Sunday, October 20, 2013
"Alleyne v. United States, Age as an Element, and the Retroactivity of Miller v. Alabama"The title of this post is the title of this intriguing Essay by Beth Colgan recently published on the UCLA Law Review's on-line supplement. The introduction previews the issues and argument in the piece:
The U.S. Supreme Court announced in Miller v. Alabama, that the mandatory imposition of life in prison without the possibility of parole against juveniles is cruel and unusual punishment in violation of the Eighth Amendment. The million-dollar question is whether it would do any good for the over 2000 juveniles who had previously been so sentenced. For those jurisdictions that follow or rely heavily on the dictates of retroactivity set out by the Supreme Court in Teague v. Lane, the touchstone of Miller’s retroactivity hinges on whether the rule it announced is substantive — and therefore retroactive — or procedural.
The Miller opinion provides no clear guidance. On the one hand, the opinion sounded in procedure, with the Court requiring “that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty.” On the other hand, the opinion sounded in substantive law, in that it required fundamental changes in criminal laws that mandate the imposition of life without parole in homicide cases where the crime was committed before the defendant’s eighteenth birthday. Prior to Miller, states and the federal government could require that a court impose a sentence of life without parole on a juvenile without consideration of the defendant’s youth. But the Miller Court rejected such mandatory sentencing, reasoning that “age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” a juvenile’s history of abuse, the role the juvenile played in the homicide, the existence of peer pressure, the difficulties juveniles have navigating the legal system, and juveniles’ unique capacity for rehabilitation are all constitutionally relevant and therefore a sentencer must have an opportunity to consider such facts at sentencing.
The quasi-substantive/quasi-procedural nature of the opinion created a conundrum for lower courts assessing the retroactivity of the decision. The answer to this puzzle may come from an unlikely source: the Court’s Sixth Amendment jury trial jurisprudence, and particularly its June 2013 interpretation of that right in Alleyne v. United States. Though unrelated to both juvenile sentencing and the question of retroactivity, the Alleyne Court did determine that where the existence of a fact dictates whether a mandatory minimum applies, the fact is, in effect, an element of the underlying offense. This Essay extrapolates from the Alleyne holding to argue that Miller’s requirement that sentencers consider age and its attendant consequences in cases involving juveniles — making age at the time of the offense a fact that triggers whether the mandatory minimum sentence of life without parole applies — converts age to an element of the underlying offense, rendering Miller a substantive rule that must be applied retroactively.
Monday, September 09, 2013
"Talking About Cruelty: The Eighth Amendment and Juvenile Offenders after Miller v. Alabama"The title of this post is the title of this notable new paper by Samuel Pillsbury now available via SSRN. Here is the abstract:
After setting out the issues and approach of the U.S. Supreme Court majority in Miller v. Alabama, the article develops cruelty as a constitutional norm. Initially cruelty as a norm for Enlightenment thinkers in the late 18th century and in the creation of the American penitentiary in the early nineteenth century is considered. Then the article examines cruelty as a modern norm that condemns both sadism and indifference towards the serious suffering of others. This norm supports the Miller conclusion that mandatory life without chance of parole sentences for certain juvenile offenders are cruel, because such sentences mandate a form of culpable indifference to individual value.
The article then describes how a cruelty norm may guide courts in resolving the constitutionality of a life without chance of parole sentence for juvenile by a judge who had discretion to order a lesser sentence. The cruelty norm described would find unconstitutional a life sentence for a juvenile unless a subsequent opportunity was provided for the offender to seek release based on personal reform. Otherwise, a life sentence would disregard the basic value of the offender in the person that he or she might become.
Monday, August 26, 2013
Terrific Stateline review of states' varied applications of and reactions to MillerMaggie Clark over at Stateline has this notable new article (and this amazing associated resource) reviewing all the diverse ways states are deal with the Supreme Court's Miller ruling. the piece is headlined "After Supreme Court Ruling, States Act on Juvenile Sentences," and here are excerpts:
Last year, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory life sentences for offenders under 18 are cruel and unusual punishment, and therefore unconstitutional. In the wake of that decision, a federal court this month ruled that ... more than 300 other Michigan juvenile lifers are entitled to a parole hearing.
Michigan is one of at least 11 states that have revisited their sentencing laws in response to the Supreme Court decision (see Stateline chart). Generally, juvenile killers in those states will be eligible for a parole hearing after serving a mandatory minimum sentence of about 25 years.
Still, there are at least 15 states that have not yet eliminated mandatory life without parole sentences for juveniles. In many states, legislatures and courts aren’t sure how the Miller decision should apply to offenders such ... already serving such sentences. Nationwide, there are more than 2,000 prisoners in 43 states serving life without parole sentences for crimes they committed as juveniles....
[I]n Pennsylvania, which has largest number of inmates whose sentences are covered by the Supreme Court ruling, the state Supreme Court has been considering the retroactivity question for over a year. The court’s decision could lead to the resentencing and eventual release of over 400 convicted murderers.
In Michigan, Iowa, Illinois, Louisiana and Mississippi, judges have ruled that the Supreme Court decision applies retroactively to all prisoners serving such sentences. But in Minnesota and Florida, judges have ruled that the Supreme Court decision only applies to future cases.
State Supreme Courts in Illinois, Florida, Massachusetts and Colorado will likely consider the retroactivity question this fall, said Marsha Levick, chief counsel at the Juvenile Law Center, a legal advocacy group for youth....
The super-predator theory, popular in the early 1990s, predicted a wave of juvenile violent crime in the following decade. States reacted by treating many juvenile offenders as if they were adults. Between 1992 and 1995, 48 states increased penalties for juveniles convicted of violent crime, according to the Department of Justice. But that wave never came: Juvenile crime started to drop in the early 1990s, and it has continued to decline in the years since, as has adult crime.
The harsher juvenile sentencing laws likely were not a factor in the decline, since data show there was no difference in the crime rate for states with mandatory life without parole sentences and those without. Crime has declined nationwide, and across all demographics....
Considering youth as a mitigating factor is part of the Supreme Court’s broader move toward treating kids differently than adults. In two decisions banning the death penalty for juveniles for both homicide and non-homicide crimes, the justices relied heavily on neuroscience showing that brains are still growing and changing well through the teenage years, meaning that juveniles are likely to grow out of their criminal behavior, especially if they’re put in a rehabilitative setting.
Still, kids are committing adult crimes, and in these cases, victims’ families were promised life without parole sentences for their family member’s killer, said Joy Yearout, spokeswoman for Michigan Attorney General Bill Schuette. “Families were told that (the killers) would never be paroled, and that could have been 20 or 30 years ago,” Yearout said. “Now the families are being told that’s not true anymore and that’s very frightening. It’s very important to have truth in sentencing so that victims have assurance that the sentence will actually be what’s set.” Schuette has said he will appeal the Michigan federal court decision.
Most of the 11 states that have changed their laws to comply with Miller v. Alabama have either discouraged the use of life without parole sentences for juveniles, or scrapped them altogether.
But because the Supreme Court only struck down mandatory life without parole for juveniles, and not all such sentences, states are not required to completely overhaul their juvenile sentencing policies. In Alabama, where the Supreme Court case originated, the attorney general recently advised district attorneys to seek life with parole in two ongoing juvenile murder cases. The Alabama legislature has not yet approved any changes in mandatory sentencing laws to comply with the Supreme Court ruling.
August 26, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, August 13, 2013
US District Judge tells Michigan that all its mandatory juve LWOP sentences are unconstitutionalAs reported in this local piece, headlined "Judge upholds ban on life, no parole for juveniles in Michigan," a federal district judge in the state up north has issued a new little opinion with significant impact for juve LWOP defendants sentenced before Miller. Here are the basics:
A federal judge ruled Monday that Michigan must grant parole consideration to anyone convicted of murder as a juvenile, rejecting the state attorney general’s request that an earlier decision to implement the U.S. Supreme Court’s ban on no-parole sentences for juveniles apply only to the convicts who challenged the state’s law.
