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The NYT, Massively Deconstructed

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The New York Times had a predictable, gushing editorial in praise of the SCOTUS decision in Miller v. Alabama, and suggesting that the door is open to counsel-assisted re-sentencings for about 2000 youthful murderers.

The editorial is such a botch that it brought the critical attention of Prof. Doug Berman, a left/center expert in sentencing.  Prof. Berman deconstructs the Times with much clarity but little mercy.  Prof. Berman's assessment begins thusly:

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.

It continues:

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.

The whole blog is worth the read, and reminds us how utterly out-to-lunch the NYT can be when it gets on its high horse, which is most of the time.  I would remind readers that Prof. Berman is no friend of harsh sentencing, and has (correctly) been quoted as an expert more than once by the self-same NYT.

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