Sentencing Law and Policy

"The Illusory Eighth Amendment"

The title of this post is the title of this notable new article by John Stinneford now available via SSRN. Here is the abstract:

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology.  In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation.  In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a substitute for constitutional interpretation.  A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation.  Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication.

This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation.  When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning.  Such rules also narrow the scope of the Constitution itself, denying protection to any claimant who does not come within the rules.  The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it.

NACDL rolls out state-by-state "excessive sentencing" proportionality litigation resource

I am extraordinarily proud and excited to report that, as detailed via a new NACDL news release, that the National Association of Criminal Defense Lawyers is now offering, "as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."

This resource has been given the name Excessive Sentencing: NACDL’s Proportionality Litigation Project its main page can be accessed via this link.  Here is a bit more from the NACDL press release about the resource (and also my role therein):

Development of this new resource was inspired in part by the Supreme Court’s recent landmark constitutional decisions in Graham v. Florida, 130 S. Ct. 2011 (May 17, 2010), and Miller v. Alabama, 132 S. Ct. 245 (June 25, 2012), which pronounced new Eighth Amendment limits on when and how states can impose life without parole prison terms on juvenile offenders.  The state profiles and related materials provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012.  They are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.

The primary academic supervisor of this resource is Professor Douglas A. Berman of The Ohio State University Moritz College of Law.... Professor Berman intends to update these materials regularly as developments in the law warrant and new information becomes available.

On the project’s landing page –- which can be accessed here -- there is a free, nearly 90-minute sentencing skills webinar featuring Professor Berman and Stephen Hardwick, an assistant public defender in Columbus, Ohio....

In addition, the project landing page has this additional account of what this resource now provides and hopes to help achieve:

The state profiles and related materials, which were prepared by recent law school graduates under the supervision of Professor Douglas A. Berman, provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. Unsurprisingly in the wake of Graham and Miller, there has been a significant increase in state-level litigation concerning lengthy prison terms, especially for juvenile offenders. The expectation is to have Professor Berman, in conjunction with the pro bono efforts other lawyers and aided especially by NACDL members and others who utilize this resource, revise and update these profiles regularly.

The profiles and charts are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.  The Supreme Court has repeatedly stressed that the Eighth Amendment’s “scope is not static [but] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958); state-level doctrinal and jurisprudential developments have thus always had heightened federal constitutional significance in this area of law.  Moreover, state policy-makers and state jurists have long understood that the Eighth Amendment sets only a minimum constitutional floor limiting only the most extreme punishment policies and practices: state lawmakers and judges can and should feel not merely free, but institutionally obliged, to consider developing their own distinct legal limits on unduly harsh sentencing terms based on distinct state-level requirements and needs.  The profiles posted here demonstrate that, even though there is some notable convergence in state-level proportionality doctrines, there are also some important variations and innovations concerning how states seek to protect its citizens from extreme or excessive criminal punishments.

I plan to discuss this web resource and the broader NACDL projectin a series of posts over the next few weeks and months.  For now, I just hope everyone will take a look at what we have posted (and perhaps begin commenting on what other materials might be usefully assembled and linked in this space).

"Is 100 Years a Life Sentence? Opinions Are Divided"

The title of this post is the headline of this notable new Sidebar column in the New York Times by Adam Liptak.  Hard-core sentencing fans should realize from the title that this is a story about one of the many doctrinal questions gurgling in lower courts three years after a landmark Eighth Amendment SCOTUS ruling.  Here are excerpts from the column:

If people who are too young to vote commit crimes short of murder, the Supreme Court said in 2010, they should not be sentenced to die in prison.  That sounds straightforward enough. But there are two ways to understand the decision, Graham v. Florida.

One is formal. The court may have meant only to bar sentences labeled “life without parole.”  On that understanding, judges remained free to impose very long sentences — 100 years, say — as long as they were for a fixed term rather than for life....

The other way to understand the decision is practical.  If the Eighth Amendment’s prohibition of cruel and unusual punishment requires that young offenders be left with a glimmer of hope that they may someday be released, it should not matter whether they were sentenced to life in so many words or as a matter of rudimentary actuarial math.

The lower courts are split on how to interpret the Graham decision, and the Supreme Court seems to be in no hurry to answer the question.  Last week, the justices turned away an appeal from Chaz Bunch of Ohio, who was convicted of kidnapping and raping a woman in a carjacking when he was 16.  He was sentenced to 89 years.  Even assuming he becomes eligible for early release, he will be 95 years old before he can leave prison.

The United States Court of Appeals for the Sixth Circuit, in Cincinnati, upheld the sentence, even as it acknowledged that there were two ways to approach the matter.... Until the Supreme Court speaks, Judge Rogers wrote, there is no “clearly established federal law” to assist Mr. Bunch, who was challenging his state conviction in federal court.

Applying the reasoning of the Graham decision to long fixed sentences, Judge Rogers added, “would lead to a lot of questions.”  An appeals court in Florida last year listed some of them in upholding a 76-year sentence meted out to Leighdon Henry, who was 16 when he committed rape.

“At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: 20, 30, 40, 50, some lesser or greater number?” Judge Jacqueline R. Griffin wrote for the court.

Mr. Henry is black and was born in 1989.  The life expectancy of black males born that year was 64, according to the Centers for Disease Control and Prevention. Life expectancy in prison is shorter than it is outside. Wherever the line is, then, a 76-year sentence would seem to be past it.  “Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria?” Judge Griffin asked.

That is a reasonable question.  But Bryan Stevenson, the executive director of the Equal Justice Initiative in Montgomery, Ala., said it was the wrong one.  “The idea isn’t to get the person as close to death as possible before you deal with the possibility of their release,” he said.  It is, rather, to give juvenile offenders a sporting chance, perhaps after decades in prison, to make the case that they deserve to get out, he said....

The number of juvenile offenders serving de facto life terms because of very long sentences is probably in the hundreds.  Some of the appeals court judges who have upheld such sentences did not sound enthusiastic about the task.  “Without any tools to work with, however, we can only apply Graham as it is written,” Judge Griffin wrote.  “If the Supreme Court has more in mind, it will have to say what that is.”

Seeking advice on (and cites to) thoughtful state Eighth Amendment rulings

In all likelihood, we still have a few more weeks to wait for Supreme Court rulings in in Jackson v. Hobbs and Miller v. Alabama, the two big pending Eighth Amendment cases concerning the constitutionality of states sentencing 14-year-old killers to life without the possibility of parole.  In part because I hope the coming rulings in Jackson and Miller might spark and provide a foundation for a new round of interesting constitutional litigation over extreme prison sentences (and not just for young offenders), I am interested in gathering information about the most interesting and thoughtful Eighth Amendment rulings coming from state courts in recent years (particularly in the wake of the Graham ruling).

I am aware of some leading recent state court Eighth Amendment rulings in states like California and Florida and Iowa, all of which had to swiftly and directly confront the import and impact of the Graham ruling for a number of juvenile offenders serving very long prison terms for nonhomicide offenses.  But I know I have seen a few interesting and thoughtful post-Graham rulings concerning limits on adult sentences imposed by the Eighth Amendment (and/or similar state constitutional provisions) from state supreme courts in Ohio and South Dakota and others states.  And I suspect there are (lots of?) notable rulings from lower state appellate courts (both affirming and reversing long prison sentences) that I have not seen.

Ergo this "bleg" for help from readers:  Can and will folks via the comments to this post (or via an e-mail) suggest examples with cites/links to what they consider the most interesting and thoughtful Eighth Amendment rulings coming from state courts in recent years?

For purposes of this bleg, I am most interested in non-capital cases and especially those rulings involving challenges to adult sentences.  But I am happy to hear about just about any recent significant state court rulings (for or against a defendant) that thoughtfully engage with modern Eighth Amendment doctrines and/or with comparable state constitutional provisions.  Thanks!

"Proportionality and Parole"

The title of this post is the title of this new article by Professor Richard Bierschbach, which is now available via SSRN.  Here is the abstract:

Commentators analyzing the Supreme Court’s watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping off point.

Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the state to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, individualized, and ultimately more reliable sentencing determinations. I expose this procedural and institutional side of parole’s constitutional significance, situate it within the constitutional landscape of sentencing, and sketch some of its implications for the future of sentencing regulation.

"No death penalty for 17-year-old accused of killing parents, partying"

The title of this post is the headline of this press report on the constitutional sentencing limits on the punishment that can be received by an already notorious teenage murder suspect.  Here are the details of what is the latest high-profile Florida crime (largely because of how the defendant apparently "celebrated" killing his parents):

Because of his age, 17-year-old Tyler Hadley will not face the death penalty if he’s convicted in the brutal slaying of his parents, officials with the State Attorney’s Office confirmed Tuesday.  If he's eventually convicted ... Hadley could be ordered to serve a maximum penalty of life in prison.

Hadley, the Port St. Lucie teen accused of posting an invitation to a party on Facebook, then killing his parents with a hammer, made his first appearance before a judge Tuesday morning.

Chief Assistant State Attorney Tom Bakkedahl said afterwards that the state's ultimate punishment can't be considered here because several years ago the U.S. Supreme Court determined "it would be cruel and unusual to subject minors to the death penalty."

"It’s simply off the table; it’s not a viable option," Bakkedahl said Tuesday. "Despite the fact that the case may otherwise in all respects warrant the death penalty, we are prohibited from seeking it as a result of him being approximately six-months short of his 18th birthday."...

Police accuse Hadley of killing his parents Blake and Mary Jo Hadley. Their bodies were found in their locked bedroom in the 300 block of Northeast Granduer Avenue on Sunday morning.  Hadley was initially arrested as a juvenile, but Monday he was charged as an adult of two counts of 2nd-degree murder with a weapon and is being held on no bond at the St. Lucie County jail....

Bakkedahl, who was attending the Hadley autopsies at the Medical Examiner’s office in Fort Pierce, said state law requires the case be presented to a grand jury in order to seek first-degree murder charges.

Based on the criminal investigation conducted by Port St. Lucie police, Bakkedahl said evidence gathered supports charges of first-degree murder. "I think it’s going to be a clear first-degree murder case," he said.  "The only difference between this and any other first-degree murder case is as a result of his age, he does not face the prospect of the death penalty."...

Early Sunday morning, Port St. Lucie police received an anonymous tip indicating a 17-year-old might have killed his parents and the bodies had been in the home during a party attended by as many as 60 people. Police went to the home about 4:20 a.m. Sunday. There police found a hammer between the bodies of Mary Jo Hadley, 47, and 54-year-old Blake Hadley. Tyler Hadley was arrested late Sunday....

"It was a merciless killing. It was brutal and the Facebook invitation — a party to have your friends and 40 to 60 people come over — I think speaks for itself," Port St. Lucie police Capt. Don Kryak said, standing at the scene Monday.  "The blunt force trauma to the head and torso with a 22-inch framing hammer can effect a considerable amount of injury."

Police believe Tyler Hadley acted alone, but officials don't know a motive. The former St. Lucie West Centennial High School student made no incriminating statements.

Kryak said the Facebook party invitation was posted about 1:15 p.m. or 1:30 p.m. Saturday — before the homicides occurred. Investigators suspect Tyler Hadley's mother was killed first, and then his father, and that the slayings happened outside the master bedroom door of the single-story home in the 300 block of Northeast Granduer Avenue.

In addition to providing a high-profile example of the impact of the Supreme Court's Roper limit on the application of the death penalty, I can imagine this disturbing case having some indirect impact on post-Graham legislative and litigation efforts to prevent LWOP sentences for even juvenile killers.

"The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"

The title of this post is the title of this new piece by a doctor in a forthcoming medical journal which in now available via SSRN.  Here is the abstract:

In the 21st century’s first decade, the U.S. Supreme Court has set two key constitutionally-based limits to punishment of juveniles.  In Roper v. Simmons (2005) the Court barred imposition of the death penalty for crimes committed by juveniles, and in Graham v. Florida (2010) it forbade life imprisonment without possibility of parole (LWOP) for juveniles who commit non-homicide offenses. Both decisions held these penalties violated the Eight Amendment’s prohibition on cruel and unusual punishment because they were disproportionate given juveniles’ distinctive cognitive, psychosocial and neuroanatomical characteristics.  Roper and Graham reflect two decades’ long trends, one legal and one clinical, whose interaction will control the legal system’s approach to juvenile justice for some time.

Since 1980 more children, at younger ages, became legally susceptible to much harsher punishments (through trial as adults), yet over the same period clinical skepticism concerning the cognitive, psychosocial, and neuroanatomical development of youth that was required for the legal process, and the appropriateness of these sentences, grew. In Roper and Graham the Court resolved this paradox by siding clearly with clinicians . The Court’s adoption of a developmental model of culpability, with heavy reliance on cognitive psychological research concerning risk-taking, susceptibility to peer pressure and mutability of character, as well as MRI and fMRI studies of adolescent and young adult brain development, may produce future challenges to lengthy juvenile sentences, to broad provisions allowing transfer of juveniles for trial as adults and even possibly to younger juveniles’ competence to stand trial.

