Sentencing Law and Policy

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.

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.

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.

"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.

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.

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

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

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

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

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

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:

• Virginia Legislature Moots D.C. Sniper, Jr. Case
• Malvo, Mootness, and Munsingwear

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.

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.

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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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.

"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.

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.

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.

"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.

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.

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."

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

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

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

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

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

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

"Miller v. Alabama and the Problem of Prediction"

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

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

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. Malvo, 18-217

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. Louisiana, 18-5924

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

 

Kahler v. Kansas, 18-6135

Issue: Whether 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.

Notable review of juvenile lifers in Tennessee

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Juvenile Life Without Parole in North Carolina"

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

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

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

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

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

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

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

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

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

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

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

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.

"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.

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.

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.

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. Indiana, 17-1511, and Mathena v. Malvo, 18-217, 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.

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.

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

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

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

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

Washington Supreme Court declares all juve LWOP cruel punishment and unconstitutional under state constitution

Last week, as noted here, the Washington Supreme Court struck down the state's death penalty based on its arbitrary administration in Washington v. Gregory. Today the same court brings us another big state constitutional opinion in Washington v. Bassett, No. 94556-0 (Wash. Oct. 18, 2018) (available here). The death penalty abolition, interestingly, was unanimous, while this latest opinion divided 5-4. Here is how the majority opinion starts:

At issue here is the constitutionality of sentencing juvenile offenders to life in prison without the possibility of parole or early release.  The State appeals a Court of Appeals, Division Two decision holding that the provision of our state's Miller-fix statute that allows 16- and 17-year-olds to be sentenced to life without parole violates the Washington Constitution's ban on cruel punishment.  Brian Bassett, recently resentenced to life without parole under the Miller-fix statute, argued at the Court of Appeals that juvenile life without parole is categorically unconstitutional.  The court adopted the categorical approach, rather than our traditional Fain proportionality test, and found that sentencing juvenile offenders to life without parole or early release constituted cruel punishment.  State v. Bassett, 198 Wn. App. 714, 744, 394 P.3d 430 (2017) (puhlished in part); State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980).  We affirm the Court of Appeals' decision and hold that sentencing juvenile offenders to life without parole or early release constitutes cruel punishment and therefore is unconstitutional under article I, section 14 of the Washington Constitution.

Here is how the dissent gets started:

The majority's decision to invalidate a provision of our Miller-fix statute, RCW 10.95.030(3)(a)(ii), and to categorically bar the imposition of a juvenile life without parole (LWOP) sentence purports to rest on article I, section 14 of the Washington State Constitution.  However, it offers no basis in state law but is simply a reinterpretation of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).  More precisely, the majority takes Miller's federal constitutional requirement — that a sentencing court consider youth and its attendant characteristics as mitigating factors in exercising sentencing discretion to impose LWOP — and uses it to categorically bar the exercise of such discretion under the state constitution.  Not only is this contrary to the holding in Miller itself, which does not categorically bar LWOP sentences for juvenile homicide offenders, it also departs from state precedent rejecting similar constitutional challenges and upholding judicial sentencing discretion.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Spotlighting challenges surrounding an Eighth Amendment jurisprudence defining adulthood at 18

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

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

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

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

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

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

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

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

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

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

The War on Kids Post #5

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

Put kids back in juvenile court

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

Provide age-appropriate sentencing for juveniles

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

Argue against incarceration for kids as a general matter

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

Create periodic, youth-informed panels for juvenile sentencing review

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

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

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

The War on Kids Post #4

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

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

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

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

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

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

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

The War on Kids Post #3

As Doug’s readers know, in recent years the Supreme Court has limited the extent to which states can expose kids to the most serious sanctions on the books. In a series of cases known as the Miller trilogy (Roper v. Simmons, Graham v. Florida, and Miller v. Alabama) the Court has held that states cannot execute people for juvenile crimes (Roper); that the Eighth Amendment bars life without parole for juvenile, non-homicide offenders (Graham); and that it similarly precludes mandatory life without parole even for juveniles who commit homicide (Miller). With these decisions, the Court has underscored the idea that “kids are different” for constitutional purposes and state sentencing practices must reflect that fact.

