Sentencing Law and Policy

Tennessee Supreme Court finds state's uniquely harsh automatic life sentences unconstitutional for juvenile offenders

On Friday of last week, as summarized at this court webpage, the Tennessee Supreme Court issued a set of notable opinions addressing the constitutionality of the state's automatic life sentencing scheme for juveniles.  Here is, from the court website, links to: "the court's opinion in Tennessee v. Tyshon Booker, authored by Justice Sharon G. Lee and joined by Special Justice William C. Koch, Jr., the separate opinion concurring in the judgment authored by Justice Holly Kirby, and the dissenting opinion authored by Justice Jeff Bivins and joined by Chief Justice Roger Page."  Together, all the opinions run more than 50+ dense pages; they are all worth a read and cannot be easily summarized in a blog post.  But I can provide a poor-man's account (and also link to this local press coverage).

As explained in these opinions, Tennessee law requires a minimum term of 51 years in prison before parole consideration for murderers even for juveniles.  As the opinion for the court explains:  "Compared to the other forty-nine states, Tennessee is a clear outlier in its sentencing of juvenile homicide offenders.  So much so that Tennessee’s life sentence when automatically imposed on a juvenile is the harshest of any sentence in the country.  No one, including the dissent, disputes that a juvenile offender serving a life sentence in Tennessee is incarcerated longer than juvenile offenders serving life sentences in other states."

And so, decides the majority:

Tennessee is out of step with the rest of the country in the severity of sentences imposed on juvenile homicide offenders.  Automatically imposing a fifty-one-year-minimum life sentence on a juvenile offender without regard to the juvenile’s age and attendant circumstances can, for some juveniles, offend contemporary standards of decency....

Tennessee’s automatic life sentence when imposed on juvenile homicide offenders is an outlier when compared with the other forty-nine states, it lacks individualized sentencing which serves as a bulwark against disproportionate punishment, and it goes beyond what is necessary to accomplish legitimate penological objectives.  For these reasons, we hold that Tennessee’s automatic life sentence with a minimum of fifty-one years when imposed on juveniles violates the Eighth Amendment.

As for the remedy:

We exercise judicial restraint when remedying the unconstitutionality of the current statutory scheme for sentencing juvenile homicide offenders.  Rather than creating a new sentencing scheme or resentencing Mr. Booker, we apply the sentencing policy adopted by the General Assembly in its previous enactment of section 40-35-501.... Under this unrepealed statute, Mr. Booker remains sentenced to a sixty-year prison term and is eligible for, although not guaranteed, supervised release on parole after serving between twenty-five and thirty-six years.  Thus, at the appropriate time, Mr. Booker will receive an individualized parole hearing in which his age, rehabilitation, and other circumstances will be considered.

The dissenting opinion starts this way:

I respectfully dissent from the result reached by a majority of the Court today.  Quite frankly, I find the policy adopted as a result of the plurality opinion of Justice Lee and the concurring opinion of Justice Kirby to be sound.  However, it is just that.  It is a policy decision by which the majority today has pushed aside appropriate confines of judicial restraint and applied an evolving standards of decency/independent judgment analysis that impermissibly moves the Court into an area reserved to the legislative branch under the United States and Tennessee Constitutions.

En banc Eight Circuit reverses ruling that Missouri must improve its parole process to comply with Miller

In this post from three years ago, I noted a federal district court ruling finding that the Missouri's parole policies and practices failed to give juveniles subject to life terms a meaningful opportunity to obtain release as required by Eighth Amendment doctrines.  An in this post last year, I noted that a split Eighth Circuit panel upheld the bulk of this ruling over a dissent by Judge Colloton.  Yesterday, Judge Colloton got to turn the tables by writing a new majority opinion for the en banc Eighth Circuit that starts this way:

In 2016, in light of Supreme Court decisions interpreting the Eighth Amendment’s proscription on cruel and unusual punishment, the Missouri legislature modified state law regarding parole. The legislature enacted a statute permitting a juvenile homicide offender to petition for parole if he had been sentenced to mandatory life imprisonment without parole. A class of inmates who were juvenile offenders sued the state officials responsible for administering the parole process.  The inmates alleged that the policies and practices of the parole officials violated their rights to be free from cruel and unusual punishment and to due process of law under the federal and Missouri constitutions. The district court determined that the parole review practices were constitutionally deficient, and ordered the State to implement an elaborate remedial plan. The State appeals, and we conclude that there is no constitutional violation. We therefore reverse the judgment of the district court.

Here is a key concluding passage from the majority opinion:

In sum, the Supreme Court’s juvenile-specific jurisprudence under the Eighth Amendment does not warrant declaring a constitutional violation and imposing on the State the elaborate set of parole procedures endorsed by the district court.  A requirement to allow “some meaningful opportunity” for release, even if applicable to these juvenile homicide offenders, is satisfied here.  The juvenile homicide offenders in Missouri received more process than offenders under the regular parole process: they presented more documentary evidence than adult offenders, received longer hearings than the average parole hearing, and were entitled to consideration of statutory factors that apply only to juveniles who were formerly sentenced to life without parole.  Of course, a “meaningful opportunity” does not imply that every juvenile homicide offender must be released immediately upon eligibility for parole.  We do not believe the Court intended through its decisions in Graham, Miller, and Montgomery to judicialize the parole process in the manner urged by the inmates.

The dissent is authored by Judge Kelly and joined by Chief Judge Smith and Judge Arnold and it concludes this way:

Missouri’s parole policies and practices, when considered in combination as implemented, work to deprive Plaintiffs of their Eighth Amendment right to a meaningful opportunity to obtain release based upon demonstrated maturity and rehabilitation.  See Miller, 567 U.S. at 479. The Supreme Court has clearly stated that juvenile offenders are “constitutionally different” than adult offenders, id. at 471, and “should not be deprived of the opportunity to achieve maturity of judgment and self-recognition of human worth and potential,” Graham, 560 U.S. at 79.  Because the parole review process in place under SB 590 fails to adequately “ensure[] that juveniles whose crimes reflect[] only transient immaturity — and who have since matured — will not be forced to serve a disproportionate sentence,” Montgomery, 577 U.S. at 212, it violates the Eighth Amendment.

Prior related posts:

• Federal district court orders Missouri to improve parole procedures to comply with Miller and Eighth Amendment
• Split Eight Circuit panel upholds order Missouri must improve its parole process to comply with Miller

"Cruel and Unusual Youth Confinement"

The title of this post is the title of this notable new paper authored by Cara Drinan and now available via SSRN. Here is its abstract:

In a series of cases known as the Miller trilogy, the Supreme Court recognized that children are both less culpable and more amenable to rehabilitation than adults, and that those differences must be taken into consideration at sentencing.  Relying on the principle that kids are different for constitutional purposes, the Court abolished capital punishment for minors and significantly limited the extent to which minors can be subject to life-without-parole (“LWOP”) terms.  Equally important, the Miller trilogy was predicated on the concept of inherent human dignity, and it recognized the youthful prisoner’s need for “hope” and “reconciliation with society.”  While scholars have grappled with the implementation of these cases for nearly a decade, there has been no comprehensive analysis of what these cases mean for conditions of confinement.  That is, if children are different for constitutional purposes at the moment of sentencing, surely, they are still different when transported to a correctional facility and confined by the state. This Paper seeks to close that gap in the literature by making two specific contributions: first, by arguing that the Court’s juvenile sentencing decisions impose affirmative obligations upon states regarding youth conditions of confinement; and second, by articulating a standard for measuring when youth conditions of confinement violate the Eighth Amendment.  As long as the United States persists in its extreme juvenile sentencing practices, the project of articulating what constitutes cruel and unusual youth confinement remains crucial.

Notable new report on juve LWOP reviews "Montgomery v. Louisiana Six Years Later: Progress and Outliers"

This morning I received this email from the folks at the Campaign for the Fair Sentencing of Youth that highlighting this new report "Montgomery v. Louisiana Six Years Later: Progress and Outliers." The full short report is worth a full read, and the emails provides this brief accounting of the report's coverage:

Six years ago today, the U.S. Supreme Court issued its decision in Montgomery v. Louisiana, making Miller v. Alabama’s requirement that judges consider the mitigating attributes of youth retroactive and offering new hope to thousands of people who had been sentenced to life without parole as children.  For many, that hope has led to shorter prison sentences, and for hundreds of others, it’s meant freedom.  At the time of the decision, 2,800 individuals in the U.S. were serving life without parole for crimes committed as children.  In the six years since, 835 individuals formerly serving this sentence have been released from prison. 

Today, 25 states and the District of Columbia ban life-without-parole sentences for children, and in six additional states, no one is serving life without parole for a crime committed as a child.  While we celebrate this inspiring progress, we recognize that far too many others have not yet received the relief they rightfully deserve.  Thus, we are pressing forward in the fight for these individuals across all areas of our work, with a particular focus on state legislatures and advocacy in outlier states. You can read more about how far we have come and the challenges we still face in this report authored by Rebecca Turner, the CFSY’s Senior Litigation Counsel.  

The full report gives particular attention to developments in Pennsylvania, Michigan, and Louisiana, which "each had more children sentenced to life without parole than any other state in the country" when Montgomery was handed down.  Here is how the report describes subsequent developments in those states and nationwide:

A majority of the 2,800 individuals serving juvenile life without parole (JLWOP) following Miller have been resentenced in court or had their sentences amended via legislation, depending on the jurisdiction in which they were convicted.

Yet despite the 80% reduction in people serving JLWOP, jurisdictions have varied significantly in their implementation of Miller. As a result, relief afforded to individuals serving JLWOP is based more on jurisdiction than on whether the individual has demonstrated positive growth and maturation.

The uneven implementation of Miller disproportionately impacts Black individuals, who represent 61% of the total JLWOP population....

Within that population [serving JLWOP when Montgomery was decided], 29% have been released, over 50% have had their sentences reduced from JLWOP, about 17% have not yet been afforded relief, and approximately 3% have been resentenced to JLWOP.

Split New Jersey Supreme Court rules NJ constitution requires allowing juvenile offenders "to petition for a review of their sentence after they have served two decades in prison"

A helpful reader ensured I did not miss the fascinating New Jersey Supreme Court ruling in NJ v. Comer, A-42-20)(NJ Jan 10, 2022) (available here), regarding limits on extreme juvenile sentencing.  The start of the opinion for the Court provide the context and the essentials of the ruling:

This appeal raises challenging questions about the constitutional limits that apply to sentences for juvenile offenders.

The law recognizes what we all know from life experience -- that children are different from adults.  Children lack maturity, can be impetuous, are more susceptible to pressure from others, and often fail to appreciate the long-term consequences of their actions. Miller v. Alabama, 567 U.S. 460, 477 (2012).  They are also more capable of change than adults. Graham v. Florida, 560 U.S. 48, 68 (2010).  Yet we know as well that some juveniles -- who commit very serious crimes and show no signs of maturity or rehabilitation over time -- should serve lengthy periods of incarceration.

The issue before the Court is how to meld those truths in a way that conforms to the Constitution and contemporary standards of decency.  In other words, how to impose lengthy sentences on juveniles that are not only just but that also account for a simple reality: we cannot predict, at a juvenile’s young age, whether a person can be rehabilitated and when an individual might be fit to reenter society.

The question arises in the context of two juveniles who committed extraordinarily serious crimes for which they received long sentences.  In one case, the juvenile offender, who was convicted of felony murder, will not be released for three decades and cannot be considered for parole throughout that time.  In the other appeal, it will be more than four decades before the 14-yearold offender, convicted of purposeful murder, will first be eligible to be considered for parole.

Both juveniles argue that their sentences violate federal and state constitutional provisions that bar cruel and unusual punishment.  See U.S. Const. amend. VIII; N.J. Const. art. I, ¶ 12.  They ask the Court to find that a mandatory sentence of at least 30 years without parole, which N.J.S.A. 2C:11- 3(b)(1) requires, is unconstitutional as applied to juveniles.

We decline to strike that aspect of the homicide statute. But we recognize the serious constitutional issue defendants present under the State Constitution. The Court, in fact, anticipated the question in 2017 and asked the Legislature to consider amending the law to allow juvenile offenders who receive sentences with lengthy periods of parole ineligibility to return to court years later and have their sentences reviewed. State v. Zuber, 227 N.J. 422, 451-53 (2017).

Today, faced with actual challenges that cannot be overlooked, we are obligated to address the constitutional issue the parties present and cannot wait to see whether the Legislature will act, as the State requests. That approach is consistent with the basic roles of the different branches of government.  The Legislature has the responsibility to pass laws that fix the range of punishment for an offense; the Judiciary is responsible to determine whether those statutes are constitutional.  Under settled case law, courts also have the authority to act to protect statutes from being invalidated on constitutional grounds.

Here, the statutory framework for sentencing juveniles, if not addressed, will contravene Article I, Paragraph 12 of the State Constitution.  To remedy the concerns defendants raise and save the statute from constitutional infirmity, we will permit juvenile offenders convicted under the law to petition for a review of their sentence after they have served two decades in prison.  At that time, judges will assess a series of factors the United States Supreme Court has set forth in Miller v. Alabama, which are designed to consider the “mitigating qualities of youth.” 567 U.S. at 476-78 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).

We provide for the hearing, rather than strike the homicide statute on constitutional grounds, because we have no doubt the Legislature would want the law to survive. The timing of the hearing is informed by a number of sources, including acts by the Legislature and other officials.

At the hearing, the trial court will assess factors it could not evaluate fully decades before -- namely, whether the juvenile offender still fails to appreciate risks and consequences, and whether he has matured or been rehabilitated.  The court may also consider the juvenile offender’s behavior in prison since the time of the offense, among other relevant evidence.

After evaluating all the evidence, the trial court would have discretion to affirm or reduce the original base sentence within the statutory range, and to reduce the parole bar to no less than 20 years.  A juvenile who played a central role in a heinous homicide and then had a history of problematic behavior in prison, and was found to be incorrigible at the time of the later hearing, would be an unlikely candidate for relief.  On the other hand, a juvenile who originally acted in response to peer pressure and did not carry out a significant role in the homicide, and who presented proof at the hearing about how he had been rehabilitated and was now fit to reenter society after two decades, could be an appropriate candidate for a lesser sentence and a reduced parole bar.

The Appellate Division rejected the juveniles’ constitutional claims. We therefore reverse and remand both matters for resentencing. We express no opinion on the outcome of either hearing.

Three Justices dissented from this holding by the NJ Supreme Court, and the dissenting opinion begins this way:

The majority today holds that the New Jersey Constitution requires a 20- year lookback period for juvenile offenders who were waived to adult court and tried and convicted as adults of homicide offenses.  We acknowledge our colleagues’ view that the New Jersey Constitution permits our intervention here.  But we are not legislators imbued by our Constitution with such authority. In our view, the majority today act “as legislators” instead of as judges. Gregg v. Georgia, 428 U.S. 153, 175 (1976). Thus, we respectfully dissent.

The majority asserts that it is required to act by our Constitution and landmark juvenile sentencing cases from both this Court and the United States Supreme Court. See Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); State v. Zuber, 227 N.J. 422 (2017).  The cited cases hold that, for the purpose of sentencing, the Constitution requires courts to treat juveniles differently and to consider certain factors before sentencing them to life without parole or its functional equivalent.  We believe that our current sentencing scheme fulfils that constitutional mandate.  Thus, it is not our prerogative to impose an additional restriction on juvenile sentencing.

In our view, a 30-year parole bar for juveniles tried as adults and convicted of homicide conforms with contemporary standards of decency, is not grossly disproportionate as to homicide offenses, and does not go beyond what is necessary to achieve legitimate penological objectives.

Accordingly, we believe that the majority’s imposition of a 20-year lookback period for homicide offenses is a subjective policy decision rather than one that is constitutionally mandated.  As such, it must be left to the Legislature, which could have considered all of the factors the majority has, and some it has not.  Instead, the majority joins a small minority of states with lookback periods imposed by judicial fiat rather than by statute.

