A recent Court of Appeals opinion turned on a point of law that sometimes trips up folks in sexual assault cases: When a juvenile is alleged to have committed a sexual assault requiring proof of a sexual purpose, the State has to prove more than the act itself. Continue reading
Tag Archives: juvenile
Beyond the Bench, the podcast of the Judicial College here at the School of Government, is back with a new season. Professor Sara DePasquale takes the reins as the host for Season 2, which explores the issue of juvenile homelessness.
Sara explains that the season:
focuses on neglect and the child welfare system with a particular emphasis on homelessness. Through six episodes, you will hear about family homelessness in North Carolina, whether homelessness is neglect and requires a report to a county child welfare (or social services) department under North Carolina’s mandated reporting laws, and the different stages of a child welfare case. Each episode discusses a different stage in a child welfare case and includes the various voices and perspectives of the people involved. Those voices include homeless shelter staff, county department social workers and attorney, the children’s guardian ad litem, a parent attorney, and district court judges.
The topic isn’t directly criminal-law related, so future episodes will be announced on this blog in the Friday news roundup rather than in their own posts. However, issues like poverty, substance abuse, and instability relate both to juvenile homelessness and to the criminal justice system, so the show may be of interest to many readers. In fact, anyone who has ever seen a homeless child may wonder about the central question presented in episode one: is a homeless child, by definition, suffering from neglect?
I’ve listened to the teaser and the first episode, and I am excited about the season. As before, you can listen to Beyond the Bench at the podcast website, through the iTunes podcast store, or via Stitcher.
The district court judges are conferring this week at the Great Wolf Lodge in Concord. I don’t know if robes are allowed on waterslides, but I expect that the judges will be pretty focused on business in any event. Among other topics, reports indicate that they’ll be hearing from former Ohio Supreme Court Justice Evelyn Stratton about raising the juvenile age from 16 to 18. As many readers know, that idea has been around a long time, and North Carolina is one of only two states that set the juvenile age at 16.
Coincidentally, a group called Campaign for Youth Justice released a report last week about juvenile justice reforms. (The press release is here and the full report is here.) It asserts that “[o]ver the past eight years, twenty-three states have enacted forty pieces of legislation to reduce the prosecution of youth in adult criminal courts and end the placement of youth in adult jails and prisons.” Specifically, the report notes that both Illinois and Massachusetts have recently raised their juvenile cutoffs from 17 to 18 years old.
Do the changes noted by the report signal coming change in North Carolina? The report certainly suggests that there is momentum for further reform. As it pertains to North Carolina, the report highlighted the changes to the sentencing laws made in response to Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455 (2012), which held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment.” Shortly after Miller, the General Assembly enacted S.L. 2012-148, creating new G.S. 15A-1476 et seq. (allowing, and in some cases requiring, a sentence of life with the possibility of parole after 25 years for defendants who were under 18 at the time they committed first-degree murder).
I don’t attach much significance to the fact that the General Assembly made a change that was constitutionally mandated. Nor is reform in other states necessarily a harbinger of change in North Carolina. But there is certainly continued interest in the juvenile age issue among advocates (as the report itself shows) and among influential court actors (as the judges’ conference agenda indicates). Another legislative session convenes in May, so stay tuned.
Earlier in the week, the court of appeals decided State v. Lovette, the appeal of one of the defendants convicted of killing UNC student body president Eve Carson. The case has been covered widely in the media, including the Daily Tar Heel. The court of appeals found no error in Laurence Lovette’s convictions for first-degree murder, first-degree kidnapping, and armed robbery, but granted a motion for appropriate relief (MAR) challenging his sentence for the murder in light of Miller v. Alabama, 132 S. Ct. 2455 (2012).
When Lovette was convicted and sentenced in late 2011, the only permissible North Carolina sentence for a person under 18 convicted of first-degree murder was life without parole. That is the sentence that Lovette—17 years old at the time of his crime—received. In mid-2012, after Lovette was sentenced but while his case was on appeal, the Supreme Court decided Miller, holding that a sentencing regime that makes life without parole mandatory for a murder committed by defendant under age 18 is cruel and unusual punishment. I summarized Miller here and discussed the case’s implications for North Carolina here. I noted in the second post that Miller raised real issues for North Carolina, as 88 inmates—including Lovette—were then serving mandatory life without parole sentences for crimes committed before they turned 18. (As of yesterday, that number stood at 92 inmates.)
Lovette’s case was pending on direct review when Miller was decided, so the rule from the case clearly applies to him. See Griffith v. Kentucky, 479 U.S. 314 (1987).The State conceded the issue and the court of appeals remanded for a Miller-compliant resentencing.