Michigan has an automatic life-without-parole sentence for first-degree murder convictions, and applies at any age. The U.S. Supreme Court ruled last year that it is cruel and unusual punishment to deny parole consideration to those who are under 18 when convicted. The state said at the time said it had more than 350 prisoners in that category, out of about 2,000 nationwide....
Acting on a 2010 suit by nine Michigan prisoners who received no-parole sentences as juveniles, U.S. District Judge John Corbett O’Meara in Ann Arbor ruled Jan. 30 that Michigan must allow the possibility of parole in cases where the defendant is under 18 when convicted. The U.S. Supreme Court ruled on mandatory no-parole punishments while that lawsuit was pending.
Michigan Attorney General Bill Schuette filed a motion that O’Meara’s decision apply only to those who brought the suit, while the ACLU asked that it apply to those now serving life without parole for convictions as juveniles. Schuette’s office has contended that the Supreme Court’s decision didn’t automatically apply to past sentences, only to those sentenced since the 2012 high court ruling.
On Monday, O’Meara rejected Schuette’s request and said the high court’s ruling applied to past as well as future sentences. State prosecutors “believe they may enforce the statute, which the court has declared unconstitutional, with respect to other juveniles sentenced to life in prison,” the judge wrote. “As this court now makes clear, defendants are incorrect.”
“Every person convicted of first-degree murder in the state of Michigan as a juvenile and who was sentenced to life in prison shall be eligible for parole,” the judge said.
Schuette spokeswoman Joy Yearout said the attorney general “disagrees strongly” with the ruling and said it would subject victims’ families “to re-live horrible tragedies at future parole hearings for teenage murderers already sentenced by a jury of their peers to life in prison without parole.”
“Once a final order is entered in this case, Attorney General Schuette intends to file an immediate appeal,” Yearout said in an email.
The order referenced here runs only two pages and is available at this link. I think it kind of "resolves" the issue of whether and how the Supreme Court's Miller rulong applies retroactively in a potent and (unduly?) simplistic way. It will be interest to see just how the Michigan AG develops his arguments on appeal and what the Sixth Circuit ultimately has to say about them.
Thursday, May 23, 2013
NACDL rolls out state-by-state "excessive sentencing" proportionality litigation resource
I am extraordinarily proud and excited to report that, as detailed via a new NACDL news release, that the National Association of Criminal Defense Lawyers is now offering, "as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."
This resource has been given the name Excessive Sentencing: NACDL’s Proportionality Litigation Project its main page can be accessed via this link. Here is a bit more from the NACDL press release about the resource (and also my role therein):
Development of this new resource was inspired in part by the Supreme Court’s recent landmark constitutional decisions in Graham v. Florida, 130 S. Ct. 2011 (May 17, 2010), and Miller v. Alabama, 132 S. Ct. 245 (June 25, 2012), which pronounced new Eighth Amendment limits on when and how states can impose life without parole prison terms on juvenile offenders. The state profiles and related materials provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. They are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.
The primary academic supervisor of this resource is Professor Douglas A. Berman of The Ohio State University Moritz College of Law.... Professor Berman intends to update these materials regularly as developments in the law warrant and new information becomes available.
On the project’s landing page –- which can be accessed here -- there is a free, nearly 90-minute sentencing skills webinar featuring Professor Berman and Stephen Hardwick, an assistant public defender in Columbus, Ohio....
In addition, the project landing page has this additional account of what this resource now provides and hopes to help achieve:
The state profiles and related materials, which were prepared by recent law school graduates under the supervision of Professor Douglas A. Berman, provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. Unsurprisingly in the wake of Graham and Miller, there has been a significant increase in state-level litigation concerning lengthy prison terms, especially for juvenile offenders. The expectation is to have Professor Berman, in conjunction with the pro bono efforts other lawyers and aided especially by NACDL members and others who utilize this resource, revise and update these profiles regularly.
The profiles and charts are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms. The Supreme Court has repeatedly stressed that the Eighth Amendment’s “scope is not static [but] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958); state-level doctrinal and jurisprudential developments have thus always had heightened federal constitutional significance in this area of law. Moreover, state policy-makers and state jurists have long understood that the Eighth Amendment sets only a minimum constitutional floor limiting only the most extreme punishment policies and practices: state lawmakers and judges can and should feel not merely free, but institutionally obliged, to consider developing their own distinct legal limits on unduly harsh sentencing terms based on distinct state-level requirements and needs. The profiles posted here demonstrate that, even though there is some notable convergence in state-level proportionality doctrines, there are also some important variations and innovations concerning how states seek to protect its citizens from extreme or excessive criminal punishments.
I plan to discuss this web resource and the broader NACDL projectin a series of posts over the next few weeks and months. For now, I just hope everyone will take a look at what we have posted (and perhaps begin commenting on what other materials might be usefully assembled and linked in this space).
May 23, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack
Wednesday, May 22, 2013
Notable Miller-aftermath news from three states
Coincidentally, I saw these three news stories this morning concerning how three states are dealing (or not dealing) with the Supreme Court's 2012 Miller ruling concerning the sentencing of juvenile murderers:
From Alabama here, "Lawyers look to Alabama Supreme Court on juvenile killer sentences after legislature fails to act"
From Louisiana here, "Juveniles serving life sentences could become parole eligible under bill headed to Louisiana Senate"
From Missouri here, "Missouri sentencing law for juveniles draws criticism"
In addition to urging readers to comment on which of this trio of states seems to be doing better or worse job with Miller management, I wonder if anyone knows of a collection of resources (ideally on-line) with a state-by-state accouting of responses to Miller and/or a defendant-by-defendant review of efforts to obtain resentencing based on Miller.
May 22, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Thursday, April 25, 2013
Arkansas Supreme Court explains what Miller ruling means now for Kuntrell JacksonAs reported in this AP piece, in a ruling today the Arkansas Supreme Court "ordered a new sentencing hearing for Kuntrell Jackson, whose case was one of two that led to a U.S. Supreme Court decision last year throwing out mandatory life sentences without parole for juveniles." The nine-page ruling in Jackson v. Norris, 2013 Ark. 175 (April 25, 2013) (available here), is an interesting read for a number of reasons.
First, this latest round of habeas litigation for Kuntrell Jackson does not deal at all with any possible dispute over whether the Supreme Court's Miller ruling is to be given retroactive effect. This may because it appears the prosecution did not contest Jackson's request to be resentencing in light of Miller, as evidence by this sentence from the opinion: "We agree with the State’s concession that Jackson is entitled to the benefit of the United State’s Supreme Court’s opinion in his own case. See Yates v. Aiken, 484 U.S. 211, 218 (1988)."
Second, after parroting most of the key language from the SCOTUS Miller ruling, the Arkansas Supreme Court has an interesting discussion of how to revamp the sentencing provisions applicable to Kuntrell Jackson's conviction in the wake of Miller. Here is how that discussion finishes:
We thus instruct the Mississippi County Circuit Court to hold a sentencing hearing where Jackson may present Miller evidence for consideration. We further instruct that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony. For a Class Y felony, the sentence is not a mandatory sentence of life imprisonment without parole, but instead a discretionary sentencing range of not less than ten years and not more than forty years, or life. Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997).
Finally, we are mindful that Jackson argues that as a matter of Eighth Amendment law, and because of the unique circumstances of this case, he cannot be sentenced to life imprisonment. However, it is premature to consider whether a life sentence would be permissible given that a life sentence is only one of the options available on resentencing.