After Missouri expands parole eligibility for certain juve offenders, Bobby Bostic secures parole 25 years after getting 241-year sentence

The name Bobby Bostic may be familiar to some readers, as he became a focal point for debate and litigation over the application of the Supreme Court's Graham Eighth Amendment ruling prohibiting LWOP sentences for juvenile nonhomicide offenders.  Back in the 1990s, Bostic received in Missouri state court a sentence of 241 years for armed robberies and would possibly not be eligible for parole for nearly 100 years under Missouri law at that time.  Back in 2018, I blogged here about the sentencing judge's op-ed urging the US Supreme Court to take up Bostic's cert petition, but the Justices declined to do so.

Fast forward a few years, and Bostic's case in the news again reporting that MIssouri law has changed and that Bostic has now secured parole after serving a quarter century behind bars.  This local article, headlined "Sentenced to 241 Years as a Teen, Bobby Bostic Wins Parole," provides these details:

A Missouri man sentenced to 241 years in prison for crimes committed when he was just sixteen will be released next year after a quarter-century behind bars.  The ACLU announced today that 42-year-old Bobby Bostic has been granted parole.  He will be released late next year after being provided courses designed to aid him in his re-entry.

On December 12, 1995, Bostic and 18-year-old Donald Hutson were high on PCP when they robbed a group of St. Louisans delivering holiday gifts to a needy family. In the course of the armed robbery, Bostic shot one victim in the side.  Hutson shot another individual.  Both the gunshot victims survived.

Bostic was charged with 18 felonies.  He took his case to trial and in 1997 was found guilty on all counts. His earliest parole date was set for the far-flung year of 2201.  The trial's judge, Evelyn Baker, told Bostic at his sentencing, "You're gonna die with your choice," and added, "Nobody in this room is going to be alive in the year 2201."

Baker retired in 2008.  Two years later, the U.S. Supreme Court delivered a ruling in Graham v. Florida that “prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Bostic's 241-year sentence, however, was not technically a life sentence. In theory, he would have been eligible to be considered for parole at the age of 112....

In recent years, Judge Baker has come to regret the 241-year sentence she handed down to Bostic, writing in an op-ed published in Riverfront Times last year that, "At the time, I didn’t know, and the criminal justice system didn’t understand how the juvenile brain worked and how long it took to mature."

In August of this year, the Missouri legislature passed a state statute allowing individuals who are serving "de facto" life sentences for nonhomicide crimes committed as juveniles to receive parole hearings after 15 years of incarceration.  The ACLU says that, in addition to Bostic, there are about 100 other individuals in Missouri prisons who meet this criteria.

Bostic had a parole hearing in November that, according to the ACLU, was "one of the first under the new law."  At Bostic's side was the same judge who had sentenced him to nearly a quarter of a millennium in prison.  At the parole hearing, Baker advocated for Bostic's release....

Donald Hutson, Bostic's accomplice in 1995, died in prison in 2018.

Prior related post:

• Retired Missouri judge now expressing regret about giving 16-year-old offender 241 years in prison for role in two armed robberies 

"Roper, Graham, Miller, & the MS-13 Juvenile Homicide Cases"

The title of this post is the title of this new paper authored by Raphael Friedman now available via SSRN.  Here is its abstract:

The majority of MS-13 suspects arrested for murder on Long Island in recent years have been minors.  This shocking and tragic phenomenon raises vexing issues for law enforcement, the courts, politicians, educators, and all citizens in communities plagued by gang violence.  This Note focuses on a single legal issue: in light of recent Supreme Court cases, beginning with the 2005 landmark ruling in Roper v. Simmons, how should judges impose sentences on persons convicted of committing homicide before their eighteenth birthday?  Although we will see that the holdings of the three leading Supreme Court cases addressing this question are reasonably clear, many challenging questions remain for sentencing judges who attempt to faithfully apply these decisions.  This Note will explore some of these issues through the prism of MS-13 juvenile-homicide cases, using the sentencing of Josue Portillo for his quadruple murder when he was 15 years-old, as a case study.

This Note proceeds in three parts. Part I sets the stage for studying the Supreme Court’s juvenile sentencing jurisprudence. It takes a step back in order to orient the landmark trilogy of cases — Roper, Graham, and Miller — within the broader legal framework of criminal and juvenile justice. It is broken into three subcategories.  Subpart (A) briefly explains the principal justifications for punishing criminality.  After better understanding why we punish altogether, Subpart (B) analyzes why juveniles should be punished differently from adults.  This is explored very briefly from a historical, political, and legal perspective.  Subpart (C) explains in what circumstances juveniles in the justice system are treated like adults and why, again from a historical, political, and legal perspective.  Part II examines how the Supreme Court limited in some measure the punishments that can be meted out to juveniles, even if being sentenced within the adult criminal justice system.  Roper, Graham, and Miller are explored in detail, as well as some of the preceding cases that paved the road to these landmark rulings, and some subsequent cases.  Part III analyzes how judges should implement the guidance given by the Supreme Court in these cases.  The analysis will trace Josue Portillo’s case but its implications apply across the field of juvenile justice.

"Assessing Graham v. Florida at the Ten-Year Mark: Progress and the Prospects for Ongoing Juvenile Sentencing Reform"

The title of this post is the title of this great looking upcoming symposium being conducted by the Catholic University Law Review this coming Friday, February 5, 2021 starting at 1pm EST. Here is how the event is described and the planned coverage (click through to see all the great speakers):

Three Supreme Court decisions in the last decade have dramatically reshaped the treatment of juveniles in our criminal justice system.  In Graham v. Florida (2010), the Court held that juveniles may not be sentenced to life without parole (LWOP) for non-homicide crimes.  Two years later, in Miller v. Alabama (2012), the Court held that even juveniles convicted of homicide may not be sentenced to mandatory LWOP.  Finally, in Montgomery v. Louisiana (2016), the Court held that Miller was retroactively applicable, thereby entitling several thousand individuals to a resentencing hearing at which their youth and all its mitigating attributes would be taken into account.  These cases not only significantly curbed the uniquely American practice of sentencing minors to LWOP, but also, together they stand for the proposition that children are different for purposes of sentencing.

Ten years after the landmark decision in Graham, this symposium will explore the impact that these cases have had on juvenile sentencing in the LWOP context and more broadly. The first of three panels will include practitioners who can provide a firsthand perspective on resentencing hearings and how they are playing out in courtrooms across the country.  The second panel will consider the legislative effects of Graham and will include policymakers working on the ground to pursue related juvenile sentencing reforms. Finally, the closing panel will afford attendees an opportunity to hear directly from individuals affected by Graham, that is, those who were sentenced to life imprisonment as juveniles and have now come home.

The Program

1:00 p.m.  Graham v. Florida at the Ten-Year Mark

1:30 p.m.  Resentencing Hearings Post-Graham

2:45 p.m.  Legislative Effects of Graham

4:00 p.m.  Life after Graham

Details on Ohio's new ban of juve LWOP and the broader national landscape

As mentioned in this recent post, Ohio recently enacted a new law largely banning life without parole sentences for juveniles.  Daniel Nichanian has this new piece at The Appeal: Political Report about the law and the national develops in this space. I recommend the whole piece, and here are excerpts (with links and the graphic from the original):

Ohio is expanding access to parole hearings for people who have been incarcerated ever since they were children.  It will no longer sentence minors to life without the possibility of parole, and it will significantly curtail sentences that effectively amount to the same. 

Youth justice advocates are celebrating Senate Bill 256, which was signed into law by Governor Mike DeWine on Saturday, as their latest win in nationwide efforts to keep kids from spending their life in prison. The law is a “huge sea change” for the state, said Kevin Werner, policy director at the Ohio Justice & Policy Center, because “it recognizes that people change. … The heart of the bill is that Ohio values redemption over excessive punishment.”

SB 256, which is retroactive, only affects parole eligibility; it does not guarantee that people actually get released, even after spending decades in prison.  Under the new law, people who committed a crime as a minor will be eligible for parole after no more than 18 years of incarceration if the crime did not involve a homicide, or after no more than 25 to 30 years if it did.  That’s longer than in other states that have recently adopted similar laws....

Ohio is the 24th state, plus D.C., that will stop imposing sentences of juvenile life without parole.  A wave of states have adopted similar reforms since the Supreme Court ended mandatory life without parole sentences for minors in a series of early 2010s rulings.  Oregon, in 2019, and Virginia, in 2020, did this most recently. 

Brooke Burns, who heads the Ohio Public Defender’s Juvenile Department, stresses that SB 256 will also help the state confront significant racial inequalities in its prison population.  “When we think about lengthy sentences, it’s overwhelmingly kids of color who are impacted by that,” said Burns.

These inequalities stem from disparate sentencing, but also the rate at which children of color are transferred to adult court in the first place, especially in counties such as Cuyahoga (Cleveland) that do so very aggressively.

The Appeal reported in 2019 that the office of Prosecuting Attorney Michael O’Malley has been transferring minors to adult court far more than other Ohio jurisdictions.  Ninety-four percent of those who were transferred to adult court in 2018 were Black. 

Ohio’s Legislative Services Commission estimates that 50 to 60 people will immediately become eligible for parole when SB 256 becomes effective; this is approximately the number of people who have served at least 18 years, and in some cases much more, of the sentences they received when they were minors.  Many more will become newly eligible for parole in subsequent years.  The law will apply to most people who are serving outright sentences of life without parole, but also to people whose sentences are functionally equivalent since their parole eligibility was set so far in the future....

In Oregon and Virginia, the two states that most recently adopted laws to end juvenile life without parole, the state government is run by Democrats.  But SB 256 had to pass through Ohio’s GOP-run legislature — which it did with wide bipartisan majorities — and get support from the Republican governor.

Seventh Circuit panel upholds 140-year with parole state sentence for 15-year-old offender

Via How Appealing, I just saw an interesting new opinion from the Seventh Circuit in Sanders v. Eckstein, No. 2:11‐cv‐868 (7th Cir. Nov. 30, 2020) (available here).  The start of the opinion explains why I describe the matter as interesting:

Rico Sanders received a 140‐year sentence for raping four women.  He was 15 at the time of the sexual assaults, and his offense conduct was heinous and cruel in the extreme.  Now 40 years old, Sanders will first be‐ come eligible for parole under Wisconsin law in 2030.  He sought post‐conviction relief in state court, arguing that Wisconsin’s precluding him from any meaningful opportunity of parole before 2030 offends the Supreme Court’s holding in Graham v. Florida, 560 U.S. 48 (2010).  Sanders later added a claim that the sentencing court’s failure to meaningfully con‐ sider his youth and prospect of rehabilitation when imposing the 140‐year sentence runs afoul Miller v. Alabama, 567 U.S. 460 (2012). After the Wisconsin courts rejected these claims, Sanders invoked 28 U.S.C. § 2254 and sought relief in federal court.  The district court denied the application, and we now affirm.

Here is a part of the unanimous panel's substantive analysis:

The Wisconsin Court of Appeals determined Sanders’s chance of parole at age 51 — twelve years before his expected end of life at 63 — respects Graham’s requirement of a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” 560 U.S. at 75.  Nothing about that conclusion reflects an unreasonable application of Graham.  In time the Supreme Court may give more definition to what constitutes a “meaningful opportunity” for early release.  For now, however, the Wisconsin court’s conclusion that Sanders will have his first chance at parole at the age of 51 is by no means unreasonable.

Rounding up some accounts of SCOTUS oral arguments in Jones, the latest juvenile LWOP case

I listened live yesterday morning to the Supreme Court oral argument in Jones v. Mississippi, 18-1259, which will address "Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole."  The full argument in Jones is available here, and it is worth the 90 minutes for a full listen because nearly all the Justices were quite engaged and the arguments by counsel were consistently strong and interesting.

If you would rather read accounts of the case and argument, here are a few: 

From Kent Scheidegger at Crime & Consequences, "An Aggressive Interpretation of Precedent" 

From Amy Howe and SCOTUSblog, "Argument analysis: Justices debate requirements for life sentences for juveniles"

From Nina Totenberg at NPR, "Supreme Court Examines When Juveniles May Be Sentenced to Life Without Parole"

From Steven Erickson at Crime & Consequences, "The Muddy Waters of Miller"

From Mark Walsr at Education Week, "High Court Weighs Whether Juvenile Life Without Parole Requires 'Incorrigibility'"

Listening to today's SCOTUS oral argument in two big sentencing cases

The year 2020 has been remarkable for so many reasons, and this morning it means for me a focus on the Supreme Court rather than on voting on this historic 2020 Election Day.  This is because I already voted early (about two weeks ago, in fact), and COVID realities mean that oral arguments are now available in real time.  And because SCOTUS this morning just happens to be hearing its two biggest sentencing cases on the docket, I plan to listen in live.  Here are the basics thanks to SCOTUSblog with links to where all can listen:

Jones v. Mississippi, 18-1259 

Issue: Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

• Case preview: Court to consider life sentences for juveniles – again (Amy Howe)

 LISTEN to Jones HERE

 

Borden v. United States, 19-5410

Issue: Whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness.

• Case preview: Does “use of physical force” include a mens rea of recklessness? (Carla Laroche)

LISTEN to Borden HERE

Background reading before argument in Jones v. Mississippi, the latest SCOTUS foray into Eighth Amendment limits on juve sentencing

Remarkably, it has been more than a decade since the US Supreme Court kicked off its interesting (and uncertain) new line of Eighth Amendment jurisprudence with its ruling in Graham v. Florida, 560 U.S. 48 (2010).  Graham declared sentencing juveniles to life without parole (LWOP) for non-homicide offenses to be unconstitutional, and was quickly followed by Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory LWOP sentences were unconstitutional for juveniles convicted of homicide. Four years later, Montgomery v. Louisiana, 136 S. Ct. 718 (2016), declared that Miller was to be applied retroactively, and now Jones v. Mississippi will explore exactly what Miller and these other cases actually mean for discretionary sentencing of juvenile homicide offenders.

A whole lot of amicus briefs have been filed in Jones on both sides, and the US Solicitor General has also weighed in and been granted leave to participate in tomorrow's scheduled oral argument.  Amy Howe at SCOTUSblog has this preview, which sets up the case this way:

After Miller and Montgomery, state courts can sentence individual juveniles to life without the possibility of parole as long as the sentence is not a mandatory penalty under state law.  On Tuesday, the justices will hear oral argument in a case that asks them to decide what their rulings in Miller and Montgomery require states to do before imposing that sentence.  A Mississippi man contends that the sentencer must find that the juvenile is incapable of rehabilitation, while the state counters that it is enough that the sentencer considered the juvenile’s youth.

For those looking for other background reading beyond the briefs, there have been a number of good commentaries about the issues in this line of rulings published recently:

-- by Brandon Garrett in The Atlantic, "Life Without Parole for Kids Is Cruelty With No Benefit: The United States is the only country that allows this practice, and soon the Supreme Court could get rid of it."

-- by Katie Rose Quandt in In These Times, "The Supreme Court Said Their Sentencing Was Unconstitutional. But They’re Still Behind Bars. Despite SCOTUS rulings against life without parole sentences for juveniles, most who received that sentence remain incarcerated." 

-- by Marc Levin in the Texas Lawyer, "On Election Day, Remember All Youths Are Candidates for Change"

I am looking forward to the Court's consideration of Jones in part because the case presents the three newest Justices with their first big opportunity to weigh in on the Eighth Amendment in a noncapital case.  Based on Justice Gorsuch's work in capital Eighth Amendment cases, I am not expecting him to be a vote for an expansive interpretation of Miller.  But, especially because Justice Kavanaugh and Justice Barrett both are parents to teenage kids, I am wondering if they might be a bit more open to a more expansive view of the Eighth Amendment in this context.