While I address these decisions in some detail in The War on Kids, I know that most of Doug’s readers are familiar with the basics of these decisions and the social science on which they relied. So I want to focus this post on the implementation of the Miller trilogy.

Implementing the Miller trilogy has been messy. First, there was the question of who benefitted from these cases. Roper and Graham were clearly retroactive decisions – they took off the table a form of punishment as it applied to a category of individuals – and each case affected a relatively small pool of prisoners. At the time of Roper, there were 72 death row inmates who had been convicted as juveniles, and according to the Supreme Court, there were 129 juvenile non-homicide offenders serving LWOP at the time of Graham.

Miller, on the other hand, called into question the validity of approximately 2,500 cases nationwide. After some initial confusion among lower courts, the Supreme Court clarified in Montgomery v. Louisiana that the Miller decision applied retroactively. As a result, those 2,500 prisoners whose cases were squarely within the purview of Miller became eligible for some modification of their sentence. (I’ll return in my next post to the Montgomery Court’s suggested and yet problematic method for compliance, parole). In addition, youth offenders across the nation who had been sentenced to de facto life sentences or to sentences of life with parole began to seek judicial relief, arguing that the reasoning of Miller applied to their cases too. In sum, there are now thousands of individuals across the country with legitimate claims to relief under the Miller trilogy.

Second, states have grappled with how to implement a Miller remedy: what should it be? and who should provide it? In recent years, many state legislatures have banned JLWOP. In 2011, the year before Miller, only five states banned JLWOP; today 20 states and D.C. ban the sentence. At the same time, states like West Virginia and Nevada have enacted legislation that not only bans JLWOP, but also permits ongoing, periodic review for youth serving lengthy terms and requires sentencing judges to consider the mitigating aspects of youth. Courts have also focused on the rehabilitative ideals of the Miller trilogy and have struck down lengthy term-of-year sentences as the de facto equivalent of JLWOP. The Massachusetts high court has banned JLWOP and held that youth offenders seeking parole have the right to counsel and expert assistance. The Iowa Supreme Court found that the Miller rationale precludes any mandatory sentence for youth. In sum, many courts and legislative bodies are grappling with when youth offenders should receive a second-look, what term of year sentence is appropriate in lieu of LWOP, and what procedural safeguards apply post-Miller to inmates seeking relief.

As I discuss in the book, this implementation process has been slow and the results have been mixed. Not all states have embraced the science and reasoning behind the Miller trilogy. For example, Michigan incarcerates 363 of the roughly 2,500 inmates nationwide serving JLWOP. Under Miller, those 363 individuals should receive a new sentence that takes into account their youth and other relevant mitigating factors. Moreover, the Miller Court expressly said that, given what we know about adolescent brain development, “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Yet prosecutors in Michigan are seeking to resentence more than half of these individuals to LWOP over great protest from the defense community. Some prosecutors in counties of Pennsylvania and Louisiana have taken equally harsh positions on resentencing JLWOP inmates. At the same time, courts have been split on the question whether Graham and Miller apply to aggregate juvenile sentences that result in a death-in-custody term.

And prisoners feel the geographic disparity post-Miller. Consider Florida, where Terrence Graham originally received JLWOP for the attempted armed robbery of a barbeque restaurant. After the Supreme Court found his JLWOP sentence unconstitutional in 2010, he received a resentencing hearing and a 25-year sentence for his non-homicide crime. In contrast, juvenile homicide offenders in Massachusetts are now parole eligible after serving 15 years and they enjoy a number of procedural rights in the parole process. Post-Miller it is clear that justice can be slow and uneven as a function of federalism.

In my next post, I’ll focus specifically on state attempts to use parole in order to comply with Miller.

VA Asks Supreme Court for Delay in Resentencing Malvo

As reported in this Washington Post piece, Virginia is asking the Supreme Court to delay the resentencing of convicted Beltway sniper, Lee Boyd Malvo. Here is more:

Virginia on Thursday asked the Supreme Court to put on hold a lower court’s decision that requires new sentences for Beltway sniper Lee Boyd Malvo, who was confined to life imprisonment for his deadly teenage rampage.

The commonwealth said it wants the high court to overturn a decision by a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond. But in the meantime, it asked the court to simply delay any resentencing process.

“This case involves one of the most notorious serial murderers in recent history,” Virginia Solicitor General Toby J. Heytens wrote in a petition to Chief Justice John G. Roberts Jr., who hears emergency applications resulting from 4th Circuit decisions.

“The issue presented by this stay application is whether Virginia will be required to commence (and potentially conclude) the process of resentencing Malvo — risking additional trauma to his numerous victims and their families and exposing the Commonwealth to significant cost — before” the Supreme Court can decide whether the 4th Circuit got it right.

A deep dive into various big and little juvenile life without parole stories

The Dublin Review has published this very lengthy discussion of juvenile life without parole sentences under the simple headline "A different season." The lengthy piece is authored by Andrew Purcell, and it cannot be readily summarized. Here is one snippet:

Many of Pennsylvania’s district attorneys have responded to the Supreme Court’s Montgomery decision by striking plea deals with the longest-serving prisoners. Others, in conservative counties, have not. By late September 2017, 173 of the state’s 517 juvenile lifers had been re-sentenced, and 77 paroled for time served. Most of the released prisoners are from Philadelphia, creating a small community of men with the shared experience of being locked up their entire adult lives, adapting to a world that has moved on without them. Courtney ‘Juan’ Boyd, recently released after serving thirty-six years, was calling John to ask about a re-sentencing hearing the previous night for a prisoner called Andre Martin.  At fifteen, Martin shot a police officer in the head from a window at the Wilson Park projects.  He had forty-one years in already, and the prosecution was seeking sixty to life, supported at the hearing by the dead cop’s family and a roomful of police officers.  Judge Barbara McDermott gave him forty-four to life. In three years, the opposing sides will meet again at an equally charged parole hearing, to argue about whether or not Martin should be released.

Each of the fifty states has responded differently to the Montgomery v Louisiana ruling, and there are also variations within states, as district attorneys interpret the concept of ‘permanent incorrigibility’. In Michigan, for instance, prosecutors initially sought new life-without-parole sentences for 236 of the 363 men and women serving mandatory life terms for crimes committed as minors, a clear deviation from the Supreme Court’s intent to reserve the punishment for ‘the rarest of juvenile offenders’. The Oakland County DA has asked for life without parole in forty-four of forty-nine cases; ‘These are young Hannibal Lecters,’ county sheriff Michael Bouchard told the press. In Missouri, teenage lifers are now eligible for parole once they have spent twenty-five years in prison, but of twenty-three who have applied, twenty have been denied. In Maryland, all 271 juvenile lifers are parole-eligible, but no such prisoner has been released in two decades.

All over the country, lawsuits are establishing whether and how Montgomery should affect discretionary sentences. ‘We think the Montgomery standard is impossible [for prosecutors] to beat, in that everyone is capable of rehabilitation given the proper support,’ said Brooke McCarthy of the Juvenile Law Centre. ‘To say that you can never fix someone in the future, no matter what, is such an incredibly difficult standard to reach. Some district attorneys have gotten clever … so rather than asking for life without parole they’re asking for fifty-, sixty-, seventy-five-year minimums.’

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Originalism and the Common Law Infancy Defense"

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

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

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

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

Fourth Circuit affirms ruling that DC sniper Lee Malvo entitled to resentencing due to Miller and Montgomery

Last year, as reported in this prior post, a US District Judge concluded that infamous sniper Lee Boyd Malvo was entitled to re-sentencing as a consequence of Supreme Court rulings precluding mandatory life sentences for juvenile murderers.  Yesterday, the Fourth Circuit affirmed that decision in a unanimous panel ruling in Malvo v. Mathena, No. 17-6746 (4th Cir. June 21, 2018) (available here). This ruling gets started this way: 

In Virginia in 2004, a defendant convicted of capital murder, who was at least 16 years old at the time of his crime, would be punished by either death or life imprisonment without the possibility of parole, unless the judge suspended his sentence.  After a Virginia jury convicted Lee Boyd Malvo of two counts of capital murder based on homicides that he committed in 2002 when he was 17 years old, it declined to recommend the death penalty, and he was instead sentenced in 2004 to two terms of life imprisonment without parole, in accordance with Virginia law.  Thereafter, Malvo, again seeking to avoid the death penalty, pleaded guilty in another Virginia jurisdiction to one count of capital murder and one count of attempted capital murder — both of which he also committed when 17 years old — and received two additional terms of life imprisonment without parole.

After Malvo was sentenced in those cases, the Supreme Court issued a series of decisions relating to the sentencing of defendants who committed serious crimes when under the age of 18.  It held that such defendants cannot be sentenced to death; that they cannot be sentenced to life imprisonment without parole unless they committed a homicide offense that reflected their permanent incorrigibility; and that these rules relating to juvenile sentencing are to be applied retroactively, meaning that sentences that were legal when imposed must be vacated if they were imposed in violation of the Court’s new rules.  See Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 567 U.S. 460 (2012); Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

In these habeas cases filed under 28 U.S.C. § 2254, we conclude that even though Malvo’s life-without-parole sentences were fully legal when imposed, they must now be vacated because the retroactive constitutional rules for sentencing juveniles adopted subsequent to Malvo’s sentencings were not satisfied during his sentencings.  Accordingly, we affirm the district court’s order vacating Malvo’s four terms of life imprisonment without parole and remanding for resentencing to determine (1) whether Malvo qualifies as one of the rare juvenile offenders who may, consistent with the Eighth Amendment, be sentenced to life without the possibility of parole because his “crimes reflect permanent incorrigibility” or (2) whether those crimes instead “reflect the transient immaturity of youth,” in which case he must receive a sentence short of life imprisonment without the possibility of parole.  Montgomery, 136 S. Ct. at 734.

Split Michigan Supreme Court rejects Sixth Amendment challenge to state's new juve LWOP statute

Ruling 4-2, the Michigan Supreme Court issued a lengthy opinion yesterday upholding the procedures of its new juvenile sentencing statute.  The majority opinion in Michigan v. Skinner, No. 152448 (Mich. June 20, 2018) (available here), gets started this way:

At issue here is whether MCL 769.25 violates the Sixth Amendment because it allows the decision whether to impose a sentence of life without parole to be made by a judge, rather than by a jury beyond a reasonable doubt.  We hold that MCL 769.25 does not violate the Sixth Amendment because neither the statute nor the Eighth Amendment requires a judge to find any particular fact before imposing life without parole; instead, life without parole is authorized by the jury’s verdict alone.  Therefore, we reverse the judgment of the Court of Appeals in Skinner and affirm the part of Hyatt that held that “[a] judge, not a jury, must determine whether to impose a life-without-parole sentence or a term-of-years sentence under MCL 769.25.”  People v Hyatt, 316 Mich App 368, 415; 891 NW2d 549 (2016).  However, we reverse the part of Hyatt that adopted a heightened standard of review for life-without-parole sentences imposed under MCL 769.25 and that remanded this case to the trial court for it to “decide whether defendant Hyatt is the truly rare juvenile mentioned in [Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012)] who is incorrigible and incapable of reform.” Hyatt, 316 Mich App at 429. No such explicit finding is required.  Finally, we remand both of these cases to the Court of Appeals for it to review defendants’ sentences under the traditional abuse-of-discretion standard of review.

The dissenting opinion gets started this way:

There is much in the majority opinion with which I agree.  For example, I agree that if MCL 769.25 can reasonably be construed in a constitutional manner, we should so construe it.  And I generally agree with the majority’s discussion of the applicable legal principles.  But I respectfully dissent from the majority’s conclusion that there are two reasonable ways of interpreting MCL 769.25, one of which is constitutional.  Reading the statute as “murder-plus” would violate the Sixth Amendment under Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), and its progeny.  And I disagree with the majority that reading the statute as “murder-minus” cures all its constitutional deficiencies. In my view, reading the statute as murder-minus renders it unconstitutional under the Eighth Amendment as interpreted by the United States Supreme Court in Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and Montgomery v Louisiana, 577 US ___; 136 S Ct 718; 193 L Ed 2d 599 (2016). Read either way, MCL 769.25 suffers from a constitutional deficiency.