Notably, Jackson's crime took place in 1999, and I presume he has been in custody since his arrest. In other words, given that he has already served more than a decade in prison and that the Arkansas Supreme Court has decided he is now eligible for a sentence as low as 10 years, he could possibly upon resentencing get a term of only time served. Going forward, it will be interesting to see what sentence state prosecutors request and what sentence actually gets imposed on Jackson at his future resentencing.
April 25, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, March 19, 2013
Is TJ Lane eager to be the "uncommon" juvenile murderer who can constitutionally get an LWOP sentence?The question in the title of this post is prompted by this local news report about a high profile state sentencing proceeding which took place in Ohio this morning. The piece is headlined "Ohio school shooter, wearing 'KILLER' T-shirt, sentenced to life in prison," and here are excerpts:
An Ohio judge has sentenced T.J. Lane, the Ohio teen charged with shooting three students to death and wounding three others last February, to life in prison without parole.
Lane showed up to his sentencing wearing a white T-shirt with the word "KILLER" in capital letters scrawled on it -- the same word police say he had emblazoned on his shirt the day of the shootings at Chardon High School.
Lane, 18, pleaded guilty last month to all charges against him in the Feb. 27, 2012, shootings, in which he opened fire on a cafeteria table full of students in the rural community of Chardon.
In a brief statement during his sentencing on Tuesday, Lane flipped his middle finger to people in the courtroom, which included family members of his victims, reported NBC affiliate WKYC.com. He revealed his "KILLER" T-shirt to the court once he was inside, taking off a blue button-down shirt he had worn on the way in, the station reported.
Three students -- Demetrius Hewlin, 16; Russell King Jr., 17; and Daniel Parmertor, 16 -- were killed last February. Nate Mueller and Joy Rickers were wounded, as was Nick Walczak, who is paralyzed from the waist down, according to Reuters.
Lane has not given a motive for the shootings, which rocked the tiny town 30 miles outside Cleveland.
The families of the boys who died in the shooting have attended every one of Lane’s court hearings, The Plain Dealer said. "I feel he should be locked up for the rest of his life," Domenick Iammarino, grandfather of Daniel Parmertor told The Plain Dealer ahead of the sentencing. "It was a despicable, premeditated act. He should breathe his last breath in prison."
Those readers involved with juvenile sentencing or following closely modern Eighth Amendment rulings concerning life without parole sentences (LWOP) know that the Supreme Court in its recent ruling in Miller v. Alabama stated that "given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." It would seem that TJ Lane, who was well past his seventeenth birthday at the time of his seemingly random act of mass murder, was eager to use his time in court today to help ensure that he could be a "poster child" for the kinds of cases and kinds of juvenile defendants for which an LWOP sentence may still be constitutionally permissible.
A few recent related posts:
- "Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases"
- "Constitutional Line Drawing at the Intersection of Childhood and Crime"
- Is Miller an Eighth Amendment "bombshell or baby step"?
March 19, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (14) | TrackBack
Sunday, November 18, 2012
Does Miller also render presumptive juve LWOP sentencing unconstitutional?The question in the title of this post is prompted by this notable new SCOTUSblog post by Lyle Denniston under the headline "A puzzle on juvenile sentencing." Here are excerpts from Lyle's very lengthy post:
Most of the time, when the Supreme Court sends a case back to a lower court for a further look, the task for the lower court is clear. But the Justices have left the California courts with little guidance on what to do now with a case involving a teenager convicted for his role in gang-related, drive-by shootings that left three people dead six years ago. The case involves a youth, seventeen at the time, who received three sentences of life without parole — to run one after the other — plus added prison terms.
Depending upon how California courts react, the case of Michael Angelo Mauricio of Compton, California, might well lead to added protection for minors convicted of murder. The case is Mauricio v. California (docket 11-10139).
What is at issue in his case is what the Supreme Court meant last month, when it ordered California’s Second District Court of Appeal to reconsider the sentences for Mauricio, focusing on the Court’s decision last Term in Miller v. Alabama (docket 10-9646). The Miller decision barred life-without-parole sentences for minors convicted of murder, but appeared to be limited to cases in which that sentence was mandatory. The puzzlement in Mauricio’s case is that, under California law, life without parole was not mandatory....
Mauricio was convicted ... of three counts of first-degree murder, with special circumstances that led to added punishment. He was sentenced to three consecutive life-without-parole sentences, plus three consecutive terms of twenty-five years to life. Upholding those sentences, the Second District Court of Appeal last year rejected Mauricio’s legal claim that it was unconstitutional, because of his youth, for the judge to opt for life-without-parole sentences when the judge had the discretion under state law to instead impose twenty-five-to-life sentences.
The appeals court said that, under California law, life without parole was the “presumptive punishment” for murder by a minor in the circumstances involved in Mauricio’s crimes, but that the law also said that, “at the discretion of the court,” the sentence could be twenty-five to life....
The Court majority’s opinion in Miller repeatedly stressed that it was dealing with LWOP as a mandatory matter.... But what did [the Court's] admonitions mean, in the face of a state appeals court ruling that had said explicitly that the sentencing judge had, in fact, taken Mauricio’s youth into account, had examined his role in the murders, and had weighed whether his case deserved the more severe punishment of LWOP? The remand order did not say. Still, the case was sent back to the state court, leaving it to figure out how to react.
Because the Supreme Court in Miller referenced an Eighth Amendment capital sentencing jurisprudence that seems to preclude any presumptive death penalty scheme, I am inclined to believe there are five votes to extend the Miller ruling beyond mandatory sentencing schemes to presumptive sentencing schemes. Of course, the remand in Mauricio is not a holding to this effect, but the remand certainly does hint that Miller is not the end of SCOTUS development of Eighth Amendment limits on severe sentencing systems for juveniles.
November 18, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack
Friday, November 16, 2012
Michigan appeals court decides Miller is not retroactive to final juve murder casesAs reported in this local article, which is headlined "Appeals Court: No resentencing for Michigan juvenile lifers, but state law is 'unconstitutional'," an intermediate appellate court has now issued a lengthy ruling on Miller's import and impact in the state up north. Here are the basics from the press report:
The Michigan Court of Appeals today denied a resentencing request for Raymond Carp, 21, who is serving a mandatory term of life in prison without the possibility of parole for a first-degree murder conviction when he was 16....
The ruling invalidated strict sentencing laws in Michigan and other states that treat violent offenders as adults, giving hope to hundreds of inmates serving life terms without hope of parole for crimes they committed as kids.
But the three-judge appeals court panel that heard arguments in the Carp case said today that the Supreme Court decision does not apply retroactively to offenders who already have exhausted the direct appeals process. The high court decision "is procedural and not substantive in nature and does not compromise a watershed ruling," they wrote in a 41-page published opinion.
Michigan is home to more than 350 juvenile lifers, one of the highest totals in the nation, and today's ruling may be appealed to the state Supreme Court.
The appeals court made a point to instruct judges in pending cases that Michigan's current law denying parole is "unconstitutional" when applied to juveniles and urged legislators to revise state statutes to comply with the Supreme Court ruling.
The full opinion in Michigan v. Carp, No. 307758 (Mich. Ct. App. Nov. 15, 2012), is available at this link; it runs 41-pages with nearly 200 footnotes. Here are the unanimous opinion's final paragraphs:
The United States Supreme Court has, through a series of recent decisions culminating in Miller, indicated that juveniles are subject to different treatment than adults for purposes of sentencing under the Eighth Amendment. Specifically, we hold that in Michigan a sentencing court must consider, at the time of sentencing, characteristics associated with youth as identified in Miller when determining whether to sentence a juvenile convicted of a homicide offense to life in prison with or without the eligibility for parole. While Miller does not serve to “foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”
While Miller is applicable to those cases currently pending or on direct review, we find that in accordance with Teague and Michigan law that it (1) is not to be applied retroactively to cases on collateral review, such as Carp’s, because the decision is procedural and not substantive in nature and (2) does not comprise a watershed ruling. We urge our Legislature to address with all possible expediency the issues encompassed by and resulting from Miller and that necessitate the revision of our current statutory sentencing scheme for juveniles.
