Archive for the ‘Eighth Amendment–Applied to Sentencing’ Category

“With Friends Like These . . .”: New Critiques of Graham and Miller

Thursday, August 14th, 2014

The U.S. Supreme Court’s decisions in Graham v. Florida (2010) and Miller v. Alabama (2012) undoubtedly constitute the most important developments in Eighth Amendment law over the past decade.  Graham banned life-without -parole (LWOP) sentences for juveniles convicted of nonhomicide offenses, while Miller prohibited mandatory LWOP for all juvenile offenders, even those convicted of murder.  I have a lengthy analysis of the two decisions in this recently published article.

A special issue of the New Criminal Law Review now offers a pair of interesting critiques of Graham and Miller.  Interestingly, both authors seem sympathetic to the bottom-line holdings of the two decisions, but they nonetheless disagree with central aspects of the Court’s reasoning (and, to some extent, also with one another).  Both focus their criticisms on the Court’s use of scientific evidence regarding the differences between adolescent and adult brain functioning.

The more radical perspective comes from Mark Fondacaro, a psychologist who has emerged as a leading critic of retributive responses to crime and advocate for scientifically informed risk-management strategies.   (more…)

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Final Version of Eighth Amendment Article Now Available

Tuesday, July 22nd, 2014

The Missouri Law Review has now published the final version of my article, “Not Just Kid Stuff? Extending Graham and Miller to Adults.”  Here is the abstract:

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.

The citation is 78 Mo. L. Rev. 1087 (2013).

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SCOTUS End-of-Term Roundup: The Constitutional Cases

Monday, June 30th, 2014

In my previous post, I discussed the Court’s recent Fourth Amendment decisions.  Here are this term’s other criminal cases that also center on constitutional issues (excluding habeas decisions):

  • Kansas v. Cheever, 571 U.S. __ (2013) (prosecutors could use testimony based on court-ordered mental examination of defendant in order to rebut defendant’s intoxication defense).
  • Hall v. Florida, 572 U.S. __ (2014) (in capital case, state may not categorically limit intellectual disability defense to individuals with an IQ score of 70 or lower — see my earlier post here).
  • Kaley v. United States, 571 U.S. __ (2014) (when trying to overturn pretrial asset freeze affecting funds to be used for legal representation, defendant may not challenge grand jury’s probable cause determination).
  • Martinez v. Illinois, 572 U.S. __ (2014) (after jury empaneled and sworn, judge’s grant of defendant’s motion for “directed findings of not guilty” counted as acquittal for double jeopardy purposes and precluded appeal by state).

A notable recurring theme across this set of decisions is the Court’s desire to maintain a particular competitive balance at criminal trials.

(more…)

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SCOTUS Strengthens 8th Amendment Protections for Intellectually Disabled

Friday, May 30th, 2014

In 2002, in Atkins v. Virginia, the Supreme Court prohibited capital punishment for defendants who suffered from what the Court then called “mental retardation.” However, the Court did not prescribe any particular process or standards for determining which defendants qualify.  Florida adopted a particularly restrictive approach, refusing even to consider the full spectrum of evidence of intellectual limitations if a defendant’s IQ had not been scored 70 or lower.  Earlier this week, in Hall v. Florida, the Supreme Court rejected this test for failing to take into account the standard error of measurement (SEM) of IQ tests.  “This rigid rule,” Justice Kennedy wrote for a narrow 5-4 majority, “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.”  (Along the way, the Court expressly changed its preferred terminology from “mental retardation” to “intellectual disability.”)

Kennedy’s reference to “unacceptable risk” goes to the heart of the disagreement between the majority and the dissenters.   (more…)

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Eighth Amendment Protections for Adults — Revised

Tuesday, August 20th, 2013

A much-revised version of my forthcoming Eighth Amendment article is now available on SSRN.  In the article, I consider whether adults might benefit from the Supreme Court’s recent decisions in Graham v. Florida and Miller v. Alabama, which imposed new limitations on the ability of states to sentence juveniles to life without parole.  The new version reaches the same bottom-line conclusions (guardedly optimistic), but includes additional support for some of the arguments.  Also, I’ve completely reorganized the first half to make the analysis clearer.

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The Eighth Amendment and Life Without Parole for Adults

Wednesday, May 22nd, 2013

My new article, “Not Just Kid Stuff? Extending Graham and Miller to Adults,” is now available on SSRN.  Here’s the abstract:

The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.

