Monday, July 19, 2021

"The Evolving Standards, As Applied"

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

In Jones v. Mississippi, the Supreme Court adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences.  Specifically, the Court rejected the Jones’ claim that the Eighth Amendment categorical limit required a sentencing jury or judge make a finding of permanent incorrigibility — that the defendant is beyond hope of rehabilitation — as a prerequisite to imposing a JLWOP sentence.

In dicta, the Court suggested that Jones could have made an individual as-applied challenge to his sentence under the Eighth Amendment by claiming that his JLWOP sentence was disproportionate to the crime he committed.  While the Court has used a narrow disproportionality standard in non-capital, non-JLWOP cases, it is not clear what standard would apply to individual as-applied Eighth Amendment challenges in capital and JLWOP cases.  The Court customarily reviews such cases categorically under a heightened evolving standards of decency standard, which suggests that an individual as-applied challenge would also merit some heightened level of review.

Accordingly, this Article argues for the adoption of heightened standards of Eighth Amendment review for individual as-applied proportionality challenges in capital and JLWOP cases.  Specifically, the Article advocates for the adoption of an intermediate level of review for JLWOP cases and a strict scrutiny level of review for capital cases.  Further, the Article argues for a broadening of the kinds of sentences that receive heightened scrutiny under the Eighth Amendment, both for categorical challenges and for individual as-applied proportionality challenges.

Part One of the Article describes the Court’s evolving standards of decency doctrine and Eighth Amendment’s categorical limitations on capital and JLWOP sentences.  In Part Two, the Article explains the other side of the application of the Eighth Amendment, the narrow disproportionality test the Court uses to evaluate as-applied challenges in individual non-capital, non-JLWOP cases.  Part Three then argues for the adoption of heightened as-applied standards of review in individual capital and JLWOP cases as an application of the evolving standards of decency doctrine.  Finally, Part IV sketches some possible extensions of the Eighth Amendment’s evolving standards to other punishments and other classes of defendants.

July 19, 2021 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, June 29, 2021

Interesting split Fourth Circuit panel debate while upholding resentencing to 52 years for violent offenses by 15-year-old

A helpful reader made sure I did not miss the interesting discussion of sentencing practices and outcomes by a Fourth Circuit panel yesterday in US v. Friend, No. 20-4129 (4th Cir. June 28, 2021) (available here). The first paragraph of the majority opinion sets the terms:

Appellant Philip Friend, who actively participated as a fifteen-year-old juvenile in a series of violent carjackings, challenges the fifty-two-year sentence imposed by the district court after a remand in this case.  Our remand instructed the district court to give a more thorough explanation for its sentence, with the prospect that a more tempered sentence might also result.  United States v. Friend, 755 F. App’x 234 (4th Cir. 2018).  These things have now both come to pass. The offenses in question occurred long ago, but their consequences have been long lasting. Because the district court acted within its discretion in imposing the present sentence, we affirm.

And here is a key passage from the majority's extended discussion and the concluding sentiments of the majority (cites removed):

But to sum it up, it is clearly permissible for a sentencing court to weigh the gravity of the offense or the impact a defendant’s crimes have had on a community and to vindicate that community’s interest in justice.  That after all, is the reason a defendant is before the court.  An exclusive focus on one factor impermissibly vitiates the requisite individualized consideration.  On the other hand, for appellate courts to micromanage sentencings and demand a district court assign equal weight to each § 3553(a) factor would also disregard a sentencing’s individualized inquiry and toss our deferential abuse-of-discretion review to the winds.  Ultimately, defendant’s disagreement with the district court’s weighing of the sentencing factors is not enough to find the sentence procedurally unreasonable....

To find this sentence unreasonable would displace the discretion that district judges possess in setting sentences. We are a court of appellate review, not a panel of appellate sentencers. District courts are granted exceptional discretion in sentencing for a reason.  They view the full criminal tableau first-hand, and they weigh the conflicting evidence and competing arguments. Their choices are not easy. When a court abuses its discretion, it is this court’s duty to correct the error. But when a district court is responsive to our mandates and reasonably exercises its sentencing power, we must respect its judgment.  So we do here.

Writing in dissent, Judge Floyd explains at length why he sees matters differently. His opinion starts this way:

At the age of fifteen, Philip Bernard Friend and various members of his family committed a series of extremely serious crimes.  Nobody disputes the severity of those offenses or the irreparable harm that Philip visited upon the lives of his victims and their families.  But this appeal tests the legality of the district court’s imposition of a fifty-two year sentence on a juvenile offender.  Today, the majority declares Philip’s half-century sentence procedurally and substantively reasonable.  Because I cannot agree with the majority’s conclusion on either score, I respectfully dissent.

June 29, 2021 in Assessing Miller and its aftermath, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (1)

Saturday, June 05, 2021

"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.

June 5, 2021 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Monday, May 03, 2021

Another round of early (mostly critical) commentary on Jones

I shared in this post some of my first thoughts about the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here), and then I rounded up a few days later in this post some notable initial critical commentary.  Just over a week later, I have seen a number of additional notable takes on the ruling, and here is another abridged round up: 

From Andrew Cohen, "Supreme Court: Let’s Make It Easier for Judges to Send Teenagers to Die in Prison"

From Brandon Garrett, "Justices' Life Sentence Ruling Is A Step Back For Youth Rights"

From Jack Karp, "Jones Marks Shift In High Court's Juvenile Justice Rulings"

From Marc Levin, "Supreme Court Puts Onus on Lawmakers to Provide Second Chances for Kids"

From Christine Sarteschi and Daniel Pollack, "Life Without Parole for Minors: The Supreme Court and the Statistics"

From Kent Scheidegger, "Dumping a Dishonest Precedent Less Than Honestly — Part I"

From Beth Schwartzapfel, "Supreme Court Conservatives Just Made It Easier to Sentence Kids to Life in Prison"

Some prior recent related posts:

UPDATE: I just noticed this notable observation from Kent Scheidegger over at Crime & Consequences concerning action by the Justices in related cases via the May 3 order list:

The U.S. Supreme Court released its regular Monday orders list today.  Not surprisingly, there were several wake-of-Jones orders in cases that had been on hold for that decision.  Oklahoma v. Johnson, No. 19-250, and United States v. Briones, No. 19-720, were sent back for reconsideration.  These were cases where the lower court decided in an under-18 murderer’s favor based on a broad interpretation of Montgomery v. Louisiana.  Cases where the lower court ruled against the defendant based on a narrow interpretation of Montgomery were simply denied, including Newton v. Indiana, No. 17-1511, and Garcia v. North Dakota, No. 19-399.

May 3, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, April 27, 2021

Evan Miller, of Miller v. Alabama, sentenced again to LWOP for murder committed when he was only 14

As reported in this AP piece, headlined "Juvenile lifer who set precedent sentenced to life again," a high-profile juvenile murderer was sentenced yet again to life in prison without parole despite having helped win a Supreme Court ruling reversing his original LWOP sentence. Here are the details:

Evan Miller was just 14 when he committed the slaying that sent him to prison. In reviewing his case, the U.S. Supreme Court banned mandatory life without parole sentences for juveniles — saying judges and juries should consider the special factors of youth — a decision that eventually led to inmates across the country getting a chance at release.

But Miller will not get that chance. A judge on Tuesday handed down a second life sentence without possibility of parole.

Lawrence Circuit Judge Mark Craig ruled that Evan Miller, despite being a young teen when he committed his crime, met the legal criteria to be sentenced to life in prison without the chance of parole. Craig said the severity of Miller’s crime outweighed the mitigating factors of Miller’s age and his abuse-filled childhood that the defense argued made him deserving of an opportunity of a chance to get out of prison some day. Craig said a sentence of life without the possibility of parole was the “only just sentence” over the lesser punishment of life with a chance of parole after 30 years.

Miller was 14 in 2003 when he and another teen beat Cole Cannon with a baseball bat before setting fire to his trailer, a crime for which he was originally sentenced to a mandatory life sentence. Before handing down the sentence, Craig repeated the line that Miller was attributed with saying before he delivered a final blow to Cannon: “I am God. I’ve come to take your life.” Craig said those were some of “the most chilling words I have heard.”

Craig said he was not convinced Miller could be rehabilitated and noted that Miller was the primary aggressor in the slaying. “Had you not made the decisions that night, Mr. Cannon, in my view, would still be alive,” Craig said. “You showed cunning, not clumsy, rash thinking.”

Miller, now 32, appeared during the hearing, which was conducted virtually, by video link from an office at the Alabama prison where he is incarcerated. He did not visibly react as the sentence was read.

The Supreme Court in 2012 ruled in Miller’s case that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In the 2012 opinion in Miller’s case, justices ordered that judges and juries should consider “children’s diminished culpability, and heightened capacity for change” should make such sentences “uncommon.”...

While other juvenile lifers across the country have seen their sentences reduced because of Miller’s case and a later ruling that made the decision retroactive, his own case had lingered without a decision until Tuesday. At an earlier resentencing hearing, Miller’s lawyers cited his childhood of physical abuse and neglect and argued that at 14, his brain was not fully developed....

Alabama Attorney General Steve Marshall said the judge, “restored the punishment that is fitting for Evan Miller’s wicked actions.” “When Evan Miller robbed and savagely beat his neighbor, setting fire to the man’s trailer and leaving his incapacitated victim to die a horrible death, he earned a well-deserved sentence of life in prison without parole,” Marshall said in a statement.

April 27, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (9)

Saturday, April 24, 2021

Rounding up some early (mostly critical) commentary on Jones

I shared in this post yesterday some of my early thoughts about the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here).  Though disappointed by the outcome, my long-standing concerns with the Supreme Court's jurisprudence in this arena (as discussed in pieces here and here) perhaps led me to be not too startled by the Court's work.  But, as evidenced by some of the commentary I have seen about Jones in the last few days, it seems many are quite aggrieved.  Here is an abdridged round up: 

From Josh Blackman, "Conservative Justices Do Not Need To Apologize For Making Socially-Conservative Rulings; I'm looking at you Justice Kavanaugh."

From Rory Fleming, "The Supreme Court’s Abhorrent Decision to Back Life-Without-Parole for Kids"

From Chris Geidner, "Kavanaugh just erased years of precedent to keep kids in jail forever; The Court's conservative wing will now let kids spent their lives behind bars."

