In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court held that a person who commits a homicide when he or she is under 18 may not be mandatorily sentenced to life without parole; the sentencing judge must have discretion to impose a lesser punishment. In Montgomery v. Louisiana, 577 U.S. 190 (2016), the Court held that Miller applies retroactively. When Montgomery was decided, I wondered (here) whether it did more than merely address Miller’s retroactive application. Language in the case indicated that a sentence of life without parole would be constitutionally permissible for only the most the most troubling young defendants—“those whose crimes reflect permanent incorrigibility.” Id. at 209. In Jones v. Mississippi, 593 U.S. ___ (2021), decided last week, the Court made clear that the Constitution does not require a sentencer to make a separate factual finding of permanent incorrigibility before sentencing a defendant to life without parole. Continue reading
Tag Archives: Eighth Amendment
Case Summary: Jones v. Mississippi
United States Supreme Court Rejects Another Challenge to Another Method of Lethal Injection But Leaves the Door Open to Future Litigation
The Supreme Court decided Bucklew v. Precythe today, rejecting a death row inmate’s challenge to Missouri’s single-drug execution protocol. Challenges to lethal injection are now 0-for-3 in the Supreme Court, but the Court did not foreclose future litigation. To the contrary, it left the door open to further challenges, and so did nothing to break up the litigation logjam that has resulted in a de facto moratorium on executions in North Carolina. Continue reading →
In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court held that a sentencing regime that makes life without parole mandatory for a murder committed by a defendant under the age of 18 is unconstitutional. The rule applies retroactively. Montgomery v. Louisiana, 577 U.S. __, 136 S. Ct. 718 (2016). North Carolina amended its statutes to comply with the ruling in 2012, enacting G.S. 15A-1340.19A through -1340.19D to create an option to sentence certain young defendants to life with the possibility of parole after 25 years. Today’s post considers where we are after a half-decade under the new regime. Continue reading →
The Supreme Court held Monday that the rule from Miller v. Alabama, 567 U.S. __ (2012), applies retroactively. In Miller, the Court held that a sentencing regime that makes life without parole mandatory for a murder committed by a defendant under the age of 18 is cruel and unusual punishment. In Montgomery v. Louisiana, 577 U.S. __ (2016), the Court said that rule likewise applies to defendants whose cases were final before Miller was decided on June 25, 2012. Continue reading →
Resentencing on Eighth Amendment Grounds
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.
Yesterday, the United States Supreme Court decided Hall v. Florida, a case about the death penalty and intellectual disability. It’s an important case with implications for North Carolina.
Background. In Atkins v. Virginia, 536 U.S. 304 (2002), the Court prohibited the imposition of the death penalty on mentally retarded defendants. The Court indicated that it would leave the details of the prohibition to the states, but suggested in a footnote that states should “generally conform to the clinical definitions” of mental retardation when deciding which defendants are eligible for capital punishment.
Since Atkins, the term “mental retardation” has given way to “intellectual disability.” Generally, the condition is present when, prior to age 18, an individual manifests both (1) significantly below average intellectual functioning, generally indicated by low IQ score, and (2) significant limitations in “adaptive functioning,” i.e., difficulty with everyday activities. Different states have adopted slightly different formulations of the condition, and defense attorneys have challenged the most restrictive definitions as inconsistent with Atkins and with accepted clinical practice.
Facts and procedural history of Hall. In 1978, the defendant and an accomplice raped and murdered a young woman and killed a law enforcement officer. The defendant was sentenced to death. After Atkins, the defendant alleged that his intellectual disability rendered him ineligible for execution. He offered evidence of an IQ score of 71 (and other scores, less relevant here but discussed in the Court’s opinion), as well as evidence of difficulty in adaptive functioning. The Florida Supreme Court ruled that an IQ score of 70 or below was indispensable to a claim of intellectual disability under the state’s statute, and that such a hard cutoff was constitutional. The United States Supreme Court agreed to review the case.
