Recently in Juveniles Category

Yesterday the Washington Supreme Court decided In the Matter of the Detention of Troy Belcher, No. 93900-4:

In 2011, at the age of 26, Troy Belcher was civilly committed as a sexually violent predator. In 2015, the superior court ordered that he continue to be indefinitely committed. It based its decision on two sexually violent crimes he perpetrated as a juvenile, a diagnosis of antisocial personality disorder with high levels of psychopathy, and a finding that he was more likely than not to recommit if released.

Miller and Apprendi

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As noted by Doug Berman at SL&P, yesterday the Pennsylvania Supreme Court decided the case of Pennsylvania v. Batts, No. 45 MAP 2016 (Pa. June 26, 2017). The court held that under the precepts of Miller v. Alabama and the Supreme Court's evolving Eighth Amendment juvenile jurisprudence, adolescents convicted of murder are entitled to a presumption of a sentence that includes parole. 

The Batts case is interesting reading on a number of fronts.  The court construes the Miller rule of permanent incorrigibility to be a finding that "there is no possibility that the offender could be rehabilitated at any point later in his life, no matter how much time he spends in prison and regardless of the amount of therapeutic interventions he receives, and that the crime committed reflects the juvenile's true and unchangeable personality and character."  If the rule is going to be the sky's the limit on possible interventions and the state must show no possibility of change whatsoever during a defendant's life, then this is a ruling that proscribes juvenile LWOP sentences outright.   It is also interesting to think of a sentencing decision based largely on a defendant's personality rather than his conduct (even more so given the Supreme Court's recent cert denial in Loomis v. Wisconsin). 
exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict
The U.S. Supreme Court today released orders from its conference last week, opinions in several argued cases, and one summary per curiam opinion.  There were no criminal law cases accepted for review or decided after argument.  However, the summary opinion was yet another reversal of a federal court of appeals for failure to respect the limits Congress placed on its authority to overturn state judgments for mere disagreement with a state court on an unsettled question.

Virginia v. LeBlanc, No. 16-1177, involves the rule of Graham v. Florida that a person under 18 at the time of the crime cannot be sentenced to life without parole for a crime less than murder.  The Fourth Circuit had disagreed with the Virginia state courts on the question of whether the state's "geriatric release" program provided a sufficient possibility of release to satisfy the Graham rule.

The Court today holds only that the Virginia trial court's ruling, resting on the Virginia Supreme Court's earlier ruling in Angel, was not objectively unreasonable in light of this Court's current case law.
The California Court of Appeal for the Fifth District (Fresno) yesterday decided People v. Marquez, F070609.
Jesse Gary of KTVU in San Francisco has this report with the above title on the effects of Proposition 57, passed by the voters last November.

The killing of Madyson Middleton struck at the core of California's conscience because it was a hideous crime committed in a Santa Cruz arts center apartment complex.

The slaying of the 8-year-old [girl] was made more shocking because the identity of the suspect was the victim's then-15 year old neighbor.
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The suspect, identified as Adrian Jerry Gonzalez, was charged as an adult for killing and sexually assaulting the girl before her body was dumped into a recycling bin.

Almost two years after the crime, the suspect still hasn't been brought to trial.
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The trial delay is directly linked to an act approved by voters that was an effort to improve the judicial process. Last fall, voters approved Proposition 57, which passed with nearly 65 percent of the vote.

The measure in part mandates that juveniles accused of a crime receive a special transfer hearing to determine if they should be tried in adult or juvenile court.
The story refers to this as an "unintended" consequence.  It was unintended by the people, who were not well informed what they were voting on, as the press and the big money were on one side and the underfunded opposition was on the other.  It was intended by the proponents, though, at least in the sense that "knowingly" is equivalent to "intentionally" in culpable mental states.  Proposition 57 was all about helping the criminals with complete disregard for the victims, past and future.

Young Adults as Juveniles

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Should 25 year olds be tried as juveniles? 

That is the title of a recent article in the New Republic that lays out the claim that because brain imaging suggests that some people's brains in their early 20s have not maximized their myelination (e.g., the white matter that insulates the neurons) then should not be punished as adults.  This is just the latest stop on the merry go 'round of using brain images to set public policy.  So let us review the problems with this line of thinking (something I've done for many years now):

1.  No one has a perfect brain.  All of us have brains that have been damaged by what may be called "life."  We don't get enough sleep, we eat poorly, we fall and hit our heads (hopefully infrequently), many of us drink alcohol or we consume excessive amounts of sugar.  And as soon as our brains finalize their myelination, they age.  There is no moral agent out there with an optimal brain.

Just say no to marijuana, kids

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Now this is interesting....finally a scientifically backed article on the realities of marijuana use among adolescents.  

Laurence Steinberg isn't someone I agree with often, but he, Thomas Grisso, Elizabeth Scott, and Richard Bonnie have this op-ed in the NYT opposing the crackpot notion of raising the juvenile court jurisdiction age to 21.