Arizona Supreme Court rejects Eighth Amendment claims by juvenile offenders given de facto life sentences for multiple offenses

On Friday, the Supreme Court of Arizona handed down a unanimous rejection of claims by multiple juvenile offenders subject to de facto life sentences for multiple sentences in Arizona v. Soto-Fong, No. CR-18-0595 (Ariz. Oct. 9, 2020) (available here).  Here is how the opinion begins and a concluding paragraph:

We consider whether consecutive sentences imposed for separate crimes, when the cumulative sentences exceed a juvenile’s life expectancy, violate the Eighth Amendment’s prohibition against “cruel and unusual punishments.”  We conclude that such de facto life sentences do not violate the Eighth Amendment, as interpreted in Graham v. Florida, 560 U.S. 48 (2010), Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Consequently, Graham, Miller, and Montgomery do not constitute a significant change in the law under Arizona Rule of Criminal Procedure 32.1(g)....

Despite the shifting and confusing reasoning embodied in Graham, Miller, and Montgomery, we are bound by the Supremacy Clause to faithfully apply this jurisprudence as we fairly construe it.  Davis, 206 Ariz. at 384 ¶ 34 n.4.  But because those cases do not address or implicate de facto juvenile life sentences, we decline Petitioners’ invitation to expand this jurisprudence one step beyond its reach.  Our respect for the separation of powers, the will of our citizens, and principles of judicial restraint, rather than dicta from inapposite cases, compel our decision.  Thus, we hold that the Eighth Amendment does not prohibit de facto juvenile life sentences.

As this last quoted paragraph may reveal, the Soto-Fong opinion is full of a good deal of snark about the US Supreme Court's rulings in Graham, Miller, and Montgomery.  Discussing Graham, for example, the Arizona Supreme Court calls part of the SCOTUS ruling "dubious" and then takes a "pause" to express "concern" with the Graham opinion’s reference to international law.  Perhaps it is thus unsurprising that the Arizona Supreme Court was seemingly keen to affirm in this case an "enhanced concurrent and consecutive prison sentences totaling nearly 140 years" for a teenager who committed a series of serious arsons.

Eight years after Miller and four after Montgomery, many juveniles still waiting for court consideration of their Eighth Amendment rights

The Marshall Project has this lengthy new piece focused on how many juveniles still have not received court consideration of the Eighth Amendment rights recognized a full eight years ago in Miller v. Alabama, 567 U.S. 460 (2012). The article's fill headline captures its essence: "'Juvenile Lifers' Were Meant to Get a Second Chance. COVID-19 Could Get Them First. The Supreme Court gave teens sentenced to life in prison a shot at freedom. Many are still waiting."  Here is how the piece gets started:

Darnell Johnson long believed that he would die alone in a prison cell.  In 1998, a Michigan court sentenced him to life behind bars without the possibility of parole for killing a woman and shooting two others during a botched armed robbery when he was 17, court records show.

Johnson had been in prison for more than a decade when the U.S. Supreme Court issued two rulings, one in 2012 and another in 2016, that said “juvenile lifers” like him must have their sentences reviewed, taking into account that they were not yet adults when they committed their crimes.  In many states, hundreds saw their prison terms shortened or were released.

But Johnson and nearly 1,000 others incarcerated since their youth across the United States are still waiting for a court hearing — and now they face a growing fear that they will lose their lives to COVID-19, the disease caused by the coronavirus, before getting their chance at freedom.

Johnson, 40, who is black, has asthma and hypertension, risk factors for serious complications from the coronavirus.  He is incarcerated at the Gus Harrison Correctional Facility in Adrian, Michigan, one of the nation’s worst prison hot spots with more than 725 confirmed COVID-19 cases as of Monday.  “All hope of being released is fading away every minute, every hour, every day,” Johnson said via a prison email app. “To have made it to the ‘finish line’ only to possibly die from this virus is that much more frightening.”

The United States is the only country in the world that sends children to prison with no chance of getting out, according to The Sentencing Project, a prison research organization. Roughly 80 percent of juvenile lifers are people of color. As the pandemic devastates prisons and jails, some governors, parole boards and prosecutors are releasing some prisoners who were serving short sentences for low-level crimes. The rationale is that they are less likely to re-offend, according to public statements by officials. Juvenile lifers have rarely been mentioned in this conversation.

That omission is misguided, prisoner advocates say. “These are human beings who brain science shows have ‘aged out’ of crime,” said Renée Slajda, spokeswoman for the Louisiana Center for Children’s Rights, a legal advocacy organization. “If you had to pick between people who just got to jail or ones who have decades of good behavior under their belt, which is a safer bet to release?” asked Ashley Nellis, a senior analyst focusing on lifers at The Sentencing Project.

Johnson, for instance, has received just one misconduct ticket during his entire incarceration: in 2001, according to court records.  He also scored a “low” risk rating for violence or re-offending on a corrections department-administered risk assessment, the document shows.  Johnson’s good behavior in prison had given him hope that the 2016 Supreme Court decision, Montgomery v. Louisiana, would apply to him.  The court ruled that because young people’s brains are still developing, along with their awareness of the consequences of their actions, those who had been sent to adult prison for life for crimes committed as children should get an opportunity to be resentenced — a chance to prove they have been redeemed.

When Johnson heard about the decision, he and friends who also were incarcerated as teens were “slapping each other on the back, saying, ‘We made it!’” he said.  Yet his dream of freedom has been deferred nearly five years because of court delays and because his prosecutor, who has the ability to grant him a shorter sentence, has been unwilling to do so.  At a hearing in December, Johnson will have the chance to challenge the prosecuting attorney’s decision, citing the Supreme Court ruling, says his attorney, Sofia Nelson of Michigan’s State Appellate Defender Office.

Johnson is one of about 200 of Michigan’s more than 350 juvenile lifers who have yet to receive a new sentence, according to court and prison records.  That is the most of any state.  Michigan is also third only to Ohio and Texas with more than 3,000 confirmed COVID-19 cases among incarcerated people, according to The Marshall Project’s tracker. Johnson said he has watched his prison friends catch the virus and worries he could be next.

Will SCOTUS take up another case to address other post-Miller JLWOP issues now that Malvo has gone away?

As noted in this post , earlier this week Virginia enacted new legislation to make all juvenile offenders eligible for parole.  One effect of that new legislation was to moot, more than four months after oral argument, the Supreme Court's consideration of the Malvo case which concerned whether infamous DC sniper Lee Malvo was constitutionally entitled to be considered for resentencing since he was given LWOP for a series of murders committed when he was 17.  Many were wondering whether and how the Justices might use the Malvo case to address broader Eighth Amendment concerns, because the Malvo case touched on, but did not necessarily require resolution of, various issues related to past SCOTUS jurisprudence concerning juvenile sentencing.

Though the dispute in Malvo has gone away, the array of questions about how properly to apply Miller and related SCOTUS precedents in sentencing juveniles to extreme sentencing terms has not.  And it seems quite possible that some Justices, having become sufficiently involved in working through draft opinions for resolving Malvo, may now be eager to now take up a replacement case.  Kent Scheidegger sure seems eager for SCOTUS to take up a replacement case, as he has two new posts over at Crime & Consequences highlighting the range of potential replacements for Malvo:

• Next JLWOP Case on Conference List for Friday
• Additional Malvo Replacement Candidates

Because I am always keen for SCOTUS to take up more sentencing issues and to clarify its constitutional jurisprudence, I am hopeful we will see SCOTUS take up another case to address post-Miller issues ASAP.  But SCOTUS often has a way of dashing my hopes (e.g., its recent acquitted conduct cert denials), so I make no firm predictions.

Reflecting on the meaning of "life" after Graham and Miller

Eli Hager has an extended new piece (at The Marshall Project and Slate) concerning the legal churn over the application of Miller and Graham.  The full headline of this piece highlights its themes: "What’s the Meaning of “Life” When Sentencing Kids?: The Supreme Court ended automatic life without parole for children. What replaces it remains unclear." I recommend the full piece and here are excerpts: 

How long a sentence would the judge have to hand down for it to feel essentially the same as being sent to prison for life?

States have been wrestling with this question over the past decade in the wake of multiple U.S. Supreme Court rulings that automatically sentencing juveniles to life in prison without the possibility of parole is unconstitutional, because kids have a unique ability to grow and change and therefore deserve a second chance down the road. That forced courts and legislatures to consider what number of years to hand down instead to the more than 2,000 current prisoners nationwide who were originally sentenced as juveniles to mandatory life without parole....

[Certain] states have determined that locking up a juvenile for 25 years is tantamount to a life sentence. Some have put the number at 40 years. But one Louisiana court ruled that even a 70-year sentence is not equivalent to life in prison. Another in Florida said that having a possible parole date in the year 2352—more than three centuries from now—is still less than an automatic lifetime behind bars.

“It really is a philosophical question,” said Marsha Levick, chief legal officer at the Juvenile Law Center, an advocacy group. “These are children who entered prison before having finished high school, who never got a chance to achieve maturity, to have relationships, have a family, a career. Does releasing them at 70 or 80 or 90 years old, when they are geriatric, really give them that second chance at an actual life?”...

It’s hard to estimate how many juveniles are serving long sentences equivalent to life. In most states, no agency is mandated to count how many kids are sent away until they will likely die, though youth advocates in Louisiana, for example, estimate there are more than 200 in that state’s penitentiaries alone.Pennsylvania has made perhaps the most concerted effort to get a large number of prisoners originally sentenced to automatic life without parole re-sentenced and then sent home, following the Supreme Court’s reasoning. More than 200 former juvenile lifers there have been let out in recent years, most to the Philadelphia area.

Rounding up some previews of SCOTUS consideration of DC sniper Lee Malvo's juve LWOP sentence

Tomorrow afternoon, the US Supreme Court will hear oral argument in Mathena v. Malvo, a case that calls upon the Justice to continue struggling with the application of the Eighth Amendment limits on LWOP sentences that was set out in Miller v. Alabama and given retroactive effect in Montgomery v. Louisiana.  This SCOTUSblog page has links to all the briefing in this case and sets out this question presented as framed by the state of Virginia:

Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding — in direct conflict with Virginia’s highest court and other courts — that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

The intricacies of this question presented highlights that the Justice could approach the Malvo case as a small technical matter only about the proper application of prior settled decisions.  But because the crimes of Lee Malvo were horrific and the rulings in Miller and Montgomery contentious, there are advocates who wonder and fear that certain Justices may be eager to use this case to cut back on the Court's recent Eighth Amendment jurisprudence.

I have seen a number of notable previews and commentary concerning the Malvo case, and here is a sampling:

• From Amy Howe at SCOTUSblog, "Argument preview: Justices to consider life-without-parole sentences for juveniles in D.C. sniper case"

• From Tom Jackman at the Washington Post, "Supreme Court to consider whether sniper Lee Boyd Malvo should be resentenced"

• From Andrew Cohen at the Brennan Center, "The Supreme Court Must Not Turn Back From Juvenile Sentencing Reform: The case of 'beltway sniper' Lee Boyd Malvo is poised to have a legal legacy far beyond his own."

• From Isa Farrington Nichols at Newsweek, "My Niece Was Murdered In The D.C. Sniper Shootings — but I Support Resentencing For The Teenager Who Killed Her"

• From Kent Scheidegger at Crime & consequences, "SCOTUS Hears D.C. Sniper, Jr. Case Tomorrow"

• From John Ellem at Bloomberg Law, "Listen to States on Child Sentencing, Bipartisan Legislators Tell High Court"

• By RJ Vogt at Law360, "DC Sniper Case Stokes Debate Over Juvenile Life Sentences"

"Execution of Youth under Age 21 on the Date of Offense: Ending with a Bang or a Whimper?"

The title of this post is the title of this new article authored by Hollis Whitson and Eric Samler now available via SSRN. Here is its abstract:

Consistent with the scientific evidence that proves that adolescent brain development continues well into the third decade of life, the Supreme Court may be foreshadowing the day when an actual or de facto categorical ban will bar the death penalty for offenders who were under the age of 21 years old on the date of the offense.  For almost two decades, death sentences and executions of such persons have been in steep decline — in absolute numbers and in geographical concentration. Over the same period, the minority percentage of those impacted has increased.  The authors joins the American Bar Association and other voices that have called for a categorical ban on execution of persons who were under the age of 21 years old at the date of offense.

Notable Washington Supreme Court discussion of recidivist LWOP sentences while rejecting challenge to use of young adult "first strikes"

Last fall, the Washington Supreme Court showed its willingness to strike down various extreme sentences when it concluded the state's death penalty administration was so arbitrary as to be violative of the state constitution, and soon thereafter in a distinct ruling decided to categorically bar the imposition of a juvenile life without parole based again on the state constitution.  But earlier this month, this Court refused to extend this constitutional jurisprudence to LWOP sentences imposed under its recidivist statutes in Washington v. Moretti, No. 95263-9 (Wash. Aug 15, 2019) (available here).  Here is how the opinion for the unanimous Court gets started and concludes:

Under the Persistent Offender Accountability Act(POAA), the third time a person is convicted of a "most serious offense," they mustbe sentenced to life in prison without the possibility of parole.  RCW9.94A.030(38)(a), .570.  This statute is colloquially known as the "three strikes andyou're out" law.  State v. Thome, 129 Wn.2d 736, 746, 921 P.2d 514 (1996). These three cases each ask whether it is constitutional to apply the POAA to people whowere in their 30s or 40s when they committed their third strike but were young adultswhen they committed their first strike.

We hold that it is constitutional. Article I, section 14 of the Washington Constitution does not require a categorical bar on sentences of life in prison withoutthe possibility of parole for fully developed adult offenders who committed one oftheir prior strikes as young adults. We also hold that the sentences in these cases arenot grossly disproportionate to the crimes....

Petitioners argued that sentencing adult offenders to mandatory sentences of life without the possibility of parole under the POAA when one of their prior strike offenses was committed as young adults is either cruel, in violation of article I, I section 14 of the Washington Constitution, or cruel and unusual, in violation of the Eighth Amendment to the United States constitution. We hold that it is not.

The petitioners have not shown a national consensus against this sentencing practice, and our own independent judgment confirms that there is nothing to suggest that these petitioners are less culpable than other POAA offenders.  The sentences in these cases do| not categorically violate the Washington Constitution.  Because our I constitution is more protective than the federal constitution in this context, we need not analyze this question under the Eighth Amendment.  Finally, we hold that these sentences are not grossly disproportionate to the offenses under the Fain factors.

Adding to the intrigue of this ruling is a thoughtful concurrence by Justice Yu that was joined by two other members of the court which starts this way:

This case touches on the issue of sentencing individuals to life without the possibility of parole for a wide range of lower level offenses.  I agree with the court's narrow holding that there is currently no categorical constitutional bar to the inclusion of an offense committed as a young adult as a predicate for purposes of the Persistent Offender Accountability Act ("Three Strikes Law"), ROW 9.94A.570.   But a punishment that may be constitutionally permissible today may not pass muster tomorrow.  I therefore write separately to express my growing discomfort with the routine practice of sentencing individuals to life without the possibility of parole, regardless of the offense or the age of the offender. 

This court's decision in State v, Gregory limited the array of punishments that may be imposed for the most serious offenses by eliminating the death penalty. 192 Wn.2d 1, 427 P.3d 621 (2018) (plurality opinion).  Every death sentence in this state has been commuted to the next most severe punishment available — life without the possibility of parole. Id. at 36.  As a result, the range of offenses that require imposition of the most severe punishment the state can impose has been expanded.  Persistent offenders who have committed robberies and assaults are now grouped with offenders who have committed the most violent of crimes, including aggravated murder and multiple rapes.  The gradation of sentences that once existed before Gregory have now been condensed.  As a result, a serious reexamination of our mandatory sentencing practices is required to ensure a just and proportionate sentencing scheme.

Federal district court orders Missouri to improve parole procedures to comply with Miller and Eighth Amendment

As reported in this local article, a "federal court has ordered Missouri to overhaul how it handles the parole process for offenders who committed violent crimes as a minor."  Here is more about a notable ruling:

U.S. District Judge Nanette K. Laughrey issued declaratory and injunctive relief, ordering the Missouri Probation and Parole Board to improve transparency, accountability, and training for youthful offender parole hearings.

“Specifically, the Court found that a number of Defendants’ policies, practices, and customs combine to deprive those serving [juvenile life without parole] sentences of a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” the 23-page order states.

