Wednesday, July 08, 2009

In praise of Texas justice (and shame on the press and public policy activists) on juve LWOP

Thanks to a comment to this post, Scott of Grits for Breakfast informed me that "Texas abolished life without parole for juveniles this year legislatively. The Governor signed it.  It's now a 40-year minimum for juveniles convicted of capital murder in TX.  Here's the legislation."  In addition to being quite pleased and impressed that Texas passed legislation to reduce sentences for certain juvenile killers, I was troubled that I had completely missed this interesting and important story about a change to Texas justice.

I then spent some time this morning looking for press reports about this new legislation and/or materials about this notable Texas reform from various public policy groups that focus on juvenile justice issues.  Disappointingly and aggravatingly, I could not find ANY significant media coverage or materials from public policy groups about this reform to Texas justice.  (Grits had a few helpful posts on bill here and here and here, but these posts only confirmed my sense that this Texas story deserves a lot more attention.)

The troublesome silence about the Texas reform is especially notable because many folks are now focused on juve LWOP issues because of the Supreme Court's decision to consider the constitutionality of two non-murder) juve LWOP cases from Florida.  And, as death penalty fans know, state legislative developments are central to the Supreme Court's modern Eighth Amendment jurisprudence.  I sure hope that folks writing briefs in the SCOTUS cases of Graham and Sullivan are aware of this recent important reform in Texas justice even though it has been overlooked and ignored by the media and public policy groups.

Because I am eager to know a lot more about this Texas reform to severe juve sentencing, I hope anyone and everyone with additional information and/or materials concerning this legislative change will send stuff my way (or provide links in the comments to this post).

July 8, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (8) | TrackBack

Tuesday, July 07, 2009

Gearing up for the SCOTUS juve LWOP cases on the horizon

I was pleased to receive word this week that the Institute of Bill of Rights Law had chosen one of the two juve LWOP cases, Sullivan v. Florida, for its moot court event as part of its Supreme Court Preview 2009-2010.  The Institute's decision to moot this juve LWOP case confirms my instinct that Sullivan (and the companion case Graham) are perhaps the most important and interesting cases on the Supreme Court's current docket. 

Adding to my excitement, today I came across this effective new piece about Graham and Sullivan from the online magazine  The piece is titled "Should Minors Ever Face Life Without Parole?," and here are a few excerpts:

In the term beginning this October, the Supremes will hear two cases — one involving a 13-year-old sex offender, the other a 17-year-old probation violator present when a felony murder occurred — both aiming to challenge life-without-parole sentences for juveniles (known by the unwieldy acronym JLWOP). Concurrently, the House Subcommittee on Crime, Terrorism and Homeland Security has been gathering testimony on a bill that would mandate parole hearings for JLWOP prisoners. The bill covers federal cases and gives states a financial incentive to comply with its terms.

"There is so much attention on this issue right now," says Baylor Law School professor Mark Osler, who has testified in favor of the proposed House bill, H.R. 2289. "I think in part it's because you have groups doing a good job advocating on it, and the idea is becoming more and more prevalent — that instead of wholesale change, we are smoothing off the rougher edges of the justice system, and that includes a focus on children."

Opponents to a change suggest that a focus on the prisoners as children, and not offenders, is wrong-headed and ahistorical. In its brief before the Supreme Court in the 13-year-old sex offender case, the State of Florida Attorney General's Office wrote, "Outside the context of the death penalty, this Court has always examined whether a sentence is grossly disproportionate under the Eighth Amendment by examining the sentence in relation to the offender's instant offense and prior offenses, not the individual characteristics of offender, such as age or mental capacity."...

The United States is one of the few countries that hand out JLWOP sentences. A 2005 Amnesty International study found that life without parole for juveniles is theoretically available in a dozen countries, but besides the U.S., only three others actually had teens serving such sentences — Israel with seven, South Africa with four and Tanzania with one.

In contrast, Sentencing Project Executive Director Mark Maurer noted in his testimony before the House subcommittee that 2,500 U.S. teenagers are incarcerated with no hope of release, most of them people of color. A majority of these — as many as 60 percent — are first-time offenders, and more than one quarter were convicted of felony murder, meaning they were participating in a crime when a murder occurred, but didn't do the actual killing.

Other recent posts on juve LWOP and the Graham and Sullivan cases:

July 7, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (6) | TrackBack

Monday, June 08, 2009

House hearing on bill to eliminate juve LWOP sentences

As detailed at this page from The Sentencing Project, on Tuesday afternoon the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will hold an hearing on the "Juvenile Justice Accountability and Improvement Act of 2009," which includes provisions to eliminate life without parole sentences for juvenile offender.