The proposal to expand the jurisdiction of the juvenile system to age 21, in addition to being based on ambiguous science, would also create two potentially serious policy problems. First, just as the adult correctional system is ill equipped to respond to the needs of adolescents, the juvenile justice system is poorly positioned to handle young adults. It is hard to imagine a juvenile facility that could appropriately house 20-year-olds and 14-year-olds, or a juvenile justice staff whose training would allow it to work effectively with young adults. And because a disproportionate number of serious violent crimes are committed by individuals between 17 and 21, the juvenile system would be overwhelmed by the number of young adults it would need to process, and its rehabilitative purpose could be seriously undermined.

Second, the juvenile justice system interacts with several other health and child welfare systems. Those agencies have created relatively separate systems for serving children and adults, in part because of important differences between these two ages. For example, some mental illnesses arise only in young adulthood, and professionals have long specialized in providing services either to children and adolescents or to adults. Creating a juvenile justice system that works well for both adolescents and young adults would require significant (and costly) restructuring of many other agencies.
The U.S. Supreme Court today made Miller v. Alabama fully retroactive to all cases, no matter how old.  States that had mandatory life-without-parole for 17-year-old murderers must now either hold new sentencing hearings or make them eligible for parole, the Court said in Montgomery v. Louisiana.  It characterized the Miller rule as a "substantive" rule for retroactivity purposes.  Families of victims of juvenile murderers who adamantly oppose release therefore receive life sentences of appearing at parole hearings and reliving their tragedies. That result is disappointing but not unexpected.  CJLF's brief is here.

Also, the Court said that it had jurisdiction to review a state collateral review decision for retroactivity.  In essence, the federal rule of Teague v. Lane provides a floor (Montgomery) but not a ceiling (Danforth v. Minnesota) on retroactivity in state collateral review proceedings.  I don't have a problem with that part and didn't brief the point.  This is one more reason for states to adopt Teague for their own systems.  No point giving convicts the "head I win, tails we take it over" that results from dual standards.
A little less than two years ago, now-18 year-old Ethan Couch was sentenced for an automobile collision he caused two years before, in which he killed four people.  Four homicides might lead one to think at least a little jail time was in the offing, but what with "restorative justice" and a nifty psychologist's report, jail time was not to be. Instead, as the Washington Post reports:

Couch was sentenced to a drug-and-alcohol-free probation...; a psychologist and the teen's lawyers argued in his defense that the then-16-year-old's reckless behavior was a result of "affluenza."

I would love to have been a fly on the wall when the hired "psychologist" and the defense lawyer came up with that one.  I could be drunk and stoned and contemplating for ten years and still not have ginned up "affluenza" (a "syndrome" created by wealthy parents who fail to enforce discipline).  But I have never been a match for the creativity of the defense bar and its experts.

Anyway, this week brings us the news that, in the course of the sobered-up life his alleged "probation" was supposed to bring him, Mr. Couch took off for the super-plush resort of Puerto Vallarta, Mexico.  This was after a home video surfaced of his playing a rugged game of beer pong.  He and his mother, who was evidently financing this study in responsible living while staying with him, have now been taken into custody.

Lots of lessons here, but I'll settle for just two:  First, letting a defense shrink tell the tale at sentencing isn't that good an idea; and second, a much better idea would be sharply cabining the discretion of judges so that, no matter how foolish or naive or (in some cases) bought-off they are, serious crimes will get serious sentences. There is no reason we should live with this sort of song-and-dance travesty of justice.


Teens, Confessions, and Culpability

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Maura Dolan has this article in the L.A. Times about the controversies regarding police questioning of teenagers and, in a few cases, children about serious crimes.  Some people are arguing for bright-line rules to the effect that police can never question young people below some arbitrary cut-off age without a lawyer present, which for all practical purposes means they can't question them at all.  As Justice Robert Jackson noted long ago, "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances."*

A related issue is the culpability of minors for crimes.  The story says,

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said he would like Miranda rights to be eliminated and all interrogations videotaped. He called the brain research about adolescents' legal culpability "a bunch of hooey."
Not quite.  There is research about adolescents' brain development and mental capacity, and then there are extrapolations from that research about adolescents' legal culpability.  It is the latter that I said are "a bunch of hooey."  For example, there is no doubt that a process of central nervous system development called myelination is a work in progress in the late teen years.  However, there is a great deal of doubt whether this fact and other products of research support the kinds of sweeping conclusions in cases such as Graham v. Florida and Miller v. Alabama.

On the Miranda point, the Supreme Court in Miranda expressly said that the procedures it laid out were not the last word, and it would be competent for legislatures to substitute other procedures to protect the right against compelled self-incrimination.  Video recording of interrogations is an alternative that should be considered.

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.

And:

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?

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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.

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