In Miller v. Alabama, the Supreme Court declared that life-without-parole cannot be the mandatory sentence for murder when the murderer is 17 years, 364 days old or younger. Of course, if he is one day older, then LWOP can be a mandatory sentence, and death is an allowed sentence.
Under the rule of Griffith v. Kentucky, Miller applies retroactively to all cases that were still on "direct appeal" on the date it came down. "Direct appeal" is the initial appeal of the case on the trial record, as distinguished from "collateral review," further attacks on the judgment that typically come later, including habeas corpus and statutory substitutes for it. The unresolved question, now before the high court in Montgomery v. Louisiana, is whether the Miller rule will reach back and require resentencing of every murderer sentenced under a mandatory LWOP statute for a crime committed a day or more before his 18th birthday, no matter how long ago that was.
CJLF's brief in the case was mailed in Monday. The main argument of the brief is that the "first exception" to the anti-retroactivity rule of Teague v. Lane (1989) is properly understood as an "actual innocence" rule. It applies only when the new rule renders the defendant innocent of the crime or ineligible for the punishment.
Readers of this blog and Sentencing Law and Policy may be interested in Part IV of the brief, where I go "heads up" with our friend Doug Berman. He proposes that noncapital Eighth Amendment rules be exempted from Teague altogether. Regular readers will not surprised to learn that I quite strongly disagree.
Under the rule of Griffith v. Kentucky, Miller applies retroactively to all cases that were still on "direct appeal" on the date it came down. "Direct appeal" is the initial appeal of the case on the trial record, as distinguished from "collateral review," further attacks on the judgment that typically come later, including habeas corpus and statutory substitutes for it. The unresolved question, now before the high court in Montgomery v. Louisiana, is whether the Miller rule will reach back and require resentencing of every murderer sentenced under a mandatory LWOP statute for a crime committed a day or more before his 18th birthday, no matter how long ago that was.
CJLF's brief in the case was mailed in Monday. The main argument of the brief is that the "first exception" to the anti-retroactivity rule of Teague v. Lane (1989) is properly understood as an "actual innocence" rule. It applies only when the new rule renders the defendant innocent of the crime or ineligible for the punishment.
Readers of this blog and Sentencing Law and Policy may be interested in Part IV of the brief, where I go "heads up" with our friend Doug Berman. He proposes that noncapital Eighth Amendment rules be exempted from Teague altogether. Regular readers will not surprised to learn that I quite strongly disagree.
One thing I was struck by in Doug's brief and several others briefs is how they purport to weigh the interests in finality without a single mention of the interests of the victims, or, in homicide cases, of the victims' families.
This giant blind spot is regrettably common in academia. Beloof, Cassell, and Twist denounced it years ago, but their protest fell on deaf ears. At one point in the brief I said that Doug's thesis was "unsupported," but reading the brief over I should have chosen a different word. It is unsupported in the sense that a three-legged stool with a missing leg is unsupported, but the passage in question does not make that sense clear.
In the case before the Supreme Court, the "juvenile" is 69 years old. He murdered Deputy Sheriff Charles Hurt in the performance of his duty on November 13, 1963. JFK was still alive and President when this crime was committed. He received a lenient sentence, on his second trial, in that he was not sentenced to death.
Would a resentencing at this time be more "accurate" than the original sentence? Doug Berman thinks so, but his calculus downplays the crime and emphasizes other factors. I lean the other way. I think the crime a person chose to commit and his criminal record prior to the crime should be the predominant, if not sole, factors in determining a sentence for the crime. The criminal record is still the record, of course, but can we really, accurately reconstruct the details of the crime the defendant committed half a century after the fact? Montgomery claims he panicked when he shot the officer. The jury apparently didn't believe him, as they convicted him of murder rather than manslaughter. Are the witnesses to refute such a claim still available? I expect few if any are still alive.
Post-crime conduct, which Doug puts great weight on, I do not think should be a factor in sentencing. The proper place to consider such conduct is in the mechanisms we have for ameliorating criminal sentences. Where parole is not available, executive clemency is that mechanism, and that is where such factors should be considered.