This official House webpage list witnesses scheduled to testify (and may soon provide links to written testimony).  The bill being discussed can be accessed here, and one of its key provisions calls upon each State to "have in effect laws and policies under which each child offender who is serving a life sentence receives, not less than once during the first 15 years of incarceration, and not less than once every 3 years of incarceration thereafter, a meaningful opportunity for parole or other form of supervised release."

I do not think this bill is likely to get too much legislative traction, but it should be interested to see what gets said about juve LWOP while briefing is underway in the two juve LWOP cases, Graham and Sullivan, recently taken up by the Supreme Court (basics here and here).

Other recent posts on juve LWOP and the Graham and Sullivan cases:

June 8, 2009 in Graham and Sullivan Eighth Amendment cases, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Wednesday, May 13, 2009

You make the call: should PA file a brief in Graham and Sullivan

This new article from the Pittsburgh Tribune-Review, which is headlined "U.S Supreme Court may alter juveniles' life sentences," spotlights why Pennsylvania will be very interested in the two juve LWOP cases, Graham and Sullivan, recently taken up by the Supreme Court (basics here and here):

Civil-rights advocates are cautiously optimistic that the days of sentencing juveniles to life in prison with no chance of parole could soon end.  Their hope lies with the U.S. Supreme Court, which said this month it would review two cases from Florida in which juvenile offenders claim their life sentences — one for rape, the other for robbery — are unconstitutional.

Legal experts cautioned the court could rule in a number of ways, and said some outcomes might not change Pennsylvania's sentencing guidelines.  But they added that if the court rules life sentences for juveniles are inhumane, the effect on Pennsylvania — which has about 450 juvenile lifers, more than any other state — could be huge.

"The impact here would be significant, profound and immediate," said Bradley Bridge, an attorney with the Defender Association of Philadelphia who opposes sentencing juveniles to life in prison without parole. "We would go back into court rapidly, seek to have all of the juvenile life sentences ruled unconstitutional, and have them re-sentenced."...

Justices could rule in various ways, according to legal experts.  For example, the Supreme Court could uphold the sentences, or deliver an opinion specific to non-lethal crimes.  All of Pennsylvania's juvenile lifers were convicted for first- or second-degree murder, Bridge said.  Another possible outcome: The court could set an age limit determining when such sentences are inhumane.

For the sake of discussion, I encourage readers to imagine being in the role of a leading legal actor in Pennsylvania — say, Attorney General or the Governor's legal counsel.  How would you assess and decided whether and how Pennsylvania might participate in the Graham and Sullivan cases? 

At one level, you have to realize that if SCOTUS rules for the defendant in either or both cases, there will be lots of (costly and cumbersome) follow-up litigation in the state.  At another level, however, you might be supportive of the idea that juve LWOP should not be possible for non-murder crimes, and might want to encourage the Justices to make an explicit constitutional distinction between LWOP for murder and LWOP for other crimes.  So, might you urge advocating in support of Florida's extreme use of juve LWOP in these non-murder cases, or perhaps instead urge supporting the defendants in a brief that encourages the Justices to draw a constitutional line that could help preserve the law in the Keystone State?

Of course, Pennsylvania might opt not to participate at all, and perhaps any state considering getting involved should fear that a decision to participate could prompt certain Justices to want to issue a broader ruling than the facts in Graham and Sullivan demand. 

So dear readers, should Pennsylvania (and other states) jump into the Graham and Sullivan juve LWOP fray?

Other recent posts on Graham and Sullivan:

May 13, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (24) | TrackBack

Monday, May 11, 2009

California bill seeks to eliminate juve LWOP

As detailed in this Sacramento Bee article, which is headlined "Calif. bill would give young killers rehab chance," a California state legislator is seeking to eliminate LWOP sentences for juveniles. Here are some of the interesting particulars:

State Sen. Leland Yee believes that wayward kids should have a second chance to make good - even when they commit murder or other serious crimes.  Yee, a San Francisco Democrat who has a doctorate in child psychology, has introduced legislation that would allow courts to reduce the sentences of inmates who were given terms of life in prison without the possibility of parole when they were minors....

The bill, which is on the Senate Appropriations Committee's agenda on Monday, would allow a prisoner who was sentenced to life without parole as a minor to petition a court for a new sentencing hearing after the inmate had served at least 10 years.

The court would have to grant the hearing -- but not necessarily agree to change the sentence -- if it found that the inmate met at least three of eight criteria.  Those standards include the fact that inmate was an accessory to murder but not the actual killer, did not have prior convictions for assault or other violent crimes and had demonstrated remorse.