In the interim, as guidance for our trial courts for those cases currently in process or on remand following direct appellate review, we find that MCL 791.234(6)(a) is unconstitutional as currently written and applied to juvenile homicide offenders. When sentencing a juvenile, defined now as an individual below 18 years of age, for a homicide offense, the sentencing court must, at the time of sentencing, evaluate and review those characteristics of youth and the circumstances of the offense as delineated in Miller and this opinion in determining whether following the imposition of a life sentence the juvenile is to be deemed eligible or not eligible for parole. We further hold that the Parole Board must respect the sentencing court’s decision by also providing a meaningful determination and review when parole eligibility arises.
November 16, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
Thursday, November 15, 2012
Notable post-Miller resentencing outcome in Florida caseThe Sun-Sentinel has this interesting report on a notable juve murder resentencing resulting from the Supreme Court's Miller ruling. This piece is headlined "Judge reduces life sentence to 40 years in homeless-beating case," and here are excerpts:
In addition to finding notable that the defendant here got his sentenced cut down to 40 years, I also find it interesting that the defendant here still is getting the longest sentence among his his co-conspirators even as the youngest of three Broward teens convicted of his crimes. He also is now getting, only thanks to the SCOTUS Miller ruling, the sentence that had been requested by prosecutors initially.
A Broward judge on Thursday reduced the life sentence of a teen sent to prison for clubbing to death a sleeping homeless man to 40 years. Thomas Daugherty was the youngest of three Broward teens to go to prison for Norris Gaynor's death and the only one to get a life sentence.
An appellate court has said that Daugherty, now 23, was entitled to a new sentencing hearing in light of a recent U.S. Supreme Court ruling that says judges must scrutinize whether juvenile offenders are amenable to reform before ruling that they can never go free.
Broward Circuit Judge Cynthia Imperato reduced the sentence she imposed in October 2008 after weighing Daugherty's remorse, commitment to bettering himself behind bars, hours of testimony detailing his broken childhood and the strong words of the dead man’s sister. “Your story is clearly heartbreaking,” Imperato said. “But we have someone who is dead, someone who was just sleeping on a bench, a homeless person who was beaten to death like a dog. I can't get beyond all that.”...
Daugherty ... was 17 when he and two friends, fueled on Xanax, marijuana and vodka, committed a trio of pre-dawn attacks against homeless Fort Lauderdale men in January 2006. One of the beatings was captured on surveillance tape at Florida Atlantic University's downtown Fort Lauderdale campus.
The graphic footage showed Daugherty repeatedly walloping a diminutive and defenseless man with a baseball bat, and catapulted the case into the national spotlight. The victim seen in the videotape, Jacques Pierre, survived. Norris Gaynor, 45, did not. His skull was split open as he slept on a park bench. A third victim also survived.
Daugherty told the judge he abhors the aimless, drugged out person he was back then and while incarcerated has sought “to get as far away from that person that I was.”
“I hate who I was,” Daugherty tearfully said. “I hate everything about that person. I hate that video. I don't remember doing that to Mr. Pierrre, but I hate that person.”
In 2008, a Broward jury convicted Daugherty and Brian Hooks, also of Plantation, of second-degree murder and attempted murder for the unprovoked attacks.
William "Billy" Ammons, now 25, took a plea deal in exchange for his testimony and is serving a 15-year sentence at a state prison near Jacksonville. Hooks, now 25, is serving his 30-year sentence at a state prison in Martin County.
Daugherty's sentencing guidelines called for nearly 30 years in prison. Prosecutors suggested 40. Broward Circuit Judge Cynthia Imperato imposed life.
Daugherty returned to Imperato's courtroom at 10 a.m. Thursday as a result of a September ruling from the Fourth District Court of Appeal in West Palm Beach. The state appellate court's decision hinged on a June ruling by the U.S. Supreme Court that judges must consider immaturity and failure to appreciate risks and consequences before concluding that a juvenile offender can never go free....
At sentencing, Imperato told Daugherty she believed his remorse was genuine and that she understood that he had "a horrible and unfortunate upbringing" as the product of a broken home, exposed to drug abuse, neglect and abandonment but she still felt his acts showed "a total disregard for human life." The appellate court ruling did not prohibit Imperato from again imposing a life sentence.
November 15, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack
Tuesday, November 13, 2012
Reviewing Florida's struggles to deal with SCOTUS Miller rulingThe Miami Herald has this notable new article headlined "State courts struggle with Supreme Court ruling on young killers." Here are excerpts:
Five months ago, the U.S. Supreme Court banned mandatory sentences of life in prison without the possibility of parole for juveniles convicted of murder. But since the Miller v. Alabama decision, Florida courts have struggled to apply the ruling — and two Miami-Dade cases may help settle key lingering legal questions.
Does the ruling apply to past cases? A Miami appeals court, ruling on a South Miami-Dade killer convicted in 2000, doesn’t think so. That decision, which affects at least 180 cases statewide, is likely bound for higher courts.
When a judge last month gave convicted killer Benito Santiago 60 years in prison — making him the first South Florida juvenile sentenced after Miller — prosecutors immediately vowed to appeal, saying the sentence was illegal....
The Supreme Court never explicitly said Miller should apply to past convictions for juveniles. Florida has at least 180 defendants who could be eligible for new sentences under the Miller case, according to Barry University’s Juvenile Life Without Parole Defense Resource Center. At least 50 in Miami-Dade may be eligible, according to the Miami-Dade Public Defender’s Office. So far, none have been resentenced.
Within days of the Miller decision, defendants across the state began asking courts to get new sentencing hearings. Some prosecutors assumed the decision would be retroactive.
In Tallahassee, the Attorney General’s Office even agreed that “relief is appropriate” in the 2008 case of then 17-year-old Jose Gonzalez, who stabbed a man to death during a robbery, according to court documents.
In the case of Drewery Geter, he was 16 when he raped and slit the throat of nurse Helen Barker in front of her young son in 2000. After the Miller decision, convicted killer Drewery Geter asked Miami-Dade’s Third District Court of Appeals to toss his murder sentence for raping and slitting the throat of nurse Helen Barker in front of her young son when Geter was 16 years old.
But the court in September ruled Geter couldn’t get a new sentence because judges considering youth during sentencing was merely “evolutionary” and a “procedural change.” The court also ruled that applying Miller retroactively “would undoubtedly open the floodgates” of long-ago convicted killers seeking new sentences....
The Miami appeals court’s decision surprised legal observers — because Geter represented himself. The court did not ask lawyers on either side to lay out their arguments. “Everybody was shocked and dismayed,” said Ilona Prieto Vila, director of Barry’s resource center. “It kind of came out of the blue. You have a right to counsel in Florida and there was a lot of confusion about what happened and why he did not have an attorney.”
Immediately, hearings for new sentences halted in trial courts around Florida. A Tallahassee appeals court, in the Gonzalez case, last month agreed with the Geter decision. Legal observers believe the “retroactivity” issue will be settled in higher courts....
Higher courts, at least in Florida, and possibly the Legislature itself will likely also have to settle the question of the proper sentence for juveniles convicted after the Miller decision. Santiago’s was the first South Florida murder case to go to sentencing after the Miller decision. He was 17 when he used an AK-47 to mow down a man and woman in Liberty City in 2006. Their young daughter identified the killer because of his distinct face cross tattoos. Miami-Dade jurors in August convicted him of two counts of first-degree murder....
Venzer did not let him off easy: 60 years. Miami-Dade prosecutors say they will appeal. The reason: According to the Florida Prosecuting Attorneys Association, first-degree murder sentences now must “revert” back to before the sentencing laws were changed in 1994. That means youths convicted of first-degree murder should get an automatic life sentence — but with the chance for parole after 25 years.
