Were the constitutional rights of defendants who were prosecuted as adults in criminal court for offenses that they committed at ages 16 or 17, and prior to December 1, 2019, violated because the jurisdictional changes under raise the age were not retroactive? The North Carolina Court of Appeals does not think so. The decision in State v. Garrett, 2021-NCCOA-591, answers this question. Continue reading
Tag Archives: cruel and unusual
Some inmates are serving long sentences for older crimes that would receive a much shorter sentence under today’s law. It is clear at this point that they cannot have today’s law applied to them retroactively, as Jessie discussed in this prior post. That’s true for inmates who received longer sentences under Fair Sentencing, State v. Whitehead, 365 N.C. 444 (2012), or earlier versions of Structured Sentencing, State v. Lee__ N.C. App. __, 745 S.E.2d 73 (2013). And it is so because the legislature has always made changes to the sentencing law apply prospectively.
That’s all well and good as a matter of legislative intent, but do those inmates have a constitutional argument that their sentences violate the Eighth Amendment’s prohibition on cruel and unusual punishment? After all, the amendment is informed by the “evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97 (1976). Does a downward change in the way the legislature punishes an offense demonstrate an evolved standard? Two recent cases conclude it does not.
In State v. Stubbs, __ N.C. App. __, 754 S.E.2d 174 (2014), the defendant received a life sentence for a second-degree burglary committed in 1973. He filed an MAR arguing that after almost forty years in prison, he had already served “nearly ten times the length of time that any defendant could be ordered to serve today.” (The maximum possible sentence today for second-degree burglary, a Class G felony, is 47 months.) The trial judge agreed, granted the motion, and resentenced the defendant to 30 years, which made him due for immediate release. The State filed a petition for a writ of certiorari with the court of appeals.
A divided court of appeals reversed, concluding that the trial judge applied the wrong test to determine whether the sentence violated the Eighth Amendment. A prison sentence does not become cruel and unusual by virtue of ordinary disproportionality. Rather, it must be grossly disproportionate. Harmelin v. Michigan, 501 U.S. 957 (1991) (Kennedy, J., concurring). After a quick review of the leading cases—Hamerlin, 501 U.S. at 961 (upholding a life sentence for possession of 650 grams of cocaine; Ewing v. California (upholding a sentence of 25 years to life for felony grand theft under California’s three strikes law)—the court concluded that Stubbs’ sentence did not meet that high standard.
The court also rejected the Mr. Stubbs’ argument that the Supreme Court’s more recent guidance in Graham v. Florida, 560 U.S. 48 (2010) (discussed here), dictated a different result. In Graham the Court barred sentences of life without parole for non-homicide offenses committed by defendants under 18 at the time of their offense. Mr. Stubbs was 17 years old at the time of his burglary, but he was not sentenced to life without parole. Rather, as a life-sentenced inmate from 1973 he was eligible for parole after 10 years. In fact, he was paroled in 2008. But his parole was revoked and he was returned to prison after a DWI conviction in 2010. With that in mind, the court of appeals determined that Stubbs did have a “meaningful opportunity to obtain release,” and that his sentence was therefore not unconstitutional under Graham.
The second case is State v. Wilkerson, __ N.C. App. __, 753 S.E.2d 829 (2014). In Wilkerson the defendant was originally sentenced in 1991 to a total of 50 years on 10 felonies (one second-degree burglary and several larceny, breaking or entering, and stolen property crimes). He was 16 at the time of the crimes and had no criminal record. Mr. Wilkerson filed an MAR in 2012 arguing that his 50-year sentence was grossly disproportionate to the sentence a first-time offender could receive for the same crimes today. (By my estimation the maximum possible consecutive sentence for the same crimes today would be around 17 years.) The trial court granted the motion and resentenced Mr. Wilkerson to 21 years, which was the time he had already served. As in Stubbs the state petitioned the court of appeals for a writ of certiorari.
And as in Stubbs the court of appeals reversed. The appellate court held that the trial court erred by first comparing the sentence the defendant received with the sentence a person would receive for the same crimes committed today. The proper first step in the analysis, the court said, is to weigh the gravity of the offense and the severity of the sentence—and that step must be completed “without taking subsequent sentencing amendments into account.” Only when that threshold test gives rise to an inference of gross disproportionality should you continue to the step of comparing the defendant’s sentence with the sentences of other offenders. Harmelin, 501 U.S. at 1005. The court concluded that under the proper analytical framework the trial court never would have made it past step one in Wilkerson’s case. Yes, the defendant was young and his crimes were nonviolent. But there were still 10 felony convictions, one of which (the burglary) was “particularly serious.” With that in mind the court of appeals found “no basis for concluding that this is one of the ‘exceedingly rare noncapital cases’ in which the sentence imposed is ‘grossly disproportionate’ to the crimes.”
Stubbs and Wilkerson reaffirm something we already knew: it’s hard to succeed on an Eighth Amendment claim. Recent Supreme Court cases like Graham and Miller v. Alabama (discussed here) may have broadened our understanding of “cruel and unusual,” but they don’t appear to have started a full-blown Eighth Amendment revolution. Occasionally our appellate courts have said things like “as long as the judge sentences within the limits established by the legislature, the Eighth Amendment is not offended.” State v. Streeter, 146 N.C. App. 594 (2001). That probably goes a little too far (at some extreme, the Constitutional obviously trumps the General Statutes), but it’s still true to say that a sentence will be found to violate the Eighth Amendment “only in exceedingly unusual non-capital cases.” State v. Ysaguire, 309 N.C. 780 (1983).
Finally, these cases also raised—and perhaps resolved—an important procedural question about the court of appeals’ jurisdiction to issue a writ of certiorari related to a trial court order granting a motion for appropriate relief. Rule 21 of the Rules of Appellate Procedure mentions only orders denying MARs, and a prior case, State v. Starkey, 177 N.C. App. 264 (2006) (discussed here by Jeff) appeared to limit the state’s ability to obtain review. Obviously both the Wilkerson and Stubbs courts saw things differently, as they issued the writ and reversed the new sentences. Wilkerson expressly distinguished Starkey. 753 S.E.2d at 833 (“As a result, however, of the fact that Starkey conflicts with several decisions of the Supreme Court that authorize review of trial court decisions granting motions for appropriate relief filed by a defendant, our decision in Starkey does not stand as an obstacle to the allowance of the State’s certiorari petition.”). This post is far too long so I’ll leave it at that for now, but it’s a topic worth revisiting soon.
Category: Sentencing, Uncategorized | Tags: cruel and unusual, Eighth Amendment, graham, miller, Sentencing, starkey, supreme court
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.
Category: Procedure, Sentencing, Uncategorized | Tags: cruel and unusual, Eighth Amendment, juvenile, life without parole, LWOP, miller
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.
Category: Sentencing, Uncategorized | Tags: cruel and unusual, Eighth Amendment, graham, juvenile, life without parole