From Ruth Marcus, "At the Supreme Court, a tale of two Bretts"

From John Pfaff, "It is ludicrous for the Supreme Court to say children are irredeemable"

From Mark Joseph Stern, "Brett Kavanaugh’s Opinion Restoring Juvenile Life Without Parole Is Dishonest and Barbaric"

From Elliot Williams, "Supreme Court's staggering deviation from precedent"

April 24, 2021 in Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, April 23, 2021

A few first thoughts on Jones and juve LWOP

Because I am on the road, I have only had a chance to read once and quickly the Supreme Court's new Eighth Amendment juvenile LWOP decision in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021) (available here).  Though I will need more reads and more time to come to a fully-formed view on this ruling, I do have a few first thoughts on the work of the Court and various Justices.  Here are some of these first thoughts:

1. I have always seen Montgomery as a somewhat clumsy rewrite and extension of Miller (as I discussed in this short piece), and I am not surprised that a more conservative Court has now stressed the importance of state authority to implement Miller without further constitutional elaboration of what the Jones majority calls "particular policy approaches" to juvenile sentencing.  Because I have long viewed all LWOP sentences, for offenders of any age, as poor policy and constitutionally suspect on various grounds, I am disappointed  the Court now has only three votes to embrace and further extend Mongtomery's extension of MIller.  But since a majority of current Justices now think the Constitution readily permits the sentencing of juveniles to die in prison, it readily follows that a majrity of Justices are disinclined to read substantive constitutional limitations into how this such sentencing takes place in the states. 

2. Speaking of the Justices, this ruling (and I fear others to come) may prevent me from wishfully thinking the current Supreme Court is still inclined to be pro-defendant on big sentencing issues.  For a good number of years before recent changes in personnel, criminal defendants got a whole lot of very big wins from SCOTUS on sentencing issues (despite still often losing in circuit courts and elsewhere).  But this Jones ruling is a clear indication that replacing Justices Scalia, Kennedy and Ginsburg with Justices Gorsuch, Kavanaugh and Barrett likely means the era of big defense wins in a number of big sentencing cases may be over.  Particularly notable when thinking about the overall Court is how the new Justices may have swayed Chief Justice Roberts, who was with the old majority in Montgomery to extend Miller for the benefit of juveniles, but now is in the Jones majority trmming back the protections of the Eighth Amendment.

3. Speaking of the Chief Justice, I have long hoped that his discussion of as-applied Eighth Amendment claims in Graham might spur many more as-applied Eighth Amendment challenges (especially for cases inolving older teens).  Against that backdrop, I found interesting this statement by the Court toward the end of its Jones opinon: "Moreover, this case does not properly present — and thus we do not consider — any as-applied Eighth Amendment claim of disproportionality regarding Jones’s sentence." This sentence suggests that Brett Jones — as well as every other juvenile sentenced to LWOP in a discretionary scheme — still can and certainly should argue that the particular facts of his case make LWOP unconstitutional as applied.  If future lower court litigation involving Brett Jones or other juveniles might help produce a meaningful as-applied Eighth Amendment jursprudence, perhaps such a jurisprudence could possibly provide some additional protections for a range of persons subject to a range of extreme sentences.

4.  Speaking of additional protections for a range of persons, it is important to remember that even if Jones was resolved in favor of the defendant, the Eighth Amendment would still have been interpreted to provide only the most limited of protections to the most limited set of juveniles convicted of murder.  A lot more than a robust Eighth Amendment jurisprudence is needed to have a real impact on modern mass incarceration and extreme punishments, and it will always be up to legislatures and executive branch officials to enact sounder sentencing laws and apply them in a more humane manner.  Over the last decade, we have, encouragingly, seen many more legislatures and prosecutors do a lot better on sentencing policy and practice.  The Jones ruling is perhaps ultimately just another reminder that steady policy work, rather than sporatic constitutional litigation, remains the surest path to an improved criminal justice system.

April 23, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 22, 2021

SCOTUS affirms juve LWOP sentence, 6-3, in Jones v Mississippi

I am on the road today, and so I am not that surprised the Supreme Court has handed down the big sentencing opinion I have been awaiting all Term.  I hope to comment later today.

UPDATE Thanks to airport wifi, I can now provide this link to the full opinion in Jones v. Mississippi, No. 18-1259 (S. Ct. April 22, 2021).  Here is how Justice Kavanaugh's opinion for the Court begins

Under Miller v. Alabama, 567 U.S. 460 (2012), an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.  In this case, a Mississippi trial judge acknowledged his sentencing discretion under Miller and then sentenced petitioner Brett Jones to life without parole for a murder that Jones committed when he was under 18.  The Mississippi Court of Appeals affirmed, concluding that the discretionary sentencing procedure satisfied Miller.

Jones argues, however, that a sentencer’s discretion to impose a sentence less than life without parole does not alone satisfy Miller.  Jones contends that a sentencer who imposes a life-without-parole sentence must also make a separate factual finding that the defendant is permanently incorrigible, or at least provide an on-the-record sentencing explanation with an implicit finding that the defendant is permanently incorrigible.  And Jones says that the trial judge did not make such a finding in his case.

Jones’s argument that the sentencer must make a finding of permanent incorrigibility is inconsistent with the Court’s precedents.  In Miller, the Court mandated “only that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics—before imposing” a life-without-parole sentence.  Id., at 483.  And in Montgomery v. Louisiana, which held that Miller applies retroactively on collateral review, the Court flatly stated that “Miller did not impose a formal factfinding requirement” and added that “a finding of fact regarding a child’s incorrigibility . . . is not required.” 577 U.S. 190, 211 (2016). In light of that explicit language in the Court’s prior decisions, we must reject Jones’s argument.  We affirm the judgment of the Mississippi Court of Appeals.

Justice Sotomayor's dissent, which is joined by Justices Breyer and Kagan, starts this way:

Today, the Court guts Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016). Contrary to explicit holdings in both decisions, the majority claims that the Eighth Amendment permits juvenile offenders convicted of homicide to be sentenced to life without parole (LWOP) as long as “the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.” Ante, at 1. In the Court’s view, a sentencer never need determine, even implicitly, whether a juvenile convicted of homicide is one of “those rare children whose crimes reflect irreparable corruption.” Montgomery, 577 U.S., at 209. Even if the juvenile’s crime reflects “‘unfortunate yet transient immaturity,’” Miller, 567 U.S., at 479, he can be sentenced to die in prison.

This conclusion would come as a shock to the Courts in Miller and MontgomeryMiller’s essential holding is that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Montgomery, 577 U.S., at 195 (quoting Miller, 567 U.S., at 479–480).  Sentencing discretion is “necessary to separate those juveniles who may be sentenced to life without parole from those who may not,” Montgomery, 577 U.S., at 210, but it is far from sufficient.  A sentencer must actually “make th[e] judgment” that the juvenile in question is one of those rare children for whom LWOP is a constitutionally permissible sentence.  Miller, 567 U.S., at 480.  The Court has thus expressly rejected the notion that sentencing discretion, alone, suffices: “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Montgomery, 577 U.S., at 208 (internal quotation marks omitted).

Today, however, the Court reduces Miller to a decision requiring “just a discretionary sentencing procedure where youth [is] considered.” Ante, at 11.  Such an abrupt break from precedent demands “special justification.” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (KAVANAUGH, J., concurring in part) (slip op., at 6) (internal quotation marks omitted). The Court offers none.  Instead, the Court attempts to circumvent stare decisis principles by claiming that “[t]he Court’s decision today carefully follows both Miller and Montgomery.” Ante, at 19.  The Court is fooling no one.  Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent.

April 22, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, March 15, 2021

Georgia Supreme Court affirms discretionary juve LWOP sentence despite judge's statement it could not find juvenile "irreparably corrupt"

In the next few months, perhaps in the coming weeks, we should be getting an opinion from the Supreme Court in Jones v. Mississippi to help us better understand if Eighth Amendment jurisprudence requires a sentencer to make a specific finding about a juvenile before exercising its discretion to impose a sentence of life without parole.  In the meantime, states continue to struggle with juvenile LWOP sentencing requirements amidst all the resentencings that had to take place after Miller v. Alabama prohibited mandatory LWOP for juveniles. 

This morning, the Supreme Court of Georgia in Moss v. Georgia, S20A1520 (Ga. Mar. 15, 2021) (available here), addressed this issue in a case in which the sentencing court suggested it was impossible to make a certain finding about a juvenile defendant.  Here is the start and a key passage from the unanimous ruling in Moss:

Jermontae Moss was convicted of felony murder, possession of a firearm during the commission of a crime, and theft by receiving stolen property in connection with the shooting death of Jose Marin. On appeal, Moss contends that his trial counsel provided constitutionally ineffective assistance and that the trial court erred in sentencing Moss—a 17-year-old juvenile at the time of the crimes—to life in prison without the possibility of parole (“LWOP”) for murder.  Neither of Moss’s contentions has merit, so we affirm....

It is true, as Moss points out, that at one point in its lengthy order the trial court also opined on the role of the “Divine” in the ultimate judgment of a human being:

This Court cannot find, in this case or in any other, that the Defendant himself is “irretrievably corrupt” or “permanently incorrigible.” And it is this Court’s firm opinion that no court at any level is ever able to make such a determination; it is beyond human capacity. Only a Divine Judge could look into a person and determine that he is permanently and irretrievably corrupt; that he has reached a state from which there is no return, no hope of redemption, no hope of any restoration.

(Emphasis in original.)  But we do not view Miller or Montgomery — or cases from this Court applying Miller and Montgomery, such as Veal, White, and Raines — as requiring the trial court to conduct a metaphysical assessment of a juvenile defendant.  Given the express determinations contained in the trial court’s order and summarized in part above, we cannot say that the trial court’s additional observations about the metaphysical — especially when viewed in the full context of the court’s order — somehow rendered the trial court’s analysis erroneous.

