A high school student throws a chair in the cafeteria. The chair doesn’t hit anyone; indeed, no one is in the immediate vicinity of the chair. The student runs out of the cafeteria. Has the student committed a crime? If so, how should school officials respond?
Tag Archives: juvenile
Many years ago my colleague Janet Mason recruited me to teach about evidence issues in abuse, neglect, dependency, and termination of parental rights cases. She asked because most of the appellate law was criminal. After some grumbling, I produced a skinny 10-page paper in 2001. I’ve been adding to it ever since, and it has grown to a much longer chapter in the just-released 2017 edition of Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings in North Carolina. Although the manual is not about criminal cases, it may be helpful to those who work in the criminal courts. You can access the manual at no charge here. You can jump directly to the evidence chapter here. Continue reading →
This fall is manual season, and I am excited to announce the release of the 2017 edition of the North Carolina Juvenile Defender Manual. Like our other indigent defense manuals, this online manual can be viewed at no charge. If you’re interested in purchasing a soft-bound version of the manual, available later this month, visit this page. Continue reading →
Two months ago, the North Carolina Supreme Court in State v. Saldierna, ___ N.C. ___, 794 S.E.2d (Dec. 21, 2016), reversed the North Carolina Court of Appeals, State v. Saldierna, ___ N.C. App. ___, 775 S.E.2d 326 (2015), and ruled that a juvenile’s request to call his mother during custodial interrogation was not a clear invocation of the statutory right to consult a parent or guardian that would bar officers from conducting or continuing to conduct interrogation. This post discusses this ruling. Continue reading →
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 →
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.