The state long ago effectively abolished the parole system, but a commission still exists to examine longtime inmates eligible for release because their cases date back to the early 1980s or before. “The parole commission was never eliminated,” said Pensacola State Attorney William Eddins, the head of the prosecutors’ association. “The commission will just have some more cases is what it amounts to.”
Critics, including the Public Defender’s Office, say courts don’t have the authority to “enact a new, hybrid statute.”
Though not mentioned in this article, another good example of Florida's struggles with Miller is reflected in another appellate decision just last week in Washington v. Florida, No. 1D11-2314 (Fla. 1st Dist. App. Nov. 5, 2012) (available here). The majority opinion in this case just remands a juve murder case for resentencing, and the concurrring opinion gets started this way:
I concur in the majority's decision to remand for resentencing pursuant to the dictates of Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012). I disagree, however, with the majority’s decision not to determine which are the appropriate sentencing alternatives available to this trial judge. The failure to reach this difficult issue gives no guidance to this trial judge or the numerous other judges facing sentencing or resentencing decisions in similar circumstances, and it deprives the supreme court of the benefit of our thoughts on an issue which will ultimately reach that court.
November 13, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Friday, October 26, 2012
Pennsylvania Gov signs "Miller fix" sentencing legislation into lawAs reported in this local article, headlined "Bill provides alternatives to life sentences for juveniles convicted of murder," I believe Pennsylvania has now won the award for being the first state to reform its law to comply with the Supreme Court's Eighth Amendment ruling in Miller v. Alabama. Here are the details:
Minors convicted of murder in Pennsylvania could serve as little as 20 years in prison under guidelines set in a bill signed into law by Republican Gov. Tom Corbett on Thursday.
The law gives defendants under age 15 at least 20 years for second-degree murder and 25 years for first-degree. Those ages 15 to 17 would see minimum sentences drop to 25 and 35 years, respectively.
The law was spurred by a recent U.S. Supreme Court decision that bans automatic life-without-parole sentences for juveniles convicted of murder. York County District Attorney Tom Kearney said the law is a fair answer to the court's ruling. "The approach that is made is a pretty well-balanced one," he said....
Opponents of the then-bill had argued that paroled juvenile murderers would be released with very few life skills. However, Kearney said inmates are offered rehabilitation programs and would likely receive life skills and training for jobs while in prison. "We don't call ... it the Department of Corrections for no reason," he said.
The new guidelines set only the minimum sentencing limits, meaning a convicted murderer could serve a longer sentence -- including a life sentence -- and that inmates are paroled only after they've proven they are fit to return to society....
The law applies only to future cases, officials said. People already sentenced to life without parole for murders they committed as juveniles -- including 11 convicted in York County -- remain in legal limbo.... The state Supreme Court is considering what to do about those currently in the prison system under sentences now deemed to be illegal.
October 26, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (5) | TrackBack
Wednesday, October 17, 2012
Effective report on appellate consideration in Michigan of many post-Miller issuesThis effective local article, headlined "Resentence juvenile lifers? Michigan appeals court considers implications of Supreme Court ruling," provides an effective review of appellate arguments this week dealing with the potential impact of the SCOTUS Miller ruling in that state up north. Here are excerpts:
The Michigan Court of Appeals is weighing arguments in a single case that may shape the fate of 368 prisoners serving mandatory life sentences for violent crimes they committed when they were minors.
Attorney Patricia Selby Tuesday asked the appeals court to order resentencing for her client, Raymond Carp, who was convicted of first-degree murder in the 2006 stabbing of 43-year-old MaryAnn McNeely in St. Clair County.
Carp, who was 15 when his half-brother repeatedly stabbed the woman with his assistance, exhausted the traditional appeals process but is seeking a chance at resentencing in the wake of a June ruling by the U.S. Supreme Court.
The nation's highest court ruled mandatory life terms without the possibility of parole is an unconstitutionally cruel and unusual punishment for minors, invalidating sentencing schemes in Michigan and other states.... But [the Supreme Court] did not indicate whether the ruling should retroactively apply to convicts such as Carp, who was sentenced years ago.
Michigan has more "juvenile lifers" than most states, according to an MLive Media Group analysis. Defense attorneys are expected to request hundreds of resentencing hearings in coming months, and judges around the state are looking to the Court of Appeals for guidance....
Selby, who was joined by attorneys from the American Civil Liberties Union and the State Appellate Defender's Office, argued that the ruling was substantive, pointing to a previous Supreme Court decision that eliminated mandatory death sentences and led to resentencing in states allowing capitol punishment. "Ruling are deemed substantive if they prohibit a certain category of punishment for a class of offenders on the basis of their status or offense," she said. "In this case... what they banned was mandatory application without parole."
Timothy Morris, senior assistant prosecuting attorney for St. Clair County, argued that the Supreme Court ruling was procedural, requiring new sentencing guidelines but not resentencing hearings for previously convicted offenders. "We aren't killing anyone here," he said, attempting to draw a distinction between the high court rulings on mandatory death sentences and juvenile life sentences. "We aren't terminating anyone's existence."
Morris was joined by attorneys for the state prosecutor's association and attorney general's office, which joined the case last week at the behest of Attorney General Bill Schuette, who has argued that resentencing could unnecessarily burden the families of victims by forcing them to return to court....
Beyond the retroactivity issue, the court also spent significant time discussing the need to revisit state laws and current sentencing schemes in the wake of the Supreme Court ruling. A state House committee held an introductory hearing in July but does not appear likely to act in the immediate future.
"If ever there were an area that begged for immediate legislative action, this does," said Judge Talbot, "for the cases that are in the trial courts and for the cases that are pending on appeal."...
Michigan law automatically treats 17-year-olds as adults and allows prosecutors to do the same for even younger juveniles accused of violent crimes. It also requires mandatory life sentences without parole for certain crimes.
This "perfect storm" of statutes would make it difficult for the court to strike down a single provision without rewriting them all, Talbot said, expressing a reluctance but apparent need to legislate from the bench unless lawmakers step up. Acting on a request from Talbot, attorneys on both sides presented a series of "judicial fixes" that could provide relief to lower courts, which are looking for guidance as they consider sentencing juveniles convicted of violent crimes.
Some prior major posts on Miller and its potential impact:
- All juvenile defendants get narrow procedural Eighth Amendment win in Miller
- Issue-spotting the mess sure to follow Miller's narrow (procedural?) ruling
- Basic mandatory juve LWOP head-count in light of Miller
- Data and resources to gear up for the coming Miller meshugas
- Taking stock on what Miller is likely to portend
- Pennsylvania Supreme Court hearing arguments on (first?) major Miller retroactivity cases
- Intermediate Florida appeals court decides Miller is not to apply retoractively
- One of thousands of post-Miller personal (and sentencing) stories
October 17, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
Monday, October 15, 2012
Without fanfare, Louisiana Supreme Court gives retroactive effect to Miller via brief orderAccording to at least one accounting I have seen, Louisiana has nearly 250 persons serving LWOP for offenses committed when they juveniles. I believe this makes Louisiana fifth among all states in total juve LWOP prisonder (and the leading state if judged on a per-capita basis). Thus, a little ruling on Friday from the state Supreme Court in Louisiana v. Simmons, No. 11-KP-1810 (La. Oct. 12, 2012) (available here), seems like quite a big deal. Because the per curiam ruling is just one paragraph long, I will reprint the whole thing here:
Writ granted. Relator is presently serving a sentence of life imprisonment at hard labor without possibility of parole for a second degree murder committed in 1995 when he was 17 years old. The sentence was mandated by the penalty provision of the statute establishing the offense. La.R.S. 14:30.1(B). In 2011, relator filed a motion to correct an illegal sentence in which he contended that a sentence of life imprisonment without parole for a juvenile offender is no longer constitutionally permissible under developing legal standards, and in particular in light of Graham v. Florida, 560 U.S. __, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (Eight Amendment precludes sentencing juvenile offenders to life imprisonment without parole for non-homicide crimes). The district court denied relief. While review of that judgment was pending, the United States Supreme Court determined that mandatory life imprisonment without parole for those offenders under the age of 18 years at the time they committed a homicide offense violates the Eighth Amendment prohibition of “cruel and unusual punishments.” Miller v. Alabama, 567 U.S. ____, ____,132 S.Ct. 2455, 2466, 183 L.Ed.2d 407 (2012). Unlike the case in Graham, the Miller court did not prohibit life imprisonment without parole for juveniles, but instead required that a sentencing court consider an offender’s youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest possible penalty for juveniles who have committed a homicide offense. Therefore, we grant to remand to the district court for reconsideration after conducting a sentencing hearing in accord with the principles enunciated in Miller and stating the reasons for reconsideration and sentencing on the record.