March 15, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, March 11, 2021

Split Washington Supreme Court, relying on state constitution, forbids mandatory LWOP sentences for those under 21

Today, via a 5-4 ruling in In re Pers. Restraint of Monschke and Bartholomew, No. 96772-5 (Wash. Mar. 11, 2021) (available here), the Supreme Court of Washington extended the reach of the US Supreme Court's Miller ruling by declaring mandatory LWOP for those under 21 to be unconstitutional (pursuant to Washington's state constitutional prohibition of "cruel punishment").  Here is how the majority opinion starts and ends:

Dwayne Earl Bartholomew and Kurtis William Monschke were each convicted of aggravated first degree murder and sentenced to life in prison without possibility of parole — a mandatory, nondiscretionary sentence under Washington’s aggravated murder statute.  RCW 10.95.030.  Bartholomew was 20 years old; Monschke was 19.  Many years after their convictions, each filed a personal restraint petition (PRP) asking us to consider whether article I, section 14 of our state constitution or the Eighth Amendment to the United States Constitution permits a mandatory life without parole (LWOP) sentence for youthful defendants like themselves.  Specifically, they ask us to decide whether the constitutional requirement that judges exercise discretion at sentencing, which forbids such mandatory LWOP sentences for those under 18, also forbids those sentences for 18- to 21-year-old defendants.

Modern social science, our precedent, and a long history of arbitrary line drawing have all shown that no clear line exists between childhood and adulthood.  For some purposes, we defer to the legislature’s decisions as to who constitutes an “adult.”  But when it comes to mandatory LWOP sentences, Miller’s constitutional guarantee of an individualized sentence — one that considers the mitigating qualities of youth — must apply to defendants at least as old as these defendants were at the time of their crimes.  Miller v. United States, 567 U.S. 460, 469-80, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).  Accordingly, we grant both PRPs and order that Bartholomew and Monschke each receive a new sentencing hearing....

There is no meaningful cognitive difference between 17-year-olds and many 18-year-olds.  When it comes to Miller’s prohibition on mandatory LWOP sentences, there is no constitutional difference either.  Just as courts must exercise discretion before sentencing a 17-year-old to die in prison, so must they exercise the same discretion when sentencing an 18-, 19-, or 20-year-old.  We grant Monschke’s and Bartholomew’s PRPs and vacate their mandatory LWOP sentences.  We remand each case for a new sentencing hearing at which the trial court must consider whether each defendant was subject to the mitigating qualities of youth.

The dissent authored by Justice Owens begins this way:

Kurtis Monschke and Dwayne Bartholomew committed brutal murders decades ago.  At the time, they were 19 and 20 years old, respectively.  They were not children. Under Washington law, when an individual turns 18 years old, they are empowered to make a range of life-altering decisions: suddenly, they can form contracts, drop out of school, get married, work a hazardous job, and serve in the military.  But at this same moment, they also obtain the full responsibilities and consequences of adulthood, and the court will no longer intervene on their behalf on the basis of age.  Nonetheless, the lead opinion holds today that we must create an exception in treating these individuals as adults when they commit aggravated murder between the ages of 18 and 20.  Mandatory life without parole (LWOP) sentences are now prohibited for this age category.  The lead opinion crafts this new rule by filtering our state constitution’s “cruel punishment” prohibition through a handful of scientific studies and circumvents the reality that no legislatures or courts in the other 49 states have ever recognized such a protection.  WASH. CONST. art. I, § 14.  As the final arbiters of what “cruel” means under article I, section 14 of our state constitution, this court must use a disciplined and evenhanded approach in evaluating its meaning. If we do not, we risk transforming our protection against “cruelty” into whatever is supported by a smattering of studies and five concurring members of this court.

At the heart of this case is the important question of when a person should be held fully accountable as an adult.  This is a question that requires a meticulous examination of a number of scientific, moral, ethical, and practical considerations. Our court is not a legislature, and it is insufficiently equipped to decide this issue on selectively presented evidence put forth by limited parties on a constrained schedule.  The lead opinion broadly seeks to protect against the “unacceptable risk that youthful defendants without fully developed brains will receive a cruel LWOP sentence.”  Lead opinion at 29. But I struggle to identify at what precise age we will stop redrawing these lines based on this brain development evidence, be it 20, 22, 25, or even older.  I further caution that today’s decision may eventually compel us to revisit and invalidate a staggering number of LWOP and Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, sentences for this growing group under our recent decisions in State v. Bassett and State v. Houston-Sconiers.  This task would tremendously burden the State’s resources and the victims’ families. I respectfully dissent.

March 11, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Saturday, January 30, 2021

"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

January 30, 2021 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, January 13, 2021

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

JLWOP202101-1200x802As 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.

January 13, 2021 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Monday, January 11, 2021

Ohio enacts new laws precluding death penalty for those with "serious mentally illness" and largely eliminating LWOP for juvenile offenders

As detailed in this official notice, Ohio Governor Mike DeWine over the weekend signed a bunch of new bills into law, and two are sure to be of interest to sentencing fans:

House Bill 136, sponsored by Representative Brett Hudson Hillyer, prohibits the death penalty if offender was mentally ill at time of offense. 

Senate Bill 256, sponsored by Senator Nathan Manning and former Senator Peggy Lehner, regards sentencing offenders under the age of 18. 

This local press piece provides a bit of background on these new Ohio laws:

Gov. Mike DeWine has also signed bills taking the death penalty off the table for murders committed by the severely mentally ill... House Bill 136, sponsored by Rep. Brett Hillyer (R., Uhrichsville), prohibits the death penalty for murderers who demonstrate they suffered from a “serious mental illness” at the time of the crime. The most severe punishment would be life without the possibility of parole.

In addition to future cases, the law would open a one-year window for some people currently on death row to ask judges to commute their death sentences. While execution is not an option now for juveniles and the mentally disabled, Ohio law still allows for capital punishment in cases involving mental illness claims that fall short of the threshold for a verdict of not guilty by reason of insanity.

“Serious mental illness” is defined as schizophrenia, schizoaffective disorder, bipolar disorder, or any delusional disorder significantly impairing the accused's ability to exercise rational judgment in complying with the law and fully appreciating the consequences of conduct....

Senate Bill 256, sponsored by Sens. Nathan Manning (R., North Ridgeville) and Peggy Lehner (R., Kettering), to remove life without parole as a sentencing option for juveniles and to allow for parole hearings for juveniles after certain periods of time in prison.

It will be fascinating to see how these new laws get implemented.  This other local piece, headlined "Mother of murder victim advocated for new parole changes," partially speaks to the application of the juve LWOP law while also highlighting the powerful role that crime victims can play in advancing criminal justice reform:

A bill that will change Ohio's parole options, signed by Governor Mike DeWine on Saturday, was advocated for by a local mother whose son was murdered in South Cumminsville in 2015.

Suliman Abdul-Mutakallim was walking home with food for his family in June, 2015, when he was shot dead and robbed. "When three assailants walked up behind him and shot him in the back of the head, they didn't even say 'stick 'em up.' They just shot him," said Rukiye Abdul-Mutakallim, Suliman's mother.

The three then took $40 from Suliman, stole his phone and the food he was bringing home. For Rukiye, it was difficult to ignore that two of the three responsible for her son's death were children: The youngest was just 14 years old. "I found it unfathomable. These are human beings, aren't they?" said Rukiye. "And then when I saw them in court and they were children? Ahh."...

"For her to recognize that they were children who made terrible, terrible mistakes and has the grace to understand and hold that out to say, 'This is not what I would want for them,' is really remarkable," said Kevin Werner, with the Ohio Justice and Policy Center. 

Werner said there are currently 11 prisoners in Ohio affected directly by SB 256, which will retroactively apply to juveniles already convicted and sentenced.  The bill instead adds parole possibilities at 18 years, 25 years and 30 years, depending on the severity of the crime.

"It doesn't go far enough and we know that, but it is the beginning," said Rukiye.... "If we are throwing our babies away, we have no future," said Rukiye.

January 11, 2021 in Assessing Miller and its aftermath, Offender Characteristics, Who Sentences | Permalink | Comments (1)

Sunday, January 10, 2021

Montana Supreme Court talks through juve LWOP resentencing after Miller

This past Friday, the Montana Supreme Court handed down a notable ruling (with lots of opinions) on the application of the US Supreme Court's juvenile LWOP sentencing jurisprudence and related issues.  The main opinion and various concurring and dissenting opinions in Montana v. Keefe, No. 2021 MT 8 (Mont. Jan. 8, 2021) (available here), all make for interesting reads.  Here are some of the essentials from the majority opinion: 

We agree with the Briones court that post-offense evidence of rehabilitation is clearly required to be considered by a court resentencing a juvenile who is serving a sentence of life without parole.  Because Miller commands a resentencing court to consider “the possibility of rehabilitation” before a juvenile can lawfully be sentenced to life without parole, evidence of rehabilitation in the years since the original crime must be considered by the resentencing court.  This is consistent with the sentencing policy of Montana which does not merely provide for punishment, protection of the public, and restitution, but also for rehabilitation and reintegration of offenders back into the community....

Although we have determined the District Court erred in determining Keefe was “irreparably corrupt” and “permanently incorrigible” and are reversing his sentence on that basis, we must address whether the issue of the irreparable corruption of a minor is a fact which must be found by a jury.  Keefe has argued, pursuant to Apprendi, that he is constitutionally entitled to have a jury determine whether he is, in fact, “irreparably corrupt” before a possible life without parole sentence.  We disagree....

Here, neither “irreparable corruption” nor “permanent incorrigibility” are facts which could increase a possible sentence.  Rather, youth is a mitigating factor which can reduce the possible sentence for deliberate homicide in Montana.  In accordance with Miller and Steilman, a jury is not required to determine irreparable corruption and permanent incorrigibility — that determination is properly left to the resentencing judge.

January 10, 2021 in Assessing Miller and its aftermath, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, December 01, 2020

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.

December 1, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Wednesday, November 04, 2020

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. Mississippi18-1259, 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'"

November 4, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, November 03, 2020

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.

 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.

LISTEN to Borden HERE

November 3, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, November 02, 2020

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.

November 2, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Friday, October 23, 2020

"Framing Individualized Sentencing for Politics and the Constitution"

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

For decades, there was not much growth in the U.S. Supreme Court’s interpretation and application of the Eighth Amendment.  In recent years, though, the Court has expanded the Amendment to prohibit executing intellectually disabled and juvenile offenders, to ban capital punishment for all non-homicide offenses against individuals, and to prohibit life-without-parole for juveniles when that punishment was mandatorily imposed or imposed on non-homicide offenders.  With changing politics and a changing Court, any further expansion of Eighth Amendment protections will likely be difficult for years to come.  With the recent nomination of Amy Coney Barrett as the newest Supreme Court Justice, the Court is becoming more conservative.  Politics certainly influence law, even at the Supreme Court level, so future changes in politics even outside the Court could affect Eighth Amendment interpretations.  When making Eighth Amendment arguments to the Court, framing is important.

