Recently in Juveniles Category

The LA Times has this unsurprising editorial about the California Assembly's recent defeat of SB399, or in their words, the Assembly's refusal "to lead California out of the Dark Ages by banning sentences of life without the possibility of parole for juveniles."  (Read Kent's previous posts about the bill here, here, and here.)  Characterizing the bill as "extremely modest," the article implores Senator Yee to push again for such a law in the future in the hopes that "[a]t some point, the Assembly with find the courage to do the just thing."  The article implies that LWOP for juveniles serves neither of the two functions of incarceration - punishment and protection of the public - based on general studies of juvenile delinquency patterns.  Notably, the article omits the fact, noted in Sacramento District Attorney Jan Scully's press release, that LWOP is only available to juvenile offenders ages 16 to 18, convicted of first degree murder with special circumstances - not, as the article seems to suggest, to "children ... capable of reform" who find themselves in the wrong place at the wrong time. 

Tim Redmond at the San Francisco Bay Guardian is very upset with California Assemblywoman Fiona Ma for voting against the bill to effectively abolish life without parole for the very worst 17-year-old murderers.  We have a different take, of course.  We will put aside our disagreements with Ms. Ma on other issues and give her a Profile in Courage award on this one.  The pressure from the soft-on-crime crowd was intense, and the major newspapers had lined up, repeating Senator Yee's vignettes without verification.  Here is the statement from Ms. Ma's office, as quoted in the SFBG story:

I did not come to my decision on SB 399 easily - it's legislation that I have carefully reviewed and considered for months. While I acknowledge that some juveniles in the correctional system may have the capacity to be rehabilitated after decades of being incarcerated, I feel that we cannot reset a defendant's clock 25 years later expecting a victim's family will reset their hearts.

Yesterday, the California Assembly voted down SB 399, Senator Leland Yee's attempt to create a possibility of parole for all 17-year-old murderers, regardless of how heinous the crime. The vote was 34-38, with 41 needed for passage. All the Republicans and 9 Democrats voted no. Another 6 Democrats abstained, which in California is effectively the same as voting no.

This was a hard fought battle, with victims' groups and prosecutors fighting uphill and with misleading and misinformed editorials in all the leading newspapers of the state.  Congratulations to those who worked so hard to defeat this ill-advised measure.

NOVJL's press release is quoted after the jump.

Looks like today is the decision day on California Senator Leland Yee's latest attempt to prevent the families of persons murdered by 17-year-olds from ever resting completely sure that the perpetrator will not be released.  Sacramento TV station KCRA has this story.

Marisa Lagos has this post on the SF Chron Politics Blog. As reported earlier, Senator Leland Yee has made some amendments to his SB 399 to create possibilities of parole for 16- and 17-year-old murderers sentenced to life without parole.  "The amendments were apparently aimed at garnering enough support for the bill, which is strongly opposed by some victims rights groups and prosecutors (including GOP Attorney General candidate Steve Cooley, the District Attorney for Los Angeles County)."

CJLF sent this letter to members of the Assembly today.  The psychological studies referred to in the letter are described in our brief in Graham v. Florida.

Daniel Horowitz of NOVJL has this letter to Assemblyman Lieu with this attachment describing Mario Vitale's statement at the sentencing of his mother's killer.

California State Senator Leland Yee has long been on a crusade to exempt from life-without-parole all murderers short of their 18th birthday at the time of crime, even if only a day and regardless of how heinous or numerous their crimes. Now he is resorting to outright misrepresentation to achieve this goal.

Yesterday, the Sacramento Bee had this story by Kim Minugh on Sacto DA Jan Scully's opposition to Yee's bill, SB 399, which is up for a vote in the Assembly.

To underscore her point, Scully cited two recent cases in which juvenile offenders were tried as adults and convicted of first-degree murder: Jimmy Siackasorn, who was 16 when he fatally shot Sacramento County Sheriff's Detective Vu Nguyen; and Frank Abella, who, with another suspect, robbed, tortured and fatally shot disabled William Deer just shy of Abella's 18th birthday.

Yee reacts in a separate story:

"Ms. Scully is misinformed on this issue and her remarks are misguided," said Yee. "The individuals she references will never be released under this bill, and she should know that. The public and the families of victims deserve better than fear-mongering from their elected district attorney.

"She fails to recognize that children have a greater capacity for rehabilitation than adults and that some kids deserve a second chance," Yee said.

Yee's unequivocal statement that they will never be released is a falsehood. He does not and cannot know that to a certainty. They would eligible for consideration for release under his bill, and we know very well that courts sometimes order release for persons eligible even when the parole board denies parole.

Yee's implication that the victims' families are on his side has enraged the National Organization of Victims of Juvenile Lifers.  Their press release is here.

And once more, with feeling, 16- and 17-year-olds are not children.

Heritage Foundation's excellent report on this issue is here.

The Supreme Court decided Graham v. Florida today, categorically abolishing LWOP for non-homicide offenders under 18.  The opinion was authored by Justice Kennedy.  For those familiar with Kennedy's work in Roper v. Simmons and Kennedy v. Louisiana, neither the result nor the Court's mode of analysis will come as a surprise.  There will be a temptation to view it as just the latest in Kennedy's high-minded meandering.  Resist that temptation, and be alarmed  --  very alarmed.

The bad news is that the opinion is another exercise in one-size fits-all jurisprudence:  According to the Court, there is not one single person under 18 whose non-homicidal (for the moment) behavior, no matter how violent and sadistic, nor how often repeated, who can be reliably found by a judge or jury to merit LWOP.  And even if some random court might for good reason reach that outcome, there is too much possibility that a different court in a different case might go astray ("astray" being defined by Justice Kennedy's view of the world).  So LWOP must be taken off the table in toto to protect us from ourselves.

That's the bad news.  Here's the really bad news, aptly summarized by Todd Gaziano of the Heritage Foundation: 

Justice Kennedy wrote that the appropriate analysis is that used in Atkins, Roper and Kennedy.  Although acknowledging that there was arguably a national consensus on the availability of the sentence for juvenile non-homicide (44 states, the District of Columbia and the federal government authorize the sentence) the Court found that argument "incomplete and unavailing."    Rather, actual sentencing practices "discloses a consensus against its use," finding that there are 129 juvenile non-homicide offenders serving LWOP, and 77 of those are in Florida.

You don't need to be a rocket scientist to see where this is headed in some future death penalty case:  "Although there is arguably a national consensus in favor of capital punishment, a review of 'actual sentencing practices' discloses 'a consensus against its use,' since a majority of all executions after Gregg have occurred in only three states (Texas, Virginia and Oklahoma), and a majority of states have had a mere handful of executions, if any.  Therefore..."

I think readers will be able to write the conclusion for themselves.

In other words, precisely because we are a humane people reluctant to use the death penalty except in the cases that most cry out for it, we are on the road, paved by Justice Kennedy's one-way-ratchet analysis, to not being able to use it at all.  And that is the real news from this morning's opinion.

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.