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Over the Top

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This past Wednesday, NPR radio had a lengthy interview with Nell Bernstein, author of a new book on juvenile detention facilities, titled "Burning Down the House: The End of Juvenile Prison."  A lot of claims are made by the author and I'm sure some are true; the juvenile justice system is often ineffective in reforming kids.  But even those who lack any expertise in the topic might begin to think that Ms. Bernstein is, shall we say, taking liberties when she makes the claim (at the 29:45 mark) that psychiatric experts agree that even a "few hours" of solitary confinement can make people crazy.  And when the comparison is made between solitary confinement in the juvenile justice system and the "cold cells" used by the CIA to emotionally break down terrorists, then maybe the reporter ought to consider asking some tougher questions.    

Juvenile LWOP in Nebraska

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The Nebraska Supreme Court has decided a trio of cases on how it will deal with Miller v. Alabama.

In State v. Castaneda, No. S-11-023, the court looks at Nebraska sentencing and parole law and decides that a life sentence for a juvenile under the law as it existed until recently was a mandatory life sentence within the meaning of Miller.  There is no dissent, and the conclusion appears to be correct.

In State v. Mantich, No. S-11-301, the court reaffirms that Nebraska follows Teague v. Lane for retroactivity on collateral review and then says it is a difficult question whether Miller is substantive (and therefore retroactive) or procedural (and therefore not retroactive).  It's obviously procedural in my book, but having declared the question difficult, the Nebraska Supreme Court proceeds to answer it the wrong way.  Justice Cassel dissents, joined by Chief Justice Heavican.  "The U.S. Supreme Court has never indicated that anything less than a full categorical ban on a sentence may be a new substantive rule, and in my view, we should decline to do so in the first instance."  Right.

In State v. Ramirez, No. S-11-486, the court decides that on remand the new Miller legislation will apply, giving discretion to impose a sentence between 40 and life.  In  Castaneda, above, the court explained that under Neb. Rev. Stat. § 83-1,110 parole eligibility begins at half the minimum term.

Ramirez and Castaneda are not likely to go up to the U.S. Supreme Court.  Although there are federal questions, they are intertwined with state law.  Mantich involves a deep split among state supreme courts and is prime certiorari material.
Guest post by Phyllis Loya:

Tomorrow will be an important day for our family and the hundreds of other victims who will be affected. The California Supreme Court will hear oral argument tomorrow to review an appeals court ruling that overturned the life-without-parole sentence of a defendant who was under 18, by four days, when he committed an armed robbery of a bank and grocery store that culminated in the ambush and murder of my son, Police Officer Larry Lasater during a foot pursuit.

The Sacramento-based Criminal Justice Legal Foundation has joined the case on behalf of our family, seeking a decision to overturn the lower court ruling and reinstate the defendant's sentence. "The 16- and 17-year-old murderers eligible for a life without parole sentence are not children," said Foundation Legal Director Kent Scheidegger. "In many cases, they are violent, remorseless killers who, if over 18, would be eligible for a death sentence. Andrew Moffett has earned his sentence, and the Supreme Court should assure that it is carried out," he added.

Thanks so much to CJLF for the wonderful work they do on behalf of victims and public safety. Please keep us in your thoughts and prayers. Although we will stand strong if we have to go through a third sentencing hearing, each time we are in a courtroom facing that remorseless killer, we suffer and I pray the Supreme Court reinstates the sentence.

Should Juveniles Always Get a Free Ride?

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The law tends almost always to draw a bright line between juvenile and adult sentencing (indeed, in juvenile law, the disposition is often not even called a "sentence").

Whether this one-size-fits-all-under-18 rule makes any sense is a different matter. Don't we have courts precisely to judge cases on their individual facts, rather than make assumptions about maturity and judgment  --  issues critical to deciding criminal responsibility  --  that will sometimes be right, and other times be dead wrong?

The head of the Federalist Society chapter at Ole Miss Law School, Ms. Katie Ryan Van Camp, has an article up on SSRN.  The abstract follows the break.  It seems very much worth the read.


More on Affluenza

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Manny Fernandez and John Schwartz have this article in the NYT, following up on the teenage drunk driver who killed four people and got off with probation, claiming the "mitigating" circumstance that his parents were rich and had spoiled him rotten.  See Bill's prior post.

Liz Ryan, the president and chief executive of the Campaign for Youth Justice, a group in Washington that advocates for juvenile rehabilitation, said that in a series of recent cases before the Supreme Court and state courts, advances in neuroscience have been applied to questions of crime and punishment for young people.

