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Miller and Apprendi

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As noted by Doug Berman at SL&P, yesterday the Pennsylvania Supreme Court decided the case of Pennsylvania v. Batts, No. 45 MAP 2016 (Pa. June 26, 2017). The court held that under the precepts of Miller v. Alabama and the Supreme Court's evolving Eighth Amendment juvenile jurisprudence, adolescents convicted of murder are entitled to a presumption of a sentence that includes parole. 

The Batts case is interesting reading on a number of fronts.  The court construes the Miller rule of permanent incorrigibility to be a finding that "there is no possibility that the offender could be rehabilitated at any point later in his life, no matter how much time he spends in prison and regardless of the amount of therapeutic interventions he receives, and that the crime committed reflects the juvenile's true and unchangeable personality and character."  If the rule is going to be the sky's the limit on possible interventions and the state must show no possibility of change whatsoever during a defendant's life, then this is a ruling that proscribes juvenile LWOP sentences outright.   It is also interesting to think of a sentencing decision based largely on a defendant's personality rather than his conduct (even more so given the Supreme Court's recent cert denial in Loomis v. Wisconsin). 
exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict
The court also held that a defendant has no right to a jury determination on permanent incorrigibility, finding the Apprendi linage of cases inapplicable.  In particular, the court held that permanent incorrigibility "cannot be said to be an element of the crime committed; it is instead an immutable characteristic of the juvenile offender."   But why would we not want juries to decide this issue?  The Supreme Court has decided that when it comes to the death penalty, essentially juries must have the ultimate say.  They own the decision because they must make the finding of the aggravating factor necessary for imposition of death sentence. Yet the Pennsylvania Supreme Court disagrees that permanent incorrigibility is an aggravating factor in this sense.  The court states: "[t]o render these characteristics [permanent incorrigibility] crime-specific would contradict the entire premise of the Supreme Court's decisions, which prohibit a sentencer from finding that a juvenile offender is unable to be rehabilitated based on the crime itself" (slip op. 78-79).  The court is heading off at the pass the late Justice Scalia's astute observation in Ring v. Arizona that the existence of an aggravating factor ought to be decided during the guilt phase anyway.   

But it is plainly obvious that permanent incorrigibility operates as an aggravating factor.  Those who have it may receive a harsher sentence than those who do not.  Apprendi and Miller are on a collision course and the crux is whether juries or sentencing judges ought to decide who is permanently incorrigible.  Who decides whether a defendant is beyond redemption for society is a difficult task indeed; all the more so given the arduous standard now in place in Pennsylvania. But whoever decides, determines a fact that operates in a fashion that as outlined in Apprendi "exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone."
 The historic link between verdict and judgment and the consistent limitation on judges' discretion to operate within the limits of the legal penalties provided highlight the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone
exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone."

2 Comments

I agree with the first part of your analysis, which I believe makes the second part moot as a practical matter.

It's impossible to say with any degree of certainty that, when a defendant is 16, he will be "permanently incorrigible" when he's 76. Human beings simply do not have that kind of knowledge that far into the future (as any appellate court will correctly hold). Hence, Batts is indeed judicial legislation that juvenile LWOP is never to be allowed in Pennsylvania.

This is, by the way, another example of abolitionist shake-and-jive. The juvenile death penalty was banned on the implicit promise that it could be replaced by LWOP. After a few years, we now find that this is not so. It was never intended to be so to begin with, to be honest.

A few years from now, we're going to find that parole has to be considered after X number of years, because, otherwise, the sentence is effectively LWOP no matter what it's called.

And a few years after that, "X" will get lowered. And then lowered again.

This is how it is with abolitionists. Although they are sincerely concerned with the death penalty, that is not, at root, what this is all about. The emotive engine with them is opposition to ANY PUNISHMENT AT ALL -- which is, when you think about it, hardly surprising. Indeed, it's the inevitable endpoint of their treasured medical model of crime.

I realize that my view may not be shared by many but my thinking is that to untangle Aprendi/Alleyne from sentencing factors turns on whether the factor is discretionary. Since permanent incorrigibility is a mandatory finding for juvenile LWOP, it should be an element of the offense per Alleyne.

I recognize that this raises all sorts of issues, including separation of powers.

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