Because of the date of the underlying conviction, this Simmons ruling seems like a big deal because it suggests that the Louisiana Supreme Court has, without pause, ordered giving retroactive effect to the Miller ruling. A little research indicates that Louisiana has a statutory provision providing for motion to correct an illegal sentence at any time, so perhaps it is neither surprising nor that big a deal that the state Supreme Court has here been quick to order what might be called a Miller resentencing hearing. Still, because there are so many Louisiana juve LWOPers, and because this order calls for "reconsideration after conducting a sentencing hearing in accord with the principles enunciated in Miller," this little ruling seems to me to be a big deal.
Some prior major posts on Miller and its potential impact:
- All juvenile defendants get narrow procedural Eighth Amendment win in Miller
- Issue-spotting the mess sure to follow Miller's narrow (procedural?) ruling
- Basic mandatory juve LWOP head-count in light of Miller
- Data and resources to gear up for the coming Miller meshugas
- Taking stock on what Miller is likely to portend
- Pennsylvania Supreme Court hearing arguments on (first?) major Miller retroactivity cases
- Intermediate Florida appeals court decides Miller is not to apply retoractively
- One of thousands of post-Miller personal (and sentencing) stories
October 15, 2012 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack
Saturday, July 21, 2012
"The Mandatory Meaning of Miller"
The title of this post is the title of this new piece by Professor William W. Berry III. Here is the abstract:
In June 2012, the United States Supreme Court held in Miller v. Alabama that the Eighth Amendment’s ban on 'cruel and unusual' punishment prohibited the imposition of mandatory life-without-parole sentences on juveniles. This case continued the Supreme Court’s slow but steady expansion of the scope of the Eighth Amendment over the past decade.
In light of the Court’s decision in Miller to preclude mandatory sentences of life without parole for juveniles, this article explores the possibility of further expansion of the Eighth Amendment to proscribe other kinds of mandatory sentences. Applying the approach of the Court in Woodson and Miller to other contexts provides, at the very least, a basis to remedy some of the injustices created by mandatory sentences.
This article, then, argues that the “mandatory” meaning of Miller is that the Eighth Amendment requires consideration of mitigating evidence by courts in all cases involving “death-in-custody” sentences. In light of this mandatory” meaning, the article then considers several important normative consequences.
Specifically, application of this 'mandatory' meaning would result in the Eighth Amendment barring imposition of a 'death-in-custody' sentence in capital cases where life with parole is not a sentencing option, cases involving a mandatory sentence of life without parole, and cases where the term of the sentence approaches the life expectancy of the offender. As explained below, the key principle here is that the Eighth Amendment requires courts to examine mitigating evidence in any case where the duration mandated legislative sentence exceeds the life expectancy of the offender.
Part I of this article explains the meaning of 'mandatory' as developed by Miller. In Part II, the article describes the normative consequences of adopting the 'mandatory' meaning of Miller -- when 'mandatory' matters -- in applying the Eighth Amendment to 'death-in-custody' cases. In Part III, the article then makes the case -- why 'mandatory' matters -- for adopting this approach in Eighth Amendment cases.
Thursday, July 05, 2012
NY Times editorial on Miller puts Gideon cart before the Teague horse
I continue to be intrigued that so many commentators seem so quick to assume that all the juvenile murderers sentenced to mandatory LWOP long ago will be sure to get resentenced as a result of the Supreme Court's Miller ruling. A high-profile example of commentary that appears to make this (harmful?) assumption comes from this New York Times editorial, which is headlined "A Moral Right to Counsel." Here is the editorial in full, with commentary to follow:
About 2,000 juvenile offenders serving life sentences without parole can now seek new sentencing hearings to challenge their punishment. The Supreme Court ruled last week that it is unconstitutional to impose such a sentence on a juvenile convicted of murder without an individualized finding that considers the defendant’s characteristics and the details of the crime.
But without capable lawyers to handle the hearings, the court’s humane ruling is unlikely to matter for those serving a mandatory life sentence received as a juvenile.
The constitutional right to counsel in criminal trials does not apply to these sentencing reviews because the offenders have already been convicted. But they can’t initiate a review if they cannot afford a lawyer. That’s why the federal government and the 28 states affected need to provide them with lawyers as a moral right.
And not just any lawyer. The court said juveniles have a less developed sense of responsibility and should not necessarily get the same punishment as adults. The hearings will require lawyers with training in psychology and human development to argue convincingly that an offender’s record supports reducing a life sentence — including what Justice Elena Kagan, in her majority opinion, called a juvenile offender’s “immaturity, recklessness, and impetuosity” at the time of the crime.
In addition, states must provide funds for expert witnesses to help the lawyers do their job, as is now required in the sentencing phase of death penalty cases, where mitigating factors are weighed.
Almost one-quarter of those serving mandatory life sentences have been in prison for 21 years or longer. For them, Justice Kagan said, a state must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”
In many cases, the offender’s young age and a history of being abused, for example, were so striking that judges said during sentencing that they were imposing mandatory life without parole because they had no choice. States should ensure that these offenders receive new hearings and the assistance of effective counsel.
There are so many assertions in this editorial that are flat-out wrong or deeply misguided, I am not sure where to start. To begin, as my post headline and introduction highlights, this editorial seems to assume that all long-ago sentenced juve murderers will get the benefit of the new procedural rule of Miller. But, as I stressed in my very first Miller aftermath post here, states can (and will?) argue that Miller is inapplicable to final juve LWOP sentences imposed long ago because it is a new rule of criminal procedure that should not apply retroactively under Teague.
This editorial also seems misguided when it asserts that the Sixth Amendment right to counsel "does not apply to these sentencing reviews because the offenders have already been convicted." It is true that there is no constitutional right to counsel for a habeas petition, but if/when a defendant were to secure a true, full trial court "resentencing" after Miller through a successful habeas petition, the Sixth Amendment right to counsel arguably would apply just as it does at an initial sentencing. (Indigent federal defendants often get their sentences reversed on direct appeal in the federal system and I have never seen a claim that they lack a right to counsel at a true, full trial court "resentencing".)
This editorial also seems misguided when it asserts that mandatory LWOP sentenced defendants "can’t initiate a review if they cannot afford a lawyer." These defendant surely can (and should) initiate a habeas petition pro se; a lawyer is not absolutely necessary here (or ever) to bring a habeas petition. Though it is surely true that a high-quality lawyer will likely be better able to develop a stronger habeas claim (and make stronger points at any full resentencing), it is certainly not true that review cannot be initiated without a lawyer.
This editorial also seems misguided when it suggests that the mandatory LWOP sentenced defendants who have already "been in prison 21 years" or longer now must be given "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." In fact, even if these long-serving LWOPers get the benefit of Miller's new rule, they still can be constitutionally resentenced to LWOP and thus can still be sentenced to die in prison as long as that decision is made individually by a judge or jury bases on the specific case facts.
