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August 24, 2017

"Procedures for Proportionate Sentences: The Next Wave of Eighth Amendment Noncapital Litigation"

The title of this post is the title of this notable paper recently posted to SSRN and authored by Sarah French Russell and Tracy Denholtz. Here I the abstract:

With its 2010 decision in Graham v. Florida, the U.S. Supreme Court for the first time placed categorical Eighth Amendment limits on noncapital sentences.  Graham prohibits life-without-parole sentences for juveniles in nonhomicide cases and requires states to provide these juveniles with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”  In 2012, in Miller v. Alabama, the Court again set a categorical Eighth Amendment limit — prohibiting mandatory life-without-parole sentences for all juveniles and requiring sentencers to give mitigating effect to youth-related factors when juveniles face life-without-parole sentences.

Following Graham and Miller, 23 states have enacted statutes responding to the decisions and there has been extensive litigation nationwide.  The first wave of litigation has largely focused on the scope of the Court’s categorical holdings, with lower courts considering questions such as: How long is a “life” sentence?  Which crimes are “nonhomicides?”  Do the decisions apply retroactively?

A new wave of litigation is beginning to examine what procedures are required to ensure proportionate sentences under the Eighth Amendment.  Across the country, states are using a range of approaches.  In providing a “second look” for juveniles, some states are simply using existing parole systems, whereas other states have reformed their parole practices for juveniles or created special mechanisms for sentencing review through the courts. With respect to sentencing procedures, some states have adopted special procedures for serious juvenile cases.  Other states have provided little guidance to sentencing courts.

In the past several years, many individuals have been sentenced or resentenced under Miller, and parole boards have started holding hearings in some states. W ith these sentencing and second look proceedings underway, advocates have started to challenge the procedures that states are using.  Are state parole boards in fact providing a “meaningful opportunity” for release to juveniles based on demonstrated maturity and rehabilitation?  Are courts conducting sentencing hearings in compliance with Miller’s mandates?

Eighth Amendment capital litigation has often focused on the procedures governing capital cases, and much can be accomplished by pushing for better procedures in the noncapital sentencing context.  With hope, reforms to parole and sentencing processes for juveniles will not only improve outcomes for juveniles but will also lead to better procedures and outcomes for adults.  Yet at the same time, advocates should not abandon efforts to push for further substantive Eighth Amendment limits on sentences — not only for children but for adults.

August 24, 2017 at 06:45 PM | Permalink


Now that the court has said in Packingham that the eighth amendment requires that first amendment rights have to be restored upon release from prison, next the court should say that second amendment and fifteenth amendment rights are restored upon release, right? The eighth amendment isn't just about sentences, but about permanent political disabilities?

Posted by: Thurbad Marhsalling the Forces | Aug 24, 2017 8:01:34 PM

How long is a life sentence is an interesting question - not only for juveniles but for adults. This is a question of some significance for Compassionate Release also. In the federal system, compassionate release for aged inmates requires that they have served 3/4 of their sentence. This requirement seems to exclude any offender with a sentence of life without parole.

We tested a solution with a tool that calculated the life expectancy for inmates in every county in the country and used the life expectancy age as a basis to calculate serving 3/4 of the life sentence. It seemed logical, but was not accepted.

Posted by: beth | Aug 24, 2017 10:10:28 PM

Beth. I do not know if you have a family, for example daughters. If we provided excellent staff support, would you be willing to provide a room in your home for an inmate receiving compassionate release? This is a hypocrisy check.

If you are, should you be charged with child endangerment if one of your daughters were molested? You know lifers have committed crimes of inhumanity, and are devoid of morals. You also know that those who are doing great are doing so in the structured setting of prison. That has no correlation with doing well outside such structure. Yet, you were totally irresponsible in exposing your child the known danger of a super predator.

All the regulator predators have been diverted, and many times, in accordance with all the demands of reformers. That is why we have 30 million crimes a year and rising, not falling. What is left over are the super-predators.

Would the neighbors be coming after you? That would include threats of Philly rezoning.

If you are not willing to have one in your home with no additional effort on your part, and even payment of rent by government, how can you justify dumping these toxic individuals on the homes of poor people, with less political power than others?

Posted by: David Behar | Aug 25, 2017 7:30:39 AM

David, I do have a family. I agree with you - there are dangerous people in prison who have committed violent crimes that I do not think should be freely associating or interacting with children or people of any age.

That said, I'll answer your more personal question about me. There are thousands of nonviolent prisoners who have been over charged with conspiracy charges that I would be happy to have in my home if they were released on compassionate release or granted clemency.

Our criminal justice system has become a big government program. I probably sound strident, but in order for the public to support this huge expensive program, we must be convinced that without it we are in danger and this is all done to keep us safe. Unfortunately, this is not the case. There are thousands of nonviolent offenders who have received life without parole or defacto life without parole who could contribute to society if their sentences actually fit the crime. These sentences coarsen our culture and make us question our criminal justice system. I know many of the people that I would love to have in my home or visit them in theirs.

Many have received egregiously long sentences. If you believe that only dangerous predators have these sentences, you need to explore our use of conspiracy charges and what happens when the accused exercises their 6th amendment right to trial.

Ive spent lots of time with people sentenced to life without parole or defacto life who have been released through compassionate release, clemency, or prosecutorial irregularities that were uncovered. I know that I don't want my government to spend one more dime on their incarceration. I know that the extraordinary length of their incarceration did not have anything to do with my safety, but had a lot to do with the expansion and perpetuation of a big powerful government program.

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