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Pearls Of Wisdom

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In his book Admirable Evasions author and psychiatrist Theodore Dalrymple has these truisms:

It is more usual [in our modern world], however, to attribute good character to those those who behave badly than bad character to those who behave well (the latter propensity often being the consequence of envy).  I once heard a fond mother of a boy aged fifteen, who had burgled more than two hundred houses, say of him on the radio that "he's a good boy really," that is to say, a lad with a heart of gold, despite the considerable amount of misery to others that each of his crimes had almost certainty caused.  No doubt it is a natural and to some degree necessary thing for a mother to indulge in special pleading on behalf of her son, but it is absurd that it should be accorded any intellectual respect.


The European Court of Human Rights recently ruled that whole-life sentences to prison are against Man's fundamental rights because they eliminate the possibility of repentance and redemption (known in the trade as rehabilitation).  Thus, the judges of a court that is supreme in matters relating to supposed human rights for a continent on which, within living memory, tens of millions of people have been systematically starved or abused to death or put to death industrially on an unimaginably vast scale, could conceive of no crime so terrible that the person who committed it was beyond earthly redemption.  On this basis, someone like Himmler, had he not committed suicide, or Beria, had he not been shot by his erstwhile colleagues, would have been eligible for parole, provided only that they showed reformed character by, for example, making toys for children or Braille books for the blind.

Is Miller v. Alabama Retroactive?

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.

A Waste of Time and Money on a Killer

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Roughly four weeks ago, the New York Times had this gushing article about the then-upcoming re-sentencing for Adolfo Davis.  In 1990, at age 14, Davis, a Chicago native, was knee-deep in a double murder.  He was tried as an adult and sentenced to the then-mandatory LWOP. Then the Supreme Court came along in Miller v. Alabama to hold, 5-4, that mandatory LWOP for a juvenile violates the Eighth Amendment. 

The defense bar was all aflutter.  Miller was to be the beginning of the end for finality in sentencing, and would open the door to vastly expanded proportionality review, not to mention full throttle for the "his-brain-wasn't-developed" arguments in behalf of all manner of violent criminals in their fifties forties thirties whatever. 

All that might yet happen.  But, I noticed in the Chicago Tribune yesterday on my way back from the Seventh Circuit Judicial Conference in Milwaukee, it didn't work out too well for Mr. Davis.
Yesterday the U.S. Supreme Court took up once again the question of whether its decision in Miller v. Alabama, that LWOP sentences for under-18 murderers must be discretionary and not mandatory, applies retroactively to overturn sentences that were correctly decided on appeal under the law existing at the time.  The previous case on this question, Toca v. Louisiana, became moot when Toca's sentence was commuted. 

The new case is Montgomery v. Louisiana, No. 14-280.  This case is a better vehicle than Toca, as the facts are more typical of an LWOP case.  Montgomery murdered Deputy Sheriff Charles H. Hurt in 1963, when Montgomery was 17.  He could have been executed in the electric chair at the time, but the jury granted him leniency.

The question presented as phrased by the petitioner/defendant is, "whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?"  The Court added its own question, "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. ____ (2012)?"

Note the "die in prison" phrasing.  Apparently death is no longer different.

My initial impression is that the answers are "no" and "yes."  Since the parties are agreed on the jurisdictional point, the Court may appoint an amicus to argue the "no."

In other action, Court decided two civil cases today.  Still waiting on the Facebook threats case, Elonis v. United States.  Possibly tomorrow.

Yesterday the Court turned down the Wisconsin voter ID case, Frank v. Walker, No. 14-803.

Toca Set For Argument Anyway

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Last week we noted that the U.S. Supreme Court case of Toca v. Louisiana, No. 14-6381, was moot because a settlement had been reached back in the state court.

Apparently no one has told the Supreme Court that yet, and they have set the argument for March 30.

Update:  A stipulation to dismiss has been filed.  Rule 46.1 provides that "the Clerk, without further reference to the Court, will enter an order of dismissal."  Update 2 (2/3): Done.

Brumfield v. Cain, No. 13-1433, another Louisiana case, is set for the same day and probably will go as scheduled.  It has to do with the way that state handles murderers' claims that they are intellectually disabled.

