Arizona ignores SCOTUS on JLWOP

The U.S. Supreme Court has twice rebuked the Arizona Supreme Court for defying its precedents in capital cases, reported The New York Times.

A third ruling from the state court last year seemed to run headlong into another Supreme Court precedent. It said juvenile offenders could be sentenced to die in prison under a state law that did not allow for the possibility of parole.

That decision gave rise to a kind of judicial déjà vu, 15 law professors told the justices in a recent supporting brief.

“Once again, individuals in Arizona are forced to come to this court to vindicate firmly established constitutional rights, all because Arizona refuses to follow precedent,” the professors wrote, urging the court to hear a juvenile offender’s appeal. “This time, absent intervention, individuals sentenced to mandatory life without parole for crimes committed as juveniles will continue serving unconstitutional sentences.”

In 2012, in Miller v. Alabama, the Supreme Court rejected such mandatory sentences for youths who committed murders before they turned 18. To be constitutional, the court said, state laws must at least allow judges the option of sentencing juvenile offenders to life with the possibility of parole.

As recently as 2021, even after the Supreme Court shifted to the right, it reaffirmed the core principle that “an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.”

The new case involves Lonnie Bassett, who was convicted of two murders committed when he was 16. When he was sentenced in 2006, Arizona law did not give the judge the option of sentencing him to anything but life in prison without the possibility of parole.

In a unanimous opinion last year, the Arizona Supreme Court did not dispute that. But it said an idiosyncratic feature of the state law, allowing judges to choose between “natural life” without the possibility of release in any fashion and life without parole but with the theoretical possibility of clemency from the governor, rendered it constitutional.

Rejecting the usual understanding of the governing precedent, the court said, “Miller and its progeny do not specifically require the availability of parole when sentencing a juvenile offender.”

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America's obsession with life in prison

The Sentencing Project: 

Before America’s era of mass incarceration took hold in the early 1970s, the number of individuals in prison was less than 200,000. Today, it’s 1.4 million; and more than 200,000 people are serving life sentences – one out of every seven in prison. More people are sentenced to life in prison in America than there were people in prison serving any sentence in 1970.

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Mangino's column appears in book 'Juvenile Law'

Read Juvenile Law a book edited by Heidi Watkins published by Greenhaven Publishing LLC with a chapter exploring a column I wrote on juvenile life without parole for The Pennsylvania Law Weekly. 

To read the Chapter CLICK HERE

MCN/USA TODAY Network: Juvenile life without parole both a tragedy and calamity

Matthew T. Mangino
MCN/USA TODAY Network
April 30, 2021

In July 2003, 52-year-old Cole Cannon was beaten with a baseball bat and left to die in his Lawrence County, Alabama mobile home set on fire by his killers.

Evan Miller, a 14-year-old, along with an accomplice, was charged. Miller went to trial and was convicted of murder and sentenced to a mandatory term of life imprison without the possibility of parole.

Miller filed an appeal, arguing that sentencing a 14-year-old to life without the possibility of parole constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.

In 2012, the U.S. Supreme Court agreed. Justice Elena Kagan, writing for the majority in Miller v. Alabama in what would become a landmark decision wrote, “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features - among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him - and from which he cannot usually extricate himself - no matter how brutal or dysfunctional.”

Miller’s name became synonymous with “getting a second chance.” In 2016, the Supreme Court determined that Miller v. Alabama must be applied retroactively. The decision, a nationwide precedent-setting ruling, affected about 2,100 inmates nationwide who were juveniles when they killed.

Evan Miller will not be one of the inmates given a second chance from the decision bearing his name. This week, Lawrence County Circuit Judge Mark Craig resentenced Miller to life without parole.

According to AL.com, Judge Craig said he considered Miller’s “past exposure to violence; a history that he and two siblings were abused, beaten, and whipped; his use of drugs; and his mental health history, that included multiple suicide attempts - one attempt as early as age of 5 or 6 years old.”

The judge continued, “The crime is why we are here. We’re not here because Mr. Miller suffered abuse at the hands of his father.”

Ironically, Miller’s fate is very similar to a defendant in another 21st-century landmark criminal decision handed down by the U.S. Supreme Court.

In 2002, the U.S. Supreme Court, in a decision that bears the name Atkins v. Virginia, banned the execution of the mentally disabled. In Atkins the Supreme Court failed to define mental disability. That decision was left to individual states.

As a result of the Atkins decision, states went about drafting legislation and courts began crafting individualized methods for determining mental disability. Some states decided the issue after conviction; some states made the determination before trial - but more importantly, states employed different methods for defining the same thing. Daryl Atkins’ case was sent back to Virginia to determine if he was mentally disabled. Like Evan Miller, the case named for Daryl Atkins did not result in him getting a second chance. He was resentenced to death. Atkins was later removed from death row for completely unrelated reasons and is now serving a life sentence.

In 2016, when the high court made the Miller decision retroactive the court also ruled that the severest punishment must be reserved “for the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”

Prosecutors had argued that Miller’s crime revealed he is “incorrigible and deserving of a sentence of life without the possibility of parole.”

Just five days before Evan Miller was resentenced, the U.S. Supreme Court, in an opinion written by Justice Brett Kavanaugh, ruled 6-3 that judges did not have to make a separate factual finding of permanent “incorrigibility” before resentencing a juvenile killer to life without parole. Effectively overruling a precedent set only five years ago.

