Sentencing Law and Policy

Minnesota Supreme Court rejects constitutional arguments against LWOP sentence for 17-year-old murderer

A helpful reader forwarded to me today's Minnesota Supreme Court decision in State v. Martin, No. A07-1262 (Minn. Oct. 8, 2009) (available here).  The official syllabus in the Martin case describes one of its holdings in this way: "The punishment of life in prison without the possibility of release for a juvenile who was 17 years of age when he committed the offense was not cruel or unusual punishment in violation of the United States or Minnesota Constitutions." 

The body of the opinion details that the Minnesota Supreme Court in 1999 upheld a juve LWOP sentence against a constitutional challenge, and it also notes that the defendant in this case "was only six weeks from his eighteenth birthday when he shot" and killed a rival gang member.  After reviewing the constitutional arguments made by the defendant, the Minnesota Supreme Court concludes that "Martin has failed to carry his heavy burden of demonstrating a compelling reason to overturn [our prior ruling].  Nor did Martin make any showing that this punishment was disproportionate as applied to him. We hold that the punishment ... is not unconstitutional as applied to Martin."

SCOTUS opening day discussion of juve LWOP cases

Though they are not scheduled to be argued until next month, the official start of the new Supreme Court Term today prompts some additional major media attention and commentary about Graham and Sullivan, the two juve LWOP cases on the docket.  The Wall Street Journal has this new piece, headlined "Life in Prison for Minors -- Cruel and Unusual?", which rightly notes that Justice Kennedy is likely again to be a key vote in this cases:

Since the 1970s, the court has been narrowing the scope of the death penalty to those people considered most reprehensible.  When it comes to prison terms, however, the court rarely has intervened.  Justice Anthony Kennedy often has cast the deciding vote, siding with liberal justices to limit the death penalty, but joining conservatives to uphold severe prison terms.

The court ordered separate arguments in the Sullivan and Graham cases, suggesting it could be inclined to distinguish the two based on their ages.  "The difference between 13 and 16 matters," says Frank Colucci, a professor at Purdue University Calumet in Hammond, Ind., and author of "Justice Kennedy's Jurisprudence," published in September.  Prof. Colucci predicted Justice Kennedy will write an opinion in this case that will stress "the capacity of juveniles to be morally responsible for their crimes."

The Los Angeles Times has this commentaryby lawprof Bernard Harcourt, which is headlined "Sending children to prison for life: Our laws make allowances for juveniles' immaturity; judges should too." Here is a snippet:

The tough-on-crime rhetoric of "lock 'em up and throw away the key" is entirely inappropriate in the case of children. Children's brains, bodies and personalities are still in the process of growing and changing.  And many experts in neuroscience and psychology believe that the same changeability that makes young people vulnerable to negative influences and peer pressure also makes them good candidates for reform and rehabilitation.

In all other areas, we recognize their vulnerabilities.  Because of the relative immaturity and irresponsibility of minors, every state in the nation restricts them from voting, serving on juries, purchasing alcohol or marrying without parental consent.  States further restrict young adolescents from activities that require more mature judgment, such as driving and consenting to sexual activity. In fact, the state of Florida, where Sullivan and Graham are incarcerated for life, does not even permit adolescents to get their ears pierced without parental consent.

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
• 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?

Should religious doctrines influence Eighth Amendment jurisprudence?

Thanks to this post by Orin Kerr, I took a closer look at this amicus brief filed in the SCOTUS  juve LWOP cases on behalf many religious organizations.  As Orin notes, the "substance of the brief is provocative [as] it argues that religion should inform 8th Amendment jurisprudence."  Specifically, consider these passages from the amici brief (with quotes and cites left out):

The importance of a society’s religious organizations’ views on issues of morality, crime, and punishment to that society’s standards of decency is well recognized.  Indeed, for the vast majority of mankind, crime, punishment, and reform are still inextricably bound up with religious views about sin, judgment, and forgiveness.  There are few, if any, institutions that can claim a greater tradition of working with and studying the conscience of the human person and related questions of guilt, blame, and suffering than those of the religious community....

Amici, as members of the religious community, are uniquely positioned to provide invaluable guidance regarding the issue presented in these cases: whether sentencing juveniles to life imprisonment without the possibility of parole for non-homicide offenses is contrary to contemporary standards of decency and therefore violates the Eighth Amendment’s prohibition of cruel and unusual punishment.  Their religious traditions — Christianity, Judaism, Islam, and Buddhism — have played influential roles in societal discourses about morality and criminal punishment throughout history, and continue to do so today.  An overwhelming majority of Americans continue to rely on the teachings and instructions of these faith traditions on matters of morality and justice.

I am curious to hear reader reactions to the suggestion that religious traditions and teaching might have a special role to play in Eighth Amendment cases.

