Sentencing Law and Policy

Nebraska legislature debating "Miller fix" sentencing proposals

As reported in this local article, headlined "Debate begins on juvenile sentencing bill," the single body that legislates in Nebraska is sorting through competing ways to deal with the Supreme Court's handiwork in Miller.  Here are the basics:

Senators turned away two attempts Monday to amend a bill that calls for a minimum sentence of 30 years for juveniles convicted of first-degree or felony murder.

They defeated amendments that sought to make the minimum sentence 60 years and one that would have removed specific mitigating factors for judges to consider when sentencing....

A 30-year minimum sentence would provide discretion to the courts and is in line with current science on juvenile brain development, said Omaha Sen. Brad Ashford, who introduced the bill.

With a 30-year minimum sentence, the offender would be eligible for parole in 15 years. A judge would have the option of sentencing the convicted juvenile to more time -- or could impose a life sentence.

The Supreme Court ruled judges must consider a defendant's age, immaturity, impetuosity and failure to appreciate risks and consequences. They must take into account the family and home environment that surrounds the youth. The Nebraska bill would require the court to consider those mitigating factors, as well as the outcome of a comprehensive mental health evaluation by a licensed adolescent mental health professional.

On Monday, senators defeated an amendment by Omaha Sen. Scott Lautenbaugh, after dividing it into two questions: One that would have made the minimum sentence 60 years was defeated on a 21-23 vote. The other, which would have eliminated consideration of mitigating factors, was defeated on a 16-27 vote.

Ashford said in crafting a constitutional solution to the Nebraska life sentence, the committee knew the 35-year sentence in Pennsylvania and the 60-year sentence in Iowa were under constitutional attack. "Sixty is just beyond the pale. It would never, in my view, pass constitutional muster," he said.

Supporters of the amendment said the possibility of parole after 15 years was unacceptable. And judges already consider such factors as those listed in the bill. Omaha Sen. Beau McCoy said the discussion on the 60-year minimum sentence could resume Tuesday.

Among other stories, I find it interesting and notable that on-going constitutional litigation in other states over efforts to respond to Miller is clearly impacting how Nebraska's legislature is working through its legislative fix.  I think famed constitutional theorist Alexander Bickel, who often spoke of the import and impact of a multi-branch national dialogue about core constitutional principles (see post here by Barry Friedman at SCOTUSblog), would be quite pleased to see how just such a dialogue is unfolding as to how best to operationalize the sentencing principles set out in the Miller ruling.

Florida still trying to figure out its Miller fix

As reported in this local article, headlined "Lawmakers differ on how to fix juvenile sentencing laws," Florida is still not yet sure how it will change its laws to comply with the Supreme Court's ruling last year in Miller.   Here are the basics:

[W]ith the 2013 legislative session at its midpoint, it’s unclear if legislation will be passed fixing the problem. It’s also unclear if the legislation will allow judges to sentence minors to lesser sentences, or if some form of parole will return to Florida for the first time in a generation.

“It is something that needs to be fixed,” said state Sen. Darren Soto, D-Orlando, who has introduced one of the several bills that would amend Florida’s sentencing laws. “But there doesn’t seem to be much will to get anything done.”...

Florida law now mandates anyone convicted of first-degree murder gets life in prison without the possibility of parole, if they are not sentenced to death. There are no exceptions for people younger than 18....

State Sen. Rob Bradley, R-Fleming Island, has introduced a bill that would allow judges to sentence minors to less than life in prison. It requires any minor convicted of first-degree murder to go through a sentencing hearing where both sides would argue what the sentence should be.

Issues like a defendant’s background, remorse, education and family history could be introduced for a judge to consider. The family of the victim would also be allowed to testify. Parole was eliminated for anyone convicted after 1994, and Bradley’s bill still prohibits it.

“I am not comfortable with a hearing occurring every five years or so where a family shows up and argues about why the defendant who killed their loved one should stay in jail,” he said. “A parole-like system is not in the best interests of Florida.”

Soto’s bill does the opposite. Life sentences are still required, but juvenile defendants will be up for parole 15 to 25 years after the sentencing occurred. “I do think they need to go to jail for a long time,” Soto said. “But children that age do deserve an opportunity to get out.”

When they’re up for parole, whether they’ve educated themselves in prison and what their family life was like beforehand will be considered, Soto said. Soto’s legislation also permits parole for juveniles who get life sentences for lesser offenses like second-degree murder. Those people would be up for parole after 15 years while first-degree murderers would have to wait 25 years.

J.D. Moorehead, a professor at Florida Coastal School of Law, said Bradley’s legislation would likely survive a court challenge because it addresses the major concern the Supreme Court had. Soto’s plan to bring back the parole system might be more problematic, although it does make a certain amount of sense to bring back parole for juveniles, Moorehead said.

The most logical step might be to take a hybrid of both bills, give judges the option of life without parole but allow them to impose a lighter sentence, and also let judges decide whether the defendant should be eligible for parole at some point, Moorehead said. “Judges know the people in front of them best,” he said.

"Sentencing the Why of White Collar Crime"

The title of this post is the title of this notable new article by Todd Haugh now available via SSRN. (This article seems especially timely in light of the recent news that a sentencing deal might be in the works for former Enron CEO Jeff Skilling.) Here is the abstract:

“So why did Mr. Gupta do it?” That question was at the heart of Judge Jed Rakoff’s recent sentencing of Rajat Gupta, a former Wall Street titan and the most high-profile insider trading defendant of the past 30 years.  The answer, which the court actively sought by inquiring into Gupta’s psychological motivations, resulted in a two-year sentence, eight years less than the government requested.  What was it that Judge Rakoff found in Gupta that warranted such a modest sentence?  While it was ultimately unclear to the court exactly what motivated Gupta to commit such a “terrible breach of trust,” it is exceedingly clear that Judge Rakoff’s search for those motivations impacted the sentence imposed.

