Recently in Juveniles Category

Two high school football players were convicted over the weekend of raping a 16 year-old girl.  They were tried as juveniles, and thus, under Ohio law, cannot be held beyond their 21st birthdays.

"I've never experienced anything like it," CNN correspondent Poppy Harlow said live outside the juvenile court in Steubenville. "It was incredibly emotional--incredibly difficult even for an outsider like me to watch what happened as these two young men that had such promising futures, star football players, very good students, literally watched as they believe their life fell apart."

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[Candy] Crowley then discussed the case with CNN legal contributor Paul Callan.

"You know, Paul, a 16 year old now just sobbing in court, regardless of what big football players they are, still sound like 16 year olds," Crowley said. "The thing is, when you listen to it and you realize that they could stay until they're 21, they are going to get credit for time served. What's the lasting effect, though, on two young men being found guilty in juvenile court of rape, essentially?"

"One way to report on the outcome of a rape trial is to discuss the legal ramifications of the decision or the effect the proceedings may have on the life of the victim," Gawker's Mallory Ortberg wrote. "Another angle reporters can take is to publicly worry about the 'promising future' of the convicted rapists, now less promising as a direct result of their choice to rape someone. Reporters at CNN today chose the latter technique."

As noted earlier today and last November, a California Court of Appeal decided that Miller v. Alabama does impact juvenile life-without-parole sentencing in California, even though the sentence is discretionary, and the US Supreme Court has sent two cases back for reconsideration.

Last Thursday, the California Supreme Court granted review of that Court of Appeal decision.  The case is People v. Moffett, S206771.

The US Supreme Court orders list is here.  See prior posts Thursday and Friday.  New Mexico v. Herring was turned down, but there was no action on the other cases mentioned in Thursday's post.

The Court sent a juvenile LWOP case back to California courts for reconsideration in light of Miller v. Alabama.  There should be nothing to consider, since Miller by its terms applies only to mandatory sentencing systems and California's is discretionary.  However, one California Court of Appeal has misapplied Miller to California law (see this post), and this is the second time SCOTUS has sent a California case back for equal opportunity to be erroneously decided.

The heading of this post might be a bit surprising to some, since the Miller decision by its terms does not affect jurisdictions with discretionary sentencing of juveniles to life-without-parole for murder.  Indeed, footnote 10 of the Miller opinion expressly lists California Penal Code § 190.5(b) as one of the discretionary statutes that are fundamentally different from the mandatory scheme declared unconstitutional.

However, on October 12, a California Court of Appeal panel decided in People v. Moffett, A133032 that Miller does change California's system.  See prior post. 

Then on October 29, the U.S. Supreme Court vacated a California decision and remanded it to a different California Court of Appeal to reconsider in light of Miller.  The case is Mauricio v. California, No. 11-10139.  The correct answer upon reconsideration would be, "Huh? You expressly said Miller was about mandatory sentencing systems, and ours isn't one.  There is nothing to reconsider."  Lyle Denniston has this post at SCOTUSblog.

We hear through the grapevine that the Cal. AG will petition Cal. Supreme for review in the Moffett case.  The state high court should probably transfer the Mauricio case to itself as well.

In a published decision, People v. Carp, No. 307758, the Michigan Court of Appeals has held that Miller v. Alabama, forbidding mandatory LWOP for juvenile murderers, is not retroactive to cases already final on appeal when Miller came down.  For new cases, Michigan courts will have to alter their procedures.

The court analyzes the retroactivity question under both the federal Teague rule and under the Michigan standard, which is essentially the same as the U.S. Supreme Court's old pre-Teague Linkletter/Stovall rule (still followed in a surprising number of states).  The conclusion section of the opinion is after the jump.

In Miller v. Alabama, the U.S. Supreme Court held that laws prescribing a mandatory sentence of life without parole for murders committed when the perpetrator was under 18 are not permitted.  The judge must be able to exercise discretion.

The first thing that should have been obvious is that the case makes no change in the states where the LWOP sentence is discretionary and not mandatory.  In footnote 10, the opinion lists California Penal Code §109.5(b) as an example of a discretionary statute.  Clear as crystal, right?

Never underestimate the ability of result-oriented judges to misconstrue the clearest of holdings.  People v. Moffett, A133032A, involved the sentence of an armed robber just barely short of the threshold of 18.  He was a major participant in the robbery and threatened victims with death at gunpoint.  His accomplice murdered Police Officer Larry Lasater, for which he was sentenced to death.  The trial judge was well aware she had discretion, considered all the circumstances of the case, and decided life without parole was the appropriate sentence.  The Court of Appeal reversed, based not on the actual holding of Miller but on some of Justice Kagan's overly expansive language and its perception of the "spirit" of the decision.

The Attorney General should seek California Supreme Court review of this decision, and that court should emphatically reverse.

Bob Egelko has this story in the San Francisco Chronicle.  Officer Lassiter's mother has a comment to the story under the name "mom257."

California Governor Jerry Brown has signed SB 9, a bill that gives murderers who were 16 or 17 years old at the time of the crime a procedure to modify their "life without parole" sentence.  The Sacramento Bee has this story.

Proponents of this bill have misleadingly claimed it is about sentences imposed on "children.'  In fact, under California law no one under 16 can ever be sentenced to life without parole. 

The chaptered bill is here.