This Article suggests that, in this political landscape, there may be some hope for the expansion of the constitutional requirement of individualized sentencing.  While the Court has historically reserved this requirement for capital cases, its more recent cases have whittled away at the distinction between capital and non-capital cases under the Eighth Amendment.  Further, the Court has already extended its constitutional requirement of individualized sentencing beyond the capital context, at least to some extent.  While recent cases suggest that the Court is positioned to further expand the Eighth Amendment requirement of individualized sentencing, politics will likely have a role to play.  If one carefully frames the argument, there is the potential that persons across the political spectrum may find enhancing individualized sentencing under the Eighth Amendment appealing. 

First, expanding this requirement could result in more progressive sentencing practices, including the prohibition of mandatory sentences and mandatory minimum sentences.  It could also work to effect more humane prison conditions.  Further emphasizing individualized sentencing, however, does come with the risk of weakening uniformity and equality in sentencing.  On the other hand, individualized sentencing may also have appeal across the political aisle with religious conservatives — at least theoretically. Individualized sentencing is rooted in the notion of human dignity, which is central to Christian beliefs.  Further, individualized sentencing allows greater room for reform and rehabilitation, which are often achieved through religious means.  Finally, the increasing practice of individualization throughout our lives — from individualized medicine to individualized advertising — is conditioning Americans to expect enhanced individualization across disciplines.  A heightened constitutional focus on individualized sentencing would be consistent with such expectations.  Further, improved science and technology are regularly arming us with additional tools to better achieve individualized determinations related to sentencing considerations like culpability, deterrence, and rehabilitation.  This provides a foundation for the Court to build on its precedents to increase the Eighth Amendment requirement of individualized sentencing.

October 23, 2020 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, October 11, 2020

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.

October 11, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, July 09, 2020

Great sentencing pieces in 'New Developments in Public Defense Research" collection in Criminal Justice Policy Review

I just came across this great collection of articles under the title "New Developments in Public Defense Research," which appears in the July 2020, issue of the journal Criminal Justice Policy Review. The volume includes seven original papers and an introduction on a range of topics related to public defenders and public defense.  The whole issue is worth checking out, and sentencing fans might be especially interested in these articles:

Including Assets-Based Mitigation in Sentencing by Elizabeth S. Vartkessian

Abstract:  Mitigation evidence consists of information about an accused person that is typically used to advocate for a less severe sentence.  Such evidence most frequently consists of information related to the crime and personal factors that can be separated into two broad categories: deficits and assets-based mitigation.  This article focuses on the importance of assets-based mitigation in sentencing and evaluates if and how state sentencing procedures contemplate and allow for consideration of such evidence.  A content analysis of available state sentencing procedures reveals that states tend to circumscribe mitigation to factors related to the crime or deficits, but largely neglect to give a vehicle to consider assets-based mitigation, which should play a central role in achieving just outcomes.  This article therefore argues for reform to sentencing laws to better accommodate assets-based mitigation by including information related to the defendant’s capacity for growth, self-improvement, and redemption.

 

Decision-Making and Holistic Public Defense Post-Montgomery v. Louisiana by Jeanette Hussemann and Jonah Siegel

Abstract: In 2012, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory sentences of life without the possibility of parole (LWOP) for youth are unconstitutional.  In 2016, the Court held in Montgomery v. Louisiana that the ruling in Miller should be applied retroactively. Drawing from qualitative interviews with justice actors, and individuals who were sentenced to LWOP as juveniles and paroled, this article examines the implementation of Miller-Montgomery in Michigan, the factors that influence decisions to release juvenile lifers, and their reentry process.  In doing so, we focus specific attention to the role of publicly appointed defense attorneys and the application of holistic defense practices to support Montgomery case mitigation and juvenile lifer reentry.  Findings indicate that institutional disciplinary and programming records, emotional wellness, statements by victims’ family members, political considerations, and reentry plans are key considerations when deciding whether a juvenile lifer should be eligible for parole.

July 9, 2020 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Wednesday, June 03, 2020

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.

June 3, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, April 30, 2020

"Resentencing of Juvenile Lifers: The Philadelphia Experience"

The title of this post is the title of this notable new report authored by Tarika Daftary-Kapur and Tina Zottoli.  Here is its executive summary and key findings:

EXECUTIVE SUMMARY

We examined the Philadelphia District Attorney Office’s approach to juvenile lifer resentencing, which began in 2017 under the administration of District Attorney Seth Williams and has continued under the administration of District Attorney Larry Krasner.  For cases resentenced as of December 31st, 2019, we describe similarities and differences between the Williams and Krasner administrations in decision making and sentence length reductions, and we report on the recidivism rate and estimated cost savings for Pennsylvania as a result of release.

In June 2012, the Supreme Court of the United States (SCOTUS) ruled in Miller v. Alabama that mandatory life without-parole (LWOP) sentences were unconstitutional for individuals who were under the age of 18 at the time of their offense (hereafter, juveniles).  In January 2016, SCOTUS, ruled in Montgomery v. Louisiana that Miller applied retroactively.  Following Montgomery, individuals previously sentenced to mandatory LWOP as juveniles (hereafter, juvenile lifers) became eligible for resentencing.  Accordingly, in almost all such cases, the district attorney’s office makes an offer for a new sentence to the defendant, who is free to accept the offer or to have his new sentence decided by the judge.

At the time Miller was decided, Philadelphia had the largest number of juveniles sentenced to LWOP in the country (approximately 325).  Yet, they have been at the forefront of the resentencing process nationally, and at the time of this writing have only 10 juvenile-lifers left to re-sentence; the main reasons for delay being an open Post Conviction Relief Act petition or a pending appeal.

In Philadelphia, re-sentence offers are decided by The Juvenile Lifer Resentencing Committee ("The Lifer Committee"), which comprises 8 members of the executive staff at the District Attorney's Office.  The Lifer Committee’s decisions are based primarily on the consideration of case-summary memos prepared for the Committee by the Assistant District Attorney leading the resentencing process. Memos include information on the facts of the original case, demographic information on the victim and offender, mitigating information, the offenders’ prison adjustment (e.g.misconducts,rehabilitative programming), information on acceptance of responsibility and remorse, the victim’s family’s perspective on release, and reentry plans.

In January 2018, as the resentencing process was underway, Larry Krasner was sworn in as the District Attorney of Philadelphia after having run on a reform platform, ushering in dramatic change to the culture and policies of the District Attorney’s Office.  This change in administrations, during a crucial resentencing project, provided us with a unique opportunity to examine how the priorities and policies of the new administration have affected prosecutorial decision making.  Moreover, in light of the growing recognition that addressing the incarceration epidemic will necessitate re-evaluation of long-term prison sentences for individuals who were convicted of violent offenses, these outcome data have implications far beyond just those that pertain to the resentencing and release of juvenile lifers....

KEY FINDINGS

  • Pennsylvania has resentenced 88% of its juvenile lifers as compared to Michigan (52%) and Louisiana (approx. 15-22%); the three states in combination account for 2/3rd of all juvenile lifers in the United States.

  • Juvenile lifers can be considered low-impact releases in terms of risk posed to public safety.  At the time of our analyses, 269 lifers have been re-sentenced in Philadelphia and 174 have been released.  Six (3.5%) have been re-arrested.  Charges were dropped in four of the cases and two (1%) resulted in new convictions (one for Contempt and the other for Robbery in the Third Degree).  In comparison, nationally, an estimated 30% of individuals convicted of homicide offenses are rearrested within two years of release.

  • A subset of 38 cases were considered for resentencing by both the prior and current administrations.  The average sentence offered in these cases by the prior administration was 38.8 years; under Krasner, the average offer in these cases was 27.6 years.  Across all cases, this difference equates to an additional reduction of 394 years.

  • Overall, release of Philadelphia's juvenile lifers, to date, will result in an estimated minimum $9.5M savings in correctional costs for Pennsylvania over the first decade.

  • For both the Williams and Krasner administrations, Lifer Committee offers were explained by years in custody at time of resentencing, charge severity, whether the defendant was the primary actor, and whether a re-entry plan is in place.  There were some differences. While both administrations considered the maturity of the offender, the Williams administration relied on defendant age at the time of the offense and the level of planning, whereas the Krasner administration relied on a more holistic evaluation of the juvenile nature of the crime (e.g., involvement of an adult co-defendant, presence of peers, context in which the murder was committed).  Prior convictions also weighed more heavily under Krasner than the prior administration.

April 30, 2020 in Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (5)

Monday, March 09, 2020

SCOTUS grants cert on a Mississippi case on the application of Miller to replace dismissed Malvo case

In this new order list, the Supreme Court this morning granted certain in one case, Jones v. Mississippi, No. 18-1259.  Here is the straight-forward question presented in Jones' cert petition:

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.

As explained in this post and this post, after Virginia enacted new legislation to make all juvenile offenders eligible for parole, SCOTUS had to dismiss, more than four months after oral argument, the Malvo case which concerned whether infamous DC sniper Lee Malvo was constitutionally entitled to be considered for resentencing for a series of murders committed when he was 17.  It was expected that the Justice would be inclined to take up a "replacement case," and that now appears to be the Jones case.

Notably, the facts and legal realities surrounding the Jones case are strikingly different that the Malvo case.  Lee Malvo was just shy of 18 when he was involved is a high-profile series of thrill killings; Brett Jones had just turned 15 when he stabbed to death his grandfather in an altercation in which Jones claimed (unsuccessfully) he acted in self-defense.  In addition, the Malvo case involved the extra complications of federal habeas review of (unclear) state procedures; the Jones case involves a direct appeal from the state court on the question of what process or finding is required to impose a discretionary life without parole sentence on a juvenile killer.

Because of the somewhat simpler facts and simpler procedural posture, it would seem that Jones will present an interesting opportunity to essentially relitgate a range of issues left behind in the wake of the Miller and Montgomery cases.  I suspect some amici may argue, for example, that is is now time for the Eighth Amendment to be interpreted to categorically ban all juve LWOP (or at least to ban all LWOP sentences for crimes committed under the age of 16).  Some other amici might argue, however, that no particular finding or process should be required for before any juve LWOP sentence is imposed despite suggestions otherwise in Montgomery.

Importantly, because of the timing of all these developments, the oral argument in this case will not be until the Fall and we ought not expect an opinion before early 2021.

March 9, 2020 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, February 27, 2020

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:

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.