This search by judges sentencing white collar defendants — the search to understand the “why” motivating defendants’ actions — is what this article explores.  When judges inquire into defendants’ motivations, they necessarily delve into the psychological justifications defendants employ to free themselves from the social norms they previously followed, thereby allowing themselves to engage in criminality.  These “techniques of neutralization” are precursors to white collar crime, and they impact courts’ sentencing decisions.  Yet the role of neutralizations in sentencing has been largely unexamined. 

This article rectifies that absence by drawing on established criminological theory and applying it to three recent high-profile white collar cases.  Ultimately, this article concludes that judges’ search for the “why” of white collar crime, which occurs primarily through the exploration of offender neutralizations, is legally and normatively justified.  While there are potential drawbacks to judges conducting these inquiries, they are outweighed by the benefits of increased individualized sentencing and opportunities to disrupt the mechanisms that make white collar crime possible.

Two notable resentencing stories via the New York Times

Continuing its recent notable extra interest in an array of modern sentencing stories, today's New York Times has two pieces that are both must reads for all sentencing fans.  And because neither story enables simply summarization, I will just here reprint the headlines and the links:

• "Long Prison Term Is Less So Thanks to Regrets by a Judge"

• "Victim and Prosecutor Back Death Row Inmate’s Bid for Resentencing"

Ever the nerdy and obsessed sentencing law professor, I could readily imagine teaching a week of classes about either of these noteworthy cases.  But I wonder if readers think one or the other of these modern sentencing stories merits some extra blog attention.

You be the sentencing judge: what is a fair and effective sentence of 86-year-old mercy killer?

I thought that, while folks continue to vigorously debate how Colorado prosecutors should deal with mass murderer James Holmes in the comments to this recent post, it would also be interesting to hear how readers might sentence a very different killer due in court today in Arizona.  This USA Today article, headlined "Man charged in 'mercy killing' set for sentencing: 86-year-old World War II veteran said his wife was set to be admitted to a hospital, then a nursing home," sets out the essential of another hard case:

George Sanders appeared frail and tired in the hours after he shot his ailing elderly wife in the head, wrapped in a blanket as he sat being questioned by a detective.

"She never wanted to outlive me and be left at the mercy of someone else," Sanders tells a Maricopa County sheriff's detective in an interrogation recorded the day his wife, Virginia Sanders, 81, was found shot in the couple's home.  "We loved each other so much," Sanders said.  "It was a wonderful life in spite of all the hard things we had at the end."

The 86-year-old was initially charged with first-degree murder for the Nov. 9 shooting of his wife but later pleaded guilty to manslaughter in what attorneys on both sides have called a "mercy killing."

Sanders could face probation or up to 12 1/2 years in prison at his sentencing hearing Friday....

The World War II veteran told authorities his wife was diagnosed with multiple sclerosis in 1969, and the couple moved from Washington state to the retirement community of Sun City outside Phoenix about seven years later for the warm, dry climate as she was now in a wheelchair.  "We did a lot of things together, always loved each other," he told the detective, adding that her health began to deteriorate over the last few years.  "I took care of her through that day and night," Sanders said.

Eventually, as his own health deteriorated, he said the couple hired a caregiver.  He said his wife had been diagnosed with gangrene on her foot just a few days before the shooting and was set to be admitted to a hospital, then a nursing home.  "It was just the last straw," Sanders said.  "She didn't want to go to that hospital ... start cutting her toes off."

He said he talked it over with his wife and she begged him to kill her. "I said, 'I can't do it honey,'" he told police. "She says, 'Yes you can.'"

Sanders said he got his revolver and wrapped a towel around it so the bullet wouldn't go into the kitchen.  "She says, 'Is this going to hurt,' and I said, 'You won't feel a thing,'" he said. "She was saying, 'Do it. Do it. Do it.'  And I just let it go," Sanders added.

I have highlighted in this story the sentencing range provided by state law for this crime. Because the Arizona legislature apparently believes that some persons convicted of manslaughter should get a sentence of only probation, and because I have a hard time thinking of too many more mitigated cases of manslaughter, I would likely impose a sentence of probation on Mr. Sanders. But perhaps others have a different perspective on what they think sentencing justice demands in this kind of case.

UPDATE: This report via ABC News has a headline with the ultimate sentencing outcome: "Man, 86, Gets Probation in Ariz. Mercy Killing."  Here is a snippet from the story:

The judge, who complimented the prosecutor for being "courageous" in recommending probation, allowed Sanders to walk out of the courtroom.  Judge John Ditsworth said his sentence of two years' probation was "individualized and tempers justice with mercy."

"It is very clear that he will never forget that his actions ended the life of his wife," Ditsworth said as Sanders stood at a podium, his hands clasped and shaking.  "In this set of facts, there was a perfect storm of individual circumstances which placed Mr. Sanders in a position where had to make a decision," Ditsworth said.  "This set of facts hits close to home for all of us."

"On Emotion, Juvenile Sex Offenders, and Mandatory Registration"

The title of this post is the title of this paper authored by Catherine Carpenter recently made available via SSRN. Here is the abstract:

It is both unremarkable and true that juveniles are different from adults. United States Supreme Court decisions over the past decade have highlighted the extent of the differences.  Yet, played out against the backdrop of sex offender registration laws, the conversation takes an abrupt turn.  Rather than differentiating between adult and juvenile offenders, federal sex offender registration laws require juveniles convicted of certain sex offenses to face the same onerous registration and notification burdens as their adult counterparts.

Tracking the shift in sex offender registration models from “likely to reoffend” to “conviction-based" assessment, this article argues that “conviction-based” assessment is an unstable proposition when applied to child offenders for two fundamental reasons. First, juvenile offenders lack intentionality and purpose that adult offenders possess, thereby diminishing the value that a conviction carries.  Further, and more importantly, studies reveal that the commission of juvenile sex crimes does not portend future predatory behavior, raising the question of the purpose of registration for this class of offenders.