The judgment included nearly two dozen procedures — developed through mediation — the state is required to “promptly implement.”...  The Missouri Probation and Parole Board has already adopted some of the procedures, such as allowing note taking during hearings.

The extensive changes come as a result of a class action lawsuit, Brown v. Precythe, filed by the MacArthur Justice Center, targeting the parole board’s alleged failure to comply with state and federal law when it comes to juvenile offenders serving mandatory life without parole sentences.

“This is a significant and long-awaited victory,” said Amy E. Breihan, MacArthur Justice Center’s Missouri director. “Seven years after the Supreme Court invalidated these juvenile [life without parole] sentences, Missouri is finally being held accountable for providing impacted folks a meaningful and realistic opportunity for release.”...

In 2016, SB 590 was passed by the Missouri General Assembly and signed into law.  The bill, in part, allows offenders sentenced as a juvenile to life without parole prior to Aug. 28, 2016, to “submit to the parole board a petition for a review of his or her sentence, regardless of whether the case is final for purposes of appeal, after serving twenty-five years of incarceration on the sentence of life without parole.”

The original lawsuit alleged the parole board treated those individuals “with arbitrary and cruel practices.”  The judge sided with the inmates, ordering an overhaul of how the parole hearings are handled.  “Perhaps the most important part of the order,” said Breihan, “is that it prohibits the Parole Board from denying parole based solely on the seriousness of the offense, and requires them to make decisions through a youth-focused lens. Indeed, these decisions should be based on who these men and women have become over time, not their worst act as children.”

The full 23-page court order can be found at this link.

Relying on post-Miller legislation, Illinois Supreme Court rules any juve sentence over 40 years constitutes de facto life sentence

I just saw an interesting ruling handed down last week by the Illinois Supreme Court, Illinois v. Buffer, 2019 IL 122327 (Ill. April 18, 2019) (available here), which concerns what length of sentence should be considered a de facto life sentence triggering the Eighth Amendment sentencing limitations articulated by the Supreme Court in Miller and Montgomery.  For folks following closely debates over the reach and application of the Eighth Amendment to juvenile term-of-year sentences, all of Buffer is worth reading (including the extended concurrence). Here is a key passage from the court's opinion:

[In a legislative response to Miller,] the General Assembly has determined that the specified first degree murders that would justify natural life imprisonment for adult offenders would warrant a mandatory minimum sentence of 40 years for juvenile offenders.  The legislature evidently believed that this 40-year floor for juvenile offenders who commit egregious crimes complies with the requirements of Miller.

In determining when a juvenile defendant’s prison term is long enough to be considered de facto life without parole, we choose to draw a line at 40 years.  This specific number does not originate in court decisions, legal literature, or statistical data.  It is not drawn from a hat.  Rather, this number finds its origin in the entity best suited to make such a determination — the legislature.  The Supreme Court has made clear that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance” with eighth amendment mandates pertaining to juvenile sentencing.  Graham, 560 U.S. at 75.  As this court recognized long ago, “‘[g]reat constitutional provisions must be administered with caution. *** It must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’” People ex rel. Douglas v. Barrett, 370 Ill. 464, 467 (1939) (quoting Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270 (1904)).

Extrapolating from this legislative determination, a prison sentence of 40 years or less imposed on a juvenile offender provides “‘some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’” Miller, 567 U.S. at 479 (quoting Graham, 560 U.S. at 75).  We hereby conclude that a prison sentence of 40 years or less imposed on a juvenile offender does not constitute a de facto life sentence in violation of the eighth amendment.

Fourth Circuit panel rejects claim that Virginia Parole Board must consider age-related characteristics for juve lifer

A helpful reader alerted me to an interesting new Fourth Circuit panel ruling handed down yesterday in Bowling v. Director, Virginia Dep't of Corrections, No. 18-6170 (4th Cir. April 2, 2019) (available here).  The start of the Bowling opinion provide a flavor for the constitutional arguments framed by the defendant which did not strike a chord with the panel:

This appeal arises from the Virginia Parole Board’s (“the Parole Board”) repeated denial of parole to Thomas Franklin Bowling (“Appellant”).  Appellant was sentenced to life with parole when he was 17 years old.  He first became eligible for parole on April 26, 2005.  The Parole Board has considered his eligibility and denied him parole annually ever since. Appellant alleges that, because the Parole Board was not specifically required to consider age-related characteristics unique to juvenile offenders when it has processed his parole applications, the Parole Board’s repeated denial of his applications violated his Eighth and Fourteenth Amendment rights.

On that ground, Appellant initiated this action against the Director of the Virginia Department of Corrections (“Appellee”).  Appellee moved to dismiss Appellant’s complaint, and the district court granted Appellee’s motion to dismiss.  Regarding Appellant’s Eighth Amendment claim, the district court held that juvenile-specific Eighth Amendment protections do not apply to Appellant because he was sentenced to life with parole.  Regarding Appellant’s Fourteenth Amendment claims, the district court held that the Parole Board procedures satisfy procedural due process requirements.  For the reasons stated below, we affirm the decision of the district court.

Here is a spare paragraph from the heart of the opinion:

Appellant asks this court to extend the Supreme Court’s Eighth Amendment jurisprudence to juvenile parole proceedings and find that it is cruel and unusual punishment for a parole board to deny juvenile offenders parole without specifically considering age-related mitigating characteristics as a separate factor in the decisionmaking process.  Granting that request would require us to extend the legacy of Roper, Graham, and Miller in two ways.  First, we would have to find that juvenile-specific Eighth Amendment protections extend to juvenile homicide offenders sentenced to life with parole.  And second, we would have to find that those protections extend beyond sentencing proceedings.  We decline to go so far.

"Miller v. Alabama and the Problem of Prediction"

The title of this post is the title of this new paper authored by Mary Marshall now available via SSRN. Here is its abstract:

Beginning in 2010, the Supreme Court severely limited states’ ability to impose juvenile life without parole sentences. In a seminal case, Miller v. Alabama, the Court banned mandatory life without the possibility of parole sentences for juveniles and declared that only those juveniles that are “irreparable corrupt” should be made to spend the rest of their lives in prison.  While Miller has been the subject of much scholarly debate, there has yet to be any discussion of a core instability at the center of Miller’s mandate: By limiting life without parole sentences only to those juveniles who are “irreparably corrupt” the Court is asking sentencers to predict whether a juvenile will be a danger decades down the road and after a long prison sentence.  This Note uses legal and social science literature around the impossibility of long-term predictions about juvenile development to argue that the requirement of prediction in Miller prevents just application of the decision and argues that this instability should lead to a ban on juvenile life without parole sentences.

Notable review of juvenile lifers in Tennessee

This local article, headlined "3 takeaways from our review of all 185 Tennessee teen lifers," provides an effective review of the maxed-out incarceration of certain youth in the Volunteer State. Here are excerpts:

In December, activists confronted former Gov. Bill Haslam at an education event and demanded that he grant clemency to Cyntoia Brown, a Nashville woman serving a life sentence in prison for a murder she committed at 16.

At the time, the outgoing Republican governor said he wanted to treat the case fairly, along with cases that were similar but had not received the same level of publicity as Brown's case.  Indeed, Brown had celebrities — including Rihanna and Kim Kardashian West — advocating on her behalf, and she had a team of powerful lawyers who volunteered to pursue her freedom.

Ultimately, Haslam decided to grant Brown clemency, calling her sentence too harsh.  And he acknowledged her case was not unique, saying he hoped "serious consideration of additional reforms will continue, especially with respect to the sentencing of juveniles."

In the wake of his decision, the USA TODAY NETWORK - Tennessee spent weeks reviewing the cases of each of the 185 men and women serving a life sentence — or life without parole — for crimes they committed as teens....

Nearly three-quarters of those serving life sentences for crimes they committed before the age of 18 are African-American men.

Here are some of the other breakdowns of the 185 people serving life.  Seven are serving life sentences for crimes committed at age 14; 26 were 15 years old at the time of their crimes; 53 were 16. The rest were 17.  Ten are women.

Fourteen are serving life sentences without the possibility of parole, while the remainder face at least 51 years behind bars before their first chance for a parole hearing.  The oldest is Robert Walker, sentenced to life in prison for murder in 1972 at age 16. He is now 63....

State Sen. Raumesh Akbari, D-Memphis, said many young defendants face childhood hardships and traumas that can be overcome with time and treatment. “There are so many others like Cyntoia,” Akbari said. “It’s so complicated when you’re dealing with loss of life, but we are talking about children,” she said. “As horrific as it sounds that a child committed murder, the person they are now is not the person they will be in 20 years.”

Indeed, in many of the cases the USA TODAY NETWORK - Tennessee reviewed, court records document a history of abuse suffered by the convicted teens.

A 16-year-old girl sentenced to life in prison in the stabbing death of her mother was repeatedly forced to watch her mother have sex with multiple men.

A 15-year-old boy whose stepfather regularly beat his mother got into a confrontation with the man while asking if he would let them peacefully leave. The boy beat the stepfather to death with a baseball bat.

A 17-year-old boy killed his father after what he and his mother described as years of physical and emotional abuse that had been reported to the state. The father threatened to beat the boy after a suicide attempt and withheld mental health medication, according to the mother. The boy shot his father with a rifle and stole his truck.

The U.S. Supreme Court issued a pair of rulings in recent years that found mandatory life sentences for juveniles are unconstitutional except in rare circumstances....  In Tennessee, the Supreme Court's rulings have not had an impact because there is no mandatory life sentence. Life sentences with the possibility of parole include a mandatory review after at least 51 years served — a length of time advocates call a virtual life sentence.

This companion article, headlined "In Tennessee, 185 people are serving life for crimes committed as teens," includes this discussion of some talk of legislative change:

Sen. Raumesh Akbari, D-Memphis, said many young defendants face childhood hardships and traumas that can be overcome with time and treatment. “There are so many others like Cyntoia,” Akbari said....

Gov. Bill Lee's spokeswoman said he is “open to proposals addressing juvenile sentencing,” and a new state panel is considering future reforms. But there remains little consensus among Tennessee policymakers on what to do when children kill.

Akbari is trying to change Tennessee law to lower the minimum time served before a chance for parole to as low as 30 years for juveniles. The proposal could give many of the 185 a second chance at life outside prison walls for the first time in their adult lives.

Her effort is grounded in research about adolescent brain development that shows people do not fully develop rational decision-making abilities until their 20s. Other research has highlighted the impact of adverse childhood experiences on the developing brain, including sexual and physical abuse, poverty and incarcerated parents — events that can negatively wire some children’s brains.

"Juvenile Life Without Parole in North Carolina"

The title of this post is the title of this new paper available via SSRN and authored by Ben Finholt, Brandon Garrett, Karima Modjadidi and Kristen Renberg.  Here is its abstract:

Life without parole is “an especially harsh punishment for a juvenile,” and as the U.S. Supreme Court noted in Graham v. Florida.  The United States is the only country in the world that imposes juvenile life without parole sentences. Many of these individuals were sentenced during a surge in LWOP sentences in the 1990s.  In the past decade, following several Supreme Court rulings eliminating mandatory sentences of LWOP for juvenile offenders, juvenile LWOP sentencing has declined.  This Article aims to empirically assess the rise and then the fall in juvenile LWOP sentencing in a leading sentencing state, North Carolina, to better understand these trends and their implications.

We examine the cases of 94 people in North Carolina who were sentenced to LWOP as juveniles.  Their ages at the time of the offense ranged from 13 to 17.  Of those, 51 are currently serving LWOP sentences (one more is currently pending a new trial).  These cases are detailed in the Appendix.  In North Carolina, JLWOP sentencing has markedly declined.  Since 2011, there have been only five such sentences.  Of the group of 94 juvenile offenders, 42 have so far been resentenced to non-LWOP sentences, largely pursuant to the post-Miller legislation in North Carolina.  Over one third of the juveniles sentenced to LWOP, or 32 individuals, were not the killers, but were convicted under a felony murder theory. 

These sentences are concentrated in a small group of counties.  A total of 61% or 57 of the 94 juvenile LWOP sentences in North Carolina were entered in the eleven counties that have imposed more than three such sentences.  We find an inertia effect: once a county has used a JLWOP sentence they have a higher probability of using a JLWOP sentence again in the future.  In contrast, homicide rates are not predictive of JLWOP sentences. 

We ask whether it makes practical sense to retain juvenile LWOP going forward, given what an unusual, geographically limited, and costly sentence it has become.  In conclusion, we describe alternatives to juvenile LWOP as presently regulated in states like North Carolina, including a scheme following the model adopted in states like California and Wyoming, in which there is period review of lengthy sentences imposed on juvenile offenders.

Ninth Circuit going en banc to reconsider intersection of Eighth Amendment juve jurisprudence and federal sentencing guidelines

In this post back in July, I noted work on an amicus brief in support of a Ninth Circuit en banc petition in US v. Riley Briones.  The panel opinion in Briones is available at this link, where you will find a split decision in which the Ninth Circuit affirmed the district court's adoption of the federal sentencing guidelines as the key factor in the course imposing a life without parole federal sentence on a juvenile offender.  The amicus brief, which is available here, argued "It is unreasonable — and unconstitutional — for a court to routinely apply the Sentencing Guidelines when a defendant is subject to a Guideline sentencing range of life without parole for a crime committed as a juvenile."

I am now pleased to be able to report that, as of yesterday, the panel opinion in Briones is technically no longer good law thanks to this Feb 13, 2019 order by the Ninth Circuit:

Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel disposition in this case shall not be cited as precedent by or to any court of the Ninth Circuit.

Though I am not exactly sure of the timelines for en banc review in the Ninth Circuit, I presume briefing and argument will take a number of months though we might still get a new decision before the end of this year.  Meanwhile, folks who follow this area of jurisprudence closely may recall that the Third Circuit is also in the midst of en banc review of related post-Miller Eighth Amendment application issues US v. Corey Grant, No. 16-3820, as discussed in this post from a few months ago.  A helpful reader reported to me that oral argument in Grant is scheduled for next week.

I have been a bit surprised that we have not yet seen the Supreme Court take up any follow-up Eighth Amendment cases since it decided Graham and Miller in short succession in 2010 and 2012.  It is interesting to speculate if either the Briones or Grant cases might interest the Justices after (inevitable?) big split en banc circuit rulings in these cases.

Another dive into the choppy waters of Miller and Montgomery implementation

I am sure I have posted any number of articles highlighting that implementation of the Eighth Amendment limit of juvenile life without parole sentences has been choppy at best (see here and here and here for a few more examples). The latest iteration of this depressingly evergreen story comes from Mother Jones here under the headline "The Supreme Court Said No More Life Without Parole for Kids. Why Is Antonio Espree One of the Few to Get Out of Prison?".  I recommend this long piece in full, and here is a taste:

As a result of [the Graham and Miller and Montgomery] decisions, the number of states banning life without parole for children in all cases, not just in mandatory sentencing schemes, has quadrupled since 2012. Of the more than 2,600 juvenile lifers in 2016, about 1,700 have been resentenced.

But although Justice Kennedy stated that all but the “rarest of juvenile offenders” should get a shot at parole, some prosecutors continue to argue that many do not deserve this benefit, or that they should serve years longer in prison before they can get out. So far, only 400 juvenile lifers nationwide have been freed.

In part, that’s because the Supreme Court gave states leeway to decide how to review lifers’ cases, leading to inconsistencies across the country. In Pennsylvania, home to the nation’s second-biggest juvenile lifer population, prosecutors are required to “prove beyond a reasonable doubt” that a defendant can never be rehabilitated if they want to deny the option of parole during resentencing; otherwise, the presumption is he should be given a second chance. So far, the state has released more than 150 juvenile lifers, many under the jurisdiction of Philadelphia’s District Attorney Larry Krasner, who campaigned last year on a platform of reducing mass incarceration.

But in Michigan, where 363 juvenile lifers were serving mandatory sentences in 2016, there is no such requirement, and prosecutors have argued that nearly two-thirds of juvenile lifers are those rarest offenders who should be kept in prison for good. “Justice in this country is largely based on where you live,” says Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth, an advocacy group.

