Sentencing Law and Policy

VA Asks Supreme Court for Delay in Resentencing Malvo

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

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

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

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

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

"Implementing Proportionality"

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

Over the last fourteen years, the Supreme Court has issued five decisions that impose substantive constraints on our harshest punishments -- forbidding the execution of those with “mental retardation” in Atkins v. Virginia, of juveniles in Roper v. Simmons, and of those convicted of child sexual assault in Kennedy v. Louisiana, and forbidding the sentence of life without parole for juveniles who had not killed in Graham v. Florida and for all juveniles when it is imposed mandatorily in Miller v. Alabama.  Because the offenders in question were categorically less culpable, the proscribed punishment was disproportionately severe, the Court held.  

In many respects, these decisions reinvigorated the Court’s substantive proportionality jurisprudence, which had been virtually dormant for two decades.  Yet, three of the five decisions simply have not yielded in practice what they promised in principle.  The implementation of Atkins, Graham and Miller has been so protracted, litigious and encumbered by procedural obstacles that, of the nearly 3,000 inmates nominally impacted by the decisions, only a fraction has been relieved of their sentences.  In the meantime, inmates with IQs of 61 have been executed, and others have died waiting to hear whether the Court’s decisions apply retroactively.

This Article argues that, despite its transformative potential, the Court’s contemporary proportionality jurisprudence has been diminished in scope and potency in the course of its implementation -- a dynamic that has been called “slippage.”  In many respects, the “slippage” of these mandates can be attributed to the decisions themselves, which are deregulatory and, in concert with the Court’s broader efforts to limit federal court jurisdiction over state criminal justice processes, tie the scope of relief to the political whims and majoritarian preferences of the States.  On some issues, the procedural docility of these decisions has proven so problematic that the Court has twice within the last two years had to intervene, striking portions of Florida’s capital sentencing scheme in 2014 and, just weeks ago, declaring in Montgomery v. Louisiana that Miller does in fact apply retroactively.  

While the Court’s reluctance to regulate the implementation of its proportionality mandates may be rationalized as necessary deference to the principles of federalism and finality, these justifications are far less compelling in the Eighth Amendment context.  The very establishment of federal habeas, executive clemency, and Supreme Court review suggests that the Framers themselves recognized that there are normative points when interests in federalism and finality simply must yield.  By contrast, the risk of offending constitutional norms through slippage may be at their most pronounced since one of the Eighth Amendment’s primary purposes is to protect the politically powerless from government overreach.  I conclude that, if the Court is serious about implementing in practice the substantive constraints on punishment it has imposed over the last fourteen years, it must accompany its substantive mandates with a minimum threshold of procedural prescription.

Supreme Court grants cert to (finally!?!) resolve whether Miller applies retroactively

The Supreme Court, as revealed by this order list, finally appears set to resolve an issue that it has been avoiding for a few years as lower courts have split over implementing its Eighth Amendment work in Miller v. Alabama.  Here is the basic news as set out in the order list:

TOCA, GEORGE V. LOUISIANA

The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following questions: 1) Does the rule announced in Miller v. Alabama, 567 U. S. ____ (2012), apply retroactively to this case? 2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception?

"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.

"Alleyne v. United States, Age as an Element, and the Retroactivity of Miller v. Alabama"

The title of this post is the title of this intriguing Essay by Beth Colgan recently published on the UCLA Law Review's on-line supplement. The introduction previews the issues and argument in the piece:

The U.S. Supreme Court announced in Miller v. Alabama, that the mandatory imposition of life in prison without the possibility of parole against juveniles is cruel and unusual punishment in violation of the Eighth Amendment.  The million-dollar question is whether it would do any good for the over 2000 juveniles who had previously been so sentenced. For those jurisdictions that follow or rely heavily on the dictates of retroactivity set out by the Supreme Court in Teague v. Lane, the touchstone of Miller’s retroactivity hinges on whether the rule it announced is substantive — and therefore retroactive — or procedural.

The Miller opinion provides no clear guidance.   On the one hand, the opinion sounded in procedure, with the Court requiring “that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty.”  On the other hand, the opinion sounded in substantive law, in that it required fundamental changes in criminal laws that mandate the imposition of life without parole in homicide cases where the crime was committed before the defendant’s eighteenth birthday.  Prior to Miller, states and the federal government could require that a court impose a sentence of life without parole on a juvenile without consideration of the defendant’s youth.  But the Miller Court rejected such mandatory sentencing, reasoning that “age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” a juvenile’s history of abuse, the role the juvenile played in the homicide, the existence of peer pressure, the difficulties juveniles have navigating the legal system, and juveniles’ unique capacity for rehabilitation are all constitutionally relevant and therefore a sentencer must have an opportunity to consider such facts at sentencing.

The quasi-substantive/quasi-procedural nature of the opinion created a conundrum for lower courts assessing the retroactivity of the decision.  The answer to this puzzle may come from an unlikely source: the Court’s Sixth Amendment jury trial jurisprudence, and particularly its June 2013 interpretation of that right in Alleyne v. United States.  Though unrelated to both juvenile sentencing and the question of retroactivity, the Alleyne Court did determine that where the existence of a fact dictates whether a mandatory minimum applies, the fact is, in effect, an element of the underlying offense.  This Essay extrapolates from the Alleyne holding to argue that Miller’s requirement that sentencers consider age and its attendant consequences in cases involving juveniles — making age at the time of the offense a fact that triggers whether the mandatory minimum sentence of life without parole applies — converts age to an element of the underlying offense, rendering Miller a substantive rule that must be applied retroactively.

"Talking About Cruelty: The Eighth Amendment and Juvenile Offenders after Miller v. Alabama"

The title of this post is the title of this notable new paper by Samuel Pillsbury now available via SSRN. Here is the abstract:

After setting out the issues and approach of the U.S. Supreme Court majority in Miller v. Alabama, the article develops cruelty as a constitutional norm. Initially cruelty as a norm for Enlightenment thinkers in the late 18th century and in the creation of the American penitentiary in the early nineteenth century is considered. Then the article examines cruelty as a modern norm that condemns both sadism and indifference towards the serious suffering of others. This norm supports the Miller conclusion that mandatory life without chance of parole sentences for certain juvenile offenders are cruel, because such sentences mandate a form of culpable indifference to individual value.

The article then describes how a cruelty norm may guide courts in resolving the constitutionality of a life without chance of parole sentence for juvenile by a judge who had discretion to order a lesser sentence. The cruelty norm described would find unconstitutional a life sentence for a juvenile unless a subsequent opportunity was provided for the offender to seek release based on personal reform. Otherwise, a life sentence would disregard the basic value of the offender in the person that he or she might become.

Terrific Stateline review of states' varied applications of and reactions to Miller

Maggie Clark over at Stateline has this notable new article (and this amazing associated resource) reviewing all the diverse ways states are deal with the Supreme Court's Miller ruling. the piece is headlined "After Supreme Court Ruling, States Act on Juvenile Sentences," and here are excerpts:

Last year, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory life sentences for offenders under 18 are cruel and unusual punishment, and therefore unconstitutional. In the wake of that decision, a federal court this month ruled that ... more than 300 other Michigan juvenile lifers are entitled to a parole hearing.

Michigan is one of at least 11 states that have revisited their sentencing laws in response to the Supreme Court decision (see Stateline chart).  Generally, juvenile killers in those states will be eligible for a parole hearing after serving a mandatory minimum sentence of about 25 years.

Still, there are at least 15 states that have not yet eliminated mandatory life without parole sentences for juveniles.  In many states, legislatures and courts aren’t sure how the Miller decision should apply to offenders such ... already serving such sentences. Nationwide, there are more than 2,000 prisoners in 43 states serving life without parole sentences for crimes they committed as juveniles....

[I]n Pennsylvania, which has largest number of inmates whose sentences are covered by the Supreme Court ruling, the state Supreme Court has been considering the retroactivity question for over a year.  The court’s decision could lead to the resentencing and eventual release of over 400 convicted murderers.

In Michigan, Iowa, Illinois, Louisiana and Mississippi, judges have ruled that the Supreme Court decision applies retroactively to all prisoners serving such sentences.  But in Minnesota and Florida, judges have ruled that the Supreme Court decision only applies to future cases.

State Supreme Courts in Illinois, Florida, Massachusetts and Colorado will likely consider the retroactivity question this fall, said Marsha Levick, chief counsel at the Juvenile Law Center, a legal advocacy group for youth....

The super-predator theory, popular in the early 1990s, predicted a wave of juvenile violent crime in the following decade. States reacted by treating many juvenile offenders as if they were adults.  Between 1992 and 1995, 48 states increased penalties for juveniles convicted of violent crime, according to the Department of Justice.  But that wave never came: Juvenile crime started to drop in the early 1990s, and it has continued to decline in the years since, as has adult crime.

The harsher juvenile sentencing laws likely were not a factor in the decline, since data show there was no difference in the crime rate for states with mandatory life without parole sentences and those without.  Crime has declined nationwide, and across all demographics....

Considering youth as a mitigating factor is part of the Supreme Court’s broader move toward treating kids differently than adults.  In two decisions banning the death penalty for juveniles for both homicide and non-homicide crimes, the justices relied heavily on neuroscience showing that brains are still growing and changing well through the teenage years, meaning that juveniles are likely to grow out of their criminal behavior, especially if they’re put in a rehabilitative setting.

Still, kids are committing adult crimes, and in these cases, victims’ families were promised life without parole sentences for their family member’s killer, said Joy Yearout, spokeswoman for Michigan Attorney General Bill Schuette.  “Families were told that (the killers) would never be paroled, and that could have been 20 or 30 years ago,” Yearout said.  “Now the families are being told that’s not true anymore and that’s very frightening.  It’s very important to have truth in sentencing so that victims have assurance that the sentence will actually be what’s set.” Schuette has said he will appeal the Michigan federal court decision.

Most of the 11 states that have changed their laws to comply with Miller v. Alabama have either discouraged the use of life without parole sentences for juveniles, or scrapped them altogether.

But because the Supreme Court only struck down mandatory life without parole for juveniles, and not all such sentences, states are not required to completely overhaul their juvenile sentencing policies.  In Alabama, where the Supreme Court case originated, the attorney general recently advised district attorneys to seek life with parole in two ongoing juvenile murder cases. The Alabama legislature has not yet approved any changes in mandatory sentencing laws to comply with the Supreme Court ruling.

US District Judge tells Michigan that all its mandatory juve LWOP sentences are unconstitutional

As reported in this local piece, headlined "Judge upholds ban on life, no parole for juveniles in Michigan," a federal district judge in the state up north has issued a new little opinion with significant impact for juve LWOP defendants sentenced before Miller.  Here are the basics:

A federal judge ruled Monday that Michigan must grant parole consideration to anyone convicted of murder as a juvenile, rejecting the state attorney general’s request that an earlier decision to implement the U.S. Supreme Court’s ban on no-parole sentences for juveniles apply only to the convicts who challenged the state’s law.

Michigan has an automatic life-without-parole sentence for first-degree murder convictions, and applies at any age. The U.S. Supreme Court ruled last year that it is cruel and unusual punishment to deny parole consideration to those who are under 18 when convicted. The state said at the time said it had more than 350 prisoners in that category, out of about 2,000 nationwide....

Acting on a 2010 suit by nine Michigan prisoners who received no-parole sentences as juveniles, U.S. District Judge John Corbett O’Meara in Ann Arbor ruled Jan. 30 that Michigan must allow the possibility of parole in cases where the defendant is under 18 when convicted. The U.S. Supreme Court ruled on mandatory no-parole punishments while that lawsuit was pending.

Michigan Attorney General Bill Schuette filed a motion that O’Meara’s decision apply only to those who brought the suit, while the ACLU asked that it apply to those now serving life without parole for convictions as juveniles. Schuette’s office has contended that the Supreme Court’s decision didn’t automatically apply to past sentences, only to those sentenced since the 2012 high court ruling.

On Monday, O’Meara rejected Schuette’s request and said the high court’s ruling applied to past as well as future sentences. State prosecutors “believe they may enforce the statute, which the court has declared unconstitutional, with respect to other juveniles sentenced to life in prison,” the judge wrote. “As this court now makes clear, defendants are incorrect.”

“Every person convicted of first-degree murder in the state of Michigan as a juvenile and who was sentenced to life in prison shall be eligible for parole,” the judge said.

Schuette spokeswoman Joy Yearout said the attorney general “disagrees strongly” with the ruling and said it would subject victims’ families “to re-live horrible tragedies at future parole hearings for teenage murderers already sentenced by a jury of their peers to life in prison without parole.”

“Once a final order is entered in this case, Attorney General Schuette intends to file an immediate appeal,” Yearout said in an email.

The order referenced here runs only two pages and is available at this link.  I think it kind of "resolves" the issue of whether and how the Supreme Court's Miller rulong applies retroactively in a potent and (unduly?) simplistic way.   It will be interest to see just how the Michigan AG develops his arguments on appeal and what the Sixth Circuit ultimately has to say about them.

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).

Notable Miller-aftermath news from three states

Coincidentally, I saw these three news stories this morning concerning how three states are dealing (or not dealing) with the Supreme Court's 2012 Miller ruling concerning the sentencing of juvenile murderers:

• From Alabama here, "Lawyers look to Alabama Supreme Court on juvenile killer sentences after legislature fails to act"

• From Louisiana here, "Juveniles serving life sentences could become parole eligible under bill headed to Louisiana Senate"

• From Missouri here, "Missouri sentencing law for juveniles draws criticism"

In addition to urging readers to comment on which of this trio of states seems to be doing better or worse job with Miller management, I wonder if anyone knows of a collection of resources (ideally on-line) with a state-by-state accouting of responses to Miller and/or a defendant-by-defendant review of efforts to obtain resentencing based on Miller.

Arkansas Supreme Court explains what Miller ruling means now for Kuntrell Jackson

As reported in this AP piece, in a ruling today the Arkansas Supreme Court "ordered a new sentencing hearing for Kuntrell Jackson, whose case was one of two that led to a U.S. Supreme Court decision last year throwing out mandatory life sentences without parole for juveniles." The nine-page ruling in Jackson v. Norris, 2013 Ark. 175 (April 25, 2013) (available here), is an interesting read for a number of reasons.

First, this latest round of habeas litigation for  Kuntrell Jackson does not deal at all with any possible dispute over whether the Supreme Court's Miller ruling is to be given retroactive effect.  This may because it appears the prosecution did not contest Jackson's request to be resentencing in light of Miller, as evidence by this sentence from the opinion: "We agree with the State’s concession that Jackson is entitled to the benefit of the United State’s Supreme Court’s opinion in his own case.  See Yates v. Aiken, 484 U.S. 211, 218 (1988)."