What Montgomery is really seeking here is mercy, not justice. He deserved death for his crime and already has a sentence less than he deserved. Mercy may be the correct choice, but the proper place for dispensation of mercy in a case like this is executive clemency. Teague is a landmark precedent protecting the interest of victims in finality, and we don't need to blow a giant hole in it to extend mercy in the handful of cases where it is warranted. We need to protect victims' interests in finality in the cases where it is not.
This giant blind spot is regrettably common in academia. Beloof, Cassell, and Twist denounced it years ago, but their protest fell on deaf ears. At one point in the brief I said that Doug's thesis was "unsupported," but reading the brief over I should have chosen a different word. It is unsupported in the sense that a three-legged stool with a missing leg is unsupported, but the passage in question does not make that sense clear.
In the case before the Supreme Court, the "juvenile" is 69 years old. He murdered Deputy Sheriff Charles Hurt in the performance of his duty on November 13, 1963. JFK was still alive and President when this crime was committed. He received a lenient sentence, on his second trial, in that he was not sentenced to death.
Would a resentencing at this time be more "accurate" than the original sentence? Doug Berman thinks so, but his calculus downplays the crime and emphasizes other factors. I lean the other way. I think the crime a person chose to commit and his criminal record prior to the crime should be the predominant, if not sole, factors in determining a sentence for the crime. The criminal record is still the record, of course, but can we really, accurately reconstruct the details of the crime the defendant committed half a century after the fact? Montgomery claims he panicked when he shot the officer. The jury apparently didn't believe him, as they convicted him of murder rather than manslaughter. Are the witnesses to refute such a claim still available? I expect few if any are still alive.
Post-crime conduct, which Doug puts great weight on, I do not think should be a factor in sentencing. The proper place to consider such conduct is in the mechanisms we have for ameliorating criminal sentences. Where parole is not available, executive clemency is that mechanism, and that is where such factors should be considered.
What Montgomery is really seeking here is mercy, not justice. He deserved death for his crime and already has a sentence less than he deserved. Mercy may be the correct choice, but the proper place for dispensation of mercy in a case like this is executive clemency. Teague is a landmark precedent protecting the interest of victims in finality, and we don't need to blow a giant hole in it to extend mercy in the handful of cases where it is warranted. We need to protect victims' interests in finality in the cases where it is not.
"Any sentence within the legal range for the crime the defendant chose to commit is per se on a lower order of concern than the conviction of an innocent person or the imposition of a sentence greater than the maximum allowed by law."
Yup.
I am glad we are taking up these issues, Kent, but I hope you know that I am always interested in victim interests being included in all future sentencing decisions, whether in the form of re-sentencing or parole or clemency. As you know, not all victims favor death or LWOP or even finality. Indeed, one of many reason a less final sentence (with victim input) could be beneficial for victims is because it provides a reason for a changing defendant to seek to make some kinds of amends to victims to get their support for future sentencing purposes.
If serving LWOP, what incentive does a rapist/murderer have to not continue to torment victims from prison? In contrast, a rapist/murderer given life with a chance of parole (or a chance at resentencing) has every reason to do whatever he might do to seek to make amends with victims.
As you may know, Kent, my biggest gripe is with LWOP which strikes me as the worst of all possible worlds (especially for juve offenders), and the harms of LWOP in my view are exacerbated when it is imposed mandatorily and thus is, essentially, a sentencing decision that gets made by a prosecutor at the charging stage. If we think an offenders crime or prospects are so bad, let's execute. If we are not prepared to impose that punishment, then I think post-crime conduct must be part of our decision making. You are right we could do this via clemency, but then again we would not even be litigating in Montgomery if clemency was used with any regularity in these sorts of settings. Indeed, I do not think we would need many of our current crazy ha was rules if more executives would use clemency now like is was used in the first 150+ years in U.S. History.
"If we are not prepared to impose that punishment, then I think post-crime conduct must be part of our decision making."
So because you and five lawless Justices decide that this is the way it should be, it somehow is magically smuggled into the Constitution.
And Doug, you can say all you want about victims, but the bottom line is that your position upsets their settled interests. The fig leaf that all victims may not want LWOP doesn't change that.
When discussing incentives for those convicted of the most serious crimes I wonder how much true rehabilitation we get when it has to be purchased with reduced sentences. I am constantly reminded that when I put on a fellow defendant, who gets a reduced sentence to testify, that what they say is totally worthless. When I put on a gang case, witnesses often are rightly concerned for their safety. Yet many come in and testify because it's the right thing to do for themselves and society. Why is it unreasonable to expect that even someone who has committed a very serious crime should rehabilitate without payment or a reduced sentence because it's the right thing to do.