What procedure will apply when the case comes back to superior court? The General Assembly responded to Miller quickly, passing a fix bill (SB 635) mere days after the case came down. The governor signed the bill into law on July 12, 2012, effective immediately for any sentencing hearing held on or after that date. S.L. 2012-148. The law was also made applicable to any resentencing hearing required by law for a defendant under age 18 at the time of his or her offense, id. sec. 3, and so it will apply in Lovette’s case.
The revised law (originally codified in G.S. 15A-1476 through -1479 but moved to G.S. 15A-1340.19A through -1340.19D by the Revisor of Statutes) enacted a new sentencing regime for first-degree murder defendants under age 18 at the time of the offense. The new procedure seeks to comply with Miller by creating an alternative to life without parole that judges may use after considering the defendant’s “age and the wealth of characteristics and circumstances attendant to it.” Miller, 132 S.Ct. at 2467. Here are the details.
If the sole basis for a youthful defendant’s first-degree murder conviction is the felony murder rule, the court must sentence the offender to life imprisonment with the possibility of parole after 25 years. G.S. 15A-1340.19B(a)(1). That provision appears to give effect to Justice Breyer’s concurring opinion in Miller, in which he noted that a prior case prohibited a sentence of life without parole for a defendant who “did not kill or intend to kill.” See Miller, 132 S. Ct. at 2475 (Breyer, J., concurring) (citing Graham v. Florida, 130 S. Ct. 2011 (2010), discussed here).
If a youthful defendant is convicted of first-degree murder under any theory other than felony murder, then the court must hold a hearing to determine whether the defendant will be sentenced to life without parole or life with the possibility of parole after 25 years. At the hearing, conducted by the trial judge as soon as practicable after the guilty verdict is returned, the court may consider evidence on “any matter the court deems relevant to sentencing.” G.S. 15A-1340.19B(b). The law invites the defendant to submit mitigating circumstances to the court related to the defendant’s age, immaturity, exposure to familial or peer pressure, and other potential mitigators. G.S. 15A-1340.19B(c). The parties then get to argue for or against a sentence of life imprisonment without parole, with the defendant entitled to the last argument. G.S. 15A-1340.19B(d).
At the conclusion of the hearing the court (not the jury) determines whether, based on all the circumstances of the offense and the offender, the defendant should be sentenced to life imprisonment with parole instead of life imprisonment without parole. The latest version of the felony active sentence judgment form (AOC-CR-601) includes check-boxes for each option. The judgment must “include findings on the absence or presence of any mitigating factors and such other findings as the court deems appropriate to include in the order.” G.S. 15A-1340.19C. The requisite findings could be entered on form AOC-CR-618. The law studiously avoids the word “aggravating”; it does not literally require the court to make factual findings to justify the harsher sentence of life without parole, and thus appears to steer clear of any Blakely concerns.
Lovette was convicted of first-degree murder on the basis of malice, premeditation, and deliberation and under the felony murder rule, so the resentencing court must hold a hearing like the one described above. After considering any mitigating factors presented and the circumstances of the case, the court will decide whether to again sentence the defendant to life without parole, or whether to give a sentence of life with the possibility of parole after 25 years.
How would each sentence play out in practice?
If the judge again ordered a sentence of life without parole, then Lovette would spend the rest of his life in prison. A sentence to life without parole under today’s law is a natural life sentence.
If the judge ordered imprisonment with the possibility of parole after 25 years, things are a little less clear. This new form of punishment is the first parole-eligible life sentence from the Structured Sentencing era, and it’s not obvious under our existing statutes how it would interact with Lovette’s other sentences. If cases from the Fair Sentencing era can be any guide (and I think they can), the prison system would treat any consecutive sentences ordered by the court as a single term of imprisonment, with the overall parole eligibility likewise determined by summing the minimum terms of the individual sentences. See Robbins v. Freeman, 127 N.C. App. 162 (1997) (holding that the prison system must treat consecutive sentences as a single term of imprisonment under G.S. 15A-1354(b), and disapproving of the Parole Commission’s then-existing practice of “paper paroling” prisoners from one sentence to another); Price v. Beck, 153 N.C. App. 763 (2002) (calculating overall parole eligibility for a defendant with a term-of-years kidnapping sentence consecutive to a Fair Sentencing life sentence with parole eligibility after 20 years by aggregating the parole-eligibility periods of each offense).