Second, after parroting most of the key language from the SCOTUS Miller ruling, the Arkansas Supreme Court has an interesting discussion of how to revamp the sentencing provisions applicable to Kuntrell Jackson's conviction in the wake of Miller.  Here is how that discussion finishes:

We thus instruct the Mississippi County Circuit Court to hold a sentencing hearing where Jackson may present Miller evidence for consideration.  We further instruct that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony.  For a Class Y felony, the sentence is not a mandatory sentence of life imprisonment without parole, but instead a discretionary sentencing range of not less than ten years and not more than forty years, or life.  Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997).

Finally, we are mindful that Jackson argues that as a matter of Eighth Amendment law, and because of the unique circumstances of this case, he cannot be sentenced to life imprisonment. However, it is premature to consider whether a life sentence would be permissible given that a life sentence is only one of the options available on resentencing.

Notably, Jackson's crime took place in 1999, and I presume he has been in custody since his arrest. In other words, given that he has already served more than a decade in prison and that the Arkansas Supreme Court has decided he is now eligible for a sentence as low as 10 years, he could possibly upon resentencing get a term of only time served. Going forward, it will be interesting to see what sentence state prosecutors request and what sentence actually gets imposed on Jackson at his future resentencing.

Is TJ Lane eager to be the "uncommon" juvenile murderer who can constitutionally get an LWOP sentence?

The question in the title of this post is prompted by this local news report about a high profile state sentencing proceeding which took place in Ohio this morning.  The piece is headlined "Ohio school shooter, wearing 'KILLER' T-shirt, sentenced to life in prison," and here are excerpts:

An Ohio judge has sentenced T.J. Lane, the Ohio teen charged with shooting three students to death and wounding three others last February, to life in prison without parole.

Lane showed up to his sentencing wearing a white T-shirt with the word "KILLER" in capital letters scrawled on it -- the same word police say he had emblazoned on his shirt the day of the shootings at Chardon High School.

Lane, 18, pleaded guilty last month to all charges against him in the Feb. 27, 2012, shootings, in which he opened fire on a cafeteria table full of students in the rural community of Chardon.

In a brief statement during his sentencing on Tuesday, Lane flipped his middle finger to people in the courtroom, which included family members of his victims, reported NBC affiliate WKYC.com.  He revealed his "KILLER" T-shirt to the court once he was inside, taking off a blue button-down shirt he had worn on the way in, the station reported.

Three students -- Demetrius Hewlin, 16; Russell King Jr., 17; and Daniel Parmertor, 16 -- were killed last February.  Nate Mueller and Joy Rickers were wounded, as was Nick Walczak, who is paralyzed from the waist down, according to Reuters.

Lane has not given a motive for the shootings, which rocked the tiny town 30 miles outside Cleveland.

The families of the boys who died in the shooting have attended every one of Lane’s court hearings, The Plain Dealer said.  "I feel he should be locked up for the rest of his life," Domenick Iammarino, grandfather of Daniel Parmertor told The Plain Dealer ahead of the sentencing.  "It was a despicable, premeditated act.  He should breathe his last breath in prison."

Those readers involved with juvenile sentencing or following closely modern Eighth Amendment rulings concerning life without parole sentences (LWOP) know that the Supreme Court in its recent ruling in Miller v. Alabama stated that "given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." It would seem that TJ Lane, who was well past his seventeenth birthday at the time of his seemingly random act of mass murder, was eager to use his time in court today to help ensure that he could be a "poster child" for the kinds of cases and kinds of juvenile defendants for which an LWOP sentence may still be constitutionally permissible.

A few recent related posts:

• "Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases"
• "Constitutional Line Drawing at the Intersection of Childhood and Crime"
• Is Miller an Eighth Amendment "bombshell or baby step"?

Does Miller also render presumptive juve LWOP sentencing unconstitutional?

The question in the title of this post is prompted by this notable new SCOTUSblog post by Lyle Denniston under the headline "A puzzle on juvenile sentencing."  Here are excerpts from Lyle's very lengthy post:

Most of the time, when the Supreme Court sends a case back to a lower court for a further look, the task for the lower court is clear.  But the Justices have left the California courts with little guidance on what to do now with a case involving a teenager convicted for his role in gang-related, drive-by shootings that left three people dead six years ago.  The case involves a youth, seventeen at the time, who received three sentences of life without parole — to run one after the other — plus added prison terms.

Depending upon how California courts react, the case of Michael Angelo Mauricio of Compton, California, might well lead to added protection for minors convicted of murder. The case is Mauricio v. California (docket 11-10139). 

What is at issue in his case is what the Supreme Court meant last month, when it ordered California’s Second District Court of Appeal to reconsider the sentences for Mauricio, focusing on the Court’s decision last Term in Miller v. Alabama (docket 10-9646). The Miller decision barred life-without-parole sentences for minors convicted of murder, but appeared to be limited to cases in which that sentence was mandatory. The puzzlement in Mauricio’s case is that, under California law, life without parole was not mandatory....

Mauricio was convicted ... of three counts of first-degree murder, with special circumstances that led to added punishment.  He was sentenced to three consecutive life-without-parole sentences, plus three consecutive terms of twenty-five years to life. Upholding those sentences, the Second District Court of Appeal last year rejected Mauricio’s legal claim that it was unconstitutional, because of his youth, for the judge to opt for life-without-parole sentences when the judge had the discretion under state law to instead impose twenty-five-to-life sentences.

The appeals court said that, under California law, life without parole was the “presumptive punishment” for murder by a minor in the circumstances involved in Mauricio’s crimes, but that the law also said that, “at the discretion of the court,” the sentence could be twenty-five to life....

The Court majority’s opinion in Miller repeatedly stressed that it was dealing with LWOP as a mandatory matter.... But what did [the Court's] admonitions mean, in the face of a state appeals court ruling that had said explicitly that the sentencing judge had, in fact, taken Mauricio’s youth into account, had examined his role in the murders, and had weighed whether his case deserved the more severe punishment of LWOP? The remand order did not say. Still, the case was sent back to the state court, leaving it to figure out how to react.

Because the Supreme Court in Miller referenced an Eighth Amendment capital sentencing jurisprudence that seems to preclude any presumptive death penalty scheme, I am inclined to believe there are five votes to extend the Miller ruling beyond mandatory sentencing schemes to presumptive sentencing schemes. Of course, the remand in Mauricio is not a holding to this effect, but the remand certainly does hint that Miller is not the end of SCOTUS development of Eighth Amendment limits on severe sentencing systems for juveniles.

Michigan appeals court decides Miller is not retroactive to final juve murder cases

As reported in this local article, which is headlined "Appeals Court: No resentencing for Michigan juvenile lifers, but state law is 'unconstitutional'," an intermediate appellate court has now issued a lengthy ruling on Miller's import and impact in the state up north. Here are the basics from the press report:

The Michigan Court of Appeals today denied a resentencing request for Raymond Carp, 21, who is serving a mandatory term of life in prison without the possibility of parole for a first-degree murder conviction when he was 16....

The ruling invalidated strict sentencing laws in Michigan and other states that treat violent offenders as adults, giving hope to hundreds of inmates serving life terms without hope of parole for crimes they committed as kids.

But the three-judge appeals court panel that heard arguments in the Carp case said today that the Supreme Court decision does not apply retroactively to offenders who already have exhausted the direct appeals process. The high court decision "is procedural and not substantive in nature and does not compromise a watershed ruling," they wrote in a 41-page published opinion.

Michigan is home to more than 350 juvenile lifers, one of the highest totals in the nation, and today's ruling may be appealed to the state Supreme Court.

The appeals court made a point to instruct judges in pending cases that Michigan's current law denying parole is "unconstitutional" when applied to juveniles and urged legislators to revise state statutes to comply with the Supreme Court ruling.

The full opinion in Michigan v. Carp, No. 307758 (Mich. Ct. App. Nov. 15, 2012), is available at this link; it runs 41-pages with nearly 200 footnotes.  Here are the unanimous opinion's final paragraphs:

The United States Supreme Court has, through a series of recent decisions culminating in Miller, indicated that juveniles are subject to different treatment than adults for purposes of sentencing under the Eighth Amendment.  Specifically, we hold that in Michigan a sentencing court must consider, at the time of sentencing, characteristics associated with youth as identified in Miller when determining whether to sentence a juvenile convicted of a homicide offense to life in prison with or without the eligibility for parole.  While Miller does not serve to “foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

While Miller is applicable to those cases currently pending or on direct review, we find that in accordance with Teague and Michigan law that it (1) is not to be applied retroactively to cases on collateral review, such as Carp’s, because the decision is procedural and not substantive in nature and (2) does not comprise a watershed ruling. We urge our Legislature to address with all possible expediency the issues encompassed by and resulting from Miller and that necessitate the revision of our current statutory sentencing scheme for juveniles.

In the interim, as guidance for our trial courts for those cases currently in process or on remand following direct appellate review, we find that MCL 791.234(6)(a) is unconstitutional as currently written and applied to juvenile homicide offenders. When sentencing a juvenile, defined now as an individual below 18 years of age, for a homicide offense, the sentencing court must, at the time of sentencing, evaluate and review those characteristics of youth and the circumstances of the offense as delineated in Miller and this opinion in determining whether following the imposition of a life sentence the juvenile is to be deemed eligible or not eligible for parole.  We further hold that the Parole Board must respect the sentencing court’s decision by also providing a meaningful determination and review when parole eligibility arises.

Notable post-Miller resentencing outcome in Florida case

The Sun-Sentinel has this interesting report on a notable juve murder resentencing resulting from the Supreme Court's Miller ruling.  This piece is headlined "Judge reduces life sentence to 40 years in homeless-beating case," and here are excerpts:

A Broward judge on Thursday reduced the life sentence of a teen sent to prison for clubbing to death a sleeping homeless man to 40 years.  Thomas Daugherty was the youngest of three Broward teens to go to prison for Norris Gaynor's death and the only one to get a life sentence.

An appellate court has said that Daugherty, now 23, was entitled to a new sentencing hearing in light of a recent U.S. Supreme Court ruling that says judges must scrutinize whether juvenile offenders are amenable to reform before ruling that they can never go free.

Broward Circuit Judge Cynthia Imperato reduced the sentence she imposed in October 2008 after weighing Daugherty's remorse, commitment to bettering himself behind bars, hours of testimony detailing his broken childhood and the strong words of the dead man’s sister. “Your story is clearly heartbreaking,” Imperato said. “But we have someone who is dead, someone who was just sleeping on a bench, a homeless person who was beaten to death like a dog. I can't get beyond all that.”...

Daugherty ... was 17 when he and two friends, fueled on Xanax, marijuana and vodka, committed a trio of pre-dawn attacks against homeless Fort Lauderdale men in January 2006.  One of the beatings was captured on surveillance tape at Florida Atlantic University's downtown Fort Lauderdale campus.

The graphic footage showed Daugherty repeatedly walloping a diminutive and defenseless man with a baseball bat, and catapulted the case into the national spotlight. The victim seen in the videotape, Jacques Pierre, survived.  Norris Gaynor, 45, did not. His skull was split open as he slept on a park bench.  A third victim also survived.

Daugherty told the judge he abhors the aimless, drugged out person he was back then and while incarcerated has sought “to get as far away from that person that I was.”

“I hate who I was,” Daugherty tearfully said. “I hate everything about that person. I hate that video. I don't remember doing that to Mr. Pierrre, but I hate that person.”

In 2008, a Broward jury convicted Daugherty and Brian Hooks, also of Plantation, of second-degree murder and attempted murder for the unprovoked attacks. 

William "Billy" Ammons, now 25, took a plea deal in exchange for his testimony and is serving a 15-year sentence at a state prison near Jacksonville.  Hooks, now 25, is serving his 30-year sentence at a state prison in Martin County.

Daugherty's sentencing guidelines called for nearly 30 years in prison.  Prosecutors suggested 40.  Broward Circuit Judge Cynthia Imperato imposed life.

Daugherty returned to Imperato's courtroom at 10 a.m. Thursday as a result of a September ruling from the Fourth District Court of Appeal in West Palm Beach. The state appellate court's decision hinged on a June ruling by the U.S. Supreme Court that judges must consider immaturity and failure to appreciate risks and consequences before concluding that a juvenile offender can never go free....

At sentencing, Imperato told Daugherty she believed his remorse was genuine and that she understood that he had "a horrible and unfortunate upbringing" as the product of a broken home, exposed to drug abuse, neglect and abandonment but she still felt his acts showed "a total disregard for human life." The appellate court ruling did not prohibit Imperato from again imposing a life sentence.

In addition to finding notable that the defendant here got his sentenced cut down to 40 years, I also find it interesting that the defendant here still is getting the longest sentence among his his co-conspirators even as the youngest of three Broward teens convicted of his crimes. He also is now getting, only thanks to the SCOTUS Miller ruling, the sentence that had been requested by prosecutors initially.

Reviewing Florida's struggles to deal with SCOTUS Miller ruling

The Miami Herald has this notable new article headlined "State courts struggle with Supreme Court ruling on young killers." Here are excerpts:

Five months ago, the U.S. Supreme Court banned mandatory sentences of life in prison without the possibility of parole for juveniles convicted of murder. But since the Miller v. Alabama decision, Florida courts have struggled to apply the ruling — and two Miami-Dade cases may help settle key lingering legal questions.

Does the ruling apply to past cases? A Miami appeals court, ruling on a South Miami-Dade killer convicted in 2000, doesn’t think so. That decision, which affects at least 180 cases statewide, is likely bound for higher courts.

When a judge last month gave convicted killer Benito Santiago 60 years in prison — making him the first South Florida juvenile sentenced after Miller — prosecutors immediately vowed to appeal, saying the sentence was illegal....

The Supreme Court never explicitly said Miller should apply to past convictions for juveniles. Florida has at least 180 defendants who could be eligible for new sentences under the Miller case, according to Barry University’s Juvenile Life Without Parole Defense Resource Center.  At least 50 in Miami-Dade may be eligible, according to the Miami-Dade Public Defender’s Office.  So far, none have been resentenced.

Within days of the Miller decision, defendants across the state began asking courts to get new sentencing hearings.  Some prosecutors assumed the decision would be retroactive.

In Tallahassee, the Attorney General’s Office even agreed that “relief is appropriate” in the 2008 case of then 17-year-old Jose Gonzalez, who stabbed a man to death during a robbery, according to court documents.

In the case of Drewery Geter, he was 16 when he raped and slit the throat of nurse Helen Barker in front of her young son in 2000. After the Miller decision, convicted killer Drewery Geter asked Miami-Dade’s Third District Court of Appeals to toss his murder sentence for raping and slitting the throat of nurse Helen Barker in front of her young son when Geter was 16 years old.

But the court in September ruled Geter couldn’t get a new sentence because judges considering youth during sentencing was merely “evolutionary” and a “procedural change.” The court also ruled that applying Miller retroactively “would undoubtedly open the floodgates” of long-ago convicted killers seeking new sentences....

