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May 7, 2024
New report from Campaign for the Fair Sentencing of Youth details the state of juvenile LWOP sentences in the US
Via email, I learned of this new report from the Campaign for the Fair Sentencing of Youth titled "Unusual & Unequal: The Unfinished Business of Ending Life Without Parole for Children in the United States." Because this group advocates for the abolition of juvenille LWOP sentences, this report primarily laments that there are still a few hundred persons convicted as juveniles serving this sentence, though it notes the fact that "over the past decade, ... the population of [juvenile offenders] serving [an LWOP] sentence decreas[ed] by 85%."
The report include a lot of data about juve LWOP laws and the (re)sentencing of many offenders in the wake of the Supreme Court's major Eighth Amendment rulings in Miller and Montgomery. I recommend the short report to anyone eager to understand the current state of juvenile LWOP sentencing. The report concludes with the kind of advocacy that has been a hallmark of the Campaign for the Fair Sentencing of Youth:
A concentration of a few states have unevenly complied with Miller and the possibility of resentencing provided by Montgomery. Some have refused to comply at all.
This uneven implementation of the Miller decision has a particularly profound impact on racial disparities among those serving JLWOP. An analysis of those deemed worth protecting from JLWOP and those deemed fit for the sentence suggests that as long as JLWOP remains a sentencing option, it will be imposed in ways that produce arbitrary and racially discriminatory outcomes. It will also be leveraged to legitimize the extreme sentences of children in other forms, that still fail to consider their unique capacity for positive change.
Miller and the ensuing procedures guiding JLWOP imposition have not been sufficient guardrails to combat these risks. States must go further to address these inequalities and recognize what science and common sense have clearly demonstrated: that children are categorically different from adults, less culpable, and should be provided opportunities to demonstrate their tremendous potential for positive growth and change.
May 7, 2024 at 02:48 PM | Permalink
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https://redstate.com/bobhoge/2024/05/07/pro-hamas-mob-shows-true-colors-rips-star-of-david-head-scarf-off-jewish-man-near-met-gala-beats-him-n2173877
Ah, the joys of selective enforcement. I know Doug is good with that--or at least willing to say that it's legal.
Posted by: federalist | May 7, 2024 3:51:30 PM
federalist: I have said over and over again that I would be eager to see US v. Armstrong reversed so that folks claiming selective enforcement can better obtain discovery from prosecutorial files. I have also asked you repeatedly if you likewise support reversal of Armstrong. I believe you have run away from directly answering the question every time, but I will try again:
To better address concerns of selective enforcement, federalist, do you support reversal of US v. Armstrong? Relatedly, do you support much more transparency regarding prosecutorial charging and bargaining decisions, as well as robust judicial authority to order discovery and substantively review of prosecutorial charging and bargaining decisions decisions?
From your support of mandatory minimums to sentencing appeals waivers, federalist, your views seem to make you far more the toady of prosecutors. But perhaps you are finally coming around to see the error and harms of your deferential pro-prosecutor positions. So perhaps you will finally answer whether you join my advocacy for having US v. Armstrong reversed. I look forward to perhaps finally getting a direct answer.
(Also, based on the article you link, I think your concern here is technically "selective non-enforcement.")
Posted by: Doug B | May 7, 2024 4:07:32 PM
Ha ha--lol, yes, selective non-enforcement.
But this stuff is a huge huge problem.
Posted by: federalist | May 7, 2024 5:16:52 PM
https://www.nationalreview.com/corner/judge-merchan-allows-testimony-that-unidentified-man-threatened-daniels/?utm_source=recirc-desktop&utm_medium=homepage&utm_campaign=river&utm_content=featured-content-trending&utm_term=first
I don't care if the judge allowed it. The prosecutor who elicited this testimony should be permanently disbarred.
Posted by: federalist | May 7, 2024 5:19:03 PM
Seems like you put on your running (away) shoes again, federalist. But if you sincerely think unaccountable and often hidden misuse of prosecutorial power is "huge huge problem," then you should have no problem answering my questions. So I will try again:
To better address concerns of selective enforcement, federalist, do you support reversal of US v. Armstrong?
Relatedly, do you support much more transparency regarding prosecutorial charging and bargaining decisions, as well as robust judicial authority to order discovery and substantively review of prosecutorial charging and bargaining decisions decisions?
