of the courts by providing relief through clemency.  This issue strikes me as interesting and important not only because of how it impact Sullivan's fate, but also concerning how other juveniles (or others) now serving LWOP sentences might look to use the Graham ruling to support a pitch for clemency in lieu of (or in addition to) making a formal legal Eighth Amendment argument in state or federal court.

UPDATE:  A helpful reader sent me this note in response to my post here:

I wanted to point you to today's order in Sullivan [available here], which as you can see does not mention any procedural bar and is not a procedural ruling.  There was no need to issue a separate decision in Sullivan because Joe Sullivan is entitled to relief under the categorical, retroactive ruling in Graham.

To the extent that it seems clear that Graham ensures that Joe Sullivan will get relief in the courts, my comments in this post about the PR benefits that SCOTUS gets from simply doing a DIG in Sullivan are even more important.

May 17, 2010 in Clemency and Pardons, Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

SCOTUS finds Eighth Amendment problem with juve LWOP in Graham

The Supreme Court has handed down its biggest Eighth Amendment ruling in non-capital cases in a long time, and it is a victory for the defendant.  Here is what SCOTUSblog has to say so far:

The Court, in an opinion again written by Kennedy, rules that it is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder. The opinion is based on the Eighth Amendment's ban on "cruel and unusual" punishment.

The vote is 6-3, reversing and remanding Graham v. Florida.

Justice Thomas dissents, joined by Scalia and in part by Alito. Alito dissents in an opinion for himself. Justice Stevens concurs, joined by Ginsburg and Sotomayor, even though the three of those Justices also joined the Kennedy majority opinion. Chief Justice Roberts joins in the judgment only. The decision does not cover the Sullivan case.  [Here is] a link to the Graham opinion....

The Court has handed down a per curiam order in Sullivan v. Florida.  The writ of cert. is dismissed as improvidently granted.... Presumably the young person involved in this case, who was 13 at the time he committed his crime, would benefit from the Court's ruling today in Graham....

It is not clear that the 13-year-old, Joe Harris Sullivan, can benefit from the ruling in the case involving Terrence Graham because Florida courts had turned aside Sullivan's Eighth Amendment challenge for procedural reasons.  It will now be up to Florida courts to determine whether Sullivan can now make a new challenge based on the Graham decision.

May 17, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, April 21, 2010

SCOTUS to keep us waiting for juve LWOP rulings in Graham and Sullivan

As detailed in this post late last week, I thought there was a real chance that the Supreme Court might this week finally issue rulings in Graham and Sullivan, the two juve LWOP Eighth Amendment cases from Florida which were argued nearly six months ago.  But, as detailed here at How Appealing, the three rulings handed down today by the Justices were all concerning civil issues, and I believe it is unlikely we will get any more opinions issued until at least next week.

Though I am disappointed, I am not surprised that the Justices are taking their time with Graham and Sullivan.   As I have explained in prior posts, these cases have the potential to be the most consequential non-capital sentencing Eighth Amendment rulings in the Court's history.  Getting tese rulings done right is a lot more important than getting them done quickly.  In addition, I suspect that there will be multiple opinions in these cases no matter how they get resolved.  Indeed, the continuing delay reinforces my gut feeling that we may get four or five or even more separate opinions in these important Eighth Amendment cases.

April 21, 2010 in Graham and Sullivan Eighth Amendment cases, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, April 16, 2010

Could we get the big juve LWOP Eighth Amendment rulings from SCOTUS next week?

In this post back in October, I flagged what were then the 10 biggest cases to watch for sentencing fans in the new SCOTUS term.  The only cases on this list that were argued back in 2009 and that are still not resolved are Graham and Sullivan, the two juve LWOP Eighth Amendment cases from Florida.  With this new SCOTUSblog post indicating that the Justices will be handing down opinions on both Tuesday and Wednesday of next week, I am thinking that we might not have to wait much long for rulings in these cases.

That said, given that Graham and Sullivan were argued in November and that there are still some outstanding cases that were argued in October (like the Stevens animal porn case), it is anything but certain that we will get a big Eighth Amendment ruling next week.  In addition, it is certainly possible that we could instead get rulings in the worth-watching sex offender cases like Comstock and Carr.  In short, SCOTUS fans, stay tuned.

April 16, 2010 in Graham and Sullivan Eighth Amendment cases, Who Sentences? | Permalink | Comments (10) | TrackBack

Thursday, April 15, 2010

A life sentence for a woman who forces a teenage boy to touch her breasts!?!?!