The Miami appeals court’s decision surprised legal observers — because Geter represented himself. The court did not ask lawyers on either side to lay out their arguments. “Everybody was shocked and dismayed,” said Ilona Prieto Vila, director of Barry’s resource center. “It kind of came out of the blue. You have a right to counsel in Florida and there was a lot of confusion about what happened and why he did not have an attorney.”

Immediately, hearings for new sentences halted in trial courts around Florida. A Tallahassee appeals court, in the Gonzalez case, last month agreed with the Geter decision. Legal observers believe the “retroactivity” issue will be settled in higher courts....

Higher courts, at least in Florida, and possibly the Legislature itself will likely also have to settle the question of the proper sentence for juveniles convicted after the Miller decision. Santiago’s was the first South Florida murder case to go to sentencing after the Miller decision. He was 17 when he used an AK-47 to mow down a man and woman in Liberty City in 2006. Their young daughter identified the killer because of his distinct face cross tattoos. Miami-Dade jurors in August convicted him of two counts of first-degree murder....

Venzer did not let him off easy: 60 years. Miami-Dade prosecutors say they will appeal. The reason: According to the Florida Prosecuting Attorneys Association, first-degree murder sentences now must “revert” back to before the sentencing laws were changed in 1994. That means youths convicted of first-degree murder should get an automatic life sentence — but with the chance for parole after 25 years.

The state long ago effectively abolished the parole system, but a commission still exists to examine longtime inmates eligible for release because their cases date back to the early 1980s or before. “The parole commission was never eliminated,” said Pensacola State Attorney William Eddins, the head of the prosecutors’ association. “The commission will just have some more cases is what it amounts to.”

Critics, including the Public Defender’s Office, say courts don’t have the authority to “enact a new, hybrid statute.”

Though not mentioned in this article, another good example of Florida's struggles with Miller is reflected in another appellate decision just last week in Washington v. Florida, No. 1D11-2314 (Fla. 1st Dist. App. Nov. 5, 2012) (available here). The majority opinion in this case just remands a juve murder case for resentencing, and the concurrring opinion gets started this way: 

I concur in the majority's decision to remand for resentencing pursuant to the dictates of Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012).  I disagree, however, with the majority’s decision not to determine which are the appropriate sentencing alternatives available to this trial judge.  The failure to reach this difficult issue gives no guidance to this trial judge or the numerous other judges facing sentencing or resentencing decisions in similar circumstances, and it deprives the supreme court of the benefit of our thoughts on an issue which will ultimately reach that court.

Pennsylvania Gov signs "Miller fix" sentencing legislation into law

As reported in this local article, headlined "Bill provides alternatives to life sentences for juveniles convicted of murder," I believe Pennsylvania has now won the award for being the first state to reform its law to comply with the Supreme Court's Eighth Amendment ruling in Miller v. Alabama.  Here are the details:

Minors convicted of murder in Pennsylvania could serve as little as 20 years in prison under guidelines set in a bill signed into law by Republican Gov. Tom Corbett on Thursday.

The law gives defendants under age 15 at least 20 years for second-degree murder and 25 years for first-degree. Those ages 15 to 17 would see minimum sentences drop to 25 and 35 years, respectively.

The law was spurred by a recent U.S. Supreme Court decision that bans automatic life-without-parole sentences for juveniles convicted of murder. York County District Attorney Tom Kearney said the law is a fair answer to the court's ruling. "The approach that is made is a pretty well-balanced one," he said....

Opponents of the then-bill had argued that paroled juvenile murderers would be released with very few life skills. However, Kearney said inmates are offered rehabilitation programs and would likely receive life skills and training for jobs while in prison. "We don't call ... it the Department of Corrections for no reason," he said.

The new guidelines set only the minimum sentencing limits, meaning a convicted murderer could serve a longer sentence -- including a life sentence -- and that inmates are paroled only after they've proven they are fit to return to society....

The law applies only to future cases, officials said. People already sentenced to life without parole for murders they committed as juveniles -- including 11 convicted in York County -- remain in legal limbo.... The state Supreme Court is considering what to do about those currently in the prison system under sentences now deemed to be illegal.

Effective report on appellate consideration in Michigan of many post-Miller issues

This effective local article, headlined "Resentence juvenile lifers? Michigan appeals court considers implications of Supreme Court ruling," provides an effective review of appellate arguments this week dealing with the potential impact of the SCOTUS Miller ruling in that state up north.  Here are excerpts:

The Michigan Court of Appeals is weighing arguments in a single case that may shape the fate of 368 prisoners serving mandatory life sentences for violent crimes they committed when they were minors.

Attorney Patricia Selby Tuesday asked the appeals court to order resentencing for her client, Raymond Carp, who was convicted of first-degree murder in the 2006 stabbing of 43-year-old MaryAnn McNeely in St. Clair County.

Carp, who was 15 when his half-brother repeatedly stabbed the woman with his assistance, exhausted the traditional appeals process but is seeking a chance at resentencing in the wake of a June ruling by the U.S. Supreme Court.

The nation's highest court ruled mandatory life terms without the possibility of parole is an unconstitutionally cruel and unusual punishment for minors, invalidating sentencing schemes in Michigan and other states.... But [the Supreme Court] did not indicate whether the ruling should retroactively apply to convicts such as Carp, who was sentenced years ago.

Michigan has more "juvenile lifers" than most states, according to an MLive Media Group analysis. Defense attorneys are expected to request hundreds of resentencing hearings in coming months, and judges around the state are looking to the Court of Appeals for guidance....

Selby, who was joined by attorneys from the American Civil Liberties Union and the State Appellate Defender's Office, argued that the ruling was substantive, pointing to a previous Supreme Court decision that eliminated mandatory death sentences and led to resentencing in states allowing capitol punishment. "Ruling are deemed substantive if they prohibit a certain category of punishment for a class of offenders on the basis of their status or offense," she said. "In this case... what they banned was mandatory application without parole."

Timothy Morris, senior assistant prosecuting attorney for St. Clair County, argued that the Supreme Court ruling was procedural, requiring new sentencing guidelines but not resentencing hearings for previously convicted offenders. "We aren't killing anyone here," he said, attempting to draw a distinction between the high court rulings on mandatory death sentences and juvenile life sentences. "We aren't terminating anyone's existence."

Morris was joined by attorneys for the state prosecutor's association and attorney general's office, which joined the case last week at the behest of Attorney General Bill Schuette, who has argued that resentencing could unnecessarily burden the families of victims by forcing them to return to court....

Beyond the retroactivity issue, the court also spent significant time discussing the need to revisit state laws and current sentencing schemes in the wake of the Supreme Court ruling. A state House committee held an introductory hearing in July but does not appear likely to act in the immediate future.

"If ever there were an area that begged for immediate legislative action, this does," said Judge Talbot, "for the cases that are in the trial courts and for the cases that are pending on appeal."...

Michigan law automatically treats 17-year-olds as adults and allows prosecutors to do the same for even younger juveniles accused of violent crimes. It also requires mandatory life sentences without parole for certain crimes.

This "perfect storm" of statutes would make it difficult for the court to strike down a single provision without rewriting them all, Talbot said, expressing a reluctance but apparent need to legislate from the bench unless lawmakers step up. Acting on a request from Talbot, attorneys on both sides presented a series of "judicial fixes" that could provide relief to lower courts, which are looking for guidance as they consider sentencing juveniles convicted of violent crimes.

Some prior major posts on Miller and its potential impact:

• All juvenile defendants get narrow procedural Eighth Amendment win in Miller
• Issue-spotting the mess sure to follow Miller's narrow (procedural?) ruling
• Basic mandatory juve LWOP head-count in light of Miller
• Data and resources to gear up for the coming Miller meshugas
• Taking stock on what Miller is likely to portend
• Pennsylvania Supreme Court hearing arguments on (first?) major Miller retroactivity cases
• Intermediate Florida appeals court decides Miller is not to apply retoractively
• One of thousands of post-Miller personal (and sentencing) stories

Without fanfare, Louisiana Supreme Court gives retroactive effect to Miller via brief order

According to at least one accounting I have seen, Louisiana has nearly 250 persons serving LWOP for offenses committed when they juveniles.  I believe this makes Louisiana fifth among all states in total juve LWOP prisonder (and the leading state if judged on a per-capita basis).  Thus, a little ruling on Friday from the state Supreme Court in Louisiana v. Simmons, No. 11-KP-1810 (La. Oct. 12, 2012) (available here), seems like quite a big deal.  Because the per curiam ruling is just one paragraph long, I will reprint the whole thing here:

Writ granted.  Relator is presently serving a sentence of life imprisonment at hard labor without possibility of parole for a second degree murder committed in 1995 when he was 17 years old.  The sentence was mandated by the penalty provision of the statute establishing the offense.  La.R.S. 14:30.1(B).  In 2011, relator filed a motion to correct an illegal sentence in which he contended that a sentence of life imprisonment without parole for a juvenile offender is no longer constitutionally permissible under developing legal standards, and in particular in light of Graham v. Florida, 560 U.S. __, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (Eight Amendment precludes sentencing juvenile offenders to life imprisonment without parole for non-homicide crimes).  The district court denied relief. While review of that judgment was pending, the United States Supreme Court determined that mandatory life imprisonment without parole for those offenders under the age of 18 years at the time they committed a homicide offense violates the Eighth Amendment prohibition of “cruel and unusual punishments.”  Miller v. Alabama, 567 U.S. ____, ____,132 S.Ct. 2455, 2466, 183 L.Ed.2d 407 (2012).  Unlike the case in Graham, the Miller court did not prohibit life imprisonment without parole for juveniles, but instead required that a sentencing court consider an offender’s youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest possible penalty for juveniles who have committed a homicide offense. Therefore, we grant to remand to the district court for reconsideration after conducting a sentencing hearing in accord with the principles enunciated in Miller and stating the reasons for reconsideration and sentencing on the record.

Because of the date of the underlying conviction, this Simmons ruling seems like a big deal because it suggests that the Louisiana Supreme Court has, without pause, ordered giving retroactive effect to the Miller ruling.  A little research indicates that Louisiana has a statutory provision providing for motion to correct an illegal sentence at any time, so perhaps it is neither surprising nor that big a deal that the state Supreme Court has here been quick to order what might be called a Miller resentencing hearing.  Still, because there are so many Louisiana juve LWOPers, and because this order calls for "reconsideration after conducting a sentencing hearing in accord with the principles enunciated in Miller," this little ruling seems to me to be a big deal.

Some prior major posts on Miller and its potential impact:

• All juvenile defendants get narrow procedural Eighth Amendment win in Miller
• Issue-spotting the mess sure to follow Miller's narrow (procedural?) ruling
• Basic mandatory juve LWOP head-count in light of Miller
• Data and resources to gear up for the coming Miller meshugas
• Taking stock on what Miller is likely to portend
• Pennsylvania Supreme Court hearing arguments on (first?) major Miller retroactivity cases
• Intermediate Florida appeals court decides Miller is not to apply retoractively
• One of thousands of post-Miller personal (and sentencing) stories

"The Mandatory Meaning of Miller"

The title of this post is the title of this new piece by Professor William W. Berry III. Here is the abstract:

In June 2012, the United States Supreme Court held in Miller v. Alabama that the Eighth Amendment’s ban on 'cruel and unusual' punishment prohibited the imposition of mandatory life-without-parole sentences on juveniles.  This case continued the Supreme Court’s slow but steady expansion of the scope of the Eighth Amendment over the past decade.

In light of the Court’s decision in Miller to preclude mandatory sentences of life without parole for juveniles, this article explores the possibility of further expansion of the Eighth Amendment to proscribe other kinds of mandatory sentences. Applying the approach of the Court in Woodson and Miller to other contexts provides, at the very least, a basis to remedy some of the injustices created by mandatory sentences.

This article, then, argues that the “mandatory” meaning of Miller is that the Eighth Amendment requires consideration of mitigating evidence by courts in all cases involving “death-in-custody” sentences. In light of this mandatory” meaning, the article then considers several important normative consequences.

Specifically, application of this 'mandatory' meaning would result in the Eighth Amendment barring imposition of a 'death-in-custody' sentence in capital cases where life with parole is not a sentencing option, cases involving a mandatory sentence of life without parole, and cases where the term of the sentence approaches the life expectancy of the offender. As explained below, the key principle here is that the Eighth Amendment requires courts to examine mitigating evidence in any case where the duration mandated legislative sentence exceeds the life expectancy of the offender.

Part I of this article explains the meaning of 'mandatory' as developed by Miller. In Part II, the article describes the normative consequences of adopting the 'mandatory' meaning of Miller -- when 'mandatory' matters -- in applying the Eighth Amendment to 'death-in-custody' cases. In Part III, the article then makes the case -- why 'mandatory' matters -- for adopting this approach in Eighth Amendment cases.

NY Times editorial on Miller puts Gideon cart before the Teague horse

I continue to be intrigued that so many commentators seem so quick to assume that all the juvenile murderers sentenced to mandatory LWOP long ago will be sure to get resentenced as a result of the Supreme Court's Miller ruling.  A high-profile example of commentary that appears to make this (harmful?) assumption comes from this New York Times editorial, which is headlined "A Moral Right to Counsel."   Here is the editorial in full, with commentary to follow:

About 2,000 juvenile offenders serving life sentences without parole can now seek new sentencing hearings to challenge their punishment.  The Supreme Court ruled last week that it is unconstitutional to impose such a sentence on a juvenile convicted of murder without an individualized finding that considers the defendant’s characteristics and the details of the crime.

But without capable lawyers to handle the hearings, the court’s humane ruling is unlikely to matter for those serving a mandatory life sentence received as a juvenile.

The constitutional right to counsel in criminal trials does not apply to these sentencing reviews because the offenders have already been convicted.  But they can’t initiate a review if they cannot afford a lawyer.  That’s why the federal government and the 28 states affected need to provide them with lawyers as a moral right.

And not just any lawyer.  The court said juveniles have a less developed sense of responsibility and should not necessarily get the same punishment as adults.  The hearings will require lawyers with training in psychology and human development to argue convincingly that an offender’s record supports reducing a life sentence — including what Justice Elena Kagan, in her majority opinion, called a juvenile offender’s “immaturity, recklessness, and impetuosity” at the time of the crime.

In addition, states must provide funds for expert witnesses to help the lawyers do their job, as is now required in the sentencing phase of death penalty cases, where mitigating factors are weighed.

Almost one-quarter of those serving mandatory life sentences have been in prison for 21 years or longer.  For them, Justice Kagan said, a state must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

In many cases, the offender’s young age and a history of being abused, for example, were so striking that judges said during sentencing that they were imposing mandatory life without parole because they had no choice.  States should ensure that these offenders receive new hearings and the assistance of effective counsel.

