2016 Fall Judges Conference - Louisiana Judicial College · PDF file2016 Fall Judges Conference ... Sentencing in the Post Miller/Montgomery World ... brought two younger friends,

LOUISIANA JUDICIAL COLLEGE 2016 Fall Judges Conference October 2-4, Westin New Orleans Canal Place

The Future of the Eighth Amendment: Sentencing in the Post Miller/Montgomery World

Justice Scott J. Crichton Supreme Court of Louisiana

Chief Judge Susan M. Chehardy 5th Circuit Court of Appeal

Douglas Nichols Director of Central Staff, Supreme Court of Louisiana

10/04/2016

Fall Judges Conference 1

THE FUTURE OF THE EIGHTH AMENDMENT:

SENTENCING IN THE POST MILLER/

MONTGOMERY WORLDLouisiana Judicial College

SCOTT J. CRICHTONASSOCIATE JUSTICELOUISIANA SUPREME COURT400 ROYAL STREETNEW ORLEANS, LA 70130PHONE: (504) 310‐[email protected]

October 4, 2016

SUSAN M. CHEHARDYCHIEF JUDGE 5TH CIRCUIT COURT OF APPEALP.O. BOX 489GRETNA, LA 70054‐0489PHONE: (504) 376‐[email protected]

DOUG NICHOLSDIRECTOR, CENTRAL STAFFLOUISIANA SUPREME COURT400 ROYAL STREETNEW ORLEANS, LA 70130PHONE: (504) 310‐[email protected]

For more than a decade, there have been significant decisions by the United States Supreme Court interpreting the “cruel and unusual punishments” element of the 8th Amendment to the U.S. Constitution.

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8th Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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8th Amendment claims were rare during the Court's first 175 years‐the clause was discussed in only nine cases prior to Robinson v. California in 1962, which is often cited as the date of its incorporation into the due process clause of the fourteenth amendment.

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In 1910, in Weems v. United States, SCOTUS first applied a proportionality requirement in the context of the 8th Amendment, stating that it is an Anglo‐American “precept of justice that punishment for crime should be graduated and proportioned to offense.”

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SCOTUS described the 8th Amendment in Weems as being “progressive, and ... not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.”

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This was the seed of SCOTUS’sdetermination later in Trop v. Dulles (1958) that this “Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

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The 8th Amendment was refined in the plurality opinion in Coker v. Georgia (1977): “these Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent.

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To this end, attention must be given to the public attitudes concerning a particular sentence history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consulted.”

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Applying that “evolving standards of decency” framework, SCOTUSfound the death penalty cannot be applied to intellectually disabled persons, Atkins v. Virginia, and persons under the age of 18 at the time of the offense, Roper v. Simmons.

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So, the initial significant developments [Roper (2005) and Atkins (2012)] involve imposition of the death penalty while other more recent cases [Graham(2010), Miller (2013) and Montgomery (2016)] involve individuals who were juveniles at the time of the commission of the offense. 11

Daryl Renard Atkins Christopher Simmons

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Atkins v Virginia, 536 U.S. 304 (2012). Atkins, an adult at the time of the commission of capital murder was convicted and sentenced to death. His IQ was 59.

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• Around midnight on August 16, 1996, following a day spent together drinking alcohol and smoking marijuana, 18‐year‐old Daryl Atkins and his accomplice, William Jones, walked to a nearby convenience store where they abducted Eric Nesbitt, an airman from nearby Langley Air Force Base. Unsatisfied with the $60 they found in his wallet, Atkins drove Nesbitt in his own vehicle to a nearby ATM and forced him to withdraw a further $200. In spite of Nesbitt's pleas, the two abductors then drove him to an isolated location, where he was shot eight times, killing him.

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In a 6‐3 decision, the Supreme Court held that “…construing and applying the 8th Amendment in the light of our evolving standards of decency, we therefore conclude that such punishment is excessive and that the constitution places a substantive restriction on the State’s power to take the life of a mentally retarded offender.” 15

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Roper v. Simmons, 543 U.S. 551 (2005).