Not sure why you are eager to run from these questions, but maybe I can get an answer this time.
Posted by: Doug B | May 7, 2024 5:31:50 PM
The answer Doug is that I don't know. How do you separate out the "cosmic fairness" cases from these situations where the 'rats are allowing trespass etc.
I do know that partisan politics in the justice system needs to be rooted out. This Bragg prosecution is tyrannical.
Posted by: federalist | May 7, 2024 6:04:10 PM
Weak dodge, federalist. I was not asking for you to define a perfect substantive standard for selective enforcement, just asking if you would advocate reversing the SCOTUS ruling that precludes discovery (and thus transparency) for the suspect exercise of prosecutorial power. With Armstrong in place, we cannot expect better behavior from prosecutors because it is all hidden and thus necessarily unaccountable. Are you really saying you "don't know" if more discovery might be useful to help root out legal problems in the exercise of prosecutorial discretion that you call "a huge huge problem"?
Your weak answer also suggests that you think judgments about the exercise of prosecutorial discretion will just always be in the eye of the beholder. That's a plausible view, but ultimately amounts to a concession that law cannot police or limit the problematic exercise of prosecutorial power. I am not so nihilistic about law, but maybe you are actually the one "willing to say that [everything prosecutors do is] legal."
And, as I have stressed before, if you think politicized prosecutors are a "a huge huge problem," you can and should at least endorse other means to limit prosecutorial power ranging from eliminating mandatory minimums to prohibiting use of acquitted conduct at sentencing to limiting sentencing appeal waivers, just to name a few. Are you on board with those modest reforms (which have many virtues in addition to limiting prosecutorial power)? If not, I doubt you really view prosecutorial power as that problematic.
Posted by: Doug B | May 7, 2024 7:28:18 PM
Doug,
The prosecutor has no power. Everything he does is counterbalanced by a judge, jury, and defendant.
Posted by: TarlsQtr | May 7, 2024 10:32:25 PM
Doug --
Your proposed "remedies" for politicized prosecutions are both over- and under-inclusive. They are over-inclusive because they would apply to the huge (like 98%) of prosecutions that are not politically influenced in the sense at issue here, and would simply benefit defendants rather than limit the very small number of politically driven prosecutions. They are under-inclusive because they don't punish, or even in any specific way address, the target problem, to wit, political vendettas dressed up as the neutral operation of law. If you want to get rid of politicized prosecutions, the obvious and straightforward way to do it is to get rid of politicized prosecutors (as the citizens of San Francisco did when they recalled Chesa Boudin).
However, even putting all that to one side, the "remedies" you note are not for the judiciary to implement, since that would make the judiciary effectively a superior, rather than a co-equal, branch of government with the executive. That is inconsistent with the structure of the Constitution and the Framers' intent in creating co-equal branches.
Basically, it's the same old laundry list of pro-criminal causes that you and those on your side have made repeated, but to date unsuccessful, efforts to get Congress to enact (except for banning sentencing appeal waivers, which, as you earlier conceded, has no recorded support among ANY of the 535 members of the House and Senate).
Posted by: Bill Otis | May 7, 2024 11:01:59 PM
Master Tarls: I assume you mean to say that you do not think prosecutors have "excessive" powers because their powers can be counterbalanced by a judge, jury, and defendant. Prosecutors have critical and distinct (and largely hidden and unregulated) powers to initiate criminal charges, to refuse to initiate criminal charges, and to structure and negotiate the terms of how such charges advance. (Bill likes to assert --- without citations to any text or originalist sources --- that the Constitution does not allow the judiciary to review the exercise of prosecutorial charging powers, though I still do not understand how that jibes with what SCOTUS is doing in US v. Trump and many other cases that involve review of federal criminal charges.)
It is a plausible view --- though one I surmise federalist disagrees with --- to say you don't think there are problems in our justice system due to excessive prosecutorial power because of checks on that power provided by other actors. But asserting "the prosecutor has no power" seems to be blind to the fact that it is entirely because of prosecutorial power that a former president running again for president is spending weeks upon weeks in a Manhattan court house when he surely has other things he would rather be doing.