The majority opinion. The Court reversed, 5-4. Justice Kennedy wrote the majority opinion. He reviewed the medical community’s current approach to intellectual disability. Prominent sources such as the DSM-V allow for a diagnosis of intellectual disability even when a person’s IQ is above 70, if the person has sufficient difficulty in adaptive functioning. Further, medical experts generally view an IQ score as a range, rather than a precise figure, given the inherent measurement error in IQ tests. Justice Kennedy wrote that “[a] score of 71, for instance, is generally considered to reflect a range between 66 and 76 with 95% confidence.”
Justice Kennedy then turned to state laws, finding that “at most nine States” impose a strict cutoff like Florida’s. He reasoned that the remaining states either do not employ the death penalty or define intellectual disability more flexibly. Further, Justice Kennedy stated that the trend since Atkins has been away from a strict IQ cutoff. He viewed these facts as evidence of an emerging consensus against the use of a strict cutoff.
Finally, acknowledging that Atkins promised to give the states the power to implement its mandate, Justice Kennedy wrote that the states’ discretion was not unfettered and that Florida had overstepped its authority by adopting and unreasonably restrictive test. Ultimately, the Court concluded, “[i]ntellectual disability is a condition, not a number. . . [and] when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.”
The dissent. Justice Alito wrote the dissent for the Court’s four most conservative Justices. First, he tallied the states differently than Justice Kennedy, finding that among death penalty states, about equal numbers allow consideration of measurement error in IQ tests; do not allow it; and have not addressed the issue. Thus, he saw no consensus among the states. Second, he argued that the views of “a small professional elite” – that is, the medical community – do not necessarily reflect the views of society as a whole and should not be viewed as dispositive on the Eighth Amendment issue. Third, he foresaw practical difficulties with depending on mental health professionals’ views when interpreting the Eighth Amendment: what happens if the professionals’ definition of intellectual disability changes in the future, as it has done in the past? What if the professionals disagree with one another about the proper definition? Fourth, and finally, even assuming that the medical community’s views are authoritative, Justice Alito suggested that Justice Kennedy misunderstood measurement error and had confused the two prongs of the clinical definition of intellectual disability.
Effect on North Carolina. North Carolina’s mental retardation statute is G.S. 15A-2005. It defines “significantly subaverage general intellectual functioning” as “[a]n intelligence quotient of 70 or below.” Such language is consistent with the idea of a strict cutoff. Justice Kennedy observed that “Arizona, Delaware, Kansas, North Carolina, and Washington have statutes which could be interpreted to provide a bright-line cutoff leading to the same result that Florida mandates in its cases.” However, Justice Kennedy also noted that some states’ courts have interpreted apparently strict cutoffs to allow consideration of measurement error. Our state supreme court hasn’t considered the issue. The closest it seems to have come is in State v. Locklear, 363 N.C. 438 (2009), where it simply recited the statute in the course of a discussion of the procedural requirements for determining mental retardation.
Perhaps our courts will interpret G.S. 15A-2005 in a way that is consistent with Hall. Even if they don’t find the statute amenable to such an interpretation, of course, Hall trumps the statute and capital defendants must be given the requisite leeway regarding IQ scores. The General Assembly could also weigh in, revising the statute in accordance with its understanding of Hall.
If you have additional or different thoughts about Hall and the litigation of intellectual disability claims under it, please send me an email or post a comment.
Miller Retroactivity: Where Are We?
Almost two years after the United States Supreme Court decided Miller v. Alabama, the question of whether the case applies retroactively to convictions that became final before it was decided continues to be a thorny one for the nation’s courts. Miller held that under the Eighth Amendment a sentencing scheme that mandates life without parole for defendants less than eighteen years old at the time of their crimes is unconstitutional. Miller of course applies to all cases that were pending when it was decided as well as to all future cases. The question of retroactivity is whether the Miller rule applies to cases that became final before the decision was handed down. And that’s not just a theoretical question. After Miller was decided many defendants with old convictions filed post-conviction motions, challenging their sentences under the Eighth Amendment. See, e.g., Diatchenko v. Dist. Attorney for Suffolk Dist., 466 Mass. 655 (2013) (when Miller was decided–thirty years after the defendant’s conviction became final–the defendant filed a post-conviction motion challenging his sentence).