Ultimately, the legislative push to require juvenile sex offenders to suffer serious register and notification burdens demonstrates convincingly the pitfall that impacts the entire debate over sex offender registration.  Emotional rhetoric controls the legislative agenda, even in the face of compelling arguments to the contrary.

Pennsylvania Supreme Court addresses Miller's impact for some of its state's juvenile murderers

As reported in this local news article, headlined "Supreme Court: Juvenile killer to get new sentencing,"  Pennsylvania's top court handed down today a long-awaited ruling concerning the sentencing of juvenile offenders in the Keystone State.  Here are the basics via this news report:

Teenage killer Qu'eed Batts will receive a new sentencing hearing for the gang-ordered murder he committed in Easton when he was 14, but he could still end up spending the rest of his life in prison nonetheless.

That's what advocates on both sides of Batts' case said Tuesday following a long-anticipated Pennsylvania Supreme Court ruling on how the state should address Batts and nearly 500 other once-youthful murderers whose automatic life without parole sentences were declared unconstitutional last year by the nation's highest court.

Given the federal ruling that such sentences are cruel and unusual punishment, Batts must be given a new sentencing hearing in which he receives a maximum sentence of life and a minimum sentence determined by the judge, said the opinion by Justice Thomas Saylor.

But what that minimum sentence might be was unanswered by court, with advocates for juveniles acknowledging that it probably could still be a life sentence, or a prison term that is so long that it is, in essence, life.  "That could be anything," said Robert Schwartz, the executive director of the Juvenile Law Center of Philadelphia, which argued on behalf of Batts.  "It appears that it also could be a minimum of life.  There is absolutely nothing to guide [the sentencing judge's] discretion."

In reaching its decision, the Supreme Court addressed an issue that it struggled with during oral arguments in September: What to do over the fate of Batts and other juveniles murderers serving a now-unconstitutional sentence.  The court rejected the stance taken by the Juvenile Law Center: that youths serving life terms should be resentenced under the charge of third-degree murder, which can bring at most 20 to 40 years in prison.

Northampton County First Deputy District Attorney Terence Houck said the ruling was a victory for prosecutors that leaves open the possibility that Batts should never be released, as Houck plans to argue at resentencing.  "All they are saying is that there has to be a minimum.  That minimum can be 150 years," Houck said, adding: "I don't think Batts should ever get out.  He's the poster boy for life in prison."  Batts, now 21, shot to death 16-year-old Clarence Edwards and wounded 18-year-old Cory Hilario in 2006 in the West Ward....

Under state law, murders in the first and second degree must result in a life sentence, with no other punishment possible — the exact scenario the nation's top court deemed unconstitutional for those under 18....

Pennsylvania leads the nation in the number of juveniles jailed for life, according to the Campaign for the Fair Sentencing of Youth, which opposes that penalty.  Pennsylvania has 444 such inmates, followed by Michigan at 346 and Louisiana at 332, the Washington, D.C.-based group says.  The Juvenile Law Center puts Pennsylvania's number closer to 480, including one inmate in Graterford State Prison who has spent 59 years behind bars.

The extended majority opinion in Pennslyvania v. Batts is available at this link, and a brief concurrence is available at this link.  A quick read of the ruling suggests to me that Deputy DA Terence Houck is right to view this ruling as a victory for prosecutors: in addition to rejecting claims that the defendant should be subject to sentencing under a lesser-degree of homicide, the Batts court also rejected any claim that the Pennsylvania Constitution's prohibition of "cruel punishment" should be interpreted to give juvenile defendants any more protection than the US Constitution and its prohibition on "cruel and unusual punishment."

Finally, while the news report suggests this ruling resolves the fate of all juve LWOP sentences in Pennsylvania, my quick review of the Batts opinion suggests that the ruling does not address any Miller retroactivity rulings.  For some reason, I had thought retroactivity issues were before the Pennsylvania's top court, but the Batts ruling states in its first sentence that it "concerns the appropriate remedy, on direct appeal, for the constitutional violation occurring when a mandatory life-without-parole sentence has been imposed on a defendant convicted of first-degree murder, who was under the age of eighteen at the time of his offense" (emphasis added).

How Appealing has a round up of additional press coverage concerning the Batts ruling here.

"Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness"

The title of this post is the title of this significant new article by E. Lea Johnston, which is now available via SSRN. Here is the abstract:

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms.

The Article then explores the significance of this differential impact for sentencing within a retributive framework.  It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm proximately caused by the state during confinement and addresses in particular the troublesome issue of prison violence.  It then turns to just desert theory and principles of ordinal and cardinal proportionality to identify three ways in which vulnerability to serious harm may factor into sentencing.

In so doing, the Article advances the current debate about the relevance of individual suffering to retributivism and lays the theoretical groundwork for the consideration of vulnerability due to mental illness as a morally relevant element in sentencing decisions.

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"?

Comments on Steubenville outcomes: "Juvenile Court is supposed to be better than this"

My Ohio State College of Law colleague Kimberly Jordan, who helps runs OSU's Justice for Children Project, sent me the following interesting (sentencing-related) comments following today's verdicts and sentences in the (surprisingly?) high-profile juvenile sex offense case in Steubenville, Ohio:

The intersection of social media, teen drinking, small town football, and sex led to two young men, Trent Mays and Ma’lik Richmond, being adjudicated delinquent in juvenile court this weekend -- the equivalent of a guilty finding if the boys had been adults at the time of the incident.  Their being found guilty is not a huge surprise; the prosecution did a tremendous job pulling thousands of text messages and social media posts to make their case.  The surprise is that the court failed to adequately address their disposition, or imposition of the sentence.  From all appearances, no investigative work was done by the court post-adjudication.  That means no pre-sentence investigation, social history, or risk assessment tool was utilized to determine what punishment was appropriate for these boys.  Their attorneys, in prior hearings, had presented letters and documents to the court to argue for their pre-trial release, but did not have the opportunity today to present any witness testimony or other information before Judge Lipps ordered them remanded to juvenile prison.