The article will appear in print in a forthcoming symposium issue of the Missouri Law Review devoted to the Supreme Court’s year-old decision in Miller v. Alabama.

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Justice Kennedy: Big Ideas, Little Packages

Monday, April 29th, 2013

At the conclusion of a semester spent discussing a mountain of Supreme Court opinions in my Constitutional Law class, one of my students asked a few days ago which Justice I identify with most closely.  The question caught me off guard; I’m not sure I’ve ever really thought about that before.  After a moment’s hesitation, and to my surprise, I found myself answering “Justice Kennedy.”

I’m no less exasperated by Kennedy’s Delphic pronouncements than the next guy, and I disagree strongly with many of his specific votes.  (For instance, his approval of life without parole for a first-time drug offender in Harmelin v. Michigan comes to mind.)

But here’s why I identify with Kennedy anyway: I think that he brings to the task of judging a particular moral vision that resonates a great deal with me.  To be sure, this moral vision often seems at war in Kennedy’s heart with the values of judicial modesty and restraint (competing values that also tend to resonate with me).  The tension contributes to the frustrating character of many of his opinions, in which high-minded rhetoric is combined with holdings that seem to get narrower and increasingly equivocal the more closely you examine them.

Consider, for instance, Kennedy’s opinion for the Court in Graham v. Florida (the subject of an article on which I have been working for the past few months).   (more…)

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Gay Rights and Sentencing: What Does Romer v. Evans Have to Do With Life Without Parole?

Monday, April 1st, 2013

My Constitutional Law class this semester has been focusing on Hollingsworth v. Perry, the California same-sex marriage case.  We’ve been following the case through the Supreme Court litigation process, and I’ve also assigned some of the key precedent, including Romer v. Evans, the 1996 decision in which the Supreme Court overturned a Colorado law prohibiting local governments from treating sexual orientation as a protected status.

At the same time, I’ve been hard at work on an article about the Court’s recent decisions limiting the sentence of life without the possibility of parole, Graham v. Florida (2010) and Miller v. Alabama (2012).  In doing so, I’ve been struck by the similarities between the Court’s opinions in Romer and Graham, both of which were authored by Justice Kennedy.  And, although it is certainly not obvious or conventional to do so, I am starting to see Romer as a case that is about punishment.

In order to appreciate the connections between Romer and Graham, it is important to realize that Romer was decided before Lawrence v. Texas (2003), which recognized for the first time a constitutional right for same-sex partners to engage in what the Court described as “certain intimate sexual conduct.”   (more…)

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Seventh Circuit Affirms Life Sentence Notwithstanding Supreme Court’s Recent Eighth Amendment Decisions

Monday, October 22nd, 2012

From the time of its decision in Harmelin v. Michigan (1991), affirming a mandatory sentence of life without parole for a drug trafficking offense, through its decision in Ewing v. California (2003), affirming a de facto life sentence for shoplifting, the Supreme Court showed little interest in using the Eighth Amendment Cruel and Unusual Punishments Clause as a basis to limit the length of prison sentences.  More recently, however, the Court has begun to extend the principles it developed to regulate capital sentencing into the noncapital realm.  First, in Graham v. Florida (2010), the Court banned life without parole for juveniles not convicted of homicide.  Then, in Miller v. Alabama (2012), the Court banned the use of mandatory “LWOP” sentences for all juveniles — even those convicted of homicide.

The Court’s trajectory seems to threaten Harmelin.  Even if the logic of Graham permits LWOP for drug trafficking, the logic of Miller arguably requires a consideration of mitigating circumstances before the sentence can be imposed — prohibits, in other words, LWOP as a statutory minimum for a drug offense.

While the Supreme Court might eventually reach this destination, the Seventh Circuit has decided not to try to get there first.   (more…)

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California Answers Some of the Graham/Miller Questions, Sort Of

Friday, August 17th, 2012

As I discussed in a recent post, the United States Supreme Court left many questions unanswered in its two recent decisions on life without parole for juveniles.  In the first case, Graham v. Florida (2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses.  Then, in Miller v. Alabama (2012), the Court banned mandatory LWOP even for juveniles convicted of homicide.  These were important Eighth Amendment decisions, but the lower courts have been left to implement them without much guidance.

Yesterday, the California Supreme Court began to address some of the unanswered questions in People v. Caballero.  I think Caballero got things right, as far as it went, but the case left much open for future litigation.  (more…)

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