Simmons, then age 17, announced to his friends that he was planning a burglary and that they could “get away with it because (they) were minors.”

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• In 1993 in Missouri, Christopher Simmons at the age of 17, concocted a plan to murder Shirley Crook, and brought two younger friends, Charles Benjamin and John Tessmer, into the plot. The plan was to commit burglary and murder by breaking and entering, tying up a victim, and tossing the victim off a bridge. The three met in the middle of the night; however, Tessmer dropped out of the plot. Simmons and Benjamin broke into Mrs. Crook's home, bound her hands and covered her eyes. They drove her to a state park and threw her off a bridge.

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Roper (continued)

The U.S. Supreme Court found that individuals under the age of 18 are (1) less mature and have an undeveloped sense of responsibility, (2) are vulnerable to negative influences and peer pressure, and (3) their character is not as well formed as that of an adult.

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Roper (continued)

The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.

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Roper (continued)

“Juvenile offenders cannot with reliability be classified among the worst offenders deserving capital punishment.”

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Roper (continued)

“Retribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity.”

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Roper holding:

The 8th Amendment forbids the imposition of the death penalty on persons under the age of 18 at the time of the offense.

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Graham v. Florida, 560 U.S. 48 (2010). In a 6‐3, 2010 decision, the U.S. Supreme Court held that the 8th Amendment forbids the imposition of life without parole on offenders under the age of eighteen for the commission of non‐homicide cases.

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Terrance Jamar Graham

• Terrance Jamar Graham (born January 6, 1987), along with two accomplices, attempted to rob a barbecue restaurant in Jacksonville, Florida in July 2003. Aged 16 at the time, Graham was arrested for the robbery attempt and was charged as an adult for armed burglary with assault and battery, as well as attempted armed robbery. He was sentenced to probation.

• Six months later, on December 2, 2003, Graham was arrested again for home invasion robbery. Though Graham denied involvement, he acknowledged that he was in violation of his plea agreement. In 2006, the presiding judge sentenced Graham to life in prison. Because Florida abolished parole, it became a sentence without parole.

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Graham (continued)

Seeing no reason to retract from Roper, the Court specifically found that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.”

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• After a three‐day resentencing hearing that focused on Graham’s troubled childhood and whether he, at age 25, had demonstrated capability for rehabilitation, he was resentenced to 25 years in prison and will be released in 2029 when he is 42 years old.

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Miller v. Alabama, 132 S.Ct. 2455 (2012) 5‐4 decision.

The 14 year old defendant was charged with capital felony murder and aggravated robbery; he was transferred to the adult division, tried, convicted and sentenced to mandatory life imprisonment.

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Miller (continued)

In a 5‐4 decision, the U.S. Supreme Court held that the 8th Amendment forbids mandatory sentences of life imprisonment without parole for offenders under the age of 18.

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Miller v. Alabama, Jackson v. Hobbs

Evan Miller• Evan Miller committed homicide in the act of

robbing his neighbor, Cole Cannon. Cannon had fallen asleep after he, Miller, and Colby Smith had indulged in alcohol and marijuana. Cannon awoke as Miller was replacing his (Cannon's) wallet, and Smith hit Cannon with a baseball bat. Miller took up the bat and proceeded to severely beat Cannon. Smith and Miller later returned to destroy the evidence of what they had done by setting fire to Cannon's trailer.

Kuntrell Jackson• Kuntrell Jackson was 14 when he and two

other teenagers went to a video store in Arkansas planning to rob it. He stayed outside, and one of the youths pulled a gun and killed the store clerk. Jackson was charged as an adult and given a life term with no parole.

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Miller (continued)

Relying on the precedent of Roper and Graham, the Court acknowledged that “children are constitutionally different from adults for purposes of sentencing.”

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Miller (continued)

The Court reiterated: “Because juveniles have diminished culpability and greater prospects for reform, …they are less deserving of the most severe punishments.”