Even Henry Montgomery, who won his Supreme Court case, isn’t free. In February, the Louisiana parole board rejected his request for release, arguing that he had not finished enough classes in prison.  His lawyers countered that he hadn’t been given much of a chance: For his first three decades at Louisiana’s notorious Angola prison, lifers like him were prohibited from taking classes. (About a third of juvenile lifers nationally say they have been denied access to prison educational programs.)  When the courses opened up, he was deemed ineligible to complete his GED.  A judge described him as a model inmate, but family members of the sheriff’s deputy he killed testified against him at the parole hearing.  So Montgomery, now 72 years old, was denied.  He’ll have to wait a year to reapply.

US Sentencing Commission provides latest "Sentence and Prison Impact Estimate" for FIRST STEP Act

Back in March of this year, as reported in this post, US Sentencing Commission posted on its website this letter from the USSC's Director of its Office of Research and Data to an analyst at the Congressional Budget Office.  This document included a detailed "Sentence and Prison Impact Estimate Summary" of the impact of S.1917, the Sentencing Reform and Corrections Act of 2017.  That analysis not only detailed the expected impact of an array of provisions in the SRCA, but also confirmed my sense that the prison-reform provisions of that bill could be in many ways more important and impactful than many of its sentencing-reform provisions. 

The FIRST STEP Act, notably, has preserved and even expanded upon some of the prison-reform provisions that were in the SRCA, but it only now has a few of its sentencing-reform provisions.  Still, its impact is likely to be considerable (with just how considerable depending upon its implementation).  And, helpfully, the US Sentencing Commission has now produced this new, updated document titled "Sentence and Prison Impact Estimate Summary, S. 756, The First Step Act of 2018 (as passed by the Senate on December 18, 2018)."  Here is that document's basic accounting of the three biggest impact items of the bill: 

Section 101: Risk and Needs Assessment System

Retroactive Impact: 106,114 eligible offenders were in BOP custody as of May 26, 2018.

Section 402: Broadening of Existing Safety Valve (to offenders with up to 4 criminal history points)

Prospective Impact: 2,045 Offenders Annually; -21.8% Sentence Reduction; Decrease of 1,072 beds in BOP 5 years after effective date.

Retroactive Impact: Not authorized in bill.

Section 404: Retroactive Application of Fair Sentencing Act (to defendants previously sentenced)

Impact: 2,660 eligible offenders were in BOP custody as of May 26, 2018.

"Tipping Point: A Majority Of States Abandon Life-Without-Parole Sentences For Children"

The title of this post is the title of this new document from the The Campaign for the Fair Sentencing of Youth. Here is its executive summary:

A majority of states now ban life without parole for children or have no one serving the sentence.  A combination of judicial decisions and state legislative reforms have reduced the number of individuals serving by 60 percent in just three years, and that number continues to decline.  Today, approximately 1,100 people are serving life without parole for crimes committed as children.

For the approximately 1,700 individuals whose life-without-parole sentences have been altered through legislative reform or judicial resentencing to date, the median sentence nationwide is 25 years before parole or release eligibility.  Nearly 400 people previously sentenced to life without parole for crimes committed as children have been released from prison to date.  Despite national momentum rejecting life-without-parole sentences for children, racial disparities continue to worsen; of new cases tried since 2012, approximately 72 percent of children sentenced to life without parole have been Black — as compared to approximately 61 percent before 2012.

"'Second Looks, Second Chances': Collaborating with Lifers on a Video about Commutation of LWOP Sentences"

The title of this post is the title of this notable new article authored by Regina Austin now available via SSRN. Here is its abstract:

In Pennsylvania, life means life without the possibility of parole (“LWOP”) or “death by incarceration.”  Although executive commutation offers long serving rehabilitated lifers hope of release, in the past 20 years, only 8 commutations have been granted by the state’s governors.  This article describes the collaboration between an organization of incarcerated persons serving LWOP and the law-school-based Penn Program on Documentaries and the Law that produced a video supporting increased commutations for Pennsylvania lifers.  The article details the methodology of collaborative videomaking employed, the strategic decisions over content that were impacted by the politics of commutation, and the contributions of visual criminology to the video’s portrayal of the lifers who participated in the project.

Federal judge decides Missouri parole practices fail to comply with requirements of Miller and Graham

As reported in this local article, headlined "Missouri violated rights of inmates convicted as juveniles who are serving life without parole, judge says," a federal judge late last week ruled in favor of inmates convicted of murder as juveniles who claimed that Missouri’s parole policies and practices violated their rights in the wake of the Supreme Court's rulings in Miller and Graham. Here are the basics:

A federal judge on Friday said that recent Missouri parole hearings violated the constitutional rights of inmates serving life without parole for offenses they committed when they were juveniles.  State officials have 60 days to develop a plan for providing the inmates “a meaningful and realistic opportunity” for parole, U.S. District Judge Nanette K. Laughrey ruled.

The lawsuit was filed by four inmates who are seeking to represent all inmates who were convicted and sentenced to life without parole for an offense that occurred when they were younger than 18.  Each of the four inmates was recently denied parole after a hearing, and Laughrey said nearly 85 percent of the class of affected inmates did not receive a parole date after a hearing. The majority were not granted another hearing for the maximum of five years, without an explanation “for the lengthy setback,” she wrote.

In a news release about the ruling Sunday, the Roderick & Solange MacArthur Justice Center of St. Louis, which represents the inmates along with lawyers from Husch Blackwell, said more than 90 inmates are affected.

The parole board’s decision is communicated to inmates on a two-page “barebones, boilerplate form,” with only two available reasons for denying parole: the seriousness of the original offense or that the inmate’s “inability to... remain at liberty without again violating the law,” Laughrey wrote.  Even state officials admitted Missouri failed to provide adequate explanation for the decisions, the judge said, and fails to tell inmates what “steps they should to take to become better suited for parole.”

Laughrey wrote that while an adult’s “interest in parole is not constitutionally protected,” a series of U.S. Supreme Court decisions “has held that those who were children at the time of the crimes for which they were convicted may be subject to certain additional protections.”...

Laughrey ruled that the state needs to come up with “revised policies, procedures, and customs” that will “ensure that all Class members are provided a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation,” including those who already had unsuccessful hearings.

The full 27-page ruling in Brown v. Percythe, No. 2:17-cv-04082-NKL (W.D. Mo. Oct. 12, 2018), is available at this link.

Third Circuit going en banc to reconsider reach and application of Eighth Amendment to lengthy juvenile term-of-years sentence

In this post back in April, I noted the remarkable Third Circuit panel opinion in US v. Grant, No. 16-3820 (3d CIr. April 9, 2018) (available here), addressing the application of Eighth Amendment limits on juvenile sentences.  The panel opinion in Grant is technically no longer law as of today thanks to this order by the Third Circuit:

A majority of the active judges having voted for rehearing en banc in the above captioned cases, it is ordered that the government’s petition for rehearing is GRANTED.  The Clerk of this Court shall list the case for rehearing en banc on February 20, 2019.  The opinion and judgment entered April 9, 2018 are hereby vacated.

In short form, defendant Corey Grant in the early 1990 was initially sentenced to LWOP for crimes committed when he was 16-years old.  After Graham and Miller, he was resentenced to a 65-year federal prison term.  The panel opinion found this term unconstitutional and suggested that "lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform."  The full Third Circuit is apparently no so keen on this approach, and it will thus address this matter anew in the coming year.

"A Way Out: Abolishing Death By Incarceration in Pennsylvania"

The title of this post is the title of this lengthy new report released this week by the Abolitionist Law Center.  Here are excerpts from its executive summary:

Over the last 25 years, the number of people serving life-without-parole, or death-by-incarceration (DBI), sentences in the United States has exploded from 12,453 people in 1992 to over 53,000 people today — 10% of whom are incarcerated in Pennsylvania.

With over 5,300 people sentenced to DBI and one of the highest per capita DBI sentencing rates in the country, Pennsylvania stakes a strong claim as the U.S. and world leader in this distinctively harsh form of punishment and permanent exclusion of its citizens. Philadelphia, with nearly 2,700 people serving DBI sentences, is the world’s leading jurisdiction in sentencing people to die in prison —more than any county or parish in the United States and far more than any individual country in the world.

In 1974, fewer than 500 people were serving DBI sentences in Pennsylvania.  As of September 2017, 5,346 people are serving death-by-incarceration sentences in Pennsylvania. Despite a 21% decline in violent crime between 2003 and 2015, Pennsylvania’s population of people sentenced to DBI has risen by 40% between 2003 and 2016.6 Pennsylvania ranks near the top of every measure of DBI sentences across the country....

Like most measures of the criminal legal system, death-by-incarceration sentences disproportionately impact communities of color.  Black Pennsylvanians are serving death-by-incarceration sentences at a rate more than 18-times higher than that of White Pennsylvanians.

Latinx Pennsylvanians are serving DBI sentences at a rate 5-times higher than White Pennsylvanians. Racial disparities in DBI sentences are even more pronounced than among the overall Pennsylvania prison population, in which 47% of those incarcerated are Black, compared to 11% of the state’s population. Of those serving DBI sentences, however, 65% are Black while 25% are White.

Among other interesting aspects of this big report is this introductory note about terminology:

Throughout this report we use the term Death By Incarceration (DBI) when referring to life-withoutparole (LWOP) sentences.  We do this for several reasons.  First, it is the preferential term selected by incarcerated people that we work with who are serving these sentences, and we are a movement-lawyering organization that is accountable to the movements we work with.  Second, it focuses on the ultimate fact of the sentence, which is that the only way it ends, barring extraordinary relief from a court or the Board of Pardons, is with death.  Third, DBI invokes the social death experienced by the incarcerated, as they are subject to degraded legal status, diminished rights, excluded from social and political life, tracked with an “inmate number” like a piece of inventory, and warehoused for decades in this subjugated status.  Finally, although DBI in this report is used to refer to LWOP sentences, the DBI label indicates that our concern is not merely with LWOP sentences, but inclusive of other term-of-years sentences that condemn a person to die in prison.

Making the case for a bill to end juve LWOP in the federal system

Marc Levin and Jody Kent Lavy have this new commentary in The Hill under the headline "Sentencing reform is critical for youth in the justice system." Here are excerpts:

As states across the country move to right-size their prison systems, managing to reduce incarceration, costs and crime, it is important to consider reform at the federal level as well.  And when it comes to reforming our sentencing laws, there seems no better place to start than with the most vulnerable among us: our children.  The United States is the only country known to impose life without the possibility of parole on people under the age of 18.

Congressman Bruce Westerman (R-Ark.) took the lead on reform by introducing HR 6011, which would end life-without-parole and de facto life sentences for children in the federal criminal justice system.  Westermanhas been joined by a bipartisan team of co-sponsors — Karen Bass (D-Calif.), Tony Cardenas (D-Calif.) and Lynn Jenkins (R-Kansas) — but other members of Congress must also show their support in this policy rooted in redemption, rehabilitation, and second chances....

Imposing excessive sentences on children ignores what adolescent development research has documented.  And in just the last five years, conservative states like North Dakota, Utah, and Westerman’s native Arkansas have led the way in banning life-without-parole for children.  The Arkansas legislation, now titled Act 539, affects more than 100 people in the state and received broad bipartisan support in the legislature.  Nineteen other states and the District of Columbia prohibit youth from being sentenced to a life in prison with absolutely no hope of re-entering as a productive member of society and no goal to work toward.

Should it pass, HR 6011 would ensure that children sentenced in the federal system have the opportunity to petition a judge to review their sentence after they have served 20 years in prison.  They would then be afforded counsel at each of their review hearings — a maximum of three — where the judge would consider, among other factors, their demonstrated maturity, rehabilitation, and fitness to re-enter society. In other words, this bill does not guarantee release for anyone, but would ensure that children prosecuted and convicted of serious crimes in the federal system are afforded an opportunity to demonstrate whether they are deserving of a second chance.  HR 6011 holds children accountable while providing a reason to pursue self-betterment.  It gives hope to those who would otherwise be staring down a hopeless life sentence without the possibility of a second chance....

We hope other members of Congress will join Congressman Westerman’s bipartisan efforts to create a more fair and just system for our children who are convicted of serious crimes in the federal system.  Mercy is justice, too, and no one is more deserving of our mercy and the opportunity for a second chance than our children.

Federal district court finds Louisiana LWOP sentence for low-level recidivist unconstitutionally excessive under Eighth Amendment (and local DA will not appeal to Fifth Circuit)

A helpful reader made sure I did not miss this local press report, headlined "Judge orders release or resentencing of St. Tammany man serving life for burglary," discussing a notable ruling from the federal district court in New Orleans.  Here are the basics:

When he went before a judge in 2010, Patrick Matthews was a 22-year-old father of two who had a criminal record but had never spent a day in prison. But to the office of former north shore District Attorney Walter Reed, he was a hardened criminal who deserved a life sentence as a habitual offender for the crime of simple burglary. Matthews received that sentence with no chance at parole in a state where “life means life.”

Eight years later, Reed is a convicted federal felon, though his case is on appeal. The Legislature has changed the law so that no one could receive a sentence like Matthews’ today, but Matthews himself, now 31, remains behind bars at a prison in St. Gabriel.

On Wednesday, however, U.S. District Judge Nannette Jolivette Brown said Matthews’ life sentence violates the U.S. Constitution’s ban on “cruel and unusual” punishment. She ordered him to be resentenced to a lesser term or released within 120 days.

Current 22nd Judicial District Attorney Warren Montgomery’s office is not appealing Brown’s decision, although prosecutors could still seek to keep him in prison for several years more. Attorney Justin Harrell said his client’s family is ecstatic. “At least there’ll be an end to it, as opposed to that indefinite life sentence,” Harrell said.

Although the federal court ruling hinged on the specific facts of Matthews’ case, it is in line with a larger shift in the past decade away from Louisiana’s strict mandatory minimum sentences. In 2013, the American Civil Liberties Union estimated that 429 people in Louisiana were serving sentences of life without possibility of parole for nonviolent offenses — more than in any other state. Criminal justice reform advocates like the ACLU singled out Matthews as an egregious example of the state’s penchant for sending people away for life for nonviolent offenses.

The Legislature changed the habitual offender law in 2017 to make it less strict. However, those changes did not affect sentences already in place. With his appeals in state court exhausted, Matthews had only the federal courts to ask for mercy.

Brown agreed to adopt the recommendation of Magistrate Judge Janis van Meerveld, who acknowledged that it was rare for the federal courts to weigh in on a state sentence. However, Meerveld said, Matthews presented an unusual case.... Meerveld said she had “no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate.”

Prosecutors under both Reed's and Montgomery’s administrations consistently opposed Matthews’ appeals, but lately their stance has changed. In a short brief filed in July, Assistant District Attorney Matthew Caplan replied to a question from the judge as to whether the sentence was grossly disproportionate. “It appears that way,” he said.

As this press account reveals, US District Judge Nannette Jolivette Brown granted relief on "Matthews' excessive sentence claim" on the basis of the recommendation of US Magistrate Judge Janis van Meerveld.  Judge van Meerveld wrote an extended opinion explaining her recommendation in Matthews v. Cain, No. 2:15-cv-00430-NJB (E.D. La. Aug. 13, 2018), and that opinion can be downloaded below (and merits a full read).  Here are some key passages therein (emphasis in original):

Of course, the mere fact that a sentence is harsh does not mean that it is disproportionate.  Nevertheless, the undersigned has no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate.  As one scholar has noted: “[T]here is no uglier disproportionality than a man, guilty of a minor crime, banished to a cage for the remainder of his life.”  Craig S. Lerner, Who’s Really Sentenced to Life Without Parole?: Searching for the “Ugly Disproportionalities” in the American Criminal Justice System, 2015 Wis. L. Rev. 789, 793 (2015) (footnote omitted)....

