Recently in Juveniles Category

A person who commits murder at the age of 17 years, 364 days is exempt from the death penalty, regardless of how horrible the crime or how many people he kills.

Should that one day further exempt the murderer from a true life-without-parole sentence, holding out the possibility of parole regardless of the crime?  Should the 17-year-old get a double discount for murder compared to the 18-year-old?  Some people think so.  California State Senator Leland Yee is trying again.  He has put cosmetic changes on his bill, SB9, but it still amounts to a possibility of parole.

Crime Victims Action Alliance has this update, with links to contact Assembly members.

Note: California already exempts under-16s, so people who say this bill is about "children" are using an ambiguous term in an intentionally deceptive way.  [Try standing in front of a class of high school juniors and saying, "Good morning, children."  See what kind of reaction you get.]

Well, this is sounding like a broken record.*  The juvenile LWOP for murder cases, Jackson v. Hobbs and Miller v. Alabama, have been relisted yet again, for the conference of this Friday, November 4.

The two cases challenging life-without-parole sentences for juvenile murderers, previously noted here, will apparently be relisted yet again.  They were on the conference list for last Friday but conspicuously absent from Monday's orders list, meaning no action was taken.  The two cases have been considered by the US Supreme Court in four conferences now, beginning last May.

What's going on here?  Often when a case is relisted multiple times, a summary reversal is in the offing.  The Court has decided to reverse the lower court without taking merits briefing or holding oral argument, and the multiple conferences are needed to approve the per curiam opinion ("by the Court," with no Justice identified as the individual author).

But that cannot be happening here.  Summary reversals are for cases where the lower court is clearly wrong based on established law.  (Ninth and Sixth Circuit habeas cases evading Congress's mandates in the Antiterrorism and Effective Death Penalty Act are particularly fertile sources of summary reversals.)  In these cases, though, the relevant Supreme Court precedents are Roper v. Simmons, expressly limited to capital punishment, and Graham v. Florida, expressly limited to nonhomicides.  By no stretch of the imagination could the state court decisions be said to be clearly wrong on established law.

The question before the Court is a simple yes or no.  Take the cases up or leave the judgments undisturbed.  Why does that require five conferences?  Stayed tuned.

Update:  A possible reason for the multiple relists (suggested by Cully Stimson at Heritage Foundation) is that there is an opinion dissenting from denial of certiorari (or possible "respecting" denial), joined by more than one Justice, and they are working out the language.  Checking the cases from last term where certiorari was denied with a dissenting or "respecting" opinion, I see that multiple relists were common in these cases, so this is a good hypothesis.

John Elwood's relist watch notes two cases of 14-year-olds sentenced to life without parole for murder:  Miller v. Alabama, 10-9646, and Jackson v. Hobbs, 10-9647.

In Miller, according to the Court of Criminal Appeals:

The evidence presented at trial established that in July 2003, then 14-year-old Evan Miller and his 16-year-old codefendant, Colby Smith, robbed and savagely beat Miller's neighbor, Cole Cannon. After beating Cannon to the point that he could not get off the floor, Miller set Cannon's trailer on fire. Cannon's body was later discovered by firefighters, who were called to extinguish the fire.

The facts of Jackson are not described in the majority opinion.  The dissent paints Jackson as a relatively minor accomplice in a robbery-murder.  A concurring justice laments that fact that the state has no mechanism for considering mitigating circumstances and calls on the General Assembly to create one.

Sheila Kumar reports for AP:

Legislation intended to give juveniles a second chance after they have been sentenced to life in prison without the possibility of parole has failed in the state Assembly.

SB9 by Democratic Sen. Leland Yee of San Francisco received 36 votes Thursday, five short of the majority needed.

However, last tally I received showed the bill up to 40, just one short.

California judges already have the discretion to sentence any 16- or 17-year-old first-degree murderer to life-with-parole instead of life-without-parole.  The cases at issue are only those where the sentencing judge determined that life-without-parole was appropriate.

Update (8/26):  The final tally is 36-36 with 8 members not voting.  Four members listed as voting "aye" in an electronic vote-board snapshot yesterday afternoon are listed as not voting in the final tally:  Alejo, Campos, Hall, and Mendoza.  (In the California Legislature, there is no practical difference between not voting and voting no.  An affirmative vote of a majority of the membership is required for passage.)  Once an unpopular bill can be seen not to pass, a member can turn down the political heat by changing his vote.  Not exactly "profiles in courage" material.  Even so, it will be that much harder for these members to flip and vote for essentially the same bill next year (an election year) when Yee brings it up again.

Update 2:  Karen de Sa has this story in the San Jose Mercury News.

A murderer a day shy of his 18th birthday is categorically exempt from a death sentence.  Should that arbitrary cut-off based on chronological age alone similarly exempt him from a true life-without-parole sentence, regardless of the circumstances of the crime and regardless of the length of his criminal record?  Incredibly, a bill to do just that has made it to the floor of the California Assembly.

Margaret Bengs has this article in the Sacramento Bee:

Prosecutors and judges already have discretion in seeking and imposing life-without-parole sentences and have reserved it for the "worst of the worst." Most teen criminals in California are tried in the juvenile court system and must be released at age 25. Of those tried in adult court, only first-degree murder with special circumstances can result in life without parole, and only for 16- and 17-year-olds. All states allow juveniles to be tried as adults in criminal court under certain circumstances, according to the U.S. Justice Department.