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So, Miller instructs us that:

• Certain punishments are disproportionate when applied to juveniles.

• Children are constitutionally different from adults for purposes of sentencing.

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Miller (continued)

• Differences resulting from children’s “diminished culpability and greater prospects for reform.”

• The case is not as strong with a minor as an adult.

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Miller (continued)

• Characteristics rendering juveniles less culpable than adults include:

–transient immaturity

–Recklessness

– impetuosity

–the distinctive attributes of youth 34

Miller requires sentencing courts to consider a child’s “diminished culpability and heightened capacity for change”.

However: Miller did not foreclose a judge’s ability to impose life without parole of an individual who committed a homicide while a juvenile.

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Miller (continued)

The Court recognized that a judge might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified.

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But, Millermade clear that appropriate occasions for sentencing juveniles to their harshest possible penalty will be uncommon

– those that demonstrate irretrievable depravity / irreparable corruption.

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Miller v. Alabama, Jackson v. Arkansas

• As of August 23, 2016, Evan Miller’s case remains in limbo and he awaits resentencing. The district court judge has ordered a PSI.

• Kuntrell Jackson, age 30 in July 2016, is serving a sentence of 240 months for first degree murder. He was eligible for parole in April 2015 but the Arkansas Board of Parole denied his early release.

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The legislature’s response to Miller:

In 2013, the Louisiana legislature responded to Miller by enacting La. C.Cr.P. art. 878.1. That article required that a hearing be conducted prior to sentencing to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E). 39

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In 2013, the Louisiana Supreme Court held that Millerwas not retroactively applicable in state collateral proceedings. State v. Tate, 12‐2763 (La. 11/05/13), 130 So.3d 829 (later overruled by Montgomery).

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Montgomery v. Louisiana, 577 U.S. ___ (2016).

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Montgomery v. Louisiana, 577 U.S. ___ (2016).

Montgomery was 17 years old in 1963 when he killed a deputy sheriff in East Baton Rouge Parish. His first trial resulted in a capital murder conviction and imposition of the death penalty.

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After reversal by the Louisiana Supreme Court, he was re‐tried with the jury returning a verdict of “guilty without capital murder,” which carried an automatic sentence of life without parole.

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Following the Miller decision, Montgomery sought collateral relief and prevailed at the U.S. Supreme Court, by a decision of

6‐3, (January, 2016).

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The U.S. Supreme Court held that its decision in Miller announced a new substantive constitutional rule that applied retroactively on state collateral review, thereby abrogating State v. Tate and similar rulings from other states’ courts.

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The Montgomery decision reasoned that because Miller determined that sentencing a child to life imprisonment without parole is disproportionate for all but the rare juvenile offender whose crime reflects irreparable corruption, it rendered life without parole an unconstitutional penalty for a class of defendants because of their status – that is, juvenile offenders whose crimes reflect the transient immaturity of youth. 46

State of Louisiana v. Montgomery, No. 13‐KP‐1163 (6/28/16).

On remand from the U.S Supreme Court, Montgomery’s sentence from his 1963 homicide was ordered vacated and the case was remanded to the 19th JDC for resentencing pursuant to La. C.Cr.P. art. 878.1 47

Montgomery notes the procedural vehicle to bring this collateral attack is C.Cr.P. art. 882 ‐motion to correct an illegal sentence.

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For the 304 cases involving a collateral Montgomery hearing, what evidence may be considered in the judicial determination of parole eligibility (after 35 years) or parole ineligibility? What statutes provide guidance?