New report on juve LWOP in Massachusetts

One of the many reasons I am always eager for the Supreme Court to take up more (non-capital) sentencing cases is because simply the decision to grant cert will often inspire public policy groups and the general public to notice and debate important (non-capital) criminal justice issues that are too often overlooked.  This reality in on full display in the wake of the Supreme Court's decision to examine juvenile LWOP sentences in Graham and Sullivan: I have noticed a huge uptick in the number of  studies and press reports on life sentences for juveniles in recent months. 

The latest example comes from Massachusetts, as detailed in this Boston Globe article and this press release from the Children Law Center of Massachusetts.  Here is the start of the Globe article:

Despite its liberal reputation, Massachusetts has one of the harshest laws in the country for sentencing murderers as young as 14 to life in prison without parole, and many of the 57 people serving such mandatory sentences are first-time offenders, according to an advocacy group that wants them to become eligible for parole.

The Children’s Law Center of Massachusetts, in what it said was the first comprehensive study of the 1996 law that resulted in such sentences for first-degree murder, found that a disproportionate percentage of the children locked up for the rest of their lives are black. Many of the offenders were convicted with adult codefendants, some of whom got milder sentences and have been freed.

The report [which is available at this link] followed a two-year review of most of the cases in which children ages 14, 15, and 16 were tried in adult court and sentenced to life. The study says that penalties for juvenile murderers were inadequate in the 1980s but that the Legislature went too far when it passed the current law in response to what the center describes as overblown fears of young super predators.

The group wants Governor Deval Patrick and the Legislature to change the law to at least make juveniles convicted of first-degree murder eligible for parole after 15 years, as is true for people convicted of second-degree murder. “Life-without-parole sentences may be an appropriate response to some adult crimes, especially in a state like Massachusetts that does not impose the death penalty,’’ the 33-page report said. “But the current law treats youths as young as 14 exactly like adults, regardless of their age, past conduct, level of participation in the crime, personal background, and potential for rehabilitation.’’

Other 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
• "A Life Term for Rape at 13: Cruel and Unusual?"
• NYTimes coverage of very young lifers
• Does Roper suggest young juve LWOP is unconstitutional?
• Juves serving life terms
• The next issue in sentencing of juveniles?
• New HRW report assailing juve LWOP in California
• LDF report documents disparities in juve LWOP in Mississippi
• House hearing on bill to eliminate juve LWOP sentences
• 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

An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases

Writing in today's Los Angeles Times, David Savage has this preview of the two big Eighth Amendment cases to be heard this fall by the Supreme Court. The piece is headlined "Supreme Court to consider juvenile 'lifers': Does life without parole for minors who didn't kill constitute cruel and unusual punishment?". Here are excerpts:

According to Amnesty International, "The United States is the only country in the world that does not comply with the norm against imposing life-without-parole sentences on juveniles."

Nearly all of the estimated 2,500 U.S. prisoners serving life terms for juvenile crimes, the group said, were guilty either of murder or of participating in a crime that led to a homicide. But 109 inmates are serving life sentences for other crimes committed when they were younger than 18.

Sullivan's and Graham's lawyers do not claim the young men deserve to go free. "We are not asking for Mr. Graham to be released any time soon," attorney Bryan Gowdy said. "We are asking the court to declare unconstitutional a sentence of life without parole for these crimes. It would be entirely different if Mr. Graham had a meaningful opportunity for parole."

The question will be an early test of whether Justice Sonia Sotomayor, a former prosecutor, will align herself with the court's tough-on-crime conservatives or join with its liberals to strike down prison policies perceived as going too far.

Sullivan’s and Graham’s cases will be heard in November. Many lawyers and prosecutors said that until the Supreme Court agreed this year to take up the issue, they were unaware of juveniles receiving such sentences....

Florida leads the nation in sending teenagers to prison for life with no possible parole for crimes such as burglary, assault or rape. It has at least 77 such inmates. California and six other states also have at least one. "This is a hidden group. They don't get a lot of attention because there was no homicide," said Paolo Annino, a law professor at Florida State University who has compiled national data on these prisoners.

California officials said they were unaware of having four such inmates until they checked their database at Annino's request. Two years ago, California joined many other states in prohibiting the sentencing of young offenders to life in prison. But that measure did not affect inmates who had already been sentenced.

Annino and others point to two trends in the 1980s that led to juveniles serving life terms. First was the national move to abolish parole, reflecting fears that violent criminals could not be safely released. Second was the increased prosecution of young criminals as adults.

In defense of its life-in-prison policy, Florida's lawyers have pointed to several deadly attacks on European visitors carried out by young criminals. These violent incidents were "threatening the state's bedrock tourism industry," Florida's lawyers said in the opening paragraph of their brief to the Supreme Court in the Graham case.