"They make mistakes, they're prone to impulsive behavior," Ms. Ryan said. "And at the same time, they are capable of change."

But a prominent advocate for victims' rights reacted to the sentence with scorn. "Just when you think our excuse-making culture has sunk as low as it can go, somebody goes yet lower," said Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation in Sacramento.

Scott Brown, Mr. Couch's lawyer, said that while the word affluenza may have become an object of fascination, it was never at the heart of the case. His client had already pleaded guilty, and the word came up in hearings on punishment. "I never used the word affluenza, and never would have used such a cute word in such a serious, tragic case," Mr. Brown said. "That's just been blown completely out of proportion."

*                                           *                                        *

Bill Berenson, a lawyer for Mr. Molina's parents, said his clients were stunned by the sentence. "Their son is paralyzed, four people are dead and the perpetrator gets his wrists slapped," he said. "How could they not feel that his affluence kept him from serving time?"

I can appreciate Brown's point that the word has been blown out of proportion, but this isn't, or shouldn't be, about the word.  This is about the ridiculous extremes to which we are taking excuse-making, whatever label may be applied.


The Supreme Court of Louisiana has held that Miller v. Alabama, which requires that a sentencing judge have discretion to sentence an under-18 murderer to something less than life without parole, is not retroactive to cases that were already final on direct appeal when Miller was decided.

Louisiana follows the rule of Teague v. LaneMiller is a procedural rule, not a substantive one, and it does not fall within the small (extinct?) class of precedents deemed "watershed" rules.

The case is State v. Tate, 2012-OK-2763.
On Wednesday, the Pennsylvania Supreme Court decided Commonwealth v. Cunningham, on the question of whether the U.S. Supreme Court decision in Miller v. Alabama is retroactive to cases already final on direct appeal before Miller was decided under the principles established by the Supreme Court under Teague v. Lane.

The court correctly decides that the answer to that question is no.  Under the Teague rule, new procedural rules such as Miller apply to cases still on direct appeal, but not to cases where the judgment is final on appeal.

An item originally in today's News Scan, which I have since deleted, summarized a news article that got the key date wrong.  It said Miller would not be retroactive to anyone sentenced before the date of that decision.

State courts can extend retroactivity in state collateral review further than Teague, the Supreme Court said in Danforth.  The Pennsylvania Supreme Court indicated that it was not deciding that question because the defendant did not ask it to.
Peter Hall of The Morning Call (Allentown, Penn.), reports:

Three men sentenced as teenagers to life in prison without parole will have an opportunity to convince federal judges they should be resentenced following a U.S. Supreme Court decision saying that practice is unconstitutional.

The U.S. 3rd Circuit Court of Appeals ruled Thursday the men can file appeals to their state sentences to determine whether the Supreme Court's decision applies in their cases.
First, it should be noted that the Supreme Court did not "say[] that practice is unconstitutional."  It said that having that sentence mandated by law, without discretion in the sentencer to opt for a lower sentence on the individual facts of the case, is unconstitutional.

The decision Thursday involves an arcane bit of federal procedure and is easily misunderstood.  The Third Circuit has not decided that Miller v. Alabama applies retroactively on federal habeas corpus to cases long since final on direct appeal.

Debate on Miller v. Alabama Retroactivity

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The New York Times's Room for Debate feature has this debate on retroactivity of Miller v. Alabama, with yours truly holding up one side versus four others.  Our pieces were limited to 300 words.

Update:  Rereading William Baude's piece after seeing his comment to the original post, perhaps I should say there were three on the other side and one neutral.

Update 2:  Will has a post on the debate at the Volokh Conspiracy.

Rapists as Victims

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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.

It is far from unheard of for the media to gush over defendants as supposed victims of an uncaring/racist/class-ridden state, not to mention evidence-hiding (or evidence-manufacturing) prosecutors. This time, though, they overdid it, resulting in a good bit of howling from usual media allies.

CNN, in particular, got panned.  As reported by Yahoo News, some of CNN's coverage of the verdict and sentencing was as follows:

"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."

******************************

[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?"


Enough is enough, so some of the response was:


"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."


One might hope that sobbing over criminals will draw liberals' rebuke in more than just rape cases, with their Politically Correct undertow.   We shall see.



JLWOP in a Discretionary System

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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.

Monday SCOTUS Orders

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The US Supreme Court orders list is here.  See prior posts Thursday and FridayNew 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.

Mich. App.: Miller Not Retroactive

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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.

Miller v. Alabama in California

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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."

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