SENTENCING CONSIDERATIONS FOR JUVENILES AND THE MENTALLY ILL –

EIGHTH AMENDMENT JURISPRUDENCE

August 23, 2016 By David E. Miller

Assistant Attorney General

THE EIGHTH AMENDMENT

“Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.”

U.S. Const. amend VIII.

Minnesota Constitution, Art. 1, sec. 5

Sec. 5. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.

A child is an individual under 18 years of age.*

A juvenile is a child.

*Minn. Stat. § 260B.007, subd. 3.

MENTAL RETARDATION

Mentally retarded persons by definition* have

diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses and to understand others’ reactions. A full range IQ below 70 is a defining threshold. Atkins v. Virginia (2002).

* The term mentally retarded has been changed to intellectual disability DSM-5, Diagnostic and Statistical Manual of Mental Disorders 33 (5th ed. 2013), American Psychiatric Association.

Clinical definitions of mental retardation

require not only sub-average intellectual functioning, but also significant limitations in adaptive skills.

MENTAL ILLNESS

The clinical definitions for a MENTAL

ILLNESS/MENTAL DISORDERS and the indications and manifestations of the mental illness/mental disorder are found in the DSM-5.*

*Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, American Psychiatric Association (2013).

Mental Illness means an organic disorder of the brain or a clinically significant disorder of thought, mood, perception, orientation, memory, or behavior that is detailed in a diagnostic codes list published by the Commissioner (Commissioner of Human Services), and that seriously limits a person’s capacity to function in primary aspects of daily living such as personal relations, living arrangements, work and recreation.

Minn. Stat. § 245.462, subd. 20.

(c) For purposes of case management and community support services, a “person with serious and persistent mental illness means an adult who has a mental illness and meets at least one of the following criteria:”

(1) – (7).

For Eighth Amendment Jurisprudence The

Salient Question Is:

In what circumstances and by what legal

procedures, if at all, does the criminal justice system “weigh and consider” for the purposes of mitigation of a sentence of punishment, the intellectually disabled, the mentally ill, or the juvenile offender?

Federal Case Law – U.S. Supreme Court (1978-2016)

Atkins v. Virginia (2002)

The U.S. Supreme Court in Atkins, held that

the Eighth Amendment places a substantive restriction on the State’s power to take the life of a mentally retarded offender.

Cf: Penry v. Lynaugh (1989)

“A moral and civilized society diminishes itself and its system of justice when it does not afford recognition and consideration of those limitations (referring to mental retardation) in a meaningful way.”

Atkins v. Virginia (2002)

“The basic concept underlying the Eighth Amendment is nothing less than the dignity of man . . . The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles (1958)

(Freddie) Hall v. Florida (2014)

The Supreme Court held that the Florida rule that foreclosed further exploration of a capital defendant’s intellectual disability with an IQ of greater than 70, created an unacceptable risk that persons with intellectual disability would be executed in violation of the Eighth Amendment.

Hall requires states (seeking to impose the death penalty) to provide a sentencing phase, whereby the offender, has the opportunity to present evidence of his intellectual disability, including deficits in adaptive functioning in defense of imposition of a death sentence.

Intellectual disability is a condition, not a number.

Two principles of jurisprudence in the application of the Eighth Amendment’s prohibition against cruel and unusual punishment historically have been:

First, the concept of proportionality. “It is a

precept of justice that punishment for a crime should be graduated and proportioned to the offense” (being punished).

Weems v. U.S. (1910)

And Secondly, whether the punishment is categorically cruel or unusual.

The death penalty is suitable for a “narrow category” of deserving defendants.

Significant Cases Of Note In This Vein Are:

Coker v. Georgia (1977), Capital punishment is not a suitable penalty for raping an adult woman.

Kennedy v. Louisiana (2008), Capital punishment is not a

suitable penalty for raping a child.

Enmund v. Florida (1982), Capital punishment is not a suitable penalty for a much less culpable accomplice to a murder during a robbery.