Other 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
• "A Life Term for Rape at 13: Cruel and Unusual?"
• NYTimes coverage of very young lifers
• Does Roper suggest young juve LWOP is unconstitutional?
• Juves serving life terms
• The next issue in sentencing of juveniles?
• New HRW report assailing juve LWOP in California
• LDF report documents disparities in juve LWOP in Mississippi
• House hearing on bill to eliminate juve LWOP sentences
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• New Heritage Foundation report defending juve LWOP sentences

UK gives life with parole for terrorists convicted of airline bomb plot

This new CNN article, which reports on three high-profile terror defendants getting sentenced in London, provides an interesting point of comparison concerning life sentences in the US and other parts of the world.  First, here are the basics:

Three men convicted of plotting to bomb planes flying from London to North America with liquid explosives hidden in soft drink bottles were ordered imprisoned for life, a judge announced Monday.

The men were arrested in August 2006 on suspicion of plotting to blow up planes with liquid explosives hidden in soft-drink bottles. The plot led to immediate restrictions on liquids that passengers are allowed to carry onboard aircraft, resulting in today's rules that allow only small amounts to be carried in resealable clear plastic bags.

The judge, Justice Richard Henriques, called the plot "the most grave and wicked conspiracy ever proven within this jurisdiction." "The plot would have succeeded but for intervention of police and security services," he said, rejecting a defense argument that the men would have failed to get the chemistry right and actually blow up planes.

The ringleader, Abdulla Ahmed Ali, 28, must serve at least 40 years before he is eligible for parole, the judge said. He is "likely to remain a serious danger to the public for a long time," the judge, Justice Henriques, said. "You are a driven and determined extremist with boundless energy."...

A second plotter, Assad Sarwar, 29, must serve a minimum of 36 years before he is eligible for parole. Henriques gave him a lesser sentence on the grounds that he was not the ringleader of the plot and not involved in recruiting other people for it.  The third man convicted of the plot, Tanvir Hussain, 28, must serve at least 32 years, the judge said, calling him "no mere footsoldier."...

British prosecutors called the plot "calculated and sophisticated" and said it could have killed hundreds or even thousands of people.

So, let's review the stories of life sentencing in the UK and the US in light of this case another set of high-profile cases:

In the UK today, a "driven and determined extremist with boundless energy," who was the ring-leader of "the most grave and wicked conspiracy ever proven," which could have killed thousands of people, is sentence to life with parole eligibility.   

Meanwhile, in the US in two months, the Supreme Court will consider the constitutionality of Florida's decision to send two juvenile defendants, one of who was involve in a rape at age 13, the other committed armed robberies at 16 and 17, to life without parole eligibility.   

Putting these stories together raises an important and controversial constitutional question: should the fact that even the most extreme terrorists do not get LWOP sentences in other parts of the world have any bearing on whether juve LWOP sentences for non-homicide crimes in the US constitutes "cruel and unusual punishment" prohibited by the Eighth Amendment?

New Heritage Foundation report defending juve LWOP sentences

I just learned of a timely new report released this past week by The Heritage Foundation on the topic of life sentences for certain juvenile offenders. The report, which is available at this link, is titled "Adult Times for Adult Crimes: Life Without Parole for Juvenile Killers and Violent Teens," and is authored by Charles Stimson and Andrew Grossman.  As its title suggests, this lengthy report reads like an amicus brief in support of states seeking to defend the use of LWOP for juve offenders in the upcoming SCOTUS cases Graham and Sullivan.

The report has an executive summary that starts this way:

Life without parole for the very worst juvenile offenders is reasonable, constitutional, and (appropriately) rare.  In response to the Western world’s worst juvenile crime problem, U.S. legislators have enacted commonsense measures to protect their citizens and hold these dangerous criminals accountable. Forty-three states, the District of Columbia, and the federal government have set the maximum punishment for juvenile offenders at life without the possibility of parole.  By the numbers, support for its use is overwhelming.

Nonetheless, its continued viability is at risk from misleading lobbying efforts in many states and court cases that seek to substitute international law for legislative judgments and constitutional text.

Emboldened by the Supreme Court’s Roper v. Simmons decision, which relied on the Eighth Amendment’s “cruel and unusual punishments” language to prohibit capital sentences for juveniles, anti-incarceration activists have set about extending the result of Roper to life without parole.  If they succeed, an important tool of criminal punishment will be eliminated, and all criminal sentences could be subjected to second-guessing by judges, just as they are in capital punishment cases today.

The most visible aspects of this campaign are a number of self-published reports and “studies” featuring photographs of young children and litigation attacking the constitutionality of life without parole for juvenile offenders — including two cases that the U.S. Supreme Court has agreed to hear in its 2009 term.

Because the activists have monopolized the debate over life without parole, legislatures, courts, the media, and the public have been misled on crucial points.  For example, dozens of newspaper articles, television reports, and court briefs have echoed the activists’ assertion that 2,225 juvenile offenders are serving LWOP sentences in the United States, despite that this figure is nothing more than a manufactured statistic.  This report is an effort to set the record straight. It provides reliable facts and analysis, as well as detailed case studies, with full citations to primary sources.