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C.Cr.P. art. 878.1

Factors

Aggravating and mitigation evidence that is relevant to the charged offense or the character of the offender including…

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• facts and circumstance of the crime

• the criminal history of the offender

• the offender’s level of family support

• the offender’s social history

• other factors as the court may

deem relevant 51

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R.S. 15:574.4 (E)(1)(a)

• the offender has served 35 years

• no major disciplinary offenses in twelve consecutive months prior to hearing date

• 100 hours of pre‐release programming

• Completion of substance abuse treatment

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15:574.4(E) factors (continued)

• GED certification or high school diploma (unless deemed incapable of obtaining a GED due to a learning disability)

• low‐risk level designation by DOC

• completion of reentry program

• report prepared by one who has expertise in adolescent brain development 53

In his additional concurrence, Justice Crichton emphasized:

•parole eligibility may be denied in the rare case of “irreparable corruption” or “irretrievable depravity”

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• for those inmates in DOC for decades (or more than 5 decades in Montgomery’s case), examination of DOC disciplinary records (in my view, more than the R.S. 15:574.4(E) reference to the preceding 12 months) should be considered, reasoning that:

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Certainly, if an inmate commits serious misbehavior, or criminal offenses, as evidenced by his or her DOC disciplinary record, it is reasonable for a judge to infer that he or she is a higher risk and will likely engage in serious misbehavior, or criminal offenses, in the event of release on parole.

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• What about prison training and certification in HVAC, welding, automotive repair, plumbing, construction, horticulture or other available training? But…would that be beyond the scope of the court’s inquiry and more an issue for the parole board – if the inmate gets to that juncture?

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•input from the family of the victim

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• finally, just as La. R.S. 15:574.4(E) requires that “the panel shall render specific findings of fact in support of its decision,” so too should the district court establish a “solid and thorough record which should include an assignment of reasons as to why the trial judge has either declared or denied parole eligibility so that the appellate courts will have the ability to further examine and develop this new and important area of law.”

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Frequently Asked Questions:

1. In this hearing on the motion to correct illegal sentence, can the district attorney stipulate to an adjudication of parole eligibility (at the time allowed by law, after serving 35 years)?

Yes. Although La.C.Cr.P. art. 890.1 excludes homicides, nothing would appear to prevent a stipulation that defendant is not among the worst of offenders

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2. In the event of an adjudication by the trial judge of life with the benefit of parole eligibility, does the inmate still have to go before the parole board at the time period set forth by law?

Yes. See generally La.R.S. 15:574.4(E)

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Frequently Asked Questions:3. Can the parole board make a different

conclusion from the trial court?

Yes. The inquiries are different. The trial court determines whether an offender will be eligible for the parole or whether the possibility of parole will be foreclosed. The parole board determines whether an inmate (who is parole eligible) should be released on parole.

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4. If the court deems an inmate parole ineligible can that inmate nevertheless go before the parole board and seek release?

No, not unless the legislature acts on this issue in 2017. Of course, an adjudication of parole ineligibility is subject to appellate review.

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5. If the defendant was convicted of capital murder but spared the death penalty (presumably, in part, because of his youthful age) can that be taken into consideration?

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Yes. Article 878.1 provides a broad authorization to consider factors the trial court deems relevant. In addition, there has been an ongoing dialog between Justices Thomas and Alito, on the one hand, and Justices Ginsburg and Sotomayor, on the other, over this issue.

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For Thomas/Alito:

In cases like this, it can be argued that the original sentencing jury fulfilled the individualized sentencing requirement that Miller subsequently imposed. In these cases, the sentencer necessarily rejected the argument that the defendant's youth and immaturity called for the lesser sentence of life imprisonment without parole.

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It can therefore be argued that such a sentencer would surely have felt that the defendant's youth and immaturity did not warrant an even lighter sentence that would have allowed the petitioner to be loosed on society at some time in the future.

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In short, it can be argued that the jury that sentenced petitioner to death already engaged in the very process mandated by Miller and concluded that petitioner was not a mere “ ‘ child’ ” whose crimes reflected “ ‘unfortunate yet transient immaturity,’ ”

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For Ginsburg/Sotomayor:

When petitioners were sentenced, their youth was just one consideration among many; after Miller, we know that youth is the dispositive consideration for “all but the rarest of children.” Montgomery, 577 U.S., at ––––, 136 S.Ct., at 726. The sentencing proceedings in these cases are a product of that pre‐Miller

era. . . . 69

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Standards of decency have evolved since the time petitioners were sentenced to death. See Roper, 543 U.S., at 561, 125 S.Ct. 1183. That petitioners were once given a death sentence we now know to be constitutionally unacceptable tells us nothing about whether their current life‐without‐parole sentences are constitutionally acceptable.