To paraphrase 19th-century British Prime Minister Benjamin Disraeli, the decision to resentence Miller to life without parole is a tragedy; overruling a five-year-old precedent requiring a finding of incorrigibility is a calamity.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

To visit the column CLICK HERE

Evan Miller of 'Miller v. Alabama' fame will spend the rest of his life in prison

Evan Miller, the Alabama prisoner whose plea before the U.S. Supreme Court gave hope to others across the nation of one day getting paroled for murders they committed as juveniles, won’t get that chance himself.

Lawrence County Circuit Judge Mark Craig on Tuesday afternoon re-sentenced Miller to life without parole for his capital murder conviction in the 2003 brutal slaying of Cole Cannon. Miller was 14 years old at the time, according to AL.Com. The hearing was held via Zoom with Miller appearing remotely from prison due to COVID-19 restrictions.

In resentencing him to life without parole, the judge said he did consider Miller’s past exposure to violence; a history that he and two siblings were abused, beaten, and whipped; his use of drugs; and his mental health history, that included multiple suicide attempts - one attempt early as age of 5 or 6 years old.

Miller was 14 at the time of Cannon’s death in 2003 and spent several year in jail awaiting trial. His attorneys have said he is the youngest child ever sentenced to life without parole in the state of Alabama. He is represented in his appeals by the Montgomery-based Equal Justice Initiative.

In 2005 the U.S. Supreme Court ruled that juvenile killers can’t be sentenced to death. That left many states, including Alabama, with only one option for sentencing juveniles convicted of capital murder - life with no chance at parole.

Because that sentence was in essence automatic - or mandatory - for juveniles convicted of capital murder, there was no need for a sentencing hearing to reveal any mitigating factors, such as age and maturity of the defendant.

But the U.S. Supreme Court in 2012 ordered Miller be re-sentenced and in separate case in 2016 ruled it retroactively applied to all inmates in similar circumstances - precedent-setting rulings affecting about 2,000 inmates nationwide who were juveniles when they killed.

Craig held a hearing in March 2017 to determine whether Miller should again be sentenced to life without parole or get a chance at one day of being paroled. But the judge did not issue a ruling at that time.

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Supreme Court pulls back on juvenile life without parole

The US Supreme Court in Jones v. Mississippi pulled back on a trend of the court showing compassion for juvenile offenders.

The court ruled when sentencing juvenile defendants to life imprisonment without the possibility of parole, judges need not make a separate factual finding concerning the defendant’s youth, reported Jurist. 

The challenge came from Brett Jones, who was convicted in 2004 of killing his grandfather at age 15. Jones argued that under two of the court’s recent decisions, 2012’s Miller v. Alabama and 2016’s Montgomery v. Louisiana, judges could only sentence juvenile defendants to life imprisonment if they made a separate factual finding that the defendant could not be rehabilitated.

The court’s six conservative justices disagreed. In the opinion authored by Justice Brett Kavanaugh, the majority held that Miller and Montgomery imposed no such requirement. Instead, under Miller, a sentencing judge must only “consider youth as a mitigating factor when deciding whether to impose a life-without-parole sentence.” Montgomery only held that Miller “applied retroactively on collateral review.” It did not impose any new requirements. If the court had intended to require “a factual finding of permanent incorrigibility” it would have “could have” and “would have said so,” but it did not.

The court also declined to impose a new rule requiring judges to find juvenile defendants incorrigible before sentencing them to life imprisonment, because “it would be all but impossible for a sentencer to avoid considering” youth under the current rule. Kavanaugh also noted that the Eighth Amendment had not been violated because Jones’s life-sentence “was not mandatory and the trial judge had discretion to impose a lesser punishment in light of Jones’s youth.”

In her dissenting opinion joined by Justices Elena Kagan and Stephen Breyer, Justice Sonia Sotomayor stated that the majority opinion “twists precedent” and “distorts Miller and Montgomery beyond recognition.” While Miller does not “require sentencers to invoke any magic words,” sentencing judges must still decide whether the defendant is “one of those rare children whose crimes reflect irreparable corruption.” Even if the court had “doubts” about that rule, they should have provided “special justification” before overruling Miller and Montgomery, which they failed to do:

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MCN/USA TODAY NETWORK: The time is right to fix punishment for felony murder

Matthew T. Mangino
MCN/USA TODAY NETWORK
February 19, 2021            

           Pennsylvania has not carried out an execution in 22 years.  More than 58 years have passed since the last prisoner in the Commonwealth was executed involuntarily.

            Although Pennsylvania might not be carrying out executions—Governor Tom Wolf has declared a moratorium on executions—Pennsylvania has thousands of de facto death sentences. There are about 5,200 state prisoners serving what has been referred to as “death-by-incarceration.”

            What is death-by-incarceration? Offenders condemned to life in prison without the possibility of parole. 

           Under Pennsylvania’s sentencing scheme, offenders—other than lifers—are sentenced to a minimum and a maximum term of sentence.  The maximum must be at least twice the minimum.    

            In Pennsylvania, once an inmate has served her minimum sentence she is eligible for parole.  Release from prison is determined by the parole board.  Once released the offender is supervised on parole until the expiration of her maximum sentence. 

            A life sentence in Pennsylvania has no minimum—there is no opportunity for parole—life means life in Pennsylvania. 

            There isn’t much sympathy for an offender who has been sentenced to life without parole for killing another human being.  However, in Pennsylvania more than 20 percent of lifers didn’t kill anyone.  Those offenders were convicted of second-degree murder—felony murder. 