There are so many assertions in this editorial that are flat-out wrong or deeply misguided, I am not sure where to start.  To begin, as my post headline and introduction highlights, this editorial seems to assume that all long-ago sentenced juve murderers will get the benefit of the new procedural rule of Miller.  But, as I stressed in my very first Miller aftermath post here, states can (and will?) argue that Miller is inapplicable to final juve LWOP sentences imposed long ago because it is a new rule of criminal procedure that should not apply retroactively under Teague.

This editorial also seems misguided when it asserts that the Sixth Amendment right to counsel "does not apply to these sentencing reviews because the offenders have already been convicted."  It is true that there is no constitutional right to counsel for a habeas petition, but if/when a defendant were to secure a true, full trial court "resentencing" after Miller through a successful habeas petition, the Sixth Amendment right to counsel arguably would apply just as it does at an initial sentencing.  (Indigent federal defendants often get their sentences reversed on direct appeal in the federal system and I have never seen a claim that they lack a right to counsel at a true, full trial court "resentencing".)

This editorial also seems misguided when it asserts that mandatory LWOP sentenced defendants "can’t initiate a review if they cannot afford a lawyer."  These defendant surely can (and should) initiate a habeas petition pro se; a lawyer is not absolutely necessary here (or ever) to bring a habeas petition.  Though it is surely true that a high-quality lawyer will likely be better able to develop a stronger habeas claim (and make stronger points at any full resentencing), it is certainly not true that review cannot be initiated without a lawyer.

This editorial also seems misguided when it suggests that the mandatory LWOP sentenced defendants who have already "been in prison 21 years" or longer now must be given "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."  In fact, even if these long-serving LWOPers get the benefit of Miller's new rule, they still can be constitutionally resentenced to LWOP and thus can still be sentenced to die in prison as long as that decision is made individually by a judge or jury bases on the specific case facts.

Last but certainly not least, this editorial also seems misguided when it suggests governments have a "moral" obligation to providing enough funding so that these juve murderers now get the best lawyers to help them argue for a second bite at the sentencing apple.  I think it would be very appropriate and valuable if the NY Times had asserted that all the highly (over?)paid corporate lawyers in NYC have a moral obligation to provide pro bono assistance to the roughly 2000 juvenile defendants who might be able to benefit from Miller.  (I suspect there are well over 2000 lawyers in NYC alone making a seven-figure salary, so a real pro-bono commitment for major law firms should mean every one of the juve defendants potential impacted by Miller could have a million-dollar lawyer.)

But with states now strapped to find taxpayer resources to help hungry kids and sick old people and so many other innocent persons struggling in this down economy, I find disconcerting the notion that there is moral obligation on states to take money away from other urgent priorities in order to (excessively) fund lawyers to help get these juve murderers another bite at the sentencing apple.  (Of course, I would be happy to bill in full for all my lawyering time to help out these defendants if and when any state steps up to the plate with a big pile of funding for lawyers as the New York Times says they should.)

Judge down under laments mandatory 20 years (with parole) for brutal contract killer

The debates on this blog over the Supreme Court's recent work in Miller finding unconstitutional a mandatory LWOP sentence for a juvenile killer (see comments to posts here and here) have been robust and at times (over)heated.  With the Miller case and controversy fresh in mind, I found this new local story from Australia quite interesting and comparatively telling.  The story is headlined "Judge slams mandatory sentencing laws as 'unjust'," and here are excerpts:

A Supreme Court judge has criticised the Northern Territory sentencing regime as "unjust and unfair".  Justice Dean Mildren made the comment after sentencing Darren Jason Halfpenny to 20 years in jail for the contract killing of a man in Katherine.

Justice Mildren said he was required to impose a minimum 20 year prison term because of the mandatory sentencing regime in the Territory.   "It is unjust and unfair, and contrary to the public interest, that prisoners who plead guilty ... and are remorseful ... are left in a situation where their earlier release is left in the hands of the executive (government)," he said.

Russell Golflam of the Criminal Lawyers Association of the Northern Territory agrees. "Mandatory sentencing is, in principle, obnoxious," he said.  Mr Golflam says judges should be given the power to do the job that they're paid to do; impose appropriate penalties according to the circumstances of the case.  "Parliament and governments should not take that job away from judges," he said. He is calling for the Sentencing Act to be amended.

Justice Mildren recommended that Halfpenny be released on parole after 14 years because he will testify against his co-accused in the murder....

During the trial, the court heard Darren Halfpenny and two friends, Christopher Malyschko and Zac Grieve, donned shower caps and gloves before entering the Katherine house where Ray Niceforo lived.  The court was told Mr Niceforo, 41, was struck in the head with a blunt object seven times, then had a rope tied around his neck.

His body was wrapped in a tarpaulin and put into a van before being dumped in bushland. The body was found the following day and an autopsy found Mr Niceforo died from a blunt force head injury or asphyxiation.

Halfpenny was questioned by police a few days later and confessed.  He later agreed to testify against his co-accused, Malyschko and Grieve, who have been charged with murder.

The court was told the three men carried out the killing for a payment of $5,000 each. Crown prosecutor Jack Karzevski, QC, said the contract killing was commissioned by Bronwyn Buttery, the ex-partner of Mr Niceforo, who has also been charged with murder.

So, let's do a little compare/contrast concerning judicial sentencing attitudes in the land down under and in the land of the free: 

--- in Australia, a sentencing judge is bemoaning as "unjust and unfair" a legislative requirement to impose a 20-year prison term with parole on an adult who intentionally committed a brutal contract murder.  This kind of homicide in the US would clearly qualify as first-degree murder in just about every US state and in most would make the defendant eligible for the death penalty.  The defendant's decision to plead guilty and cooperate would likely prompt most US prosecutors to take the death penalty off the table but likely still would make a (perhaps mandatory) LWOP sentence still possible (even probably) for the premeditated and henious crime.

--- in the United States, four Justices of our Supreme Court in Miller have bemoaned the majority's ruling that the US Constitutional prohibits a legislative requirement to impos a life prison term without parole on a 14-year-old who unexpectedly had a role in the another's lethal shooting of a store clerk during an intentional robbery.  This kind of homicide in Australia, I suspect based on this somewhat dated report on homicide sentencing patterns, would likely result in the offender getting a prison sentence of just over 10 years with the possibility of parole a few years soon.

For a host of reasons, I am strongly disinclined to assert that Australia's sentencing approach to murder offenses is to preferred to the US system, and that kind of claim is not the point of this post.  Rather, my goal here is just to highlight (especially on July 4th, the day we most celebrate America as the land of the free and the home of the brave) the reality that a judge in Australia is quick to lament having to impose a 20-year prison term with parole on a brutal adult contract killer, while in Miller we see four Justices being quick to lament our Constitution being interpretted to giving a 14-year-old convicted of felony murder just the chance to seek a sentence less than life prison term without parole.

Questioning forceful (but suspect) claims by the varied Miller dissents: the Thomas/originalism methods

As previously explained here, in a series of posts I am trying to explain briefly what I see as a suspect judgment or assertion or conclusion at the heart of each dissenting opinion to the Supreme Court's new Eighth Amendment SCOTUS Miller ruling (opinion here, basic questions here and here and here).  In the first post here, I questioned number-crunching in the Roberts/textualism dissent.  In this second post now, I question claims about LWOP as a method of punishment in what I am calling the Thomas/originalism dissent.

Justice Thomas' Miller dissent, which was joined only by Justice Scalia, rests on an originalism claim in this sentence:  "As I have previously explained, '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.'  Graham (dissenting opinion)[FN 2]." The associated footnote 2 then says (cites omitted): "Neither the Court nor petitioners argue that petitioners’ sentences would have been among the modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.  Nor could they. Petitioners were 14 years old at the time they committed their crimes.  When the Bill of Rights was ratified, 14-year-oldswere subject to trial and punishment as adult offenders.  Further, mandatory death sentences were common at that time.  It is therefore implausible that a 14-year-old’s mandatory prison sentence — of any length, with or without parole — would have been viewed as cruel and unusual."

Though I am not deeply versed in Eighth Amendment originalism, I do know some reasonably contest that the Eighth Amendment was only "originally understood as prohibiting torturous methods of punishment."  But even if one fully accepts Justice Thomas' claim that the Eighth Amendment is only to be viewed as a restriction on punishment methods, I do not find it "implausible" to contend that those who enacted the Eighth Amendment in the late 18th century (and/or those who enacted the Fourteenth Amendment in the mid 19th Century) would view an LWOP prison term as "akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted."

A critical assumption built into the (suspect) logic of Justice Thomas' reasoning in footnote 2 is that, because the death penalty was not considered a cruel and unusual method of punishment for teens at the time the Bill of Rights was adopted, surely then must the seemingly lesser punishment method of prison not have been considered cruel and unusual.  But the Eighth Amendment surely was never meant or understood to support the claim that because death is a constitutional method of punishment everything short of death and/or leading up to death is also constitutional.  Many infamous forms of torture punishments around during the colonial period (such as thumbscrews, ducking stools, and the rack) were often not expected or intended to cause death, and yet all seem to agree that these methods of punishment would violated the Eighth Amendment even from an originalist perspective.  In addition, originalists seem also to agree that severe physical punishments designed to cause a painful "lingering death" in the process of completing an execution (such as the breaking wheel or drawing and quartering) were modes of punishment being barred by the Eighth Amendment's prohibition on cruel and unusual punishments.

Of course, being locked in a prison cage is surely not as physically painful a method as thumbscrews or the rack, especially over a short period of time.  But prison as the deprivation of liberty over time is surely a distinct method of punishment, and an LWOP prison term lasting many decades is surely much more physically and mentally taxing than, say, being subjected for a few days to thumbscrews or waterboarding.  (Indeed, I would wager many relatively young offender serving an LWOP would agree to enduring thumbscrews or waterboarding for a few days in order to get a real chance for an early release.)  In other words, though a day in prison is surely a less torturous method of punishment than a day on the rack, I am not sure that necessarily means that an LWOP prison term lasting many decades is a less torturous method of punishment than a day on the rack.

Moreover, bringing back in the Framers' mindset, in this context I often think of Patrick Henry's famed quote of "Give me liberty or give me death" and President Lincoln's famed description of America as a nation "conceived in liberty."  Against that backdrop, I think one might fairly conclude that many Framers would have viewed a LWOP prison term's permanent deprivation of human liberty to be a method of punishment (much?) worse than death.  Indeed, what truly makes an LWOP sentence so severe and extreme is that it is arguably just a form of "lingering death" because deprivation of any chance at parole ensures that an offender will forever linger in prison (sometimes with only slightly more liberty than someone left on a rack if always kept in solitary confinement) until he eventually dies.  (The fact that prison was concevied and designed to be soley a method of rehabilitative punishment around the time of enactment of the 14th Amendment add to my view that an LWOP prison term might very well have been viewed as both cruel and unusual to many Americans throughout much of American history.)

My point here is decidedly not that I think an originalist approach to the Eighth Amendment is ideal or provides a clear jurisprudence concerning when an LWOP sentence might and might not be constitutionally permissible.  Rather, as in all my posts in this series on the Miller dissents, I just want to flag the reality that the originalist claim that only some methods of punishment are unconstitutional does not necessarily and obviously, as Justice Thomas seeks to suggest, produce the conclusion that the LWOP sentences at issue in Miller were constitutional.  Indeed, because liberty-deprivation through confinement in prisons (and especially the LWOP sentence) are really a very modern mode/technology of punishment wholly unknown to the Framers, I think trying to figure out what the Framers would have thought about LWOP prison terms is a bit like trying to figure out what the Framers would have thought about the internet: one's personal views about the new technology will necessarily color one's judgment as to what the Framers' would have thought.

Related post in this series:

• Questioning forceful (but suspect) claims by the varied Miller dissents: the Roberts/textualism numbers

Questioning forceful (but suspect) claims by the varied Miller dissents: the Roberts/textualism numbers

Though I still have tons of questions about what the new Eighth Amendment SCOTUS Miller ruling will come to mean (opinion here, basic questions here and here and here), I now have some first thoughts on the three intriguing Miller dissents.  Though covering some overlapping grounds (and overlapping votes), I think it is fair to short-hand these dissents using their authors and main themes: (1) the Roberts/textualism dissent, (2) the Thomas/originalism dissent, and (3) the Alito/legislative judgment dissent. 

Notably, the relatively short Miller majority opinion (perhaps wisely) does not very deeply engage with all the points made in the dissenting opinions, but there is a lot of interest and force in these dissents.  However, though seemingly forceful in various ways, I see a suspect judgment or assertion or conclusion at the heart of each dissent.  In a series of three posts, I hope to explain briefly the suspect foundation in each of these dissents.  I will start here by questioning number-crunching in the Roberts/textualism dissent in Miller.

Chief Justice Roberts' lead Miller dissent, which was signed by all the dissenters, rests on a forceful textual point set forth in these two sentences at the end of first paragraph: "The pertinent law here is the Eighth Amendment to the Constitution, which prohibits 'cruel and unusual punishments.'  Today, the Court invokes that Amendment to ban a punishment that the Court does not itself characterize as unusual, and that could not plausibly be described as such."  Though I see much force and wisdom in the Chief's concern for the term "unusual" in any interpretion of the Eighth Amendment, I think a careful and sober assessment of the data makes it quite "plausible" to characterize the sentences at issue in Miller as unusual.

First, if we focus just on Kuntrell Jackson's case before SCOTUS, it seems quite "unusual" for a teenage accomplice to a felony with no clear intent to kill and no significant criminal history to be subject to a mandatory LWOP sentence.  Though data here can be slippery, there are probably hundreds (if not thousands) of teens each year who are accomplices to felonies in which someone is killed and I suspect very few of these teenage felony-murder accomplices in any given year get a mandatory LWOP.  (Many of the teen accomplices without a criminal history, I would bet, are not even arrested or charged with murder, let alone brought into the adult system and subject to a mandatory LWOP sentence.) 

There has been, roughly speaking, about 40 years of modern LWOP sentencing, which in turn has resulted in a total of about 2500 juve killers with LWOP sentences (of which about 2000 were imposed manditorily).  I would be surprised if more than 20 of these juve LWOPers are just teenage felony-murder accomplices without a significant criminal history like Kuntrell Jackson.  Because one could (very conservatively) guess that there have been 20,000 teenage felony-murder accomplices over the last four decades, Kuntrell Jackson's sentence is fairly considered a 1 in 1000 event.  It seems quite appropriate (and surely "plausible") to describe such a rare event as "unusual." 