Professor Berman, sentencing decisions are not made by the prosecutor. If we're going to insist on the idea that the sentencing decision is not made by the defendant choosing to commit the crime, then why aren't we at least saying that the sentencing decision is made by the legislature or the people who made the law as well. As all these players have discretion, it is folly to accuse only prosecutors of the ones who make the decision. We then get accused of being responsible for the alleged resulting injustice despite the fact that there has always been executive clemency for those truely deserving. Does the governor not make the decision too by choosing not to exercise clemency? In California, the California Supreme Court has a role in selected clemency issues, are they not also to blame? Apparently not, I am told I have chosen the sentence.
"If we think an offenders crime or prospects are so bad, let's execute." We can't, the Supreme Court won't let us for juveniles as you know. Likely, short of treason, they won't let us for any non-homicide no matter how depraved or cruel. They won't let us for all first degree murders either.
I am with Kent here. This modern attack on settled judgments is atrocious and a phenomenal waste of resources. Truly deserving defendants should receive executive clemency. As a prosecutor I can think of of particular defendants who could reasonably get clemency down the road. They won't need it though, because they will likely win through the courts and/or our CA legislature retroactive early review and release. Sadly, so will the non-deserving offenders.
All reasonable points here, but the persistent emphasis on clemency as a way to address the plight of the deserving long-ago sentenced defendant rings hollow coming from prosecutors and tough-on-crime types who almost never get actively involved in aggressively fighting for clemency. If prosecutors truly want clemency to be the only means we do retroactive justice, then you need actively to help invigorate that means. Until you do and until clemency serves as a viable means for defense attorneys to get relief for their clients, you can and should expect defense attorneys to keep attacking in court those settled judgement that seem very wrong now.
Let's run some numbers: Even if we were to assume that only 1% of the past mandatory juve LWOPers are deserving of serious clemency consideration (and I bet there a lot are more), there would be 20 cases in which clemency ought to be in play. I cannot think of a single case in which a prosecutor or tough-on-crime-type has championed clemency, let alone 20. Similarly, as Prez Obama has made a (small and so far inconsequential) effort to use federal clemency more to undo some past wrong drug sentences, former prosecutor Bill Otis and other tough on crime types have been criticizing his efforts, not cheering him on.
I agree that there is plenty of blame to go around to legislatures and others as well as prosecutors for excessive juve and other sentences. And that is why, in the end, constitutional challenges becoe the most sensible means and mechanism for seeking remedies for the defendants and their lawyers. And please understand, I recognize and respect your interest in a nuanced, case-by-case, thoughtful sentencing/finality system that respects victim interests as well as lots of other individual and system-wide interests. But it is this very commitment to nuanced case-by-case, thoughtful sentencing/finality that leads me to be critical of (1) any and all rigid and severe mandatory sentencing structures, and (2) any and all rigid commitments to finality that preclude the consideration of any factors (including victim interests) other than the crime itself many decades after the crime's commission.
"I cannot think of a single case in which a prosecutor or tough-on-crime-type has championed clemency, let alone 20."
Then you are not paying attention and haven't read my brief. See page 26.
Or perhaps you should just search your own blog.
You might quibble that this isn't technically clemency, but it amounts to the same thing.
The disingenuousness of Doug's commentary is remarkable. First of all, and we all know this, Doug's post hoc throwaway lines to victims aren't even close to serious:
"As you know, not all victims favor death or LWOP or even finality. Indeed, one of many reason a less final sentence (with victim input) could be beneficial for victims is because it provides a reason for a changing defendant to seek to make some kinds of amends to victims to get their support for future sentencing purposes."
Really? We're going to put families/victims through the pain of re-opening old wounds because some unspecified number of victims (likely very low) wants anything to do with some killer or violent criminal, let alone participating in a process that would result in "mercy" or some sort of "amends."