February 27, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, February 25, 2020

Ending JLWOP, Virginia makes all juvenile offenders eligible for parole (and thereby moots SCOTUS consideration of Malvo case)

As effectively reported here by Daniel Nichanian at The Appeal: Political Report, Monday brought big news out of Virginia that had an echo effect on the Supreme Court's docket. The report is headlined "Virginia Makes All Children Eligible For Parole, A Major Shift For This Punitive State," and here are the details:

Virginia will give hundreds of people who have been incarcerated for decades, ever since they were kids, a shot at petitioning for release. House Bill 35 will make people who have been convicted of an offense committed before the age of 18 eligible for parole after 20 years in prison. The legislature adopted the bill last week and the governor signed it into law [on Monday], effective July 1.

In practice, the bill abolishes sentences of life without the possibility of parole for minors; minors sentenced to sentences that amount to life in prison would also get some chance at parole. “It’s a huge victory,” Heather Renwick, legal director of the Campaign for the Fair Sentencing of Youth, told me. Besides banning life without the possibility of parole for minors, “the bill will provide broader relief and parole eligibility for all kids sentenced in the adult system,” she said.

Still, a major question looms over the concrete effect that the reform would have. It will only make people eligible to go in front of a parole board, with no guarantee that anyone gets paroled. And the recent history of Virginia’s board is to quasi-systematically deny the applications it receives. This signals the importance of strengthening the parole process alongside reforms that expand eligibility.

HB 35 also will not address the expansive mechanisms that lead minors to be prosecuted as adults in Virginia, and that trigger lengthy sentences in the first place. But the legislature is also considering separate bills to at least narrow those mechanisms....

In some ways, this bill is a modest reform. For one, it brings Virginia in line with many of its peers. With HB 35 signed into law, Virginia becomes the 23rd state (plus D.C.) to end sentences of life without the possibility of parole for minors. Oregon passed a similar bill last summer, and such proposals are on the table in other states as well.

HB 35, moreover, is a less expansive change than we’ve seen in other states. When neighboring West Virginia adopted a similar law in 2014, it made minors eligible for parole after 15 years, rather than the 20 that HB 35 stipulates. (Oregon’s law also stipulated 15 years.) And when Illinois established new parole rules for youths last year, it made people up to age 21 eligible to apply, affirming that considerations of youth do not just stop when someone is a day over 18. HB 35 still sets a cutoff at age 18.

The bill also better aligns Virginia on the U.S. Supreme Court rulings, such as Miller v. Alabama, which ended mandatory life without parole sentences for minors. The state has been slow at granting resentencing, and there is also litigation on whether the other mechanisms that impose extreme sentences on minors are any more constitutional. HB 35 addresses such concerns by retroactively conferring parole eligibility to minors sentenced to de facto life sentences.

When the bill becomes effective, it will affect 720 currently-incarcerated people, according to a legislative analysis....

Virginia may also soon pass a bill to make about 300 people sentenced between 1995 (when it ended parole) and 2000 (when it began informing juries of this change) eligible for parole.

Expanding eligibility may not by itself change much for anyone, though, including for minors. That’s because Virginia’s parole board has been denying the vast majority of applications it receives.

According to a Capital News Services analysis of Virginia’s parole board published in December, the vast majority of parole applications are denied: 94 percent since 2014. The rate of denial was above 90 percent for all age groups. Earlier analyses have found similar numbers.

This ABC News article explains the echo effect of this new Virginia law on a high-profile Supreme Court case argued last October:

D.C. sniper Lee Boyd Malvo asked the Supreme Court to dismiss his appeal on Monday after a change to Virginia state law now makes him eligible for parole....  In a letter to the Court signed by Malvo's attorney and an attorney for the state of Virginia, both sides agreed the case is now moot and should be dismissed.  Malvo will retain his sentences and remain behind bars, the letter says.

Over at Crime & Consequences, Kent Scheidegger has two posts in this wake of these developments, the first suggesting an alternative case for the Court to now take up and the second urging the Court to think about how best to dismiss the Malvo case:

February 25, 2020 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, January 31, 2020

Effective accounting of Miller implementation four years after Montgomery made ruling retroactive

A few days ago marked four years since the US Supreme Court decided Montgomery v. Louisiana, a ruling which made retroactive the Court's prior decision in Miller v. Alabama declaring mandatory LWOP for juvenile murderers unconstitutional.  The folks at The Campaign for the Fair Sentencing of Youth marked the occasion by producing this short effective review of juve homicide sentencing past and present.  Here are some portions of the report:

When the Supreme Court decided Montgomery, over 2,800 individuals in the U.S. were serving life without parole for crimes committed as children — a sentence that the United States alone is known to impose on children. In the four years since Montgomery was decided, the number of individuals serving life without parole for crimes committed as children has been reduced by nearly 75 percent.

Fewer than 100 individuals have been resentenced to life without parole to date, which is less than 5 percent of all individuals whose sentences have been modified to date. And a number of those cases are on appeal.

Since Montgomery, close to 600 individuals have been released from prison who formerly were sentenced to life without parole as children, and that number continues to grow....

Today 22 states and the District of Columbia ban life-without-parole sentences for children, and in at least four additional states, no one is serving life without parole for a crime committed as a child.  Therefore more than half the country has rejected life-without-parole sentences for children in law or in practice....

Over 70 percent of all youth ever sentenced to life without parole are people of color — primarily Black and Latinx.

Strikingly, racial disparities in the imposition of life without parole on children continue to worsen.  The Supreme Court in Miller and Montgomery guaranteed all children an individualized sentencing hearing before life without parole can be imposed.  Yet despite the now-discretionary nature of life without parole, and the Supreme Court’s unequivocal language that the penalty may be imposed only if a child has no capacity for rehabilitation, racial disparities have increased under this new framework.

Of new cases tried since Montgomery, approximately 70 percent of children sentenced to life without parole have been Black — as compared to approximately 61 percent before Montgomery...

With little guidance from the Supreme Court in Miller and Montgomery on the specifics of the resentencing process, states have varied significantly in the procedural protections afforded.  This patchwork of interpretations raises a high risk that resentencings to life without parole will be arbitrary, based more on the jurisdiction and the idiosyncrasies of individual judges than on whether the individual is capable of positive change.

Some states — including Georgia, Louisiana, Ohio, and Michigan — have continued to sentence children to life without parole in new cases at a rate that far outpaces the rest of the country, and in contravention of the constitutional mandate established in Miller and Montgomery that the sentence be uncommon.

Approximately 1,600 of the individuals whose sentences have been modified following Montgomery will go before a parole board, and the likelihood of release through the parole process varies greatly by state.  For example, Henry Montgomery — who was deemed a model prisoner by the Supreme Court in Montgomery v. Louisiana — has been denied parole twice by the Louisiana parole board.

January 31, 2020 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, January 30, 2020

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.

January 30, 2020 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, January 14, 2020

Splitting with other state courts, Georgia Supreme Court upholds use of preponderance standard in LWOP sentencing determination for juve murderer

Yesterday the Georgia Supreme Court rejected a procedural attack on a life without parole sentence given to a 17-year-old murderer and created an interesting little split on the application of Miller and Montgomery in the process.  The unanimous ruling in White v. Georgia, No. S19A1004 (Ga. Jan. 13, 2020) (available here), covers a couple of issues, and here is the key passage dealing with the procedure for imposing a LWOP sentence on a juvenile murderer after Miller and Montgomery:

White argues that, as a matter of due process, the State must prove permanent incorrigibility beyond a reasonable doubt in order for the trial court to sentence him to life without parole.  At oral argument, White’s counsel cited Mathews v. Eldridge, 424 U.S. 319 (96 SCt 893, 47 LE2d 18) (1976), which some courts have relied on to conclude that due process demands a finding of permanent incorrigibility beyond a reasonable doubt before a juvenile may be sentenced to life without parole. See Davis v. State, 415 P3d 666, 682 (Wy. 2018); Commonwealth v. Batts, 163 A3d 410, 454-455 (Pa. 2017). But those decisions ignore United States Supreme Court precedent. That Court has made clear that Mathews does not apply in the context of a state criminal case.  See Medina v. California, 505 U.S. 437, 443 (112 SCt 2572, 120 LEd2d 353) (1992) (“[T]he Mathews balancing test does not provide the appropriate framework for assessing the validity of state procedural rules which . . . are part of the criminal process.”).  Rather, a state criminal procedure is not prohibited by the federal Due Process Clause “unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Id. at 445 (citation and punctuation omitted).  The United States Supreme Court has held that “application of the preponderance standard at sentencing generally satisfies due process.” United States v. Watts, 519 U.S. 148, 156 (117 SCt 633, 136 LE2d 554) (1997).  And no Supreme Court decision of which we are aware — much less that White cites — holds that juvenile sentencing of the sort at issue here is an exception to that rule.  White has not shown that the burden of proof applied by the trial court here violated his rights under the federal Due Process Clause.

I do not know if Dakota Lamar White might appeal this ruling to the U.S. Supreme Court, but the paragraph above spotlights the clean split in state courts over this issue. of course, SCOTUS is now working toward a decision in the Malvo case dealing with retroactive application in Miller, and it is possible (though not really all that likely) that other Miller application issues could get addressed directly or indirectly in that coming ruling.

January 14, 2020 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, October 16, 2019

Usual suspects playing usual roles in Malvo argument over juve LWOP sentencing

In recent SCOTUS history, Eighth Amendment cases in the Supreme Court tended to be pretty predictable with certain Justices as regular votes for defendants, others as regular votes for the state, and Justice Kennedy (and sometimes the Chief Justice) being the key swing voter.  But Justice Kennedy is now gone, and it appear from this SCOTUS review of the oral argument in Mathena v. Malvo that Justice Kennedy's replacement, Justice Kavanaugh, may be slipping into the swinger shoes:

Kavanaugh asked both Heytens and Spinelli about the broader question of how courts should approach sentencing of juveniles.  If Miller and Montgomery require the sentence to consider a defendant’s youth to determine whether he is incorrigible (and therefore should be sentenced to life in prison without parole) or instead simply immature (and therefore should have at least the possibility of parole), Kavanaugh asked, would that requirement be satisfied by a discretionary regime that includes the defendant’s youth among the factors that the sentence must consider or that allows the defense counsel to raise the issue?  That proposal seemed to draw support from an array of justices, including Kagan, Justice Sonia Sotomayor and perhaps even Chief Justice John Roberts.