That's it for criminal cases on the March calendar.  San Francisco v. Sheehan, No. 13-1412, is a law-enforcement-related civil case on the Americans with Disabilities Act and accommodating "an armed, violent, and mentally ill suspect."  It is set for March 23.

Miller Retroactivity Case Is Moot

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The U.S. Supreme Court took up Toca v. Louisiana to decide the question of whether Miller v. Alabama -- which said a juvenile cannot be sentenced to life-without-parole unless the sentencer had discretion to select a lesser sentence -- applies retroactively to overturn judgments already final on the day it was decided.

Now the case will be dismissed as moot.  John Simerman reports for the New Orleans Advocate:

A state prisoner from New Orleans who recently landed at the center of national legal debate about mandatory life sentences for youthful offenders won his freedom Thursday after 31 years in prison.

Orleans Parish District Attorney Leon Cannizzaro's office agreed to vacate his murder conviction.
I think that is a proper disposition.  Toca's sentence would have been unduly harsh even if he were an adult at the time of the crime.  The deceased was his accomplice in the robbery.  In my view, the felony-murder rule should at least be reserved for the deaths of innocent people, and this death should not have been considered murder at all.
In Miller v. Alabama, the Supreme Court announced a new constitutional rule that murderers who are 17 years, 364 days old or less at the time of the crime cannot be sentenced to life without parole under a mandatory sentencing system, but they can receive such a sentence if the judge has discretion to consider mitigating circumstances and decides that LWOP is warranted.

Does that decision apply retroactively to require new sentencing proceedings for the under-18 murderers sentenced under mandatory statutes and whose convictions were affirmed in final judgments before the Miller decision?  The Supreme Court of Louisiana said no last year in State v. Tate, 130 So.3d 829.  Applying Teague v. Lane, 489 U.S. 288 (1989), the court said this is a procedural change, not a substantive one, and it does not qualify as a "watershed" ruling on the scale of Gideon v. Wainwright.

Last June, that court applied the Tate precedent to summarily reverse a grant of collateral relief to George Toca.  Today the U.S. Supreme Court took up Toca's case.  Unsatisfied with the way Toca's lawyer wrote the question presented, the Court rewrote them as:

1) Does the rule announced in Miller v. Alabama, 567 U. S. ____ (2012), apply retroactively to this case?
2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception?

Teenagers Are Not Children

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Law professor Kevin Lapp has a new article up on SSRN titled "As Though They Were Not Children: DNA Collection from Juveniles."  Admittedly, my schedule these days leaves little time to read 55 page law review articles, so I have only skimmed the article this morning, but one theme of the article is commonplace and needs to be rebutted:  Teenagers are not children.

Yes, all lawyers know that the law treats those less than 18 years of age as minors and rarely makes any distinctions between teens, tweens, and young children (although not always, see, e.g., family law) but it frankly ought to.  A 17-year-old "child" has cognitive and developmental abilities that are clearly and categorically different than a 10 year old.  Indeed, the old common law understood this simple proposition when it held that minors 14 years or older were presumptively responsible for crimes and could be punished as adults. 

Now, of course, we are a more advanced society one might say, with our evolving standards of decency and reasoned moral responses.  These trendy new standards are based on things such as neuroscience which shows that the brain does not become fully myelinated until one's late 20s.  Never mind that we have no finding for how much myelination is necessary for reflective moral judgment nor have we tackled the much harder question of how much brain power and maturity is necessary for legal responsibility.  Presumably, one is not required to have an optimal brain since 20-year-olds can vote, sign contracts, be conscripted, and enjoy the other privileges of adult life.  They can even run for political office if they so desire.        

Should We Ever Have LWOP for Juveniles?

Since the Supreme Court, acting as it so often does on its own tastes, outlawed mandatory LWOP for juvenile murderers, there has been a raging debate whether LWOP should ever be allowed for adolescent killers. You can guess which side academia, the press and the one-direction-only defense bar take.

This grisly story will not make them reconsider, because nothing makes them reconsider. That's because, despite their demand for "evidence-based sentencing," they are not about to take an honest look at any actual evidence when it undermines their predetermined position.

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. ยง 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

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.

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