"And please understand, I recognize and respect your interest in a nuanced, case-by-case, thoughtful sentencing/finality system that respects victim interests as well as lots of other individual and system-wide interests. But it is this very commitment to nuanced case-by-case, thoughtful sentencing/finality that leads me to be critical of (1) any and all rigid and severe mandatory sentencing structures, and "(2) any and all rigid commitments to finality that preclude the consideration of any factors (including victim interests) other than the crime itself many decades after the crime's commission."
Once again, enlisting crime victims in an attempt to justify ripping open the settled judgments against the perps. Besides the disingenuousness, the arrogance and presumptuousness is truly something to behold.
Additionally, the quoted paragraph's lead-in is truly obnoxious. I won't speak for others, but the idea that we all support some "nuanced, case-by-case" sentencing (read, judges getting to do what they want, see, e.g., Olu Stevens and the probation for armed home invasion robbery) for violent criminals is simply too much to bear without comment. Mandatory sentencing arose, in large part, because violent criminals were getting far too light sentences and more innocent people were getting hurt. And that leads right up to the deeper disingenuousness--Doug dresses up lenience to criminals as somehow smarter and better. Furthermore, Doug ignores the benefits of mandatory sentences--by taking away decisions from judges, we prevent needless re-victimization that invariably occurs when judges get a lot of discretion. There's an unstated risk allocation in Doug's view of the world--one wishes that he would be more honest about it.
I am shocked that a law prof could actually serve this up, but then again someone who defends the ludicrous statement (in a SCOTUS opinion, no less):
"Some evidence indicated that reducing overcrowding in California’s prisons could even improve public safety."
is capable of writing or saying anything in favor of letting bad guys go.
Ah, the quirky Plata-madness of federalist rears its head yet again. You are starting to remind me of Supremecy Clause with your mania over one accurate sentence in the Plata opinion.
On the focal point of this discussion, federalist, it remains the reality that victims are not always eager for the toughest possible punishment to be imposed and to persist. Indeed, the Toca case referenced by Kent --- which is decidedly not a case of clemency based on post-crime developments but actually a kind of error-correction where the evidence supporting the original conviction was shown to be uncertain --- was a case in which the victims' family was very supportive of getting rid of LWOP for Toca.
As Paul Cassell and many others who do lots of work with victims could tell you, victims have a variety of interests and respond in a a variety of ways to both the crime and the passage of time. You, federalist, show both your ignorance and genuine disinterest in really listening to victim of violent crimes when you assert you know what is in their interests and what they truly desire.
I will be perfectly honest that any and every sentence allocates risk of harms (and cost) in many ways, though LWOP sentences shift those risks to fellow prisoners and corrections officials when prisoners have no incentive to behave or invest in their future. And mandatory sentencing also creates a range of risks of all sorts, as done any human system which risks error as well as uncertain future behavior.
That you disagree with my assessments, federalist, makes me neither disingenuous or obnoxious. But your interest in name calling reinforces my fear that you are unable to soberly discuss contentious matters without being unxious
"LWOP sentences shift those risks to fellow prisoners and corrections officials when prisoners have no incentive to behave or invest in their future."
They have the prospect of either more or less restrictive conditions of confinement. As TarlsQtr could tell you, that is a very big incentive.
Better yet -- much better -- there is the incentive toward peaceful and productive behavior called "conscience." I would not assume that prisoners have none, or can't develop one. Indeed, the entire concept of rehabilitation depends on it.
If however, and contrary to my hope and belief, we can't hope for conscience, then civil society will indeed be better off with LWOP.
Hmmm. Let's see--Supreme Court, by a 5-4 vote, affirms a very questionable decision to force California to release tens of thousands of criminals from prison, which is, of course, accompanied by lots of crime that wouldn't have otherwise, and my harping on this silly sentence is mania? Perhaps, but I'd rather be manic about preventing victimization than treating such nonsense as wisdom from down on high.
You believe that because some "expert" said that, in a vacuum, less overcrowding = less recidivism and therefore increased public safety, there is "some evidence" that the order in Plata (i.e., an order that is decidedly NOT in a vacuum) would increase public safety. I couldn't come up with a more out-of-touch fetishism for legalism if I tried. The Court takes the water is wet conclusion that, all things being equal, a prison with 137% overcrowding results in less recidivism than one with 500% overcrowding. With that conclusion the Court then says that in the real world (i.e., the case at bar) lowering California's incarceration rate by releasing criminals (who have, by the way, been hardened by the overcrowding they've "suffered"), equals "some evidence" that the Plata case has "some evidence" that releasing tens of thousands of criminals increases public safety.