Of course, ever the careful and effectively dissenter, the Chief Justice does not really take on whether Kuntrell Jackson's sentence is "unusual" (and his Graham concurrence leads me to think he might have been inclined to join a very narrow opinion that just struck down Jackson's mandatory sentence, perhaps with emphasis on mens rea points stressed in Justice Breyer's concurrence).  Rather, the heart of the Chief's dissent is his complaint is that the majority in Miller has used the Eighth Amendment to "ban a punishment" (i.e., mandatory LWOP for any and all teen killers) that is not "unusual."  But, even with this wider framing, I am not sure the numbers concerning the frequency of mandatory LWOP are as compelling as the Chief suggests.

Again, as to the frequency of the sentence, we have gone 40 years to get roughly 2000 mandatory juve LWOP sentences imposed, meaning we average over this period roughly 50 such sentences per year.  In footnote 1 of his dissent, the Chief notes than DOJ statistics indicate that 1,170 juves were arrested for serious homicide in 2009.  Taking just these numbers on their face, one could assert that a juve killer getting a mandatory LWOP sentence is roughly a 1 in 23 event.  I think it is possible (and surely "plausible") to describe a 1 in 23 event as "unusual," though surely reasonable minds could differ on this front.  (To use a sports metaphor, I think it would be reasonable to say it is "unusual" when the New York Mets win the World Series, even though they have done so twice in the last 45 years.)

Moreover, and perhaps more important, the Chief has fudged the numbers here a bit when referencing the 1,170 juves arrested for serious homicide in 2009, because juve homicides are way down compared to just a decade ago.  Once again, data here can be slippery, but I think it is fair to say there were on average much closer to 2000 juve homicides per year over the last 40 years.  Using 2000 as the denominator, the odds of a juve killer getting a mandatory LWOP is now a 1 in 40 event.  Something that happens only 2.5% of the time seems to me to be "unusual."

This all said, the Chief Justice is certainly on solid ground that a mandatory LWOP sentence for a juve killer is not as unusual as the juve LWOP nonhomicide sentences at issue in Graham.  But, critically, the text of the Eighth Amendment does not demand that a punishment be "very unusual" to be unconstitutional, it only demands that a punishment be "unusual."  Further still, I do not think this number crunching holds the secret to unlocking an idealized modern Eighth Amendment jurisprudence.  But, as will be my goal in all my posts in this series on the Miller dissents, I just want to flag the reality that a key forceful claim in this lead dissent can be viewed as suspect when fully unpacked.

Basic mandatory juve LWOP head-count in light of Miller

This article by Warren Richey for the Christian Science Monitor reviews the basics of the Supreme Court's work today in Miller and provides this quick accounting of the number of sentences obviously thrown into question by the ruling:

Currently about 2,500 individuals are serving life without parole prison sentences for crimes committed when they were younger than 18 years old. Of those, roughly 2,000 of the sentences were mandatory.

These numbers sound about right to me (these are the numbers bandied about by the Chief Justice in his dissent), though I would be grateful to see/hear a more precise accounting from anyone in the know.

Interestingly, the two states with the most juvenile offenders who received mandatory LWOP sentences appear to be Pennsylvania (with nearly 450, I believe) and Michigan (with nearly 350, I believe). Neither of these states have typically been on the cutting edge of Eighth Amendment litigation front-lines in recent years, and it will now be very interesting to watch when and how state courts (and lower federal courts) deal with the coming Miller-inspired litigation.

Other states with lots of mandatory juve LWOP defendants worth watching include California, Florida, Louisiana, Missouri and Illinois, all of which have, I believe, at least 100 defendants serving state LWOP sentences for crimes committed when they were younger than 18 years old.  [UPDATE:  Kent rightfully indicates in the comments that California's LWOP sentences are discretionary (though I have heard them called presumptive, raising another possible litigation front.]  Another two dozen states also have more than a handful defendants serving state LWOP sentences for juve crimes, and it is certainly possible (even likely?) that states with a smaller number of problematic JLWOP cases after Miller will be quicker to hear and resolve new Eighth Amendment claims.

Guest-post from Professor Mark Osler: "Miller on the ground in Michigan"

I am pleased to be able to provide the first what I hope might become a series of guest-posts from various folks on what the Supreme Court's work today in Miller v. Alabama  (opinion here, basics here, questions here) might mean in various jurisdictions in various setting. Kudos to Professor Mark Osler for getting me the first entry with a first-take on this big new Eighth Amendment ruling, which he titled "Miller on the ground in Michigan":

There was a bit of a mess after the Supreme Court announced its decision in Miller v. Alabama today.  AP reporter Jesse Holland initially sent out a story simply stating that the court had ruled that life without parole sentences were unconstitutional for juvenile offenders.  The truth was more complex: The Court more narrowly held that what is unconstitutional is a sentencing scheme where the only sentence available to a convicted juvenile offender is life without parole.  Not all states have this kind of mandatory sentencing scheme for murder, but many do.

Still, the Miller decision creates some fascinating outcomes.  For example, Michigan has mandatory sentencing in this kind of case, and the second largest number of juvenile offenders serving LWOP sentences (after Pennsylvania).  That means that over 300 sentences may now be in jeopardy, and the state will have to amend its procedure to allow for a parole eligible sentence in the case of juvenile offenders.  Intriguingly, left untouched is Michigan’s rule of automatic transfer to adult status in murder cases — the second part of that state’s legal mechanism which led to so many juvenile LWOP cases.

Aside from the continuing battle before the Court on the constitutionality of Juvenile LWOP, which now moves to discretionary sentences, tough questions face the states affected by Miller.  Perhaps most importantly, a state like Michigan has hundreds of inmates serving sentences obtained by an unconstitutional process.  If they succeed in getting those sentences overturned, what happens next?  Michigan law does not allow for a sentence other than LWOP.  Presumably, they could be dumped into the regular parole system, or the state could create a special process for these prisoners already deemed to be different than other murderers by fact of their age at the time of the crime.

There is an opportunity in this — an opportunity to create a new kind of meaningful review that takes into account the views of experts in adolescent development and brain science, victims’ family members, prison officials, and those who support the convicted juvenile. I’m hoping that at least some jurisdictions take a fresh look at the process as whole and not only get rid of mandatory transfers, but inject more meaning into the kind of second look that these offenders might receive.

Issue-spotting the mess sure to follow Miller's narrow (procedural?) ruling

I am surely going to need many more hours (perhaps many more days and weeks) to figure out what all the votes and all the dicta in all the Miller v. Alabama opinions (opinion here, basics here) might mean for the future of Supreme Court Eighth Amendment jurisprudence. But I have already started figuring out some of the very hard questions already sure to be facing lots of lower courts in the wake of Miller ASAP.  Here are just a few that come (too) quickly to mind:

1.  Will all (many? any?) juvenile murderers mandatorily sentenced long ago to LWOP necesarily get the benefit of a resentencing after Miller?  Arguably, Miller is only a new procedural rule that may not be retroactively applicable in federal habeas due to Teague.  But states can (and should?) decide not to follow Teague and arguments can (and surely will) be made that Miller fits into a Teague exception because in announces the (new?) "substantive" rule that kids are always different for Eighth Amendment purposes.

2.  Will any (many?) juvenile murderers discretionarily sentenced long ago to LWOP possibly get the benefit of a resentencing after Miller?  Miller only formally prohibits mandatory LWOP for juvenile murderers, but it also make clear that kids are categorically different for sentencing purposes. Arguments can (and surely will) be made that Miller suggests all kids sentenced in the past to LWOP ought to get a new shot at sentencing now that SCOTUS has made clear kids are different.

3.  When and how will juvenile murderers manditorially sentenced to LWOP get resentenced? Are there any special rules for how to consider kids are different? Does the nature of the murder, as well as the defendants age, have to matter? If a state lacks parole, can it give 75-year sentences to these kids at resentencing?

I could go on and on and on, but now I have to run to a meeting. Many more posts and questions are sure to follow!

All juvenile defendants get narrow procedural Eighth Amendment win in Miller

Though I am still trying to figure out all the opinions in today SCOTUS Eighth Amendment ruling in Miller v. Alabama (opinion here, basics here), I think I am correct to assert that the ruling is a (surprising?) big win for any and all older juveniles sentenced to LWOP under a mandatory sentencing scheme, while also appearing to be a (surprising?) potential loss for anyone hoping or expecting the Supreme Court to declare unconstitutional any and all LWOP sentences for any and all juvenile offenders.

Here are the paragraphs from the start and end of the majority opinion in Miller per Justice Kagan which lead me to the conclusion that the Miller ruling is pretty limited and narrow as a win for juvenile defendants:

The two 14-year-old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole.  In neither case did the sentencing authority have any discretion to impose a different punishment.  State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example,life with the possibility of parole) more appropriate.  Such a scheme prevents those meting out punishment from considering a juvenile’s “lessened culpability” and greater “capacity for change,” Graham v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 17, 23), and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties.  We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.”...

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.  By requiring that all children convicted of homicide receivelifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemesbefore us violate this principle of proportionality, and sothe Eighth Amendment’s ban on cruel and unusual punishment.  We accordingly reverse the judgments of the Arkansas Supreme Court and Alabama Court of Criminal Appeals and remand the cases for further proceedings notinconsistent with this opinion.

I am very much drawn to this procedural approach to the issues in Miller and Jackson, in part because this was the way I urged the Court to resolve these cases in this amicus brief I filed along with my students.  But, until I have a full chance to review the holding and dicta in the Miller opinions, I am not quite yet ready to praise without reservations this new important Eighth Amendment decision.

SCOTUS rules 5-4 in favor of juve offenders in Jackson and Miller

Reporting here on SCOTUSblog reporting on what its reporter Lyle Denniston is reporting from the Supreme Court this morning:

The Court [per Justice Kagan] holds that the Eighth Amendment forbids a [mandatory] scheme of life in prison without possibility of parole for juveniles. The vote is five to four [with lots of Justices writing dissents]. The decisions of Ark. S. Ct. and Alabama Ct. of Crim. Appeals are reversed.

The full opinion in Miller is now available at this link, and here is the detailed breakdown of all the opinions:

KAGAN, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. BREYER, J., filed a concurring opinion, in which SOTOMAYOR, J., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined. ALITO, J., filed a dissenting opinion, in which SCALIA, J., joined.

NY Times debates "When to Punish, and When to Rehabilitate" for juve offenders

The Room for Debate section of the New York Times has this new set of pieces discussing punishments for juvenile offenders.  Here is the sections set up:

The Supreme Court is expected to rule this month on when, if ever, it is appropriate to sentence juvenile offenders to life without parole.  The arguments this spring showed the complexity of drawing the lines between child and adult, and between justice and cruelty.

When minors commit violent crimes, should they be treated differently from adults?  Is prison effective as a punishment and deterrent for juveniles, or does it harden a young person who might otherwise recover?

Here are the contribututions, with links via the commentary titles:

• "Prison Is Too Violent for Young Offenders" by Gary Scott, inmate, San Quentin

• "In Sentencing, Remember the Victims" by Jennifer Bishop-Jenkins, National Organization of Victims of Juvenile Lifers

• "Behind Bars, Teenagers Become Prey" by T.J. Parsell, writer and human rights activist

• "Adult Punishments Should Be an Option" by Charles Stimson, Heritage Foundation

• "Prison Does Not Make Good Citizens" by R. Daniel Okonkwo, D.C. Lawyers for Youth

• "The Race Factor" by Jennifer L. Eberhardt and Aneeta Rattan, Stanford University

• "Seeing Juveniles’ Maturity, and Immaturity" by Laurence Steinberg, adolescent brain researcher

• "Teenagers Too Often End Up in Solitary" by Amy Fettig, A.C.L.U.

• "The Cost of Prison, in Dollars and Lives" by Michael Jacobson, director, Vera Institute of Justice

Another week of SCOTUS waiting for sentencing fans

I had thought there was a reasonable possibility that the Supreme Court sometime this week might hand down one of the big sentencing cases still pending: Southern Union (Apprendi's application to fines); Jackson and Miller (mandatory LWOP for young juve murderers); Dorsey and Hill (the FSA's application to pipeline cases).  But, as detailed via this post at How Appealing, the Justices did not issue opinions in any of these cases this morning.  They Justices did grant cert and hand down one opinion on police practice issues, and Lyle Denniston reports here at SCOTUSblog that probably the most notable criminal justice decision was a cert denied in two high-profile federal convictions flowing from campaign donations in Alabama. 

According to the folks at SCOTUSblog, it appear that the Court will not hand down opinions again until next Monday.  So, it's another week of waiting for these sentencing rulings.  Fortunately, absent some dramatic or unexpected development (such as a order for reagument), I think we can reasonably expect to see opinions in all of these cases within the next three weeks.

Anyone yet eager to make predictions on the timing, outcomes, vote counts or opinion writers in these big sentencing cases.  At this moments I am inclined to guess we will get Southern Union next week, the juve LWOP cases the week of June 18, and the FSA pipeline cases the week of June 25.  In addition, I think the defendants are likely to previal in these cases by votes of 7-2, 5-4, and 6-3, with Justices Thomas, Kennedy and Sotomayor as principal opinion writers. 

But who really knows with this Court these days!?!?

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!

New report highlights inequities in Michigan’s JLWOP sentences

As reported in this new press release, the public policy group Second Chances 4 Youth along with the ACLU of Michigan has release a new report "documenting the systemic disadvantages facing juveniles in the adult criminal justice." This report, which it titled “Basic Decency: An Examination of Natural Life Sentences for Michigan Youth,” is summarized in the press releade this way:

The 38-page report explores the fiscal and human costs of juvenile life without parole sentences and the disproportionate punishments and documented racial disparities found in the plea bargaining process for youth accused of certain crimes. The findings rely on publicly available data produced by the Michigan Department of Corrections and survey responses from individuals originally charged with first-degree homicide in Michigan for crimes committed as youth since 1975. The report documents the many challenges youth face in the criminal justice system, including that:

• Race seriously affects the plea bargaining process for adolescents. Youth accused of a homicide offense where the victim was white were 22 percent less likely to receive a plea offer than in cases where the victim was a person of color. In addition, there are clear geographic disparities with Oakland, Calhoun, Saginaw and Kent Counties offering lessor sentences to youth at significantly lower rates than the state average.

• Juveniles reject plea offers at much higher rates than adults; therefore adults receive lessor sentences for comparable crimes. Juveniles are less equipped to negotiate plea offers because of their immaturity, inexperience, and failure to realize the value of a plea deal. Many report that they did not fully understand the nature of the charges they were facing, the crime they were on trial for, or the meaning of parole.

• Attorneys who have represented youth convicted and sentenced to life without parole in Michigan have an abnormally high rate of attorney discipline from the State Bar of Michigan. About 5 percent of all attorneys are reprimanded, however 38 percent of counsel representing youth sentenced to life without parole have been publicly sanctioned or disciplined for egregious violations of ethical conduct.

Michigan law requires that children as young as 14 who are charged with certain felonies be tried as adults and, if convicted, sentenced without judicial discretion to life without parole. Judges and juries are not allowed to take into account the fact that children bear less responsibility for their actions and have a greater capacity for change, growth and rehabilitation than adults.