An intermediate appellate court in Florida has held that Miller v. Alabama, forbidding automatic life-without-parole sentences for under-18 murderers, is not retroactive to cases on collateral review in that state.  (Hat tip: SL&P)  The case is Geter v. State, No. 3D12-1736, Third District Court of Appeal.

Florida still uses the old Linkletter/Stovall approach to retroactivity, created by the U.S. Supreme Court in the 1960s but abandoned by it in the 1980s in Griffith v. Kentucky and Teague v. Lane.  (See our recent brief in Chaidez v. United States for some of the history and citations.)  States can follow this old approach if they want to under Danforth v. Minnesota.  (They shouldn't, IMHO.)  Those that do not generally follow Teague.  Because Linkletter/Stovall is more favorable to the defendant than Teague for collateral review, this case should be useful even in the latter states.

(For cases that were still on direct review when Miller was decided, the Griffith rule requires retroactive application in all states.)

Must have been an interesting oral argument:  the murderer, now 28, not a lawyer, against the Attorney General, not a deputy.  The facts of the case are after the jump.

Cully Stimson has this article at the Heritage Foundation.

Abstract: For almost a decade, activists have asserted that, through the mechanism of the Eighth Amendment's prohibition on "cruel and unusual punishments," international law either forbids or constrains states from exposing the roughest juvenile criminals to the toughest sentences. Relying in part on those arguments, the Supreme Court of the United States has diminished sentencing options, for adult and juvenile offenders alike, at every turn. However, in Miller v. Alabama, foreign and international law are conspicuous only for their absence. This may signal a welcome shift in the Court's jurisprudence. Activists will no doubt continue to cite foreign and international sources in making their cases against domestic sentencing practices, but Miller at least suggests that the Court has grown wary of such arguments.

After the jump are the names of the 41 members of the California Assembly who voted in favor of SB 9, i.e., for the murderers.

Senate Bill 9, which would effectively abolish life without parole for anyone who commits his murder a day short of his 18th birthday, passed the California Assembly today.  This article in the Sacramento Bee describes the bill as allowing "some offenders to petition for a resentencing hearing if they were minors when they committed a murder that landed them in prison with no chance of parole."  In reality, though, the criteria are so open-ended that only a small number of categorically excluded murderers will not be able to qualify.

California already complies with Miller v. Alabama.  There is no mandatory LWOP for juveniles.  In all cases, the judge has discretion to impose life with parole rather than life without parole for a juvenile convicted of first-degree murder with special circumstances.  The following passage from the story indicates the kind of dishonest arguments made for this bill:

Nearly one of every two California youth convicted of murder did not actually kill the victim but were lookouts or were participating in another felony, such as robbery, when the homicide took place, according to Yee.

Note it says "convicted of murder" not "sentenced to life without parole."  The former is irrelevant and the latter would be false.  But a lot of people don't get the distinction.

The bill now goes back to the Senate, where its passage is nearly certain, and then to Gov. Brown, who rarely misses an opportunity to go softer on thugs.

For a juvenile convicted of multiple grave offenses but not a (successful) homicide, a sentence of 110 years to life is a de facto life-without-parole sentence for the purpose of applying Graham v. Florida, the California Supreme Court decided today in People v. Caballero, No. S190647.

Actually, that was the easy part.  Now what exactly should the courts do about it?

Cal. Supreme's answer:  punt it to the trial court.

Under Graham‟s nonhomicide ruling, the sentencing court must consider all mitigating circumstances attendant in the juvenile's crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison "based on demonstrated maturity and rehabilitation." ... Because every case will be different, we will not provide trial courts with a precise time frame for setting these future parole hearings in a nonhomicide case. However, the sentence must not violate the defendant‟s Eighth Amendment rights and must provide him or her a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" under Graham‟s mandate.

In my view, this approach provides way too much latitude for the trial judge, inevitably resulting in a situation where a defendant's sentence depends as much on which judge he gets as it does on what he did.  We are forgetting history and repeating it.

The spinning of developmental science to support going soft on young offenders continues.  Mike Ward has this story in the Austin Statesman on a report at the National Conference of State Legislatures citing studies by the notoriously left-leaning MacArthur Foundation.

The science simply does not support the proposed rules of law for which it is usually cited:  blanket rules exempting young offenders from particular punishments, with chronological age alone trumping all other considerations.  As summarized in CJLF's brief in Graham v. Florida, the science actually identifies two different groups of young offenders, a larger group likely to desist from crime as they mature and a smaller, hard-core group likely to remain criminals for the rest of their lives.

If we really want to go where science points us in juvenile justice policy, we should focus on identifying that hard core group and locking them away for the maximum their offenses warrant, for our own protection as well as basic justice.

In my crabbed old age, I have become suspicious of organizations claiming to promote charity.   It's not that this charity or that doesn't do good work.  Most of them do, I guess.  It's that I've seen one story too many in which a "charity" was just a front for crime.  We've all seen articles about "charities" that collected funds for some noble cause that turned out to be fake, or about "charities" that spent two percent of the funds collected for the ostensible beneficiaries and the rest on the people running the "charity."

"A Quebec activist who fought the stereotyping of Muslims was charged with supporting terrorism on Friday after an RCMP investigation linked her to an alleged scheme to smuggle weapons to Hezbollah in Lebanon."--National Post (Canada), July 13

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.

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 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.