This is one unique function of juvenile court; judges are given wide latitude in fashioning a disposition that serves to meet the needs of the child and hold him accountable for his offense.  As an attorney, though, I am shocked at the serious deprivation Trent and Ma’lik are now facing, without any attention paid to their mental health, possible intervening life circumstances, prior participation (or not) in rehabilitative services, and individual strengths and weaknesses.  Yes, they did the crime, but juveniles are not subject to mandatory sentences.  Trent and Ma’Lik were not tried as adults.  They could have been, having been charged with the serious crime of rape.  The prosecutor handling the case for the State of Ohio has the discretion whether to ask the juvenile court to bind over, or transfer the juvenile’s case to adult court.  Certain categories of offense are automatically transferred, but rape is not one of them (the legislature could certainly include it, but has wisely left transfer for the murder categories of crime).  In order for the juvenile court to exercise discretion to transfer a case to the adult criminal court, it must make a finding that the particular juvenile is not amenable to juvenile court treatment.  Given that Trent and Ma’lik had never been in trouble with the juvenile court before, this likely would have been an uphill battle for the prosecution.

Since the case stayed in juvenile court, only juvenile court sentences -- called dispositions -- were available if the boys were found guilty.  Here, Judge Lipps utilized the most severe punishment possible for Trent and Malik -- commitment to The Department of Youth Services (DYS), or juvenile prison.  Both boys will be assessed for their treatment needs once at the facility, including undergoing assessments to determine their level of risk for re-offending in a sexual manner.  They will be treated like inmates, but they will also go to school and receive counseling, likely both in groups and as individuals.  Their stay at DYS will be determined by the amount of progress they make in meeting their treatment goals. Trent, however, will serve a minimum of two years in DYS, while Ma’lik will serve a minimum of one year.  They can both be held until they are 21 years old.

Some might wonder whether a 4-5 year juvenile sentence is enough punishment for these boys’ actions.  In Ohio, juveniles can be sentenced to both juvenile and adult time if they are deemed “Serious Youthful Offenders.”  Again, the individual prosecutor handling the case has the decision making power; the ultimate determination is made by the juvenile court.  The court has to decide that, “given the nature and circumstances of the violation and the history of the child, the length of time, level of security, and types of programming and resources available in the juvenile system alone are not adequate to provide the juvenile court with a reasonable expectation” that the purposes of the juvenile court will not be met. O.R.C. 2152.13(D)(2)(a)(i).  This boils down to a judge believing that the juvenile court’s punishment will not be enough to either rehabilitate the child, or is not adequate to hold the child accountable for his actions, or both.

Regardless of whether the boys serve anywhere close to the maximum sentence, there will be a determination, at the end of their prison stay, about whether they will have to register as sex offenders.  That determination is rightly made after the provision of rehabilitative services at DYS.  At the time of their release, the court will hold a hearing to determine the effectiveness of their treatment, and determine whether registration is necessary to protect the public.

Juvenile court was the right place for Trent and Ma’lik.  Regardless of the circumstances surrounding them in Steubenville football and politics, their actions were ones of teenagers.  Criminal, hurtful, and horrid acts, but ones that they can learn from.  They are not hardened criminals and their lives are not over.  Hopefully, their future interactions with the court, in addressing their treatment and possible registration issues, will be more focused on their individual rehabilitative efforts, so that all is not lost for these young men.

"Deporting the Pardoned"

The title of this post is the title of this notable paper by Jason Alexis Cade.  As the paper's abstract reveals, this work touches on various issues that ought to be of interest to a various sentencing fans:

Federal immigration laws make noncitizens deportable on the basis of state criminal convictions.  Historically, Congress implemented this scheme in ways that respected the states’ sovereignty over their criminal laws.  As more recent federal laws have been interpreted, however, a state’s decision to pardon, expunge, or otherwise set-aside a conviction under state law will often have no effect on the federal government’s determination to use that conviction as a basis for deportation.  While scholars have shown significant interest in state and local laws regulating immigrants, few have considered the federalism implications of federal rules that ignore a state’s authority to determine the continuing validity of its own convictions.

This Article contends that limitations on the preclusive effect of pardons, expungements, appeals, and similar post-conviction processes undermine sovereign interests in maintaining the integrity of the criminal justice system, calibrating justice, fostering rehabilitation, and deciding where to allocate resources.  In light of the interests at stake, Congress should be required to clearly express its intent to override pardons and related state post-conviction procedures.  A federalism-based clear statement rule for statutory provisions that restrict generally applicable criminal processes would not constrain Congress’s power to set immigration policy, because Congress remains free to make its intent clear in the statute. But the rule would ensure that Congress, rather than an administrative agency, has made the deliberative choice to upset the usual constitutional balance of federal and state power.

Does new Eighth Amendment limits on juve sentencing redefine requirements of juve transfer proceedings?

The question in the title of this post, to which I know many folks involved with juvenile justice reform have given thought, is prompted today by some interesting dicta at the end of an interesting Sixth Circuit concurring opinion rejecting an interesting habeas claim of ineffective assistance concerning a lawyers's failure to contest a Tennessee juve's transfer to adult court for a murder prosecution. The ruling in Howell v. Hodge, No. 10-5493 (6th Cir. Mar. 13, 2013) (available here), is mostly focused on habeas realities and Tennessee transfer laws, but these paragraphs at the end of Judge Stranch's concurring opinion out to be of broader interest:

I have recounted the evidence supporting the decision of the juvenile court at length because I believe it is important to clarify what I find problematic about the analysis of the expert reports and testimony.  Clarification is especially important due to the significance of transferring a juvenile to adult court for trial and sentencing, even where a terrible crime such as this one is at issue. The United States Supreme Court’s recent decision in Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012), reviewed the considerations that it found must separate sentencing of adults from that of children, including: a juvenile’s impetuosity and lack of appreciation of risks and consequences; her inability to escape brutal and dysfunctional social or home situations; her incompetencies in dealing with the criminal justice system; and other factors relating to the diminished moral culpability of children.  The differences that make juveniles more susceptible to influence also result in a heightened capacity for change and, therefore, a greater prospect for reform. Id. at 2464-65, 2469.  Thus, in reviewing a decision to transfer a juvenile to adult court — especially one that results, as here, in a sentence of life without parole — Miller teaches that we must always be cognizant of “the great difficulty . . . of distinguishing at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.’” Id. at 2469 (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005)).  These considerations and concerns are highlighted by the specific holding in Miller — that the Eighth Amendment prohibits states from imposing sentences of “mandatory life without parole for those under the age of 18 at the time of their crimes.” Id. at 2460.

Miller’s holding does not categorically foreclose the sentence of life without the possibility of parole imposed on Howell.   Language in the Court’s opinion, however, highlights my concerns about the analysis necessary when making and reviewing decisions to transfer juveniles to adult court and raises questions regarding the propriety of the sentence of life without the possibility of parole in this case.   The Miller majority observed that the reasoning of Graham v. Florida, 130 S. Ct. 2011 (2010), upon which it relied and which prohibits the imposition of life without the possibility of parole sentences on juvenile offenders for nonhomicide crimes, “implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar relates only to nonhomicide offenses.” Miller, 132 S. Ct. at 2465.  The majority also observed that “appropriate occasions for sentencing juveniles to [life without the possibility of parole] will be uncommon.” Id. at 2469. Moreover, in his concurring opinion, Justice Breyer argued that, based on Graham, “the kinds of homicide that can subject a juvenile offender to life without parole must exclude instances where the juvenile himself neither kills nor intends to kill the victim.” Id. at 2475-76.  As here, one of the defendants in Miller was found guilty of felony murder and was not responsible for the killing, and no evidence indicated that he had any intent to kill.  Id. at 2477.  In Justice Breyer’s view, before the State could continue to impose a sentence of life without parole for this defendant, it would first need to determine whether he “kill[ed] or intend[ed] to kill” because, “without such a finding, the Eighth Amendment as interpreted in Graham forbids sentencing [the defendant] to such a sentence, regardless of whether its application is mandatory or discretionary under state law.” Id. at 2475 (internal quotation marks omitted).  Though the scenario posited has parallels to Howell’s situation, Miller is not necessarily dispositive and these issues are not before us today

"'The Judge, He Cast His Robe Aside': Mental Health Courts, Dignity and Due Process"

Hard-core Bob Dylan fans will should appreciate the title of this new Michael Perlin article available via SSRN, and all criminal justice fans should appreciate the importance of the substance of this new piece. Here is the abstract:

One of the most important developments in the past two decades in the way that criminal defendants with mental disabilities are treated in the criminal process has been the creation and the expansion of mental health courts, one kind of “problem-solving court.” There are now over 300 such courts in operation in the United States, some dealing solely with misdemeanors, some solely with non-violent offenders, and some with no such restrictions. There is a wide range of dispositional alternatives available to judges in these cases, and an even wider range of judicial attitudes. And the entire concept of “mental health courts” is certainly not without controversy.

These courts offer a new approach – perhaps a radically new approach – to the problems at hand. They become even more significant because of their articulated focus on dignity, as well as their embrace of therapeutic jurisprudence, their focus on procedural justice, and their use of the principles of restorative justice. It is time to restructure the dialogue about mental health courts and to begin to take seriously the potential ameliorative impact of such courts on the ultimate disposition of all cases involving criminal defendants with mental disabilities.

There has been much written about these courts, but little attention has been paid to two issues that must be considered seriously: the quality of counsel available to persons in mental health courts, and the question of whether the individual is competent to engage in mental health court proceedings. These are both discussed extensively in this paper.

Much of the recent debate on mental health courts has focused either on empirical studies of recidivism or on theorization. This entire discussion, while important and helpful, bypasses the critical issue that is at the heart of this paper: do such courts provide additional dignity to the criminal justice process or do they detract from that? Until we re-focus our sights on this issue, much of the discourse on this topic remains wholly irrelevant.

In Part I of this paper, I will first discuss the underpinnings of therapeutic jurisprudence. I will next, in Part II, look at the structure of mental health courts, and will then raise the two concerns about such courts that are, I believe, of particular relevance to which I just alluded: questions of adequacy of counsel and the competency of defendants to voluntarily participate in such court proceedings. In Part III, I will then consider the role of dignity in this process, and look to ways that therapeutic jurisprudence can promote dignity in this context.

In Eighth Circuit, US Attorney says Miller is "substantive" and so should be applied retroactively

A helpful reader sent me this week a copy of a notable filing from a federal 2255 action in Johnson v. US, No. 12-3744, involving a federal defendant seeking resentencing based on the Supreme Court's Miller decision concerning the unconstitutionality of mandatory LWOP for juvenile offenders. The filing is notable because the feds concede that Miller can and should be given retroactive effect because, in the government's view, Miller announced a new rule that is "substantive."  Here is how the lengthy filing, which can be downloaded below, gets started:

The United States of America, by and through its attorneys, B. Todd Jones, United States Attorney for the District of Minnesota, and Jeffrey S. Paulsen, Assistant United States Attorney, submits this memorandum in response to petitioner Kamil Hakeem Johnson’s November 16, 2012, Motion Pursuant to Title 28 U.S.C. § 2244, Requesting Authorization To File a Second or Successive 28 U.S.C. § 2255 To The District Court (“Application”).