[A]at the time Matthews was sentenced, Louisiana law punished a wide swath of fourth offenders identically, regardless of the nature of their criminal histories.  Accordingly, a fourth offender with a history of nonviolent property crimes, such as Matthews, was treated no differently than a fourth offender with a history of violent crimes and/or serious sex offenses. However, the impropriety of equating such disparate offenders was so apparent that the state has now abandoned that practice.  In fact, as Matthews noted and the respondent did not dispute, an individual with Matthews’ criminal history would not even be eligible for a life sentence as a habitual offender under current Louisiana law.

The undersigned therefore finds that an interjurisdictional comparative analysis likewise supports a conclusion that Matthews’ sentence is unconstitutionally excessive.  It must be noted that this conclusion neither calls into question the general constitutionality of Louisiana’s habitual offender law nor impugns the state’s decision to employ a harsher recidivist sentencing structure than those employed by the vast majority of its sister states.  Rather, it is simply a recognition that even among the minority of states that vigorously punish recidivism, a sentence of life imprisonment without parole for a young, drug-addicted, nonviolent, sporadic burglar who had never been sentenced to a single day in prison for his prior offenses is such an anomaly as to be unconstitutional.

Download Matthews v. Cain excessiveness opinion

Maryland top court issues lengthy split opinions on application of Eighth Amendment limits on juve life sentences

The Maryland Court of Appeals handed down today a very lengthy opinion addressing the application of Eighth Amendment limits on lengthy juvenile sentences.  The opinion in Carter v. Maryland, Nos. 54 (Md. Aug. 29, 2018) (available here), gets started this way:

It has been said that “mercy without justice is the mother of dissolution; justice without mercy is cruelty.” A sentence of life in prison without parole may be just for certain adult offenders, but the Eighth Amendment’s proscription against cruel and unusual punishments precludes that sentence for a juvenile offender unless the defendant is an incorrigible murderer. Although there need not be a guarantee of release on parole, a sentence imposed on a juvenile offender must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”  In this opinion, we consider three cases involving crimes that were committed when each Petitioner was a juvenile.

None of the sentences imposed in these cases was explicitly “life without parole.” In two cases, the Petitioners were sentenced to life with the possibility of parole. In the third case, the Petitioner was sentenced to 100 years incarceration and will not be eligible for parole until he has served approximately 50 years in custody. Each Petitioner asserts that he is effectively serving a sentence of life without parole, because the laws governing parole in Maryland do not provide him with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”  They have each filed a motion to correct an illegal sentence.

With respect to the two Petitioners serving life sentences, we hold that their sentences are legal as the laws governing parole of inmates serving life sentences in Maryland, including the parole statute, regulations, and a recent executive order adopted by the Governor, on their face allow a juvenile offender serving a life sentence a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”  We express no opinion as to whether those laws have been, or will be, carried out legally, as that issue is not before us and may be litigated in the future.  With respect to the Petitioner who is serving a 100-year sentence, we hold that the sentence is effectively a sentence of life without parole violative of the Eighth Amendment and that the Petitioner is entitled to be re-sentenced to a legal sentence.

Spotlighting challenges surrounding an Eighth Amendment jurisprudence defining adulthood at 18

Beth Schwartzapfel has this effective new Marshall Project piece on the Supreme Court's recent juvenile sentencing jurisprudence under the headline "The Right Age to Die?: For some, science is outpacing the High Court on juveniles and the death penalty." Here are excerpts:

When 15-year-old Luis Cruz joined the Latin Kings in 1991, he was a child by almost any measure: he couldn’t legally drive, drop out of school, or buy a beer.  But was he still a child a few years later when — just months after he turned 18 — he murdered two people on the orders of gang leaders?

Earlier this year, a federal judge in Connecticut said yes.  The judge decided that a 2012 Supreme Court ruling that forbade mandatory sentences of life without parole for juveniles should apply to 18-year-olds like Cruz, and granted his request to be resentenced.  It’s one of a small but growing number of cases in which courts are grappling with what to do with young adults who commit the most serious crimes....

When it comes to the most extreme punishments, the Supreme Court has ruled so far that 18 is a “bright line.”  If you’re under 18 at the time of your crime, you can’t be executed.  You also can’t be sentenced to life without parole without a hearing to consider your maturity level.  But the high court has never extended those protections past age 18.

“The qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” Justice Anthony Kennedy wrote in Roper v. Simmons, the first of four modern cases in which the court has laid out its thinking on these issues.  “However, a line must be drawn.”  The high court has not revisited that line since Roper was decided in 2005. But state and lower federal courts have begun to consider whether people between the ages of 18 and 21 — the period psychologists now call “late adolescence” — should have the same kind of special consideration that younger teenagers get before they face sentencing for murder.

The Roper case was decided at a time when researchers had recently begun imaging adolescents’ brains.  Using functional magnetic resonance imaging, or fMRI — like the technology doctors use to look inside the brain for tumors or strokes — researchers were able to observe how young people’s brains responded to various situations.... But it wasn’t until recently that scientists began to research what happens to the brain in late adolescence and young adulthood, says Laurence Steinberg, a leading researcher into adolescent development who helped write the American Psychological Association’s briefs before the Supreme Court and who has testified in many of the more recent lower court cases. And when they did, they found that those same youthful qualities seem to persist until the early- to mid-20s.

In one recent study, Steinberg and his colleagues gave a series of tests to more than 5,000 children and young adults across 11 countries.  They found that the impulse to chase thrills and look for immediate gratification peaks around age 19 and declines into the 20s.  Steinberg describes this system of the brain like the gas pedal in a car.  The “brake” system — the ability to plan ahead and consider consequences — takes longer to catch up: it isn’t generally fully mature until the 20s.  Steinberg says if he had to draw a new bright line, he would draw it at 21.

“Knowing what we know now, one could’ve made the very same arguments about 18-, 19- and 20-year-olds that were made about 16- and 17-year-olds in Roper,” he testified in a recent Kentucky case.In that Kentucky case, a judge found the state’s death penalty statute unconstitutional because it allows people who were under 21 at the time of their crime to be executed. “If the science in 2005 mandated the ruling in Roper, the science in 2017 mandates this ruling,” he wrote.  A Pennsylvania court last year considered an appeal from a woman who was sentenced to mandatory life without parole after serving as a lookout, at 18, during a botched robbery that ended in murder.  The court rejected the appeal on technical grounds, but called 18 an “arbitrary legal age of maturity” and said an “honest reading” of the Supreme Court’s ruling would require courts to reconsider it....

Justice Kennedy, who was often the Supreme Court’s swing vote in close cases and who voted in favor of all four of the court’s major rulings extending these protections to juveniles under 18, retired this summer.  The court is widely expected to tack right when President Donald Trump’s pick assumes Kennedy’s seat.  In light of that, opponents of juvenile life without parole are aiming to keep these cases in lower courts for now, said Marsha Levick of the Juvenile Law Center, which has submitted briefs in support of many of these defendants.  They’re not likely to get a friendly hearing on the question of whether 18-, 19- and 20-year-olds are less culpable than adults from the newly composed high court, Levick said.

In the meantime, Steinberg, the psychologist, says he has been hired by the attorneys for Nikolas Cruz, who faces the death penalty as the accused gunman in February’s Parkland school shooting in Florida.  Cruz was 19 when he allegedly killed 17 people at Marjory Stoneman Douglas High School.  Steinberg “struggled about this a lot,” he said.  But in the end “it’s really hard logically to say, ‘People your age are too immature to be sentenced to death, unless you do something really, really bad.’”

The War on Kids Post #5

In my last substantive guest post on Sentencing, Law & Policy, I’d like to address some of the juvenile justice reform measures that I think are achievable and worth pursuing in the post-Miller era. In the book, I devote a whole chapter to the reform frontier, and I refer to these measures as part of a war for kids.

Put kids back in juvenile court

For most of the 20th century, it was difficult and rare to move a child into adult court; juvenile court was the default for juveniles. We only moved away from that model because of fear-based and now-debunked theories about juvenile super-predators. As I mentioned in my first guest post, transfer laws have exposed juveniles to sentences that were drafted with adults in mind, including mandatory minimums and decades-long terms. Given what we know about adolescent brain development, and given that the Supreme Court has held that children are different for constitutional purposes, we should return to the default of keeping kids in juvenile court. Even in such a regime, a judge could still determine that extraordinary circumstances warranted transfer to adult court. But those rare, outlier cases should not dictate the norm for juveniles. Today, in the wake of the Miller trilogy, there is newfound traction to the claim that transfer laws (especially direct file laws) are unconstitutional and nonsensical.

Provide age-appropriate sentencing for juveniles

While children continue to be charged in adult criminal court, advocates should insist upon age-appropriate sentencing for them. At a minimum, this means seeking the abolition of juvenile life without parole, and that goal is on the horizon and achievable. Regardless of whether the Supreme Court declares a categorical ban, states are moving in this direction. Beyond this measure, advocates should insist that youth always be a relevant, mitigating variable at sentencing. In particular, consistent with the science of the Miller trilogy, it means that mandatory minimums should never apply to juveniles. I have made this argument before here, and I do in THE WAR ON KIDS, as well. Two states, Washington and Iowa, have already come to this conclusion, as I mentioned earlier this week.

Argue against incarceration for kids as a general matter

In my mind, a key component of a war for kids is the concept that incarceration is fundamentally damaging for juveniles and that we should avoid it whenever possible. This is perhaps one of the most controversial aspects of my agenda for juvenile justice reform, and I know it is the one that draws the most attention. I regularly hear from people who point to the unspeakable cruelty and violence of adolescents in the news, and I certainly do not claim that no juvenile requires secure detention. What I do claim is that we use correctional institutions in too many instances when we need not and that we do damage to juveniles in the process. As the Annie E. Casey Foundation’s recent report on probation makes clear, there are diversion and probation alternatives that are designed to develop youth and keep them out of the cycle of the correctional system.

Create periodic, youth-informed panels for juvenile sentencing review

Neuroscience tells us that the juvenile brain is developing well into the mid-20’s. This means that, even when youth commit serious crimes, if given the right opportunities at rehabilitation, they can mature and outgrow that criminal behavior. Two things follow from this reality. First, even youth who are sentenced to lengthy term-of-year sentences should be eligible for educational and other rehabilitative programs. How else will they embark on a path to demonstrating maturity and rehabilitation, an opportunity the Supreme Court requires? Second, juvenile sentences – especially lengthy ones – should be reviewed periodically for their ongoing legitimacy. Given that the Supreme Court has elevated youth to be a mitigating quality of constitutional significance, the punishment rationale for juvenile sentences cannot be what it is for similarly situated adults. Ongoing, periodic review for youth offenders can serve as a check against the Court’s concern that states not make a judgment at the outset that juvenile “offenders never will be fit to reenter society.”

It’s worth noting that, in order to secure any of these juvenile-specific measures, we must continue to push for criminal justice reform more broadly. This is harder than ever in some ways. We must vigilantly counter the growing rhetoric that says we are a crime-ridden nation and that urges prosecutors to seek the maximum sentence in all cases. And we must insist upon equality in our criminal justice system – a goal our system has espoused but never achieved.

Thank you, Doug and the Sentencing, Law & Policy community for letting me share my work! CHD

The War on Kids Post #4

In my last post, I discussed the Miller trilogy and states’ attempts to implement those Supreme Court decisions. Today I want to focus on one especially challenging implementation issue: parole.

When the Supreme Court held Miller retroactive in Montgomery v. Louisiana, it suggested that states could comply with the Miller mandate by employing parole procedures, evidently in an attempt to head off potential state concerns of finality and efficiency. As the Court explained: “Giving Miller retroactive effect. . . does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” However, parole post-Miller has proven to be problematic in several respects.

First, typically parole applicants enjoy very few procedural rights because the Supreme Court has treated parole as a privilege – a proceeding in which the prisoner has no liberty interest. Even when the Supreme Court has construed a state’s parole statute to create some liberty interest for prisoners, it has not gone so far as to hold that prisoners are entitled to the aid of counsel. As a result, in 35 states a prisoner has no right to counsel at a parole hearing. In contrast, when a state employs parole as a method for remedying a now-unconstitutional sentence, the prisoner does have a liberty interest at stake, as some lower courts have recognized. At the same time, because juvenile lifers are entitled to a “meaningful opportunity to obtain release,” parole boards across the country are now tasked with examining factors deemed relevant in Miller, including childhood environment and efforts at rehabilitation. Thus, youth offenders seeking parole may be entitled to procedural safeguards, including the right to counsel, never before seen in the parole context.

Second, while parole largely disappeared from the criminal justice landscape in the late 20^th century, it has been making a comeback as part of the smart on crime movement – only modern parole is new and different. While discretion and instinct are still relevant, modern parole is largely dependent upon actuarial assessments of prisoners’ risks if released. These risk assessment tools rely upon statistical relationships between both static (e.g. age at date of conviction) and dynamic (e.g. level of education obtained during incarceration) factors. Almost all states employ these risk assessment tools in the parole process.

Here’s the concern post-Miller: the risk assessment tools may rely on factors that defy the Supreme Court’s holding that children are categorically less culpable and more amenable to rehabilitation. For example, in many jurisdictions, the tools consider the inmate’s age at first commitment; the younger the age at first commitment, the higher the risk factor and the less likely the inmate is to be released. Similarly, many tools consider factors such as employment history and marital status before incarceration; being single and unemployed increases one’s risk assessment score. Juvenile offenders as a group, precisely because of their youth at the time of conviction, were unlikely to have been married or to have had an employment history. In other words, the risk assessment tools treat youth as an aggravating variable, while the entire logic of the Miller trilogy hangs on youth as a mitigating variable.

Finally, there are several other thorny questions implicated in jurisdictions that employ parole as a Miller remedy. Should states be expected to release a certain percentage of youth offenders seeking parole in order to satisfy the “meaningful opportunity” standard? When a parole board denies release, must it issue a decision and rationale in writing beyond the generic statement that an applicant is not a suitable candidate? What is an appropriate wait period for a board to impose before reconsidering a case? Henry Montgomery himself was denied parole earlier this year and given a two-year setoff period; he’s already 71 and surely at some age a two-year setoff violates the meaningful opportunity standard.

By my count, 11 states today are employing some kind of new, youth-informed parole procedure in order to address prisoners with claims under Miller. Other jurisdictions are employing their previously existing parole mechanisms to do so. Litigation challenging the adequacy of these procedures is already underway, and time will tell how helpful it was for the Court to suggest that states rely upon parole as a Miller remedy.

A friendly brief on the intersection of Eighth Amendment juvenile sentencing jurisprudence and the federal sentencing guidelines

I was pleased to have as one project this summer helping to draft an amicus brief in support of a Ninth Circuit en banc petition in US v. Riley Briones. In a split decision handed down in May, a panel of the Ninth Circuit affirmed the district court adoption of the the federal sentencing guidelines as the key factor in the course imposing a life without parole federal sentence on a juvenile offender. The panel opinion is available at this link, with Judge Johnnie Rawlinson authoring the majority opinion (joined by district judge David Ezra) and Judge Diarmuid O’Scannlain authoring the dissent.

The amicus brief which can be downloaded below argues, in short form, that “It is unreasonable — and unconstitutional — for a court to routinely apply the Sentencing Guidelines when a defendant is subject to a Guideline sentencing range of life without parole for a crime committed as a juvenile.” In longer form, here is the start of the brief's "Summary of Argument":

The Supreme Court’s Eighth Amendment jurisprudence has long stressed that youth must matter in sentencing. Nearly four decades ago, in Eddings v. Oklahoma, 455 U.S. 104 (1982), the Supreme Court, explaining why an offender’s age and maturity is critical to any assessment of just punishment, stressed that “youth is more than a chronological fact” and that “minors often lack the experience, perspective, and judgment expected of adults.” Id. at 115–16.  More recently, in a line of cases beginning with Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth Amendment forbids execution of juvenile offenders), and extending now through Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (holding that the Eighth Amendment forbids sentencing a juvenile offender to life without parole unless his crime reflects irreparable corruption), the Court has developed substantive and procedural rules to operationalize the Eighth Amendment mandate that “children are constitutionally different from adults for purposes of sentencing.” Id. at 733 (quoting Miller v. Alabama, 567 U.S. 460, 471 (2012)); accord Graham v. Florida, 560 U.S. 48, 68 (2010).  This constitutional principle flows from the reality that children, compared to adults, are less mature, more susceptible to negative influences, and more capable of reform — and so any penological justifications for the harshest adult punishments “collapse in light of ‘the distinctive attributes of youth.’” Montgomery, 136 S. Ct. at 733–34 (quoting Miller, 567 U.S. at 472).  Thus, both sound sentencing policy and settled constitutional doctrine forbid a sentencing court from treating a juvenile as though he were an adult.