That may be "some evidence" in the mind of five Platonic Guardians, but it is, in the context of real people who really got hurt as a result of Plata, a cruel joke and emblematic of a perversion of the judicial process. That a law prof cannot see the disconnect (or is willfully blind too it--after all, there's another enlightened judicial decision to be in awe of). And those of us not in awe of words on a page simply because it came down from on high call a spade a spade. Since I am channeling my inner Macedonian, I'll point out that the Court, from a logical standpoint, completely dropped the ball. Um, Justice Kennedy, a sine qua non to the idea that the Plata order improving public safety is that the crimes caused by the decreased incapacitation must be outweighed by the decrease in crimes caused by the predicted reduced recidivism. Perhaps in fantasyland, that's the case, but in the real world (and remember, criminals loosed on society is decidedly the real world--yeah, people bleed real blood) it ain't. Call me manic, Doug, but I am not the sycophant.
And of course, you continue in your disingenuousness. Yeah, there are victims and victims' families who don't want the book thrown at a particular criminal. But that general observation doesn't translate to the reality that there are significant numbers of victims who want painful cases (juves who get LWOP generally did some horrible stuff) reopened is dishonesty that is unbecoming of a lawyer, let alone a law prof (I continue to channel my inner Macedonian).
"Unxious"--i think you mean "unctuous"---in any event, I am not busting chops about spelling--to attribute to me a currying nature is laughable. As Mark Twain once said, "Choose the right word, not its second-cousin."
This blog is a place for the exchange of ideas, not insults. Please stick to attacking your opponent's position, not your opponent.
I haven't got time to police individual comments, and I really don't want to ban anybody, so I expect commenters to show self-restraint. You can make your point just as effectively -- and probably more so -- without the name-calling.
Just back from time on the road, federalist, and I will go in reverse order to try again to shed more light here (though, again, I fear your Plata-mania could make it impossible for more clarity on that front):
1. I did mean "unctious," and I was using the term (poorly?) to mean greasy and also to suggest your comments here were part of an effort to curry favor with Kent's suggestion (which I think is suspect) that victims as a class surely favor finality in this (and other) sentencing settings.
2. Turning to victim interests, I find it comical (and telling) that you call me "dishonest" and "unbecoming of a lawyer" for explaining that some victims could favor reopening some past juve LWOP cases given than an amicus curae brief was filed by Baker & McKenzie supporting Mongomery of behalf of victims who "believe that failing to provide children sentenced to mandatory life without parole an opportunity for review dishonors, rather than honors, the memories of their loved ones." So I guess you think, federalist, that the world's largest law firm is also engaged in "dishonesty that is unbecoming of a lawyer." Are you working on a bar complaint against B&M's lawyers for their dishonesty?
I am not sure if Kent thinks I am crossing the line here, but I continue to be eager to highlight, federalist, that your aggressive attack on my factual statement that "victims have a variety of interests and respond in a variety of ways to both the crime and the passage of time" serves ultimately to reveal "your ignorance and genuine disinterest in really listening to the voices of all victims of violent crimes."
3. Speaking of ignorance, you keep gettting caught up in and repeating the (deeply mistaken and misguided) notion that a single Plata sentence was an assertion by SCOTUS that the Plata order was certain to (or even likely to) increase public safety. That is not what the sentence says or even suggests, and I will walk you through this reality yet again. First, the key sentence:
"Some evidence indicated that reducing overcrowding in California’s prisons could even improve public safety."
A. This statement is about the record developed in the lower court as SCOTUS was reviewing the decision by the "three-judge court credit[ing] substantial evidence that prison populations can be reduced in a manner that does not increase crime to a significant degree." (That is the language from the sentence before the sentence that seems to drive you batty.) In context, the sentence asserts (accurately) that there was during the proceedings below "some [record] evidence" which "indicated" [not assured] that "reducing overcrowding" [not an immediate release of prisoners] "could even" [meaning possibly could, not certainly would] "improve public safety."
B. Even without subsequent explanation, the sentence you hate, federalist, was an accurate statment of the evidence presented below that was the basis for the order being reviewed in Plata. But the meaning should be even easier for you to understand, federalist, because it is immediately followed by FIVE sentences with record cites that detail what this "some evidence" was, and those sentences/record cites include quotes/testimony from prominent prison officials in California and two other states.
C. I surmise, federalist, that you remain wedded to mis-interpretting this single sentence as an affirmative statement by SCOTUS that the Plata order was sure to improve public safety in California. But that is just not what the sentence says no matter how aggressively you seek to attack SCOTUS (or me) for problems you see with your meaning-distorting, misunderstanding of a line in the Plata SCOTUS ruling.
D. I am not asserting you are manic for believing the dissent's views are stronger than the majority's in Plata. What strikes me as mania is that, after we have gone through this repeatedly, you bring it back up here in a setting that has NOTHING to do with Plata. In addition, my sense (perhaps to be corrected by Mike and Kent here) is that Prop 47 is right now a much bigger "mess-maker" in California than Plata. I know you love attacking justices you hate (and throwing insults at me), federalist, but it strikes me as mania that a single sentence in Plata still prompts attacks when you would seem much more justified going after Newt Gingrich and others who promised voters Prop 47 would "help the state emphasize punishments such as community supervision and treatment that are more likely to work instead of prison time." http://www.latimes.com/opinion/op-ed/la-oe-0917-gingrich-prop--47-criminal-justice-20140917-story.html
I think it's important to go back to what was said and what it was intended to show. You wrote this:
"As you know, not all victims favor death or LWOP or even finality. Indeed, one of many reason a less final sentence (with victim input) could be beneficial for victims is because it provides a reason for a changing defendant to seek to make some kinds of amends to victims to get their support for future sentencing purposes."
I find it tedious that I would have to explain in detail why this sentence is disingenuous. You start off with a truism--that in a group of people as varied and (unfortunately) large as the victims/victims' families of juveniles (not children) serving LWOP you will have some number of people who think, for whatever reason, that the perps should get resentenced. To take that truism and extrapolate that a victory for those sentenced to die in prison when they were "children" "could be beneficial" to victims' interests as a whole (note you didn't say "some victims"). You also throw in the concept of these guys being incentivized to make amends because they might have a better chance of getting out. "Slender reed" doesn't begin to describe the sort of thinking that takes a handful of examples of people who, for whatever reason, want to help the perps and the possibility that amends will be made (of course, assuming that such amends are sincere) into the idea that, golly gee, victims' interests generally are served by a favorable ruling for Montgomery. Oh I'm sorry, you said "could be"--gotta preserve that lawyerly hedging.
I note parenthetically that you didn't mention victims in your brief--I mean, if you really thought this is a "two-fer" wouldn't you have said so? In any event, you've come right out and said it---you think victims, as a class, aren't well served by finality.
I cannot help but note that your invocation of incentivized amends could prompt the tart response that if they haven't made amends already, then they are not "deserving" (a word used to describe these guys).
As for the B & M lawyers---they are representing the desires of a handful of victims' families.
As for Plata---I am well aware of the parade of voices that say that overcrowding increases recidivism. The statements have a "water is wet" feel to them. But to take a "water is wet" statement that increased recidivism is caused by overcrowding and turn it into "some evidence" that releasing tens of thousands of prisoners could be beneficial to public safety is an exercise in sophistry of the highest order. The statement has two logical flaws---first it is internally inconsistent--if California's overcrowding is hardening the current prisoners so that they commit more crimes when they get out, then releasing them will result in more not fewer crimes, and second it begs the question of whether the reduction in recidivism is outweighed by the reduction in incapacitation. Perhaps this passes some bare logical relevance test, but in the context of real people being harmed by real criminals, it seems a cruel joke.
You continue to argue that the statement is literally true blah blah blah. Even if I were to agree with that--so what? The real issue is that the Supreme Court was willing to dress up a decision that would result in the release of so many criminals as possibly helpful to public safety? Really? To me, that just points up the nature of the rigged game--everyone knows that Reinhardt and company really don't care about public safety (even though PRLA says they're supposed to) and the Supreme Court decided to prettify the decision with a "well, gee this might even be good." Of course, there's a degree of sophistication here, and some fig-leafing, but my inner Macedonian is right.
You defend it--fine. But the people of the State of California deserved better from SCOTUS.