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I see no shortcut: On remand, the lower courts must instead ask the difficult but essential question whether petitioners are among the very “rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”

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6. Is a capital‐style sentencing hearing required?

For the contours of the hearing required, see the Montgomery opinion on remand. But a Miller hearing is not like a capital penalty phase and does not take place before a jury.

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7. Are pre‐Miller, pre‐Montgomeryinmates likely to be considered for parole eligibility after serving 35 years, just like post‐Millerinmates pursuant to R.S. 15:574.4? Or, do C.Cr.P. art. 878.1 and R.S. 15:574.4 only apply to post‐Miller inmates?

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With the 2016 Montgomerydecisions (both the U.S. Supreme Court and Louisiana Supreme Court), it appears that the law is jurisprudentially charted (for now).

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8. Does the trial court’s adjudication of parole eligibility mean the defendant walks out of the courtroom?

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Absolutely not. Only approximately 40‐45 of the 304 inmates who immediately benefited from the Montgomery decision have served the requisite 35 years.

As of July 18, only 2 have been released: Andrew Hundley (after serving 47 years or so) and Donald Fink (not quite as long).

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9. What is the required time frame to commence a Miller/Montgomery hearing?

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Although there is no right to a speedy trial after conviction, there may be due process limitations on the time frame. Certainly, it is anticipated that the district courts will endeavor to move expeditiously.

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In about a half dozen decisions, the federal district courts have ordered that inmates receive a Miller hearing within 90/120 days or be released from custody. One federal district court ordered the Miller hearing be conducted within “a reasonable time.”

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10.Does the hearing necessarily have to be completed within that time frame?

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Unknown. The language of the federal court orders generally tracks this format: “the state trial court is ORDERED to resentence Petitioner in conformity with Miller v. Alabama, 132 S.Ct. 2455 (2012), within ninety (90) days or, in the alternative, to release him from confinement.”

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Reach of the 8th Amendment:

1. Limitations on the means of punishment. Is it permissible to impose the punishment on any crime?

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In Trop v. Dulles, in deciding that denationalization was not a permissible punishment for wartime desertion, SCOTUScommented that physical torture, like the rack, thumbscrew or drawing and quartering, may not be imposed as punishment for any crime.

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2. A proportionality requirement. Is the punishment disproportionate to a particular crime? In Weems v. United States, SCOTUS rejected the Philippine punishment of cadenatemporal (imprisonment at hard labor and in chains for 12 to 20 years followed by perpetual surveillance, civil interdiction, and permanent disqualification from participating in the political process) for the crime of falsifying an official document. Is the punishment disproportionate?

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3. Limitations on the power to define conduct as criminal. Is it permissible to impose any punishment for a particular conduct? In Robinson v. California, SCOTUS found the legislature could not punish persons merely for their “status” as narcotics addicts.

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4. Limitations on conditions ancillary to permissible punishment. In Estelle v.

Gamble, SCOTUS held that “deliberate indifference to serious medical needs of prisoners” was proscribed by the 8th

Amendment.86

5. Proportionality revisited. Is the punishment disproportionate when imposed on a class of offender? Are additional safeguards necessary to guard against the risk of disproportionate punishment? This is the most active area of 8th Amendment jurisprudence at present. 87