Yet that is precisely what the U.S. Sentencing Guidelines encourage sentencing courts to do.  Problematically, the Guidelines have no provisions that readily permit consideration of “the distinctive attributes of youth.”  The Guidelines — designed with adult offenders in mind — give no attention to any youth-related consideration in standard offense-level calculations, and they discourage consideration of age “in determining whether a departure is warranted” except in “unusual” cases. U.S.S.G. § 5H1.1.  Given that the Guidelines impart to sentencing courts a strong “anchoring” effect — as the Supreme Court has recognized, see Peugh v. United States, 569 U.S. 530, 541–42 (2013) — and that in a majority of cases judges do not deviate from the Guidelines range absent a government motion to do so, routine application of the Guidelines to juvenile offenders is fundamentally inconsistent with the Supreme Court’s Eighth Amendment jurisprudence.

The highly deferential standard of review that appellate courts apply to within-Guidelines sentences only exacerbates the tensions between standard Guideline-sentencing procedures and constitutional requirements.  Absent searching substantive review of Guidelines sentences, an appellate court risks endorsing a sentencing system that unconstitutionally discourages consideration of an offender’s youth and its attendant characteristics.  The Guidelines, if applied in their standard manner to a juvenile offender, thus result in a federal sentencing regime that is fundamentally inconsistent with the Eighth Amendment requirements articulated in Roper, Graham, Miller, and Montgomery.

Download FILED Briones Brief of Amici Curiae Criminal-Sentencing Scholars ISO Petition for Rehearing En Banc

A terrific pair of lawyers at Sterne, Kessler, Goldstein & Fox helped make this brief become a reality (and get filed), and I am also thankful to a group of academics who signed on to this brief.

Spotlighting disparities in resentencing of juve LWOP cases in Pennsylvania ... and and broader post-Miller challenges

The Philadelphia Inquirer has this effective new article headlined “Why are juvenile lifers from Philly getting radically different sentences from those in the rest of Pennsylvania?”. Here are excerpts:

While Pennsylvania’s Supreme Court has attempted to create clear guidelines for that work, now that more than 300 juvenile lifers have been resentenced across 31 counties, the disparities are striking.

“It’s still very county-dependent, fact-dependent, and there are still a lot of politics involved,” said Brooke McCarthy, who has been tracking the results for the Philadelphia-based nonprofit Juvenile Law Center.  “If you look at the outcomes in Allegheny County, they are night and day from what we’re seeing in Philly.  That’s true in various counties: In Bucks County, one judge has been handling the sentencing, and she’s been particularly harsh. Different folks are handling the same facts differently.”

In Philadelphia, the average sentence for a juvenile lifer has been 31 years to life. In Bucks County, no one has received less than 40 years....

County by county, judges have disagreed about whether sentences on multiple homicides ought to run concurrently or be stacked consecutively.

A Lancaster County judge last year imposed consecutive 40-years-to-life sentences for Michael Lee Bourgeois, for killing his adoptive parents in 2001 with three accomplices.  And, in Allegheny County, a judge imposed three consecutive 25-to-life sentences on Donald Zoller, who killed three people when he was just 14; he won’t go before the parole board unless he lives to be 89.

But in Philadelphia, it’s been a different story. Jose Hernandez, convicted of killing four family members as a teen, received 45 years to life after the district attorney tried to offer him even less time.  And another juvenile lifer, Jorge Cintron Jr., was resentenced to 30 years to life for three murders; he could be released by age 47.

Judges have also differed when it comes to tacking on additional time for associated charges, such as robbery, conspiracy, or possession of a firearm....

According to a Pennsylvania Supreme Court decision last year, a juvenile must be found to be “permanently incorrigible” before a life sentence can be imposed.

Now, state appellate courts will have to weigh in on a slew of follow-up questions being lobbed from all across the commonwealth.  What comprises a de facto life sentence: Is 50 years too long?  Is it constitutional to stack consecutive sentences such that a juvenile who is not incorrigible has no hope of release?  What is a juvenile anyway — do 18-year-olds count?   And, what factors must judges consider in the resentencings, which are supposed to take into account the reduced culpability of an immature, impulsive youth, as well as his or her capacity for change?...

In Michigan, home to 360 teen lifers, the state has sought to reimpose life without parole in more than half of its cases. In Virginia, Renwick said, “the commonwealth has fought at every step to prevent” resentencings.  And in Illinois, which is working through the resentencings of about 100 juvenile lifers, Shobha Lakshmi Mahadev, a professor at the Children and Family Justice Center at Northwestern University School of Law, said the vast majority are being resentenced to 50 or 60 years in prison, many with no opportunity for early release.

Other states, such as Louisiana, have addressed the issue legislatively, by creating across-the-board parole eligibility — though in some jurisdictions that still means few, if any, lifers are actually being released.

“What these decisions have done is opened up this conversation and this question: How do you sentence a child or an adolescent? What our systems did before was just to treat kids as adults — and that is unconstitutional and, given what we know now, inappropriate,” Mahadev said.

With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers

There are lots of important Supreme Court precedents that lots of people will be discussing in the wake of Justice Anthony Kennedy's announced retirement from the Court.  Decisions like Roe v. Wade and Obergefell v. Hodges are, obviously, of great concern to a great many.  But for criminal justice reformers, there is one particular precedent, Harmelin v. Michigan, 501 U.S. 957 (1991), that I think should become a focal point for aggressive advocacy seeking to overrule a lousy Eighth Amendment precedent.

Harmelin, as many know, was the Supreme Court's 1991 fractured decision that rejected an Eighth Amendment challenge to Michigan's imposition of a (1) mandatory (2) life without parole sentence for (3) mere possession of 672 grams of cocaine.  I have numerically labeled the three potent essentials of Harmelin, because each part has worked in modern times to functionally preclude any successful constitutional challenges to just about (1) any mandatory sentencing statutes or (2) any life without parole sentences or (3) any drug possession sentences.  (Thanks to the recent Graham and Miller rulings, some juvenile offenders have some (small) protection against some extreme sentences, but those Eighth Amendment rulings have not been of any help to older offenders.)

As discussed here a few months ago, in a terrific recent First Circuit opinion while denying rehearing en banc in United States v. Rivera-Ruperto, No. 12-2364 (1st Cir. Feb 27, 2018) (available here), Judge David Barron lamented how judges "have no choice but to approve mandatory 'forever' sentences ... so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was as serious as the large quantity drug possession at issue in Harmelin."  In so doing, Judge Barron highlighted not only questionable elements of the Harmelin ruling, but also stressed the possible impact of "two lines of Supreme Court precedent that have developed since Harmelin was decided" (referring to Alleyne and Graham/Miller).  Though not quite calling for Harmelin to be overruled, Judge Barron, writing on behalf of the entire First Circuit, makes clear that he is urging SCOTUS to reconsider the "three-decades old, three-Justice concurrence in Harmelin."

The author of the key "three-Justice concurrence in Harmelin" was, of course, Justice Anthony Kennedy, and no other member of the current Court was serving when Harmelin was decided.  So, once Justice Kennedy's replacement is seated, it will be a whole new Court available to reconsider Harmelin without any existing member eager to make the case that Harmelin was right.  Moreover, as the retired Justice Stevens noted in this interesting 2010 speech about Harmelin, Chief Justice Roberts' concurrence in Graham could be read as an indication he might be open to a return to the more defendant-friendly Eighth Amendment approach as set forth in Solem.  And, as noted in this prior post, the newest Justice, Neil Gorsuch, is seemingly more often voting in favor of federal criminal defendants in contested cases than against them.   We know Justice Thomas does not like the Harmelin precedent, but that is because he does not think the Eighth Amendment limits the length of prison sentences at all.  And Justice Alito seems unlikely to want to expand the reach of the Eighth Amendment (though I have long believed he nearly signed on to Chief Justice Roberts' Graham concurrence).  We do not know who will be replacing Justice Kennedy, so we cannot yet make informed speculations about how he or she might vote on this issue.  But if Prez Trump picks someone in the mold of Justice Gorsuch, that could mean yet another Justice with an open mind on these kinds of issues.

Notably, the Justices have already decided to take up a case concerning the Eighth Amendment for next Term, Timbs v. Indiana.  Though that case only technically concerns "whether the Eighth Amendment's excessive fines clause is incorporated against the states under the Fourteenth Amendment," perhaps Justices engaged already by the topic of possibly excessive financial sanctions might want to give some more thought to possibly excessive prison punishments.  More to my main point, I sincerely think criminal defense lawyers and advocates should be trying regularly and persistently to "litigate against" each of the three potent essentials of Harmelin by arguing against the constitutionality of (1) extreme applications of mandatory sentences and/or (2) extreme applications of life without parole sentences and/or (3) extreme applications of drug possession sentences.  Shrewd arguments for those facing extreme sentences ought to include a claim of unconstitutionality even applying Harmelin, but also be sure to preserve a claim that Harmelin is no longer good law.

I am not confident the Court will be eager to reconsider Harmelin anytime soon, but very slim chances may have gone up just a little with Justice Kennedy's retirement.  And the best and really only chance to get Harmelin before the Court is to keep asking and asking and seeking and seeking and knocking and knocking.

"Originalism and the Common Law Infancy Defense"

The title of this post is the title of this new article by Craig Lerner now available via SSRN.  Though I consider any article about the Eighth Amendment to be timely, this one seems even more so with the recent retirement announcement of Justice Anthony Kennedy, who was often a "swing" SCOTUS voter in Eighth Amendment cases.  Here is this article's abstract:

Justice Thomas and the late Justice Scalia consistently argued that the original meaning of the Eighth Amendment was to foreclose only those modes or acts of punishment that were considered cruel and unusual at the time the Bill of Rights was adopted.  With respect to juvenile criminal responsibility, this would mean that the Constitution contemplated an infancy defense no broader than what existed in 1791.  Yet the common law infancy defense, as sketched by originalist judges, seems barbaric.  It treated all fourteen-year-olds as adults, and it permitted the imposition of punishment — even capital punishment — on offenders as young as seven.

This Article argues that the common law infancy defense was more nuanced than modern observers often recognize.  With respect to misdemeanors, the defense was more broadly applicable than is typical today.  Even with respect to felonies, offenders under the age of fourteen could be found liable only after an individualized inquiry as to their capacity to distinguish right from wrong.  The eighteenth-century culture and common law had higher expectations of juvenile abilities than prevail today; and not surprisingly, young people proved more mature than modern adolescents, who are told repeatedly that they are frail and vulnerable.

This Article speculates on how the original meaning of the Eighth Amendment, assuming it incorporates the common law approach to juvenile responsibility, might be applied to modern conditions, given the diminished maturity of young people.  However, the Article questions whether young people today are as immature as advertised; indeed, the study of the common law infancy defense could prompt a reconsideration of contemporary attitudes about the capacities of young people.

Fuzzy math and fuzzy logic in criticisms of federal FIRST STEP Act based in state recidivism data

Over at PoweLine, Paul Mirengoff has this extended post trying to make a case against the FIRST STEP Act under the headline "Cold Facts On Recidivism Undermine Case For Leniency Legislation."  I find some of Mr. Mirengoff's posts to be astute even though he relies often on "tough-and-tougher" rhetoric to oppose any possible form of sentencing reform. But this latest effort is full of especially fuzzy work.  Let me explain with some quotes (indented and italicized) followed by my commentary.

Last week, the Department of Justice released an updated study from the Bureau of Justice Statistics (BJS) showing that 83 percent of prisoners released by states are re-arrested within nine years of their release.  44 percent of released state prisoners were arrested during the first year after release, 68 percent were arrested within three years, and 79 percent within six years....  The results of the study should deter the Senate from embracing the FIRST STEP legislation passed by the House just before the BJS figures were published. Indeed, the BJS numbers undermine FIRST STEP in multiple ways. 

First, it is estimated that FIRST STEP would mandate the immediate release of at least 4,000 federal felons before they serve their full sentence. Given the recidivism numbers from the BJS study, we know that a high percentage of the 4,000 will commit crimes during the period during which, absent FIRST STEP, they would be behind bars.

Mr. Mirengoff accurately reports that the BJS study (which I noted in this prior post) concerns state prisoners, though he fails to note these are folks who were released from state prisons in 2005.  From the very outset it is very faulty to assert that recidivism data on state prisoners released in 2005 readily enables us to "know" what federal prisoners released in 2018 will do.

The US Sentencing Commission's most recent report on federal prisoner recidivism, notably, shows a much lower (though still significant) rearrest rate than state prisoners.   Here is how the USSC explains how distinct the federal population is from the state population when running prisoner recidivism numbers:  "Compared to a cohort of state prisoners released into the community in 2005 and tracked by the Bureau of Justice Statistics, federal offenders had a  lower recidivism rate.  BJS found that 76.6 percent of offenders released from state prison were rearrested within five years. The Commission, using a comparable five year follow-up period and including only federal offenders released from prison ... found the recidivism rate for these federal offenders was 44.9 percent." 

Moreover, the estimated 4000 prisoners to be getting earlier release thanks the FIRST STEP Act will be getting out mostly a few weeks or a few months earlier because of getting a little extra credit for good behavior in prison.  The proper statistics suggest, based on the nature of federal prisoners and how limited the FIRST STEP Act really is, that only a quite low percentage "of the 4,000 will commit crimes during the period during which, absent FIRST STEP, they would be behind bars."

Mr. Mirengoff goes on:

Second, the BJS study tells us that the crimes that federal drug felons will commit aren’t confined to drug crimes. According to the study, more than three-quarters (77 percent) of released drug offenders were arrested for a non-drug crime within nine years, and more than a third (34 percent) were arrested for a violent crime.  So much for the argument we hear over and over again from Team Leniency that those incarcerated for drug crimes are “non-violent offenders.”...

Again we have the problem of conflating data on state prisoners with federal prisoners.  But here we have an even bigger logical flaw because the BJS recidivism data does not show that persons who committed state drug crimes really were violent offenders before they went to state prison, rather it shows that they became violent offenders (or, more accurately, were arrested for a violent offense like assault) after spending time in prison.  This actually goes to the heart of the argument for any form of (state or federal) prison reform: we need to do a better job of making prison a place where people become better people not worse criminals.

Mr. Mirengoff continues:

Third, the numbers undermine the rational for FIRST STEP used by certain conservative Senators such as John Cornyn. They argue that some states have made great strides when it comes to rehabilitating prisoners. Thus, the argument goes, statistics about recidivism rates among federal prisoners do not provide a sound basis for opposing sentencing reform, provided the reform also includes corrections reform.  The idea is to bring model state prisoner rehabilitation programs into the federal system. This, it is said, will cause recidivism rates to plummet, making America safe for the early release of federal drug felons and for a reduction of mandatory minimums. The BJS numbers tell us that the states, collectively, are doing no better than the feds when it comes to rehabilitating prisoners. 

But what about “model” states like John Cornyn’s home state of Texas, so often touted by sentencing and corrections reform advocates? It turns out that Texas isn’t doing any better than the feds either.  The numbers that reform advocates use to calculate recidivism in Texas count only re-incarcerations, not re-arrests. By contrast, the federal system measures recidivism by re-arrests (to be sure not everyone arrested has committed a crime but then, not everyone who has committed a crime is arrested). If one compares apples to apples — federal re-arrests to Texas re-arrests — the recidivism rate in Texas is actually higher than the federal rate, according to the National Association of Assistant U.S. Attorneys.  FIRST STEP is thus founded on a fiction — the view that enlightened states have discovered the key to the age-old problem of how to rehabilitate criminals. 