Johnson, who was a juvenile at the time of his 1996 offense, seeks authorization to file a second motion under Section 2255 to challenge the constitutionality of his mandatory life-without-parole sentence.  In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012), the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”  Although the Court had earlier held that a lifewithout- parole sentence for a non-homicide offense committed by a juvenile is always unconstitutional, see Graham v. Florida, 130 S. Ct. 2011 (2010), Miller did not bar such a sentence for a homicide committed before the age of 18.  132 S. Ct. at 2469. But under Miller, the sentencer for such a juvenile offense must have “discretion to impose a different punishment.” Id. at 2460.

Johnson’s mandatory life sentence is therefore constitutionally flawed.  This Court may certify a second or successive Section 2255 motion where, as relevant here, the application makes a prima facie showing that it relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,” 28 U.S.C. § 2255(h)(2).  Because the United States agrees that Johnson’s reliance on Miller makes such a prima facie showing, his motion should be granted and the case certified for filing in the district court.

Download USA Miller 2255 Response

Is Miller an Eighth Amendment "bombshell or baby step"?

I have the honor and pleasure of participating today in a fantastic Missouri Law Review symposium which is to explore the question in the title of this post.  This webpage details today's schedule of panels and speakers, and this page reports on these essentials of today's event:

This year's Missouri Law Review Symposium will focus on constitutional, practical and policy matters, regarding juveniles and sentencing more generally, that now challenge courts, legislatures and attorneys in the opinion's wake. 

On the constitutional front, in what ways are adult offenders who are subject to mandatory sentencing schemes asking lower courts to extend Miller, and how are those courts replying?  The Miller opinion extends the Court's "death is different" doctrine to mandatory life-without-parole sentences for juveniles: should that doctrine, requiring individualized sentencing, apply in other contexts?  How are state legislatures and Congress responding — and how should they respond — in designing sentencing procedures for juvenile homicide offenders?  What special challenges will attorneys face when representing a juvenile in a life-without-parole sentencing trial?  Morally, to what extent, if any, do recent discoveries in developmental psychology and neuroscience shed normative light for courts and legislatures on juvenile offenders.

Judge Nancy Gertner, Professor of Practice at Harvard Law School, will deliver the keynote address.  She will be joined by eminent attorneys, inside and outside the academy, to explore these and other important questions regarding criminal sentencing in general and juvenile sentencing in particular.

Noting the intersection of mental illness and gender in incarceration nation

This recent article in the Denver Post, headlined "Two of three women in Colorado prisons diagnosed with psychological disorders," provides a notable window into the impact and import of issues of mental illness and gender with regard to who commits crimes and gets sent to prison for their crimes.  Here is how the piece starts:

The number of Colorado female prisoners diagnosed with psychological disorders has risen sharply to more than twice the level of male prisoners.

The women are almost without exception victims of severe sexual and physical abuse, experts say. They cycle through jail and prison, often because they don't get adequate treatment or community support.

"The trauma histories are extreme," said Theresa Stone, chief of mental health at Denver Women's Correctional Facility. "It's hard to hear what these women have been through."

While most women are incarcerated for nonviolent crimes, a certain percentage of them are committing increasingly violent acts, Stone said.

"Women are in many cases extremely violent," she said. "I think we're seeing the impact of abuse and mental illness."

The state prison system has in recent years taken great strides in diagnosing and addressing the needs of mentally ill women, Stone said. There is drug counseling, psychological treatment and group therapy. Some women live in highly structured therapeutic communities in special pods. The first step was identifying the true scope of the problem, Stone said.

In 2001, a Colorado Department of Corrections review determined that 39 percent of women incarcerated in Colorado were diagnosed with some type of mental illness. A Dec. 31 report says that 67 percent of those women are mentally ill.

That is slightly lower than the national rate of women incarcerated in prison. According to a December 2006 Department of Justice study, 73 percent of women in state prisons nationally have some type of mental disorder. Within the general population, 12 percent of women have a diagnosed mental disorder, the same report says.

The percentage of men in Colorado prisons with a diagnosed mental illness also increased dramatically in the same time frame — from 18 percent to 30 percent — but the ratio is less than half the level of female inmates.

The percentage of female prisoners suffering mental conditions, including schizophrenia, bipolar disorder and major depression, has always been high but many women hadn't been diagnosed, experts say. Many of the women also had declined to seek treatment until they were behind bars.

Does God care who wins when federal judges impose sentences?

The silly question in the title of this post is prompted in part by last month's Sports Illustrated cover which asked "Does God Care Who Wins the SuperBowl?"  Whatever your answer to that important ecumenical sports query, my version of the question above is a response today to this new local federal sentencing story from Vermont headlined "Virginia pastor credits 'the mercy of God' in custody dispute sentencing: Kenneth Miller sentenced to 27 months but released pending appeal."  Here are the divine (and fascinating) particulars of a notable federal sentencing process:

A Mennonite pastor who helped a still-missing woman and her daughter flee the country — and a custody fight with the woman’s former lesbian partner — joined his supporters in song Monday evening in Burlington after learning his 27-month prison sentenced could be put on hold while he appeals his conviction.

Kenneth Miller was still wearing his prison jumpsuit when he left federal court in Burlington and met a crowd of about 100 supporters who came to Vermont from as far away as his home state of Virginia.   “I am grateful for the mercy of God,” Miller said before joining his supporters in singing a hymn, “Our God, He is alive.”

During a two-hour sentencing hearing, Miller told U.S. District Court Judge William Sessions III he couldn’t promise he would not again aid in international parental kidnapping.  Last summer a jury found him guilty of helping Lisa Miller and her now-10-year-old daughter, Isabella, travel from Virginia to the Canadian border and then on to Nicaragua via the Toronto airport.   Lisa Miller and Isabella are still believed to be hiding in Central America.  They are not related to the pastor.

