Wednesday Writs for 4/24

Henry Montgomery

[L1]: When he was 17 years old, Henry Montgomery killed a deputy sheriff in Alabama. He was then convicted and sentenced to life without the possibility of parole and sent to prison. That was in the early 1960s; Montgomery is 72 years old now. He has spent the last fifty years taking classes, participating in rehabilitation programs, and staying out of trouble inside the prison walls.

As he served his time, a 14 year-old Arkansas boy, Kuntrell Jackson, was present but not the trigger man when his friend shot a convenience store clerk doing a robbery. Evan Miller of Alabama, also 14, who came from an extremely troubled home, beat a neighbor with a baseball bat when the man caught him stealing his wallet, and set the man’s trailer on fire to cover the crime. The man died. Both Jackson and Miller were convicted of murder and given mandatory sentences of life without the possibility of parole. The boys appealed their respective cases, which eventually made it to the US Supreme Court in 2012 in a combined case, Miller v. Alabama, our case of the week.

The attorneys for the boys argued that the mandatory imposition of life without parole for juvenile defendants was an unconstitutional cruel and unusual punishment.  Their attorneys relied upon the 2005 decision of Roper v. Simms, in which the Court had invalidated the death penalty for juveniles, and the 2010 decision of Graham v. Florida, which held life without parole unconstitutional for minors convicted of “nonhomicide” offenses. Noted the majority opinion in Miller, “Graham likened life without parole for juveniles to the death penalty itself.” Combining that reasoning with the Roper holding that the death penalty was unconstitutional for minors, the Miller majority ruled that life without the possibility of parole was likewise unconstitutional when applied to those convicted as juveniles. The Court’s decisions in these cases cite the scientific and “common sense” knowledge that children’s brains are not fully developed, particularly in “parts of the brain involved in behavior control” (Roper). The Miller opinion acknowledged that Graham made an explicit distinction between homicide and nonhomicide crimes, based on “moral culpability and consequential harm”, but, the Court noted, none of the research on children’s brains differs from crime to crime:

Kagan, writing for the majority in Miller, found it relevant that the defendants’ cases had been moved from juvenile court to adult status, because no juvenile offense is punishable by life without parole (or, in most cases, imprisonment beyond the age of majority).  The Court’s holding was not that life without parole for juveniles is per se unconstitutional, but that its mandatory imposition was:

To recap: 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. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. … And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

The Miller decision was a 5-4 split, with the conservative faction of Alito, Scalia, Thomas, and Roberts on the opposing side. Justice Breyer wrote a concurring opinion, joined by Justice Sotomayor, in which he opined that in homicide cases, a finding should be made that a juvenile himself killed or intended to kill the victim before life without parole can be imposed. For instance, in cases of “felony murder” in which a person is charged with a death that occurs during the commission of a felony (such as the robbery in which Jackson’s accomplice pulled the trigger) and intent to kill is a murkier determination, life without parole would be impermissible, mandatory or discretionary:

…regardless of our law with respect to adults, there is no basis for imposing a sentence of life without parole upon a juvenile who did not himself kill or intend to kill. At base, the theory of transferring a defendant’s intent is premised on the idea that one engaged in a dangerous felony should understand the risk that the victim of the felony could be killed, even by a confederate.

There were three separate dissents in Miller. Chief Justice Roberts, joined by all three of the other justices in the minority, disagreed that mandatory life without parole was “cruel and unusual” as contemplated by the 8th Amendment. Roberts cited the prevalence of mandatory life-without-parole sentences for juveniles, with over 2500 people serving those sentences around the country, to illustrate that the punishment is not unusual. Alito’s dissent, joined by Scalia, criticizes the Court’s choice of these two cases, with very young offenders, when the majority of juveniles convicted of murder are “overwhelmingly” “young men who are fast approaching the legal age of adulthood. Evan Miller and Kuntrell Jackson are anomalies; much more typical are murderers like Donald Roper, who committed a brutal thrill-killing just nine months shy of his 18th birthday.” Alito also makes a “slippery slope” argument:

