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March 19, 2018

Justice Sotomayor suggests "reconsideration of other sentencing practices in the life-without-parole context"

I noted in this prior post denial of cert in the closely-watched capital case of Hidalgo v. Arizona, and Justice Breyer's statement respecting the denial of certiorari in Hidalgo was not even the most interesting such statement on this morning's SCOTUS order list.  That honor goes to Justice Sotomayor's statement respecting the denial of certiorari in Campbell v. Ohio, which suggests importing more of the Eighth Amendment's procedural protections for the death penalty to life without parole sentencing. I recommend this four-page statement in full, and here are snippets:

Because of the parallels between a sentence of death and a sentence of life imprisonment without parole, the Court has drawn on certain Eighth Amendment requirements developed in the capital sentencing context to inform the life-without-parole sentencing context....

The “correspondence” between capital punishment andlife sentences, Miller, 567 U. S., at 475, might similarly require reconsideration of other sentencing practices in the life-without-parole context. As relevant here, the Eighth Amendment demands that capital sentencing schemes ensure “measured, consistent application and fairness to the accused,” Eddings v. Oklahoma, 455 U. S. 104, 111 (1982), with the purpose of avoiding “the arbitrary or irrational imposition of the death penalty,” Parker v. Dugger, 498 U. S. 308, 321 (1991). To that aim, “this Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency.” Clemons v. Mississippi, 494 U. S. 738, 749 (1990)...

Our Eighth Amendment jurisprudence developed in the capital context calls into question whether a defendant should be condemned to die in prison without an appellate court having passed on whether that determination properly took account of his circumstances, was imposed as a result of bias, or was otherwise imposed in a “freakish manner.”  And our jurisprudence questions whether it is permissible that Campbell must now spend the rest of his days in prison without ever having had the opportunity to challenge why his trial judge chose the irrevocability of life without parole overthe hope of freedom after 20, 25, or 30 years.

March 19, 2018 at 01:29 PM | Permalink


The grant today also might be of some interest to readers:


Issue: Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

Posted by: Joe | Mar 19, 2018 2:30:35 PM

The "parallels between a sentence of death and a sentence of life imprisonment without parole" should not only require appellate review of discretionary life sentences, but also the elimination of mandatory life sentences. In short, Woodson v. North Carolina should be extended to life sentences, and Harmelin should be overruled. See William W. Berry III, The Mandate of Miller, 51 Am. Crim. L. Rev. 327 (2014).

Posted by: APD | Mar 19, 2018 2:54:34 PM

Professor, could you explain the Ohio statute? It seems unusual on due process grounds at least as explained in the dissent. I can see a rule -- such as most guideline states have -- that effectively prevents judicial review of the reasonableness of sentences, but even those states permit review of issues related to eligibility for a particular sentence or procedural errors in the sentencing hearing.

If the state court's rule simply bars a reasonableness review of the actual sentence, then the dissent would represent a major -- although not entirely unexpected -- development. I think this dissent falls into what some have suggested previously -- with the death penalty on the wane, expect much of the effort (including much of the expense) to shift from the death cases to lwop (and then to life with) cases.

Posted by: tmm | Mar 19, 2018 3:02:17 PM

The ban on appealing life sentences appears to have been an oversight--a failure to adapt R.C. 2953.08 to other changes in sentencing. The modern R.C. 2953.08 was enacted as part of the major 1996 Ohio criminal sentencing changes. Then, the the only life sentence for agg murder without death specs was 20-life with the possiblity of 30% off for "good time." The only life sentence for agg murder with death specs was 20-life with no good time. The only penalty for straight murder was 15-life. (See archived versions of R.C. 2929.03 and 2903.02). So it would have been pointless and stupid to appeal a life sentence. But 2953.08 wasn't changed when the jury and/or judge got more options ranging up to LWOP.

Posted by: Stephen Hardwick | Mar 19, 2018 3:19:48 PM

Correction: There were two life sentences for agg murder with death specs--life with 20 full and life with 30 full. Still, Although the difference can add up in consecutive sentences, there can be a much bigger difference between 30-life and LWOP than there is between 20-life and 30-life..

On a side note, although the statute says you can't challenge the decision to impose LWOP in Ohio, you can challenge the decision to run two LWOP's consecutively. Really. I'm not making that up. State v. Jones, 2d Dist. Clark No. 2012 CA 61, 2013-Ohio-4820.

Posted by: Stephen Hardwick | Mar 19, 2018 3:55:04 PM

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