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.” Continue reading “Gay Rights and Sentencing: What Does Romer v. Evans Have to Do With Life Without Parole?”
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.
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. Continue reading “California Answers Some of the Graham/Miller Questions, Sort Of”
Since it was handed down late last month, the Supreme Court’s decision in Miller v. Alabama has deservedly received much attention from lawyers and nonlawyers alike. The Court held, on Eighth Amendment grounds, that juveniles may not be sentenced to mandatory terms of life imprisonment without parole; “JLWOP” can only be imposed by a judge who has discretion to consider the juvenile’s “youth and attendant circumstances.” (20) Miller thus nicely complements the Court’s 2010 decision in Graham v. Florida, in which the Court banned JLWOP for all offenses less severe than homicide. In Miller, the Court preserved JLWOP as a sentencing option in homicide cases, but only if certain procedural requirements are satisfied, that is, only if the sentencing judge considers “youth and attendant circumstances.”
Like Graham, Miller breaks down a doctrinal barrier between capital punishment and the lesser sentence of life without parole. In Graham, for the first time in a noncapital case, the Court used the methodology it had developed for determining whether the death penalty can constitutionally be applied to particular categories of offenders, such as juveniles and the mentally retarded. Before Graham, it seemed as if there were no meaningful substantive limitations on noncapital sentences. Similarly, before Miller, there was a well-developed body of Eighth Amendment doctrine regarding the sentencing procedures that had to be followed in capital cases, but no corresponding doctrine for noncapital cases. Miller suggests that the procedural rules may now be migrating, along with the substantive limitations, into LWOP cases and perhaps beyond.
Graham and Miller may lay the foundation for a revolution in the constitutional law of sentencing. Or maybe not. It’s too early to say for sure. Perhaps this Court just has a soft spot for kids (see, for instance, last term’s decision in J.D.B. v. North Carolina.)
In any event, as the revolution or non-revolution plays out, we are likely to see the courts wrestling with many interesting questions raised by Miller. I’ll highlight a few in the remainder of this post. Continue reading “Miller’s Unanswered Questions and the Future of the Eighth Amendment”
The felony-murder rule is perhaps the most troubling and controversial surviving relic of the common law of homicide, branding felons as murderers notwithstanding an absence of the sort of culpability otherwise required for a murder conviction.
If we are not going to make culpability-based distinctions in these cases at the guilt stage, then we ought to do so at sentencing, reserving the most severe sentences for those felony-murderers who actually intended to kill. Some states do indeed recognize this distinction for sentencing purposes, but others do not. For those in the latter category, the Eighth Amendment might conceivably provide some protection for relatively low-culpability felony-murderers. The Supreme Court seemed to be moving in this direction in Enmund v. Florida, 458 U.S. 782 (1982), but then in Tison v. Arizona, 481 U.S. 137 (1987), essentially limited Enmund to felony-murderers who lacked any culpability as to the killing and were not even physically present at the time it occurred.
With the Enmund/Tison line of decisions in mind, I thought it quite interesting that the Supreme Court granted cert. last month in two new Eighth Amendment cases presenting contrasting fact patterns that might provide a good platform for further regulation of felony-murder sentencing.
Continue reading “Intent and the Eighth Amendment: New Restrictions on Sentencing Felony-Murderers?”
Yesterday, the Supreme Court granted certiorari in two new cases that will test the limits of the Court’s important 2010 ruling in Graham v. Florida, which banned the sentence of life without possibility of parole for most juvenile offenders. Graham recognized an exception, however, for juveniles convicted of homicide. It is this exception that is at issue in the two new cases, both of which involve fourteen-year-old killers.
The two cases are Miller v. Alabama (opinion below: 63 So. 3d 676 (Ala. Crim. App. 2010)) and Jackson v. Hobbs (2011 Ark. 49). The question granted in each case is the same, and they are to be argued together. It appears that the defendants are presenting a categorical challenge to JLWOP as applied to fourteen-year-olds.
In Graham, the Court for the first time used such a categorical approach in evaluating an Eighth Amendment challenge to a noncapital sentence, so we know that the Court is open to this approach. But the Court also heavily emphasized the homicide-nonhomicide distinction — are the justices prepared to reject or blur that bright line so soon after drawing it?
In the defendants’ favor is their very young age. There are precious few fourteen-year-olds who are convicted as adults for homicide, so the Court could carve out the very young from the Graham distinction without affecting many cases. But that will just invite a fresh set of challenges from fifteen-year-olds, and then sixteen-year-olds, and then seventeen-year-olds. Any line drawn based on chronological age is bound to be somewhat arbitrary, and the Court may not want to head down a path that will eventually require such a line to be drawn.