Assuming the rules from those cases apply today, if Lovette received a sentence of life imprisonment with the possibility of parole after 25 years and consecutive sentences for first-degree kidnapping (for which he received a 100–129 month sentence initially) and armed robbery (77–102 months), he would be eligible for parole after serving 25 years for the murder plus at least 177 months (about 15 years) for the other crimes. Thus, the first opportunity for parole consideration would come after about 40 years. There does not appear to be any statutory or regulatory basis for awarding earned time credit toward the 25-year parole eligibility period, so it seems that it would be served “flat,” reduced only by the defendant’s credit for time already served. G.S. 15-196.1; -196.3.
If he were actually paroled, new G.S. 15A-1340.19D provides that his term of parole would be five years, subject to the conditions set out in Article 85 of Chapter 15A. If the Post-Release Supervision and Parole Commission never paroled him, he would remain imprisoned for his natural life. G.S. 15A-1340.19D.
Because Lovette’s case was on direct appeal when Miller was decided, the court of appeals did not have to engage in a complicated retroactivity analysis to determine whether the rule from the case (and the related statutory fix procedure) applied to him. That will not be the case for many of the other 91 defendants in serving mandatory life without parole for murders committed before they turned 18. I discussed the retroactivity issue briefly here, including a mention of Jessie Smith’s helpful bulletin. The effective date for the new statutory procedure does not resolve the question, because it simply says that this is the procedure to be used for resentencings “required by law.”
It will, of course, be interesting to see what happens in Lovette’s case on remand. On the one hand, the Supreme Court said in Miller that, in light of “children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to [life without parole] will be uncommon.” 132 S. Ct. at 2469. On the other hand, there are many people who think this is no ordinary case.
Most people were disappointed that the Supreme Court did not release the health care ruling on Monday. I, on the other hand, was excited to read Miller v. Alabama, a case with important sentencing ramifications for many states, including North Carolina. In Miller, the Court held 5–4 that the Eighth Amendment forbids a sentencing scheme that mandates life without parole (LWOP) for a defendant less than 18 years of age at the time of his or her crime, even when the crime of conviction is murder.
Miller was decided in tandem with another case, Jackson v. Hobbs. Both defendants were 14 years old at the time of their offense. To summarize the facts of each case briefly, Evan Miller and another boy killed a neighbor by repeatedly striking him over the head with a baseball bat and then lighting his trailer on fire. The other case, which originated out of Arkansas, involved the botched robbery of a video store by Kuntrell Jackson and two other boys, one of whom had a sawed-off shotgun. When the store clerk refused to give the boys any money and threatened to call the police, the boy with the gun shot and killed her. Both defendants were charged as adults as a matter of prosecutorial discretion. Miller was convicted of murder in the course of arson; Jackson was convicted of felony murder and aggravated robbery. In both Alabama and Arkansas, the only permissible sentence for a young person convicted of those crimes was life without parole, and that is the sentence each boy received. Both defendants argued on appeal that the sentence was cruel and unusual punishment under the Eighth Amendment.
The Supreme Court agreed (mostly), with Justice Kagan writing for a five-Justice majority. Justice Breyer wrote a concurring opinion. Four Justices dissented.
The Court drew from two distinct strands of precedent to decide that sentencing schemes that require life in prison without parole for juvenile offenders convicted of murder—without any opportunity for the sentencer to consider a lesser punishment—violate the Eighth Amendment. The first strand of cases adopted categorical bans on certain sentencing practices for certain types of offenders. It includes Thompson v. Oklahoma, 487 U.S. 815 (1988) (barring capital punishment for defendants under the age of 16); Atkins v. Virginia, 536 U.S. 304 (2002) (barring capital punishment mentally retarded defendants); Roper v. Simmons, 543 U.S. 551 (2005) (barring capital punishment for defendants under 18); Kennedy v. Louisiana, 554 U.S. 407 (2008) (barring capital punishment for nonhomicide crimes against individuals); and, most recently, Graham v. Florida, 560 U.S. __ (2010) (barring a sentence of life without parole for nonhomicide crimes committed by defendants under 18, discussed here). The second strand of cases prohibited sentencing schemes that include mandatory imposition of capital punishment for certain crimes, requiring individualized consideration of the particular defendant before the death penalty may be imposed. Woodson v. North Carolina, 428 U.S. 280 (1976).
A theme that emerges from the first strand of cases is that young defendants are different from adults. The things that make them different turn out to be important for thinking about how to fix North Carolina’s laws in light of this case, so I want to set them out in bullet points.
- First, because of their lack of maturity, children are reckless, impulsive, and risk-taking;
- Second, children are vulnerable to negative influences (i.e., peer pressure) and have limited control over their environment; and
- Third, a child’s character is not fully formed, so he or she is less likely to be deemed beyond rehabilitation based on a crime committed at an early age.
In light of those characteristics—which the Court said are increasingly well-documented as a matter of “brain science”—Justice Kagan wrote that the traditional purposes of sentencing don’t work the same when applied to young defendants. As such, when a sentencing authority isn’t permitted to even consider a defendant’s youth before imposing a sentence as serious as life without parole, the punishment is cruel and unusual.
Miller and Jackson argued for a categorical prohibition (like Roper and Graham) on LWOP for youthful defendants, or at least for defendants as young as 14, but what the Court gave them was really more Woodson-like. Woodson struck North Carolina’s capital punishment system in the 1970s because it made the death penalty mandatory for any defendant convicted of first-degree murder. The Woodson Court said that a system that gave no significance to the character of the defendant or the circumstances of the offense could not pass constitutional muster. In Miller the Court adopted a similar approach, holding that LWOP is a permissible punishment (i.e., it is not categorically barred, as was reported in some media outlets), but only after the sentencer has taken into account the “offender’s age and the wealth of circumstances attendant to it.” Slip op. at 14. Even though the Court expressly declined to consider the categorical ban requested by the defendants, it said that once states adopted appropriate non-mandatory sentencing regimes consistent with its ruling in Miller, “occasions for sentencing juveniles to [LWOP] will be uncommon.” Id. at 17. Jurisdictions are thus on notice that the individualized consideration of youth required by Miller is no mere formality.
Chief Justice Roberts authored the principal dissent, joined by Justices Scalia, Thomas, Alito. He said that the majority’s holding was a departure from Eighth Amendment precedent in that the sentences at issue could not really be characterized as “unusual”; the parties all agreed that over 2,000 prisoners were serving mandatory LWOP sentences for murders committed before they turned 18. In the past, Eighth Amendment jurisprudence called for consideration of “objective indicia of society’s standards as expressed in legislative enactments and state practice.” Here, 28 states and the federal government have mandatory LWOP for certain homicides. He took issue with the majority’s claim that the prevalence of LWOP sentences was largely the by-product of an unintended confluence of two distinct legislative enactments: mandatory (or effectively mandatory) transfers from juvenile to adult court and mandatory sentencing laws for adults. Maybe he could buy such legislative inattentiveness in Graham, where the number of juvenile LWOP sentences for nonhomicide crimes actually imposed was very low (123 prisoners) notwithstanding the fact that 39 states allowed the punishment. After wondering whether the Court should “ever assume a legislature is so ignorant of its own laws that it does not understand that two of them interact with each other,” the Chief Justice said that at a minimum a sentence being served by over 2,000 prisoners should not be characterized as a “collateral consequence of legislative ignorance.” He concluded by describing the progression from Roper to Graham to Miller as a “classic bait and switch,” and anticipated that the Court’s limitation on LWOP in Miller could evolve into a categorical prohibition before too long.
Justice Thomas and Justice Alito also wrote separate dissents. Justice Thomas questioned the majority’s blending of the two lines of cases described above—in addition to questioning each one separately as a matter of consistency with the original understanding of the Cruel and Unusual Punishments Clause. Justice Alito wrote critically of the Court’s inconsistency when tallying state laws as an objective measure of society’s standards.
Justice Breyer, joined by Justice Sotomayor, concurred in the majority opinion in full but wrote separately to note that Jackson’s case is different from Miller’s. Because Jackson did not pull the trigger himself and was convicted under a felony murder theory, there was no express determination that he killed or intended to kill the victim. As such, Justice Breyer noted that on remand LWOP might be prohibited under Graham. 560 U.S. at __ (categorically prohibiting LWOP for juvenile defendants who “did not kill or intend to kill”).
Much has already been written about Miller. Professor Tamar Birckhead at UNC Law School has written about the case on her new Juvenile Justice Blog and Sentencing Law and Policy has extensive and helpful coverage. Without question the case presents some difficult issues for North Carolina. Statutes will need to be amended to make them Miller-compliant, and pending cases (and probably even some decided cases) will need to take the opinion into account. My next post will set out my thoughts about where we go from here.
I blogged here about In re J.D.B., a juvenile case in which the North Carolina Supreme Court held that a 13-year-old, questioned in an unlocked school conference room by police officers and an assistant principal about the student’s role in several residential break-ins, was not in custody for Miranda purposes. The court stated that “[f]or a student in the school setting to be deemed in custody, law enforcement must subject the student to restraint on freedom of movement that goes well beyond the limitations that are characteristic of the school environment in general.” It found no such additional restraint. Nor did the court accept the juvenile’s argument that his youth and the fact that he was a special education student were relevant to whether or not he was in custody. it “decline[d] to extend the test for custody to include consideration of [personal characteristics, such as] the age and academic standing of an individual subjected to questioning by police.”