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

• "A Life Term for Rape at 13: Cruel and Unusual?"
• NYTimes coverage of very young lifers
• Does Roper suggest young juve LWOP is unconstitutional?
• Juves serving life terms
• The next issue in sentencing of juveniles?
• New HRW report assailing juve LWOP in California
• LDF report documents disparities in juve LWOP in Mississippi
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Analyzing the cert grants in both Graham and Sullivan
• House hearing on bill to eliminate juve LWOP sentences
• Gearing up for the SCOTUS juve LWOP cases on the horizon

Detailing the extreme toughness of juvenile justice in Florida

The constitutionality of the extreme toughness of juvenile justice in two paricular Florida cases will be before the Supreme Court in the Graham and Sullivan cases to be argued in the fall.  In the meantime, this front-page article from the Sarasota Herald-Tribune, which is headlined "Florida justice: Tough on youths," provides more details on just how tough the Sunshine State is on young offenders.  Here are snippets from the piece:

Records show that Florida has handed out more life sentences to juveniles for non-murder crimes than have all other states combined.  Florida's sentencing raises questions about cruelty as well as concerns about racial bias.  While blacks represent about 16 percent of Florida's population, and about half its prison population, 84 percent of juveniles sentenced to life without parole for non-homicide offenses were African-American.

Florida has sentenced 77 young men to spend their lives in prison, without any chance of release, based on non-homicide crimes they committed when they were 17 years old or younger, according to a preliminary study by Florida State University researchers.  Six of those prisoners were 13 or 14 at the time of their crimes. 

A Herald-Tribune review of state records shows that some juveniles were given life without parole for as few as one or two convictions of non-homicide crimes.  Florida's stance has generated protests from human rights groups and a lawsuit heading to the U.S. Supreme Court, which contends such sentences violate the Constitution's ban on cruel and unusual punishment.

But the state shows little sign of stopping judges from imposing life sentences on juveniles or providing a path to freedom for those already in prison. Lawmakers rejected a bill last spring that would have allowed juveniles in some non-homicide cases to eventually become eligible for parole.

The controversy in Florida stands out because it differs so greatly from policies elsewhere. Florida prisoners represent 69 percent of the 111 inmates reported nationally to be serving life without parole for their non-homicide juvenile crimes. Thirty-six states have no non-homicide juvenile lifers.

Some of the amici briefs in support of the defendants in Graham and Sullivan

I am still working through the top-side merits briefs in Graham and Sullivan (discussed here), which are the two SCOTUS juve LWOP cases that present fascinating Eighth Amendment question.  I hope to be able to find time in the weeks ahead to blog about what these merits briefs argue (and what they do not argue).  

In the meantime, folks ahead of me on their juve LWOP reading can and should start checking out the 14 amicus briefs filed on behalf of the defendants that the SCOTUSwiki folks have posted here and here.  Though I hope to eventually blog about what some of these amici argue, I hope readers might get a running start by noting any especially interesting or unexpected argument to be found in these friendly briefs.

It seems as though the Obama Administration's Department of Justice did not file a brief on behalf of the defendants in these cases.  I perhaps can understand the political calculus leading to that reality, but it is another disappointing example of the disinclination of Obama's DOJ to spend any political capital in order to advocate on behalf of even juvenile criminal defendants.

Some other posts on the Graham and Sullivan cases:

• 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
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Analyzing the cert grants in both Graham and Sullivan
• Gearing up for the SCOTUS juve LWOP cases on the horizon
• Top-side briefs in Graham and Sullivan, the two SCOTUS juve LWOP cases

Top-side briefs in Graham and Sullivan, the two SCOTUS juve LWOP cases

Thanks to the folks at the ABA who collect Supreme Court briefs here, we can all now read the top-side merits briefs filed late last week in the two juve LWOP cases, Graham and Sullivan, to be heard next term by Supreme Court (basics here and here).  As I have explained in prior posts (some of which are linked below), I think Graham and Sullivan are the most important Eighth Amendment cases to be heard by the Supreme Court in a long time (and they are also among the most interesting constitutional cases on the current SCOTUS docket). 

The top-side merits brief in Graham can be access at this link.  The top-side merits brief in Sullivan can be accessed at this link.  Both are very lengthy because of long appendices.

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

• "A Life Term for Rape at 13: Cruel and Unusual?"
• NYTimes coverage of very young lifers
• Does Roper suggest young juve LWOP is unconstitutional?
• Juves serving life terms
• The next issue in sentencing of juveniles?
• New HRW report assailing juve LWOP in California
• LDF report documents disparities in juve LWOP in Mississippi
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Analyzing the cert grants in both Graham and Sullivan
• House hearing on bill to eliminate juve LWOP sentences
• Gearing up for the SCOTUS juve LWOP cases on the horizon

In praise of Texas justice (and shame on the press and public policy activists) on juve LWOP

Thanks to a comment to this post, Scott of Grits for Breakfast informed me that "Texas abolished life without parole for juveniles this year legislatively. The Governor signed it.  It's now a 40-year minimum for juveniles convicted of capital murder in TX.  Here's the legislation."  In addition to being quite pleased and impressed that Texas passed legislation to reduce sentences for certain juvenile killers, I was troubled that I had completely missed this interesting and important story about a change to Texas justice.