In a nutshell, here’s how the retroactivity issue plays out. In the federal courts, the question of retroactivity is decided under what’s called the Teague test (so named for the seminal U.S. Supreme Court case). Under the Teague test, new constitutional rules are presumed to apply prospectively only, unless one of two exceptions applies. First, if the rule is substantive, it applies retroactively. And second, if the rule is procedural and it constitutes a watershed rule of criminal procedure, it applies retroactively. The United States Supreme Court had never held any rule to be a watershed rule of criminal procedure. As a result, the focus of retroactivity analysis typically is on whether a rule is substantive or procedural. Teague doesn’t limit the authority of the state courts to give broader effect to new federal rules in their own post-conviction proceedings than is required by the Teague test. Danforth v. Minnesota, 552 U.S. 264 (2008). Put simply, the states are free to adopt their own more permissive rules regarding the retroactive application of new federal constitutional rules. North Carolina, like many states, however, applies the Teague test to determine whether new federal constitutional rules apply retroactively in state post-conviction proceedings. This is admittedly a brief summary of a complicated area of the law. If you want more detail about retroactivity in general, I’ve provided it in a paper here—with many case citations.
So back to Miller. The question of Miller’s retroactive application to convictions that became final before it was decided has split the nation’s high courts. To date, three state supreme courts have held that Miller is not retroactive. They include:
- Com. v. Cunningham, 81 A.3d 1 (Pa. 2013).
- Chambers v. State, 831 N.W.2d 311 (Minn. 2013).
- State v. Tate, 130 So. 3d 829 (La. 2013), reh’g denied (Jan. 27, 2014).
Each of these cases applies the same reasoning: Under Teague, Miller is a procedural rule that doesn’t qualify as a watershed rule of criminal procedure. See also In re Morgan, 713 F.3d 1365 (11th Cir. 2013) (holding, in the context of deciding whether the petitioner should be granted permission to file a successive post-conviction petition, that Miller is a procedural rule; admittedly a different analysis but one with very clear Teague overtones).
On the other side are five high court decisions, all finding that Miller is a new substantive rule. They include:
- People v. Davis, __ Ill.__ (Mar. 20, 2014) (available online here).
- State v. Mantich, 287 Neb. 320 (2014).
- Diatchenko v. Dist. Attorney for Suffolk Dist., 466 Mass. 655, 675 (2013).
- State v. Ragland, 836 N.W.2d 107, 122 (Iowa 2013).
- Jones v. State, 122 So. 3d 698 (Miss. 2013), reh’g denied (Sept. 26, 2013).
Additionally, a number of state intermediate appellate courts and lower federal courts have decided the issue. By the looks of it, the issue may be ripe for consideration by the U.S. Supreme Court.
Last session, the General Assembly added a new subsection to the principal pretrial release statute, G.S. 15A-534. The new provision took effect on December 1, 2013, and has proven to be extremely frustrating to magistrates. It also raises some legal issues. The provision states:
When conditions of pretrial release are being determined for a defendant who is charged with an offense and the defendant is currently on pretrial release for a prior offense, the judicial official shall require the execution of a secured appearance bond in an amount at least double the amount of the most recent previous secured or unsecured bond for the charges or, if no bond has yet been required for the charges, in the amount of at least one thousand dollars ($1,000).
Purpose of the provision. The apparent purpose of the provision is to address the problem of defendants who commit new crimes while on pretrial release. Another section of the same bill authorizes the denial of release for defendants who, while on pretrial release for a firearms offense, are charged with a new firearms offense. S.L. 2013-298 (adding new G.S. 15A-533(f)). There’s an intuitive appeal to the idea that if the original release conditions weren’t enough to prevent the defendant from engaging in criminal activity, then more stringent conditions should be imposed.