Oregon Supreme Court says federal law does not allow denial of local gun permits for state marijuana users

As detailed in this AP report, today the "Oregon Supreme Court unanimously ruled Thursday that a retired school bus driver can have her medical marijuana and a concealed handgun, too." Here are the basics:

The ruling upheld previous decisions by the Oregon Court of Appeals and circuit court that determined a federal law barring criminals and drug addicts from buying firearms does not excuse sheriffs from issuing concealed weapons permits to people who hold medical marijuana cards and otherwise qualify. "We hold that the Federal Gun Control Act does not pre-empt the state's concealed handgun licensing statute and, therefore, the sheriffs must issue (or renew) the requested licenses," Chief Justice Paul De Muniz wrote in the ruling issued in Salem.

Cynthia Willis, one of four plaintiffs, welcomed the ruling. "I feel like a big girl now," Willis said. "I feel like a real human being now, not just a source of revenue to the county."

Leland Berger, the attorney representing Willis and other medical marijuana patients in the state, said the ruling was important in the continuing national debate over making marijuana legal to treat medical conditions. "I am hopeful we will end cannabis prohibition the same way we ended alcohol prohibition, which was by refusing to enforce federal laws within the state," Berger said....

Willis, 54, has carried a Walther .22-caliber automatic pistol for personal protection since a messy divorce several years ago. She volunteers at a Medford smoke shop that helps medical marijuana patients find growers, and teaches how to get the most medical benefit from the pound-and-a-half of pot that card carriers are allowed to possess. She uses marijuana cookies, joints and salves to treat arthritis pain and muscle spasms.

Elmer Dickens, a lawyer representing the sheriffs of Washington and Jackson counties, said the ruling provided needed clarification on whether the defendants should follow federal or state law on what has been a cloudy issue. Dickens did not anticipate an appeal to the U.S. Supreme Court, because the ruling focused so tightly on state law. "Every sheriff knows now what the rules are, and we got what we needed," he said.

The ruling also said Congress has no constitutional authority to require states to use gun licensing statues to enforce a federal law like the prohibition on handguns for marijuana users....

Oregon Attorney General John Kroger had argued in favor of the medical marijuana patients and against the sheriffs of Jackson and Washington counties who withheld handgun permits....

Nearly 40,000 Oregonians hold medical marijuana patient cards, with more than 36,000 of them for severe pain, according to Oregon Medical Marijuana Program statistics. Another 22,000 are registered as growers, and 21,000 as caregivers.

The unanimous ruling from the Oregon Supreme Court is available at this link.  It will be interesting to see if any federal officials either at the Justice Department or in Congress have any official reaction to this ruling or the broader issues or "lawful" possessors of pot and guns.  Because the pot use issue skews left and the gun possession issue skews right politically, I suspect that most federal folks and politicians will just seek to avoid having to discuss this ruling and the intersection of drug policy and gun policy in states like Oregon that tend to favor individuals on both fronts over government control.

"Graham v. Florida: Justice Kennedy’s Vision of Childhood and the Role of Judges"

The title of this post is the title of this new piece authored by Professor Tamar Birckhead and available via SSRN. Here is the abstract:

This short article examines Graham v. Florida, the United States Supreme Court decision holding that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime.  This article argues that Justice Anthony Kennedy’s majority opinion is grounded not only in Roper v. Simmons, which invalidated the death penalty for juvenile offenders on Eighth Amendment grounds, and Kennedy v. Louisiana, which held that the Eighth Amendment prohibited the death penalty for the offense of rape of a child, but in Establishment Clause cases set in the context of public schools and Fourteenth Amendment Due Process Clause cases upholding parental notification requirements for teenagers seeking abortions.

Whereas many journalists and scholars consider Justice Kennedy a “legal pragmatist” who lacks an overarching philosophy to guide his decision-making, in each of these opinions his view of childhood and the proper role of judges is consistent: children and adolescents are unformed works in progress, in the midst of both character and brain development, who are particularly susceptible to direct as well as indirect forms of coercion; as a result, when determining what liberty interests are protected by the United States Constitution, the role of judges and the courts is to ensure that youth mitigates rather than aggravates. Further, although juvenile justice advocates have heralded Graham as a clear victory, the opinion may raise as many questions as it seeks to answer.

Media reports on public support for Atkins, Graham, Heller and Roper

As detailed in this new press story, which is headlined "Public backs most high court rulings," a recent report suggests that the general public is generally supportive of the Supreme Court's recent pro-defendant Eighth Amendment rulings and pro-gun Second Amendment ruling.  Here are snippets from the press story:

The Supreme Court shifted to the right four years ago when conservative Justice Samuel A. Alito Jr. succeeded moderate Sandra Day O’Connor.  And if American public opinion is the measure, the Roberts court has made the right call in most of its major decisions since then, according to a recent study that asked respondents about cases.

A strong majority favored conservative rulings that prohibited “partial-birth” abortions, upheld a homeowner’s right to have a gun, and required voters to show photo identification.

The majority also supported liberal rulings that said environmental regulators could restrict the carbon pollution linked to global warming and that struck down state laws that put juvenile criminals in prison for life without hope for parole....

Columbia University law professor Nathaniel Persily said the court historically has been “to the left of the public” on issues that attract attention, such as crime, religion and affirmative action. Along with Harvard political science professor Stephen Ansolabehere, he set out to survey the public’s view of actual cases.  Their Constitutional Attitudes Survey asked more than 1,600 respondents in 2009 and 2010 about issues that were before the Supreme Court....

Overall, the court’s current and nuanced position on the death penalty and abortion is in line with public opinion, the survey found.

A majority supports the death penalty for murder, and the court has upheld capital punishment.  The public also agreed with the rulings that ended the death penalty for those who are mentally handicapped (in 2002) and for those under age 18 at the time of their crimes (in 2005).

On abortion, the public supports –- by a 61 percent to 38 percent majority –- the Roe v. Wade ruling that set forth the right to an abortion, but it also supports regulations and restrictions, including limits on late-term abortions.

At Nathaniel Persily's webpage, I found what appears to be the July 2010 report on the Constitutional Attitudes Survey upon which this press article is based.  This 113-page "Constitutional Attitudes Field Report" (which is available for download below) is a bit hard to sort through, and I was not able to find the results showing public agreement with the 2010 Graham LWOP decision.  Also, though not reported by the press, it appears that the survey also revealed strong disagreement with the Supreme Court's 2008 Kennedy decision prohibiting the death penalty for child rapists.

Download Constitutional Attitudes Field Report_Client-1

UPDATE:  Via a helpful e-mail, Professor Persily has clarified where the Graham results can be found and what they showed:

We asked the following question (page 99 of the codebook):

In general do you agree or disagree with the following statements: A state should be allowed to sentence for life in prison a person under 18 years of age for armed burglary.

Stongly agree 10.9%

Agree Somewhat 24.6%

Disagree Somewhat 38.0%

Strongly disagree 23.4%

Refused to answer 3.1%

Looking back playfully before looking forward to the new SCOTUS term

I have not spent too much time on Supreme Court previews recently (partially because Ryder Cup previews are more timely and somewhat more interesting these days).  But, especially with the new Term about to start, I had extra fun reading this great "revue" of last SCOTUS Term from the pen of Jon Elwood, which is titled "What Were They Thinking -- The Supreme Court in Revue, October Term 2009." Here are a couple of amusing paragraphs from the revue focused on the Court's Eighth Amendment work last Term:

If you noticed that society refilled the tank without being asked the last time it borrowed the car, you’re not alone in marking the progress of a maturing society.  Justice Kennedy has been sufficiently impressed that he’s recently voted (and sometimes written opinions) to render unconstitutional previously lawful sentencing practices under the Eighth Amendment’s Cruel and Unusual Punishments Clause — think Atkins v. Virginia (2002) (holding it unconstitutional to execute mentally retarded offenders); Roper v. Simmons (2005) (holding it unconstitutional to execute defendants who murdered while under age 18), and to a lesser extent (because the Court had already so held regarding rape of an adult), Kennedy v. Louisiana (2008) (holding capital punishment cannot be imposed for rape of a child).  Kennedy reprised his role as a one-man evolving standard of decency in Graham v. Florida, which is one of those opinions that people seem to forget when they’re bemoaning the arch-conservative Roberts Court.  The Court held 6-3 that the Cruel and Unusual Punishments Clause does not permit imposing a sentence of life without parole on a juvenile offender convicted of a nonhomicide offense.  The Court noted that while 37 states permit such sentences, only 11 impose them as a practical matter, and they were mostly states without a first-rate daily paper or bookstore.  Thus, there was a national consensus against imposing sentences of life parole on such offenders.

The sort of numerical analysis that is reserved for Eighth Amendment cases, movie-studio accounting, and the federal budget alone would have been enough to cause TMJ-aggravating tooth-gnashing on the right, but Kennedy was not done yet.  In a selfless effort to promote renewable energy, Kennedy ended his opinion by noting that the Court’s conclusion was supported by the fact that the sentencing practice was “rejected the world over.”  The resulting geysers of steam emanating from conservatives’ ears promises to be a significant source of thermal energy for years to come.

Effective review of how Florida is dealing with the aftermath of SCOTUS Graham ruling

Today's Miami Herald has this effective and interesting piece discussing how the state is trying to deal with the Supreme Court's Eighth Amendment ruling in Graham concerning juve LWOP sentence for nonhomicide crimes.  The article is headlined "Ruling on young, violent lifers puts Florida justice on the spot," and here are excerpts:

Kyan Bucknor was 15 in 1999 when he shot two patrons and unleashed a volley of bullets into Broward Sheriff's Office deputy Al Hibbert outside a Lauderdale Lakes nightclub. The teen's sentence: life in prison.

But Bucknor, now 26, will get a reprieve thanks to a May U.S. Supreme Court decision banning life-without-parole sentences for juveniles who did not kill anyone.  The ruling left Florida in a quandary: For undeniably violent crimes, what is an appropriate alternative sentence in a state that has no parole system?

Bucknor is one of 23 South Florida men -- among 100-plus statewide, the most in the nation -- who must now be resentenced under the Graham v. Florida ruling.  So far, none have received new prison terms as the judicial system, case by case, county by county, struggles to comply....

Two possible fixes have emerged, from prosecutors and a lawmaker, both requiring mandatory lengthy prison terms followed by the possibility of parole.  A statewide prosecutors association has petitioned Florida's Executive Clemency Board to step in and commute the men's sentences to life with the possibility of parole after 20 years -- a move opposed by Gov. Charlie Crist.

Separately, a Jacksonville state lawmaker says he will introduce a bill next year to create a parole system for violent juvenile offenders, with eligibility after 25 years in prison. In keeping with the Supreme Court ruling, both solutions guarantee only the possibility of parole -- not that the inmates would actually get out early.

That's a key point to House Rep. Mike Weinstein, R-Jacksonville, because he wants to keep the offenders behind bars as long as possible. "They try to kill five people, and we can't seek a life sentence. They rape girls -- and they can't be given life," Weinstein said. "But we want to be able to give them a life sentence, and in my mind, they deserve a life sentence."...

In most states, the Graham ruling means simply amending a life sentence to include the possibility of parole. But Florida is in a particular bind because lawmakers abolished parole in 1983 after too many inmates released early were committing high-profile crimes. The state's Parole Commission now reviews only cases that pre-date 1983.

Statewide, there are more than 100 defendants who must be resentenced under the ruling, according to Barry University's Juvenile Justice Center, which tracks the Graham cases.  That means, for now, the onus falls on trial judges to resentence individual defendants. Judges who impose new but long terms would be violating the spirit of the Graham decision and simply spark more appeals, defense lawyers warn....

 Bill Cervone, president of the Florida Prosecuting Attorneys Association, worries that judges will impose wildly disparate sentences. "We're going to end up with a mish-mash of results all over the state," said Cervone, the Gainesville-based state attorney.

In an effort to streamline the process, last month the prosecutors group filed the petition with the governor's office, asking the clemency board to commute all Graham cases to sentences of life with the possibility of parole.  Then, the parole commission would review each case after the inmate has served 20 years in prison....

Any solution -- whether new legislation, or clemency -- will likely come after the November elections, when politicians will be more willing to tackle the hot-button issue.  Crist, in the midst of a hard-fought race for the U.S. Senate, said in a statement that he opposes the prosecutors' proposal....

Prosecutor Cervone believes the state attorneys' proposal, by eliminating the need for resentencing hearings, would be a kinder solution for victims who have struggled to cope with their experiences.

California state appeals court finds unconstitutional 84-year prison term for 16-year-old car-jacker

As detailed in this San Francisco Chronicle piece, which is headlined "Teen's 84-year sentence overturned by court," at least one California appeals court has extended the Supreme Court's ruling in Graham to a (long) term-of-years sentence. Here is the start of the press article:

After the Legislature killed a Bay Area lawmaker's bill to give juveniles serving life sentences a chance at future parole, a state appeals court took a step in the other direction Wednesday by overturning the 84-year prison term of a 16-year-old gang member convicted of robbery and carjacking.