I then spent some time this morning looking for press reports about this new legislation and/or materials about this notable Texas reform from various public policy groups that focus on juvenile justice issues.  Disappointingly and aggravatingly, I could not find ANY significant media coverage or materials from public policy groups about this reform to Texas justice.  (Grits had a few helpful posts on bill here and here and here, but these posts only confirmed my sense that this Texas story deserves a lot more attention.)

The troublesome silence about the Texas reform is especially notable because many folks are now focused on juve LWOP issues because of the Supreme Court's decision to consider the constitutionality of two non-murder) juve LWOP cases from Florida.  And, as death penalty fans know, state legislative developments are central to the Supreme Court's modern Eighth Amendment jurisprudence.  I sure hope that folks writing briefs in the SCOTUS cases of Graham and Sullivan are aware of this recent important reform in Texas justice even though it has been overlooked and ignored by the media and public policy groups.

Because I am eager to know a lot more about this Texas reform to severe juve sentencing, I hope anyone and everyone with additional information and/or materials concerning this legislative change will send stuff my way (or provide links in the comments to this post).

Gearing up for the SCOTUS juve LWOP cases on the horizon

I was pleased to receive word this week that the Institute of Bill of Rights Law had chosen one of the two juve LWOP cases, Sullivan v. Florida, for its moot court event as part of its Supreme Court Preview 2009-2010.  The Institute's decision to moot this juve LWOP case confirms my instinct that Sullivan (and the companion case Graham) are perhaps the most important and interesting cases on the Supreme Court's current docket. 

Adding to my excitement, today I came across this effective new piece about Graham and Sullivan from the online magazine Miller-McCune.com.  The piece is titled "Should Minors Ever Face Life Without Parole?," and here are a few excerpts:

In the term beginning this October, the Supremes will hear two cases — one involving a 13-year-old sex offender, the other a 17-year-old probation violator present when a felony murder occurred — both aiming to challenge life-without-parole sentences for juveniles (known by the unwieldy acronym JLWOP). Concurrently, the House Subcommittee on Crime, Terrorism and Homeland Security has been gathering testimony on a bill that would mandate parole hearings for JLWOP prisoners. The bill covers federal cases and gives states a financial incentive to comply with its terms.

"There is so much attention on this issue right now," says Baylor Law School professor Mark Osler, who has testified in favor of the proposed House bill, H.R. 2289. "I think in part it's because you have groups doing a good job advocating on it, and the idea is becoming more and more prevalent — that instead of wholesale change, we are smoothing off the rougher edges of the justice system, and that includes a focus on children."

Opponents to a change suggest that a focus on the prisoners as children, and not offenders, is wrong-headed and ahistorical. In its brief before the Supreme Court in the 13-year-old sex offender case, the State of Florida Attorney General's Office wrote, "Outside the context of the death penalty, this Court has always examined whether a sentence is grossly disproportionate under the Eighth Amendment by examining the sentence in relation to the offender's instant offense and prior offenses, not the individual characteristics of offender, such as age or mental capacity."...

The United States is one of the few countries that hand out JLWOP sentences. A 2005 Amnesty International study found that life without parole for juveniles is theoretically available in a dozen countries, but besides the U.S., only three others actually had teens serving such sentences — Israel with seven, South Africa with four and Tanzania with one.

In contrast, Sentencing Project Executive Director Mark Maurer noted in his testimony before the House subcommittee that 2,500 U.S. teenagers are incarcerated with no hope of release, most of them people of color. A majority of these — as many as 60 percent — are first-time offenders, and more than one quarter were convicted of felony murder, meaning they were participating in a crime when a murder occurred, but didn't do the actual killing.

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

• "A Life Term for Rape at 13: Cruel and Unusual?"
• NYTimes coverage of very young lifers
• Does Roper suggest young juve LWOP is unconstitutional?
• Juves serving life terms
• The next issue in sentencing of juveniles?
• New HRW report assailing juve LWOP in California
• LDF report documents disparities in juve LWOP in Mississippi
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Analyzing the cert grants in both Graham and Sullivan
• House hearing on bill to eliminate juve LWOP sentences

House hearing on bill to eliminate juve LWOP sentences

As detailed at this page from The Sentencing Project, on Tuesday afternoon the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security will hold an hearing on the "Juvenile Justice Accountability and Improvement Act of 2009," which includes provisions to eliminate life without parole sentences for juvenile offender.

This official House webpage list witnesses scheduled to testify (and may soon provide links to written testimony).  The bill being discussed can be accessed here, and one of its key provisions calls upon each State to "have in effect laws and policies under which each child offender who is serving a life sentence receives, not less than once during the first 15 years of incarceration, and not less than once every 3 years of incarceration thereafter, a meaningful opportunity for parole or other form of supervised release."

I do not think this bill is likely to get too much legislative traction, but it should be interested to see what gets said about juve LWOP while briefing is underway in the two juve LWOP cases, Graham and Sullivan, recently taken up by the Supreme Court (basics here and here).

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

• "A Life Term for Rape at 13: Cruel and Unusual?"
• NYTimes coverage of very young lifers
• Does Roper suggest young juve LWOP is unconstitutional?
• Juves serving life terms
• Life without parole for juvenile may be cruel, but it is not unusual
• The next issue in sentencing of juveniles?
• New HRW report assailing juve LWOP in California
• LDF report documents disparities in juve LWOP in Mississippi
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Analyzing the cert grants in both Graham and Sullivan

You make the call: should PA file a brief in Graham and Sullivan

This new article from the Pittsburgh Tribune-Review, which is headlined "U.S Supreme Court may alter juveniles' life sentences," spotlights why Pennsylvania will be very interested in the two juve LWOP cases, Graham and Sullivan, recently taken up by the Supreme Court (basics here and here):

Civil-rights advocates are cautiously optimistic that the days of sentencing juveniles to life in prison with no chance of parole could soon end.  Their hope lies with the U.S. Supreme Court, which said this month it would review two cases from Florida in which juvenile offenders claim their life sentences — one for rape, the other for robbery — are unconstitutional.

Legal experts cautioned the court could rule in a number of ways, and said some outcomes might not change Pennsylvania's sentencing guidelines.  But they added that if the court rules life sentences for juveniles are inhumane, the effect on Pennsylvania — which has about 450 juvenile lifers, more than any other state — could be huge.

"The impact here would be significant, profound and immediate," said Bradley Bridge, an attorney with the Defender Association of Philadelphia who opposes sentencing juveniles to life in prison without parole. "We would go back into court rapidly, seek to have all of the juvenile life sentences ruled unconstitutional, and have them re-sentenced."...

Justices could rule in various ways, according to legal experts.  For example, the Supreme Court could uphold the sentences, or deliver an opinion specific to non-lethal crimes.  All of Pennsylvania's juvenile lifers were convicted for first- or second-degree murder, Bridge said.  Another possible outcome: The court could set an age limit determining when such sentences are inhumane.

For the sake of discussion, I encourage readers to imagine being in the role of a leading legal actor in Pennsylvania — say, Attorney General or the Governor's legal counsel.  How would you assess and decided whether and how Pennsylvania might participate in the Graham and Sullivan cases? 

At one level, you have to realize that if SCOTUS rules for the defendant in either or both cases, there will be lots of (costly and cumbersome) follow-up litigation in the state.  At another level, however, you might be supportive of the idea that juve LWOP should not be possible for non-murder crimes, and might want to encourage the Justices to make an explicit constitutional distinction between LWOP for murder and LWOP for other crimes.  So, might you urge advocating in support of Florida's extreme use of juve LWOP in these non-murder cases, or perhaps instead urge supporting the defendants in a brief that encourages the Justices to draw a constitutional line that could help preserve the law in the Keystone State?

Of course, Pennsylvania might opt not to participate at all, and perhaps any state considering getting involved should fear that a decision to participate could prompt certain Justices to want to issue a broader ruling than the facts in Graham and Sullivan demand. 

So dear readers, should Pennsylvania (and other states) jump into the Graham and Sullivan juve LWOP fray?

Other recent posts on Graham and Sullivan:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Analyzing the cert grants in both Graham and Sullivan

California bill seeks to eliminate juve LWOP

As detailed in this Sacramento Bee article, which is headlined "Calif. bill would give young killers rehab chance," a California state legislator is seeking to eliminate LWOP sentences for juveniles. Here are some of the interesting particulars:

State Sen. Leland Yee believes that wayward kids should have a second chance to make good - even when they commit murder or other serious crimes.  Yee, a San Francisco Democrat who has a doctorate in child psychology, has introduced legislation that would allow courts to reduce the sentences of inmates who were given terms of life in prison without the possibility of parole when they were minors....

The bill, which is on the Senate Appropriations Committee's agenda on Monday, would allow a prisoner who was sentenced to life without parole as a minor to petition a court for a new sentencing hearing after the inmate had served at least 10 years.

The court would have to grant the hearing -- but not necessarily agree to change the sentence -- if it found that the inmate met at least three of eight criteria.  Those standards include the fact that inmate was an accessory to murder but not the actual killer, did not have prior convictions for assault or other violent crimes and had demonstrated remorse.

Elizabeth Calvin, children's rights advocate with Human Rights Watch, an international group that investigates allegations of human rights violations, said there are about 250 California inmates who are serving life without parole sentences handed down when they were minors....