The exclamation/question that titles this post is my initial response to this remarkable local press story that a helpful student sent my way.  This press report discussed a remarkable local sentence handed down earlier this week in Nevada under the headline "T.F. woman sentenced to life for lewdness charge." Here are the remarkable details:

A Twin Falls woman convicted of forcing a 13-year-old boy to touch her breasts was sentenced Monday to life in prison. Michelle Lyn Taylor, 34, was convicted of lewdness with a minor under 14 in November after a week-long trial in Elko County, Nev., District Judge Mike Memeo’s courtroom.

With the conviction, Taylor faced a mandatory life sentence, and Memeo set parole eligibility after 10 years, the minimum sentence. If released on parole she must register as a sex offender and will be under lifetime supervision.

The district attorney’s office did not offer a plea agreement in the case, said public defender Alina Kilpatrick, who argued the sentence is unconstitutional and doesn’t fit the crime. “The jury was not allowed to know the potential sentence in this case and the Legislature doesn’t know the facts,” she said, alluding to the minimum sentence set by the Legislature in Nevada Revised Statute.

Kilpatrick said despite the parole eligibility after 10 years, there should be no mistake that it’s a life sentence for Taylor.  “She is getting a greater penalty for having a boy touch her breast than if she killed him,” she said.

After he sentenced her, Memeo said he was bound by state statute to impose the life sentence, but said he isn’t sure why the prosecution chose to charge her under that statute. District Attorney Gary Woodbury could not be reached for comment.

Taylor, who lived in Jackpot, Nev., at the time of the crime, kissed a friend’s child, forced him to touch her breast and asked him to have sex with her in February 2008.  Taylor claimed she was intoxicated and doesn’t remember what happened that night.  She told jurors she roughhoused with the boy, but didn’t force him to touch her inappropriately.

Based on the facts stated here, this case sounds like a remarkable test case for the reach and limits of the Eighth Amendment in non-capital punishment settings.  But I cannot help but think there must be more, perhaps a lot more, to this story.

April 15, 2010 in Examples of "over-punishment", Graham and Sullivan Eighth Amendment cases, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (53) | TrackBack

Monday, March 15, 2010

"More States Rethinking Life Sentences for Teens"

The title of this post is the headline of this new piece in The National Law Journal.  Here is how it gets started:

Their lawyers have long urged juries to give juvenile defendants a second chance. Now a growing number of states are rethinking the wisdom of sentencing teenagers to life in prison. Two states have recently passed -- and at least 11 states are considering -- legislation that would end life sentences for those under 18 years old or, more generally, restrict charging juveniles as adults.

The U.S. Supreme Court will also have something to say on the issue. In two Florida cases argued in November, the high court is considering whether a life sentence without parole for juveniles who have committed crimes other than murder violates the U.S. Constitution's prohibition on cruel and unusual punishment.

But state lawmakers are not waiting to hear the justices' opinion. Although efforts to abolish juvenile-lifer laws are nothing new, the legislators' willingness to side with criminal defense lawyers against prosecutors is a change. And a key reason appears to be new scientific evidence that adolescents are simply not capable of weighing their actions like adults.

March 15, 2010 in Graham and Sullivan Eighth Amendment cases, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Thursday, March 11, 2010

"How Young Is Too Young to Face Life in Prison?"

Ht_Jordan_Brown_100311_mn The title of this post is the headline of this new effective piece from ABC News and Good Morning America.  Here is how it starts:

The father of a 12-year-old Pennsylvania boy charged last year with murder says his son is "just an all-around good kid" who doesn't deserve to face life in prison.

A judge will soon decide whether or not Jordan Brown should be tried as an adult for the murder of his soon-to-be stepmother, and face a possible life sentence. The case is at the crux of a national debate on juvenile justice, playing out in a small-town courthouse.

Before his arrest, Jordan was the quarterback of the Pee Wee football team and a good student. His dad says he was "big into sports" with "a lot of friends in school."

But on Feb. 20, 2009, his father's fiancée, Kenzie Houk, 26, was found dead, shot in the head in the family's rural farmhouse in Western Pennsylvania. She was eight-and-a-half months pregnant at the time.

Prosecutors quickly built a case against Jordan, then 11, accusing him of using his shotgun -- a hunting gift from his dad -- to fire one fatal bullet before getting on the bus for elementary school. Within 24 hours, the fifth-grader was arrested for murder. When Chris Brown saw his son being taken away by police, the boy was "scared, frightened, [and] crying."

"Jordan's never been away from me for any length of time since he was born," he recalled thinking. "He was terrified, terrified." Brown said his son "looked like a baby" when he was incarcerated. "He looked like a baby in an orange jumpsuit in an adult jail."

Brown continues to proclaim his son's innocence. But the family of Houk has reportedly described Jordan as angry and profoundly jealous of the fact that the new woman in his father's life was about to have a son, to be named Chris after his dad. Jordan was charged with two counts of homicide. Chris Brown believes his son comprehends what he stands accused of, "but he doesn't appreciate the magnitude of it. He's simply too young."

Too young, many argue, to face the prospect of an adult sentence. Kids charged with murder in Pennsylvania are automatically considered adults and only a judge's decision can move the trial to junvenile court.

If convicted, the two routes have radically different sentences, either life in prison without parole, or juvenile detention and freedom with no record at age 21. Due to tough-on-crime laws, Pennsylvania has more juveniles sentenced to life in prison without parole than any other state.

March 11, 2010 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, March 08, 2010

New ACS issue brief making the case against juve LWOP

I just got word of this new issue brief from the folks at the American Constitution Society, which is titled "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole." This piece is authored by Jody Kent and Beth Colgan, and here is how ACS summarizes the work:

This Issue Brief is particularly timely in light of the Supreme Court’s consideration of the constitutionality of juvenile life sentences without the possibility of parole in two cases, Sullivan v. Florida and Graham v. Florida.  Ms. Kent and Ms. Colgan examine why, in their opinion, such sentencing practices represent deeply flawed public policy.  As the authors explain:

"Regardless of whether the Court extends [its precedent acknowledging that juveniles are different from adults] to find the sentencing of youth to life in prison without the possibility of parole unconstitutional, advocates for youth have called for reform of extreme sentencing policies, on the basis that they grossly undermine rational, fair, and age-appropriate treatment of youth."

Ms. Kent and Ms. Colgan discuss the well-established principle that youth are different from adults, and explain how this principle is reinforced by adolescent brain development research. The authors address and dismiss arguments that harsh sentencing is necessary to protect public safety, as well as highlight troubling racial disparities and inconsistent sentencing application.  In addition, they describe how such sentencing functions to undermine the United States’s moral standing, given that the United States is the only country in the world to sentence offenders under the age of eighteen to life without parole.  Finally, the Issue Brief concludes with Ms. Kent and Ms. Colgan proposing an alternative to the practice of sentencing youth to life in prison without the possibility of parole --- creation of a system allowing periodic review of sentences to determine whether individuals continue to pose a threat to society or may be returned to communities as productive citizens.  In the view of the authors, this approach balances the need to hold young offenders accountable, while still recognizing their inherent capacity for change and growth.

March 8, 2010 in Examples of "over-punishment", Graham and Sullivan Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Monday, November 30, 2009

More details on the Huckabee clemency grant that aided suspected cop killer

PS Ruckman here at Pardon Power and CNN in this new story are adding details to what we now know about the form of clemency granted to Maurice Clemmons, the chief suspect in the fatal shooting of four police officers in Washington state.  Here is some of the new CNN coverage:

Nearly 10 years ago, Maurice Clemmons pledged to make a fresh start. "I come from a very good Christian family and I was raised much better than my actions speak," Clemmons said in a clemency application brief to then-Arkansas Gov. Mike Huckabee in 2000.  "I'm still ashamed to this day for the shame my stupid involvement in these crimes brought upon my family's name."

Clemmons was 27.  He'd spent the past 11 years in an Arkansas prison, convicted of offenses including robbery, burglary, theft and taking a gun to school.  He was facing a 95-year sentence.

A decade later, Clemmons is the subject of an intense manhunt in Washington state, suspected in the deaths of four Lakewood, Washington, police officers who were shot to death Sunday as they met in a coffee shop before starting their shifts.  Authorities have said Clemmons is believed to have entered the Forza Coffee Company and opened fire on the officers with no warning....

In 2000, Clemmons told Huckabee that the crimes occurred when he was 16, had just moved to Arkansas from Seattle and had fallen in with the wrong crowd.  "Where once stood a young 16-year-old misguided fool ... now stands a 27-year-old man, who has learned through the 'school of hard knocks' to appreciate and respect the rights of others," his petition to Huckabee said.