Bill: I entirely disagree with your assertion that most prosecutions (and declinations) are "not politically influenced in the sense at issue here." From immigration enforcement to criminal abortion laws to drug laws to gun laws to drag shows/potests/free speech to white-collar crimes to the death penalty, so many of our crimes/punishments and enforcement choices are politically influenced AND are the regular subjects of political campaigns in our democracy. Federalist, who can speak for himself, may have one view of problematic politics, but other parisans and advocates (both pro- and anti-enforcement) are just as quick to highlight what aspects of politics they see influencing prosecutional decision-making. (Eg, at the federal level, many folks on the right complained Obama politicized DOJ, then Trump took over and folks on the left complained Trump politicized DOJ, then we are back to the right complaining about DOJ politics under Biden.) It is all politics in the eyes of someone, which makes perfect sense and is built into our democracy since political campaigns and elections --- at the local, state and national level --- directly determine who serves as our prosecutors. You can say you generally like the politics of most prosecutors, but that does not undermine the fundamental reality that all prosecutors are political actors influenced by a wide variety of political forces.
And I agree that reforms to limit prosecutorial power ranging from eliminating mandatory minimums to prohibiting use of acquitted conduct at sentencing to limiting sentencing appeal waivers could have broader impacts. But they just give (a bit) more teeth to what Master Tarls seems to think is significant --- that is, they enable prosecutorial power to be slightly more "counterbalanced by a judge, jury, and defendant." If one does not think such a counterbalance is important, if one is content with prosecutorial power uber alles, then I can understand not seeing these reforms as important (even though they have may virtues beyond slightly limiting prosecutorial power). But federalist frequently comes into this space to complain (often off-topic) about prosecutorial power. If he really cares about this, if he has real convictions rather than just an eagerness to whine, I am trying to help him understand what kinds of reforms he ought to support and seek to advance.
And please know, I am always open to hearing from federalist or anyone else other ideas and proposals for reform. In a prior discussion, I believe Master Tarls endorsed the idea of having that Long Island Audit guy do some of his "audits" in prosecutor offices. That certainly might be another interesting way to try to improve transparency and accountability in the exercise of state power.
Posted by: Doug B | May 8, 2024 7:45:26 AM
Maybe some sort of three-judge panel, with an appeals court judge as part of the panel, and SCOTUS review. But you have the FBI now staging photos to prejudice Trimp, wtf.
Posted by: federalist | May 8, 2024 10:15:52 AM
Not sure how you would expect any review panel to function without giving the individual some discovery on prosecutorial practices, federalist. This is why Armstrong is so problematic for anyone concerned about transparency, accountability and/or review of discretionary prosecutorial decision-making. Without any means of discovery, prosecutors can do whatever they want for even vile reasons without there being any real means for defendants or anyone else seeing or assessing the bases for these decisions.
Posted by: Doug B | May 8, 2024 11:02:29 AM
Doug,
First off, I’ve said it a million times and so has Bill. Stop putting words in my mouth. I never stated there are no problems in our justice system. There are problems, but the founders gave us the tools to root out the corruption of this specific prosecution.
And if justice is done, Trump will be vindicated and the corrupt Bragg will be leveled at the ballot box. If it doesn’t happen, the system failed and we get the government we deserve.
I definitely believe there should be transparency in the DA’s office. We should have more information at the ballot box, not less.
Posted by: TarlsQtr | May 9, 2024 10:24:43 PM
Master Tarls, I am unsure what words you think I put in your mouth. I was explaining that I could see a plausible basis for you or others to assert that you do not see problems due to excessive prosecutorial power in our system because of existing checks by other actors. Based on his comments, I sense that may be Bill's view, and maybe it is also yours. You can expound, or delcine to expound, if so inclined.
I was talking in those terms to try to give intelligible meaning to your strange statement that "The prosecutor has no power." Maybe you want to explain more fully what you meant, but I will now be content to highlight in response the words of Justice Robert Jackson in a famous 1940 speech to federal prosecutors when we was Attorney General and discussing prosecutors' "immense power to strike at citizens, not with mere individual strength, but with all the force of government itself":
"It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst."
https://www.roberthjackson.org/speech-and-writing/the-federal-prosecutor/
Posted by: Doug B | May 10, 2024 9:34:55 AM