Craig Lerner of George Mason School of Law has this article on SSRN, forthcoming in Tulane Law Review, on the Supreme Court case of Graham v. Florida, which held that a person 17 years, 364 days old on the date of a nonhomicide crime cannot be sentenced to life without parole.  Lerner contends that Graham is based on a simplifying assumption and a moral claim, both of which "are demonstrably false in a nontrivial number of cases." The full abstract is after the jump.

Paisley Dodds and Jill Lawless report for AP from London:

It wasn't long ago that David Cameron launched what became known as his "Hug a Hoodie" campaign -- an initiative born of a public outcry over Britain's ill-behaved youths, and one that ended in ridicule when hooded youths mocked the then opposition leader during a photo opportunity.

Now as prime minister, Cameron is opting for tough love in the wake of Britain's riots.

He has declared anyone convicted in the unrest will be jailed, and he's even warned rioters that they may be kicked out of state-subsidized housing. "We will track you down, we will find you, we will charge you, we will punish you," he said.

Some critics say the hardline stance falls short.

Among them are law-enforcement officials and youth workers who claim Britain has taken too soft an approach to juvenile offenders. Too many receive cautions, which they ignore. Others have been given Anti-Social Behavior Orders, an invention of the previous Labour government which have been derided as largely ineffective, even being used as a badge of honor by delinquent youths. The ones who have ended up in juvenile detention centers often have access to luxuries like PlayStations or computer games.

It's good to hear that sense is making a comeback across the pond, but why does it take a riot?

Michael Rubinkam reports for AP:

A longtime northeastern Pennsylvania judge was ordered to spend nearly three decades in prison for his role in a massive juvenile justice bribery scandal that prompted the state's high court to toss thousands of convictions.

Former Luzerne County Judge Mark Ciavarella Jr. was sentenced Thursday to 28 years in federal prison for taking $1 million in bribes from the builder of a pair of juvenile detention centers in a case that became known as "kids for cash."

Ciavarella is 61, so he will likely never see the outside of the prison wall again.  Good.

From time to time, I have offered gentle reminders to our friends in the defense bar about what I view as missteps in defense work.  But this time, they've gone too far.

Yes, I know they have a half-way plausible argument to make  --  indeed, more plausible than a lot of stuff you hear from criminal defense  --  but this case reminded me once more why I was happy to take a scruffy salary as a prosecutor instead of going for the big bucks trying to make somebody's "dream team." 

The US Supreme Court will not decide whether retroactive application of the Sex Offender Registration and Notification Act (SORNA) violates the Ex Post Facto Clause in the ungainly-named case of United States v. Juvenile Male, No. 09-940.

In that case, in 2007, the District Court ordered the juvenile sex offender to register until he turned 21.  On a leisurely appeal, the Ninth Circuit decided September 10, 2009 that was ex post facto, apparently unaware that no-longer-Juvenile Male was by then 22.

Moot.

Oh, and federal courts, please figure out a better way to name your juvie cases.

The California Legislature is presently considering a pernicious piece of legislation to enable 16- and 17-year-old murderers to have their life-without-parole sentences modified to life-with-parole.  Doug Krikorian of the Long Beach Press-Telegram has this story on Tom Shadden, whose son was murdered by a couple of teenage thugs, and his opposition to the bill.

Todd Richmond reports for AP:

A boy who was 14 when he helped throw another boy off a parking ramp to his death was properly sentenced to life in prison without parole, the Wisconsin Supreme Court ruled Friday.

Omer Ninham's lawyers argued that the sentence violated the U.S. Constitution's prohibition on cruel and unusual punishment given Ninham's age when the crime was committed. State attorneys countered that nothing prevents such a sentence for juveniles in homicide cases.

The opinion (5-2) is here:

Ninham mounts a categorical constitutional challenge, arguing that sentencing a 14-year-old to life imprisonment without parole is cruel and unusual in violation of the Eighth Amendment of the United States Constitution and Article I, Section 6 of the Wisconsin Constitution. In the alternative, Ninham seeks sentence modification on the grounds that (1) his sentence is unduly harsh and excessive; (2) new scientific research regarding adolescent brain development constitutes a new factor that frustrates the purpose of the sentence; and (3) the circuit court relied on an improper factor when imposing the sentence. We disagree with Ninham on all four grounds, and accordingly, we affirm the decision of the court of appeals.

The insufferable Bryan Stevenson says he will take the case to SCOTUS.  Okay.  They have to address the issue sometime.  Bring it on.

Rodrigo Caballero, 16, is not guilty of murder, but not for lack of trying.  He was convicted of three counts of attempted murder for shooting at three rival gang members, wounding one of them, Bob Egelko reports in the SF Chron.  His sentences total 110 years.

Does that violate Graham v. Florida?  The California Supreme Court has taken the issue up.

In Graham v. Florida, decided a year ago next month, five Justices of the Supreme Court took the view that it is always cruel and unusual punishment to impose LWOP on a person under eighteen years of age for a non-homicide offense, no matter what it is.  Chief Justice Roberts believed that the punishment in Graham's particular case was cruel and unusual, but would not have established a per se rule.  Justices Scalia, Thomas and Alitio dissented.

I noted here that the decision had some ominous language for the death penalty.  Today, MSNBC brings us the news of a fellow, said to be 14 (although he doesn't look 14 to me) who brings his own perspective to the Jusitces' paean to teenage criminality.

The problem in Graham, as in other instances of high-minded judicial meandering, is that it sleepwalks its way past the fact that future victims are no less real, and no less deserving of the law's protection, than today's hoodlum, juvenile though he may be.