The U.S. is the only country in the world that sentences youth to life without parole. In the last five years, there has been a downward trend in imposing such sentences across the nation.  Michigan is one of only six states deviating from this national movement. Michigan currently incarcerates the second highest number of people serving life sentences without parole for crimes committed when they were 17 years old or younger.

Intriguingly, this new report does not at all discuss the pending SCOTUS cases of Jackson and Miller, which could possibly result in a ruling that all LWOP sentences for juveniles are unconstitutional under the Eighth Amendment.  Perhaps that is wise; it remains hard to predict exactly what the Justices will end up doing in those cases when they hand down an opinion in the coming weeks before the end of the current Term.

Moreover, this new report categorically urges, inter alia, that Michigan "abolish Michigan’s sentence of life without the possibility of parole for children who commit homicide offenses prior to the age of 18" and "provide an opportunity for parole for any youth having served ten years of a life sentence with annual reviews thereafter and mandatory public hearing every five years."  In part because the Jackson and Miller cases both involve offenders who committed murders at age 14, and in part because SCOTUS has never required a particular timeline for parole consideration, there is little chance that even a very broad SCOTUS ruling in Jackson and Miller will require many (or even any) of the reforms urged by this new report.

George Will urges SCOTUS to find juve LWOP unconstitutional in all cases

I am intrigued and pleased to see that George Will's latest column in the Washington Post adopts the same position as I have embraced in the two juve LWOP cases, Miller and Jackson, now before the Supreme Court.  Will's column is headlined "Cruel and unusual — a test case," and here are excerpts:

Today, 221 years after the Bill of Rights was added to the Constitution, the Supreme Court is again pondering the Eighth Amendment’s proscription of “cruel and unusual punishments.” The case illustrates the complexity of construing some constitutional language in changing contexts of social science and brain science.

Evan Miller, whose five suicide attempts surely had something to do with the serious domestic abuse he suffered, was complicit in a brutal murder and in 2006 was sentenced to life in an Alabama prison without the possibility of parole. Kuntrell Jackson was involved in a video store robbery during which an accomplice fatally shot the store clerk. In 2003, Jackson was sentenced to life in an Arkansas prison without the possibility of parole. Miller and Jackson were 14 when they committed their crimes. Both were tried as adults before judges who had no discretion to impose any other sentence. Such mandatory sentences preclude judges weighing a consideration of Eighth Amendment jurisprudence — proportionality.

Before its June 26 recess, the Supreme Court will decide whether sentencing children to die in prison is cruel. It certainly is unusual: Although 2,300 current prisoners have been sentenced to life without parole for crimes committed as juveniles (age 17 or younger), just 79 prisoners in 18 states are serving sentences of life without parole for crimes committed when they were 13 or 14.

The court must consider not only what is society’s sense of cruelty but also how that sense should be shaped by what some new technologies reveal about adolescent brain biology. Shakespeare’s shepherd in “The Winter’s Tale” did not need to see brain scans to wish that “there were no age between ten and three-and-twenty, or that youth would sleep out the rest; for there is nothing in the between but getting wenches with child, wronging the ancientry, stealing, fighting.”

And with age-related laws restricting the right to drink, drive, marry, serve on juries, etc., all American states have long acknowledged adolescents’ developmental shortcomings. Neuroscience, however, now helps explain why aspects of adolescents’ brains make young people susceptible to impulsive behavior and to failing to anticipate and understand the consequences of it....

In 1958, the court said: “The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Justice Antonin Scalia has warned: “A society that adopts a bill of rights is skeptical that ‘evolving standards of decency’ always ‘mark progress,’ and that societies always ‘mature,’ as opposed to rot.” But even the “originalist” Scalia, although disposed to construe the Constitution’s terms as they were understood when ratified, would today proscribe some late-18th-century punishments, such as public lashing and branding.

Denying juveniles even a chance for parole defeats the penal objective of rehabilitation. It deprives prisoners of the incentive to reform themselves. Some prisons withhold education, counseling and other rehabilitation programs from prisoners ineligible for parole. Denying these to adolescents in a period of life crucial to social and psychological growth stunts what the court in 2005 called the prisoner’s “potential to attain a mature understanding of his own humanity.” Which seems, in a word — actually, three words — “cruel and unusual.”

Miller and Jackson: The Court Struggles to Frame the Issue

On reading the transcripts in the two juve LWOP cases that the Supreme Court heard today, Miller and Jackson, I'm struck by how confused the Justices are about how to frame the issues. The advocates certainly didn't seem to give the Court the help it was looking for.

Arguing for petitioners, Bryan Stevenson proposed a rule that seemed a bald policy proposal rather than one rooted in any legal authority: a flat ban on life without parole for defendants who were under 15 at the time of the crime, and a ban on automatic or mandatory life without parole for those between the ages of 15 and 18. He tried to rely on several states' having set thresholds of 15 or older for life without parole but had a hard time establishing a benchmark or national consensus, given that 39 states authorize life without parole for at least some juveniles for at least some crimes.

The Court seemed to have no clearer ideas about how to frame the issue. Justice Scalia repeatedly referred to the jury as a safeguard in authorizing the penalty, even though, as Justice Kennedy pointed out, juries cannot be told of the penalty, so the idea that they are authorizing the penalty is a fiction. If anything, Justice Scalia's passion for jury checks upon the government (in the Apprendi line of cases) ought to cut the other way here, where prosecutors' charging decisions trigger mandatory sentences while leaving juries in the dark.

In keeping with his formalism, Justice Scalia (as well as Justice Alito) made some fair points about the dangers of slippery slopes and distinguishing sentences of life from 60 years, 50 years, et cetera. I was surprised that neither he nor anyone else reached back to the common law's benchmarks for youths, in which those under 7 are conclusively incapable of crimes and those under 14 are rebuttably presumed incapable, according to Blackstone. That might roughly track the line Stevenson was trying to draw, except that it would erect only a presumption rather than a flat ban.

Justice Kennedy complained about the false dichotomy proposed by petitioners: that mandatory life without parole was either categorically forbidden or categorically permissible. That framing is in part attributable to Justice Kennedy's prior ruling in Graham, which rejected the Chief Justice's case-by-case approach to categorically forbid life without parole for juveniles who do not kill. I don't see the Court repudiating Graham, but neither do I think the Court will simply extend those precedents.

Justice Sotomayor, interestingly, kept emphasizing the Enmund / Tison line of capital cases limiting which minor actors in a murder can receive the death penalty. The signal seems to be that all the death penalty doctrines, which were previously cabined by the death-is-different line, are now fair game for argument in this area.

In that vein, it struck me that no one did nearly enough with the Woodson / Lockett / Eddings line of death-penalty cases, which require that the trier of fact have some discretion to mitigate penalties based on the particulars of individual cases. From the tenor of the argument, it seemed that many Justices were looking for a safety valve, a way to allow individualization for the least bad juvenile accomplices rather than for a flat ban. Some of the Justices' comments indicated that they recognized that Miller's crime was more heinous than Jackson's and might be looking for ways to differentiate the two.

If the Justices wanted to regulate such decisions, there are subtler ways to do so than extending Graham's ban. They could require that juries be informed of the penalty and affirmatively authorize the sentence, by extending either Simmons v. South Carolina or Apprendi to inform juries and require them to affirmatively authorize the penalty. That could harken back to the colonial tradition (discussed in my last post) of allowing juries flexibility to show mercy. Or the Court could forbid using life without parole as a plea-bargaining chip, so that juvenile defendants don't wind up with the longest sentence simply because they are reckless in choosing to go to trial.

As with Florence v. Burlington County earlier this term, the Court granted certiorari to address what seemed an excess of the criminal justice system, only to discover that trying to fix the problem would entangle the Court in a thicket of arbitrary line-drawing. Perhaps the difficulty of the exercise will scare them off, or perhaps they will embrace Justice Sotomayor's suggestion that the category of life without parole be whittled down further to those who personally kill, intend to kill, or attempt to kill and are not simply lookouts or getaway drivers. Predictions here are too hazardous--the actual outcome is anyone's guess.

Stephanos Bibas

Seeking policy preferences: no LWOP for younger juves or no mandatory LWOP for all juves?

Today's oral argument in the two big JLWOP cases in the Supreme Court (basics reported here) suggests that some Justices may be drawn to a substantive Eighth Amendment rule precluding any and all very young offenders (say those 14 and under) from ever getting an LWOP sentence, while others may be drawn to a procedural rule precluding a mandatory LWOP sentence for any juvenile.

Putting to one side for now constitutional concerns about the development of Eighth Amendment doctrine for this case and other, I wonder which rule would be preferred simply as a matter of public policy among readers of this blog.

Intriguing early report on SCOTUS arguments in today's JLWOP cases

Lyle Denniston in this lengthy post at SCOTUSblog has an interesting and thoughtful report on the oral arguments this morning in the Supreme Court in in Jackson v. Hobbs and Miller v. Alabama, the two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole.  Here are excerpts of his report:

Moving further along the constitutional line between adults and children in the criminal courts, the Supreme Court on Tuesday turned to life-without-parole sentences for youths who commit murder, and appeared to be reaching for a compromise. If the indications from a one-hour hearing hold, the Court might allow such sentences to be imposed on youths, but not as a mandatory matter for younger teenagers. And it could choose to forbid that penalty at all for some, but where that line might be drawn was far from clear – although it might wind up at 12 or younger.  In more than 90 minutes of argument in two cases, there was no sign that a majority would come together on a flat ban for such a sentence for anyone under age 18 — the preferred outcome sought by two youths’ lawyer....

In the cases of Miller v. Alabama (10-9646) and Jackson v. Hobbs (10-9647), most of the Justices appeared to share the sentiment expressed early by Justice Anthony M. Kennedy that the Court did not want to be forced to choose between two opposite choices: no life-without-parole sentences for any minor, or no limit on the sentence for anyone no matter how young. And there also seemed to be considerable support for Kennedy’s apparent willingness to focus mainly on the question of whether such a sentence should be mandatory and, if so, whether that should be keyed to a specific age. Kennedy’s views may be crucial, since he has been the author of the Court’s key rulings on youths’ sentencing....

Once it is accepted that “death is different,” Scalia commented, there is no basis for having a different age category in determining punishment for one who kills. That, essentially, was the argument made in the two cases by lawyers for the states: if a youth commits the “worst of crimes,” they should be a legally responsible as anyone who does so, the states’ counsel contended....

John C. Nieman, Jr., the state of Alabama’s solicitor general, argued that the fact that there are 39 states that would allow such a sentence for a specific crime without regard to the offender’s age is proof of a “national consensus” that such punishment is not constitutionally excessive. His main difficulty — and it was the same for Kent G. Holt, an assistant state attorney general for Arkansas, in the second case — came from the fact that many of the states in that group make such a sentence mandatory. Justice Stephen G. Breyer led the verbal assault on that proposition, wondering what justification a state could have for not allowing a young offender to make any argument to “mitigate” what Breyer called “this terrible penalty.” Justice Kennedy later wondered the same thing. Kennedy also wondered if there were data that would indicate what proportion of youthful offenders given long sentences are able to be rehabilitated, implying that he might be sympathetic to some option for a youth ultimately to gain release.

Justice Elena Kagan, noting that the Court has insisted upon a focus on the individual offender when a judge is considering a death sentence, wondered why the same approach should not apply to juveniles faced with a life-without-parole sentence. Neiman countered that the Court had made it clear that this was required only in the context of the death penalty, and that states are entitled to have mandatory term-of-years sentences. Justice Breyer suggested that one option might be to require that the individualizing of sentences should be required for any youth who committed murder while under age 18....

When the Court turned to the second case, it found itself examining whether it should make a difference, in a juvenile’s murder case, whether the individual facing a life-without-parole sentence had actually killed someone, or intended that a crime go forward knowing that someone might be killed. Justice Sotomayor, in fact, stepped in before Stevenson even began that argument to ask him how the Court would write an opinion that drew a line against a life-without-parole sentence for a youth who had a role in a murder case but was not the actual killer, and did not intend that there be a murder....

Several of the Justices seemed inclined to regard more sympathetically a youth facing a mandatory sentence, especially one who did not actually kill the victim. But the argument quickly turned back to the Court’s exploration of where a dividing line should be drawn in any juvenile murder case.

Arkansas’s attorney, Holt, urged the Court to keep the focus on the crime that has been committed, not on the offender. Murder, he said, is “the worst of all crimes,” and the law seeks to punish its commission with the heaviest of sentences to show society’s intolerance of taking a human life. "That is the line that society draws,” he argued.  Now that the Supreme Court has barred the death penalty for minors who commit murder, Holt said, any youth who is sentenced to life-without-parole is deserving of that sentence. Life-without-parole, he said, is a “lesser sentence,” so a youth who commits murder should not be allowed to seek “a lesser lesser sentence.”...

In a moment, Justice Ginsburg said that sending a 14-year-old prison to prison under a sentence that means he will die in prison meant that this “essentially makes a 14-year-old a throwaway person.” Holt objected to that characterization, saying that the state wanted him to be put in a position “to realize the enormity of his crime.” And, when Justice Sotomayor wondered what hope such a youth has, the state’s lawyer said that he could apply to have his sentence commuted, despite the fact that he had been sentenced to life-without-parole.

UPDATE:  The SCOTUS oral argument transcripts from Miller v. Alabama is available at this link and from Jackson v. Hobbs is available at this link.

Video preview of Jackson and Miller Eighth Amendment cases

As repeatedly mentioned recently, the Supreme Court is due to hear oral argument tomorrow in Jackson v. Hobbs and Miller v. Alabama, the two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole.  The crackerjack folks here at the OSU Moritz College of Law has put together this video preview of the case (in which you can see me magically placed in front of the US Supreme Court while I discuss the basic jurisprudential issues in Jackson and Miller and also this amicus brief that I put together along with a group of my students for these cases).

Some recent related posts providing previews of Jackson and Miller cases:

• Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases
• Briefs available, and jurisprudential challenges clear, in Jackson and Miller JLWOP cases
• Notable early prediction on what SCOTUS will do with juve LWOP in Jackson and Miller
• "The Lives of Juvenile Lifers: Findings from a National Survey"
• Taking stock of Michigan's interests in JLWOP issues before SCOTUS
• Lots of media coverage anticipating SCOTUS arguments on JLWOP

Lots of media coverage anticipating SCOTUS arguments on JLWOP

Unsurprisingly, the media now has lots of discussion of kids sent to prison for life with the US Supreme Court due to hear oral argument tomorrow in Jackson v. Hobbs and Miller v. Alabama, two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole.  Here is just a sampling of some of the notable new pieces from both old and new media:

From ABC News here, "Juvenile Murderers: Is Life Without Parole Unconstitutional?"