Elizabeth Calvin, children's rights advocate with Human Rights Watch, an international group that investigates allegations of human rights violations, said there are about 250 California inmates who are serving life without parole sentences handed down when they were minors....

Scott Thorpe, chief executive officer of the California District Attorneys Association, one of the law enforcement groups that opposes the bill, said the standards that courts must consider in determining whether to grant a new sentencing hearing are too weak.... "You're going to set up a system where hearings are going to be mandated which are mini-trials.... We're just concerned about the cost of this and the ease of which it would be established to have these kinds of hearings. The standards are too low."

It is interesting to speculate — and useful for researchers to follow — whether legislative proposals to eliminate juve LWOP will get more or less traction now that the Supreme Court has decided to take up two juve LWOP cases with its cert grants last week in Graham and Sullivan (basics here).  Importantly, because both Graham and Sullivan involve non-homicide crimes, the Supreme Court is unlikely in those cases to address all uses of LWOP for kids and thus bills addressing juve LWOP more broadly are likely to be very important and consequential no matter what the Supreme Court eventually does in these Eighth Amendment cases.

Some other posts on juve LWOP and on recent SCOTUS grants:

May 11, 2009 in Graham and Sullivan Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Friday, May 08, 2009

Human Rights Watch calls for federal legislation to eliminate juve LWOP

I was intrigued and pleased to see this press release from Human Rights Watch discussing its efforts to convince Congress (rather than just the Supreme Court) to eliminate LWOP sentences for juveniles in the United States.  Here are some of the interesting details:

The US Congress should pass a proposed law to end the sentencing of youth offenders to life in prison without the possibility of parole,  Human Rights Watch said today in a letter to members of the House Judiciary Committee.  At least 2,574 individuals in the United States are serving these sentences for crimes they committed before they were 18 years old. The United States is the only country that uses such sentences for crimes committed by juveniles.

On May 6, 2009, Representatives Robert "Bobby" Scott and John Conyers introduced H.R. 2289, the Juvenile Justice Accountability and Improvement Act of 2009, in the US House of Representatives.  The bill would require states and the federal government to offer youth offenders meaningful opportunities for parole after serving 15 years of a life sentence....  

The introduction of the bill coincided with Human Rights Watch's release of new figures showing that there are currently at least 2,574 persons in US prisons who were sentenced to life without parole for crimes committed before the age of 18, an increase of 90 from May 2008.

The higher number is due primarily to improvements in data reporting rather than significant increases in the number of youth sentenced to life without parole.  Increases were most dramatic in California (250 total, an increase of 23), Michigan (346 total, an increase of 30), and the federal Bureau of Prisons (37 total, an increase of 35).  Iowa, Louisiana, Massachusetts, Ohio, and Texas also saw increases in juvenile life without parole.  The states with the largest numbers of prisoners serving this sentence are Pennsylvania (444), Michigan (346), Louisiana (335), Florida (266), and California (250).

Researchby Human Rights Watch found that nationwide, 59 percent of youth serving life without parole sentences received the sentence for their first criminal conviction, and 16 percent were 15 or younger at the time of their offense.  An estimated 26 percent were convicted on the basis of accomplice liability or felony murder.  These are crimes in which a teenager who commits a non-homicide felony such as a robbery is held responsible for a codefendant's act of murder during the course of the crime.  State laws often do not require the person convicted on this charge to know that a murder was planned or even that the codefendant was armed....  

Human Rights Watch has also found substantial racial disparities in life without parole sentences given to juveniles. On average across the country, black youth are serving life without parole at a per capita rate that is 10 times that of white youth. In Pennsylvania, which has the largest number of juvenile offenders serving life without parole, black youth are 21 times as likely to be serving the sentence as white youth....  

On May 4, the US Supreme Court agreed to decide whether life without parole for juveniles who have committed only non-homicide crimes violates the US Constitution's prohibition on cruel and unusual punishments. The case will be heard in the court's next term, which begins in October.

Other posts on juve LWOP and on recent SCOTUS grants:

May 8, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (27) | TrackBack

Monday, May 04, 2009

Analyzing the cert grants in both Graham and Sullivan

Over at SCOTUSblog, Lyle Denniston has this interesting new post titled "Analysis: Why two juvenile sentence cases?". Here is a snippet of Lyle's analysis:

With a continuing wave across the country of tougher punishment for youths who commit serious crimes, the Supreme Court on Monday returned to the constitutional controversy that the wave has stirred.  The Court took on two new juvenile sentencing cases that, seemingly raises the same issue, but apparently left itself the option of treating them differently.  It did not explain, but a few reasons may be suggested....

It is quite common for the Court, when it has two or more cases raising the same issue, to pick only one for review, or to consolidate them for a joint ruling. It took neither option this time, setting the stage for two rulings, perhaps with different potential outcomes.

