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April 16, 2010

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

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

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

April 16, 2010 at 05:09 PM | Permalink


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I doubt the case of Graham would be anything pleasing.

Posted by: N/A | Apr 16, 2010 5:24:06 PM

^ To add to my last post, I dont think the LWOP case would be accepted by the SCOTUS. The attorney arguing the case, (In the oral argument) wasn't very good. As in good, very convincing.

Posted by: N/A | Apr 16, 2010 5:26:18 PM

I think the difficult part of Graham is going to be the remedy for a successful as applied cruel and unusual punishment challenge. I predict that the court will reject a facial challenge to lwop for juveniles, relying instead on the Harmelin/Ewing line of evaluating claims under Justice Kennedy's three part test in Harmelin. Both Roberts and Alito alluded to this approach during oral argument.

The rub comes in when you have to confront the question of what do you do if there is a case in which the judge finds that under the facts of the case lwop is grossly disproportionate to the offense. Unlike cases where the challenged sentence was selected from among a range of possible punishments, there is only on punishment allowed, lwop. If Graham's lwop sentence is found to violate the eighth amendment, and the case is remanded for resentencing, what sentences does the judge have to choose from?

On the other hand, you can't say that the eighth amendment applies only to cases in which there is a legislatively enacted range of punishments, not a single punishment.

I have a cert petition I'm filing in SCOTUS Tuesday in a felony murder lwop case which presents this same dilemma. The jury thought the killing, which occurred during a robbery, was accidental. Two guys struggling over a gun, it goes off and kills another guy across the room. When the jury found out it had to find the def guilty of first degree murder under felony murder and the automatic punishment is lwop, four jurors signed affidavits saying they thought that was unfair. I have never had another case where after it was over jurors on their own initiative came to the defense lawyers and said they didn't believe the sentence resulting from their verdict was not fair.

bruce cunningham

Posted by: bruce cunningham | Apr 17, 2010 7:00:54 AM

sorry about the erroneous double negative in the last sentence

Posted by: bruce cunningham | Apr 17, 2010 7:04:14 AM

Bruce, you certainly have an interesting idea about what is fair. Some criminal decides to rob someone with a gun, and there's a struggle, and the gun goes off and kills someone. Robbers are convicted of felony murder. And there's an 8th Amendment issue here? Ha. Accidental or not, when you kill someone in the course of the heinous crime of armed robbery (and armed robbery IS a heinous crime), you are a murderer, and you should be punished to the full extent of the law. Personally, I would fix the punishment at death.

Posted by: federalist | Apr 17, 2010 9:07:29 AM

OW Holmes supported felony murder charges. His view was statistically debunked. However, upon closer examination, the lawyer made an arithmetic error, and Holmes was right, felony murders charges prevent such murders.

Posted by: Supremacy Claus | Apr 17, 2010 9:47:13 AM

I think I agree with Federalist here, up to (but not including) his last sentence. The sentence is a severe one, but not fundamentally unfair. Good luck persuading SCOTUS that there was an Eighth Amendment violation.

Posted by: Marc Shepherd | Apr 17, 2010 10:06:04 AM

as best I can tell North Carolina's felony murder rule is the most draconian in the country. It is always first degree, the punishment is always life without parole and the list of available felonies which can be used is long.

Posted by: bruce cunningham | Apr 17, 2010 11:34:43 PM

on my reading, the important part of Bruce's description was not that *he* thought the result was unfair, but that the *jury* -- whose opinion is obviously much more relevant than an appellate lawyer's -- thought the result was unfair when it learned of the automatic punishment. I'm not sure this will go anywhere, as it treads too close to that third-rail of American jurisprudence, jury nullification. But I certainly think it is an interesting issue and an interesting fact pattern when there is reason to believe the jury verdict would have been different if punishment were taken into account.

Posted by: nc atty | Apr 19, 2010 3:31:47 PM

The jury should decide the sentence from no time, one day to life to death or whatever the top range or lowest range could be. That issue is the Apprendi issue which could be heard by the Sup Ct because the jury did not know the sentence here and has come forward to object.
I know I am not articulating this properly but the next step beyond Apprendi would be for the Court to decide that it is the jury's province to sentence and not some judge or some arbitrary sentence guideline and if the jury does not know the range of sentence then the sentence imposed after blind conviction is violative of the 5th Amdt due process clause (14th Amdt due process clause in a state case) right to a fair trial taken together with the notice and jury trial provisions of the 6th Amdt. Jones v. U.S. and Apprendi both cited many times here in this blog.

Good luck Bruce Cunningham here in NC and in the Supreme Court.

Posted by: mpb | Apr 19, 2010 11:01:34 PM

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