Kenneth Miller, 47, of Stuarts Draft, Va., said he acted out of conscience and a religious belief that finds the idea of same-sex marriage offensive after a desperate Lisa Miller came to him in September 2009.  Miller said the woman pleaded for help escaping a court order that Isabella spend time with her former partner, Janet Jenkins, of Fair Haven, Vt....

Sessions said he admired Miller for the depth of his convictions, but he could not allow him to choose God’s law over his country’s, saying the pastor had helped deprive Isabella of Jenkins’ love.  “The horror of this cannot be overstated,” Sessions said.

Assistant U.S. Attorney Christina Nolan said Kenneth Miller’s actions were not those of someone full of love and compassion for other people — particularly Jenkins — as he and others have claimed.  “He didn’t see her as a human being.  He saw her primarily as a homosexual associated with the powers of darkness,” Nolan said.

Lisa Miller and Jenkins were joined in a Vermont civil union in 2000, and Isabella was born to Lisa in 2002. The couple split in 2003, and a Vermont family court gave custody of Isabella to Lisa Miller with regular visitation for Jenkins.  Lisa Miller then returned to Virginia, became a conservative Christian, renounced homosexuality and sought full custody. Two months after Lisa Miller and Isabella fled the country, a Vermont family court judge transferred custody of the girl to Jenkins, who was not in court Monday.

Kenneth Miller had been jailed since Jan. 24 for contempt of court after refusing repeated orders to testify before a federal grand jury seeking information about others involved in the flight of Lisa Miller and Isabella. At the end of Monday’s hearing, Sessions released him from the contempt citation saying additional incarceration was unlikely to compel him to testify.

Kenneth Miller’s attorneys are planning to appeal. They argued the law that allowed Kenneth Miller to be tried in Vermont for a crime that neither occurred nor was planned in the state was likely to be overturned on appeal. Sessions, the judge, said the appeals process could take years.

"Constitutional Line Drawing at the Intersection of Childhood and Crime"

The title of this post is the title of this intriguing looking new paper now available via SSRN.  Here is the abstract:

Three cases have arisen in the first seven years of the Roberts Court in which concepts of childhood have played a key role.  First came Graham v. Florida, a 2010 case in which the Court held that the Eighth Amendment's Cruel and Unusual Punishment's Clause prohibited sentencing of juveniles to life without parole for non-homicide offenses.  Next was J.D.B. v. North Carolina, a 2011 case in which the Court held that a juvenile's age is a relevant consideration when determining whether a reasonable person would believe he was in custody for Miranda purposes.  Finally, the Court decided Miller v. Alabama, a 2012 case in which the Court held that the mandatory imposition of life without parole in cases where juveniles were convicted of homicide was cruel and unusual punishment because it precluded consideration of age and its attendant consequences.

Though at first glance these three cases appear consistent -- they each result in some degree of enhanced constitutional protection for juveniles -- a closer look reveals significant jurisprudential tension because the opinions are riddled with contradictions. This Article explores those tensions and the need to resolve them, focusing in particular on two major line-drawing problems that have emerged in the juvenile cases. The first is inherent to but largely ignored in the cases: whether and where to draw the line between childhood and adulthood.  The second line is judicially manufactured: the line between homicide and non-homicide offenses.  The Article describes and critiques the Court's line drawing and offers proposed solutions to remedy flaws in the Court's reasoning.

Drug courts come to federal system (and New York Times' front page)

Regular readers know about the drug courts movement and its (varied but still very important) success as an alternative means to process certain drug offenders through the modern criminal justice system.  But, thanks to this big new front-page article in today's New York Times, which is headlined "Outside Box, Federal Judges Offer Addicts a Free Path," the notable new story of drug court development in the federal criminal justice system is due to get a lot more attention.  Here are extended passages from the Gray Lady's important coverage of this important federal sentencing story:

Federal judges around the country are teaming up with prosecutors to create special treatment programs for drug-addicted defendants who would otherwise face significant prison time, an effort intended to sidestep drug laws widely seen as inflexible and overly punitive.

The Justice Department has tentatively embraced the new approach, allowing United States attorneys to reduce or even dismiss charges in some drug cases.  The effort follows decades of success for “drug courts” at the state level, which legal experts have long cited as a less expensive and more effective alternative to prison for dealing with many low-level repeat offenders.

But it is striking that the model is spreading at the federal level, where judges have increasingly pushed back against rules that restrict their ability to make their own determination of appropriate sentences.  So far, federal judges have instituted programs in California, Connecticut, Illinois, New Hampshire, New York, South Carolina, Virginia and Washington.  About 400 defendants have been involved nationwide.

In Federal District Court in Brooklyn on Thursday, Judge John Gleeson issued an opinion praising the new approach as a way to address swelling prison costs and disproportionate sentences for drug trafficking.  “Presentence programs like ours and those in other districts mean that a growing number of courts are no longer reflexively sentencing federal defendants who do not belong in prison to the costly prison terms recommended by the sentencing guidelines,” Judge Gleeson wrote.

The opinion came a year after Judge Gleeson, with the federal agency known as Pretrial Services, started a program that made achieving sobriety an incentive for drug-addicted defendants to avoid prison.... 

The new approach is being prompted in part by the Obama administration, which previously supported legislation that scaled back sentences for crimes involving crack cocaine. The Justice Department has supported additional changes to the federal sentencing guidelines to permit the use of drug or mental health treatment as an alternative to incarceration for certain low-level offenders and changed its own policies to make those options more available.

“We recognize that imprisonment alone is not a complete strategy for reducing crime,” James M. Cole, the deputy attorney general, said in a statement.  “Drug courts, re-entry courts and other related programs along with enforcement are all part of the solution.”...

The development of drug courts may meet resistance from some Republicans in Congress. “It is important that courts give deference to Congressional authority over sentencing,” Representative F. James Sensenbrenner Jr., Republican of Wisconsin, a member and former chairman of the Judiciary Committee, said in a statement.  He said sentencing should not depend “on what judge happens to decide the case or what judicial circuit the defendant happens to be in.”

