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April 29, 2013

"Is 100 Years a Life Sentence? Opinions Are Divided"

The title of this post is the headline of this notable new Sidebar column in the New York Times by Adam Liptak.  Hard-core sentencing fans should realize from the title that this is a story about one of the many doctrinal questions gurgling in lower courts three years after a landmark Eighth Amendment SCOTUS ruling.  Here are excerpts from the column:

If people who are too young to vote commit crimes short of murder, the Supreme Court said in 2010, they should not be sentenced to die in prison.  That sounds straightforward enough. But there are two ways to understand the decision, Graham v. Florida.

One is formal. The court may have meant only to bar sentences labeled “life without parole.”  On that understanding, judges remained free to impose very long sentences — 100 years, say — as long as they were for a fixed term rather than for life....

The other way to understand the decision is practical.  If the Eighth Amendment’s prohibition of cruel and unusual punishment requires that young offenders be left with a glimmer of hope that they may someday be released, it should not matter whether they were sentenced to life in so many words or as a matter of rudimentary actuarial math.

The lower courts are split on how to interpret the Graham decision, and the Supreme Court seems to be in no hurry to answer the question.  Last week, the justices turned away an appeal from Chaz Bunch of Ohio, who was convicted of kidnapping and raping a woman in a carjacking when he was 16.  He was sentenced to 89 years.  Even assuming he becomes eligible for early release, he will be 95 years old before he can leave prison.

The United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the sentence, even as it acknowledged that there were two ways to approach the matter.... Until the Supreme Court speaks, Judge Rogers wrote, there is no “clearly established federal law” to assist Mr. Bunch, who was challenging his state conviction in federal court.

Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.”  An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.

“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court.

Mr. Henry is black and was born in 1989.  The life expectancy of black males born that year was 64, according to the Centers for Disease Control and Prevention. Life expectancy in prison is shorter than it is outside. Wherever the line is, then, a 76-year sentence would seem to be past it.  “Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria?” Judge Griffin asked.

That is a reasonable question.  But Bryan Stevenson, the executive director of the Equal Justice Initiative in Montgomery, Ala., said it was the wrong one.  “The idea isn’t to get the person as close to death as possible before you deal with the possibility of their release,” he said.  It is, rather, to give juvenile offenders a sporting chance, perhaps after decades in prison, to make the case that they deserve to get out, he said....

The number of juvenile offenders serving de facto life terms because of very long sentences is probably in the hundreds.  Some of the appeals court judges who have upheld such sentences did not sound enthusiastic about the task.  “Without any tools to work with, however, we can only apply Graham as it is written,” Judge Griffin wrote.  “If the Supreme Court has more in mind, it will have to say what that is.”

April 29, 2013 at 07:32 PM | Permalink


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Frankly, any sentence that involves mandatory hard time through the offender's 100th birthday (other than LWOP) is excessive, in my opinion. But with sex offenses, I have noted they like to sentence someone to hundreds of years in prison. There is only one reason to do so: sensationalism. They could just as easily sentence someone to life in prison without parole, but to say "Well, Jack Brack has been sentenced to 560 years, and will be eligible for parole in 2530" with a straight face is downright insulting.

For that matter, I know someone in Arizona sentenced for 200 years for 20 CP images; 10 years for each image, upheld at the state supreme court level, and denied cert at the SCOTUS level. He will be in prison for life. (http://en.wikipedia.org/wiki/Morton_Berger). Sensationalistic? Definitely.

Posted by: Eric Knight | Apr 29, 2013 11:36:46 PM

In Michigan, paroleable life sentences now require review by the parole board after 15 years, and at least once every five years thereafter. For a term-of-years sentence (40-to-60 years, for example),the offender must serve the calendar minimum, with no time off for good behavior, before being eligible for parole. The good news is that the courts have held someone who receives a term-of-years sentence has to have a reasonable chance of living to be paroled. The bad news is that the case law holds that there is a reasonable chance of living to be at least 93 years old.

Posted by: Greg Jones | Apr 30, 2013 10:25:29 AM

Anyone facing a possible sentence that could result in defacto life sentence should have that possible result in front of a jury. So that would include the child porn guy in Arizona mentioned above, white collar fraud cases, extensive drug cases etc. The jury should know that while the judge may have discretion to sentence for less than life, the jury should also KNOW that the person in front of them COULD be facing life in prison.
And as far as sentences that extend beyond a person's "normal" life span---NO--all sentences should be converted to "life" (such as Madoff's 150 year sentence, etc) in my opinion. To say "sentenced to 99 years" for a 40 year old for instance, is just semantics.

Posted by: folly | Apr 30, 2013 12:41:23 PM

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