Last but certainly not least, this editorial also seems misguided when it suggests governments have a "moral" obligation to providing enough funding so that these juve murderers now get the best lawyers to help them argue for a second bite at the sentencing apple. I think it would be very appropriate and valuable if the NY Times had asserted that all the highly (over?)paid corporate lawyers in NYC have a moral obligation to provide pro bono assistance to the roughly 2000 juvenile defendants who might be able to benefit from Miller. (I suspect there are well over 2000 lawyers in NYC alone making a seven-figure salary, so a real pro-bono commitment for major law firms should mean every one of the juve defendants potential impacted by Miller could have a million-dollar lawyer.)
But with states now strapped to find taxpayer resources to help hungry kids and sick old people and so many other innocent persons struggling in this down economy, I find disconcerting the notion that there is moral obligation on states to take money away from other urgent priorities in order to (excessively) fund lawyers to help get these juve murderers another bite at the sentencing apple. (Of course, I would be happy to bill in full for all my lawyering time to help out these defendants if and when any state steps up to the plate with a big pile of funding for lawyers as the New York Times says they should.)
July 5, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (22) | TrackBack
Wednesday, July 04, 2012
Judge down under laments mandatory 20 years (with parole) for brutal contract killer
The debates on this blog over the Supreme Court's recent work in Miller finding unconstitutional a mandatory LWOP sentence for a juvenile killer (see comments to posts here and here) have been robust and at times (over)heated. With the Miller case and controversy fresh in mind, I found this new local story from Australia quite interesting and comparatively telling. The story is headlined "Judge slams mandatory sentencing laws as 'unjust'," and here are excerpts:
A Supreme Court judge has criticised the Northern Territory sentencing regime as "unjust and unfair". Justice Dean Mildren made the comment after sentencing Darren Jason Halfpenny to 20 years in jail for the contract killing of a man in Katherine.
Justice Mildren said he was required to impose a minimum 20 year prison term because of the mandatory sentencing regime in the Territory. "It is unjust and unfair, and contrary to the public interest, that prisoners who plead guilty ... and are remorseful ... are left in a situation where their earlier release is left in the hands of the executive (government)," he said.
Russell Golflam of the Criminal Lawyers Association of the Northern Territory agrees. "Mandatory sentencing is, in principle, obnoxious," he said. Mr Golflam says judges should be given the power to do the job that they're paid to do; impose appropriate penalties according to the circumstances of the case. "Parliament and governments should not take that job away from judges," he said. He is calling for the Sentencing Act to be amended.
Justice Mildren recommended that Halfpenny be released on parole after 14 years because he will testify against his co-accused in the murder....
During the trial, the court heard Darren Halfpenny and two friends, Christopher Malyschko and Zac Grieve, donned shower caps and gloves before entering the Katherine house where Ray Niceforo lived. The court was told Mr Niceforo, 41, was struck in the head with a blunt object seven times, then had a rope tied around his neck.
His body was wrapped in a tarpaulin and put into a van before being dumped in bushland. The body was found the following day and an autopsy found Mr Niceforo died from a blunt force head injury or asphyxiation.
Halfpenny was questioned by police a few days later and confessed. He later agreed to testify against his co-accused, Malyschko and Grieve, who have been charged with murder.
The court was told the three men carried out the killing for a payment of $5,000 each. Crown prosecutor Jack Karzevski, QC, said the contract killing was commissioned by Bronwyn Buttery, the ex-partner of Mr Niceforo, who has also been charged with murder.
So, let's do a little compare/contrast concerning judicial sentencing attitudes in the land down under and in the land of the free:
--- in Australia, a sentencing judge is bemoaning as "unjust and unfair" a legislative requirement to impose a 20-year prison term with parole on an adult who intentionally committed a brutal contract murder. This kind of homicide in the US would clearly qualify as first-degree murder in just about every US state and in most would make the defendant eligible for the death penalty. The defendant's decision to plead guilty and cooperate would likely prompt most US prosecutors to take the death penalty off the table but likely still would make a (perhaps mandatory) LWOP sentence still possible (even probably) for the premeditated and henious crime.
--- in the United States, four Justices of our Supreme Court in Miller have bemoaned the majority's ruling that the US Constitutional prohibits a legislative requirement to impos a life prison term without parole on a 14-year-old who unexpectedly had a role in the another's lethal shooting of a store clerk during an intentional robbery. This kind of homicide in Australia, I suspect based on this somewhat dated report on homicide sentencing patterns, would likely result in the offender getting a prison sentence of just over 10 years with the possibility of parole a few years soon.
For a host of reasons, I am strongly disinclined to assert that Australia's sentencing approach to murder offenses is to preferred to the US system, and that kind of claim is not the point of this post. Rather, my goal here is just to highlight (especially on July 4th, the day we most celebrate America as the land of the free and the home of the brave) the reality that a judge in Australia is quick to lament having to impose a 20-year prison term with parole on a brutal adult contract killer, while in Miller we see four Justices being quick to lament our Constitution being interpretted to giving a 14-year-old convicted of felony murder just the chance to seek a sentence less than life prison term without parole.
July 4, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentencing around the world, Who Sentences? | Permalink | Comments (25) | TrackBack
Wednesday, June 27, 2012
Questioning forceful (but suspect) claims by the varied Miller dissents: the Thomas/originalism methods
As previously explained here, in a series of posts I am trying to explain briefly what I see as a suspect judgment or assertion or conclusion at the heart of each dissenting opinion to the Supreme Court's new Eighth Amendment SCOTUS Miller ruling (opinion here, basic questions here and here and here). In the first post here, I questioned number-crunching in the Roberts/textualism dissent. In this second post now, I question claims about LWOP as a method of punishment in what I am calling the Thomas/originalism dissent.
Justice Thomas' Miller dissent, which was joined only by Justice Scalia, rests on an originalism claim in this sentence: "As I have previously explained, '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.' Graham (dissenting opinion)[FN 2]." The associated footnote 2 then says (cites omitted): "Neither the Court nor petitioners argue that petitioners’ sentences would have been among the modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted. Nor could they. Petitioners were 14 years old at the time they committed their crimes. When the Bill of Rights was ratified, 14-year-oldswere subject to trial and punishment as adult offenders. Further, mandatory death sentences were common at that time. It is therefore implausible that a 14-year-old’s mandatory prison sentence — of any length, with or without parole — would have been viewed as cruel and unusual."
Though I am not deeply versed in Eighth Amendment originalism, I do know some reasonably contest that the Eighth Amendment was only "originally understood as prohibiting torturous methods of punishment." But even if one fully accepts Justice Thomas' claim that the Eighth Amendment is only to be viewed as a restriction on punishment methods, I do not find it "implausible" to contend that those who enacted the Eighth Amendment in the late 18th century (and/or those who enacted the Fourteenth Amendment in the mid 19th Century) would view an LWOP prison term as "akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted."
A critical assumption built into the (suspect) logic of Justice Thomas' reasoning in footnote 2 is that, because the death penalty was not considered a cruel and unusual method of punishment for teens at the time the Bill of Rights was adopted, surely then must the seemingly lesser punishment method of prison not have been considered cruel and unusual. But the Eighth Amendment surely was never meant or understood to support the claim that because death is a constitutional method of punishment everything short of death and/or leading up to death is also constitutional. Many infamous forms of torture punishments around during the colonial period (such as thumbscrews, ducking stools, and the rack) were often not expected or intended to cause death, and yet all seem to agree that these methods of punishment would violated the Eighth Amendment even from an originalist perspective. In addition, originalists seem also to agree that severe physical punishments designed to cause a painful "lingering death" in the process of completing an execution (such as the breaking wheel or drawing and quartering) were modes of punishment being barred by the Eighth Amendment's prohibition on cruel and unusual punishments.
