Recently in Juveniles Category

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.

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?

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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.    

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