Huckabee commuted Clemmons' sentence in 2000, citing his young age at the time of sentencing, making him eligible for parole.  It was granted in July 2000, after he told Arkansas parole officials that he "just wants the opportunity" and "is not the same person he was when he came in," the documents said....

In his 2000 brief to Huckabee, Clemmons said his mother had died while he had been in prison, providing him with further motivation to turn his life around. "I have never done anything good for God, but I've prayed for him to grant me in his compassion the grace to make a start," he said. "Now, I'm humbly appealing to you for a brand new start."

But after receiving a second chance, Clemmons was apparently unable to stay on the right side of the law, according to documents and authorities in Arkansas and Washington. Arkansas parole board documents show that he was back in prison by September 2001.  The Arkansas Democrat-Gazette reported that he was arrested for aggravated robbery and theft and taken back to prison on a parole violation.  The paper said he was not served with the new arrest warrants for the robbery and theft charges until he was paroled three years later in 2004.  His attorney argued that the charges should be dismissed because too much time had passed, and prosecutors complied.

Huckabee went on to become a 2008 Republican presidential candidate and has not ruled out a second try for the White House in 2012.  In a statement Sunday night, his office said Clemmons' commutation was based on the recommendation of the parole board that determined that he met the conditions for early release.

"He was arrested later for parole violation and taken back to prison to serve his full term, but prosecutors dropped the charges that would have held him," the statement said.  "Should he be found responsible for this horrible tragedy, it will be the result of a series of failures in the criminal justice system in both Arkansas and Washington state."

Clemmons is believed to have moved to Washington in 2004.  The Pierce County Sheriff's Department said in a statement that he was recently charged in the assault of a police officer and rape of a child.  County court records posted online show that he spent several months in jail and was released on $150,000 bail Tuesday, days before the shootings.

As these details highlight, this high-profile story could not only impact public and political opinions on clemency grants, but also public and judicial opinions on whether violent juvenile offenders generally should or even constitutionally must be given the opportunity for parole when sentenced to very long prison terms.  Though I doubt the Justices' views in the juve LWOP cases of Graham and Sullivan will be unduly influenced by a single tragic offense, I think many juve offenders who have turned their lives around while in prison will be cursing Maurice Clemmons for some time to come.

November 30, 2009 in Clemency and Pardons, Graham and Sullivan Eighth Amendment cases, Prisons and prisoners, Who Sentences? | Permalink | Comments (33) | TrackBack

Monday, November 23, 2009

Atkins, juves and rules versus standards in the Eighth Amendment jurisprudence

The latest Sidebar feature from Adam Liptak in the New York Times has an interesting little discussion of rules and standards in the development of the Eighth Amendment jurisprudence.  The piece is headlined "Bright Lines Blur in Juvenile Sentencing," though it discusses post-Atkins litigation concerning mental retardation as much as it discusses juve sentencing.  Here are excerpts from the piece:

Here is an example of a rule, established by the Supreme Court in Roper v. Simmons in 2005: If you commit murder even hours before your 18th birthday, you cannot be put to death for your crime. The same killing a few hours later may be a capital offense. The court drew a bright-line rule at 18.

Here is an example of a standard, one proposed by Chief Justice John G. Roberts Jr. this month at Supreme Court arguments over whether juvenile offenders may be sentenced to life without the possibility of parole: Why not, the chief justice asked, interpret the Eighth Amendment’s ban on cruel and unusual punishment to require sentencing judges to consider the defendant’s age on a case-by-case basis?

“If you do have a case where it’s the 17-year-old who is one week shy of his 18th birthday and it is the most grievous crime spree you can imagine, you can determine that in that case life without parole may not be disproportionate,” Chief Justice Roberts said.  “If it’s a less grievous crime and there is, for example, a younger defendant involved, then in that case maybe it is disproportionate.”...

Proving age is pretty straightforward, and inmates who were under 18 when they committed the crimes that sent them to death row promptly had their sentences commuted after the court’s decision in Roper.  The Atkins decision, on the other hand, “has spawned extensive, intricate and bitterly contested litigation,” Carol S. Steiker and Jordan M. Steiker wrote in the DePaul Law Review last year....

A new study from three law professors at Cornell, one that resonates with potential lessons for juvenile life without parole, shows that states making case-by-case determinations have taken wildly different approaches.