There may also be distinctions to be drawn based on the type of homicide crime. In this regard, Miller seems differently situated than Jackson (which may explain why the Court took both cases for argument on the merits). Both were convicted of capital murder, but Jackson on a more technical, felony-murder theory; he was a minor accomplice in an armed robbery that went bad. Miller, however, was more directly responsible for his murder and even made a statement indicating an intent to kill. It might be possible in the JLWOP context to draw a protective rule for relatively low-culpability accomplices, much as the Court has already done for adults in the death-penalty setting.
There are a lot of different directions the Court might go in these two cases. However they turn out, the one thing for certain is that Justice Kennedy will be in the majority.
Today, in State v. Ninham, 2011 WI 33, the Wisconsin Supreme Court approved the sentence of life without possibility of parole for fourteen-year-olds who are convicted of first-degree intentional homicide. The decision rests on a narrow reading of the U.S. Supreme Court’s landmark holding last year in Graham v. Florida, in which the Court outlawed LWOP for juveniles convicted of nonhomicide crimes. Since Graham, lower courts across the country have been wrestling with the implications of the decision for other categories of offenses and offenders.
Ninham’s challenge was framed as a categorical challenge to the use of LWOP against fourteen-year-olds. As such, the challenge was appropriately assessed by the Wisconsin Supreme Court using the two-prong analysis of Graham, (1) determining whether there is a national consensus against the challenged practice, and (2) exercising independent judgment as to whether the practice constitutes an unconstitutionally severe punishment.
As to the first prong, although a large majority of states authorize LWOP for fourteen-year-olds, the sentence is in practice very infrequently imposed:
Continue reading “SCOWIS Approves LWOP for 14-Year-Old Killers”
Since at least the 1970’s, the Supreme Court has been badly splintered on how to interpret and apply the Cruel and Unusual Punishments Clause of the Eighth Amendment. Under one perspective, particularly associated with Justice Scalia, the Clause only bans specific penal practices that were regarded as barbaric even in the late eighteenth century. Scalia thus rejects the claim that the Eighth Amendment prohibits disproportionately long prison terms. Although Scalia’s position has not attracted majorities on the Court, the forcefulness with which he has advanced his originalist arguments has perhaps contributed to the Court’s reluctance to overturn some pretty clearly excessive sentences in cases like Harmelin v. Michigan and Ewing v. California. (For more on the Court’s Eighth Amendment jurisprudence, see my article here.)
Now, however, John Stinneford takes on Scalia’s interpretation of the original meaning of “cruel and unusual punishment” in a new paper entitled “Rethinking Proportionality Under the Cruel and Unusual Punishments Clause.” Reviewing the history of the phrase back through its English antecedents, Stinneford argues that its established meaning at the time of Eighth Amendment’s framing included a proportionality principle.
Continue reading “New Article Takes on Scalia on Original Meaning of Cruel and Unusual Punishment”
John Castiglione has a new article in the Ohio State Law Journal on the proportionality requirement of the Eighth Amendment. The article begins with an intriguing anecdote and observation:
I had a client named Richard who was convicted of felony drug crime. At the time of his conviction, Richard was in his late thirties. No violence was involved in the incidents leading to his arrest, and Richard had a short and unimpressive criminal history at the time of his conviction. He was sentenced to approximately eight years in prison, spending most of his time in high security facilities. Richard served almost all of the eight-year sentence, finally leaving prison when he was in his mid-forties.
About halfway through his stay in prison, Richard suffered a severe injury that would eventually require arthroscopic surgery. After almost two and a half years of substandard (and at times nonexistent) care, Richard, acting pro se, initiated an action in federal court alleging that his treating physicians were deliberately indifferent to his medical needs and thereby violated his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The case attracted my attention, and I became Richard’s pro bono counsel more than a year after his complaint had been filed.
Throughout the representation, one thing that struck me was how Richard reflected upon his time served.
Continue reading “A Puzzling New Take on Eighth-Amendment Proportionality”
That question is the title of a new paper I’ve just uploaded to SSRN. Here is the abstract:
This essay introduces a new issue of the Federal Sentencing Reporter that is devoted to different aspects of the sentence of life without parole. An important question raised by many of the articles is whether LWOP, after two decades of explosive growth, is entering a period of decline. For instance, the Supreme Court declared LWOP unconstitutional for most juvenile offenders in May 2010, possibly inaugurating an era of more meaningful constitutional limitations on very long sentences. Additionally, many cash-strapped states have been developing new early-release programs in order to reduce corrections budgets, some of which hold out hope even for LWOP inmates. This essay considers the likelihood that these and other recent developments will contribute to a decline in LWOP. In the end, none of the developments portend dramatic changes, at least regarding LWOP for adult offenders, although it is possible that LWOP will undergo a period of slow, long-term decline, much as has occurred with the death penalty. After laying out this perspective, the essay then considers whether the United States ought to welcome such a period of decline.
The LWOP issue of FSR, which I edited, has just come out in print. Continue reading “The Beginning of the End for Life Without Parole?”