It’s a fascinating case that divided the state supreme court and the court of appeals. According to this order, entered yesterday, the United States Supreme Court is going to review it. The question presented in the petition for certiorari is as follows:
WHETHER A COURT MAY CONSIDER A JUVENILE’S AGE IN A MIRANDA CUSTODY ANALYSIS IN EVALUATING THE TOTALITY OF THE CIRCUMSTANCES AND DETERMINING WHETHER A REASONABLE PERSON IN THE JUVENILE’S POSITION WOULD HAVE FELT HE OR SHE WAS NOT FREE TO TERMINATE POLICE QUESTIONING AND LEAVE?
In an interesting coincidence, the court of appeals just decided In re K.D.L., another juvenile Miranda case with similar facts. The court properly acknowledged In re J.D.B., though it characterized the relevance of personal characteristics to the custody inquiry as the subject of a “split of authority,” and distinguished In re J.D.B. in a way that might be read as expressing polite skepticism about some of the conclusions reached in that case. Stay tuned for further developments.
The Supreme Court of the United States issued two noteworthy opinions yesterday. In United States v. Comstock (a case that originated out of North Carolina) the Court reversed the Fourth Circuit and upheld the federal government’s power to civilly commit a mentally ill, sexually dangerous federal prisoner beyond the date he would otherwise be released from prison. The opinion will be worth another look: as the News & Observer reports, many such civil commitment proceedings happen in North Carolina on account of the federal prison in Butner. Today’s post, though, looks at the other big case decided yesterday, Graham v. Florida—an important Eighth Amendment decision. In Graham, the Court held that the Eighth Amendment is violated when a judge sentences a juvenile to life in prison without the possibility of parole for a conviction other than a homicide.
Briefly, the facts. When Terrance Graham was 16 he burglarized a restaurant in Florida. He was arrested and charged as an adult (Florida law allows prosecutors to decide whether to charge 16- and 17-year-olds as adults or juveniles for most felony crimes). He ultimately pled guilty to armed burglary with assault or battery, a crime punishable by life imprisonment under Florida law, and was placed on probation without an adjudication of guilt (an arrangement that sounds roughly similar to our drug conviction deferral under G.S. 90-96). A short time later Graham committed another crime, this time a home invasion in which he and his accomplices held a homeowner at gunpoint for half an hour while they ransacked the house. He was caught after attempting to flee the police. The court revoked his probation and—notwithstanding the Florida DOC’s presentence recommendation of a 4-year term—sentenced him to life imprisonment. Florida, like North Carolina, has abolished parole, meaning Graham’s only hope of release was executive clemency. He appealed, arguing that his sentence violated the Eighth Amendment. The state appellate court affirmed the sentence.
The Supreme Court reversed. Writing for a 5-4 majority, Justice Kennedy wrote that a life sentence without the possibility of parole for a crime other than a homicide is cruel and unusual punishment when the defendant was under 18 at the time of the offense. The Court’s Eighth Amendment jurisprudence, Justice Kennedy said, follows one of two paths. The first is a “proportionality review” in which the gravity of the offense is weighed against the severity of the sentence. See, e.g., Harmelin v. Michigan, 501 U.S. 957 (1991) (upholding a life without parole sentence for drug possession under a proportionality review); Ewing v. California, 538 U.S. 11 (2009) (rejecting a proportionality challenge to a 25-year-to-life sentence under California’s three-strikes law for the theft of golf clubs). The second is a “categorical approach” in which an entire sentencing practice is evaluated to see, based on a review of nationwide laws and practices, whether there is a “consensus against the sentencing practice at issue.” The Court has applied the categorical approach several times recently to make capital punishment off limits for defendants who committed their crimes before turning 18, Roper v. Simmons, 543 U.S. 551 (2005), for defendants who are mentally retarded, Atkins v. Virginia, 536 U.S. 304 (2002), or for defendants convicted of rape where the crime did not result and was not intended to result in the victim’s death, Kennedy v. Louisiana, 544 U.S. __ (2008). The Court determined that the latter approach was appropriate in Graham, for the first time applying the categorical approach to a non–death penalty case.