Again, a lack of context concerning time and place and prisoners makes this reasoning faulty.  The BJS data reveal that Texas and other states did a lousy job rehabilitating those prisoners who were released back in 2005 before the modern wave of reforms in Texas or anywhere else.  This Right on Crime posting highlights the reform put in place in Texas starting in 2007, and Texas was really the first state to get started on these types of "modern" reforms.   Data on state prisoners released in 2005 will never prove that state reforms started in 2007 are ineffectual.

Now that all said, neither Texas nor any other jurisdiction has all of a sudden "discovered the key to the age-old problem of how to rehabilitate criminals."  This is an age-old problem because it never has had and never will have an easy or obvious solution.  People and crime are way too complicated for magic bullet solutions.  But what Texas and other states have done, and what the FIRST STEP Act aspires to do, is move forward with reforms that have provide to help at least a little bit with the the age-old problem of how to rehabilitate criminals.  No programming ever can or ever will  miraculously drop recidivism rates to near zero, but Mr. Mirengoff wants that to be the prerequisite to any reforms:

Let’s see recidivism rates plummet on a sustained basis, using apples to apples comparisons, before the first federal prisoner is released early and the first mandatory minimum is reduced.

It would be more direct and more honest if Mr. Mirengoff simply said "Let’s never allow a federal prisoner to be released early or any mandatory minimum to be reduced."

Noting the distinctive juve sentencing realities to face the Texas school mass murderer

Yet another horrific school shooting, this time by a juvenile offender, provides yet another need to work through modern sentencing realities facing a mass murderers.  This local article reviews the sentencing basics under the headline "The accused Santa Fe shooter will never get the death penalty. Here’s why." Here are excerpts:

The high school junior accused of gunning down 10 students and teachers at a Santa Fe school is facing a capital murder charge - but he’ll never face the death penalty, even in Texas. Some day, he’ll even be eligible for parole.

Though Dimitrios Pagourtzis was charged as an adult and jailed without bond, even if he’s found guilty he can’t be sentenced to death because of a 2005 U.S. Supreme Court ruling. And in the Lone Star State, he can’t be sentenced to life without parole as the result of a 2013 law that banned the practice for minors....

The Santa Fe High School student admitted to the mass shooting that killed 10 and wounded 10 others early Friday, according to court documents. He planted fake explosives and selected his targets so as to spare the students he liked, he later told police.

For an adult, that sort of crime could lead to the death chamber.  Murders involving multiple victims can be charged as capital offenses, and for adults that leaves two options: death or life without parole.

At one time, those options were both on the table for teens, too. But then in 2005, Christopher Simmons, a Missouri killer condemned to die, won a landmark case in the Supreme Court. After surveying practices in death penalty states, the justices decided that the national consensus was against executing minors.  Only a few states — including Texas —  were the outliers still carrying out death sentences for those convicted of crimes committed as minors....

Before the court’s decision, Texas had been the biggest executioner of juvenile offenders, Dunham said.  Across the nation, there were 22 convicts executed for crimes committed as juveniles - and more than half of them were in Texas. After the court eliminated the practice, in June 2005 Gov. Rick Perry commuted a slew of death sentences to life, removing 28 prisoners from death row, including 12 from Harris County.

Then in 2012, the Supreme Court took it one step further when the justices struck down mandatory life without parole sentences for juveniles.  The following year, Texas legislators passed a law making life with parole — instead of life without parole — the only sentencing option for minors charged with capital crimes. For life sentences where parole is an option, Marzullo said, the first chance at release comes after 40 years in prison.

Whether or not he’s ultimately convicted, the accused Santa Fe shooter will be behind bars for the foreseeable future.  During his first court appearance Friday night, a judge opted to hold him without bond. "At the moment he's in solitary confinement," Judge Mark Henry said after the teen's first court appearance Friday evening. "He's going to be here a while."

Because Pagourtzis slaughtered 10 people and injured many more, his case has me wondering about the application of consecutive sentences under Texas laws to potentially extend the period in which a juvenile offender would not be eligible for parole under life sentences. As regular readers know, there is a robust debate in lower courts about whether and how the Supreme Court's announced Eighth Amendment jurisprudence limiting life without parole for juvenile offenders ought to be applied in cases in which a juvenile has committed multiple very serious crimes. That debate may well end up impacting how this latest school shooter gets sentenced.

"Legal Innocence and Federal Habeas"

The title of this post is the title of this notable new paper available via SSRN authored by Leah Litman that is a must read for anyone following post-Miller or post-Johnson litigation (and who isn't?). Here is the abstract:

Although it has long been thought that innocence should matter in federal habeas corpus proceedings, innocence scholarship has focused almost exclusively on claims of factual innocence — the kind of innocence that occurs when new evidence reveals that the defendant did not commit the offense for which he was convicted.  The literature has largely overlooked cases where a defendant was convicted or sentenced under a statute that is unconstitutional, or a statute that does not apply to the defendant.  The Supreme Court, however, has recently begun to recognize these cases as kinds of innocence and it has grounded its concern for them in innocence-related considerations. 

This Article highlights how the doctrine has started to treat these “legal innocence” cases as cases in which defendants are innocent, as well as the reasons why it has done so.  As this Article explains, legal innocence is conceptually and inextricably linked with factual innocence; in both kinds of cases, the defendant was convicted or sentenced under a law she did not violate.  These cases raise similar concerns and implicate many of the same features of our criminal law system.  By recognizing the emerging category of legal innocence as a kind of innocence, this Article maps out how the existing federal habeas system can provide relief to legally innocent defendants.

Detailed review of Illinois juve offenders serving just barely "less than life"

The Chicago Sun-Times has published this extensive look by Injustice Watch at how the Illinois has sentenced (and largely failed to resentence) a set of juvenile offenders serving extreme long prison sentences . The full lengthy title of this piece sets forth its essential elements: "Less than life: Across the country, juvenile offenders are being released from prison based on recognition that human brains continue to develop for the first two and a half decades of life.  Nevertheless in Illinois, many who commit crimes as teenagers are likely destined to die in custody."  Here is an excerpt:

In Illinois, it is rare for juveniles who did not receive automatic life prison terms to win new chances at sentencing, leaving most of those with long sentences to languish in prison for decades, an Injustice Watch review found.

A review of custody data from the Illinois Department of Corrections revealed that, as of last December, at least 167 current inmates were arrested for crimes as juveniles and are set to serve 50 years or more in prison without parole eligibility, leaving them likely to die in custody but not eligible for resentencing under the dictates of Miller. (It is not possible to know the exact number of young offenders serving long sentences at the Illinois Department of Corrections because the agency does not specifically keep track of that information.)

The imposition of long sentences is especially harsh in Illinois, a state which does not afford parole to most prisoners and which requires offenders convicted of murder to serve 100 percent of their punishment, with no chance of early release based on factors like good conduct or rehabilitation. Such sentences almost certainly lead these inmates to either spend the rest of their lives incarcerated or be released with precious little life left.

Research indicates that incarceration has a jarring effect on life expectancy. In studying a group of inmates released from New York state correctional facilities over a 10-year period, Vanderbilt University Professor Evelyn Patterson found that the former prisoners could expect to shave two years off of their average life expectancy for every one year of incarceration. Furthermore, Patterson found, undoing the negative effect on longevity takes time. It took former inmates two-thirds of the time spent in custody back on the outside to recover from the harm of incarceration on life expectancy. The United States Sentencing Commission considers a 39-year prison sentence the equivalent of life.

Because Illinois almost entirely abolished parole in 1978, these juvenile offenders do not get the same chance to show rehabilitation and change that they might get in other states. About a third of states do not currently employ the traditional practice of parole for newly convicted inmates, according to a report published by the University of Minnesota’s Robina Institute of Criminal Law and Criminal Justice, but Illinois is one of three states nationwide that stopped utilizing parole four decades ago, making it nearly non-existent for the current prison population.

The approximately 80 juvenile offenders in Illinois who became eligible to have their sentences reconsidered [after Miller] all were convicted of killing more than one person — Illinois law mandates life for anyone convicted of multiple murders. By contrast, Illinois state appellate judges have mostly declined to find that the cases of other violent youthful offenders ... fall under the protections outlined in Miller.

There is no national legal standard on how many years is too many for a juvenile to serve. Courts across the country have differed on the issue, creating varied standards on what length of a prison term can legally be considered a life sentence. “Getting rid of formal life without parole was the tip of the iceberg,” said Marsha Levick, deputy director and chief counsel for the Pennsylvania-based Juvenile Law Center, which has advocated for lesser sentences for juveniles convicted of crimes.

Across the country, about a dozen states have passed laws requiring that young defendants sentenced to long prison terms get a chance at parole. Legislators in Illinois have proposed a bill that would give periodic parole opportunities to newly convicted young offenders; so far those efforts have stalled.

New Jersey Supreme Court finds unconstitutional requiring juveniles to be subject to lifetime sex-offender registration

The Supreme Court of New Jersey yesterday handed down a lengthy unanimous opinion in Interest of C.K., No. A-15-16 (N.J. April 24, 2018) (available here) declaring that the state's sex-offender registry law is unconstitutional as applied to some juvenile offenders. Here is how the opinion begins:

Juveniles adjudicated delinquent of certain sex offenses are barred for life from seeking relief from the registration and community notification provisions of Megan’s Law. N.J.S.A. 2C:7-1 to -11, -19; N.J.S.A. 2C:7-2(g).  That categorical lifetime bar cannot be lifted, even when the juvenile becomes an adult and poses no public safety risk, is fully rehabilitated, and is a fully productive member of society.  Defendant C.K. was adjudicated delinquent for sex offenses committed more than two decades ago and now challenges the constitutionality of N.J.S.A. 2C:7-2(g)’s permanent lifetime registration and notification requirements as applied to juveniles.

Subsection (f) of N.J.S.A. 2C:7-2 subjects all sex offenders, including juveniles, to presumptive lifetime registration and notification requirements.  Unlike subsection (g), however, subsection (f) allows a registrant to seek relief from those requirements fifteen years after his juvenile adjudication, provided he has been offense-free and is “not likely to pose a threat to the safety of others.”  Subsection (g) imposes an irrebuttable presumption that juveniles, such as defendant, are irredeemable, even when they no longer pose a public safety risk and are fully rehabilitated.

The record in this case reveals what is commonly known about juveniles -- that their emotional, mental, and judgmental capacities are still developing and that their immaturity makes them more susceptible to act impulsively and rashly without consideration of the long-term consequences of their conduct.  See State v. Zuber, 227 N.J. 422 (2017).  The record also supports the conclusion that juveniles adjudicated delinquent of committing sex offenses, such as C.K., who have been offense-free for many years and assessed not likely to reoffend, pose little risk to the public. Indeed, categorical lifetime notification and registration requirements may impede a juvenile’s rehabilitative efforts and stunt his ability to become a healthy and integrated adult member of society.

We conclude that subsection (g)’s lifetime registration and notification requirements as applied to juveniles violate the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution. Permanently barring juveniles who have committed certain sex offenses from petitioning for relief from the Megan’s Law requirements bears no rational relationship to a legitimate governmental objective.  In the absence of subsection (g), N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period.

Defendant may apply for termination from the Megan’s Law requirements fifteen years from the date of his juvenile adjudication, and be relieved of those requirements provided he meets the standards set forth in N.J.S.A. 2C:7-2(f).

Interesting intricate ruling from Wyoming Supreme Court about limits on extreme aggregate sentences for juve murderers

For whatever reason, the last few months have brought a number of big notable opinions from an array of courts concerning the reach and application of the Supreme Court's Eighth Amendment jurisprudence limiting severe sentences for juvenile offenders. See examples here and here and here and here from the Third Circuit, the District of Connecticut, and the Iowa Supreme Court and the Georgia Supreme Court. 

The latest (and perhaps longest) such opinion was handed down on Friday by the Wyoming Supreme Court in Davis v. Wyoming, 2018 WY 40 (April 13, 2018) (available here).  The majority opinion in Davis covers an array of substantive and procedural issues, and it start and ending provide a flavor of its work:

In 1982, when Donald Clyde Davis was seventeen years old, he and a friend picked up a hitchhiker, robbed, and then murdered him.  Mr. Davis pled guilty to first degree murder, felony murder, and aggravated robbery. He was sentenced to life imprisonment with a consecutive twenty-to-fifty-year sentence for aggravated robbery.  Following the decisions of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Montgomery v. Louisiana, U.S. , 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo. 2013) (Bear Cloud II), and the Wyoming Legislature’s amendment to Wyo. Stat. Ann. § 6-10-301(c), after serving over thirty-three years, Mr. Davis was granted parole from his life sentence, began serving his consecutive twenty-to-fifty-year sentence, and received a new individualized sentencing hearing.  After the hearing, the district court declined to modify his original sentence.  Mr. Davis appeals and raises a number of issues regarding his sentence. We will reverse and remand with instructions to conduct a new individualized sentencing hearing....

We find that the district court abused its discretion by weighing Mr. Davis’ youth as an aggravating instead of mitigating factor; considering the nature of the crime to only a limited extent and failing to consider the participation and potential peer pressure of Mr. Davis’ codefendant; placing undue significance on dated psychological evaluations; concluding that he was not capable of rehabilitation without the benefit of expert testimony concerning Mr. Davis’s potential for rehabilitation, and by considering Mr. Davis’ disciplinary record in prison without taking into account the fact that for the majority of his incarceration he had no hope of release, and without weighing his accomplishments and personal growth while in the penitentiary.  The district court’s failure to consider Mr. Davis’ family and home environment and whether he might have been convicted of a lesser offense but for incompetencies associated with youth, without providing an explanation for omitting analysis of those factors, also constituted an abuse of discretion. Finally, the district court abused its discretion by failing to make a finding of permanent incorrigibility based upon its analysis of all the Miller factors.  When the Miller factors are not properly considered and weighed and when there is no finding of permanent incorrigibility, or when a finding of permanent incorrigibility is not supported by the Miller factors, the resulting sentence violates the Eighth Amendment.

Accordingly, we reverse.  At the time of the hearing and the district court’s decision, the parties and the district court did not have the advantage of our rulings concerning the procedure, burdens, and potentially relevant evidence for a Miller determination, contained here.  Consequently, remand for an additional sentencing hearing and resentencing is appropriate.  On remand, the sentencing court should approach the case with the understanding that, more likely than not, life without parole is a disproportionate sentence for Mr. Davis, and it should consider the Miller factors and decide whether he is the truly rare individual mentioned in Miller who is incapable of reform.

The dissent opinion in Davis likewise covers lots of group, but its start spotlights an issue that I suspect will be setting US Supreme Court attention relatively soon:

As I observed in Sam v. State, 2017 WY 98, ¶ 88, 401 P.3d 834, 862 (Wyo. 2017), reh’g denied, and Sen v. State, 2017 WY 30, ¶¶ 36-37, 390 P.3d, 769, 779 (Wyo. 2017) (Sen III), the United States Supreme Court has not prohibited consecutive sentences for juveniles who commit multiple crimes including murder.  The U.S. Supreme Court never found such sentences to be “the functional equivalent of life without parole.”  I continue to disagree with the concept of “de facto life without parole” arising from consecutive sentences for separate crimes.  In my opinion, the U.S. Supreme Court established a process to assure that a juvenile offender’s age, immaturity and potential for improvement are considered in sentencing.  Unfortunately, some courts, including this one, have focused on the result of the sentencing, rather than on the process.

I recognize some states have concluded that Miller, Graham and Montgomery point to a conclusion that lengthy consecutive sentences for juveniles, when aggregated, are the same as a single sentence of life without parole.  Other states have not done so.  I find the better logic supports those states who have not expanded the holdings in Miller, Graham and Montgomery.  Within the past year, Missouri, Colorado and Pennsylvania have all determined that Miller and Montgomery do not apply to the aggregation of consecutive term of years sentences for multiple crimes committed by a defendant under the age of 18.