[T]here is at least a chance that Sullivan might not be allowed to raise his constitutional argument, because it could be found to have come too late.  The Graham case only involves the specific issue of an Eighth Amendment violation in a life without parole sentence for a minor.  Thus, the Court may have wanted a second case before it in case it should find that Sullivan did not present that claim properly.

Another difference between the two, of course, is the youths’ relative age.  The Court, if it reached the life sentence issue in Sullivan, might be more sympathetic to a youth of his age getting a life term for a sexual crime that left the victim injured, but not dead.  The Court last Term ruled out a death sentence for such a crime (in Kennedy v. Louisiana, involving a child victim who was not killed).

Graham, by contrast, is four years older, and was given a life prison term after returning to criminal activity after being spared a long prison term for an earlier episode.  Some members of the Court may have found him a less sympathetic figure, and wanted to have that case on the docket to perhaps limit the scope of any ruling that went against life terms for teenagers.

Indeed, it might be speculated that the Court spent most of a month looking at these two cases as it tried to sort out just what it wanted before it, and the grant of both cases might well have been a compromise between the Court’s two ideological wings.  The Court has been split deeply in its most recent rulings limiting the scope of the death penalty, and there is no reason to anticipate a more unified bench on this new controversy involving life without parole — a severe sentence for a minor.

The Court will hold oral argument on the two cases in the Term starting Oct. 5, very likely in tandem hearings on the same day.

I think all of Lyle's speculations for why the Court decided to take up both Sullivan and Graham make sense, and I was prepared to predict split rulings were in the works when I first saw that the defendant in Grahamwas 17 at the time of his LWOP sentence.  However, the procedural quirkiness surrounding the imposition of an LWOP sentence in Graham (discussed here), as well as the fact that Sullivan involves a first-offense rape and Graham involves second-offense robbery, makes me wonder if some other factors played a role in the decision of SCOTUS to set up a juve LWOP double-header.

Other posts today on Sullivan and Graham:

May 4, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (4) | TrackBack

What might (and should) DOJ and other potential amici say about Graham and Sullivan?

I am already having a hard time not getting too excited about the Supreme Court's cert grant today in the juve LWOP cases of Graham and Sullivan (basics here).  Part of the excitement relates to the fact that we can and should expect a new Justice to be on the Court to hear these cases, and thus I can and should that this Justice might breathe some new life into a troublesome modern Eighth Amendment jurisprudence.  Another part of the excitement relates to the question that titles this post — namely, the uncertainty that now surrounds what the Obama Justice Department and other likely amici might have to say about the constitutionality of life without parole sentences for juvenile offenders.

Of course, we can and should expect a number of public policy groups and defender groups to file amicus briefs in support of the defendants in Graham and Sullivan.  Organizations like Human Rights Watch and The Sentencing Project and others have long been vocal opponents of juve LWOP sentences, and I would expect and hope they will share their insights with SCOTUS in these cases.  Also, defender groups like NACDL and others might also chime in to flag some unique lawyering perspectives in these cases.

But what about the US Department of Justice and/or Attorneys General from other states?  Though they could opt to sit out the case altogether, I have an inkling that a diverse set of state and federal prosecutors may have a diverse set of perspectives concerning the proper way to apply (and limit) the Eighth Amendment in the juve LWOP setting.  Can and should we expect a bold amicus brief from federal AG Eric Holder and SG Elena Kagan?  Can and should we expect dueling amicus briefs from states that permit and states that preclude juve LWOP?  I suppose time (and the SCOTUS briefing schedule) will soon tell.

Some recent related posts:

May 4, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (11) | TrackBack

The (unpreserved?) procedural issues in Graham juve LWOP case

Thanks to SCOTUSblog's post here, everyone can now check out this cert petition in Graham v. Florida, the juve LWOP case that the Supreme Court decided to take up today (basics here).  Assuming the fact statement in the Grahampetition is accurate, the sentencing procedures used in the case are as troubling as is the substance of the LWOP sentence. 

According to the cert petition, the defendant in Grahamwas given an LWOP sentence by a judge as a sentence for violating the terms of his probation(!) by committing an armed robbery a year after being placed on probation for a prior armed burglary.  As described, the procedures used to impose the LWOP sentence in Graham would seem to raise an array of possible Fifth and Sixth Amendment issues.  But the Graham cert petition only raises an Eighth Amendment claim (and other procedural claims may not have even been raised below), and thus it is unclear whether or how these procedural issues will be addressed as this case gets considered by the Justices.

Some recent related posts:

May 4, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (5) | TrackBack