The sentence is the practical equivalent of life without possible parole and violates the constitutional ban on cruel and unusual punishment, said the Second District Court of Appeal in Los Angeles. The court told the trial judge to resentence Victor Mendez to a term that would give him a chance to gain his freedom someday if he shows maturity and rehabilitation.

The ruling followed a U.S. Supreme Court decision in May that banned life-without-parole sentences for juveniles convicted of crimes other than homicide. That ruling applied to four youths in California prisons, but did not affect another 250 inmates serving the same sentence for murders committed at ages 16 or 17.

The discussion of Graham starts at page 15 of the full slip opinion in California v. Mendez, No. B217683 (Cal. 2d Dist. App. Sept 1, 2010) (available here).  Here is a snippet:

We disagree with Mendez that his de facto LWOP sentence should be reversed pursuant to the holding in Graham. As the People note, Graham expressly limited its holding to juveniles actually sentenced to LWOP.... Mendez‘s sentence is not technically an LWOP sentence, and therefore not controlled by Graham. We are nevertheless guided by the principles set forth in Graham in evaluating Mendez‘s claim that his sentence is cruel and unusual....

Even without Graham, we would conclude that Mendez‘s sentence is unconstitutional when evaluated under the traditional "proportionality" test used by the federal and state courts when evaluating individual claims that a sentence is cruel and unusual.  Although articulated slightly differently, both standards prohibit punishment that is "grossly disproportionate" to the crime or the individual culpability of the defendant....

In reaching our conclusion that Mendez‘s sentence is the equivalent of LWOP and that it is cruel and unusual punishment, we are mindful of the fact that successful challenges to sentences on the grounds of cruel and unusual punishment are rare.  Nevertheless, we find this to be such a rare case, and we therefore remand the matter to the trial court for reconsideration of Mendez‘s sentence.

"Rethinking Proportionality Under the Cruel and Unusual Punishments Clause"

The title of this post is the title of this terrific-looking new article by John Stinneford that is now available via SSRN. Here is the abstract:

Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic.  The Court has never answered doubts about the legitimacy of proportionality review, leading a controlling plurality of the Court to insist that such review be limited to a narrow class of cases.  The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent . Finally, the Court’s method of measuring proportionality is unreliable and self-contradictory.  As a result, very few offenders have benefited from the Court’s decision to engage in proportionality review. This area of doctrine needs rethinking.

This article is the first to establish that the Cruel and Unusual Punishments Clause was originally meant to prohibit excessive punishments as well as barbaric ones, and that proportionality review is therefore unquestionably legitimate.  This article also demonstrates that proportionality is a retributive concept, not a utilitarian one.  Punishments are unconstitutionally excessive if they are harsher than the defendant deserves as a retributive matter.  Finally, this article shows that proportionality should be measured primarily in relation to prior punishment practice.  The proposed approach will align the Court’s proportionality jurisprudence more closely with the core purpose of the Cruel and Unusual Punishments Clause, and will enable the Court to expand proportionality review to a much larger class of cases.

California legislature considering bill to eliminate juve LWOP for any crimes

The Supreme Court in Graham declared unconstitutional the imposition of life-without-parole for juvenile offenders who commit nonhomicide offenses.  Now, as detailed in this article, the California legislature is considering a bill to eliminate juve LWOP for any crime.  The piece is headlined "Bill would let juvenile criminals seek leniency," and here are excerpts:

When Democratic state Sen. Leland Yee talks about SB399, he inevitably points to the case of Sara Kruzan.  In 1994, at age 16, Kruzan killed her alleged pimp three years after she was forced into prostitution.  The Riverside girl was convicted of first-degree murder and sentenced to spend the rest of her life in prison with no possibility of parole.

Under SB399, juvenile offenders such as Kruzan, now a 32-year-old prison inmate, would be allowed to ask a court to review their case after 10 years in prison, and could potentially get their sentence reduced to 25 years to life. The bill -- a watered-down version of Yee's original proposal, which would have barred life imprisonment for all juveniles -- has been approved by the state Senate and is set to be taken up by the Assembly as soon as Thursday....

Opponents, including the California District Attorneys Association and the Assembly Republican Caucus, flatly reject those contentions.  They argue that the current system works and that only the "worst of the worst" are eligible for life without parole now.

Scott Thorpe, the association's CEO, noted that juveniles are considered for lifetime sentences if they are tried as adults. "We're talking about the most serious types of crimes, and we're also talking about defendants who, because of a number of factors, have been determined to deserve at least eligibility for that punishment.  We're talking about first-degree murderers," he said.

Supporters, however, say juveniles are different from adults and should be treated as such. They are more likely to be influenced by other people and don't have the same ability to grasp foresight and consequences, said Yee, a child psychologist.  And, he said, their brains are still developing, giving them a larger capacity for rehabilitation than adults. "We're letting prisoners out because of overcrowding -- ought we not at least look at children and see if they are deserving to be let out?" Yee asked.

Elizabeth Calvin of Human Rights Watch and other supporters also argued that juveniles tend to receive harsher sentences than adults for the same crimes, because they are less likely to agree to plea deals, don't always understand their rights or refuse to accept responsibility if they were present for, but did not actually commit, a murder.

The bill would only allow some people to apply for the reduced sentence. For example, a defendant who had previously been convicted of assault or other violent crimes might not be eligible.  If a sentence was reduced, a defendant would have to go through the normal process -- a review before a parole board and the governor -- before they could be paroled.  "This bill is so narrowly drawn -- it's modest in what it's attempting," said Calvin.  "One of the things that makes it different from other early release schemes is that there would be very careful consideration of each case."

In California, approximately 250 people who were juveniles when they committed their crimes are serving lifetime prison sentences without the possibility of parole.  Calvin said that nearly half of those defendants are not actually murderers but were convicted of murder because they were present and participating in some other illegal activity when someone was killed, and that most had no prior criminal convictions.

The District Attorneys Association disputed those numbers, saying they were based on interviews with inmates and other anecdotal evidence.  The vast majority, Thorpe said, are murderers....

Sen. Sam Aanestad, R-Penn Valley (Nevada County) -- the only Republican to support the bill in the Senate -- said all of the arguments overlook one simple question: "Do we believe in rehabilitation or don't we?" he asked. "I think the younger you are, the more of a chance you have to reprogram.... For me, it's just a matter of fairness.  If all we want to do is punish people, OK, let's put them away for good.  But I don't believe that's what society really wants."

Notably, it appears that California's editorial pages are all supportive of this bill:

• From the Los Angeles Times here, "Legislature should pass Fair Sentencing for Youth Act"
• From the San Diego Union Tribune here, "Life without parole for children?"
• From the Ventura County Star here, "Second chance for young lifers"

"More Different than Life, Less Different than Death"

The title of this post is the title of this terrific-looking new piece by William Berry which discusses the Supreme Court's recent work in the juve LWOP case of Graham v. Florida and makes an argument for LWOP sentences to receive a unique form of Eighth Amendment scrutiny.  Here is the piece's abstract:

The Supreme Court has traditionally divided its application of the Eighth Amendment into two categories, capital and non-capital cases, based on the longstanding notion that “death- is-different.” In the recent case of Graham v. Florida, however, the Supreme Court applied its “evolving standards of decency” standard, heretofore reserved for capital cases, to a non-capital case in holding that the Eighth Amendment prohibited states from sentencing juvenile offenders to life without parole for non-homicide crimes. The dissenting justices argued that this decision marked the end of the Court’s “death-is-different” jurisprudence.

This article argues, however, that the decision instead creates the opportunity to establish a new category of Eighth Amendment review for life without parole sentences. While life without parole may not be as “different” from other sentences as death, it is still “different” enough to warrant its own set of heightened standards of Eighth Amendment review.

Part One of the article describes the dichotomy between capital and non-capital cases in the Supreme Court’s Eighth Amendment jurisprudence and the application of these two lines of cases in Graham v. Florida. Part Two of the article explains why life without parole, a sentence to die in prison, is “different” in its own way. Part Three then argues for the application of a new category of standards under the Eighth Amendment in life without parole cases, and suggests other possible implications of Graham.

"Youthful offenders deserve a second chance"

The title of this post is the headline of this new commentary in the Los Angeles Times authored by Miriam Aroni Krinsky, Ernie Pierce and Jeanne Woodford. Here are excerpts:

One of us is a retired police officer who daily put his life on the line to catch criminals. Another is a former Department of Justice attorney who spent years prosecuting violent drug dealers and organized crime organizations.  The third, a former warden of San Quentin State Prison and director of the California Department of Corrections and Rehabilitation, spent her career ensuring that those convicted served out their sentences as required by law.

Collectively, we have put or kept a lot of people in prison.  Prison is where some people justly belong, many for long periods of time.  But it is exactly our experience in law enforcement that causes us to agree with the Supreme Court's recent decision to abolish the sentence of life without parole for teens in nonhomicide cases.

That decision, however, did not finish the reforms needed in juvenile sentencing.  There are thousands of lifers in the nation's prisons — about 250 in California alone — who as teenagers participated in crimes involving homicides.  They all deserve a second chance, and at least some of them may deserve to be released.

As the high court recently recognized, there are inherent differences between teenage and adult criminals.  A teen who commits a crime, even a terrible one such as murder, is not forever defined by that one act.  Indeed, in our work, we have witnessed dramatic transformations among young people in our correctional facilities and in our neighborhoods....

The Legislature is considering a bill, SB 399, that would allow those who prove they merit a second chance an opportunity to be considered for parole, but only after serving at least 25 years.

Clearly there are offenders who have committed heinous crimes and are unfit to be released regardless of the age they were when they committed their crime.  SB 399 would not allow these people to return to our communities.  Instead, it would allow for a thoughtful review to determine whether, years later, individuals sentenced as youths continue to pose a threat to the community.

We know that sentencing youngsters to a life in prison with no possibility for review of their sentence as they mature into adulthood isn't simply excessive; it is contrary to the interests of our state.

Life without parole does not deter criminal behavior among youths.  Most kids get caught up in crime without analyzing the consequences of their acts.  Indeed, research confirms that teenagers have weak impulse control and reasoning abilities.

Life without parole is also a very costly policy. In the case of young people, these sentences cost California about $2.5 million each.  And without SB 399, there is no way to revisit these sentences and account for the adult that teen has become.

It is time for California, and our nation as a whole, to take the Supreme Court's decision to its next logical step and join the rest of the world by revisiting inflexible life-without-parole sentences for young offenders.  Juvenile offenders are different; our laws and system of justice must acknowledge those differences.

Interesting revision of data on juve LWOPs in the federal system

The Blog of Legal Times his this new post reporting that through "an unusual filing with the Supreme Court this week, Acting Solicitor General Neal Katyal said some of the information that the Court used in its recent Graham v. Florida decision, supplied to the Court by a federal official without the SG's knowledge, was inaccurate."  Here is more:

Katyal's letter focused on the information submitted by Bureau of Prisons in its letter, "of which this office became aware only upon the release of the Court's decision," and which was "submitted in response to a confidential request from Court personnel."

Katyal said that because of "time constraints," the number of six federal prisoners was arrived at by consulting "automated inmate records," rather than presentence reports and other documents. Since the decision came down, Katyal said a "careful review" of presentence reports was conducted, leading to the conclusion that "it appears that none of the six inmates listed ... is serving a life sentence based solely on a nonhomicide crime completed before the age of 18." Katyal explained that all of the inmates cited by the Bureau of Prisons were convicted for criminal conduct that continued after they reached 18, or involved killing someone.

Apart from the unusual nature of the Court's own data-gathering project, the letter is also noteworthy as it may relate to Solicitor General Elena Kagan's nomination to the Supreme Court.  Ordinarily in state cases like Graham v. Florida, the federal government weighs in, if the outcome could affect federal law or policy.  The government stayed out of the Florida case, however, in spite of the fact that federal law does permit sentencing of juveniles as young as 13 to life without parole, as the Court noted.  If six actual federal inmates were affected by the Florida case, it might have made the SG's decision to stay out of the case more notable.

Over at Crime & Consequences, Kent has this effective post, "Kagan, Graham, and ex parte research,"  reporting on these developments and closing with these astute thoughts:

Nobody comes out looking good in this. The Court should know better than to engage in ex parte fact gathering and using the results as a basis for making constitutional law. The SG should have known that at least some federal judgments were in jeopardy from an adverse ruling and defended the federal law accordingly.