From the Chicago Tribune here, "For young killers, 'a chance to have a chance'; Supreme Court to consider whether a life sentence without parole is too harsh for juveniles"

From the Daily Beast here, "Ex-Prisoners Say Life Term Is Cruel for Teens, As Case Hits High Court"

From UPI here, "Under the U.S. Supreme Court: When children commit murder"

In addition, a large number of news outlets have recent editorials urging SCOTUS to declare these juve LWOP sentences always unconstitution, including CNN and the Los Angeles Times and the New York Times and the Washington Post and lots of other smaller media outlets from all around the nation (as evidenced here and here and here).

Some recent related posts on Jackson and Miller cases:

• Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!
• Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases
• Briefs available, and jurisprudential challenges clear, in Jackson and Miller JLWOP cases
• Notable early prediction on what SCOTUS will do with juve LWOP in Jackson and Miller
• "Graham on the Ground"
• Does Graham create constitutional problems for juve LWOP for murder accomplice?
• "Teen killers get inconsistent sentences"
• "The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"
• "Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"
• Great early commentary on SCOTUS taking "Another Bite at the Graham Cracker"
• "The Lives of Juvenile Lifers: Findings from a National Survey"
• Lengthy new New Yorker piece on juve LWOP and 14-year-old Michigan murderer

Taking stock of Michigan's interests in JLWOP issues before SCOTUS

A week from tomorrow, the US Supreme Court will hear oral argument in Jackson v. Hobbs and Miller v. Alabama, two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole.  As I have said before, all the primary briefing and amicus briefing in Jackson (linked here) and Miller (linked here) suggest that many SCOTUS Justices are likely to find these cases quite vexing in the wake of their Eighth Amendment work in Roper and Graham. 

And, as a new series of articles appearing in local papers, there are many states beyond these involved in the prosecutions before SCOTUS that will be following these cases very closely.  In particular, as this article from Michigan highlights, a few states that never before had to worry much about the Supreme Court's Eighth Amendment jurisprudence might have its criminal justice world rocked by Jackson and Miller.  The article appears to be the first in a week-long series gearing up for the SCOTUS arguments, and it is headlined "Judgment Day for Michigan's juvenile lifers: The U.S. Supreme Court considers banning life without parole for minors." Here are some excerpts:

He was 14 years, 11 months and 1 day old.  That night TJ Tremble rode his bike to the home of Peter and Ruth Stanley.  He had the .22-caliber rifle given him by his dad.  He had alcohol in his belly, some also from his dad.  And, police say, he had murder on his mind.

Before daylight, the Michigan youth would be behind bars for the rest of his life.  Or maybe not.  Next week, the U.S. Supreme Court will hear arguments on whether mandatory life sentences are too cruel for anyone so young.  It will be exactly 14 years, 11 months and 1 day since Tremble got on his bike.

Now 29, is it possible he has changed in the second half of his life, or that he can change with more time?  Should he at least have the consideration to one day walk free?  Or does death make it different?

In a state with more “juvenile lifers” than almost any other, the answers will resonate throughout Michigan as the high court addresses this: Are life sentences, without any chance of parole, unconstitutional even for juveniles who commit unthinkable crimes?  If the court’s earlier rulings are an indication, the answers could be yes....

An MLive Media Group investigation last November detailed how mandatory sentencing laws and get-tough reforms propelled Michigan near the top of the nation in juvenile lifers. Only Pennsylvania has more.

Nearly two dozen inmates were profiled.  Several had not committed the killing, but were present.  Sometimes the accomplices got more time than the killer, a quirk of mandatory sentencing laws, rejected pleas and juries.

In the midst of the series, the Supreme Court announced it would consider whether juveniles are too impulsive, their brains too underdeveloped, their remaining lives too long to receive the same sentences as adults in death cases.

This story, and stories to come this week, are meant to explore what that could mean for Michigan.  At present, 359 inmates are serving life in the state for crimes committed as minors, one out of seven nationally, according to MLive’s updated analysis.  The number was one higher until last month, when a prisoner from Kalamazoo was resentenced to a parolable term -- 33 years after he fled a grocery store robbery.  His partner stayed behind and killed the owner.

Six of Michigan’s 359 were 14 at the time of their crime -- the same as two inmates whose cases are being considered by the Supreme Court....

The nation’s youngest lifers are small compared to the 2,500 overall.  Seventy-three were 14 and 13 at the time of their crimes, according to Supreme Court filings.  The six serving time in Michigan for crimes as 14-year-olds are all males, as are most of the state’s juvenile lifers.  Unlike others, they are equally split between blacks and whites, and rural and urban backgrounds.

That’s contrary to the state’s juvenile lifer population overall: 69 percent black and largely from urban areas, according to MLive’s analysis.  Most were 17 at the time of their crime, but 45 percent were 16 and younger.  Wayne County sentenced the most, 41 percent, followed well back by Oakland, Genesee, Kent and Saginaw counties.

Of the class of 14-year-old lifers, all were sentenced after Jan. 1, 1997.  That’s when the age group was added to those who prosecutors could automatically try as adults for serious crimes.

Some recent related posts on Jackson and Miller cases:

• Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!
• Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases
• Briefs available, and jurisprudential challenges clear, in Jackson and Miller JLWOP cases
• Notable early prediction on what SCOTUS will do with juve LWOP in Jackson and Miller
• "Graham on the Ground"
• Does Graham create constitutional problems for juve LWOP for murder accomplice?
• "Teen killers get inconsistent sentences"
• "The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"
• "Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"
• Great early commentary on SCOTUS taking "Another Bite at the Graham Cracker"
• "The Lives of Juvenile Lifers: Findings from a National Survey"
• Lengthy new New Yorker piece on juve LWOP and 14-year-old Michigan murderer

"The Lives of Juvenile Lifers: Findings from a National Survey"

The title of this post is the title of this important and timely new report from the folks at The Swentencing Project.  Here is how the report is described in an e-mail I received today:

The Lives of Juvenile Lifers presents findings from the first-ever national survey of this population, a comprehensive look that offers new perspectives on people who committed crimes before the age of 18, and some as young as 13. More than 2,500 people are currently serving these sentences in the United States.

The report comes just weeks before the Supreme Court hears oral arguments in the cases of two 14-year olds, Miller v. Alabama and Jackson v. Hobbs, which will address questions about the constitutionality of sentencing teens to life without the possibility of parole.

“Most juveniles serving life without parole sentences experienced trauma and neglect long before they engaged in their crimes,” stated Ashley Nellis, research analyst of The Sentencing Project and author of the report.  “The findings from this survey do not excuse the crimes committed but they help explain them. With time, rehabilitation and maturity, some of these youth could one day safely re-enter society and contribute positively to their families and their communities.”

The Lives of Juvenile Lifers survey draws a portrait of the severe disadvantage experienced by those serving life sentences without parole:

• Juvenile lifers, especially girls, suffered high rates of abuse — nearly half (46.9%) of lifers experienced physical abuse, including 79.5 % among girls. 
• Juvenile lifers were exposed to high levels of violence in their homes (79%) and their communities (54.1%).
• African American youth constitute 43.4% of life without parole sentences for a murder with a white victim, nearly twice the rate at which they are arrested for such crimes, 23.7%.

Failed by systems intended to protect youth, many juveniles sentenced to life without parole first suffer from extreme socioeconomic disadvantage, and are then sentenced to an extreme punishment deemed unacceptable in any other nation.

Briefs available, and jurisprudential challenges clear, in Jackson and Miller JLWOP cases

I had the great pleasure yesterday to serve as a judge in the final round of OSU's moot court competition (with two terrific real Ohio jurists, as detailed here), and the case being argued was Miller v. Alabama, one of the two cases to be heard by SCOTUS next month concerning the constitutionality of sentencing a 14-year-old killer to life without parole.  These oral arguments, combined with all of the primary briefing and amicus briefing in Miller (linked here) and the companion case Jackson v. Hobbs (linked here), confirmed my instinct that many SCOTUS Justices are likely to find these cases quite vexing in the wake of their work in Roper and Graham.

Regular readers likely will not be surprised to hear that I am hoping the Supreme Court find the LWOP sentences imposed in Jackson and Miller to be unconstitutional.  But readers may be surprised to hear that I continue to be somewhat concerned by the Justices' decision in Graham to adopt a bright-line approach to the Eighth Amendment rather than the more nuanced case-by-case approach as was suggested by Chief Justice Roberts in his Graham concurrence.  And my concerned is heightened because the advocates and amici in Jackson and Miller are understandably inclined to push bright-line arguments: the defense side urges an Eighth Amendment rule that JLWOP is always unconstitutional (at least for younger juves), while the states seek a ruling that JLWOP us never unconstitutional for the crime of first-degree murder.

For a bunch of reasons (only some of which are set forth in this amicus brief that I put together along with a group of my students for these cases), I have an inherent disaffinity for rigid and simplistic bright-line rules at sentencing.  And, especially as the Justices seem finally ready to place a few (long overdue) constitutional limits on extremely severe prison sentences, I think Eighth Amendment jurisprudence would benefit from more nuanced case-by-case developments than by adoption (or rejection) of various bright-line rules.  Moreover, the case-specific offense and offender facts in Miller and especially in Jackson, seem to make lead me to think that embrace of bright-line rules in these cases could end up doing more long-term harm than good to sound constitutional (and sub-constitutional) sentencing jurisprudence.

"Teen killers get inconsistent sentences"

The title of this post is the headline of this notable piece from Massachusetts, which gets started this way:

Shrewsbury teen Valerie N. Hall pushed her mother down a flight of stairs in 2000, smashed her head in with a hammer and left Kathleen Thompsen Hall to die while she went for a ride with her boyfriend. For her mother's murder, Hall, a depressed and suicidal 16-year-old at the time, served nine years in prison.

Lincoln-Sudbury Regional High School student John Odgren, who suffers from depression and other mental ailments, fatally stabbed schoolmate James Alenson in the boy's bathroom in 2007 when he was 16, and after realizing what he had done, tried to get help. Odgren is serving life without the possibility of parole at Bridgewater State Hospital.

Both crimes were ghastly. Both teens suffered from mental illness. Both were charged with first-degree murder. But their punishments could not have been more different.

The dispositions of the Hall and Odgren cases illustrate the profound inequities that have grown up in the Massachusetts juvenile justice system since the passage of a tough sentencing law enacted 15 years ago and designed to punish the most depraved “super-predators” among teen killers.

An investigation by the New England Center for Investigative Reporting reveals, for the first time, that that law is not being applied consistently to the most horrific juvenile murder cases, as it was intended. The findings come as the U.S. Supreme Court prepares this spring to tackle whether it is “cruel and unusual” punishment to sentence juveniles 14 and under to life without parole for murder.

In Massachusetts, there is no obvious pattern as to why some killers are sentenced to life without parole and others — who committed shocking, grisly crimes such as fatally beating a 2-year-old — escaped the harsh sentence. Juveniles whose crimes approach the cruelty of the teen whose case triggered the passage of the 1996 law, Edward O'Brien, have escaped the severe sentence, while spontaneous acts of violence by teenagers with little prior record are punished with life behind bars.

O'Brien was 15 in 1995 when he fatally stabbed his best friend's mother, slashing her more than 90 times. He was initially to be tried in juvenile court, but public outcry about the possibility of a lenient juvenile sentence led lawmakers to quickly pass the tough new law aimed at punishing “adult crime with adult time.” Under that law, a teen convicted of first-degree murder must serve life in prison without any chance of being released.

Before the change, juvenile killers could only be sentenced to serve until age 21 unless their case was transferred to adult court. Since 1996, dozens of teens between the ages of 14 and 16 have been charged with murder in Massachusetts, but only seven have been sentenced to life without parole. In only two cases — the fatal beating with a hammer and the stabbing of a stranger in a school restroom — did their crimes approach the depravity of O'Brien's murder of Janet Downing.

Four of the teenage lifers acted impulsively, settling petty disputes with lethal attacks, the review of murder cases shows. Only two of the seven lifers had a record of violent crime, the investigation found, and two had no criminal history at all. “We'd like to reserve the maximum penalty for the worst cases, for the most dangerous individuals,” said Northeastern University criminologist James Alan Fox, a critic of the current system. The seven teens that got life without parole “do not appear to be the worst cases.”

"Death Is Not So Different After All: Graham v. Florida and the Court’s 'Kids Are Different' Eighth Amendment Jurisprudence"

The title of this post is the title of this timely article by Professor Mary Berkheiser which was recently posted on SSRN. The piece is timely not only because next month the Supreme Court is scheduled to hear oral argument on two follow-up Graham cases, Jackson and Miller, but also in light of the heated blog discussion earlier this week over the sentencing of a 15-year-old thrill killer in Missouri.   Here is the article's abstract:

In Graham v. Florida, the United States Supreme Court declared that life sentences without the possibility of parole for non-homicides are off limits for all juveniles.  Following its lead in Roper v. Simmons, the landmark decision in which the Court abolished the juvenile death penalty, the Court expanded on its Eighth Amendment juvenile jurisprudence by ruling that locking up juveniles for life based on crimes other than homicides is cruel and unusual and, therefore, prohibited by the Eighth Amendment. With that ruling, the Court erected a categorical bar to incarcerating forever those not yet adults at the time of their crimes.

That categorical exclusion is itself a momentous development, and it will impact directly the lives of the 129 juvenile offenders whose sentences for non-homicides have relegated them to prison with no prospect of ever being freed.  Of even greater import for the thousands of juvenile offenders whose sentences Graham does not impact directly, however, is the legal reasoning the Court used in striking down juvenile life without parole for non-homicides.  The Court employed an analytical approach previously reserved exclusively for death penalty cases, and it did so without fanfare or elaboration.  With Graham, the Court unceremoniously dismantled the wall that has separated its “death is different” jurisprudence from non-capital sentencing review since 1972.  In its place, the Court fortified an expansive “kids are different” jurisprudence that traces its roots to Thompson v. Oklahoma and is now firmly planted with the Court’s rulings in Roper and Graham.  Just as Graham crossed the rigid divide between the Court’s death and non-death cases, it places the Court’s categorical approach to sentencing, formerly the exclusive province of the death penalty, within reach of all juveniles serving adult sentences.

Some of the big sentencing stories to follow in 2012

Though there were a number of notable sentencing stories over the past 12 months (some year-end reviews can be found here and here), all told the year 2011 struck me as relatively quiet on the sentencing law and policy front.  But 2012, in contrast, seems quite likely to include a number of big sentencing stories.   Here, in no particular order, are the five biggest sentencing law and policy stories I expect to be following most closely in the months ahead:

1. SCOTUS review of juve LWOP for murderers in Jackson and Miller. The Supreme Court's Graham decision in 2010 declaring unconstitutional all LWOP sentences for juvenile nonhomicide offenders was a watershed ruling which suggested a majority of Justices are ready to give the Eighth Amendment some constitutional bite outside the death penalty.  Just how much bite may be revealed through the Jackson and Miller cases to be argued in March in which LWOP sentences given to 14-year-olds convicted of murder will be before the Court.   Justice Kennedy may be a key swing vote here, as usual, but Chief Justice Roberts may also play a big role in the wake of his concurring opinion in Graham.