             Felony murder is a statutory crime in Pennsylvania promulgated at 25 Pa.C.S.A. 2502 (b) providing “[C]riminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.”      The law in Pennsylvania is clear, if a death occurs during the commission of a felony, the death is considered murder and anybody who participated in the felony is equally responsible for the murder, regardless of whether they had any criminal intent to harm or cause death.

               The concept of felony murder can produce bizarre outcomes.  For instance, two teens go into a convenience store unarmed. They pretend to have guns and ask the store owner to turn over the cash. The owner pulls a gun and kills one of the would-be robbers.  The surviving robber can be convicted of Second Degree Murder and sentenced to life in prison, even though he had no intent to kill and no means to kill.

            Pennsylvania lawmakers have tried to provide hope for those serving life sentences. A recent proposal would have allowed lifers a chance at parole after serving 35 years on a first-degree murder conviction and 25 years on second-degree murder.  The proposal never made it to the floor for a vote.

             Now a lawsuit has been filed on behalf of six people convicted in their late teens of “felony murder,” arguing that prohibiting parole consideration for felony murder is cruel and unconstitutional under Pennsylvania law. Article I, Section 13 of the Pennsylvania Constitution prohibits “cruel punishment.” Pennsylvania’s constitutional provision predates the Eighth Amendment to the U.S. Constitution.

           According to the lawsuit, the plaintiffs are three women and three men who have served between 23 and 47 years in Pennsylvania prisons. Each was sentenced to life after a felony murder conviction. None committed or intended to commit any killing in the course of the crime.

             The Pennsylvania Board of Probation and Parole has denied the plaintiffs parole consideration through 61 Pa.C.S.A. 6137(a) that prohibits individuals serving life sentences from parole eligibility. The plaintiffs seek to show the parole statute is “grossly disproportionate to any legitimate penological interest as applied to individuals who did not take a life or intend to take a life, and must be struck down.” 

             With essentially no death penalty in Pennsylvania—and what appears to be the slow undoing of the death penalty nationwide—it is ridiculous to impose the same sentence of life in prison without parole on an individual who commits planned premediated murder and someone who is along for the ride.  The legislature must act to provide a sense of hope for those serving a felony murder life sentence and provide the option of parole for those sentenced in the future.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. in New Castle, PA. He is the author of The Executioner’s Toll, 2010. His weekly syndicated column is distributed by Gannett. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

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Joe Ligon longest serving juvenile lifer released from prison

Joe Ligon has been released from a Pennsylvania prison after more than 68 years, as the oldest and longest-serving juvenile lifer in the country. He’s been imprisoned since 1953, when he was just 15 years old, reported the Philadelphia Inquirer.

Leaving the State Correctional Institution Phoenix in Montgomery County, his white hair peeking out below a prison-issue hat, Ligon was accompanied by a dozen large file boxes. That’s about 10 more boxes than regulations normally permit.

“I’m a special guy,” Ligon explained.

“I guess you accumulate a lot of stuff in 68 years,” said Bradley Bridge, a lawyer with the Defender Association of Philadelphia who’s represented Ligon since 2006. Having taken on the mission of getting Ligon home — first legally, then logistically — he had to scramble to fit the materials into his car, commandeering a reporter’s trunk for the overflow.

Ligon, now 82, received his life term for taking part in a spree of robbery and assaults in which two people died. Ligon admits participating in the crime with a group of drunk teens, but denies killing anyone.

After the U.S. Supreme Court ruled that automatic life terms for kids are cruel and unusual, he was one of more than 500 Pennsylvania prisoners all resentenced to terms contingent on lifetime parole.

But Ligon, resentenced to 35 years to life in 2017, rejected the very idea of parole after nearly seven decades in prison.

“I like to be free,” he said. “With parole, you got to see the parole people every so often. You can’t leave the city without permission from parole. That’s part of freedom for me.”

Other prisoners tried to coax him out into the free world. John Pace, a former juvenile lifer and now a re-entry coordinator for the Youth Sentencing & Reentry Project (YSRP), recalled a fruitless visit to the prison with a group of other ex-lifers. “If you want to fight, fight it when you get out,” he counseled Ligon at the time.

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Mississippi continues to sentence juveniles to life without parole

Despite a U.S. Supreme Court ruling that life without parole should be “rare” for juveniles, Mississippi continues to sentence two-thirds of these teens to die in prison, according to the Mississippi Center for Investigative Reporting.

Since that 2012 decision, eight of a dozen Mississippi juveniles convicted of capital murder have received life-without-parole sentences. All but one are Black.

“We continue to devalue Black lives,” said Mississippi Sen. John Horhn, D-Jackson. “The courts say this sentence should be seldomly used, but we’re dead set on the practice of harsh punishment that began decades ago. Elected judges tend to be hell-bent on ruining people’s lives rather than offering pathways to redemption and rehabilitation.”

In 2012, the Supreme Court ruled in Miller v. Alabama that a life-without-parole sentence should not be mandatory for juveniles. Only “permanently incorrigible” juveniles should face such punishment, justices said. Four years later, the high court made that ruling retroactive.

On Nov. 3, the U.S. Supreme Court heard arguments on whether Brett Jones, who had just turned 15 when he stabbed his grandfather to death in Mississippi, was wrongly sentenced – then resentenced after the Miller ruling — to life without parole.

Jones’ attorney, David Shapiro, told justices that many states make findings of incorrigibility before delivering such a sentence and that Mississippi should, too.

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Report analyzes recidivism rate of paroled juvenile lifers in Pennsylvania

A report released by Montclair University, Resentencing of Juvenile Lifers: The Philadelphia Experience, examined the recidivism rate of prior juvenile lifers now on parole.