At the state level, pretrial drug courts have benefited from bipartisan support, with liberals supporting the programs as more focused on rehabilitation, and conservatives supporting them as a way to cut spending.  Under the model being used in state and federal courts, defendants must accept responsibility for their crimes and agree to receive drug treatment and other social services and attend regular meetings with judges who monitor their progress.  In return for successful participation, they receive a reduced sentence or no jail time at all.  If they fail, they are sent to prison....

In interviews, the federal judges who run the other programs pointed to a mix of reasons for their involvement. Judge Ricardo S. Martinez ran a state drug court in Seattle before he was appointed to the federal bench.  “People that have a serious addiction, you can put them in custody, but the minute you put them back in the community, they go back to the same thing and lo and behold you see them again,” Judge Martinez said in an interview.

Some of the most pointed criticism of the status quo has come from Judge Gleeson, a former federal prosecutor.  The drug court he helped set up is open to defendants who committed a range of nonviolent crimes, like fraud and selling prescription pills, and whose addictions fueled their actions.

In a 35-page opinion he issued this week, he criticized the Justice Department for charging defendants with drug offenses that carry mandatory minimum sentences, urged the Sentencing Commission to reduce the guideline range for many drug offenses and called for more programs that divert defendants from prison time.  The opinion chronicled the case of three graduates of the drug court....

Loretta E. Lynch, the United States attorney in Brooklyn, said she backed the program because drug courts elsewhere had lowered recidivism rates. “Our overall strategy of law enforcement and crime prevention isn’t just incarceration,” Ms. Lynch said.

At a sentencing hearing for Ms. Leitch last month, a prosecutor vacated her guilty plea and agreed to dismiss the charges if she did not use drugs or get arrested for 18 months. After the hearing, Judge Gleeson offered some encouraging words for the defendant, and then a hug. “I don’t know them as just the judge,” Ms. Leitch said later. “People see judges as the bad guy. They get deeper. They get to know who you are.”

Judge Gleeson's 35-page opinion in US v. Leitch et al, 11-CR-00609 (EDNY Feb. 28, 2013), not only merits NY Times front-oage coverage, but also a read in full. I have uploaded that opinion here.

Download Gleeson SOR in Nunez.Leitch

Some older and newer related posts about drug court programs and research:

• Talk of drug courts, but not major policy changes, in drug war from Obama team
• Important new NACDL report critical of modern drug court movement
• New report on drug courts from The Sentencing Project
• "Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice"
• NJ commission endorsing expanding drug courts
• A religious pitch for drug courts
• Terrific NIJ drug court report
• Reexamining drug courts
• Judge Lay advocating drug courts again
• A Mississippi pitch for drug courts and getting smarter on crime and punishment
• Resources on drug courts
• New JPI report expressing concerns about drug courts and net widening
• New research shows positive outcomes from drug court programs

"Should defendants’ age, health issues be sentencing factors?"

The question in the title of this post is the sub-heading of this notable article appearing in my own local Columbus Dispatch, which carries the main headline "Seniors argue for less time in prison." Here are excerpts:

Is prison more of a punishment if a defendant is 50 rather than 20? Some defense attorneys are debating that issue in federal court as they seek to minimize prison sentences for defendants 50 or older.

“We’re seeing it a lot,” Assistant U.S. Attorney Deborah A. Solove said. The issue is at the heart of an unprecedented second appeal that Solove has filed over the prison sentence imposed by U.S. District Judge James L. Graham on a Knox County man, Richard Bistline.

Graham originally sentenced Bistline, 70, of Mount Vernon, in 2010.  The sentence, for possessing child pornography, was one day in prison plus 10 years of supervised probation. Solove appealed, saying the sentence was too lenient.  The 6th U.S. Circuit Court of Appeals ordered Graham to resentence Bistline, saying the original penalty “does not reflect the seriousness of his offense.”

In January, Graham ordered the same sentence but added three years of home confinement as part of Bistline’s probation. The judge said he didn’t order more prison time because he was concerned about Bistline’s age and health problems, which included two strokes and a heart attack a year ago.  He questioned whether Bistline would get adequate medical care in prison.

Solove, who prosecuted the case, had asked for a five-year prison term, which was a bit less than is called for in the sentencing guidelines determined by the court. Graham maintained that would be “a life sentence, or more accurately, a death sentence,” for Bistline.

Graham said last week that judges can consider age and infirmity in sentencing, and he does that if a defendant is not a danger to the public. “I was completely satisfied in this case that he was not.  Your job as a judge is to figure out which one of these defendants are the really bad guys you need to put away.”

In another case, Laura E. Byrum, an assistant federal public defender, is arguing that her 64-year-old client should get a prison sentence that’s shorter than the guidelines call for, in part because of his age and health problems.   Robert W. Burke of 767 Bracken Court, Worthington, pleaded guilty to one count of receiving child pornography, and the guidelines call for a 20-year prison term.

Byrum has asked for a 10-year prison term followed by 20 years of supervised release. She argues that the life expectancy of a man Burke’s age is 18 years, and his is likely shorter because he has skin cancer and chronic obstructive pulmonary disease.  Twenty years is a “virtual death sentence,” she wrote in her sentencing memorandum.

Assistant U.S. Attorney Heather Hill said the federal prison system can handle most of the typical health problems associated with aging. “Going to prison isn’t easy for anyone, but that is the consequence of breaking the law,” she said. “We’re not sure that being nearer to the grave gives you license to be a criminal.”

According to a 2012 report by Human Rights Watch, state and federal prisons held 124,440 prisoners who were 55 or older in 2010.  That was a 282 percent increase from 1995, at a time when the total number of prisoners rose by 42 percent.

Prior related posts:

• Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
• District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal