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July 5, 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 at 07:56 AM | Permalink


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Between Miller, the Arizona immigration ruling and the ACA, the mainstream media has issued a mind boggling series of bizarre interpretations recently that were often utterly and profoundly wrong. The AZ case errors are particularly bizarre. It's like nobody covering the court actually understands it.

BTW, check your code to fix the all-ital problem. Hard to read.

Posted by: Gritsforbreakfast | Jul 5, 2012 8:50:04 AM

Doug --

Exceptionally well done, even by your high standards. You should send this straight to the NYT, if you haven't already. For a major paper to have this many errors and shaky assumptions is truly mind boggling.

Posted by: Bill Otis | Jul 5, 2012 8:54:50 AM

Nice work, Professor. Your blog in general, and this post in particular, is ample reason why I feel honored to have had the opportunity to study under you in my Moritz days...and I really wish in hindsight I would have taken your death penalty seminar. Even though I'm one of those overpaid civil lawyers.

(Sorry, couldn't resist...but FWIW, I am currently representing a habeas petitioner pro bono at the Sixth Circuit, so I'm doing something with my time other than overbilling corporate clients.)

Posted by: Res ipsa | Jul 5, 2012 10:40:04 AM

Res ipsa --

Please keep overbilling those corporate clients, just not the ones I own stock in.

Posted by: Bill Otis | Jul 5, 2012 11:15:05 AM

Additionally, while the Times is technically correct that there is no per se right to counsel on collateral review, federal courts do have the discretion to appoint counsel when appropriate. I would not be surprised if a large number of district anc circuit courts would view the issue of the collateral effect of Miller as one deserving hte appointment of counsel to make the best argument.

Posted by: TMM | Jul 5, 2012 11:20:18 AM

Great post Doug.

Question: while I understand that Teague mainly makes a procedural/substantive distinction, are there any post-Teague 8th amendment cases where the holding was not held retroactive? Might one argue that the Court's 8th amendment cases are all retroactive, by definition?

I think Miller/Jackson will follow the Atkins, Roper, Kennedy v. Louisiana, Graham line and ultimately be found retroactive. And I don't think all of those cases are obviously "substantive" rather than procedural. I mean arguably Atkins is a procedural ruling – all it entitles you to is a procedure through which a defendant can assert that he is retarded. In that sense its similar to Miller/Jackson.

Posted by: dm9871 | Jul 5, 2012 12:03:12 PM

I think the government would bear the burden of asserting Miller/Jackson ISN'T retroactive, particularly given that the nature of the cases and that all the language in the opinion suggests it is. First, the companion case, Jackson, is a postconviction habeas case (Miller was on direct appeal). In reversing Jackson as well as Miller, SCOTUS has already affirmed the retroactivity of the decision.

As further argument in favor of retroactivity, SCOTUS invokes Sumner vs. Shuman in the decision, which reinforced the unconstitutionality of a mandatory imposition of a death sentence. Sumner was also a postconviction case (i.e. was retroactive) and as such further reinforces the understanding that Miller is also retroactive. A final point to note-- the dissent in Miller laments that the decision will invalidate over 2000 cases, which means even they foresee it as being applied retroactively.

Posted by: TCita | Jul 5, 2012 12:34:07 PM

Excellent analysis, Doug. I've posted a link to both the Times editorial and your commentary on the Juvenile Justice Blog: http://juvenilejusticeblog.web.unc.edu/2012/07/05/nyt-editorial-on-miller-v-alabama-and-next-steps/

Posted by: Tamar Birckhead | Jul 5, 2012 2:08:43 PM

"...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.)"

Does everyone now understand how a conservative court can be so pro-criminal, including coddling ultra-vicious, homicidal maniac, crazed killers?

The rent seeking theory is the best explanation and predictor of appellate decisions. Rent seeking is a synonym for armed robbery, making these decisions ones in bad faith, and justifying all public self-defense measures.

Posted by: Supremacy Claus | Jul 5, 2012 4:15:25 PM

Lots of strong comments here folks, though I still this the arguments for Miller retroactivity in federal court remain challenging.

First, as to dm9871's point about Miller following Atkins, Roper, Kennedy v. Louisiana, and Graham, the problem is that all these other recent 8A cases ruled categorically that certain defendants cannot now ever get a certain punishment no matter what the procedure is used to impose it. In contrast, Miller suggests that some juve killers can still get LWOP if the right process is followed.

Second, as to TCita's point on Jackson being a collateral review case, that is true but it was STATE collateral review upon which SCOTUS accepted direct review. That reality means that Jackson alone does not establish conclusively that the new Miller procedural rule will be applied retroactively by federal courts (which is all that Teague is about in the first place: federal courts reviewing state convictions on federal habeas).

Third, as to TCita's point on Sumner, because that case pre-dates Teague, it is hard to drawn too much post-Teague guidance.

Finally, I think TCita's point about the dissents' laments may be the strongest circumstantial evidence that long-ago sentenced defendants will get the benefit of Miller (whatever that might end up to be).

Please note that I hope STATE courts will all on their own give full retroactive effect to Miller so that we need not ever have to figure out (or fight over) whether Teague (or AEDPA) limits the ability for state defendants to get the benefit of Miller in federal courts. But I will be pleasantly surprised if that's how all this shakes out.

Posted by: Doug B. | Jul 5, 2012 6:35:23 PM


You have raised an interesting argument that by definition "all 8th amendment cases are retroactive." Two questions. Are you limiting that statement to cases which are decided on a categorical basis, which all your examples are? Or do you think your position is far-reaching enough to include the power of judges to make as applied determinations of the constitutionality of a defendant's sentence, even one sentenced twenty or thirty years ago.

I see a distinction between a judge today evaluating for the first time whether a sentence violates the eighth amendment when previously a judge in NC did not have the power to invalidate a sentence, and the scenario of a second judge looking at a sentence after a first sentencing judge imposed the sentence, but was constrained by either state or federal jurisprudence that a judge didn't have the power to void a sentence as long as it was within the range allowed by the legislature.

Does that make any sense? For as long as I can remember the law in NC was that a sentence within the range allowed by the legislature was per se not excessive or grossly disproportionate,.

Now, I don't think one can get around that Graham emphatically declared that a judge can decide that the federal constitution trumps the state sentencing law.

As folks can see, I'm surfing here in search of an understanding of the statement, which I definitely like, that all eighth amendment cases are retroactive. Even the ones which give a judge the power to look at a sentence on a case by case basis and declare it void.

Any thoughts welcome. I'm arguing an as applied eighth amendment challenge next wednesday and I want to be able to focus my argument on whether I am contending that a sentence which was constitutional when imposed has, pursuant to evolving standards, "become" unconstitutional. Or, do I argue that whether or not the original sentence was unconstitutional was never considered because at the time it was imposed, judges in NC knew they didn't have any authority to declare the mandated punishment unconstitutional.

In some ways this issue is reminiscent of the Blackstone/Holmes dichotomy of whether law is "discovered", having always been there, or whether law is a reflection of the "felt necessities of the time."


Posted by: bruce cunningham | Jul 5, 2012 6:51:47 PM

Forgive the offending editorial writers for they apparently don't understand courts are in the business of monitoring procedural niceties, respecting the limits of state budgets and making sure justice-industry bureaucrats don't get overburdened righting old wrongs.

Some editorial writers have yet to realize the courts view their role as making sure injustices in the system are at least minimally constitutional.

Pursuing just outcomes is the work of editorial writers (naive idealists, the lot of them).

BTW Bill, it was really classy the other day the way you challenged Grits patriotism.

Note to self, when all else fails, play the patriotism card.

Posted by: John K | Jul 6, 2012 7:09:11 AM

John K --

"BTW Bill, it was really classy the other day the way you challenged Grits patriotism. Note to self, when all else fails, play the patriotism card."

What I actually challenged was his truthfulness, noting two instances in which he lied. One was when he claimed to produce a story in which the defendant pleaded guilty but was later exonerated anyway. I pointed out that, according to his own linked source, the defendant did NOT plead guilty, and specifically entered a plea that makes no such admission.

Grits simply went silent. But since you're obviously following that thread, maybe you can help him out. Can you supply the evidence that Grits was correct and that my accusation is incorrect? Should I wait?

The other lie from Grits that I noted was his claim that he had been stopped by local police who drew their weapons on him. He later was forced to retract this wildly incendiary accusation, but only after it became clear that the police had videotapes of the episode showing that they had done no such thing. (The episode is the subject of a story in the Austin Statesman, found here: http://www.statesman.com/news/local/police-video-contradicts-bloggers-account-of-tasers-rough-2183449.html).

Again, Grits simply went silent. Wanna help him out, or is his lying OK with you?

(I didn't get into, and won't get into now, the episode in which Grits claimed that I approve of all state killing as "inherently good" in "all circumstances" -- a claim so preposterous that even you will recoginize it as lying. Got any problem with that?)

And while we're on the sugject of lying: You say that I questioned his patriotism. Well, not exactly. After Grits said (on July 4) that he was grateful to live in the United States, I responded, "Might I ask why? Your comments give little to no evidence of it."

Since when is it an attack on a person's patriotism to ask why he's grateful to live here (I'll be more than happy to tell you if you ask me the same question, and not regard it as an attack of any kind), and to note, correctly, that his prior comments gave little to no evidence of such gratitude.

Of course if you can quote something from Grits I might have missed which evinces his gratitude for the United States, I'll be happy to take a look. Grits did not. The reason for this isn't hard to figure out. As you full well know, Grits's posts are loaded with criticism, some of it quite nasty, not gratitude, and certainly not gratitude for living here.

P.S. I dearly hope you won't, as you say, "play the patriotism card" by making the usual leftist claim that acid criticism of the country is itself the essence of patriotism. I mean, you wouldn't, you know, want to "wrap yourself in the flag" or anything yuuchy like that -- would you?

Posted by: Bill Otis | Jul 6, 2012 8:15:11 AM

Perhaps Grits is grateful to be here, but does not completely trust the people running the country? Wait a minute, I need to find a flag to wrap myself in!!

With regard to Grits and the no contest plea versus the guilty plea, it is probably fair to say that there are points that can be made as to why they are alike and why they are different when they involve someone who later claims to be innocent. As to how they can be alike, pressure can be placed on an innocent defendant to accept a clearly lesser penalty. A rational person might see the acceptance of this of plea bargain as a wise idea when weighing the potential risks and rewards even if one is innocent. I suspect just about any body, whether a lay persons or a lawyer, believes it is not a good thing to require an innocent person to make this choice. The choice is made whether the plea is no contest or is a plea of guilty.

On the other hand, at least some jurisdictions require the factual basis of the plea to come out of the defendant's mouth when the plea is guilty and do not require this when the plea is no contest. At least in Michigan, the case law indicates guilty is plea should be the normal way of getting a plea based conviction. The reasoning behind this is the idea that if the plea comes out of someone's mouth, it is more likely to be a truthful plea as compared with a no contest plea where this does not happen. I think this is why Bill Otis wanted to know how many cases involved guilty pleas where the person was later proven to be innocent. A person who is not familiar with all of this may not really appreciate the difference between exactly what is happening with a guilty plea versus a no contest plea. I am not sure you can say someone intentionally lied when they presented a case involving a no contest plea in response.
I have no knowledge regarding the rest of the posts between Grits and Otis. I did not see them.

Posted by: Tim Holloway | Jul 6, 2012 12:59:21 PM

Tim Holloway --

1. " Perhaps Grits is grateful to be here, but does not completely trust the people running the country?"

I don't know whether you just described Grits, but you certainly described me. Thanks!

2. "Wait a minute, I need to find a flag to wrap myself in!!"

If Grits had your sense of humor, his posts would benefit considerably.

3. The not guilty vs. no contest plea is not as complicated as you make it seem. The debate was about whether innocent people have been convicted after PLEADING GUILTY. Grits said yes, they had, and linked to a specific example. I read the linked story, and the defendant in it DID NOT PLEAD GUILTY. The story could not have been clearer on this point.