“It is true that, at least for now, the Court apparently permits a trial judge to make an individualized decision that a particular minor convicted of murder should be sentenced to life without parole, but do not expect this possibility to last very long. The majority goes out of its way to express the view that the imposition of a sentence of life without parole on a “child” (i.e., a murderer under the age of 18) should be uncommon. Having held in Graham that a trial judge with discretionary sentencing authority may not impose a sentence of life without parole on a minor who has committed a nonhomicide offense, the Justices in the majority may soon extend that holding to minors who commit murder. We will see.

Thomas’s dissent, also joined by Scalia, was based on, as usual, Thomas’s interpretation of the original intent of the 8th amendment, and quotes his own dissent in Graham:

As I have previously explained, “the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment—specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted.” … The clause does not contain a “proportionality principle.” … In short, it does not authorize courts to invalidate any punishment they deem disproportionate to the severity of the crime or to a particular class of offenders. Instead, the clause “leaves the unavoidably moral question of who ‘deserves’ a particular nonprohibited method of punishment to the judgment of the legislatures that authorize the penalty.”

Evan Miller and Kuntell Jackson’s cases were remanded to state court for resentencing. Jackson was given the possibility of parole, and has since been released. As of fall 2018, the latest available new reports indicate that Evan Miller has been waiting since a hearing in spring of 2017 for the the judge’s decision in his resentencing.

In the meantime, Henry Montgomery, hanging his hat on the Miller decision, went back to court asking that the prohibition against mandatory life without parole for juveniles be applied retroactively to his case. Montgomery v. Louisiana made it to SCOTUS, who in 2016 reversed the decision of the Louisiana State Supreme Court which had held that Miller was not retroactive. Montgomery’s sentence was commuted to life with the possibility of parole, after 53 years in prison. He has since seen parole board- twice. Last week, he was denied release for the second time.

[L2]: A judge presiding over the case of an accused al-Qaeda terrorism mastermind at Guantanamo Bay was simultaneously vying for a job with the DOJ as an immigration judge. Now, three years worth of pre-trial rulings will be thrown out in the matter of Abd al-Rahim Hussein Muhammad al-Nashiri, alleged orchestrater of the 2000 attack on the USS Cole.

[L4]: It’s not a suspension of your law license if you pretend not to know about it for fifteen years! thinkaboutit.gif.

[L5]: “Geofencing” is the practice of some companies to send advertisements directly to your cell phone, if your GPS shows you to be in a particular location. The makers of Roundup weed killer, currently involved in litigation alleging the product caused cancer in a married couple, has been permitted to send ads touting the chemicals’ safety directly to the cell phones of people in and around the court house.

[L6]: Of all the objectionable things people keep in their front yards- plastic flamingos, junk cars, old toilets– one would think a vegetable garden would be a positive thing. One town in Florida disagreed and ordered a family to remove theirs, prompting the state senate to step in.

[L7]: I’ve often thought that, were I to somehow land myself in jail, my status as a former criminal defense attorney would make me quite popular among my fellow inmates. I wonder how that works out for toxic tort lawyers who steal money intended for attorneys’ fees?

[L8]: I’ve linked before to stories about the DNA difficulties that arise from identical twins; a judge in Brazil trying to establish paternity ordered both of a pair of twin brothers to pay child support, when each blamed the other for fathering the child. Lest you feel bad for them, the judge found that the men “randomly and fraudulently” tricked women into sleeping with them by using each other’s names.

[L9]: In honor of it being 4/20 the other day, throwback to this pair of dumb criminals who kept their drugs and drug paraphernalia inside their Scooby-Doo lunch box. A little too on the nose, guys; I know if I were a cop, it’s the first place I’d look.

[L10]: Speaking of Scoob and the gang, if, like me, you’ve always wanted a Scooby-Doo/Law & Order crossover, you may enjoy this re-imagined Scooby intro: