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Last Thursday, in an opinion authored by Justice Werdegar, the California Supreme Court decided that its 1971 decision in People v. Burton, that a minor's request to speak with his parent invoked his Fifth Amendment right to silence, was no longer good law in light of the United States Supreme Court decision in Fare v. Michael C. 

In Burton, a 16-year-old-minor was convicted of murder based on the confession he made in police custody.  He had asked to speak with his father, and police refused.  The police also refused the father's request to speak with his son.  The California Supreme Court reversed the conviction.  It believed the 16-year-old's request satisfied Miranda v. Arizona's requirement that police cease interrogation "if the accused indicates in any manner that he wishes to remain silent or consult an attorney."  The opinion, written by Justice Sullivan, reasoned that the minor's request for a parent was analogous to an adult's request for an attorney, and held that "when... a minor is taken into custody and is subject to interrogation, without the presence of an attorney, his request to see one of his parents,... must, in the evidence demanding a contrary conclusion, be construed to indicate that the minor desires to invoke his Fifth Amendment privilege."  Burton thereby created the presumption that a minor's request to see a parent invoked his right to remain silent.

The Supreme Court's decision in Fare v. Michael C. weakened the strength of Burton's presumption. 

The November (ahem) issue of the Journal of Law and Economics just hit my emailbox. Among the articles is Randi Hjalmarsson, Juvenile Jails: A Path to the Straight and Narrow or to Hardened Criminality? Here is the abstract (emphasis added):

Juvenile justice systems throughout the United States have become increasingly punitive since the 1970s. Most states have passed legislation making it easier to transfer juveniles to the criminal courts. Supporters of this "get tough" movement argue, in part, that juvenile courts are ineffective in deterring young offenders. This claim, however, is based primarily on poorly designed evaluations that do not account for the nonrandom nature of sentencing. This paper demonstrates how the institutional features of the justice system can be exploited to identify causality when true random assignment is not feasible. In particular, I capitalize on discontinuities in punishment that arise in Washington State's juvenile sentencing guidelines to identify the effect of incarceration on the postrelease criminal behavior of juveniles. The results indicate that incarcerated individuals have lower propensities to be reconvicted of a crime. This deterrent effect is also observed for older, criminally experienced, and/or violent youths.

Note that "deterrent effect" here is specific deterrence -- the individual punished is less likely to do it again. This is different from a "general deterrent" effect, where punishing one person makes others less likely to do it.

Today's News Scan notes Adam Liptak's article in the New York Times. The headlines reads, "Right and Left Join Forces on Criminal Justice." The trends that Liptak notes are interesting, but I think he overstates the case of how much has changed.

After noting that some conservative groups have filed amicus briefs supporting defendants in some cases, the article says, "The development represents a sharp break with tough-on-crime policies associated with the Republican Party since the Nixon administration." No, not really. "Tough on crime" never did mean siding with the prosecution in every case. It meant keeping the trial focused on whether the defendant really did it, not on collateral issues. It meant imposing an adequate punishment for acts that every rational person agrees should be criminal, such as murder, rape and robbery. It did not mean expanding criminal law to cover such things as, e.g., importing lobsters.

The article continues, "Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws."

Mr. Meese is a valued advisor to CJLF, and he is just as much "a fervent supporter of law and order" as he ever was. His shop at Heritage was instrumental in coordinating the amici supporting the state in the Graham and Sullivan cases. They also published Adult Time for Adult Crimes to correct some of the misinformation about violent juveniles that the left-leaning think tanks have been pumping out.

Many conservatives now are opposing laws that make issues criminal that should be civil and make issues federal that should be state.  That is far different from the old liberal goals of making the trial an examination of what the police did rather than what the accused did and setting the murderer free because the constable blundered. On issues such as these, the liberal-conservative divide remains as strong as ever. The picture is somewhat complicated by the existence of libertarian groups such as Cato that side with conservatives on economic issues and liberals on criminal law issues, but that is an issue of taxonomy rather than realignment.

Another complication is the fact that the Supreme Court is more conservative than it was in the Warren and Burger years, and that has caused a shift in the issues it considers. Rules of law that overturn convictions for reasons having little or nothing to do with the reliability of the verdict, such as Mapp and Miranda, are fading in prominence as the Court whittles them down. The hot issues today are the Apprendi and Crawford lines of cases, which really are based in the Constitution and actually do have some relation to reliability of the verdict. The conservative "tough on crime" position never was about risking the conviction of innocent people. We were always the ones who agreed with Judge Friendly that innocence is indeed relevant.

The cases noted in the article where conservative groups have supported the defendant are different in kind from the cases that produced the liberal-conservative divide in the past and continue to make that division today. The changing mix of the cases before the Supreme Court is more of a factor producing the occasional odd bedfellows than any emerging consensus.

The trends noted in the article are interesting and important, but let's not get carried away. Conservatives and liberals are still locked in opposition on the death penalty, habeas corpus, the exclusionary rule, Miranda, and every other rule that enables violent criminals to get off easy or get off completely for crimes we know beyond a reasonable doubt they committed. There will not be consensus on those issues until the lefties see the error of their ways, and I'm not going to hold my breath.

Now this is really sweet. The Sullivan case contains a major jurisdictional question of whether the state court decision rests on independent state grounds. Counsel for Sullivan, Bryan Stevenson, completely ignored that question in his principal brief on the merits. The State addressed it in their brief, and so did CJLF in our amicus brief. In his reply brief, Stevenson finally addressed the point.

On the first page of his argument, Stevenson only gets two sentences out on the point he really wants to argue before Justice Ginsburg cuts him off and directs him back to jurisdictional point. Then he takes fire from her and Justices Sotomayor, Scalia, Kennedy, and Alito (i.e., a majority) for the next ten pages before he is able to say another word about the underlying question.

But Justice Ginsburg isn't finished with him. When he comes back for rebuttal, there is this on page 48:

The Graham case presents the constitutional question in its clearest terms. Unlike Sullivan, there is no procedural obstacle to reaching the merits. The facts also present the problem of a bright-line rule most clearly. Graham was just 35 days short of his 18th birthday when he committed the last offense. To believe in a constitutional bright line at the 18th birthday, you have to believe that Graham's sentence violates our most fundamental law even though the same sentence would have been perfectly proper had the same person with the same record committed the same crime 35 days later.

That's pretty hard to swallow, and in today's argument no Justice gave a clear indication of having swallowed it. Unlike a death sentence, which is cleanly distinguishable from all other sentences, a life-without-parole sentence may not be significantly different in reality from other sentences. How about a sentence of life with the possibility of parole after 50 years? How about consecutive sentences for each offense that add up to something far beyond defendant's life expectancy? The Justices asked about these possibilities, and defense counsel did not have a clear answer.

But is age irrelevant? Of course not. Well, why not take the proportionality rule from Solem v. Helm and Harmelin v. Michigan and say that age is a key factor under that rule? Chief Justice Roberts pushes hard for this rule throughout the argument. None of the others objects to it as a matter of principle. On pp. 21-23, Justice Ginsburg asks if there is an express proportionality review in Florida procedure. No, but at least since Solem in 1983 a proportionality objection has always been available as a matter of federal law, and a defendant can make it as part of the argument on sentencing.

The Chief knows where he wants to go with this case, and no one else seems to have a strong difference of opinion. Justice Breyer was uncharacteristically quiet. I think the Chief will get a majority, maybe even unanimity, for a resolution that does not differ much from the existing noncapital proportionality rule.

The New York Times "Room for Debate" feature has this online debate on the Graham and Sullivan cases between Marc Mauer of the Sentencing Project and yours truly.

Update (12:35 p.m. ET / 9:35 a.m. PT): Lyle Denniston reports at SCOTUSblog that "it did not appear that there was a clearcut majority for taking away altogether the life-without-parole option even in cases where the victim of a youth's crime did not die." The transcript is not available yet.

Update 2: The transcript of the Graham argument is here. Due to the heavy load on the Court's website, we will temporarily mirror the transcript here.

Update 3: The transcript of the Sullivan argument is here.

The lead article in this month's issue of the American Psychologist is an article titled Are Adolescents Less Mature than Adults?  The article attempts to reconcile the contradictory positions of the American Psychological Association highlighted by Justice Scalia in his dissent in Roper v. Simmons:

[T]he American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in Hodgson v. Minnesota, 497 U.S. 417 (1990), the APA found a "rich body of research" showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement.

Simmons at 617 (Scalia, J. dissenting)

Since those lines were laid to text, the American Psychological Association has tried to defend its position that when it comes to obtaining an abortion, the scientific evidence shows that adolescents posses the cognitive capacity to make that choice free from parental consent yet when it comes to the criminal punishment, juveniles as a categorical group, are insufficiently mature to be subject to the full range of criminal sanctions available under the law.  The article in this month's American Psychologist claims to demonstrate how these positions are compatible despite the robust intuition that they simply can't be. 

Former Senator Alan Simpson has this op-ed in the WaPo on the Graham and Sullivan cases now before SCOTUS. He discusses his own delinquent youth and why we need to give juvenile offenders a shot at redemption. Unfortunately, he completely fails to grasp the difference between typical delinquency and intentional crimes of great violence.

Simpson says, "When I was a teen, we rode aimlessly around town, shot things up, started fires and generally raised hell. It was only dumb luck that we never really hurt anyone." No, it wasn't only dumb luck. It was partly luck but mostly because they weren't trying to hurt anyone. There is a huge difference between reckless conduct that might hurt someone and Joe Sullivan's forcible rape of a helpless elderly woman,* the culmination of 17 crimes over 2 years.

Sure, what Simpson says is true of most delinquent juveniles, but not all. Life without parole needs to be available for the rare exceptions.

The Heritage Foundation has an event on Monday, August 17, to announce the release of its report Adult Time for Adult Crimes. Former Attorney General Edwin Meese is the moderator.

Panelists include Charles Stimson of Heritage, Paul Wallace of Delaware DoJ, and Daniel Horowitz, a California defense attorney whose wife was murdered by a juvenile. The announcement is here. The event can also be viewed live through the Heritage home page.

Speaking of Apprendi-land, tomorrow the California Supreme Court will announce its decision in People v. Nguyen, S154847. Notice is here. "This case presents the following issue: Can a prior juvenile adjudication of a criminal offense in California constitutionally subject a defendant to the provisions of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) although there is no right to a jury trial in juvenile wardship proceedings in this state?"

Update (7/2): Answer: yes (6-1).

Wonders never cease. Just when I thought the California Legislature was completely hopeless, the Assembly Public Safety Committee actually lived up to its name and defeated SB 399. This is the Yee/Romero bill to recall the sentences of 16 and 17-year-olds sentenced to life-without-parole for first-degree murder with special circumstances (e.g., committing rape and then killing the victim).  The bill, and others like it, have been promoted through an extensive, misleading campaign referring to "children" sentenced to life without parole. Are 16 and 17-year-olds "children"? Try standing up in front of a class of high school juniors and saying, "Good morning, children," and see what reaction you get.

Under Penal Code § 190.5(b), the judge already has the discretion to sentence a 16 or 17-year-old special-circumstance murderer to 25-to-life instead of LWOP. So, the ones in prison for LWOP are only the ones whom a judge determined at the time of sentencing shouldn't be eligible for parole. The families of the victims should not have that finality taken away.

Congrats to Maggie Elvey, who worked very hard to defeat this ill-considered bill.

Recidivism research is a difficult business.  It's not easy obtaining data and following offenders over time.  Deciding what the outcome variables should be and how they should be measured is notoriously tricky.  Thus, it is hardly surprising when one study suggests a low recidivism rate for certain offenders while others signal much higher rates.  But when a study suggests a zero rate of recidivism, that's something worth looking at carefully.

This study is not new, but it's frequently cited by those who wish to suggest that recidivism rates among juvenile sex offenders can be low - very low.  Rarely do those who cite to it, however, mention that in that study the authors followed only 10 adolescent sex offenders, for only 6 months, and relied on self-report as the sole measure of recidivism.   The authors probably never intended their study to stand for the proposition that sex offender recidivism can be in the zero range, but alas, that is what it has become.

The devil really is in the details.  

Criminal defense attorney Daniel Horowitz has this web site opposing California SB399, the attempt to undo life-without-parole sentences for murderers who are already ineligible for the death penalty (in some cases, just barely) because of their age. His intro on the sidebar explains why he is opposed:

On October 15, 2005, my wife Pamela was murdered by a young man who was just shy of 17 years of age.

He was a serial killer by his own design.  Pamela's courageous fight for her life marked this killer and created the forensic evidence that led to his conviction.  Had she not fought so bravely, he would have escaped and he would have killed again, and again.

SB 399 is a bill that will change California's criminal sentencing system and it will give a chance at parole for all people who killed if they did this before they were 18 years of age.

*                       *                       *

I reviewed the Human Rights Watch document.  It is filled with errors of law and stories of juveniles wrongfully convicted which read to me like fiction.

I put together a criticism of SB 399 and the Human Rights Watch publicity campaign.

On the National Law Journal site is this story by Peter Hall and Leo Strupczewski of the Legal Intelligencer. "Two Luzerne County, Pa., judges have conditionally agreed to plead guilty and serve more than seven years each in prison for their roles in a Dickensian scheme to channel juvenile offenders into a private detention facility in exchange for payments from the owners."

"The [U.S. Attorney's information] alleges that between June 2000 and the end of April 2007, [Judges] Ciavarella and Conahan collected more than $2.6 million in exchange for decisions from the bench that benefitted the owners of a private juvenile detention center including a 2004 agreement for the placement of juvenile offenders worth $58 million."

Some of our friends in the small government, conservative/libertarian movement are gung-ho to privatize everything government does. I think we need to look at that carefully, case by case. Adam Smith's "invisible hand" of the market is a superior way to allocate resources and achieve efficiency where the dynamics of a market exist -- myriads of individual buyers and a fair number of sellers, with the buyers demanding value in the things they buy for themselves with their own money. When government is the buyer and the buying-decision-maker is not spending his own money and is the not the actual consumer, the self-interest that produces efficiency in a real market can produce corruption instead.

A second public-policy lesson here is the importance of federal law enforcement in cases of state and local corruption. This case involves, once again, the "honest services" law noted last week. The vagueness of that law is a genuine problem warranting the attention of Congress, but corruption of the type involved here must remain a federal offense.

This morning, the California Supreme Court issued its decision in In re Jose C.  Authored by Justice Werdegar, the Court held that state jurisdiction over delinquency proceedings was not preempted by the Supremacy Clause, or section 3231 of the U.S. Constitution.  In recognizing California's power to regulate juvenile misconduct, the Court wrote: "Whether delinquency proceedings are treated as civil or criminal, the determinations they entail -- whether a minor should be declared a ward of the court and what juvenile treatment and rehabilitation he or she should be afforded -- do not trench on exclusive federal court prerogatives to try, convict, and punish for the violation of federal law. To the contrary, Congress, recognizing no comparable federal system exists, has made clear its preference that offenses by minors be handled, whenever possible, by state juvenile courts."