What that means is that Grits was lying when he said the man pleaded guilty. The specific point of dispute was not about the legal effect of one plea versus the other, nor about what pressures a person might confront in choosing one or the other. It was simply about what plea had been entered by the defendant in the story Grits linked -- a story he obviously selected to prove his point -- and the plea was not what not what Grits (indignantly, as ever) represented it to be.

Nor is it just a matter of technicalities or wording. The underlying question was whether people are pressured into ADMITTING GUILT by a draconian system. But a no contest plea DOES NOT ADMIT GUILT. Thus Grits's switcheroo was central to the point he wanted to make.

Posted by: Bill Otis | Jul 6, 2012 4:28:19 PM


Wow, I cannot thank you enough for showing what an inveterate liar Grits is.I especially like this quote (it could have come from a politician): "my mind filled in some pieces erroneously,"

Translation: "I made it all up."

And this gem: "I complied, and they roughly cuffed me, jerking my arms up behind me needlessly. Nine police cars plus the deputy constable all showing up to investigate the heinous crime of 'baby-sitting while white.'"

Of course if his grandaughter was missing and they DID not "swarm" two people matching the description, it would have been because of race too.

Grits, that you can continue to blog and contribute here expecting people to take you seriously is mind-boggling. You have no shame.

Posted by: TarlsQtr | Jul 7, 2012 4:47:38 PM

TarlsQtr --

Grits just goes his merry way. He blasts the opposition while blandly coddling his own falsehoods as just, oh golly, did I say that?

This one is particularly easy. He said that a particular defendant in a story he linked had pleaded guilty. Anyone who reads the story can see that that is not true. The defendant did not plead guilty, nor did he in any other way admit guilt.

This did not (and apparently does not) stop Grits from insisting that the man pleaded guilty although he was innocent.

Honest commenters sometimes make mistakes, but when they do, and it's pointed out to them, they admit it and change. But Grits just keeps on keepin' on, snarling at the opposition all the while and staying on offense no matter what.

Posted by: Bill Otis | Jul 7, 2012 5:19:25 PM

Bill, your first statement in that line of posts (starting on 6-22-12, re: Roger Clemens) regarding pleading guilty did state that you thought innocent people should not lie by pleading guilty and should put the government to it proofs. While a no contest plea does not require the defendant to lie, it does release the government from proving its case. To the extent that laypersons do not perceive a real or substantial difference between guilty pleas and no contest pleas, the post from Grist was responsive or at least partially responsive. You also stated, after Grits made the post, that if Grits was a lawyer, he would have known the difference between the two types of pleas. So, to say he was wrong in claiming that the matter involved a guilty plea was correct -- as Grits did lead into his example with words referencing a guilty plea. Whether he made an intentional misrepresentation is not so clear.

THIS IS BILL'S FIRST POST ON THAT MATTER (I am using CAPS to make it easier for people to separate the posts):

"This story provides some further support for my fear that often only the most confident, strong and wealthy of defendants can reasonably be expected to put the federal government to its burden of proof."

The story provides further support for my oft-repeated advice that if you're innocent, you should say so -- rather than lie -- and put the government to its proof.

No matter how many times it gets said, the claim that people plead guilty principally because they're overmatched is false. They plead guilty because they are guilty and know the government has the evidence to prove it. Virtually everyone who has practiced criminal law for any time at all knows this.

Posted by: Bill Otis | Jun 22, 2012 2:06:42 PM


Bill, about a quarter of DNA exonerees either confessed and/or pled guilty and the fact of false confessions is well documented (one case here in Austin, the "Yogurt Shop murders" saw more than 50 false confessions after crime scene details leaked). Your stance is just not credible, and you're trying so hard it makes me think even you don't really believe it and are trying to convince yourself.

Oh, and whether CCDC can give you an example of someone "who pled guilty but was innocent," here's one.

Posted by: Gritsforbreakfast | Jun 23, 2012 8:22:35 AM


Grits --

If you were a lawyer, you might know what you were talking about (as Tim Holloway does).