The Court began with a survey of “objective indicia of national consensus,” concluding that 37 states, the District of Columbia, and the federal government all permit sentences of life without parole for juveniles in non-homicide cases in some circumstances. That supermajority alone was a sufficient basis for the dissenters (Justices Thomas, Scalia, and Alito) to conclude that there was no nationwide consensus against the practice. The majority disagreed, noting that with only 129 juvenile non-homicide offenders serving life without parole in the United States (77 of whom are in Florida), the punishment is so rarely used in practice as to demonstrate a consensus against it. Moreover, Justice Kennedy wrote, the punishment fails to serve any “legitimate penological goals.” Based on their “lack of maturity and underdeveloped sense of responsibility,” the Court said, juvenile offenders are less culpable than adults, less likely to be deterred by a harsh consequence, and less apt to be reliably pegged as “incorrigible” at such an early stage in life. With all of these factors in mind (and after a quick comparison to foreign laws and the United Nations Convention on Rights of Children, to the chagrin of the dissenters) the Court concluded that life without parole—the “second most severe penalty permitted by law”—was unconstitutionally cruel and unusual punishment for a juvenile offender convicted of a crime other than murder.
The Court did not, however, go on to say that Graham (or any of the other 129 offenders mentioned above serving life sentences without parole) necessarily needed to be resentenced. (A fact noted in Lyle Denniston’s Opinion Recap at SCOTUSblog.com, available here.) Indeed, the Court said, “[a] State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime.” What is required, however, is that the State “give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Justice Kennedy left to the states the challenge of finding the “means and mechanisms” for compliance with the Court’s new mandate. Slip op. at 24.
I won’t dwell on the non-majority opinions, but there’s a lot to digest in them. Chief Justice Roberts concurred in the judgment that Graham’s sentence was cruel and unusual, but he reached that conclusion through a “narrow proportionality” review—the path not taken by Justice Kennedy and the majority. He deemed Graham’s particular sentence invalid in light of his age and immaturity, but he would have opted to leave open the possibility that some young offender might, someday, deserve life without parole for a nonhomicide offense. The Chief Justice questioned the majority’s concern that a case-by-case approach to proportionality review is “constitutionally insufficient because courts might not be able with sufficient accuracy [to] distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.” True, the Chief allowed, “judges will never have perfect foresight”—but that concern applies in every case.
Justices Thomas’s dissent, joined by Justices Scalia and Alito, criticized the Court’s substitution of its own moral values for those of a majority of state legislatures. If anything, the dissent argued, the nationwide legislative consensus is in favor of laws allowing life without parole for juveniles—notwithstanding that most states have invoked them only rarely. “That a punishment is rarely imposed” he wrote, “demonstrates nothing more than a general consensus that it should be just that—rarely imposed. It is not proof that the punishment is one the Nation abhors.” Justice Thomas also lamented the extension of the Court’s categorical approach to the Eighth Amendment into the realm of noncapital punishment. Along those lines, Justice Alito dissented separately to emphasize that the Court’s holding applies only to sentences of “life without parole,” not to the imposition of term-of-years sentences. He was, perhaps, anticipating an argument that there is no principled difference between a life sentence and a lengthy non-life sentence or series of stacked sentences that will virtually guarantee an offender’s death behind bars.
What is the impact for North Carolina? First, note that none of the 129 offenders mentioned in Graham was sentenced under North Carolina law. There are, however, several statutes in North Carolina that will potentially be affected by the Court’s ruling—many of you may have already seen them in Bob Farb’s summary of the case emailed yesterday. Though the Appendix in Graham cited G.S. 15A-1340.16B(a) (life imprisonment without parole for a second or subsequent Class B1 felony conviction when committed against victim who was thirteen years old or younger at time of the offense) as North Carolina’s only nonhomicide crime allowing life without parole, Bob correctly points out that G.S. 15A-1340.17(c) (life imprisonment without parole for a defendant sentenced for Class B1 felony in the aggravated range for Prior Record Level V or VI), G.S. 14-7.12 (violent habitual felons), and G.S. 14-288.22(a) (life imprisonment without parole for injuring another by using nuclear, biological, or chemical weapon of mass destruction), would also be covered—even if it is highly unlikely that a defendant under age 18 would have the prior record necessary to be sentenced to life without parole for all but the weapon of mass destruction crime.
There are at least two ways to bring North Carolina law into compliance with the Court’s holding in Graham. One is to write separate, non-life sentencing provisions for the crimes listed above for defendants who are under 18 at the time of their offense. Another, of course, would be to retain life imprisonment as a sentencing option, but to allow for some form of parole review. We don’t yet know how soon after sentencing that review must take place to be “meaningful” within the Court’s opinion in Graham, but it must give the offender “some realistic opportunity to obtain release before the end of that term.” Slip op. at 32.