2. USSC and congressional discussion of federal sentencing under advisory guidelines.  A subcommittee of the House Judiciary Committee late last year held a hearing in which many Republicans expressed concern about how judges are exercising their post-Booker sentencing discretion.  Rumor has it that the US Sentencing Commission has responded to the expressed concerns by planning a public hearing on these issue for February.  I would be VERY surprised if any serious statutory sentencing reforms move forward in 2012, but just reform talk in Congress or within the USSC can often impact sentencing developments "on the ground."

3. Talk of crime and punishment (or the lack thereof) in Campaign 2012.  The last few national election cycles have had a notable lack of discussion of major domestic crime and punishment issues.  In part because Democrats have shifted to the right on the death penalty and other crime issues since the Clinton years, crime and punishment has largely been neutralized as a wedge issue and neither party has seemed too eager to make much of these topics.  But 2012 could be different, especially if some of the anti-federal-drug-war libertarian sentiments of candidates like Ron Paul and Gary Johnson get any significant media attention or serious populist traction.

4. Federalism tensions as states continue to move away from pot prohibition.  In 2012, it is possible that medical marijuana will be legalized in states with more than half of the US population, and voters in at least a handful of states will be considering ballot initiatives to legalize pot completely.  In part because federal pot prohibition seems unlikely to change in 2012, the year-long story will be how state and federal officials interact as states seek to respect local interest in softer pot policies while the feds (sometimes) seek to enforce unbending federal criminal prohibitions.

5. Prison populations and crime rates.  Probably the biggest story of 2011 was the report of the first modern (though modest) decline in the national prison population in the US (based on a 2010 accounting).  A budget crunch at the state level, which prompted reforms big and small in many states, accounts for this decline, and there is reason to expect these forces will continue in play in the year(s) ahead.  Meanwhile, national crime rates continue their historic decline, though some predict that what has been going down now for so long has to at some point start going back up.

Readers are, of course, welcomed and encouraged to comment on these issues and also to mention other big 2012 sentencing law and policy stories to follow.

Lengthy new New Yorker piece on juve LWOP and 14-year-old Michigan murderer

The January 2, 2012 issue of The New Yorker (which had an awesome cover I could not avoid posting) has this lengthy piece discussing life without parole sentences for juvenilines. The piece, authored by Rachel Aviv, is titled simply "No Remorse: Should a teen-ager be given a life sentence?".  Here is the abstract provided by the magazine's website:

Shortly after midnight on March 6, 2010, Dakotah Eliason sat in a chair in his bedroom with a .38-calibre pistol in his hands, thinking about what the world would be like if he didn’t exist.  Earlier that night, Dakotah, who was fourteen, had taken his grandfather’s loaded gun off the coatrack.  Dakotah wondered if he was ready to die, and contemplated taking someone else’s life instead.  He walked into the living room and stared at his grandfather, Jesse Miles, who was sleeping on the couch. A retired machinist and an avid hunter, Jesse often fell asleep while watching the Discovery Channel.  For forty-five minutes, Dakotah sat on a wooden chair, three feet from his grandfather, and talked to himself quietly, debating what to do next. If he got hand towels from the bathroom, he could gag his grandpa. If he used a steak knife, the whole thing might be quieter.  He figured he’d use the cordless phone on his bed to report the crime.  He felt as if he were watching a movie about himself.  Finally, at just after three in the morning, he raised the handgun, his arms trembling, and shot his grandfather in the head.  “Man, I shot Papa!” he shouted.  He put the gun on the floor and rushed into his grandmother Jean’s bedroom. She yelled for Dakotah to call 911. When officers from the police department in Niles, a rural town in southeast Michigan, arrived seven minutes later, Dakotah was waiting outside next to his grandmother.

Tells about Dakotah’s arrest and his trial as an adult for first-degree murder, which in Michigan carries a mandatory sentence of life imprisonment without the possibility of parole.  Discusses the history and evolution of the American juvenile justice system. Although judges have long been attuned to the difficulty of trying mentally ill defendants, there is little recognition that people may be incompetent to stand trial because of their age. Each year, more than two-hundred thousand offenders younger than eighteen are tried as adults, yet only about half of them understand the Miranda warning.  Discusses recent and upcoming Supreme Court cases on the sentencing of juveniles.  Dakotah was found guilty of first-degree homicide and sentenced to life in prison without parole.  Writer visits Dakotah in prison.  Discusses his relations with family and with other prisoners.

This piece is quite timely as the top-side briefs are soon to be filed in the big Eighth Amendment juve LWOP cases of Jackson and Miller.  According to the docket information at the SCOTUS website, the petitioners' briefs are due to be filed on January 9, 2012 (and that, in turn, means the amicus briefs to be filed in support of the juve defendants will be filed by January 16, 2012).  I am very interested to see how both petitioners and amici develop their arguments in these cases because there are so many distinct ways to pitch the argument that their sentences are constitutionally problematic.

A few recent related posts on Jackson and Miller and related issues:

• What might SCOTUS be doing with long-held cases involving 14-year-olds serving LWOP?
• Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!
• Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases
• Notable early prediction on what SCOTUS will do with juve LWOP in Jackson and Miller
• "Graham on the Ground"
• Does Graham create constitutional problems for juve LWOP for murder accomplice?
• "The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"
• "Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"
• Great early commentary on SCOTUS taking "Another Bite at the Graham Cracker" 

Sixth and Eighth Amendment cases as notable amuse-bouche for SCOTUS health care litigation

As reported here at SCOTUSblog, the Supreme Court has released its oral arguments calendars for its February and March sittings. Not surprisingly, the legal media is mostly talking about the court's decision to set arguments on the new federal health care law for all its sessions in the week of March 26.   And, also not surprisingly, I find interesting the fact that the Court has scheduled for oral argument its Sixth Amendment Apprendi fines case (Southern Union Co.) and its two Eighth Amendment juve LWOP cases (Miller and Jackson) in the week just prior to the health care litigation.

As the title to this post suggests, I thin these constitutional criminal law and procedure cases will provide a notable tingler for the constitutional taste buds to prepare the Justices for the health care fight to follow. In Southern Union Co., the federal government will be urging the Justices not to read the Constitution to place any more procedural burdens on its efforts to impose criminal fines, and in Miller and Jackson, two states will be urging the Justices not to read the Constitution to place any more substantive limits on what punishments they can impose on juveniles convicted of murder. In these cases, some of the more conservative Justices will surely be sympathetic to assertions that an unelected judiciary should not find new constitutional problems with duly enacted criminal laws.

But, of course, the script will be (somewhat) flipped the following week with the health care litigation. The feds, of course, will still be defending federal law against constitutional attack. But now state will be urging an unelected judiciary should to find constitutional problems with duly enacted civil laws. And, so the thinking goes, now the more conservative Justices seem likely to be sympathetic to assertions that these duly enacted laws go to far.

Great early commentary on SCOTUS taking "Another Bite at the Graham Cracker"

Scott Hechinger, who wrote one of the first thorough reviews of the Supreme Court's Eighth Amendment work in Graham (first discussed here), now has written this commentary for Georgetown Law Journal's online companion, Ipsa Loquitur, which explores the two new juve LWOP cases recently taken up by the Court.  The piece's full title is "Another Bite at the Graham Cracker: The Supreme Court’s Surprise Revisiting of Juvenile Life Without Parole in Miller v. Alabama and Jackson v. Hobbs," and here are snippets:

The Supreme Court’s decision this week to review the constitutionality of life-without-parole sentences imposed upon individuals convicted of homicide crimes committed at age fourteen and younger in Miller v. Alabama and Jackson v. Hobbs stunned sentencing law advocates and Court watchers, myself included.  This commentary will contextualize these two grants of certiorari within the Court’s shifting Eighth Amendment jurisprudence and the broader debate over the harshest forms of juvenile sentencing....

Miller and Jackson give the Supreme Court the opportunity to decide whether life without parole is unconstitutional when imposed on an individual fourteen years or younger (1) for a homicide offense, (2) as a result of a mandatory sentencing scheme, or (3) as a non-triggerman accomplice without a showing of “intent to kill.”  Notably, the cases also ask the court to recognize a new, distinct category of defendants — or subcategory of juveniles — deserving different treatment under the Eighth Amendment: those fourteen and younger....

The two somewhat more straightforward of these questions are (1) whether mandatory JLWOP is unconstitutional and (2) whether non-triggerman accomplice murder where no “intent to kill” is present falls within the ambit of Graham.  In both cases, the plain language of Graham itself seems to compel the affirmative answers the petitioners seek.

As to the mandatory nature of the sentencing schemes, the Graham court itself explicitly noted that “criminal procedure laws that fail to take defendants’ youthfulness into account at all would be flawed.”  Even Chief Justice Roberts, concurring in the judgment as to Terrance Graham’s sentence specifically, but arguing forcefully against the bright line drawn by the majority, demanded that sentencing judges be able to take the defendant’s youth into account on a case-by-case basis.  As to the issue in Jackson of whether non-triggerman accomplice liability should be considered “homicide” or “nonhomicide,” as already discussed above, the heart of Graham’s holding was the recognition that “when compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”

The Court, therefore, could — and may — decide to simply rule narrowly in both cases, foregoing altogether the third, yet more fundamental question of whether children fourteen and younger are a distinct class of juveniles, who require greater Eighth Amendment protection — where JLWOP is unconstitutional in all circumstances, including homicide — than older juveniles aged fifteen to seventeen.  Though the Supreme Court successfully dodged the issue last year by dismissing Sullivan, I find it hard to imagine a repeat this time around.  The strength of Miller and Jackson, and the reason I think the Court was willing to grant certiorari so close in time to Graham, derives from this urged distinction between a “young adolescent” and “older teen.”  This distinction is necessary to allow the Court, if a majority is reached, to rule that JLWOP is unconstitutional for murder without overturning Graham....

Perhaps the clearest distinction ... between the two age categories seems to be in national sentencing consensus.  For while there are currently over 2,500 fifteen-to-seventeen year olds serving JLWOP for homicide in forty-one states, there are only seventy-three children age fourteen and younger who have been sentenced to JLWOP in only eighteen states (compared to the approximately 129 juveniles of any age sentenced to JLWOP for nonhomicide offenses found to be “exceedingly rare” in Graham).  This “extreme rarity” — as the petitions put it — is even more striking considering that over the last twenty years 3,632 children age fourteen and younger were arrested for homicide, meaning that they received a life-without-parole sentence only two percent of the time.

A few recent related posts on Jackson and Miller and related issues:

• What might SCOTUS be doing with long-held cases involving 14-year-olds serving LWOP?
• Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!
• Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases
• Notable early prediction on what SCOTUS will do with juve LWOP in Jackson and Miller
• "Graham on the Ground"
• Does Graham create constitutional problems for juve LWOP for murder accomplice?
• "The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"
• "Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"

Notable early prediction on what SCOTUS will do with juve LWOP in Jackson and Miller

As first noted here, this last Monday the Supreme Court grant cert in two cases, Miller v. Alabama and Jackson v. Hobbs (which comes from Arkansas), involving life without parole sentences imposed on two defendants convicted of murders committed when they were only 14-years-old.   In this Boston Globe commentary about the cases, which is headlined "Supreme Court should rule against JLWOP," Professor James Alan Fox has this notable prediction about these cases:

If I were a betting man, I would wager heavily that the petitioners will indeed prevail.  In earlier cases before it, the Court has ruled that executing juveniles is unconstitutional as is life without parole for non-homicide juvenile cases.  In both instances, the Court was convinced that teenagers are different from adults in terms of emotional maturity and cognitive development, making them less culpable no matter how heinous the crime. Clearly, “adult time for adult crime” is little more than a catchy slogan.

In my view, the question is not so much whether the Court will overturn the sentences given Jackson and Miller, but how broadly the ruling will apply.  The Court could limit its decision to the youngest of defendants rather than all juveniles.  It also could apply its ruling to a narrow set of circumstances, such as only felony-murder, joint ventures, or cases with compelling mitigation.

This prediction and follow-up question seem spot-on to me, and I would add the predictive observation that not just Justice Kennedy, but also Chief Justice Roberts, are likely to prove to be key swing votes determining the outcome and scope of the decisions in Jackson and Miller. 

A few recent related posts on Jackson and Miller and related issues:

• What might SCOTUS be doing with long-held cases involving 14-year-olds serving LWOP?
• Supreme Court grants cert on two Eighth Amendment LWOP challenges for 14-year-old murderers!
• Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases
• "Graham on the Ground"
• Does Graham create constitutional problems for juve LWOP for murder accomplice?
• "The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth"
• "Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"

Basic background on Jackson and Miller, the new SCOTUS juve LWOP cases

This AP story, which reports on the Supreme Court's important decision today to grant review in two cases involving Eighth Amendment challenges to life without parole sentences (basics here), provides this background on the defendants and crimes now to be assessed by the Justices:

The justices will examine a pair of cases from the South involving young killers who are serving life sentences for crimes they committed when they were 14.

Both cases were brought by the Equal Justice Initiative in Montgomery, Ala. The institute said that life without parole for children so young “is cruel and unusual” and violates the Constitution.  The group says roughly six dozen people in 18 states are under life sentences and ineligible for parole for crimes they committed at 13 or 14.

Kuntrell Jackson was sentenced to life in prison in Arkansas after the shooting death of a store clerk during an attempted robbery in 1999.  Another boy shot the clerk, but because Jackson was present he was convicted of capital murder and aggravated robbery.

Evan Miller was convicted of capital murder during the course of arson.  A neighbor, while doing drugs and drinking with Miller and a 16-year-old boy, attacked Miller. Intoxicated, Miller and his friend beat the man and set fire to his home, killing the 52-year-old man. Miller’s friend testified against him, and got life in prison with the possibility of parole.

The picture posted here comes from this EJI slide show of a number of youngsters who were sentenced to LWOP for crimes committed at age 14 or younger.  The picture is of Evan Miller, though his age in this picture in not clear and the slide show caption indicates Miller has just turned 18.  A later slide in the slide show reports that "over 60% of all 13 and 14-year-old children sentenced to death in prison in the U.S. are people of color."

I will be doing lots of posting with background on these two cases in the run-up to oral argument (which I expect will be in March).  In the meantime, here are links to the state court rulings to be reviewed by the Justices: Miller v. Alabama and Jackson v. Hobbs.  Both rulings provide a bit more background on the defendants' crimes and both rejected the Eighth Amendment arguments that these defendants have now before the Supreme Court.