Effective new commentary on the Supreme Court's work in Graham

Over at Findlaw, Professor Sherry Colb has this new column on the Supreme Court's recent Eighth Amendment work in Graham.  The piece is titled simply, "High Court Rejects Life Without Parole for All Juvenile, Non-Homicide Crimes," and here is how it starts and ends:

Last week, in Graham v. Florida, the U.S. Supreme Court held that the Eighth Amendment's ban on cruel and unusual punishments bars the sentencing of juvenile offenders to life imprisonment without the possibility of parole ("LWOP") for non-homicide offenses.  As I noted in an earlier column, such a decision stands in considerable tension with the Court's existing precedents.  Accordingly, though the majority opinion does not explicitly depart from prior rulings, there is nonetheless reason to expect that the Court may now be more willing to entertain Eighth Amendment challenges to lengthy prison sentences than it has been in the past....

Just as imprisonment is different from death, then, there is much to distinguish different prison sentences from one another.  The Supreme Court has now, laudably, recognized that LWOP can represent an excessively harsh sentence for at least one class of offenders and offenses.  Its decision in Graham v. Florida thus provides hope that the harshness of prison sentences — and their relation, if any, to the seriousness of people's crimes — can once again become a fit subject of Eighth Amendment scrutiny in the U.S. Supreme Court.

Some recent related posts with my own Graham analysis:

• Doesn't the logic and language of Graham put juve LWOP for "lesser" homicides on thin ice?
• Strong arguments for second-look sentencing reforms from SCOTUS concurrences
• Hail to the Chief and the fascinating future of Eighth Amendment jurisprudence
• Graham crackers: reflecting on Eighth Amendment rules versus standard and subconstitutional echoes
• Originalist Graham crackers: would the Eighth Amendment ratifiers really be indifferent about LWOP?

Did the Chief initially have (but then lose) Justice Alito's vote in Graham?

As my prior posts highlight, I am intrigued and taken by many aspects of the substance of Chief Justice Roberts' concurrence in the Graham Eighth Amendment case.  But, in re-reading this opinion today, I was also intrigued and taken by a surprising pronoun in this paragraph from page 6 of the Chief's opinion:

JUSTICE THOMAS disagrees with even our limited reliance on Roper on the ground that the present case does not involve capital punishment.  Post, at 26 (dissenting opinion). That distinction is important — indeed, it underlies our rejection of the categorical rule declared by the Court.  But Roper’s conclusion that juveniles are typically less culpable than adults has pertinence beyond capital cases, and rightly informs the case-specific inquiry I believe to be appropriate here.

The use of the pronoun "our" in the two spots highlighted here suggests to me that, at some point, Chief Justice Roberts may have believed he had a fellow-traveler prepared to sign on to his separate concurring opinion finding Graham's sentence's unconstitutional based on "traditional" case-by-case proportionality review.  I suppose it is possible that one of the five Justices in the Graham majority was the expected fellow-traveler, but I think it much more likely that Chief Justice Roberts was writing with the expectation that Justice Alito would be willing to join his opinion.  My speculation seems supported by the fact that Justice Alito ultimately did not sign on to Parts II and IV of Justice Thomas's dissent in Graham (as well as Justice Alito's separate little opinion saying he ultimately did not think defendant Graham had properly presented/preserved a case-by-case proportionality attack on his sentence).

Of course, all we know for sure is what is will in the US Reports, so maybe I am reading too much into a royal pronoun.  But it strikes me as a very interesting and quite important story for the future of noncapital Eighth Amendment jurisprudence if Justice Alito is largely in agreement with the substance of Chief Justice Roberts' approach to proportionality review.  Specifically, it means that (assuming a Justice Kagan follows in the path of Justice Stevens) now there may be as many as 7 Justices prepared (and even eager?) to breathe significant new life into Eighth Amendment review of noncapital sentences.

Some recent related posts with Graham analysis:

• Graham crackers: reflecting on Eighth Amendment rules versus standard and subconstitutional echoes
• Doesn't the logic and language of Grahamput juve LWOP for "lesser" homicides on thin ice?
• Strong arguments for second-look sentencing reforms from SCOTUS concurrences
• Hail to the Chief and the fascinating future of Eighth Amendment jurisprudence
• Originalist Grahamcrackers: would the Eighth Amendment ratifiers really be indifferent about LWOP?

Originalist Graham crackers: would the Eighth Amendment ratifiers really be indifferent about LWOP?

Having now had a chance to read and reflect on Justice Thomas's dissent in the Graham Eighth Amendment case, I am back to using the tasty term Graham crackers to flag what I view to be the really deep and really hard (and thus really tasty) intellectual questions that Graham raises.  Specifically, as flagged by the title of this post, I am wondering if all originalists agree with Justice Thomas's seeming conclusion that the LWOP sentence at issue in Graham is obviously constitutionally sound.  There are two aspect of this question I wish here to unpack.

1.  Might an originalist see extreme incarceration as a worrisome "method" of punishment?:   A key move in Part II of Justice Thomas's dissent is to assert that Eighth Amendment proportionality analysis is an improper jurisprudential creation by the modern Supreme Court.  According to Justice Thomas, it is "now well established that the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment — specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted."  Dissent at 3-5 (emphasis in original; cites omitted).  In this discussion, via a parenthetical to a legal history cite, Justice Thomas thereafter notes that "crimes in the late 18th-century colonies generally were punished either by fines, whipping, or public 'shaming,' or by death, as intermediate sentencing options such as incarceration were not common."  Id.

Significantly, Justice Thomas does not take a moment to connect these historical dots before launching into a (relatively effective) attack on aspects of the majority's proportionality work.  That is, though he notes that the so-called "intermediate sentencing option" of incarceration was uncommon at the time of the Constitution was written, Justice Thomas never explains or explores whether the Framers and/or ratifiers of the Eighth Amendment might have considered permanently locking a person in a cage for his entire life to be a "torturous method of punishment" that is akin to punishment "considered cruel and unusual at the time the Bill of Rights was adopted." 

In modern times, there is a broad tendency to assume that death is obviously a more extreme punishment then LWOP.  Whether this is true as a modern reality, I do not think it would be so obviously true for the Framers and/or ratifiers of the Eighth Amendment.  After all, Patrick Henry famously cried "Give me liberty or give me death!"  Moreover, there is little doubt that certain forms of extreme incarceration could readily become a "torturous method of punishment."  For example, imagine if a legislature as a cost-cutting measure ordered that prisoners who committed the certain crimes should receive only one serving of bread and water per day or that certain offenders should be kept permanently in a minuscule cell without any light or ventilation or toilet facilities.  I suspect some (many? most?) originalists would think this kind of use of incarceration as method of punishment would be akin to what the Framers sought to prevent via the Eighth Amendment.  Is it too mcuh of a stretch, then, for some originalists to view use of LWOP, which tells an offender he will never again have even a chance to live outside a cage and will only be able to leave prison via a coffin, as a potentially "torturous method of punishment"? 

2.  Might an originalist see LWOP as a structural constitutional problem?:  Thinking about Justice Thomas's originalist instincts against the backdrop of the second-look ideas in the Graham concurrences leads me to another (originalist?) point.  I have been lately thinking about the Eighth Amendment in light of the Constitution's obvious affinity for separating government powers and structural checks and balances.  Of particular note, the Framers through the Reprieves and Pardons Clause, granted the U.S. President what might be called broad criminal justice second-look power.  Indeed, this Clause has been interpreted to mean that Congress cannot pass a law that in any way restricts the President's clemency authority.

If an originalist were now to view parole boards as the modern loci for historic clemency powers --- and that is a big IF --- such an originalist might have structural concerns with any legislative efforts to entirely eliminate a parole board's authority to give relief to certain offenders.  Stretching these concepts may bring one perhaps problematically close to claiming that the Constitution creates a kind of right to parole in all cases, and this would seem to be a hard (originalist?) argument to make truly compelling.  But I do think there is something to the idea that the Framers would be uniquely troubled by the way LWOP sentences  concentrate permanent power over certain types of offenses or offenders; in turn, I think some originalists could find especially appealing at least Chief Justice Roberts' sense that appellate judges must sometimes use the Eighth Amendment as a kind of constitutional backstop for extreme imprisonment punishments.

Because I am not a true originalist, I may be crazy to even try to unpack my instincts that there is more to say about originalism and the Eighth Amendment than what gets said by Justices Scalia and Thomas in this setting and others.  But, perhaps because some true originalists may inclined to read and respond to my musings here, I hope that what I have said in this post could start a dialogue about originalism and modern punishment practices.

Some recent related posts with Graham analysis:

• Graham crackers: reflecting on Eighth Amendment rules versus standard and subconstitutional echoes
• Doesn't the logic and language of Grahamput juve LWOP for "lesser" homicides on thin ice?
• Strong arguments for second-look sentencing reforms from SCOTUS concurrences
• Hail to the Chief and the fascinating future of Eighth Amendment jurisprudence

UPDATE: In the comments, Sara Mayeux points to this terrific post of hers from a few days ago at Prison Law Blog, where she makes these trenchant points (among others) that echo my musings in point 1 above:

Both Stevens and Thomas ... seem to assume that 18th century and 21st century beliefs about the hierarchy of punishments are basically the same, even if beliefs may change about where on that hierarchy punishment stops being “decent” and starts being “cruel and unusual” (and even if Stevens and Thomas disagree about whether that move matters for Eighth Amendment jurisprudence).  That is, both justices seem to assume that, just like a 21st century person, an 18th century person would obviously have thought death was worse than LWOP....

Here’s the big problem: I suspect that late 18th century people would have had simply and utterly no way to conceive of LWOP, much less place it on a hierarchy with the death penalty.  Some jurisdictions used prison terms as punishment by the late 18th century, but it wasn’t yet the default (not until about 1810 in Northern states and later in other regions), sentences weren’t nearly as long as they are today, there was no such thing as “parole,” prisons were very different sorts of institutions, etc., etc., etc.  I actually wonder if a late 18th century person might not have thought LWOP crueler than a quick execution, or at any rate very bizarre (why not just end the child’s life if he is truly irredeemable, is what I expect an 18th century person might have thought), but I don’t study that period enough to be confident in that.  I do know enough to be confident that to answer this question satisfactorily would take a lot more research into late 18th century beliefs about crime, punishment, the nature of life and death, etc., than just assuming that whatever we today think is a “harsher” punishment is also what a person in an entirely different time and place would think.

In another related originalist reference, a helpful reader reminded me that NYU's Center on the Administration of Criminal Law filed this amicus brief which sought to provide some originalist arguments in favor of Sullivan and Graham.  The NYU amicus brief's principal histoircal point is that "the elimination of proportionality review in the noncapital context would be inconsistent with the Eighth Amendment's tect and original meaning." 

Fasincating on-line discussion of Graham ruling from the New York Times

I am pleased and intrigued to see that the New York Times has this spectial on-line section with four astute criminal justice commentators providing their views on the Supreme Court's work yesterday in Graham. The heading for this section is "Redefining Cruel Punishment for Juveniles," and here is a list of the commentors with links to their pieces:

• Marc Mauer, The Sentencing Project, "Juveniles Are Different"

• Tracey L. Meares, deputy dean, Yale Law School, "What the Court Didn't Do"

• Kent Scheidegger, Criminal Justice Legal Foundation, "Unaccountable Judicial Activism" 

• Paul Butler, George Washington Law School, "It's About Time" 

All of these relatively short pieces are worthy of a close read, and there are astute insights (and turns of phrases) in all these commentaries.  But I especially want to highlight these interesting comments from the end of Paul Butler's piece:

The breaking news is Chief Justice Roberts. He broke away from his usual conservative running buddies to agree with the more progressive justices that the sentence in this case was unconstitutionally harsh. For liberals who thought that the chief justice could never be rehabilitated, judicially speaking, now there’s a glimmer of hope.

All of this helps make the liberal case for nominee Elena Kagan. President Obama’s stated hope is that Ms. Kagan would bring to the Supreme Court the consensus-building skills she displayed as dean of Harvard Law School. Though Justices Alito, Thomas and Scalia remain lost causes, it might be worthwhile for Justice Kagan to treat John Roberts to a mocha frappuccino every now and then.

This case also sends a message that President Obama knows how to pick justices with his same progressive values. Liberals had some concern about where Justice Sotomayor, the former prosecutor, would be on criminal justice issues, but in this case she signed a separate opinion with the two most liberal members of the court. That opinion basically says “Clarence Thomas, shame on you!”

So maybe Ms. Kagan’s liberal critics should chill out some. The president, when he interviews prospective Supreme Court nominees, seems to be doing a fine job of either speaking persuasively or listening deeply.

Recapping my coverage of today's significant SCOTUS action

Since I have done a lot of posts (too many?) on today's significant sentencing rulings by the Supreme Court, I thought it might be useful in this final post of the day to recap my coverage via these links:

On the Graham juve LWOP Eighth Amendment ruling:

• SCOTUS finds Eighth Amendment problem with juve LWOP in Graham
• Some notable quotables from the opinion of the Court in Graham
• Comments from EJI about the Graham decision and Joe Sullivan's case
• Doesn't the logic and language of Grahamput juve LWOP for "lesser" homicides on thin ice?
• Strong arguments for second-look sentencing reforms from SCOTUS concurrences
• Grahamcrackers: reflecting on Eighth Amendment rules versus standard and subconstitutional echoes

On the Comstock federal sex offender civil commitment ruling:

• SCOTUS upholds broad federal power to commit sex offenders in Comstock
• The political and PR benefits for SCOTUS (and others) from Comstock and Graham coming down together
• Other than the holdings, what are the biggest "stories" of the Graham and Comstock rulings?