Determining the “amount of the most recent . . . bond.” A practical problem with the new rule is that it may be difficult for a magistrate to determine what the defendant’s “most recent . . . bond” is. Imagine that Dan Defendant was arrested previously and charged with common law robbery. A $50,000 secured bond was imposed by the magistrate in that case. The release order reflecting that bond is stored in NCAWARE, and the bond amount may also be entered in ACIS and reflected in CJLEADS. (Each of these acronyms represents a criminal justice-related computer system to which magistrates have access.) If Dan is arrested today and charged with possession of cocaine, does the statute require a $100,000 secured bond? Not necessarily, because Dan’s bond on the robbery charge may have been reduced by a judge at a bond hearing, and the statute requires a bond of at least twice the “most recent . . . bond.” The problem is that the practice across the state is inconsistent regarding entering bond reductions into the various computer systems. Some districts update the computers and some don’t, meaning that a magistrate can’t always determine Dan’s most recent bond by checking the computers.
As the AOC notes in this memo, magistrates may be able to address this problem during business hours by calling the clerk’s office to confirm the most recent bond, but that won’t work when Dan is arrested at 2 a.m. Even during the workday, it may be difficult to get a timely response from the clerk’s office on an inquiry of this nature. Another option may be to contact the jail in the county in which Dan was charged with robbery as the jail may have updated release information. But in some cases, a magistrate will be unable to access any information beyond what the computer systems contain. Based on several recent conversations with magistrates, my impression is that some magistrates will impose twice what is reflected in the computer system while others will determine that they have insufficient information with which to apply the new rule and so will set release conditions without regard to the statute. I can’t criticize either approach.
It’s worth noting that this problem becomes even more severe when the defendant has multiple pending charges in multiple districts. Only the “most recent” bond is relevant under the new statute, but it may be difficult to determine which case file contains the most recent release order.
Eighth Amendment concerns. In some instances, the new statute requires a secured bond far beyond what a magistrate would normally impose. Suppose that Donna Defendant is arrested for, and charged with, trafficking in cocaine. With the assistance of a bondsman, Donna posts a $100,000 secured bond. She stays out of trouble and shows up for court. Three months later, Donna gets in a shoving match with her cousin in a parking lot outside a bar and is arrested for misdemeanor simple affray. The magistrate normally would release Donna on a written promise to appear or perhaps a small unsecured bond. But the new statute requires the magistrate to impose a $200,000 secured bond for the affray. Does this run afoul of the Eighth Amendment’s prohibition on excessive bail?
It might. There’s not much case law interpreting the Eighth Amendment, but what there is generally suggests that there should be a relationship between the bond amount and the extent to which the defendant is a flight risk or a danger to the community. Stack v. Boyle, 342 U.S. 1 (1951) (bail is excessive if it exceeds the amount “reasonably calculated” to ensure the defendant’s appearance). Under the circumstances, $200,000 appears to be grossly disproportionate to the state’s interest in the misdemeanor affray charge, and under the Supremacy Clause of the Constitution, the Eighth Amendment trumps any conflicting state statute.
This is an issue about which magistrates may wish to confer with their chief district court judges. The judges may be able to provide more specific guidance about whether and when constitutional concerns warrant departing from the statute. For example, a judge might advise that magistrates disregard the statute when it would call for a bond more than five times higher than the bond recommended in the district’s bond policy. In fact, some guidance on this issue could be incorporated into the bond policy that must be promulgated by the senior resident superior court judge under G.S. 15A-535.
Another practical solution is to ensure that defendants who receive unusually high bonds as a result of the statute appear before a judge quickly. In some districts, misdemeanor defendants do not automatically receive a first appearance in district court in the day or two after arrest – their cases are simply set for the arresting officer’s next court date. But when a magistrate imposes an exceptionally high bond under the doubling statute, it may make sense to set the defendant’s case for the next session of district court so that a judge can review and adjust the bond. The new statute may not apply beyond the original determination of bond by a magistrate, but even if it does, the judge will be able to address any constitutional concerns raised by the bond.
Future of the statute. I have been asked several times whether the General Assembly will revise the statute in light of the difficulties it has created. I don’t know. I have heard some speculation that the statute could be revised so that it would apply only when the previous charge and the current charge involve similar offenses. If that happens, it would likely alleviate the constitutional problem but would not solve the practical difficulty magistrates face in trying to determine the most recent bond imposed on the defendant. If the statute remains in place, the court system may need to alter its record-keeping practices to ensure that current bond amounts are reflected in a computer system to which magistrates have access.
Miller v. Alabama
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.
Graham v. Florida
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.