What you say is, "Oh, and whether CCDC can give you an example of someone 'who pled guilty but was innocent,' here's one [giving a link]."

As is typical of you, the claim is false. The fellow in the story, one Cook, did not plead guilty; he pled "no contest." You have to read all the way through the third paragraph of the linked story to see this: "Cook pleaded no contest instead of not guilty."

A plea of no contest is NOT AN ADMISSION OF GUILT. It is explicitly the refusal of such an admission, while acknowledging that the state has sufficient evidence to convict you at trial.

If you won't read your own linked stories, next time don't expect me to.

Posted by: Bill Otis | Jun 23, 2012 11:07:15 AM

Posted by: Tim Holloway | Jul 8, 2012 11:44:11 AM

Tim Holloway --

"Bill, your first statement in that line of posts (starting on 6-22-12, re: Roger Clemens) regarding pleading guilty did state that you thought innocent people should not lie by pleading guilty and should put the government to it proofs."

Do you disagree? Or do you think people SHOULD lie in court?

"While a no contest plea does not require the defendant to lie, it does release the government from proving its case. To the extent that laypersons do not perceive a real or substantial difference between guilty pleas and no contest pleas, the post from Grist was responsive or at least partially responsive."

I never doubted that it was responsive. I doubted that it was true. It isn't, as you correctly state.

When straightforward people make a mistake in a matter central to their point -- as Grits's "mistake" about a defendant's admitting guilt was central to his -- they acknowldege and correct it. Grits hasn't.

Is that how honest people behave?

P.S. Grits does not hold himself out as any mere "layperson." He holds himself out as an expert blogger, and not infrequently chides me (a law professor) for being ignorant of legal points he knows well.

Posted by: Bill Otis | Jul 8, 2012 3:12:22 PM

With the first point as to whether people should lie in court when giving a factual basis for a plea, the answer to your question is obviously "no" -- people should not lie in court. They are obligated to tell the truth -- including when they give a factual basis for a plea. However, I am fairly confident that the pressure of a good deal pushes some people to state whatever is necessary, including lies, in order to prevent a very lengthy prison sentence. It obviously also pushes many people to admit what they actually did when they otherwise would not do so.
With the second point, regarding responsiveness, it seems plausible that Grit's response was aimed, at least in part, at the idea that people will give in to the risk-reward calculation or weighing even when they are innocent. You are correct that he did not give an example of a defendant who had pleaded guilty. His example did not involves a defendant who gave a factual basis for the plea that was a lie.
With the rest of the email, you pointed out that the matter in question involved a no contest plea -- which is a point beyond dispute unless the article is wrong. I don't know anythings about Grits beyond what I read on this blog (and a couple of glances at his blog sometime ago) and don't know if he is honest. I also don't know if there was a need for him to correct the fact that the defendant in that case gave a no contest plea instead of a guilty plea --- as you already had done so.
I also really don't know how he holds himself out in terms of knowledge of the law. I follow many of the posts on this blog, but certainly not all of them.
Finally, for an example of another newspaper article that may not have summarized a law correctly, there is a Wall Street Journal article in today's online paper that indicates NYC passed a law imposing a fine up to $10,000 on any cab driver who picks up a prostitute and seems to indicate there is an obligation to know what a prostitute looks like. One reader pointed out that this is not a fair assessment of the law. I believe the reader indicated that the law involves taxi cab drivers who are more involved than that. Although I have not read the law, I bet the reader may be correct. It seems like reporting, while never 100% accurate at all times, has really taken a hit over the last few decades.

Posted by: Tim Holloway | Jul 9, 2012 9:33:04 AM

Tim Holloway --

You get the last word. One thing I have learned from our exchange is that you're a man I can do business with.

Posted by: Bill Otis | Jul 10, 2012 12:10:27 AM

congratulations for this communicatorye essay!! a few time ago i was read your dissertation plump. i was knew from your plump diverse types of conversation and all this conversation was most monumental as well as useful for us. welcome for the sharing it.

Posted by: new york city | Jul 21, 2012 1:10:15 AM

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