Comments from EJI about the Graham decision and Joe Sullivan's case

Among the folks who likely should get significant "credit" for today's landmark Eighth Amendment ruling in Graham are Bryan Stevenson and the other folks at the Equal Justice Initiative who have kept a bright spotlight on the juve LWOP issue ever since the Supreme Court's juve capital decision in Roper.  EJI represented Joe Sullivan in his appeals up through the Supreme Court, and the folks there have done important legal and policy work on these issues that surely played a huge role in today's events.  And though the Justices ended up DIGing Joe Sullivan's case, the majority opinion in Graham used the facts of Joe Sullivan's case to justify its holding; I feel confident that SCOTUS granted cert on this issue in the first instance in large part because of the extraordinary advocacy efforts of EJI and Bryan Stevenson.

On its website, EJI now has this press release about the decision, which describes the ruling as "historic."  (Side questions for SCOTUS adjective mavens:  is it more impressive for a SCOTUS opinion to be called landmark or historic?  Which is a better label for Graham?)  In addition, the folks at EJI sent me a note about Joe Sullivan's situation via e-mail which I reprint here:

A number of journalists have asked about how today's decision in Graham v. Florida applies to Joe Sullivan and the other juvenile offenders serving life in prison without parole sentences in non-homicide cases.  Here is background information on that question from attorneys for Joe Sullivan at Equal Justice Initiative:

The Supreme Court’s decision today in Graham v. Floridacreates a categorical rule barring life imprisonment without parole for children under age 18 who commit a non-homicide offense.  Joe Sullivan, and other juvenile offenders sentenced to life in prison without parole for nonhomicide crimes, are entitled to relief under today’s ruling.  The Court “dismissed as improvidently granted” rather than issue a separate decision in Joe Sullivan’s case because it was unnecessary: the Court did not draw a line between young kids and older kids, and the ruling in Graham applies to Joe Sullivan.  Joe’s case is discussed in the Graham decision as an example why the categorical rule created by the Court is necessary.  Every categorical rule of the sort announced by the Court today has been held retroactive because it puts outside of governmental authority the ability to impose this punishment.  There should be no confusion that Joe Sullivan’s life in prison without parole sentence has been invalidated by today’s decision.

The procedural issue involved in the Sullivan case was whether the Court’s decision in Roper v. Simmons, barring the death penalty for juveniles, applied to cases involving life in prison without parole as a “new rule” that would give more Joe time to appeal his sentence.  Bryan Stevenson, counsel for Joe Sullivan, said the Court unquestionably held that it did, but even if it did not, Grahamitself is a new ruling that permits Joe and all other juveniles sentenced to life without parole for nonhomicides to appeal their sentences and entitles them to a “realistic opportunity to obtain release.”

The political and PR benefits for SCOTUS (and others) from Comstock and Graham coming down together

Anyone who thinks the Justices of the Supreme Court are not attuned to issues of politics and public relations needs to explain to me why the anti-sex-offender ruling in Comstock just happened to be handed down on the same day as the pro-defendant ruling in Graham.  For a host of reasons, I suspect the Justices made a conscious effort to release these opinions together (and, to quote a famous Seinfeld episode, "Not that there's anything wrong with that!"). I am not sure there is any reason to lament this PR strategic decision).  Consider how the Wall Street Journal announced today's SCOTUS work via my e-mail in-box as a "news alert":

The Supreme Court said the U.S. can keep "sexually dangerous" prisoners in custody past the completion of their sentences, overruling arguments that only states hold such power.  The ruling was 7-2, with Justices Antonin Scalia and Clarence Thomas in dissent.

In a separate case, the court ruled 5-4 that teenagers may not be locked up for life with no chance of parole if they haven't killed anyone. (Correction: A previous alert said the Supreme Court ruled 6-3 on the juvenile-parole case.)

For those who does not follow the Supreme Court and/or sentencing issues closely, I suspect the first reaction to this breaking "news alert" was "seems like the Supreme Court is being pretty sensible."  Thanks to Comstock coming down with Graham, we learn that "sexually dangerous" prisoners can be kept locked up before we learn that teenagers cannot be "locked up for life with no chance of parole if they haven't killed anyone." 

For those especially eager to reflect on the Justices' as PR and political strategists, one might also focus on the fact that the juve who committed a sexual offense, Joe Sullivan, got his case DIGed today.  Thus, the Justices found a way not only to make their landmark Eighth Amendment ruling the "second" SCOTUS story of the day, they also made sure that individuals (and legislators) most focused on how we deal with sex offenders paid attention principally to the pro-government ruling in Comstock.

Doesn't the logic and language of Graham put juve LWOP for "lesser" homicides on thin ice?

The opinion for the Court in Grahamstates at the outset and stresses in various settings that the ruling is directly applicable only to nonhomicide offenses.  Nevertheless, the logic and language of the opinion puts special emphasis on the diminished culpability of juvenile offenders as a class and on the unique severity of a life without parole prison sentence.  Consider, for example, this paragraph toward the end of the opinion for the Court in Graham:

Terrance Graham’s sentence guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes. The State has denied him any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.

Obviously, this paragraph mentions that the juvenile defendant's severe LWOP punishment was "based solely on a nonhomicide crime."  Still, if we replace the word "nonhomicide" with, say, "less serious homicide," the paragraph retains all its force.  Consequently, I suspect that lawyers for any and all juvenile offender sentenced to LWOP for a killing that was not first-degree murder may argue that the logic and language of Graham readily extended to cases involving lesser homicides.

I am not sure if there are many (or even any) juvenile killers who are serving LWOP sentences after conviction for homicides that did not qualify as first-degree murder under applicable state law.  I am sure that, if such sentences are currently in place, lower courts are going to have to decide whether and how to give effect or to cabin some of the broader logic and language used by the Court in Graham.

Early posts on the Graham ruling:

• SCOTUS finds Eighth Amendment problem with juve LWOP in Graham
• Can and should Florida's Governor commute the sentence of Joe Sullivan in light of the SCOTUS Graham ruling?
• Some notable quotables from the opinion of the Court in Graham
• Other than the holdings, what are the biggest "stories" of the Graham and Comstock rulings?

Some notable quotables from the opinion of the Court in Graham

Based on my first read of the Supreme Court's Graham opinion, I have a feeling I will be reading the opinion dozens, if not hundreds, of more times; in Graham, there is so much "there there."  Here are just a few of the many lines from just Justice Kennedy's pinion for the Court that jumped out during my first read (with cites left out):

[Our] cases underscore the essential principle that, underthe Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes....

The concept of proportionality is central to the Eighth Amendment....

Actual sentencing practices are an important part of the Court’s inquiry into consen-sus. Here, an examination of actual sentencing practices in jurisdictions where the sentence in question ispermitted by statute discloses a consensus against its use....

The judicial exercise of independent judgment requires considerationof the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question....

Roper established that because juveniles have lessened culpability they are less deserving of the most severepunishments....  No recent data provide reason to reconsider the Court’sobservations in Roper about the nature of juveniles.  As petitioner’s amici point out, developments in psychology and brain science continue to show fundamental differ-ences between juvenile and adult minds....

The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms ofpunishment than are murderers....

It follows that, when compared to an adult murderer, ajuvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the of-fender and the nature of the crime each bear on the analysis....

[L]ife without parole sentences share some characteristics with death sentences that are shared by no other sentences. The State does not execute the offender sentenced to life without parole, but the sentence alters the offender’s life by a forfeiture that is irrevocable.  It deprives the convictof the most basic liberties without giving hope of restora-tion, except perhaps by executive clemency — the remote possibility of which does not mitigate the harshness of the sentence....

Incapacitation cannot override all other considerations, lest the Eighth Amendment’s rule against disproportionate sentences be a nullity....

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.  What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance.  It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life.  Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives.  The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life.  It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society....

An offender’s age is relevant to the Eighth Amendment, and criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.

Other than the holdings, what are the biggest "stories" of the Graham and Comstock rulings?

I have barely skimmed the Graham and Comstock rulings, and already I have so many thoughts about the holdings and their potential consequences (especially regarding future non-capital Eighth Amendment litigation).  But, before going too blog crazy, I am planning to head to a local coffee shop so I can read the full opinions without too many distractions and without getting my own views colored too much by what others start saying about these cases.  Yet I wanted to do this quick post to encourage readers to opine on what they think are some of the biggest "stories" emerging from the Graham and Comstock rulings.

My first take concerns the votes and authorship of various opinions in Graham.  First, that Justice Kennedy wrote the opinion for the Court is notable and important for various political reasons, and the fact that Chief Justice Roberts voted for the defendant (in order to make the head-count 6-3) seems to me to be especially notable and important for similar reasons.  Second, that Justice Sotomayor (and not Justice Breyer) joined the separate opinion of Justice Stevens strikes me as notable and important for jurisprudential reasons.

I could go on and make some similar observations about Comstock (which was authored by Justice Breyer with a Justice Kennedy concurrence and a Justice Thomas dissent).  But now I have to actually go read these opinions carefully (and then read whatever readers have to say in the comments) concerning what they think are the most important parts to what the Supreme Court did today.

Early posts on the Comstock and Graham rulings:

• SCOTUS finds Eighth Amendmetn problem with juve LWOP in Graham
• SCOTUS upholds broad federal power to commit sex offenders in Comstock
• Can and should Florida's Governor commute the sentence of Joe Sullivan in light of the SCOTUS Graham ruling?

Can and should Florida's Governor commute the sentence of Joe Sullivan in light of the SCOTUS Graham ruling?

I will have lots and lots of coming commentary of the Graham ruling ASAP, but I want to start the discussion with some debate over the likely and appropriate fate of Joe Sullivan's sentence.  As this prior post briefly explains, due to procedural complications with his case, Sullivan may not be able to get relief from his LWOP sentence in Florida state courts.  But, in light of the substance of the Supreme Court's Graham ruling, I have to think some folks in Florida should be a bit troubled keeping his sentence in place. 

Consequently, I wonder if Florida's Governor has the authority and the good sense to get Joe Sullivan's case out of the courts by providing relief through clemency.  This issue strikes me as interesting and important not only because of how it impact Sullivan's fate, but also concerning how other juveniles (or others) now serving LWOP sentences might look to use the Graham ruling to support a pitch for clemency in lieu of (or in addition to) making a formal legal Eighth Amendment argument in state or federal court.

UPDATE:  A helpful reader sent me this note in response to my post here:

I wanted to point you to today's order in Sullivan [available here], which as you can see does not mention any procedural bar and is not a procedural ruling.  There was no need to issue a separate decision in Sullivan because Joe Sullivan is entitled to relief under the categorical, retroactive ruling in Graham.

To the extent that it seems clear that Graham ensures that Joe Sullivan will get relief in the courts, my comments in this post about the PR benefits that SCOTUS gets from simply doing a DIG in Sullivan are even more important.

SCOTUS finds Eighth Amendment problem with juve LWOP in Graham

The Supreme Court has handed down its biggest Eighth Amendment ruling in non-capital cases in a long time, and it is a victory for the defendant.  Here is what SCOTUSblog has to say so far:

The Court, in an opinion again written by Kennedy, rules that it is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder. The opinion is based on the Eighth Amendment's ban on "cruel and unusual" punishment.

The vote is 6-3, reversing and remanding Graham v. Florida.

Justice Thomas dissents, joined by Scalia and in part by Alito. Alito dissents in an opinion for himself. Justice Stevens concurs, joined by Ginsburg and Sotomayor, even though the three of those Justices also joined the Kennedy majority opinion. Chief Justice Roberts joins in the judgment only. The decision does not cover the Sullivan case.  [Here is] a link to the Graham opinion....

The Court has handed down a per curiam order in Sullivan v. Florida.  The writ of cert. is dismissed as improvidently granted.... Presumably the young person involved in this case, who was 13 at the time he committed his crime, would benefit from the Court's ruling today in Graham.... It is not clear that the 13-year-old, Joe Harris Sullivan, can benefit from the ruling in the case involving Terrence Graham because Florida courts had turned aside Sullivan's Eighth Amendment challenge for procedural reasons.  It will now be up to Florida courts to determine whether Sullivan can now make a new challenge based on the Graham decision.

SCOTUS to keep us waiting for juve LWOP rulings in Graham and Sullivan

As detailed in this post late last week, I thought there was a real chance that the Supreme Court might this week finally issue rulings in Graham and Sullivan, the two juve LWOP Eighth Amendment cases from Florida which were argued nearly six months ago.  But, as detailed here at How Appealing, the three rulings handed down today by the Justices were all concerning civil issues, and I believe it is unlikely we will get any more opinions issued until at least next week.