Scott Thorpe, chief executive officer of the California District Attorneys Association, one of the law enforcement groups that opposes the bill, said the standards that courts must consider in determining whether to grant a new sentencing hearing are too weak.... "You're going to set up a system where hearings are going to be mandated which are mini-trials.... We're just concerned about the cost of this and the ease of which it would be established to have these kinds of hearings. The standards are too low."

It is interesting to speculate — and useful for researchers to follow — whether legislative proposals to eliminate juve LWOP will get more or less traction now that the Supreme Court has decided to take up two juve LWOP cases with its cert grants last week in Graham and Sullivan (basics here).  Importantly, because both Graham and Sullivan involve non-homicide crimes, the Supreme Court is unlikely in those cases to address all uses of LWOP for kids and thus bills addressing juve LWOP more broadly are likely to be very important and consequential no matter what the Supreme Court eventually does in these Eighth Amendment cases.

Some other posts on juve LWOP and on recent SCOTUS grants:

• Human Rights Watch calls for federal legislation to eliminate juve LWOP
• New HRW report assailing juve LWOP in California
• NYTimes coverage of very young lifers
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Analyzing the cert grants in both Graham and Sullivan

Human Rights Watch calls for federal legislation to eliminate juve LWOP

I was intrigued and pleased to see this press release from Human Rights Watch discussing its efforts to convince Congress (rather than just the Supreme Court) to eliminate LWOP sentences for juveniles in the United States.  Here are some of the interesting details:

The US Congress should pass a proposed law to end the sentencing of youth offenders to life in prison without the possibility of parole,  Human Rights Watch said today in a letter to members of the House Judiciary Committee.  At least 2,574 individuals in the United States are serving these sentences for crimes they committed before they were 18 years old. The United States is the only country that uses such sentences for crimes committed by juveniles.

On May 6, 2009, Representatives Robert "Bobby" Scott and John Conyers introduced H.R. 2289, the Juvenile Justice Accountability and Improvement Act of 2009, in the US House of Representatives.  The bill would require states and the federal government to offer youth offenders meaningful opportunities for parole after serving 15 years of a life sentence....  

The introduction of the bill coincided with Human Rights Watch's release of new figures showing that there are currently at least 2,574 persons in US prisons who were sentenced to life without parole for crimes committed before the age of 18, an increase of 90 from May 2008.

The higher number is due primarily to improvements in data reporting rather than significant increases in the number of youth sentenced to life without parole.  Increases were most dramatic in California (250 total, an increase of 23), Michigan (346 total, an increase of 30), and the federal Bureau of Prisons (37 total, an increase of 35).  Iowa, Louisiana, Massachusetts, Ohio, and Texas also saw increases in juvenile life without parole.  The states with the largest numbers of prisoners serving this sentence are Pennsylvania (444), Michigan (346), Louisiana (335), Florida (266), and California (250).

Researchby Human Rights Watch found that nationwide, 59 percent of youth serving life without parole sentences received the sentence for their first criminal conviction, and 16 percent were 15 or younger at the time of their offense.  An estimated 26 percent were convicted on the basis of accomplice liability or felony murder.  These are crimes in which a teenager who commits a non-homicide felony such as a robbery is held responsible for a codefendant's act of murder during the course of the crime.  State laws often do not require the person convicted on this charge to know that a murder was planned or even that the codefendant was armed....  

Human Rights Watch has also found substantial racial disparities in life without parole sentences given to juveniles. On average across the country, black youth are serving life without parole at a per capita rate that is 10 times that of white youth. In Pennsylvania, which has the largest number of juvenile offenders serving life without parole, black youth are 21 times as likely to be serving the sentence as white youth....  

On May 4, the US Supreme Court agreed to decide whether life without parole for juveniles who have committed only non-homicide crimes violates the US Constitution's prohibition on cruel and unusual punishments. The case will be heard in the court's next term, which begins in October.

Other posts on juve LWOP and on recent SCOTUS grants:

• New HRW report assailing juve LWOP in California
• LDF report documents disparities in juve LWOP in Mississippi
• NYTimes coverage of very young lifers
• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?
• Analyzing the cert grants in both Graham and Sullivan

Analyzing the cert grants in both Graham and Sullivan

Over at SCOTUSblog, Lyle Denniston has this interesting new post titled "Analysis: Why two juvenile sentence cases?". Here is a snippet of Lyle's analysis:

With a continuing wave across the country of tougher punishment for youths who commit serious crimes, the Supreme Court on Monday returned to the constitutional controversy that the wave has stirred.  The Court took on two new juvenile sentencing cases that, seemingly raises the same issue, but apparently left itself the option of treating them differently.  It did not explain, but a few reasons may be suggested....

It is quite common for the Court, when it has two or more cases raising the same issue, to pick only one for review, or to consolidate them for a joint ruling. It took neither option this time, setting the stage for two rulings, perhaps with different potential outcomes.

[T]here is at least a chance that Sullivan might not be allowed to raise his constitutional argument, because it could be found to have come too late.  The Graham case only involves the specific issue of an Eighth Amendment violation in a life without parole sentence for a minor.  Thus, the Court may have wanted a second case before it in case it should find that Sullivan did not present that claim properly.