SPEAKER BIOS JUSTICE SCOTT J. CRICHTON is Associate Justice of the Supreme Court of Louisiana, having qualified without opposition on August 22, 2014. His ten-year term began January 1, 2015. Prior to his election to the Supreme Court, Scott served 24 years as a judge with the First Judicial District Court, presiding over 25,000 cases in both the civil and criminal divisions. Scott is a past president of the Louisiana District Judges Association; a past member of the Advisory Committee to the Supreme Court on Revision of the Judicial Canons, the Louisiana Judicial College Board of Governors, the Court Rules Committee (Rules for Louisiana District Courts and Juvenile Courts, appendices and Numbering Systems for Louisiana Family and Domestic Relations Procedures), and the Criminal Best Practices Committee. He has served numerous terms as chair or co-chair of the Shreveport Bar Association Continuing Legal Education and has served on the CLE Committee of the Louisiana State Bar Association. In 2000, by order of the Louisiana Supreme Court, Scott served as a judge pro tempore for the First Circuit Court of Appeal. Scott is certified by the National Judicial College in program design and has taught over one hundred CLE hours to lawyers and judges. He is also a graduate of the inaugural class of the Louisiana Judicial Leadership Institute. Scott now serves as co-chair of the Louisiana Judicial College as well as various other Supreme Court committees. Since 2007, Scott has presented a PowerPoint teen consequences program, Don’t Let This Be You, to more than 20,000 teenagers/parents at various high schools, churches and community groups as well as another program, Sexting, Texting and Beyond, for teenagers, parents and teachers on electronic laws and related misbehavior. He has also served on the vestry of St. Mark’s Episcopal Church in Shreveport. He received a Bachelor of Science degree in 1976 from Louisiana State University and a Juris Doctor degree in 1980 from Paul M. Hebert LSU Law Center. During the 1980s, he served as an assistant district attorney for Caddo Parish, maintained a civil practice, and served as an adjunct instructor of Business Law at LSU-Shreveport. Scott, age 62, and his wife, Susie, now live in Webster Parish and have two adult sons – one of whom is an associate in a Shreveport law firm and the other, an assistant district attorney in Orleans Parish. JUDGE SUSAN M. CHEHARDY currently serves as Chief Judge of the Louisiana 5th Circuit Court of Appeal. She received her Juris Doctorate from Loyola Law School in 1985. Upon graduation she held the position as law clerk for the late Hon. Veronica Wicker for the 85'- 86' term. In August of 1986 she was employed as an associate with the firm of Gauthier, Murphy, Chehardy, Sherman & Breslin, engaged in the practice of personal injury litigation. In 1989 she became a partner in the firm of Chehardy, Sherman, Ellis & Breslin. In 1991, she opened her own general litigation practice, Chehardy & Nielsen. In January of 1992 she was appointed by the Louisiana Supreme Court as judge pro tempore to Division C of the 24th JDC. In September of 1992 she was elected judge of Division N of the 24th JDC. She served as judge of Division N until October of 1998 when she was elected to Division D of the Fifth Circuit Court of Appeal, the first woman to be elected to that Court. She is now in her third term of office with the Fifth

Circuit, and in January of 2013, she was sworn in to her current term as the first female Chief Judge of the Louisiana Fifth Circuit Court of Appeal. Judge Chehardy is a member of the American Bar Association, the Louisiana State Bar Association, the Jefferson Bar Association, the American Judges Association, the Council of Chief Judges of the State Courts of Appeal, the Louisiana Association of Appellate Judges; the Fifth Circuit Judges Association, the Fourth and Fifth Circuit Judges Association, the Association of Women Judges and the American Judicature Society. DOUGLAS J. NICHOLS is a Deputy Judicial Administrator and the Director of Central Staff at the Louisiana Supreme Court. Central Staff assists the Justices in reviewing criminal matters. He received his J.D. in 1995 from Tulane Law School where he earned Order of the Coif. After law school, he clerked for The Honorable Steven R. Plotkin and The Honorable Catherine D. Kimball before joining Central Staff.

Documents

2016 Fall Judges Conference - Louisiana Judicial College · PDF file2016 Fall Judges Conference ... Sentencing in the Post Miller/Montgomery World ... brought two younger friends,