In terms of risk to public safety, juvenile lifers can be considered low-impact releases. The   analyzed data from 174  releases  and  as  of  December  2019,  only 3.45 percent (n=6) have been re-arrested. Four cases were dismissed. The other two cases resulted in convictions, one for Contempt for Violation of Order of Agreement and one for Robbery, yielding a reconviction rate of 1.14 percent. The remaining 168 individuals (96.5 percent) have been living in the community for an average of 21 months (as of December 2019) without any known law enforcement contacts. In comparison, among persons convicted of homicide offenses nationally, an estimated 30 percent are rearrested within two years of release, a rate that is 8.72 times higher than that of juvenile lifers released in Philadelphia.

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GateHouse: Supreme Court takes another look at juvenile life without parole

Matthew T. Mangino

GateHouse Media

March 13, 2020

During the summer of 2004, 15-year-old Brett Jones was living with his grandparents in Lee County, Mississippi. One afternoon Jones got into an argument with his grandfather and stabbed him to death.

Jones had claimed he acted in self-defense. Prosecutors argued that Jones was an angry young man who killed his 67-year-old grandfather by deliberately stabbing him eight times, hiding his body and fleeing.

Jones was tried and convicted of first-degree murder. The court sentenced Jones to a mandatory sentence of life in prison without the possibility of parole - the only sentence available at the time.

Less than three months before the verdict in Jones’ case, the United States Supreme Court struck down the death penalty for juveniles. In Roper v. Simmons, the high court ruled that a national consensus had established the nation’s evolving standards of decency against executing juveniles.

The Supreme Court’s ruling permitted Jones to narrowly escape execution. That is not the only time a Supreme Court ruling would indirectly help Jones. Now his case is scheduled for review by the Supreme Court.

The journey that Jones has taken through the criminal justice system exemplifies the high court’s evolution as it relates to the punishment of juveniles.

In 2010, in a case out of Florida, 17-year-old Terrence Graham was convicted of a home invasion and sentenced to life in prison without the possibility of parole. A year earlier, he was convicted of burglary and attempted armed robbery.

In Graham v. Florida, the Supreme Court ruled that a juvenile can only be sentenced to life without parole if he is convicted of murder. Justice Anthony Kennedy wrote, “The concept of proportionality is central to the Eighth Amendment.” As a result of abolishing the most serious punishment - death - for juveniles, the penultimate punishment - life without parole - must now be reserved for murder.

Two years later, the high court further restricted punishment for juveniles, ruling in Miller v. Alabama that mandatory life in prison for juveniles was unconstitutional. At the time, there were about 2,500 inmates serving life sentences for murders committed as juveniles.

However, the court did not determine if the Miller decision was retroactive until 2016. Once the court ruled that all inmates sentenced to mandatory life in prison prior to Miller were entitled to be resentenced, Jones’ case came back to a Mississippi court for review.

The Mississippi Supreme Court vacated the sentence and remanded the case to the circuit court for resentencing. The circuit court conducted a hearing and found that Jones was not entitled to parole eligibility under Miller.

This week, the Supreme Court agreed to hear Jones’ appeal. The issue raised by Jones is whether a court resentencing a juvenile lifer must determine, and make a finding, that an inmate is not amenable to rehabilitation and is incorrigible. The sentencing court in Jones’s case did neither.

One insight into what the Supreme Court may be thinking is to look at the oral argument last fall in the case of Lee Boyd Malvo, the juvenile D.C. Beltway Sniper, whose case became moot after Virginia enacted a new law that made juveniles, who were sentenced to life in prison, eligible for parole after they had served 26 years.

According to the New York Times, several justices during the Malvo argument indicated that consideration of incorrigibility was important. Left-leaning Justice Elena Kagan said the court’s prior retroactivity decision could be boiled down to two words: “Youth matters.”

Conservative Justice Brett M. Kavanaugh said the Court’s prior rulings required judges to distinguish between “someone who’s merely immature as opposed to incorrigible.“
Will the Supreme Court come to the aid of Brett Jones yet again? Only time will tell, a decision is not anticipated for another year.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

To visit the column CLICK HERE

SCOTUS to take up another nuance of JLWOP

The Supreme Court agreed to decide whether judges must determine that juvenile offenders are incorrigible before sentencing them to die in prison, reported The New York Times. The case, involving a teenager who killed his grandfather, is the latest in a series of cases on the constitutionality of harsh punishments for youths who commit crimes before they turn 18.

The case, Jones v. Mississippi, No. 18-1259, concerns Brett Jones, who had recently turned 15 in 2004 when his grandfather discovered his girlfriend in his room. The two men argued and fought, and the youth, who had been making a sandwich, stabbed his grandfather eight times, killing him.

In 2005, Mr. Jones was convicted of murder and sentenced to life without the possibility of parole, the mandatory penalty under state law.

In 2012, in Miller v. Alabama, the Supreme Court ruled that automatic life sentences for juvenile offenders violated the Eighth Amendment’s ban on cruel and unusual punishment. The decision repeatedly criticized mandatory sentences, suggesting that only ones in which judges could take account of the defendant’s age were permissible.

In Montgomery v. Louisiana in 2016, the court made the Miller decision retroactive. In the process, it seemed to read the Miller decision to bar life without parole not only for defendants who received mandatory sentences but also “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.

After the U.S. Supreme Court’s decision in Miller, the Mississippi Supreme Court granted Mr. Jones a new sentencing hearing.

After the hearing, the trial judge resentenced Mr. Jones to life without parole. “The court did not find that Brett was permanently incorrigible, nor did it acknowledge that only permanently incorrigible juvenile homicide offenders may be sentenced to life without parole,” Mr. Jones’s lawyers told the U.S. Supreme Court in their petition seeking review. “In fact, it did not address Brett’s capacity for rehabilitation at all.”

The question of whether judges must find that juvenile offenders are incorrigible before sentencing them to die in prison has divided state supreme courts.

In his response to Mr. Jones’s petition, Jim Hood, Alabama’s attorney general, wrote that Mr. Jones had received an adequate hearing and that no specific finding of incorrigibility was required.

The Supreme Court had been set to decide the issue presented in Mr. Jones’s case in the case of Lee Malvo, the younger of the two men who terrorized the Washington region with sniper shootings in the fall of 2002.

When that case, Mathena v. Malvo, No. 18-217, was argued in October, several justices said consideration of whether juvenile offenders were incorrigible was important.

Justice Elena Kagan, who wrote the majority opinion in the Miller decision, said it and the Montgomery decision could be boiled down to two words: “Youth matters.”

“You have to consider youth,” she said, “in making these sorts of sentencing determinations.”

Justice Brett M. Kavanaugh said the two rulings required judges to distinguish between “someone who’s merely immature as opposed to incorrigible.”

The court dismissed Mr. Malvo’s appeal last month after a new Virginia law largely made the case moot.

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GateHouse: Life without parole under scrutiny

Matthew T. Mangino

GateHouse Media

December 13, 2019

Life without the possibility of parole (LWOP) is a growing concern in this country. According to the Sentencing Project, the number of LWOP sentences has quadrupled from about 12,500 in 1992 to more than 53,000 as of 2016.

The expansion of LWOP was the result of the confluence of two very different groups. The right-wing - tough-on-crime - hardliners who, beginning in the mid-1980s, declared war on drugs and violent crime and adopted harsher, mandatory sentences, including LWOP.

The second group includes the death penalty abolitionists, left leaning progressives, who adopted LWOP sentences as a logical alternative to the death penalty. As the death penalty wanes - only 22 executions expected in 2019, the fewest since 1991 - those opposed to the death penalty have now set their sights on LWOP.

The cost and morality of locking-up - forever - a wide swath of offenders has come into question.

A number of states are reviewing offenses that are subject to LWOP. In Pennsylvania, for instance, an individual convicted of driving the get-away car in a robbery, that ended in murder could be sentenced to mandatory LWOP. The driver could have had absolutely no intention of killing anyone, in fact the shop keeper could have killed his unarmed accomplice, and the driver could end up in prison for life.

According to the Baton Rouge Advocate, about 15% of Louisiana’s prison population consists of people serving life without parole, which is the highest percentage among all states. Those numbers are the result of sentencing laws enacted decades ago - including abolishing parole for all life sentences.

State lawmakers in Pennsylvania have moved toward changing their laws in recent months, but the latest proposal stalled in committee and did not come before the legislature for a vote. According to The Advocate, the proposal would allow lifers a chance at parole after serving 35 years on a first-degree murder conviction and 25 years on second-degree murder, which under Pennsylvania law refers exclusively to an unintentional killing during the commission of a felony.

In Massachusetts, there are more than a thousand men and women serving life without the possibility of parole. There is pending legislation that would require the possibility of parole and would allow all inmates currently serving life sentences to have the opportunity for a parole hearing after serving 25 years. Release would not be automatic but the parole board would take at least one look at the possibility of parole.

Former California Governor Jerry Brown signed into law a bill that bans sentencing juveniles to life without parole.

The U.S. Supreme Court has chipped away at LWOP parole for juveniles. First, the high court struck down mandatory life without parole for juveniles and later eliminated life without parole for juveniles who committed non-homicide offenses.

The United States is the only country that allows the sentence of life without parole for juveniles. California is one of 20 states and the District of Columbia who have outlawed life without the possibility of parole for juvenile offenders. There are another five states that do sentence juveniles to life without parole.

In 2012, there were only five states that banned life without parole for juveniles - the addition of California quadruples that number and shows momentum toward an emerging “national consensus” against sentencing juveniles to die in prison. This theory of a national consensus and “evolving standards of decency” are the same theories that resulted in the Supreme Court striking down the death penalty for juveniles.

Quinn Cozzens, staff attorney for the Abolitionist Law Center told The Advocate, “Mandatory life without parole reflects a judgement that somebody is irredeemable, essentially social refuse - something to be kept out of sight and out of mind.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

To visit the column CLICK HERE

Is 50 years in prison a life sentence for a juvenile?

Is 50 years in prison a de facto life sentence for juveniles convicted of first-degree murder?

That narrow, but complex question is now in the hands of the Pennsylvania Supreme Court following a short appeal hearing in Philadelphia, reported WHYY-FM.

The case centers on Michael Felder, who shot and killed Jarrett Green in 2009 after a two-on-two pick-up basketball game at Shepard Recreation Center in West Philadelphia. 

Felder was 17 years old at the time of Green’s murder. He was later given life in prison without the possibility of parole, which was the mandatory sentence for first-degree murder convictions in Pennsylvania at the time, regardless of the defendant’s age.

That changed in 2012 when the U.S. Supreme Court ruled in Miller v. Alabama that mandatory sentences of life without parole for all juveniles were unconstitutional because they violate the Eighth Amendment’s ban on cruel and unusual punishment.

“Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” wrote Justice Elena Kagan.

Then, in 2016, the nation’s high court made that decision retroactive to those sentenced before 2012.

In Pennsylvania, the landmark decision meant more than 525 state inmates who had been convicted as juveniles — including more than 300 from Philadelphia — were eligible for resentencing hearings.

A trial court judge gave Felder 50 years to life, a sentence his lawyers say still constitutes life in prison.

Felder would be nearly 70 years old if he gets out after five decades behind bars, which his lawyers argue would rob him of the opportunity to lead a “meaningful, quality life” upon release.

“The [U.S. Supreme Court] has given a definition to what meaningful means. It doesn’t mean that they come out when they’re on a gurney. It doesn’t mean that they come out with just a few years to live,” Marsha Levick, chief legal officer of Juvenile Law Center, said after Wednesday’s hearing.

Felder’s legal team maintains that 20 to 25 years in prison should be the maximum sentence for juveniles convicted of first-degree murder.

The Philadelphia District Attorney’s Office agrees that 50 years constitutes a life sentence, but argues that 40 years is a more appropriate bright line for these juveniles to become eligible for parole.

The Superior Court of Pennsylvania rejected the case, saying the U.S. Supreme Court’s decision in 2012 does not “directly apply” to Felder’s situation or other claims of de facto life sentences.

“We conclude that when a juvenile convicted of homicide has been subjected to a discretionary sentence that may approach but does not clearly exceed life expectancy, that sentence does not run afoul of [Miller v. Alabama] and therefore does not violate the Federal Constitution.” 

It could be months before the state’s high court renders a decision.

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GateHouse: A preview of the upcoming SCOTUS term

Matthew T. Mangino

GateHouse Media

August 31, 2019

You can feel it in the air. The lines are drawn, old rivals prepare for battle, and fans wait in line to get in for opening day. No, it is not the first Sunday of NFL football — it’s the approaching first day of the fall term of the United State Supreme Court (SCOTUS).

If you’re a SCOTUS fan, particularly decisions impacting the criminal justice system, this term is going to be a real treat. The justices will hear a litany of cases dealing with everything from the insanity defense to the death penalty.

First, the court will consider the insanity defense. The insanity defense is not a justification for committing a crime — like self-defense — it is an excuse for committing a crime. The defendant admits the crime, but asserts a lack of culpability based on a severe mental illness.

Several years ago, Kansas abolished the insanity defense. There are only three other states without the insanity defense.

James Kahler was charged with murder in Kansas. His attorneys argued to the jury that their client wasn’t guilty because he was unable to appreciate the difference between right and wrong when he committed murder.

Without a recognized defense for insanity, Kahler was convicted. His case has made its way to the Supreme Court where it will be argued this fall.

To get to this point, his lawyers argued that Kansas’ approach “defies a fundamental, centuries-old precept of our legal system: People cannot be punished for crimes for which they are not morally culpable.”

In a second case out of Kansas, the high court will decide whether, for purposes of an investigative stop by police under the Fourth Amendment, it is reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary.

Next, the death penalty. James McKinney was sentenced to death by a judge in Arizona. Following years of appeals, a federal appeals court ruled that the Arizona courts erred by not considering mitigating evidence during his sentencing, and ordered the state to reconsider the sentence.

Since McKinney’s first sentencing, the law changed requiring a jury, not a judge, to impose a death sentence. However, the Arizona court said because the law was different when he was first sentenced, McKinney should again be sentenced by only a judge.

McKinney is asking the Supreme Court to affirm his constitutional right to be sentenced by a jury. The court’s decision will impact a number of states since there is disagreement among the various state courts on this issue.

There is another case that has generated some interest--not only because of who is involved--but because of the potential impact on juvenile life sentences. Lee Boyd Malvo rose to infamy in 2002 when he and John Allen Mohammad went on a 21-day sniper spree that killed 10 motorists in the Washington, D.C., area.

Malvo was 17 when he committed the offenses, which led to a sentence of life without parole. After he was sentenced, the Supreme Court decided Miller v. Alabama. The court ruled in Miller that the Eighth Amendment prohibits sentencing a juvenile to a mandatory sentence of life without parole.

Virginia, where Malvo was sentenced, has argued that Malvo’s sentence of life without parole was not mandatory because Virginia law permits judges to suspend a life sentence. The Supreme Court must decide whether Miller applies to a sentencing scheme like Virginia’s that doesn’t “officially” impose a mandatory life without parole sentence.

Finally, in a case out of Louisiana, the Court will decide if the Constitution requires unanimous jury verdicts in all state criminal trials, as occurs in 49 out of 50 states?

Although Louisiana revised its state constitution to require unanimous verdicts—Oregon is now the only state that allows non-unanimous verdicts in criminal cases—the change came after Evangelisto Ramos was convicted of murder by only 10 of 12 jurors. Ramos wants the benefit of the new law.

SCOTUS, like the NFL, has a busy schedule this fall, but don’t look for any SCOTUS outcomes until after the Super Bowl.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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ABA files amicus brief with Supreme Court advocating for limits on juvenile sentencing

In an amicus brief filed Tuesday, the ABA urged the U.S. Supreme Court to recognize that juveniles’ “diminished culpability and greater prospects for reform” separate them from adults and that those whose crimes “reflect transient immaturity, rather than irreparable corruption” should not face life in prison.

The Supreme Court is considering in Mathena v. Malvo whether its decision banning mandatory sentences of life without parole for juveniles can be used to upend earlier discretionary life-without-parole sentences imposed on teenagers, reported the ABA Journal.