Of course, being locked in a prison cage is surely not as physically painful a method as thumbscrews or the rack, especially over a short period of time. But prison as the deprivation of liberty over time is surely a distinct method of punishment, and an LWOP prison term lasting many decades is surely much more physically and mentally taxing than, say, being subjected for a few days to thumbscrews or waterboarding. (Indeed, I would wager many relatively young offender serving an LWOP would agree to enduring thumbscrews or waterboarding for a few days in order to get a real chance for an early release.) In other words, though a day in prison is surely a less torturous method of punishment than a day on the rack, I am not sure that necessarily means that an LWOP prison term lasting many decades is a less torturous method of punishment than a day on the rack.
Moreover, bringing back in the Framers' mindset, in this context I often think of Patrick Henry's famed quote of "Give me liberty or give me death" and President Lincoln's famed description of America as a nation "conceived in liberty." Against that backdrop, I think one might fairly conclude that many Framers would have viewed a LWOP prison term's permanent deprivation of human liberty to be a method of punishment (much?) worse than death. Indeed, what truly makes an LWOP sentence so severe and extreme is that it is arguably just a form of "lingering death" because deprivation of any chance at parole ensures that an offender will forever linger in prison (sometimes with only slightly more liberty than someone left on a rack if always kept in solitary confinement) until he eventually dies. (The fact that prison was concevied and designed to be soley a method of rehabilitative punishment around the time of enactment of the 14th Amendment add to my view that an LWOP prison term might very well have been viewed as both cruel and unusual to many Americans throughout much of American history.)
My point here is decidedly not that I think an originalist approach to the Eighth Amendment is ideal or provides a clear jurisprudence concerning when an LWOP sentence might and might not be constitutionally permissible. Rather, as in all my posts in this series on the Miller dissents, I just want to flag the reality that the originalist claim that only some methods of punishment are unconstitutional does not necessarily and obviously, as Justice Thomas seeks to suggest, produce the conclusion that the LWOP sentences at issue in Miller were constitutional. Indeed, because liberty-deprivation through confinement in prisons (and especially the LWOP sentence) are really a very modern mode/technology of punishment wholly unknown to the Framers, I think trying to figure out what the Framers would have thought about LWOP prison terms is a bit like trying to figure out what the Framers would have thought about the internet: one's personal views about the new technology will necessarily color one's judgment as to what the Framers' would have thought.
Related post in this series:
- Questioning forceful (but suspect) claims by the varied Miller dissents: the Roberts/textualism numbers
Tuesday, June 26, 2012
Questioning forceful (but suspect) claims by the varied Miller dissents: the Roberts/textualism numbers
Though I still have tons of questions about what the new Eighth Amendment SCOTUS Miller ruling will come to mean (opinion here, basic questions here and here and here), I now have some first thoughts on the three intriguing Miller dissents. Though covering some overlapping grounds (and overlapping votes), I think it is fair to short-hand these dissents using their authors and main themes: (1) the Roberts/textualism dissent, (2) the Thomas/originalism dissent, and (3) the Alito/legislative judgment dissent.
Notably, the relatively short Miller majority opinion (perhaps wisely) does not very deeply engage with all the points made in the dissenting opinions, but there is a lot of interest and force in these dissents. However, though seemingly forceful in various ways, I see a suspect judgment or assertion or conclusion at the heart of each dissent. In a series of three posts, I hope to explain briefly the suspect foundation in each of these dissents. I will start here by questioning number-crunching in the Roberts/textualism dissent in Miller.
Chief Justice Roberts' lead Miller dissent, which was signed by all the dissenters, rests on a forceful textual point set forth in these two sentences at the end of first paragraph: "The pertinent law here is the Eighth Amendment to the Constitution, which prohibits 'cruel and unusual punishments.' Today, the Court invokes that Amendment to ban a punishment that the Court does not itself characterize as unusual, and that could not plausibly be described as such." Though I see much force and wisdom in the Chief's concern for the term "unusual" in any interpretion of the Eighth Amendment, I think a careful and sober assessment of the data makes it quite "plausible" to characterize the sentences at issue in Miller as unusual.
First, if we focus just on Kuntrell Jackson's case before SCOTUS, it seems quite "unusual" for a teenage accomplice to a felony with no clear intent to kill and no significant criminal history to be subject to a mandatory LWOP sentence. Though data here can be slippery, there are probably hundreds (if not thousands) of teens each year who are accomplices to felonies in which someone is killed and I suspect very few of these teenage felony-murder accomplices in any given year get a mandatory LWOP. (Many of the teen accomplices without a criminal history, I would bet, are not even arrested or charged with murder, let alone brought into the adult system and subject to a mandatory LWOP sentence.)
There has been, roughly speaking, about 40 years of modern LWOP sentencing, which in turn has resulted in a total of about 2500 juve killers with LWOP sentences (of which about 2000 were imposed manditorily). I would be surprised if more than 20 of these juve LWOPers are just teenage felony-murder accomplices without a significant criminal history like Kuntrell Jackson. Because one could (very conservatively) guess that there have been 20,000 teenage felony-murder accomplices over the last four decades, Kuntrell Jackson's sentence is fairly considered a 1 in 1000 event. It seems quite appropriate (and surely "plausible") to describe such a rare event as "unusual."
Of course, ever the careful and effectively dissenter, the Chief Justice does not really take on whether Kuntrell Jackson's sentence is "unusual" (and his Graham concurrence leads me to think he might have been inclined to join a very narrow opinion that just struck down Jackson's mandatory sentence, perhaps with emphasis on mens rea points stressed in Justice Breyer's concurrence). Rather, the heart of the Chief's dissent is his complaint is that the majority in Miller has used the Eighth Amendment to "ban a punishment" (i.e., mandatory LWOP for any and all teen killers) that is not "unusual." But, even with this wider framing, I am not sure the numbers concerning the frequency of mandatory LWOP are as compelling as the Chief suggests.
Again, as to the frequency of the sentence, we have gone 40 years to get roughly 2000 mandatory juve LWOP sentences imposed, meaning we average over this period roughly 50 such sentences per year. In footnote 1 of his dissent, the Chief notes than DOJ statistics indicate that 1,170 juves were arrested for serious homicide in 2009. Taking just these numbers on their face, one could assert that a juve killer getting a mandatory LWOP sentence is roughly a 1 in 23 event. I think it is possible (and surely "plausible") to describe a 1 in 23 event as "unusual," though surely reasonable minds could differ on this front. (To use a sports metaphor, I think it would be reasonable to say it is "unusual" when the New York Mets win the World Series, even though they have done so twice in the last 45 years.)
Moreover, and perhaps more important, the Chief has fudged the numbers here a bit when referencing the 1,170 juves arrested for serious homicide in 2009, because juve homicides are way down compared to just a decade ago. Once again, data here can be slippery, but I think it is fair to say there were on average much closer to 2000 juve homicides per year over the last 40 years. Using 2000 as the denominator, the odds of a juve killer getting a mandatory LWOP is now a 1 in 40 event. Something that happens only 2.5% of the time seems to me to be "unusual."
This all said, the Chief Justice is certainly on solid ground that a mandatory LWOP sentence for a juve killer is not as unusual as the juve LWOP nonhomicide sentences at issue in Graham. But, critically, the text of the Eighth Amendment does not demand that a punishment be "very unusual" to be unconstitutional, it only demands that a punishment be "unusual." Further still, I do not think this number crunching holds the secret to unlocking an idealized modern Eighth Amendment jurisprudence. But, as will be my goal in all my posts in this series on the Miller dissents, I just want to flag the reality that a key forceful claim in this lead dissent can be viewed as suspect when fully unpacked.