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May 22, 2017

Minnesota Supreme Court upholds consecutive sentences adding up to 90 years before parole eligibility for juve killer of three

Via this new commentary criticizing the opinion, I just learned of this notable ruling handed down last week by the Minnesota Supreme Court concerning the application of the Supreme Court's Eighth Amendment rulings in Miller and Montgomery. The commentary provides a helpful summary of the ruling and the concerns it might engender for those eager for Miller to have a broad reach:

In 2010, at the age of 16, Mahdi Hassan Ali committed a terrible crime in Minneapolis.  During the course of a store robbery, Ali shot and killed three people.  He was tried as an adult, and a jury found him guilty of two counts of felony murder and one count of first-degree murder.  On the felony murder convictions, the Hennepin County District Court sentenced Ali to two consecutive life sentences with the possibility of release on each after 30 years; on the first-degree murder conviction, Ali was sentenced to mandatory life imprisonment without the possibility of release....

In light of Miller [decided in 2012], the Minnesota Supreme Court overturned Ali’s sentence of mandatory life imprisonment and remanded the case back to the Hennepin County District Court for a new sentence.  On Jan. 6, 2016, Ali was sentenced to three consecutive sentences of life imprisonment with the possibility of release on each after 30 years. The sentences render Ali ineligible for release until he is 106 years old.

Shortly after the district court’s decision, the U.S. Supreme Court issued a new opinion in Montgomery vs. Louisiana, which offered fresh insight into the Miller ruling. Montgomery explained that the court intended Miller to bar all sentences of life without parole, not just mandatory ones, for any but the rarest of juvenile offenders who were permanently incorrigible and unable ever to be reformed....

Notwithstanding these decisions, the Minnesota Supreme Court filed an opinion last week upholding Ali’s sentences of three consecutive life terms.  In an opinion authored by the newly elected Justice Natalie Hudson, the Minnesota court decided that Miller and Montgomery apply only to single sentences of life without parole, refusing to extend the principles articulated in Miller and Montgomery to consecutive sentences that have the same effect.

Rather than requiring a special hearing to determine Ali’s prospects for reform, as Montgomery requires for sentences of life imprisonment without parole, the court decided that consecutive life sentences require no such hearing, even when they will likely result in a juvenile offender’s being imprisoned until death.

Last week’s opinion from the Minnesota Supreme Court will offer state prosecutors a new tool when seeking to imprison children for the duration of their natural lives.  For juvenile offenders convicted of serious offenses, prosecutors will seek lengthy consecutive sentences rather than seeking sentences of life imprisonment without parole.  Under the opinion, this tack will obviate the need for a hearing to determine whether the juvenile is amenable to reform, regardless of the length of the child’s sentence.

Like the author of this commentary, I am troubled whenever it seems courts are embracing formal rather than functional considerations to limit the reach of the Eighth Amendment juvenile sentencing proportionality rules set forth in Graham and Miller and Montgomery.  Still, for reasons the majority opinion in this Ali case stresses, I can understand why many courts have in various settings given constitutional significance in Eighth Amendment analysis to the fact that a defendant has been sentenced to an extreme term for multiple serious crimes rather than just one. Notably, the US Supreme Court has never formally addressed just how multiple-offense, consecutive sentencing should be analyzed under the Eighth Amendment, and this Minnesota case serves to highlight how this is one of a number of Graham and Miller and Montgomery application issues challenging lower courts nationwide.

May 22, 2017 at 12:13 PM | Permalink


The 5% difference in his myelination of the frontal lobes from people aged 30 does not explain his crime. Compare to the 800% difference in testosterone levels driving sexual urges between males and females in normally acting people. (Avg. Adult Male 270-1,070, Avg. Adult Female 15-70). Should this difference excuse rape by males?

Absolutely not. A mitigating factor by a lawyer is really an aggravating factor. If someone has 8 times the hormones driving a sex crime, they need a lot more punishment, a lot more supervision, a lot more incapacitation, to be controlled and to stop hurting others, not less, as the lawyer argues.

All lawyer mitigating factors are aggravating factors. So a 5% less myelination in young people requires greater punishment.

What does explain his crime is his antisocial personality disorder and its features well described in 1835 and called moral insanity. No empathy. No fear. Presentism. No response to punishment or reward. Extreme selfishness.

Posted by: David Behar | May 22, 2017 2:25:26 PM

Doug, why are you troubled? If a court goes beyond what is required in favor of a triple murder, wouldn't that trouble you?

Posted by: federalist | May 22, 2017 3:58:44 PM

A dramatically easy fix ‼️
Avoid thug conduct that can harm others .
At age 10 , one knows that robbery and the willful killing of others is wrong AND unkind .

Consequences, whether behaving or misbehaving. normally follow conduct ‼️

Posted by: My friend , Docile (now in OR) | May 22, 2017 5:04:51 PM

I am troubled, federalist, because I think a fair reading of Miller and Montgomery call for allowing a juve triple murderer to be able to argue at a sentencing that he is not "permanently incorrigible" and thus should be able to preserve some chance at parole before dying in prison. But I know you find Miller and Montgomery troubling, fedralist, and I can understand how those troubled by these SCOTUS decisions are not troubled by efforts to limit their application.

Posted by: Doug B. | May 22, 2017 6:02:40 PM

But let's say that Miller/Montgomery allows this--wouldn't then all the re-sentencing that happened that was more lenient be problematic? In other words, should judges be concerned about too much mercy? They should. I'd be interested to understand why you don't think so.

Posted by: federalist | May 22, 2017 7:26:43 PM

I agree with Doug on thiis. Miller says juves need to get a chance for Parole.

90 yrs isnt much of a chance. I also understand why he 3 X 30. But 30 yrs alone is a long time. Yes it was terrible what he did.

Posted by: MidWestGuy | May 22, 2017 8:33:18 PM

If the minor UK-suicide-bomber today was found alive, should he get parole after 30 years?

Posted by: Minersville | May 22, 2017 10:00:43 PM

The US cannot preach International solidarity in the search for peace, reconciliation and moderation in the work toward a democratic and civilized global community whilst exhibiting such inhumanity and breaches of International norms and legal guidelines (UN Human Rights Law) in respect of juveniles and in its outlandish judicial/penal processes generally. There has to be a huge adjustment to gain effective credibility. I hope in this case, persons such as Doug, will offer every assistance to ensure the matter he describes in his final sentence reaches the US Supreme Court for better clarity and moderate implementation of sentencing law.

Posted by: peter | May 23, 2017 2:26:07 AM

Minersville - by definition, the UK suicide bomber (if he/she is so confirmed), is dead and the matter therefore mute. However, in general response, there is a substantive difference between a criminal act and a terrorist act, particularly when mass murder (22 currently reported) results. However, if the bomber were a minor then it can be assumed coercion in one form or another occurred. Whilst a life sentence might be imposed, I would hope a process of education and deradicalization would occur and assessments for parole made over time. The results of that, at a personal level, should determine the ultimate length of detention for a minor, not purely the emotional response to the outrage.

Posted by: peter | May 23, 2017 2:42:31 AM

"I can understand how those troubled by these SCOTUS decisions are not troubled by efforts to limit their application." Good insight.

Lawyers are the stupidest of people. Ivy grads are the stupidest of lawyers. The Supreme Court is the stupidest of Ivy grads, compounded by an acculturation to the arrogant, Washington rent seeking, self dealing culture. Supreme Court decisions have been lawless, unmitigated disasters, from the Civil War set off by Dred Scott to the American Holocaust of Roe v Wade. Every one has been a violation of Article I Section 1 of the constitution, giving law making power to the legislature.

Its decisions may be considered to have no external validation. They are the subjective, invalid feelings of stupid, East Coast elite, know nothing lawyers. All are biased, not in favor of criminals, but in favor of lawyer rent seeking and of big government, the industry of Washington. At best, they should be deemed advisory. No federal marshal will come to enforce any. That would require agreement with a decision by the executive branch. If any does, taser him, expel him from the state. Nothing will happen.

In Miller, the Court cancelled the decisions of more accountable state legislatures. The decision contains future forecasting, based on nothing, a finding of a 5% difference in myelination of the frontal lobes, continuing to age 30. That minuscule difference has not been tied to anything in behavior. Teens commit fewer violent crimes than adults. Teen crime is dropping. Adult crime is rising.

It is also illogical and harmful to the defendant. Say the mass murderer becomes a priest, and a saint. He qualifies for canonization by his good deeds and verified miracles. The flaw in logic is that his improvement has been within the structure of prison. Release would end the achievements. A diabetic was brought out of a coma with aggressive insulin treatment. He has been doing well for years, with no side effects on insulin. Let's stop the insulin since he is old and his blood sugars have been great, the Court is saying. That is its "feeling." No. Both conditions are defects, and will never improve, since a function is missing. Prison structure is the insulin that allowed the defendant to thrive.

Posted by: David Behar | May 23, 2017 6:28:04 AM

Peter says, "...a process of education and deradicalization would occur..." in defending the coddling of a theoretical, mass murdering terrorist.

Let me translate.

Education and deradicalization means, government employment for government employees, in the social services field.

Posted by: David Behar | May 23, 2017 6:59:14 AM

Every time Ali pulled the trigger to kill someone, he committed a crime. He murdered three people, three crimes. That he should not get sentenced separately for each is insane.

Let's bring the "common" back into common sense, especially as it relates to the law.

Posted by: TarlsQtr | May 23, 2017 7:23:03 AM

federalist: I agree that unduly lenient sentences can and should be a judicial concern because they endanger public safety and undermine a community sense of justice. But the Eighth Amendment protects individual rights by placing a limit on excessively harsh sentences, and the Supreme Court has interpreted that provision to require judges to make an informed individualized determination before concluding a juve killer is to be given no possible chance at parole ever. Ali seeks here, it seems, just a chance to have an individual determination made as to whether he should ever be given any possible chance at parole ever.

Your concerns about the impact of the Eighth Amendment here could be extended to many other Amendments. I perceive from prior comments that you think sex offenders should have First Amendment rights to be online recognized and safeguarded in Packingham. But shouldn't judges be concerned about "leniently" allowing sex offenders access to the internet after legislators have decided public safety and a community sense of justice call for keeping sex offenders off line?

My point is not to make a specific argument for or against Packingham, but rather to explain my sense that interpretation/application of every constitutional protection to indisputably guilty offenders presents the competing concerns of individual rights versus laws intended to serve public safety and community justice. And, in part because I view LWOP as even more problematic than the death penalty, I am uniquely and distinctly concerned when LWOP or functional LWOP is imposed without what I consider to be important procedural protections. The absence of those protections here worry me.

And Tarls, I do not disagree that Ali should be sentenced for three crimes, the question is what sentence is constitutionally permissible and what procedure is proper for the imposition of a sentence for these three crimes. Due to Roper, it is not constitutional for him to get a single death sentence, let alone three. It is also not constitutional for him to get a single mandatory LWOP sentence due to Miller/Montgomery. At issue is whether he can get a functional LWOP, and I think he should properly get a chance to argue against that functional LWOP even though he clearly should get sentenced for three crimes.

That said, Tarls, my brief comment above was designed to highlight the unique challenges multiple serious crime cases present for the Eighth Amendment.

Finally, Minersville, remember that getting a chance at parole and getting parole is VERY different.

Posted by: Doug B. | May 23, 2017 8:58:09 AM

Doug, you don't really respond to my point--the various courts have no idea what the contours of Miller/Montgomery will be. Thus, many courts could wind up imposing less lenient sentences (after the original sentencing) on the basis of a to-be-revealed flawed understanding of Miller/Montgomery--which means that the killers would have gotten more than what they were entitled to. That should bother you. But I suspect it does not.

Posted by: federalist | May 23, 2017 10:03:54 AM

federalist, you do not really respond to my point that this lower court challenge/concern arises in the context/wake of every SCOTUS ruling that may expand the constitutional rights/protections of offenders --- the Johnson vagueness ruling is a good recent example involving repeat serious offenders, and the Packingham case involves sex offenders. We do not know the contours of how SCOTUS will apply/extend the First and Fifth Amendments in these settings, and so lower courts have to do their best to be faithful to the constitutional text and the principles announced in leading SCOTUS cases. I do not think in any setting that lower courts can and should conclude that criminal offenders always lose when constitutional law is debatable unless/until SCOTUS tells us clearly that an offender has to prevail.

Your last comment makes me uncertain, federalist, if what you are saying is that "killers" are different and that, based on this reality, it may be uniquely important for lower courts to err against their individual rights when the jurisprudence is uncertain. But, of course, there are no "killers are different" exceptions to constitutional rights --- though arguably distinctive public safety concerns influence all sorts of applications of various rights.

Meanwhile, SCOTUS has said repeatedly that the Eighth Amendment is properly interpreted to include a kids are different for punishment purposes. And in this context, we are not talking about freedom or a dramatically reduced sentence for a juve killer, but rather considering whether the juve killer even gets an initial chance to argue for a sentence than includes any chance at parole before he dies. I think a fair reading of Miller/Montgomery is that juve killers must get the opportunity to make seek a sentence less than LWOP. But another reading is obviously possible, and a "killers should lose when there can be doubt" presumption certainly can push toward another view of Miller/Montgomery.

Posted by: Doug B. | May 23, 2017 10:43:54 AM

"faithful to the constitutional text" is a laugh in this particular situation . . . .

And, here, we are dealing with upsetting settled judgments--which should counsel against expanding Miller . . . .

I agree that courts generally should do their best, but they should err on the side of harshness because lenience is a one-way ratchet.

In this particular case, I think courts should do their utmost to stiff the killers--not because killers don't have rights etc., but because the Supreme Court doesn't deserve any respect whatsoever with respect to Montgomery or Miller. The Court can do its own damned dirty work.

Posted by: federalist | May 23, 2017 11:27:55 AM

"killers are different" exceptions

I had some confusion there when he flagged what was deemed court over-reaching.

Is there a two way "death is different" rule?

"arguably distinctive public safety concerns influence all sorts of applications of various rights" seems right as to balancing compelling state interests, but that sort of thing is only a matter of degree. I apologize for a "water is wet" vanilla statement.

In Justice Clark's concurring opinion in Gideon v. Wainwright, he argued: "I must conclude here, as in Kinsella, supra, that the Constitution makes no distinction between capital and noncapital cases." But, at some point that to me is wrong. The "quality of the process" does at some point depend on the sanction. Thus, e.g., explicitly the Fifth Amendment treats "a capital, or otherwise infamous crime" somewhat differently etc.

Bottom line, as Doug B. notes, the protection here is only limited. The chance of parole after let's say at 65 instead of 106 is not exactly soft on crime.

Posted by: Joe | May 23, 2017 11:33:26 AM

"because the Supreme Court doesn't deserve any respect whatsoever with respect to Montgomery or Miller. The Court can do its own damned dirty work"

Can we have a list of SCOTUS cases that "don't deserve any respect" so that the usual practice where the law is an interrelated process where different branches vertically and horizontally work together shouldn't apply?

Posted by: Joe | May 23, 2017 11:41:04 AM

Joe. All of them. They all violate Article I Section 1 granting law making powers to the legislature.

Posted by: David Behar | May 23, 2017 1:38:34 PM

The Supreme Court has no resource to enforce a decision. It needs the concurrence of the executive, which will send federal marshals. The executive may veto any decision, and should be lobbied to do so. All Supreme Court decisions not endorsed by the executive may be considered to be advisory at best, and as the really stupid opposite of justice,as is usual.

This dual model duplicates that of the Inquisition 1.0. The King enforced the rulings of the Inquisitions as they promoted their political interests. That makes the legal system a form of Mafia business, collecting money, at the point of a sword, and returning nothing of value.

Posted by: David Behar | May 23, 2017 1:57:36 PM

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