Lee Boyd Malvo was 17 when he and John Allen Muhammad—known as the “D.C. snipers”—killed 10 people in a series of shootings in the Washington, D.C., area in 2002. He was convicted of two counts of capital murder for shootings that occurred in Fairfax County in Virginia and given two life sentences.

Malvo was given additional sentences of life in prison in other proceedings.

The Supreme Court has since held that the Eighth Amendment limits juvenile punishments, ruling in Miller v. Alabama in 2012 that juveniles cannot receive sentences of life without parole even in homicide cases and in Montgomery v. Louisiana in 2016 that its decision in Miller applies retroactively.

The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, heard Malvo’s challenge to the life sentence imposed by Virginia and decided in 2018 that “even though Malvo’s life-without-parole sentences were fully legal when imposed, they must now be vacated because the retroactive constitutional rules for sentencing juveniles adopted subsequent to Malvo’s sentencings were not satisfied during his sentencings.”

The 4th Circuit vacated Malvo’s terms of life without parole and remanded for resentencing to determine whether he qualified as a juvenile offender who may be sentenced to life in prison because his “crimes reflect permanent incorrigibility” or whether his crimes instead “reflect the transient immaturity of youth.”

The ABA said in its brief that a ruling by the Supreme Court that weakens Miller would “undermine the rule of law” and threaten the juvenile justice reforms state legislatures and courts have adopted since the 2012 decision. Twenty-eight states and the District of Columbia do not sentence juveniles to life without parole or have since banned the practice.

“A ruling affirming the court of appeals decision below, however, would be consistent not only with the rule of law, but also with the ABA policy of supporting juvenile justice,” according to the brief. “For over 40 years, the ABA has worked to ensure appropriate protections for juvenile defendants when transferred to the adult criminal justice system and has taken positions against imposing capital punishment and life without the possibility of parole on juvenile offenders.”

After promulgating comprehensive standards for juvenile justice in 1980, the ABA adopted policies that opposed capital punishment for anyone under the age of 18 who committed a crime and affirmed its position that “children are different,” the brief says.

The ABA also filed amicus briefs in several cases concerning the juvenile justice system, including Miller and Montgomery.

Randall Mathena, the warden of Virginia’s high-security Red Onion State Prison, appealed the 4th Circuit decision in Malvo’s case to the Supreme Court. He said in the cert petition that the Supreme Court of Virginia has “adopted a diametrically opposed interpretation of Montgomery.”

“The Supreme Court of Virginia acknowledged that prohibiting discretionary life sentences for juvenile homicide offenders may be the next step in this Court’s Eighth Amendment jurisprudence, but it concluded that both Montgomery and Miller‘addressed mandatory life sentences without possibility of parole,’” he wrote.

Oral arguments in the case are scheduled for Oct. 16.

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Iowa Supreme Court: Due Process not constitutionally mandated for parole

The Iowa Supreme Court ruled in favor of the state’s parole board in a juvenile parole case on Friday.

In 2010 the US Supreme Court disallowed sentences of life without parole for juveniles convicted of non-homicide crimes in Graham v. Florida, reported Jurist.

As a result, the Iowa Supreme court decided to resentence Julio Bonilla, who had been sentenced when he was 16 to life without parole for the kidnapping and sexual assault of a pregnant teenager, to life with the possibility of parole in 2011. Beginning in 2012, Bonilla began to receive annual parole hearings. In advance of his 2016 hearing,  he filed nine motions with the Board of Parole, among them were motions for:

 (i) appointment of counsel at state expense, (ii) provision of an independent psychological evaluation at state expense, (iii) an in-person parole review hearing and interview, (iv) an opportunity to present evidence at the parole hearing, (v) access to information related to his parole review and a right to challenge the information, (vi) exclusion of all nonverifiable evidence, (vii) proper consideration of mitigation factors of youth, (viii) access to rehabilitative treatment and programming, and (ix) establishment of procedures in the event of denial of parole.

The Parole Board refused to rule on the motions explaining that “there was no motion practice in connection with annual reviews,” but made some concessions. It agreed to allow Bonilla’s counsel to provide a written statement in support of his release, to allow counsel to appear at Bonilla’s 2016 parole review, and to disclose records relevant to Bonilla’s parole, including disciplinary records, notes related to his conduct in prison, and parole release plans.

In response to the Parole Board’s refusal to rule on the motions, Bonilla, supported by the ACLU of Iowa, filed a petition in district court for judicial review, claiming that the board’s review procedures violated the US Constitution’s protection against cruel and unusual punishment and guarantee of due process and the Iowa Constitution that additionally provides a right to counsel. In March 2018, the district court denied the petition and dismissed the case, explaining that:

there is no authority compelling the concluding that the matters requested in Bonilla’s nine motions to the Board are constitutionally mandated and there is no basis on this record to conclude that the current statutory and regulatory parole system in Iowa, on its face, denies juvenile offenders a meaningful opportunity for release.

The Supreme Court of Iowa affirmed the district court but held that the requirement of a realistic and meaningful opportunity for release for juvenile offenders applies to parole proceedings. 