I’ve gone on too long already. If you’re interested in reading more, a number of other commentators are covering the case extensively. I mentioned SCOTUSblog already, and, as usual, Sentencing Law & Policy has some excellent food for thought. Crime & Consequences has a critical review. As always, we welcome your comments.
The North Carolina Supreme Court recently decided In re J.D.B., a close and interesting juvenile case. I mentioned it briefly here when it divided the court of appeals. It has implications well beyond the juvenile context, which I’ll unpack at the end of this post.
The basic facts are as follows: Chapel Hill police suspected a seventh-grade student, who participated in special education classes, of breaking into several houses. An investigator went to the juvenile’s school and had him removed from class and escorted to a conference room by a school resource officer. The investigator questioned the juvenile in the presence of the SRO, the assistant principal, and an intern. The door of the conference room where the interview took place was closed but not locked. The juvenile was not given Miranda warnings or the “juvenile Miranda” warnings required prior to custodial interrogations by G.S. 7B-2101, and he made incriminating statements. He was allowed to leave and catch the bus home, but later was charged. He moved to suppress his statements based on the lack of Miranda and statutory warnings.
The trial court found that such warnings were not required because the interview was not custodial. The court of appeals affirmed 2-1. The majority and the dissent agreed that whether the juvenile was in custody depends on whether a reasonable person in the juvenile’s circumstances would have believed that he was under arrest or subject to a degree of restraint typically associated with an arrest. The two opinions disagreed about whether the “reasonable person” in question should share the juvenile’s personal characteristics, such as his age and the fact that he was enrolled in special education classes. The dissent thought that those characteristics were relevant, and argued, in effect, that a reasonable seventh grade special education student would have felt compelled to respond to questions in the setting described above. The majority believed that those characteristics were not relevant, and that a reasonable person would not have believed he was de facto under arrest given that he was not handcuffed, the door was not locked, and the interview was relatively brief.
Because the court of appeals was split, the juvenile was entitled to review by the supreme court. The supreme court affirmed 4-3. The majority and the dissent differed on two crucial points. First, the majority concluded, based on a suggestion in Yarborough v. Alvarado, 541 U.S. 652 (2004), that the custody issue must be resolved without reference to the juvenile’s personal characteristics. (It noted, however, that such characteristics are relevant to the question of whether a person has knowingly and voluntarily waived his rights under Miranda.) Second, the majority held that custody, in a school context, requires a substantial restraint of liberty beyond what is inherent in the school setting. Based in part on those two premises, the majority ruled that the juvenile was not in custody, because the door was not locked or guarded, the investigator asked the juvenile if he was willing to answer questions rather than ordering him to do so, and in fact, the investigator eventually let the juvenile go.
Justice Brady’s dissent argued that the juvenile’s personal characteristics are relevant to the custody inquiry, and suggested that the investigator sought a “tactical advantage” by questioning the juvenile at school in a formal setting, with the adults dressed either in police uniforms or in business attire. Justice Hudson, joined by Justice Timmons-Goodson, took a similar position. She observed that Yarborough was no more than a suggestion and argued that the standard for what counts as “custody” should be lower, not higher, at school because it is a structured environment. She would have held that the interview was custodial given that the juvenile was “escorted” to it and in light of the large number of adults involved and the formality of the setting.
The importance of this case in the juvenile context is apparent: it gives the green light to conducting juvenile investigations at school, and suggests that most interactions between the police and students conducted at school will be viewed as non-custodial by the courts. But the implications extend also to other categories of people who might be especially prone to believe that interactions with the police are effectively compulsory, such as those with limited intellectual functioning, those with mental illnesses, and those who have limited proficiency in English. Consider, for example, a borderline mentally retarded defendant, stopped on the street by three officers and questioned about a crime. Before J.D.B., such a defendant might have argued that even if a person with an average IQ would have recognized the interaction as a noncustodial Terry stop, a reasonable borderline mentally retarded person would have viewed it as indistinguishable from an arrest, making it custodial for Miranda purposes. After J.D.B., that argument appears to be a loser.
I was thinking about making today’s post a news roundup, since there’s been so much interesting criminal law news recently, including a rumor suggesting that Justice Patricia Timmons-Goodson could be under consideration to replace Justice David Souter on the United States Supreme Court. (More information about that here.)
But those plans were blown out of the water by the Supreme Court’s grant of certiorari in two cases related to a topic I just blogged about recently: the imposition of life-without-parole sentences on juvenile offenders. My earlier post, referring to a California case, is here, and a New York Times story about the Supreme Court’s actions is here.
The very, very short version of the two cases is as follows: in Sullivan v. Florida, a thirteen-year-old with no substantial prior record was sentenced to life without parole after raping an elderly woman. In Graham v. Florida, a seventeen-year-old with a prior criminal history was sentenced to life without parole after a home invasion robbery. Lawyers for both defendants contend that the imposition of life sentences for juvenile defendants violates the Eighth Amendment’s guarantees against cruel and unusual punishment.
Obviously, I don’t know how these cases will turn out. There’s some support for the defendants’ arguments in Roper v. Simmons, 543 U.S. 551 (2005), the Court’s decision banning the death penalty for juveniles, but the Court has repeatedly emphasized that capital punishment is unique, so it might be a mistake to read too much into Roper. Some commentators think that the two cases may turn out differently, with the thirteen-year-old offender winning relief but not the seventeen-year-old. Interestingly, neither case involves a homicide, so a decision in favor of one or both defendants may leave open the question of whether LWOP may be imposed for juvenile murderers.
That last question — the constitutionality of LWOP for juvenile murderers — is the one of the most direct importance to North Carolina. Although LWOP is theoretically available as an aggravated sentence for B2 felony defendants with prior record levels V and VI, its overwhelming use is as a sentence for Class A felonies, i.e., first-degree murder, and I’d be surprised if there were any North Carolina juveniles serving LWOP sentences for any other crimes. Stay tuned for updates on Sullivan and Graham — and of course, an analysis of the impact of the eventual decisions on North Carolina practice.
I am occasionally asked about the adult sentencing consequences of a defendant’s juvenile history.
The first-order answer is easy: juvenile adjudications never count toward felony prior record level or misdemeanor prior conviction level. This is true of all juvenile adjudications, even those for acts that would be Class A – E felonies if committed by an adult. They can support an aggravating factor under G.S. 15A-1340.16(d)(18a), as discussed here, but they never count for points. There is no exception to this rule allowing one juvenile adjudication to count toward adult prior record level.
A closer question comes up when youthful offenders still on juvenile probation or resident in a youth development center commit crimes for which they are prosecuted as adults-a not uncommon scenario in light of the jurisdictional overlap between North Carolina’s adult and juvenile worlds. Under G.S. 15A-1340.14(b)(7), a felony defendant [note: there is no analogous provision for misdemeanor defendants] gets one additional prior record point if his or her offense was “committed while the offender was on supervised or unsupervised probation, parole, or post-release supervision, or while the offender was serving a sentence of imprisonment, or while the offender was on escape from a correctional institution.” The question is: does confinement in a YDC count as “imprisonment”? Do juvenile “probation” and “post-release supervision” count?
As to the first question, we know it does not. In State v. Tucker, 154 N.C. App. 653 (2002), the court of appeals held that a defendant in training school (the precursor to today’s YDC) was not “serving a sentence of imprisonment” for purposes of G.S. 15A-1340.14(b)(7). The court pointed out G.S. 7A-2412, which says that “[a]n adjudication that a juvenile is delinquent or commitment of a juvenile to the Department for placement in a youth development center shall neither be considered conviction of any criminal offense nor cause the juvenile to forfeit any citizenship rights.” The opinion then noted that the objectives of the Juvenile Code are far different from the purposes of criminal sentencing. Even when there is an apparent statutory overlap between the two systems, the court said, “[t]here is a fundamental legal difference between these wording choices unrelated to mere delicacy of diction.”
That brings us to “juvenile probation” and “post-release supervision.” Though our appellate courts haven’t considered the question, I read Tucker to stand for the broader point that the adult and juvenile worlds-even when they use the same words to describe something-just don’t mix. Even without reference to Tucker, I think it’s fairly clear as a matter of statutory interpretation that “probation” in G.S. 15A-1340.14(b)(7) is not meant to include juvenile probation. The word is modified by the terms “supervised or unsupervised,” concepts that apply only to adult probation. “Post-release supervision” (which exists in both the adult and juvenile worlds) is unmodified in G.S. 15A-1340.14(b)(7), but the list of qualifying statuses includes words like “parole,” “imprisonment,” and “correctional institution”-all uniquely adult things. As one of my law school professors would say, “I’m not sure how the Romans would pronounce it, but I believe the term is ejusdem generis“-the textual canon that a list of things should be read to fall within the same kind, class, or nature.
All of this is subject to change, of course, as the General Assembly considers a series of bills increasing the connectivity between the adult and juvenile worlds (e.g., S 984 and S 1082). In the meantime I welcome your thoughts.