Another difference between the two, of course, is the youths’ relative age.  The Court, if it reached the life sentence issue in Sullivan, might be more sympathetic to a youth of his age getting a life term for a sexual crime that left the victim injured, but not dead.  The Court last Term ruled out a death sentence for such a crime (in Kennedy v. Louisiana, involving a child victim who was not killed).

Graham, by contrast, is four years older, and was given a life prison term after returning to criminal activity after being spared a long prison term for an earlier episode.  Some members of the Court may have found him a less sympathetic figure, and wanted to have that case on the docket to perhaps limit the scope of any ruling that went against life terms for teenagers.

Indeed, it might be speculated that the Court spent most of a month looking at these two cases as it tried to sort out just what it wanted before it, and the grant of both cases might well have been a compromise between the Court’s two ideological wings.  The Court has been split deeply in its most recent rulings limiting the scope of the death penalty, and there is no reason to anticipate a more unified bench on this new controversy involving life without parole — a severe sentence for a minor.

The Court will hold oral argument on the two cases in the Term starting Oct. 5, very likely in tandem hearings on the same day.

I think all of Lyle's speculations for why the Court decided to take up both Sullivan and Graham make sense, and I was prepared to predict split rulings were in the works when I first saw that the defendant in Grahamwas 17 at the time of his LWOP sentence.  However, the procedural quirkiness surrounding the imposition of an LWOP sentence in Graham (discussed here), as well as the fact that Sullivan involves a first-offense rape and Graham involves second-offense robbery, makes me wonder if some other factors played a role in the decision of SCOTUS to set up a juve LWOP double-header.

Other posts today on Sullivan and Graham:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Grahamjuve LWOP case
• What might (and should) DOJ and other potential amici say about Graham and Sullivan?

What might (and should) DOJ and other potential amici say about Graham and Sullivan?

I am already having a hard time not getting too excited about the Supreme Court's cert grant today in the juve LWOP cases of Graham and Sullivan (basics here).  Part of the excitement relates to the fact that we can and should expect a new Justice to be on the Court to hear these cases, and thus I can and should that this Justice might breathe some new life into a troublesome modern Eighth Amendment jurisprudence.  Another part of the excitement relates to the question that titles this post — namely, the uncertainty that now surrounds what the Obama Justice Department and other likely amici might have to say about the constitutionality of life without parole sentences for juvenile offenders.

Of course, we can and should expect a number of public policy groups and defender groups to file amicus briefs in support of the defendants in Graham and Sullivan.  Organizations like Human Rights Watch and The Sentencing Project and others have long been vocal opponents of juve LWOP sentences, and I would expect and hope they will share their insights with SCOTUS in these cases.  Also, defender groups like NACDL and others might also chime in to flag some unique lawyering perspectives in these cases.

But what about the US Department of Justice and/or Attorneys General from other states?  Though they could opt to sit out the case altogether, I have an inkling that a diverse set of state and federal prosecutors may have a diverse set of perspectives concerning the proper way to apply (and limit) the Eighth Amendment in the juve LWOP setting.  Can and should we expect a bold amicus brief from federal AG Eric Holder and SG Elena Kagan?  Can and should we expect dueling amicus briefs from states that permit and states that preclude juve LWOP?  I suppose time (and the SCOTUS briefing schedule) will soon tell.

Some recent related posts:

• SCOTUS grants cert in Sullivan, juve LWOP case
• The (unpreserved?) procedural issues in Graham juve LWOP case
• New HRW report assailing juve LWOP in California
• LDF report documents disparities in juve LWOP in Mississippi
• California appellate court finds juve LWOP sentence unconstitutional

The (unpreserved?) procedural issues in Graham juve LWOP case

Thanks to SCOTUSblog's post here, everyone can now check out this cert petition in Graham v. Florida, the juve LWOP case that the Supreme Court decided to take up today (basics here).  Assuming the fact statement in the Grahampetition is accurate, the sentencing procedures used in the case are as troubling as is the substance of the LWOP sentence. 

According to the cert petition, the defendant in Grahamwas given an LWOP sentence by a judge as a sentence for violating the terms of his probation(!) by committing an armed robbery a year after being placed on probation for a prior armed burglary.  As described, the procedures used to impose the LWOP sentence in Graham would seem to raise an array of possible Fifth and Sixth Amendment issues.  But the Graham cert petition only raises an Eighth Amendment claim (and other procedural claims may not have even been raised below), and thus it is unclear whether or how these procedural issues will be addressed as this case gets considered by the Justices.

Some recent related posts:

• EJI files seeks cert on claim that juve LWOP is unconstitutional for 13-year-old offender
• "A Life Term for Rape at 13: Cruel and Unusual?"
• CNN covers Sullivancase as SCOTUS considers juve LWOP
• SCOTUS grants cert in Sullivan, juve LWOP case