Over at Crime & Consequences, Kent Scheidegger has this accounting of possible head-counting:

I'm sure Justice Kagan would like the Court to just accept Montgomery's recasting of Miller on its face and endorse an intrusive rule for federal micromanagement of juvenile LWOP sentencing, just like the monstrosity we have for capital sentencing.  I would be surprised if she has a majority for that.  I think Justice Alito (and probably Justice Thomas) would like to overrule Montgomery.  I doubt they have a majority for that.  Justice Gorsuch seems inclined to a narrow reading of Montgomery, though, because a broad one would implicate the Apprendi rule.

Justices Ginsburg and Breyer question the Virginia Supreme Court's holding that the Virginia system actually was discretionary at the time of Malvo's sentencing.  The Fourth Circuit assumed that was correct.  They could send the case back to reconsider that point.

With this many splits among the Justices, there is no predicting the outcome.

The full transcript of the argument is available at this link.

October 16, 2019 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, October 15, 2019

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. LouisianaThis 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:

October 15, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Saturday, August 24, 2019

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.

August 24, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Recommended reading, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, August 19, 2019

"More than half of Michigan juvenile lifers still wait for resentencing"

The title of this post is the title of this notable recent report from the Detroit Free Press spotlighting how slow the state has been to implement the Supreme Court's Eighth Amendment rulings in Miller and Montgomery limiting the use of LWOP for juvenile offenders.  I recommend the piece in full, and here is how it gets started:

Three and a half years after the U.S. Supreme Court ruled that juvenile lifers should have the opportunity to be re-sentenced and come home, more than half in Michigan are still waiting to go before a judge to learn their fate, according to a Free Press analysis.  That means nearly 200 inmates are waiting for a judicial review.

“We are not resolving cases at the rate that you would hope, given that the United States Supreme Court said these sentences should be rare," said Tina Olson, an attorney with the Michigan State Appellate Defender Office (SADO), whose office is representing roughly two-thirds of the state’s cases.

In 2012, the court ruled in Miller v. Alabama that juveniles should no longer be sentenced to mandatory life terms, citing developmental differences in the teenage brain, as well as the ability for rehabilitation.  The high court doubled down on the decision in January 2016, ruling in Montgomery v. Louisiana that the Miller opinion should be applied retroactively.

While the 2016 Montgomery decision should have resulted in a clear-cut path for juvenile lifers, the system remains speckled with question marks.  And since the opinion left the application of the ruling up to each state, there is little agreement on what this process should look like.  Take, for example, Philadelphia County in Pennsylvania, which had almost as many juvenile lifers as the entire state of Michigan.  It is expected to complete all but 10 of its resentencing cases by the end of the summer.  Not a single juvenile lifer in the county has been given a new life sentence so far.

By and large, prosecutors in Michigan defend the slower process, contending they are thoughtfully weighing each case.  "We tried to take a serious look at the criteria set forth in Miller, and put those factors into play when making those decisions on each case," said Kent County Prosecutor Christopher Becker, whose office was responsible for making sentencing recommendations for 23 defendants.  Thirteen were originally recommended for continued life sentences — one was subsequently re-evaluated and changed to a term of years.

"I don’t think there is anything wrong with the pace," he said, explaining that a good number of the state's juvenile lifers have not yet served 25-years — the minimum requirement for resentencing — and therefore getting them before a judge is not as paramount.  Only four of the 23 juvenile lifers in Becker’s county, for example, have served 25 years so far.

While the state has made progress around resentencing — as of July 1, 86 of the state’s 354 juvenile lifers had been released, a 300% increase since fall 2017 — defense attorneys and a new crop of progressive prosecutorial candidates are raising questions.  Olson, and others like her, point to the fact that in July 2016, when Michigan prosecutors had to submit their resentencing recommendations, they, as a whole, requested continued life sentences for 66% of the state’s juvenile lifers — a figure that appears incongruous with the Supreme Court’s ruling that the sentence should just be reserved for "the rare juvenile offender whose crime reflects irreparable corruption."

While prosecutors have been able to walk back and change recommendations for continued life, and judges can rule against a prosecutor's recommendation, the original sentences more or less placed defendants on a slower track, as those originally recommended for a resentencing (known as a term of years) were prioritized in the process.  The 66% that were slotted for continued life were, therefore, de-prioritized.

Under Michigan state law, a recommendation of term of years goes directly to a judge for sentencing, while a recommendation of continued life is a much more time-consuming legal process that can involve a hearing, evidence and witnesses.  For several years, Michigan criminal justice players were debating whether these hearings should be heard by a judge or a jury — an uncertainty that, until the Michigan Supreme Court weighed in last summer, prompted many prosecutors to place such cases on hold.

And so, while there are several factors that have contributed to the slow resentencing process — clunky bureaucracy, disagreements over procedures, and a lack of an official database tracking the process — the original resentencing recommendations have been highlighted as a major contributing factor. The first in a litany of interconnected holdups.

August 19, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, August 12, 2019

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.

August 12, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Tuesday, July 09, 2019

En banc Ninth Circuit works through Eighth Amendment jurisprudence and juvenile resentencing under federal guidelines

In this post around this time last year, I noted work on an amicus brief in support of a Ninth Circuit en banc petition in US v. Riley Briones.  The original ruling in Briones had a split Ninth Circuit panel affirming 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.   But after granting en banc review, the Ninth Circuit has now vacated the LWOP sentence and remanded for resentencing by a 9-2 vote.  The new majority opinion in Briones, available here, has a lot to say about Eighth Amendment jurisprudence and juvenile sentencing, and here are a few excerpts:

Taken together, Miller, Montgomery, and Pete make clear that a juvenile defendant who is capable of change or rehabilitation is not permanently incorrigible or irreparably corrupt; that a juvenile who is not permanently incorrigible or irreparably corrupt is constitutionally ineligible for an LWOP sentence; and that a juvenile’s conduct after being convicted and incarcerated is a critical component of the resentencing court’s analysis....

We reaffirm that when a substantial delay occurs between a defendant’s initial crime and later sentencing, the defendant’s post-incarceration conduct is especially pertinent to a Miller analysis. See id.; see also Montgomery, 136 S. Ct. at 736 (“The petitioner’s submissions [of his reformation while in prison] are relevant . . . as an example of one kind of evidence that prisoners might use to demonstrate rehabilitation.”).  The key question is whether the defendant is capable of change.  See Pete, 819 F.3d at 1133.  If subsequent events effectively show that the defendant has changed or is capable of changing, LWOP is not an option.

The district court’s heavy emphasis on the nature of Briones’s crime, coupled with Briones’s evidence that his is not one of those rare and uncommon cases for which LWOP is a constitutionally acceptable sentence, requires remand.  We do not suggest the district court erred simply by failing to use any specific words, see Montgomery, 136 S. Ct. at 735, but the district court must explain its sentence sufficiently to permit meaningful review.  See Carty, 520 F.3d at 992 (“Once the sentence is selected, the district court must explain it sufficiently to permit meaningful appellate review . . . . What constitutes a sufficient explanation will necessarily vary depending upon the complexity of the particular case . . . .”).  When a district court sentences a juvenile offender in a case in which an LWOP sentence is possible, the record must reflect that the court meaningfully engaged in Miller’s central inquiry.

And here is a concluding substantive paragraph from the dissent:

Thus, despite evidence of Briones’s rehabilitation, youth when the heinous crimes were committed, and youth-related characteristics, the record supports that Briones’s crimes reflect permanent incorrigibility, as opposed to transient immaturity. The district court therefore imposed a permissible sentence.  Notably, the majority does not conclude that a life without parole sentence is impermissible in this case. Instead, although the majority claims otherwise, the majority’s opinion vacates the district court’s sentence because the district court failed to find that Briones was permanently incorrigible. But as discussed above, there is no requirement for the district court to make any specific findings before imposing a life without parole sentence.  In short, the majority, citing Montgomery, states that it “do[es] not suggest the district court erred simply by failing to use any specific words,” Maj. at 19.  But in clear contravention of Montgomery, that is precisely why it has reversed. We remand for the district court to do again what it has already done.

July 9, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, April 26, 2019

"Individualized Sentencing"

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

In Woodson v. North Carolina, the Supreme Court proscribed the use of mandatory death sentences.  One year later, in Lockett v. Ohio, the Court expanded this principle to hold that defendants in capital cases were entitled to “individualized sentencing determinations.”  The Court’s reasoning in both cases centered on the seriousness of the death penalty.  Because the death penalty is “different” in its seriousness and irrevocability, the Court required the sentencing court, whether judge or jury, to assess the individualized characteristics of the offender and the offense before imposing a sentence.

In 2012, the Court expanded this Eighth Amendment concept to juvenile life-without-parole sentences in Miller v. Alabama.  Specifically, the Court held that juvenile offenders also were unique — in their capacity for rehabilitation and their diminished culpability — such that they too deserved individualized sentencing determinations.  The seriousness of the sentence in question, life without parole, also factored into the Court’s decision to extend the individualized sentencing requirement to juvenile life without parole cases.

Felony convictions, however, are serious too.  The current consequences for a felony conviction in most states result in dehumanizing effects that extend far beyond release including loss of right to vote, state surveillance, and loss of the right to own a firearm, not to mention social stigma.  As such, this Article argues for an extension of the Court’s Eighth Amendment individualized sentencing principle to all felony cases.  Doing so would require the Court to overrule its prior decisions, including Harmelin v. Michigan, but the Court’s opinion in Miller hints at a willingness to do just that.

While initially valuable in ensuring that capital cases received heightened scrutiny, the unintentional consequence of the Court’s differentness principle is that non-capital cases have received almost no constitutional scrutiny.  The individualized sentencing determination requirement provides one simple way to begin to remedy this shortcoming.

Adopting this doctrinal extension would have three major consequences: (1) it would provide each defendant his day in court in the face of serious, lifelong deprivations, (2) it would eliminate draconian mandatory sentencing practices, and (3) it would shift the sentencing determination away from prosecutors back to judges.

Part I of the Article describes the evolution of the individualized sentencing doctrine.  Part II exposes the unintended consequences of the differentness concept, and unearths the theoretical principles behind individualized sentencing.  In Part III, the Article argues for the expansion of the current doctrine and explains why the current roadblocks are not insurmountable.  Part IV then explores the consequences of broadening the application of the individualized sentencing doctrine, for defendants, legislators, and judges alike.

April 26, 2019 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, April 23, 2019

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.

April 23, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Friday, April 12, 2019

Henry Montgomery (of Montgomery v. Louisiana) denied parole yet again at age 72

A few years ago Henry Montgomery won in the Supreme Court with his claim that the landmark Eighth Amendment decision in Miller v. Alabama must be applied retroactively.  But that win only garnered him a chance to be paroled after serving more than 50 years on a murder charge as a teenager in the early 1960s.  Last year, Montgomery was denied parole as detailed in this prior post, and yesterday he was denied parole again as reported in this local article headlined "After 55 years in prison, Baton Rouge man key to Supreme Court ruling again denied freedom." Here are some details: 

Henry Montgomery's victory at the U.S. Supreme Court in 2016 created a way for hundreds of prisoners like him — those convicted of horrific crimes while juveniles — to earn their freedom by demonstrating their rehabilitation since their youth.  Yet on Thursday, Montgomery was again denied his own opportunity at a life beyond bars.

The Louisiana Committee on Parole denied Montgomery his freedom for the second time in 14 months, a decision that will keep the 72-year-old confined at the Louisiana State Penitentiary at Angola, where he has served 55 years.

At age 17, Montgomery killed East Baton Rouge Sheriff's Deputy Charles Hurt in 1963 and was sentenced to life in prison. But three years ago, the case played the central role in a landmark ruling on juvenile sentences, Montgomery v. Louisiana, in which the U.S. Supreme Court ruled youth offenders cannot be sentenced to mandatory life without parole, even in prior cases.

And though one of the parole board members Thursday morning cited the court's decision directly, noting "children who commit even heinous crimes are capable of change" — it was not enough. The board must vote unanimously for parole to be granted, and one member, Brennan Kelsey, voted against Montgomery's parole.

Kelsey said he believes the septuagenarian still needs to take more classes and complete more programming. "It's your responsibility to continue to work," Kelsey told Montgomery through a video call between Baton Rouge and the Angola prison.  But Montgomery's attorney, Keith Nordyke, responded that he's "not sure what programs are left."

"He's been through all of the programs he could take," Nordyke said.  "He's been a force for change and a force for good."  Nordyke told the board that Montgomery was imprisoned before programming was available to those sentenced to life terms, but even then, Montgomery started a boxing club that gave young inmates a positive outlet.  The lawyer said Montgomery was involved in a Methodist church ministry and organized a literacy program for fellow inmates that included helping them write letters home when they could not read or write themselves.  Since programming became available to Montgomery in recent years, he has completed a variety of classes, like anger management and victim awareness.

"We're not quitting, we're not giving up," Nordyke said, calling the decision Thursday disappointing.  He said he's unsure what his legal team will do next, but he worries about waiting two more years to again go before the parole board, which is the typical waiting period after a decision. Montgomery will turn 73 in June.  "I'm not sure, when you're 73, that two years from now is an adequate remedy for something the Supreme Court ordered," Nordyke said....

The board reconsidered Montgomery's case on Thursday because they conceded an error had occurred during his previous hearing, at which he was first denied freedom. At that hearing in February 2018, two of the three parole committee members voted to deny Montgomery parole, primarily citing Montgomery's lack of classes as reasoning for their vote. But Nordyke requested the board reconsider the case through the board's appeal-like process, alleging the voting members misapplied the laws on youthful offenders in their decision. His request was granted.

The three parole board members on Thursday were different from the three who voted on Montgomery's case last year, yet Kelsey echoed a similar request about more classes, a claim Nordyke called unfair.  He said prison officials worked in the last year to find Montgomery additional classes to take after the last hearing, but it was still not enough. "I do feel like the goalposts are moving," Nordyke said. He said there are classes on parenting and substance abuse that Montgomery has not taken, but those courses would not make sense for a 73-year-old man without children who has never struggled with substance abuse....

The warden of the Louisiana State Penitentiary at Angola, Darryl Vannoy, testified to the board that Montgomery has no issues at the prison.  During Montgomery's 55-year incarceration, prison officials said, he has been written up for breaking rules only 23 times, and only twice in the last 17 years.  The last two write-ups, in 2013 and 2014, were for smoking in an unauthorized area and leaving clothes on his locker. "He's worked at the same job for 25 years," Vannoy said. Montgomery works at the prison's silk-screen shop. "He's not a problem for us. Real low-key guy, you don't hear anything out of him."...

Hurt's grandson, Lafourche Parish Sheriff's Capt. J.P. deGravelles, said while Montgomery has apologized to his family, that was the first time he heard Montgomery take responsibility for the crime. However, he and his aunt, Linda Hurt Wood, asked the parole board on Thursday to keep Montgomery behind bars. "I did go to Angola and I do forgive Henry Montgomery," Wood said. "Mr. Montgomery received a life sentence and so did we. … I will never have my father back."

DeGravelles said their family was disappointed to learn Montgomery would get a second chance in front of the parole board, less than two years from the last hearing. Typically, prisoners have to wait two years before requesting another parole consideration, but the timeline was expedited when the board granted Montgomery's reconsideration appeal — a process about which deGravelles said his family was kept in the dark, yet he was glad to see how it ended up. "Nobody comes out ahead on this," deGravelles said. "Mr. Montgomery is where he needs to be, and that's where he needs to stay."

April 12, 2019 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, April 03, 2019

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.

April 3, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Monday, April 01, 2019

"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.

April 1, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, March 18, 2019

SCOTUS takes up Miller retroactivity, unanimous juries, the insanity defense and criminal preemption in latest order list!

The Supreme Court is back in action this morning and today's order lists includes a list of four cases in which certioriari is granted.  Four criminal grants would enough to warm a chilly morning for me, but all four cases involve fairly "big ticket" concerns.  With the help of SCOTUSblog, here is the list of granted cases: 

Mathena v. Malvo18-217

Issue: 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.

 

Ramos v. Louisiana18-5924

Issue: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.

 

Kahler v. Kansas18-6135

IssueWhether the Eighth and 14th Amendments permit a state to abolish the insanity defense.

 

Kansas v. Garcia, 17-834

Issue: Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications.

With so many Graham and Miller follow-up cases in the pipeline, I am not especially thrilled to see the Justices now decide to take up the Malvo case involving a government appeal of a (high-profile) defendant's win on a Miller retroactivity issues. Still, in the wake of the interesting mess that was Montgomery (see my little commentary, "Montgomery's Messy Trifecta), and the addition of two new Justices since then, I am grateful that these enduringly important issues are getting any at all.

Meanwhile, as the Malvo case might only cover a little issue, Ramos, Kahler and Garcia all cover big issues on a big canvas (though the result in Ramos seems easy to predict).  And, as always, I welcome reader input on what to expect or look forward to in these arenas.

March 18, 2019 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Saturday, March 09, 2019

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.

March 9, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Scope of Imprisonment | Permalink | Comments (1)

Thursday, February 21, 2019

"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.

February 21, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Thursday, February 14, 2019

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.

February 14, 2019 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, January 28, 2019

A year after denial, Henry Montgomery (of Montgomery v. Louisiana) to get parole reconsideration by parole board

In every area of criminal law, as many are seeing in real time with the FIRST STEP Act, the implementation of any legal changes can be almost as important as the legal changes themselves.  The high-profile case of 72-year-old Henry Montgomery, who won in the Supreme Court with his claim that the landmark Eighth Amendment decision in Miller v. Alabama must be applied retroactively, continues to demonstrate this fact.  Though granted a chance at parole after serving more than 50 years on a murder charge as a teenager in the early 1960s, Montgomery was denied parole in February 2018 as detailed in this prior post

But now I see this local news piece reporting on the interesting next chapter in this remarkable case under the headline "Louisiana parole board to rehear case of man central to Supreme Court ruling on juvenile lifers."  Here are the details:

The Louisiana parole board in April will rehear the case of the 72-year-old Baton Rouge man central to the 2016 U.S. Supreme Court decision on juveniles sentenced to life without parole, granting him a new hearing less than a year after the board first denied his release from prison.

Henry Montgomery, who is serving a life sentence for the 1963 killing of East Baton Rouge Sheriff's Deputy Charles Hurt, will again go before a three-person panel of the Louisiana Board of Pardons and Parole after it accepted his request for reconsideration, the board's appeal-like process to reconsider previous decisions given certain circumstances, like a mistake, misconduct or new evidence. Montgomery's reconsideration hearing has been set for April 11....

"Henry Montgomery has been in prison for over 55 years, longer than any other juvenile lifer in Louisiana," said Andrew Hundley, the executive director of the Louisiana Parole Project, a nonprofit that represents juvenile lifers in their parole hearings and helps them readjust to free society. "We feel strongly that he is a deserving candidate for a second chance and would be a productive member of society, if given the opportunity."

In Louisiana, there were about 300 so-called juvenile lifers in prison, like Montgomery, amounting to the nation's third highest such population. Since the decision in 2016, about 35 juvenile lifers have been released on parole, according to the nonprofit Louisiana Parole Project, all having met certain parameters set out by state law, including having served at least 25 years and completed educational and rehabilitative classes, and having received a unanimous vote from the parole board.

Montgomery, however, has remained in the minority of such cases that have come up for a parole hearing, denied his shot at freedom by the parole board last February, with two of the three board members voting no. The two members cited the small number of classes Montgomery had completed during his decades at Louisiana State Penitentiary at Angola.

Typically, prisoners have to wait two years after a denial to apply for a new parole hearing, but a decision reconsideration can be granted if an offender alleges, and the board substantiates, misconduct by a board member, a procedural error or significant new evidence that was not previously available, according to the parole board's policy on reconsideration. While Montgomery's lawyer, Keith Nordyke, filed their initial motion for reconsideration under seal, he said their argument focused on how the board misapplied the law relative to juvenile lifers when deciding Montgomery's case. A seasoned parole board attorney, Nordyke said he only files for reconsideration if he believes a major mistake had been made.

"It's a big deal," Nordyke said of the board's decision to grant Montgomery a new hearing, but noted that he does not believe the decision has any larger implications for other juvenile lifers' cases. "I really believe that all these cases are taken one-on-one, on their merit," Nordyke said.

Francis Abbott, the executive director of the Louisiana Board on Pardons and Parole, said the Montgomery reconsideration decision was made by looking at board policy, but Abbott declined to answer specific questions about the decision. The board policy, updated in 2017, outlines specific considerations for parole committee members when hearing the case of a youthful offender, saying that members "shall give great weight to the fact that youth are less responsible than adults for their actions."

This article from a few months ago from the same news source highlights how Louisiana trails other states like Michigan and Pennsylvania with large juvenile LWOP populations in the number of juve offenders who have secured parole since there Supreme Court determined that Miller had to be applied retroactively.

January 28, 2019 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, January 23, 2019

"Mass Incarceration Paradigm Shift?: Convergence in an Age of Divergence"

The title of this post is the title of this notable new article just posted to SSRN and authored by Mugambi Jouet. Here is its abstract:

The peculiar harshness of modern American justice has led to a vigorous scholarly debate about the roots of mass incarceration and its divergence from humanitarian sentencing norms prevalent in other Western democracies.  Even though the United States reached virtually world-record imprisonment levels between 1983 and 2010, the Supreme Court never found a prison term “cruel and unusual punishment” under the Eighth Amendment.  By countenancing extreme punishments with no equivalent elsewhere in the West, such as life sentences for petty recidivists, the Justices’ reasoning came to exemplify the exceptional nature of American justice.  Many scholars concluded that punitiveness had become its defining norm.

Yet a quiet revolution in Eighth Amendment jurisprudence, a wave of reforms, and other social developments suggest that American penal philosophy may be inching toward norms — dignity, proportionality, legitimacy, and rehabilitation — that have checked draconian prison terms in Europe, Canada, and beyond.  In 2010, the Supreme Court began limiting the scope of life imprisonment without parole for juveniles in a series of landmark Eighth Amendment cases.  Partly drawing upon the principles in these decisions, twenty-one states have abolished life without parole categorically for juveniles, providing them more protections than under the Eighth Amendment.  The narrow focus on the differences between juveniles and adults in the aftermath of these reforms obscured American law’s increasing recognition of humanitarian norms that are hardly age-dependent — and strikingly similar to those in other Western democracies.  Historiography sheds light on why the academy has largely overlooked this relative paradigm shift.  As America faced mass incarceration of an extraordinary magnitude, research in recent decades has focused on divergence, not convergence.

This Article advances a comparative theory of punishment to analyze these developments.  In the United States and throughout the West, approaches toward punishment are impermanent social constructs, as they historically tend to fluctuate between punitive and humanitarian concerns.  Such paradigm shifts can lead to periods of international divergence or convergence in penal philosophy.  Notwithstanding the ebb and flow of penal attitudes, certain long-term trends have emerged in Western societies.  They encompass a narrowing scope of offenders eligible for the harshest sentences, a reduction in the application of these sentences, and intensifying social divides about their morality. Restrictions on lifelong imprisonment for juveniles and growing social polarization over mass incarceration in the United States may reflect this movement.  However, American justice appears particularly susceptible to unpredictable swings and backlashes.  While this state of impermanence suggests that the reform movement might reverse itself, it also demonstrates that American justice may keep converging toward humanitarian sentencing norms, which were influential in the United States before the mass incarceration era.

Two patterns regarding the broader evolution of criminal punishment ultimately stand out: cyclicality and steadiness of direction.  The patterns evoke a seismograph that regularly swings up or down despite moving steadily in a given direction.  American justice may cyclically oscillate between repressive or humanitarian aspirations; and simultaneously converge with other Western democracies in gradually limiting or abolishing the harshest punishments over the long term.

January 23, 2019 in Assessing Miller and its aftermath, Scope of Imprisonment, Sentencing around the world, Who Sentences | Permalink | Comments (0)

Monday, January 07, 2019

Calling her life sentence "too harsh," Tennessee Gov grants commutation to Cyntoia Brown to be paroled after serving 15 years for juve killing

As reported in this local article, "Gov. Bill Haslam ordered an early release for Cyntoia Brown, a Tennessee woman and alleged sex trafficking victim serving a life sentence in prison for killing a man when she was 16."  Here is more about a high-profile clemency grant in a high-profile case:

Haslam granted Brown a full commutation to parole on Monday. Brown will be eligible for release Aug. 7, 15 years after she fatally shot a man in the back of the head while he was lying in bed beside her. She will stay on parole for 10 years.

“Cyntoia Brown committed, by her own admission, a horrific crime at the age of 16," Haslam said in a statement. "Yet, imposing a life sentence on a juvenile that would require her to serve at least 51 years before even being eligible for parole consideration is too harsh, especially in light of the extraordinary steps Ms. Brown has taken to rebuild her life. "Transformation should be accompanied by hope. So, I am commuting Ms. Brown’s sentence, subject to certain conditions.”

Brown will be required to participate in regular counseling sessions and to perform at least 50 hours of community service, including working with at-risk youth. She also will be required to get a job.

In a statement released by her lawyers, Brown thanked Haslam "for your act of mercy in giving me a second chance. I will do everything I can to justify your faith in me." "With God's help, I am committed to live the rest of my life helping others, especially young people. My hope is to help other young girls avoid ending up where I have been."

The governor's long-awaited decision, handed down during his last days in office, brought a dramatic conclusion to Brown's plea for mercy, which burst onto the national stage as celebrities and criminal justice reform advocates discovered her case. In his commutation, the governor called Brown's case one that "appears to me to be a proper one for the exercise of executive clemency." "Over her more than fourteen years of incarceration, Ms. Brown has demonstrated extraordinary growth and rehabilitation," the commutation said.

It was a remarkable victory for Brown after years of legal setbacks. Brown said she was forced into prostitution and was scared for her life when she shot 43-year-old Johnny Allen in the back of the head while they were in bed together. Allen, a local real estate agent, had picked her up at an East Nashville Sonic restaurant and taken her to his home.

Brown, now 30, was tried as an adult and convicted of first-degree murder in 2006. She was given a life sentence. Had Haslam declined to intervene, Brown would not have been eligible for parole until she was 69. The state parole board, which considered Brown's case in 2018, gave the governor a split recommendation, with some recommending early release and some recommending she stay in prison....

In recent years, celebrities have highlighted her case, fueling intense interest and a renewed legal fight to get her out of prison. Activists, lawmakers and celebrities, including Rihanna and Kim Kardashian West, have cited Brown's case as an illustration of a broken justice system. Brown was a victim herself, they said, and didn't deserve her punishment.

The Gov's official press release on this decision is available at this link.

January 7, 2019 in Assessing Miller and its aftermath, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Wednesday, December 26, 2018

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.

December 26, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Wednesday, December 12, 2018

Noting possible Miller follow-up cases on the latest SCOTUS relist list

I continue to wonder when the Supreme Court will take up a new case to clarify (or, ideally, extend) its Eighth Amendment jurisprudence limiting extreme prison sentences set forth in Graham and Miller.  The latest Relist Watch from John Elwood at SCOTUSblog spotlights a few cases that might be in the works as the next possible Miller follow-up:

Newton v. Indiana17-1511, and Mathena v. Malvo18-217, both raise the same issue involving the lawfulness of imposing a discretionary life sentence on a juvenile offender. In Miller v. Alabama, the Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”  Four years later, in Montgomery v. Louisiana, the court held that “Miller announced a substantive rule of constitutional law” that must be given retroactive effect in cases in which direct review was complete when Miller was decided.  Numerous state courts and the U.S. Court of Appeals for the 4th Circuit have held that Montgomery expanded the prohibition against “mandatory life without parole for those under 18 at the time of their crimes” to include discretionary life sentences as well; other courts have concluded that Montgomery did no such thing.  Petitioner Larry Newton, a prisoner, and Randall Mathena, the chief warden of Virginia’s high-security Red Onion State Prison, seek resolution of the issue.

As an aside, the respondent in Mathena v. Malvo will be familiar to anyone who lived in the D.C. area in fall 2002. When he was 17 years old, Lee Boyd Malvo, along with the much older John Allen Muhammad, committed a series of murders known as the “D.C. sniper” attacks. Currently, Malvo is serving multiple life sentences at Red Onion for his role as the triggerman in 10 of the shootings (Virginia executed Muhammad in 2009.).

Because the next SCOTUS conference is not until January 4, we will not know anything more on this front until next year.

December 12, 2018 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, December 06, 2018

Tennessee Supreme Court rule in high-profile case that juve life sentence allows for possible release after 51 years

As reported in this local article, "Tennessee Supreme Court said Thursday that Cyntoia Brown, a Nashville woman serving a life sentence in prison for a murder she committed at 16, could be eligible for release after she serves 51 years in prison." Here is more about a notable ruling in a high-profile case:

Brown, now 30, has been locked up since 2004, when she was convicted of shooting 43-year-old Nashville real estate agent Johnny Allen. Her legal team launched a challenge to her life sentence in the federal court system, pointing to a 2012 ruling from the U.S. Supreme Court saying that giving juveniles life sentences without parole was cruel and unusual in most cases.

The Sixth Circuit Court of Appeals, which is considering Brown’s case, said Tennessee sentencing laws are unclear. Some sections suggested Brown's conviction should lead to life without parole while others suggested she should eventually be released.

During a hearing this summer, Sixth Circuit judges suggested that if Brown would never be eligible for release under state law, her sentence could be overturned. The appeals court asked Tennessee's high court to weigh in before it made a final decision.

The Tennessee Supreme Court’s unanimous answer that Brown would eventually be eligible for release sometime after her 69th birthday could complicate her legal team’s argument.

In its eight-page decision released Thursday, the state Supreme Court determined that a defendant sentenced to life in prison for a first-degree murder committed on or after July 1, 1995, will become eligible after serving a minimum of 51 years in prison. The rule also applies to 14 other offenses including rape, kidnapping and aggravated child abuse. The opinion will be handed over to the federal appeals court for review.

Brown also is asking Gov. Bill Haslam for clemency. The state parole board, which was split in its recommendations, sent the case file to the governor's office in July....

At 16, Brown climbed into a pickup truck on Murfreesboro Pike with Allen, a stranger, drove to his home, got into his bed — then shot him in the back of the head with a .40-caliber handgun as he lay naked beside her. Brown's advocates say she was forced into prostitution in fear of her life and wronged by the legal system. Prosecutors say Brown killed the man to rob him. Following her trial in 2006, Brown was convicted of Allen's murder.

Pop stars such as Rihanna and Kim Kardashian West have taken to social media encouraging Brown's freedom.

The full ruling from the Tennessee Supreme Court is available at this link.  Given the SIxth Circuit's existing jurisprudence applying Miller, it now seems quite unlikely Brown will succeed with an Eighth Amendment challenge to her sentence.

December 6, 2018 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)