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Named Plaintiff in landmark SCOTUS decision denied parole

IN 1963, when Henry Montgomery was 17 years old, he killed a sheriff’s deputy in East Baton Rouge, Louisiana, reported The Marshall Project. Montgomery was sentenced to life without parole for his crime. Now 71 years old, he has been incarcerated for 54 years. Montgomery is also the named plaintiff in a 2016 landmark U.S. Supreme Court ruling that applied retroactively the Court’s 2012 precedent banning mandatory life without parole sentences for youth who committed their offense under the age of 18. The decision was the third in a series that required states to give Montgomery and 2,000 other people serving life without parole a “meaningful opportunity for release.”

Despite being newly eligible for parole because of his resentencing, last week the Louisiana Board of Parole turned down Montgomery’s application for release. As justification, members of the board cited Montgomery’s short list of official classes completed during his time in prison. It didn’t acknowledge, however, that he was excluded from such programming for the first 30 years of his sentence because of his life sentence.

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Connecticut judge reduces adult's life sentence based on Miller v. Alabama

Latin King Luis Noel Cruz put two bullets into the head of a potential witness, then held down a perceived snitch as a fellow gang-banger fired four shots into him.

A quarter-century later, the pain caused by that double murder hasn’t changed. But something else has: How society sentences the teenagers who perpetrate such crimes.

U.S. District Court Judge Janet Hall, a Clinton appointee, made that difference clear on Tuesday morning as she considered resentencing Cruz, who’d been put away for life without parole for the murders of the two New Haveners, based on the U.S. Supreme Court’s recent guidance on juvenile offenders, reported the New Haven Independent.

During a three-hour hearing in the Church Street courthouse, Judge Hall recounted Cruz’s childhood on the mean streets of Bridgeport, heard devastating testimony from the victim Tyler White’s New Haven family about how the murders broke them, and questioned a social worker about whether Cruz had truly changed.

Cruz also spoke up for himself.

“I can confidently tell everyone I’m definitely not that stupid, close-minded kid who hurt so many people with my actions,” he said, as he testified that he planned to work with at-risk youth — “the not-yet victims and not-yet offenders” — if the judge would one day release him. “My hope is that will be even the smallest consolation, that others wouldn’t have to go through what I’ve put them through. This is not what I want to be known for, Your Honor.”

Weighing that evidence, Judge Hall ultimately decided to cut Cruz, now 43 years old, a break, dropping his sentence to 35 years in prison.

Judge Hall said Tuesday that she based her decision largely on the Supreme Court’s reasoning in Miller v. Alabama. In that 2012 case, the high court’s justices were deciding whether life in prison without parole was an allowable punishment for a 14-year-old who’d clubbed a man with baseball bat, then burned him alive inside his trailer.

The four liberal justices, joined by swing-vote Anthony Kennedy, ruled that sentence constituted a “cruel and unusual punishment,” in violation of the Eighth Amendment. The four conservative justices disagreed, saying the high court’s job was overstepping its duties in setting a moral standard for the country.

Since then, judges have been interpreting just who counts as a “child,” and Hall has been more willing than others to extend the high court’s reasoning to those who are over 18 years old.

Based on the latest developmental research, experts are suggesting that teenagers might be able to argue that their sentences should be reviewed all the way up to age 24.

While she didn’t want to assign a brightline for adulthood, Hall said she’d consider Cruz, who was just five months past his 18th birthday when he killed White and Diaz, close enough to a juvenile to review his lifetime sentence. She said that also fit with a general trend in sentencing, as only one 18-year-old had been given life in prison without parole in the federal system from 2010 to 2015, according to a U.S. Sentencing Commission report.

Another nearby federal judge, however, a New Yorker presiding over the trials of three murderous gang-bangers from the Bronx who were between 18 and 22 years old, has disagreed, still handing down life without parole to youngsters. That case is currently being challenged before the Second Circuit Court of Appeals.

The lawyers in Hall’s courtroom on Tuesday sparred too, arguing about how much responsibility a young adult should take for their actions, even if the teenage brain isn’t fully developed.

Was Cruz fully culpable at 18 years old when he put a gun against White’s head? Was Cruz fully culpable at 20 years old when he lied about committing the crime at his initial sentencing? Was Cruz fully culpable at 26 years old when he tried to cut ties with the Latin Kings? Was Cruz fully culpable at 43 years old when he still wouldn’t give up a childhood friend who’d been involved in the double murder?

“He was mature enough not to leave a bystander as a witness; so he decided to shoot Tyler White in the head twice,” Patricia Stolfi Collins, an assistant United States attorney, wrote in a brief. “And he was mature enough to know that the business of murder, once begun, should not be left unfinished; and so he helped chase and wrestle down Diaz, as he pled for his life, so that his accomplice could shoot him again and again.”

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Two out of three Californians support LWOP over death penalty

A new poll found that Californians, by a 2-to-1 margin, support sentencing first-degree murderers to life in prison rather than the death penalty, an indication that Gov. Gavin Newsom’s recent decision to impose a moratorium on executions may align with public sentiment against capital punishment, reported the Los Angeles Times.

The poll results could potentially revive efforts to abolish the death penalty in California, including a proposed constitutional amendment being considered in the state Legislature that could land on the 2020 ballot, and embolden Newsom to take additional action against capital punishment. The Democratic governor already is considering prohibiting any new death sentences in local criminal cases.

The Public Policy Institute of California poll found that 62% of Californians, in cases of first-degree murder, favored a penalty of life imprisonment with absolutely no possibility of parole, compared with 31% who favored death sentences. Support for the death penalty in the state has steadily declined since 2000, when Californians were evenly divided on the issue, according to the institute’s polling over that time period.

“This is a case where public opinion continues to shift, and shift support away from the death penalty,” said Mark Baldassare, the institute’s president and chief executive.

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