The study, conducted by John H. Blume, Sheri Lynn Johnson and Christopher Seeds, tried to collect all determinations concerning retardation in capital cases in the six years after Atkins, finding 234.  That means about 7 percent of the nation’s roughly 3,200 death row inmates have claimed to be mentally retarded.

Nationwide, the claims have succeeded about 38 percent of the time. But state success rates vary widely.  North Carolina courts heard 21 Atkins claims and ruled in the inmate’s favor 17 times. Alabama courts heard 26 claims and ruled for the inmate 3 times.

Recall that the Supreme Court said an IQ of “approximately 70” should usually satisfy the first part of the test.  In Alabama, Mississippi and Texas, four inmates with IQ scores of 66 and 67 were held not to be retarded.  But in Pennsylvania, an inmate whose score ranged from 70 to 75 won an Atkins claim.  In California, a score of 84 did the trick.

Professor Johnson said there was a lesson here. “If you look at Atkins, which is supposed to be a categorical rule but has some play in the definitions, you get enormous pushback from the states that don’t want to do it,” she said.  Were the court to adopt Chief Justice Roberts’s approach for juvenile life without parole, she added, “the problem of Atkins’s application would be greatly magnified.”

November 23, 2009 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, November 10, 2009

Shouldn't the Sullivan case be relatively easy for a true Eighth Amendment textualist?

I have long been a fan of textualist approaches to the Constitution because, at the very least, textualism provides a useful starting point for constitutional debates.  And, in some prior posts (see here and here and here), I have suggested that a textualist approach to the Eighth Amendment might make some seemingly hard cases not quite so hard.  In my mind, the Sullivan case argued yesterday in the Supreme Court is one of those cases that seems like it should be relatively easy for a true Eighth Amendment textualist.

Here is the full text of the Eighth Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."  In Sullivan, the Court is considering the constitutionality of a prison sentence of life without the possibility of parole for a 13-year-old who committed a rape.  For a textualist, the question would seem to be whether Joe Sullivan's punishment under these circumstances is "cruel and unusual."  

Part two of the textual analysis seems easy: Joe Sullivan's sentence is surely "unusual."  Sullivan is one of only two 13-year-olds to have received an LWOP sentences for a non-homicide offense in perhaps all of American history.  Because the constitutional text references "unusual" (as opposed to "unique") punishments, a true Eighth Amendment textualist would likely have to conclude that Sullivan's sentence satisfies the second prong of the Constitution's punishment prohibition.

The claim the Joe Sullivan's sentence is also "cruel" could generate more debate, though this term also seems a relatively easy call within a nation conceived in liberty that generally considers children less responsible (and worthy of more protection) than adults.  Specifically, in light of American traditions and commitments, I have a hard time envisioning a sentence more "cruel" than one which confines a juvenile to spend his entire life in prison with no hope or chance for freedom based on an act committed at age 13 which did not take another human life.

Though there was precious little focused textualist discussion in the juve LWOP cases argued yesterday, I did get the sense from the cold transcript that Justice Breyer and perhaps also Justice Sotomayor were drawn to these textualist concepts.  It would be somewhat ironic if these Justices (and not an avowed textualist like Justice Scalia) end up being the only ones who take the text of the Eighth Amendment seriously in Graham and Sullivan.

A few related posts on the Graham and Sullivan cases and Eighth Amendment jurisprudence:

November 10, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (17) | TrackBack

Monday, November 09, 2009

Transcripts now available for oral arguments in Graham and Sullivan

Based on the early reports (discussed here), I am really excited to find time to review the transcripts from the oral arguments in the two juve LWOP cases heard today by the Supreme Court.  Everyone can now access the transcript from Graham here and from Sullivan here, and I hope by late tonight to be able to provide some early commentary on these big Eighth Amendment cases.

UPDATE:  After reading the transcripts, I am largely underwhelmed and not especially hopeful that these cases will produce a profound set of opinions.  All the Justices are understandably struggling with the stardard "where do we draw a line" challenge; but I got the nagging feeling that many Justices are more worried about the risk of drawing lines that would help juvenile defendants than worried about the risk that some states may regularly impose excessive punishments on certain juve offenders.

In addition, How Appealing has collected lots of the major media coverage of the arguments here.  I will be especially grateful to any readers who spotlight any particularly important part of this media coverage of the Graham and Sullivan arguments.

November 9, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (3) | TrackBack