Though I am disappointed, I am not surprised that the Justices are taking their time with Graham and Sullivan.   As I have explained in prior posts, these cases have the potential to be the most consequential non-capital sentencing Eighth Amendment rulings in the Court's history.  Getting tese rulings done right is a lot more important than getting them done quickly.  In addition, I suspect that there will be multiple opinions in these cases no matter how they get resolved.  Indeed, the continuing delay reinforces my gut feeling that we may get four or five or even more separate opinions in these important Eighth Amendment cases.

Could we get the big juve LWOP Eighth Amendment rulings from SCOTUS next week?

In this post back in October, I flagged what were then the 10 biggest cases to watch for sentencing fans in the new SCOTUS term.  The only cases on this list that were argued back in 2009 and that are still not resolved are Graham and Sullivan, the two juve LWOP Eighth Amendment cases from Florida.  With this new SCOTUSblog post indicating that the Justices will be handing down opinions on both Tuesday and Wednesday of next week, I am thinking that we might not have to wait much long for rulings in these cases.

That said, given that Graham and Sullivan were argued in November and that there are still some outstanding cases that were argued in October (like the Stevens animal porn case), it is anything but certain that we will get a big Eighth Amendment ruling next week.  In addition, it is certainly possible that we could instead get rulings in the worth-watching sex offender cases like Comstock and Carr.  In short, SCOTUS fans, stay tuned.

A life sentence for a woman who forces a teenage boy to touch her breasts!?!?!

The exclamation/question that titles this post is my initial response to this remarkable local press story that a helpful student sent my way.  This press report discussed a remarkable local sentence handed down earlier this week in Nevada under the headline "T.F. woman sentenced to life for lewdness charge." Here are the remarkable details:

A Twin Falls woman convicted of forcing a 13-year-old boy to touch her breasts was sentenced Monday to life in prison. Michelle Lyn Taylor, 34, was convicted of lewdness with a minor under 14 in November after a week-long trial in Elko County, Nev., District Judge Mike Memeo’s courtroom.

With the conviction, Taylor faced a mandatory life sentence, and Memeo set parole eligibility after 10 years, the minimum sentence. If released on parole she must register as a sex offender and will be under lifetime supervision.

The district attorney’s office did not offer a plea agreement in the case, said public defender Alina Kilpatrick, who argued the sentence is unconstitutional and doesn’t fit the crime. “The jury was not allowed to know the potential sentence in this case and the Legislature doesn’t know the facts,” she said, alluding to the minimum sentence set by the Legislature in Nevada Revised Statute.

Kilpatrick said despite the parole eligibility after 10 years, there should be no mistake that it’s a life sentence for Taylor.  “She is getting a greater penalty for having a boy touch her breast than if she killed him,” she said.

After he sentenced her, Memeo said he was bound by state statute to impose the life sentence, but said he isn’t sure why the prosecution chose to charge her under that statute. District Attorney Gary Woodbury could not be reached for comment.

Taylor, who lived in Jackpot, Nev., at the time of the crime, kissed a friend’s child, forced him to touch her breast and asked him to have sex with her in February 2008.  Taylor claimed she was intoxicated and doesn’t remember what happened that night.  She told jurors she roughhoused with the boy, but didn’t force him to touch her inappropriately.

Based on the facts stated here, this case sounds like a remarkable test case for the reach and limits of the Eighth Amendment in non-capital punishment settings.  But I cannot help but think there must be more, perhaps a lot more, to this story.

"More States Rethinking Life Sentences for Teens"

The title of this post is the headline of this new piece in The National Law Journal.  Here is how it gets started:

Their lawyers have long urged juries to give juvenile defendants a second chance. Now a growing number of states are rethinking the wisdom of sentencing teenagers to life in prison. Two states have recently passed -- and at least 11 states are considering -- legislation that would end life sentences for those under 18 years old or, more generally, restrict charging juveniles as adults.

The U.S. Supreme Court will also have something to say on the issue. In two Florida cases argued in November, the high court is considering whether a life sentence without parole for juveniles who have committed crimes other than murder violates the U.S. Constitution's prohibition on cruel and unusual punishment.

But state lawmakers are not waiting to hear the justices' opinion. Although efforts to abolish juvenile-lifer laws are nothing new, the legislators' willingness to side with criminal defense lawyers against prosecutors is a change. And a key reason appears to be new scientific evidence that adolescents are simply not capable of weighing their actions like adults.

"How Young Is Too Young to Face Life in Prison?"

The title of this post is the headline of this new effective piece from ABC News and Good Morning America.  Here is how it starts:

The father of a 12-year-old Pennsylvania boy charged last year with murder says his son is "just an all-around good kid" who doesn't deserve to face life in prison.

A judge will soon decide whether or not Jordan Brown should be tried as an adult for the murder of his soon-to-be stepmother, and face a possible life sentence. The case is at the crux of a national debate on juvenile justice, playing out in a small-town courthouse.

Before his arrest, Jordan was the quarterback of the Pee Wee football team and a good student. His dad says he was "big into sports" with "a lot of friends in school."

But on Feb. 20, 2009, his father's fiancée, Kenzie Houk, 26, was found dead, shot in the head in the family's rural farmhouse in Western Pennsylvania. She was eight-and-a-half months pregnant at the time.

Prosecutors quickly built a case against Jordan, then 11, accusing him of using his shotgun -- a hunting gift from his dad -- to fire one fatal bullet before getting on the bus for elementary school. Within 24 hours, the fifth-grader was arrested for murder. When Chris Brown saw his son being taken away by police, the boy was "scared, frightened, [and] crying."

"Jordan's never been away from me for any length of time since he was born," he recalled thinking. "He was terrified, terrified." Brown said his son "looked like a baby" when he was incarcerated. "He looked like a baby in an orange jumpsuit in an adult jail."

Brown continues to proclaim his son's innocence. But the family of Houk has reportedly described Jordan as angry and profoundly jealous of the fact that the new woman in his father's life was about to have a son, to be named Chris after his dad. Jordan was charged with two counts of homicide. Chris Brown believes his son comprehends what he stands accused of, "but he doesn't appreciate the magnitude of it. He's simply too young."

Too young, many argue, to face the prospect of an adult sentence. Kids charged with murder in Pennsylvania are automatically considered adults and only a judge's decision can move the trial to junvenile court.

If convicted, the two routes have radically different sentences, either life in prison without parole, or juvenile detention and freedom with no record at age 21. Due to tough-on-crime laws, Pennsylvania has more juveniles sentenced to life in prison without parole than any other state.

New ACS issue brief making the case against juve LWOP

I just got word of this new issue brief from the folks at the American Constitution Society, which is titled "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole." This piece is authored by Jody Kent and Beth Colgan, and here is how ACS summarizes the work:

This Issue Brief is particularly timely in light of the Supreme Court’s consideration of the constitutionality of juvenile life sentences without the possibility of parole in two cases, Sullivan v. Florida and Graham v. Florida.  Ms. Kent and Ms. Colgan examine why, in their opinion, such sentencing practices represent deeply flawed public policy.  As the authors explain:

"Regardless of whether the Court extends [its precedent acknowledging that juveniles are different from adults] to find the sentencing of youth to life in prison without the possibility of parole unconstitutional, advocates for youth have called for reform of extreme sentencing policies, on the basis that they grossly undermine rational, fair, and age-appropriate treatment of youth."

Ms. Kent and Ms. Colgan discuss the well-established principle that youth are different from adults, and explain how this principle is reinforced by adolescent brain development research. The authors address and dismiss arguments that harsh sentencing is necessary to protect public safety, as well as highlight troubling racial disparities and inconsistent sentencing application.  In addition, they describe how such sentencing functions to undermine the United States’s moral standing, given that the United States is the only country in the world to sentence offenders under the age of eighteen to life without parole.  Finally, the Issue Brief concludes with Ms. Kent and Ms. Colgan proposing an alternative to the practice of sentencing youth to life in prison without the possibility of parole --- creation of a system allowing periodic review of sentences to determine whether individuals continue to pose a threat to society or may be returned to communities as productive citizens.  In the view of the authors, this approach balances the need to hold young offenders accountable, while still recognizing their inherent capacity for change and growth.

More details on the Huckabee clemency grant that aided suspected cop killer

PS Ruckman here at Pardon Power and CNN in this new story are adding details to what we now know about the form of clemency granted to Maurice Clemmons, the chief suspect in the fatal shooting of four police officers in Washington state.  Here is some of the new CNN coverage:

Nearly 10 years ago, Maurice Clemmons pledged to make a fresh start. "I come from a very good Christian family and I was raised much better than my actions speak," Clemmons said in a clemency application brief to then-Arkansas Gov. Mike Huckabee in 2000.  "I'm still ashamed to this day for the shame my stupid involvement in these crimes brought upon my family's name."

Clemmons was 27.  He'd spent the past 11 years in an Arkansas prison, convicted of offenses including robbery, burglary, theft and taking a gun to school.  He was facing a 95-year sentence.

A decade later, Clemmons is the subject of an intense manhunt in Washington state, suspected in the deaths of four Lakewood, Washington, police officers who were shot to death Sunday as they met in a coffee shop before starting their shifts.  Authorities have said Clemmons is believed to have entered the Forza Coffee Company and opened fire on the officers with no warning....

In 2000, Clemmons told Huckabee that the crimes occurred when he was 16, had just moved to Arkansas from Seattle and had fallen in with the wrong crowd.  "Where once stood a young 16-year-old misguided fool ... now stands a 27-year-old man, who has learned through the 'school of hard knocks' to appreciate and respect the rights of others," his petition to Huckabee said.

Huckabee commuted Clemmons' sentence in 2000, citing his young age at the time of sentencing, making him eligible for parole.  It was granted in July 2000, after he told Arkansas parole officials that he "just wants the opportunity" and "is not the same person he was when he came in," the documents said....

In his 2000 brief to Huckabee, Clemmons said his mother had died while he had been in prison, providing him with further motivation to turn his life around. "I have never done anything good for God, but I've prayed for him to grant me in his compassion the grace to make a start," he said. "Now, I'm humbly appealing to you for a brand new start."

But after receiving a second chance, Clemmons was apparently unable to stay on the right side of the law, according to documents and authorities in Arkansas and Washington. Arkansas parole board documents show that he was back in prison by September 2001.  The Arkansas Democrat-Gazette reported that he was arrested for aggravated robbery and theft and taken back to prison on a parole violation.  The paper said he was not served with the new arrest warrants for the robbery and theft charges until he was paroled three years later in 2004.  His attorney argued that the charges should be dismissed because too much time had passed, and prosecutors complied.

Huckabee went on to become a 2008 Republican presidential candidate and has not ruled out a second try for the White House in 2012.  In a statement Sunday night, his office said Clemmons' commutation was based on the recommendation of the parole board that determined that he met the conditions for early release.

"He was arrested later for parole violation and taken back to prison to serve his full term, but prosecutors dropped the charges that would have held him," the statement said.  "Should he be found responsible for this horrible tragedy, it will be the result of a series of failures in the criminal justice system in both Arkansas and Washington state."

Clemmons is believed to have moved to Washington in 2004.  The Pierce County Sheriff's Department said in a statement that he was recently charged in the assault of a police officer and rape of a child.  County court records posted online show that he spent several months in jail and was released on $150,000 bail Tuesday, days before the shootings.

As these details highlight, this high-profile story could not only impact public and political opinions on clemency grants, but also public and judicial opinions on whether violent juvenile offenders generally should or even constitutionally must be given the opportunity for parole when sentenced to very long prison terms.  Though I doubt the Justices' views in the juve LWOP cases of Graham and Sullivan will be unduly influenced by a single tragic offense, I think many juve offenders who have turned their lives around while in prison will be cursing Maurice Clemmons for some time to come.

Atkins, juves and rules versus standards in the Eighth Amendment jurisprudence

The latest Sidebar feature from Adam Liptak in the New York Times has an interesting little discussion of rules and standards in the development of the Eighth Amendment jurisprudence.  The piece is headlined "Bright Lines Blur in Juvenile Sentencing," though it discusses post-Atkins litigation concerning mental retardation as much as it discusses juve sentencing.  Here are excerpts from the piece:

Here is an example of a rule, established by the Supreme Court in Roper v. Simmons in 2005: If you commit murder even hours before your 18th birthday, you cannot be put to death for your crime. The same killing a few hours later may be a capital offense. The court drew a bright-line rule at 18.

Here is an example of a standard, one proposed by Chief Justice John G. Roberts Jr. this month at Supreme Court arguments over whether juvenile offenders may be sentenced to life without the possibility of parole: Why not, the chief justice asked, interpret the Eighth Amendment’s ban on cruel and unusual punishment to require sentencing judges to consider the defendant’s age on a case-by-case basis?

“If you do have a case where it’s the 17-year-old who is one week shy of his 18th birthday and it is the most grievous crime spree you can imagine, you can determine that in that case life without parole may not be disproportionate,” Chief Justice Roberts said.  “If it’s a less grievous crime and there is, for example, a younger defendant involved, then in that case maybe it is disproportionate.”...

Proving age is pretty straightforward, and inmates who were under 18 when they committed the crimes that sent them to death row promptly had their sentences commuted after the court’s decision in Roper.  The Atkins decision, on the other hand, “has spawned extensive, intricate and bitterly contested litigation,” Carol S. Steiker and Jordan M. Steiker wrote in the DePaul Law Review last year....

A new study from three law professors at Cornell, one that resonates with potential lessons for juvenile life without parole, shows that states making case-by-case determinations have taken wildly different approaches.

The study, conducted by John H. Blume, Sheri Lynn Johnson and Christopher Seeds, tried to collect all determinations concerning retardation in capital cases in the six years after Atkins, finding 234.  That means about 7 percent of the nation’s roughly 3,200 death row inmates have claimed to be mentally retarded.

Nationwide, the claims have succeeded about 38 percent of the time. But state success rates vary widely.  North Carolina courts heard 21 Atkins claims and ruled in the inmate’s favor 17 times. Alabama courts heard 26 claims and ruled for the inmate 3 times.

Recall that the Supreme Court said an IQ of “approximately 70” should usually satisfy the first part of the test.  In Alabama, Mississippi and Texas, four inmates with IQ scores of 66 and 67 were held not to be retarded.  But in Pennsylvania, an inmate whose score ranged from 70 to 75 won an Atkins claim.  In California, a score of 84 did the trick.

Professor Johnson said there was a lesson here. “If you look at Atkins, which is supposed to be a categorical rule but has some play in the definitions, you get enormous pushback from the states that don’t want to do it,” she said.  Were the court to adopt Chief Justice Roberts’s approach for juvenile life without parole, she added, “the problem of Atkins’s application would be greatly magnified.”

Shouldn't the Sullivan case be relatively easy for a true Eighth Amendment textualist?

I have long been a fan of textualist approaches to the Constitution because, at the very least, textualism provides a useful starting point for constitutional debates.  And, in some prior posts (see here and here and here), I have suggested that a textualist approach to the Eighth Amendment might make some seemingly hard cases not quite so hard.  In my mind, the Sullivan case argued yesterday in the Supreme Court is one of those cases that seems like it should be relatively easy for a true Eighth Amendment textualist.

Here is the full text of the Eighth Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."  In Sullivan, the Court is considering the constitutionality of a prison sentence of life without the possibility of parole for a 13-year-old who committed a rape.  For a textualist, the question would seem to be whether Joe Sullivan's punishment under these circumstances is "cruel and unusual."  

Part two of the textual analysis seems easy: Joe Sullivan's sentence is surely "unusual."  Sullivan is one of only two 13-year-olds to have received an LWOP sentences for a non-homicide offense in perhaps all of American history.  Because the constitutional text references "unusual" (as opposed to "unique") punishments, a true Eighth Amendment textualist would likely have to conclude that Sullivan's sentence satisfies the second prong of the Constitution's punishment prohibition.

The claim the Joe Sullivan's sentence is also "cruel" could generate more debate, though this term also seems a relatively easy call within a nation conceived in liberty that generally considers children less responsible (and worthy of more protection) than adults.  Specifically, in light of American traditions and commitments, I have a hard time envisioning a sentence more "cruel" than one which confines a juvenile to spend his entire life in prison with no hope or chance for freedom based on an act committed at age 13 which did not take another human life.

Though there was precious little focused textualist discussion in the juve LWOP cases argued yesterday, I did get the sense from the cold transcript that Justice Breyer and perhaps also Justice Sotomayor were drawn to these textualist concepts.  It would be somewhat ironic if these Justices (and not an avowed textualist like Justice Scalia) end up being the only ones who take the text of the Eighth Amendment seriously in Graham and Sullivan.

A few related posts on the Graham and Sullivan cases and Eighth Amendment jurisprudence:

• Transcripts now available for oral arguments in Graham and Sullivan
• Chief Justice apparently taking command in the Graham and Sullivan juve LWOP cases
• Time for a common-person approach to the Eighth Amendment
• Why so much fear about a robust Eighth Amendment doctrine?
• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
•  "The Eighth Amendment is a jurisprudential train wreck"
• Two important (and very timely) Eighth Amendment pieces on SSRN
• An initial (deep?) thought about modern Eighth Amendment jurisprudence

Transcripts now available for oral arguments in Graham and Sullivan

Based on the early reports (discussed here), I am really excited to find time to review the transcripts from the oral arguments in the two juve LWOP cases heard today by the Supreme Court.  Everyone can now access the transcript from Graham here and from Sullivan here, and I hope by late tonight to be able to provide some early commentary on these big Eighth Amendment cases.

UPDATE:  After reading the transcripts, I am largely underwhelmed and not especially hopeful that these cases will produce a profound set of opinions.  All the Justices are understandably struggling with the stardard "where do we draw a line" challenge; but I got the nagging feeling that many Justices are more worried about the risk of drawing lines that would help juvenile defendants than worried about the risk that some states may regularly impose excessive punishments on certain juve offenders.

In addition, How Appealing has collected lots of the major media coverage of the arguments here.  I will be especially grateful to any readers who spotlight any particularly important part of this media coverage of the Graham and Sullivan arguments.

Chief Justice apparently taking command in the Graham and Sullivan juve LWOP cases

This early report from SCOTUSblog, which is titled "Analysis: The Chief leads on juvenile sentences?," concerning on this morning's arguments in the big juve LWOP cases argued this morning heightens my expectation and hope that we could get some interestingly different line-ups in the decisions in these cases.  Here is the start of Lyle Denniston's analysis:

Chief Justice John G. Roberts, Jr., made a strong — and repeated — effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence.  With a number of Justices wondering where to draw an age line if the categorical approach were used, the Chief Justice’s initiative seemed to have a good chance of gaining adherents as the Court heard Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621).

Interesting.....!  And more commentary on this front to follow when I get a chance to consume the transcripts in these cases late tonight.

A few older CJ Roberts-related posts and some newer posts on the Graham and Sullivan cases:

• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
• CJ Roberts and sentencing law: the virtues (and vices?) of consensus
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Should religious doctrines influence Eighth Amendment jurisprudence?
• Watching and wondering about the three SCOTUS newbies in Graham and Sullivan juve LWOP cases

Watching and wondering about the three SCOTUS newbies in Graham and Sullivan juve LWOP cases

As mentioned in this recent post, I am expecting (or at least hoping) that the big Graham and Sullivan SCOTUS cases to be argued this morning will not simply turn on Justice Kennedy as a swing voter in another 5-4 split.  I make this prediction in part because I am expecting (or at least hoping) that the three most recent additions to the Supreme Court could provide some new perspectives and some unexpected excitement in these cases.

I suspect lots of folks will be watching closely during Graham and Sullivan the newest member of the Supreme Court, Justice Sotomayor, because these juve LWOP cases are probably the highest profile constitutional criminal cases that SCOTUS will consider this year.  And, while watching Justice Sotomayor, I will be wondering especially about whether she is uniquely attentive to and uniquely concerned about the racial, ethnic and class disparities that often play a role in harsh juve sentencing realities in many states.

But, when I get a chance to read the Graham and Sullivan transcripts, I am going to be especially watching for any "tells" from Chief Justice Roberts and Justice Alito.  In most major death penalty and police practice cases, CJ Robers and Justice Alito have tended to favor broad government power (especially Justice Alito).  But the issues in Graham and Sullivan do not arise in settings in which prior rulings by the Warren and Burger courts have previously curtailed government authority.  Rather, Graham and Sullivan raise hard (and conceptually under-developed) questions about how federal courts are supposed to give meaning and content to the Eighth Amendment's prohibition on "cruel and unusual punishments" in non-capital settings.  Though CJ Robers and Justice Alito may not bring new jurisprudential perspectives in these cases, I am sure hoping they might.

Of course, SCOTUS watchers surely should keep an eye on the other six Justices in Graham and Sullivan.  The veryyoung age at which Joe Sullivan was given an LWOP sentence might even impact how Justices Scalia and Thomas look at the case, and the repeat and serious nature of Terrence Graham's crimes might impact how Justices Breyer, Ginsburg and Stevens sort through these issues.  And, Justice Kennedy could still be a key "swinger" in both Graham and Sullivan despite my speculation and hope that these cases do not fully turn on his constitutional instincts.  Indeed, Justice Kennedy may be the most interesting to watch because he authored the two most pertinent precedents in Roper and Harmelin.

I could go on and on and on about these cases because they implicate are sooooo many interesting matters of constitutional jurisprudence and sentencing policy.  (For example, I could do a number of posts simply concerning the decision by Obama's Justice Department to sit on the sidelines for this critically important issue).  But, upon completing this post, I think I am going to await having the chance to read the argument transcripts before saying more about Graham and Sullivan.

A few different older and newer posts on issues related to the Graham and Sullivan cases:

• Should we thank new Justices Alito and Sotomayor for all the big criminal law SCOTUS action?
•  Some very early, very brief sentencing reflections on Judge Sotomayor
• Notable background parallels between Judge Sotomayor and Justice Alito
• CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
• Does Roper suggest young juve LWOP is unconstitutional?
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• Should religious doctrines influence Eighth Amendment jurisprudence?
• UK gives life with parole for terrorists convicted of airline bomb plot
• In praise of Texas justice (and shame on the press and public policy activists) on juve LWOP
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Infamous "Lipstick Killer" case provides historical perspective on juve sentencing debate

Previewing tomorrow's big SCOTUS arguments in Graham and Sullivan juve LWOP cases

How Appealing has collected here lots of links to pieces discussing in the big Graham and Sullivan cases to be argued Monday, November 9 in the Supreme Court.  For all the essential case basics in a well presented form, I recommend Lyle Denniston's preview in this SCOTUSblog post titled "Inquiring into the juvenile mind," and Adam Liptak's preview in this New York Times article headlined "Justices Weigh Life in Prison for Youths Who Never Killed."  And, as detailed below, I have done a series of posts on these very important Eighth Amendment cases since cert was first granted earlier this year.

I have a lot of new thoughts about these cases and tomorrow's arguments, some of which I hope to share in future posts.  For now though, let me make one early prediction (which I reserve the right to change after argument): neither Graham or Sullivan will be resolved through 5-4 rulings.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences
• An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
• ABAJcoverage of SCOTUS cases on constitutionality of juve LWOP
• Should religious doctrines influence Eighth Amendment jurisprudence?
• "The Case Against Juvenile Life Without Parole: Good Policy and Good Law"
• A California perspective on the juve LWOP issues before the Supreme Court

UPDATE:  Howard Bashman here has another collections of press stories about the Graham and Sullivan cases.  Readers get bonus points and my gratitude for spotlighting any special or noteworthy details in all this media coverage of these important SCOTUS cases.

"All Locked Up: Did Joe Sullivan, sentenced to life at 13, have a fair trial?"

The title of this post is the headline of this new piece at Slate.  Here is how the piece gets started:

Next week the Supreme Court will hear arguments, in Sullivan v. Florida, about whether sentencing a 13-year-old boy to prison without the possibility of parole violates the cruel-and–unusual-punishment clause of the Constitution. Joe Harris Sullivan is one of two teenagers that young currently doing life without parole for a nonhomicide offense in the United States. His lawyers are hoping that the court will extend its 2005 bar on executing criminals who committed crimes as juveniles to Sullivan's sentence.

Whatever the court decides, its ruling will be based on the premise that Sullivan received a fair trial.  The adequacy of that proceeding isn't before the justices now.  But a brief review of the trial record reveals a process so pathetic that it raises questions about whether Sullivan committed the crime in the first place.  It also seems that the trial judge may not have intended to sentence Sullivan to life without parole.  In the end, that judge, along with the prosecutor and defense lawyer, failed Sullivan so deeply that we have to wonder whether his sentence reflects a deep and basic failure of ordinary criminal justice.

Noting the juve LWOP cases before SCOTUS across the pond

Thanks to How Appealing, I saw this new piece in The Times of London about the Graham and Sullivan cases to be heard by the Supreme Court nxt week. Here are snippets:

The Supreme Court’s rare decision to consider separate cases on the same issue reflects a slow and, many believe, long overdue reassessment of the uniquely American judicial policy of locking up teenagers and throwing away the key.

Joe Harris Sullivan was 13 when a Pensacola judge sentenced him to life without parole for raping a 72-year-old woman. The judge described Sullivan as “beyond help” and declared that he would “send him away for as long as I can”. He has already spent 20 years in jail.

Terrance Graham was 16 when he was arrested for armed burglary while on probation for a previous robbery.

At the time Florida was cracking down on repeat offenders and in 2005 a different judge declared Graham “incorrigible” and imposed the maximum sentence. More than 100 cases have been under the microscope since the Supreme Court ruled, after bitter internal debate in 2005, that juveniles should not be executed for murder.

Numerous legal and medical associations are supporting Sullivan and Graham on the grounds that the courts should not judge teenagers in the same way as they judge adults, just as governments recognise the difference by placing certain restrictions on juvenile drinking, voting and marrying....

The Supreme Court may decide that 13 is too young for a maximum sentence, but that 17 is not. For Sullivan and Graham, the ruling will in effect decide whether they die in jail.

A California perspective on the juve LWOP issues before the Supreme Court

Thanks to How Appealing, we can all read this interesting article by Lawrence Hurley in The Daily Journal of California, which is headlined "U.S. Supreme Court Considers Life Sentences For Juveniles." As these excerpts reveal, the piece provides a west-coast perspective in the issues that the Justices will be dealing with the in the Graham and Sullivan cases:

The future of four prison inmates in California could hang in the balance when the U.S. Supreme Court debates next month whether juveniles can be sentenced to life without parole for non-homicide offenses.

Four convicted felons in the state received such sentences.  Life without parole for crimes not involving murder is not a common punishment for juveniles in California — not to mention the nation as a whole — but on Nov. 9 the Supreme Court will take up the issue when the justices hear arguments in two cases out of Florida....

The cases have attracted considerable attention from legal groups, with experts predicting it could be the start of a concerted attack on the entire concept of life without parole. Some liberal activists and scholars view life without parole in a similar light as the death penalty.

California is one of eight states that have sentenced juveniles to life without parole for certain non-capital crimes. The four males currently serving such sentences were convicted between 1993 and 2003, according to California Department of Corrections and Rehabilitation data that was made available to the Public Interest Law Center at Florida State University.  They were aged 16 or 17 when they committed the crimes.  The prison service's data does not detail the nature of their offenses, but they are all thought to be kidnapping-related, a Corrections Department spokesman said.  The state will not release the names of the four inmates.

When murder offenses are included, there are 263 inmates in California prisons serving life without parole for offenses committed when they were juveniles. They make up a small number of the roughly 170,000 inmates in California's state prisons....

Law-and-order conservatives ... are worried that the cases could open the door to a wider challenge against all sentences of life without parole. As Kent S. Scheidegger, an attorney at the Criminal Justice Legal Foundation in Sacramento, noted, "the ink was barely dry on Roper" before lawyers started making the argument that life without parole for juveniles was also unconstitutional.

His main concern is that even a narrow Supreme Court decision to restrict life without parole for juveniles in certain circumstances could help civil rights groups in future cases. "We are more worried about a 'small step' effect," Scheidegger said.

Activists who have been leading an unsuccessful fight — at least so far — to reform California's sentencing laws are now hoping the Supreme Court will do the job for them. Legislation that would allow an individual sentenced to life without parole as a juvenile to seek re-sentencing after serving at least 10 years in prison has so far failed to pass the California Assembly.

Elizabeth Calvin, a Santa Monica-based senior advocate at Human Rights Watch, said it was gratifying that the Supreme Court had at least "recognized this is such a serious issue" by agreeing to hear the cases.  The publicity generated by the Florida cases is also helpful to her group's cause, she said, because it's contributed to "a growing awareness that the U.S. is the only country that uses this sentence."

Some recent posts on juve LWOP and the Graham and Sullivan cases:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences
• An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
• ABAJ coverage of SCOTUS cases on constitutionality of juve LWOP
• Should religious doctrines influence Eighth Amendment jurisprudence?
• "The Case Against Juvenile Life Without Parole: Good Policy and Good Law"

Infamous "Lipstick Killer" case provides historical perspective on juve sentencing debate

I noticed this interesting recent piece on CNN headlined "'Lipstick Killer' behind bars since 1946."  The article is fascinating for various reasons, and here are a few highlights:

William Heirens, the "Lipstick Killer," is believed to be the longest-serving inmate in the United States. He turns 81 on November 15.  Diabetes has ravaged his body, but his mind is sharp.

"Bill's never allowed himself to be institutionalized," said Dolores Kennedy, his long-time friend and advocate. "He's kept himself focused on the positives." The days are spent mostly watching television and reading magazines.  Using a wheelchair and sharing a cell with a roommate in the health unit of Dixon Correctional Center, he still yearns for a chance at freedom.  It is something he has not tasted since 1946.

Heirens has been locked behind bars and walls for 63 years, making inmate C06103 the longest-serving prisoner in Illinois history, state officials say.  According to Steven Drizin, the legal director of the Center on Wrongful Convictions at Northwestern University, Heirens "has served longer than anyone in the U.S. that I can find."

He was put away a year after the end of World War II. It is a dubious record, but fitting for the man dubbed the Lipstick Killer, whose crime spree remains among the most infamous in the history of Chicago...  "Pray for my release," he wrote in a letter dated October 11. "There is no reason to keep this man behind bars," said Drizin. "He meets all the criteria for parole."

While Drizin, who has represented Heirens since 2001, and others passionately plead for his release and prepare to re-petition the state parole board that has consistently refused to free Heirens, others are convinced he is a manipulative murderer.  "He was the bogeyman," said Betty Finn of the man convicted of strangling her sister.  "I don't think you need to feel sorry for him. He chose his life and he chose his actions."...

He pleaded guilty to three counts of murder.  In exchange for the plea, Heirens was spared the death penalty and given three consecutive life sentences.

Heirens has distinguished himself in prison.  He was the first inmate in Illinois to receive a college degree . "He helped redesign the library system in the department of corrections," said Drizin, who also commended Heirens for becoming a "first-rate jailhouse lawyer."   Drizin said Heirens has been eligible for parole nearly every year since the 1970s. 

There are so many notable elements to this interesting story, ranging from claims that Heirens was tortured into a confession back in 1946 to the fact that he was able to avoid the death penalty by virtue of pleading guilty.  It is also interesting and notable that Heirens was only 17 at the time of his crimes; the Supreme Court's consideration of Eighth Amendment standards for juve sentencing in the upcoming Graham and Sullivan cases could arguably have some relevance to the "Lipstick Killer."  Then again, the issue in Graham and Sullivan concerns sentences of life without the possibility of parole for non-homicide crimes, whereas the "Lipstick Killer" is serving three life sentences with the possibility of parole for homicides.

"The Case Against Juvenile Life Without Parole: Good Policy and Good Law"

The title of this post is the title of this new Findlaw commentary by Kristin Henning, who is Co-Director of Juvenile Justice Clinic and Professor of Law at Georgetown University Law Center.   As the piece's title suggests, the author has a clear view of how the Graham and Sullivan juve LWOP cases ought to be resolved by the Supreme Court.  Here are snippets from the commentary:

In Sullivan and Graham, the Court is not considering whether juvenile offenders should be punished — or punished severely — for their crimes.  The Court is considering the narrow question of whether juvenile offenders should be afforded meaningful opportunities for parole.

Youth offenders, like all offenders, should be held accountable for their crimes — even by life imprisonment. Regardless of the Court's decisions in Sullivan and Graham, the very worst juvenile offenders still may spend the rest of their lives in prison. An opportunity for parole is just that: a chance for a prisoner to show strong evidence of rehabilitation.  If a juvenile offender does not demonstrate change and is deemed a threat to public safety, the parole board will not grant parole.  Victims' rights have long been protected through the parole hearing process, with victims retaining a right to participate and be heard before any decision on parole is granted....

When a child is robbed of the chance to reform, our country is robbed as well.  The overwhelming majority of juvenile offenders can and do become thriving, productive citizens.  This is not an unattainable ideal — it is an irrefutable truth, supported by the research of acclaimed scientists and the stories of inspiring youths like Kareem Watts.

This fall, the Supreme Court has the chance to follow the law — and ensure that Joe Sullivan's and Terrance Graham's path becomes the road not taken for other juvenile offenders.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences
• An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
• ABAJ coverage of SCOTUS cases on constitutionality of juve LWOP
• Should religious doctrines influence Eighth Amendment jurisprudence?

ABAJ coverage of SCOTUS cases on constitutionality of juve LWOP

In the November 2009 issue of ABA Journal magazine includes this article previewing the two juve LWOP cases to be heard by the Supreme Court next month.  The piece is headlined, "Adult Time for Adult Crimes: Is life without parole unconstitutional for juveniles?", and here are excerpts:

In a pair of cases from Florida, Graham v. Florida and Sullivan v. Florida, the court must determine whether Roper’s reasoning — that juvenile defendants are fundamentally different from adult defendants — extends from the death penalty to life without parole.  Arguments are scheduled for Nov. 9.

“Life without parole can be considered as death in prison and the penultimate sanction,” says Florida State University law professor Wayne A. Logan, who has written on juvenile life without parole.  “The court granting cert in two cases signals its concern about ju­venile justice, which is a welcome development.  Life without parole has become a live issue in the wake of the Roper case.”...

Numerous amicus briefs have been filed on behalf of Sullivan and Graham seeking to persuade the court to extinguish LWOP sentences for juveniles.  One of the more compelling comes from a group of former juvenile offenders who later achieved success, including actor Charles S. Dutton and former U.S. Sen. Alan K. Simpson.  Dutton stabbed a person to death in a street fight at age 17, while Simpson committed arson on federal property, punched a cop and — in his own words — “was a monster.”

“We tried to present the views of several individuals who had been involved in criminal offenses when they were juveniles — some of whom may have been eligible for LWOP under particular state laws — and to explain what that kind of severe sentence would have meant for them,” says Washington, D.C.-based attorney David W. DeBruin, who filed the brief.  “The individuals described in our brief had hope because they had the prospect of release. Knowing that they had a chance, they used the time in prison to resolve to do things differently and to obtain skills — and eventually they made outstanding contributions to society.”...

“Roper was wrongly decided, but it is manageable if contained on the death penalty side of the firebreak,” says Kent S. Scheidegger, legal director of the Criminal Justice Legal Foundation, the Sacramento, Calif., group that supports crime victims.  But, he adds, Roper “should not be extended at all.  These are sentencing policy decisions to be made by the people of the several states through the democratic process.  Whether one agrees or disagrees with the decision, it is the people’s to make.  Nothing in the Constitution assigns that decision to the federal judiciary.”

But experts agree on the importance of the cases.  “There is a tremendous amount at stake in these cases when you consider that life imprisonment without the possibility of parole is almost equivalent to a death sentence and gives the offender no chance of relief or release or hope,” DeBruin says.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

• Minnesota Supreme Court rejects constitutional arguments against LWOP sentence for 17-year-old murderer
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Does Roper suggest young juve LWOP is unconstitutional?
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences
• An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
• Should religious doctrines influence Eighth Amendment jurisprudence?

Thoughtful reflections on juve LWOP from Minnesota

As noted in this post, last week the Minnesota Supreme Court rejected constitutional arguments against an LWOP sentence for 17-year-old murderer.  That ruling has prompted this thoughtful commentary, headlined "The kids are not alright: Minnesota minors who kill can go to jail for life with no chance of getting out." Here are snippets:

Last Thursday, the Minnesota Supreme Court upheld Martin’s sentence, saying it was not a violation of the federal or state constitution. Minnesota’s decision comes at a critical time for judicial consideration of juvenile sentences. On Nov. 9, the United States Supreme Court is scheduled to hear oral arguments on whether sentencing juveniles to life without parole for non-homicidal crimes is unconstitutional. To oversimplify things, the decision faced by the courts is whether life sentences meted out to offending minors violates the Eighth Amendment to the U.S. Constitution, which bans “cruel and unusual punishments.” Minnesota’s state constitution, which was also considered in Martin’s case, however, bans “cruel or unusual punishment.”

Before jumping to any conclusions, consider how important some of the issues involved are. These kids have been convicted of committing horrible crimes. You don’t get life without parole for vandalizing the neighbor’s garage....

I was talking about these cases with my friend and classmate Rob Crist, who I think summed things up perfectly with a question: “What do you do with a kid like that?” For some states, the solution is to lock the kids up for the rest of their lives. “The juvenile system has been utterly incapable of doing anything with Mr. Sullivan, even though Sullivan had been given opportunity after opportunity to upright himself and take advantage of the second and third chances he’s been given,” the prosecution’s brief states, quoting the trial judge.

Yet, despite the horror of the acts themselves, many argue that the kids deserve a second chance on account of their age. Sullivan’s defense team’s brief before the Supreme Court lists all the sociopsychological reasons against harsh sentences for children....

Any time a juvenile commits a violent crime, it’s already a tragedy. I can’t help but think that a child like Joseph Sullivan doesn’t do what he did unless a long line of adults — people like his teachers, parents or others in his surrounding community — had failed to teach him responsibility all along.

Somehow, the world has gotten to the point where kids are killers and rapists long before they can graduate from high school. As horrible as this is, I’m skeptical that the best way to deal with our youngest criminal offenders is to lock them up and throw away the key.

Some recent posts on juve LWOP and the Graham and Sullivan cases:

• Minnesota Supreme Court rejects constitutional arguments against LWOP sentence for 17-year-old murderer
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• Analyzing the cert grants in both Graham and Sullivan
• Does Roper suggest young juve LWOP is unconstitutional?
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences
• An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
• Should religious doctrines influence Eighth Amendment jurisprudence?