Ewing v. California (2003), A 25 year to Life Sentence for a conviction for theft under the California “three strike” law is not grossly disproportionate and therefore does not violate the Eighth Amendment prohibition against cruel and unusual punishments.

Thompson v. Oklahoma (1988)

The Eighth Amendment prohibits the

execution of a 15 year old murderer.

First question is whether a juvenile’s culpability should be measured by the same standard as that of an adult and whether the application of the death penalty to this class of offenders “measurably contributes” to the social purposes served by the death penalty.

“Particularly during the formative years of

childhood and adolescence, minors often lack the experience, perspective, and judgment expected of adults.”

“[A]dolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and think in long-range terms than adults. Moreover, youth crimes as such is not exclusively the offender’s fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America’s youth.”

Eddings v. Oklahoma (1982) Quoting, Twentieth Century Fund Task Force on Sentencing

Policy Toward Young Offenders (1978)

Scalia, dissenting, observes,

“This legislation [referring to the

Comprehensive Crime Control Act of 1984 – that lowered the age of certification of juveniles from 16 to 15] was passed in light of Justice Department testimony that many juvenile delinquents were, ‘cynical, street-wise, repeat offenders, indistinguishable, except for their age, from their adult criminal counterparts.’”

The Supreme Court further narrowed the category of death penalty eligible offenders in Roper v. Simmons (2005).

Christopher Simmons was 17 years old when he murdered Shirley Cook. He was convicted of capital murder after his 18th birthday. A Missouri jury decided the death penalty for him.

Reciting the rationale and basis from Atkins

and Thompson, the Supreme Court held that the execution of persons who were under the age of 18 at the time of the crime is prohibited by the Eighth and Fourteenth Amendment.

Reckoning back to Eddings v. Oklahoma (1982), a death penalty case for a 16 year old who killed a police officer, the Court stated that youthfulness is a mitigating factor of “great weight” that should be considered.

Harris v. Wright (1996)

Fifteen year old, Michael Harris was convicted of First Degree Murder for the murder of a store owner and sentenced to LWOR in Washington State.

He challenged his LWOR sentence as being fundamentally disproportionate because he was 15 years old and that a LWOR sentence was cruel and unusual.

The Ninth Circuit Court of Appeals in Harris, reviewed the various States’ laws relating to LWOR for juveniles.

Held: A sentence of LWOR was not

disproportionate to the offense and did not violate the Eighth Amendment prohibition against cruel and unusual punishment.

“[I]f we put mandatory life imprisonment without parole into a unique constitutional category, we’ll be hard pressed to distinguish mandatory life with parole; the latter is nearly indistinguishable from a very long, mandatory term of years; and that, in turn, is hard to distinguish from shorter terms. Youth has no obvious bearing on this problem. If we can discern no clear line for adults, neither can we for youths.”

Graham v. Florida (2010)

The Eighth Amendment prohibits the

imposition of LWOR sentence on a juvenile offender who did not commit a homicide.

Per Graham, the State must give a juvenile non-homicide offender, a meaningful opportunity to obtain his release based on a demonstrated maturity and rehabilitation.

A state is not required to guarantee eventual

freedom to a juvenile offender convicted of a non-homicide crime.

It is from the branch of Roper v. Simmons and Graham that the U.S. Supreme Court decided Miller v. Alabama (2012).

Miller v. Alabama held that sentencing schemes for automatic imposition of Life Without Release (Parole) (LWOR) – violates the Eighth Amendment’s prohibition against cruel and unusual punishment as it applies to juveniles.

Miller held that a sentence of LWOR for a juvenile offender is tantamount to a death sentence. Before a State can incarcerate a juvenile who commits a homicide for LWOR, the sentencing authority must consider the defendant’s age and circumstances of the offense.

Miller recognizes that the “distinctive attributes of youth diminish the penological justifications.” The justification for a sentence of LWOR is primarily retributive and relates to an offender’s blameworthiness. The case for retribution is not as strong with a minor as an adult.

The Court’s statement as to why “children are different” for the purposes of 8th Amendment analysis:

First, children have a lack of maturity and an undeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk taking.

Second, children are more vulnerable to negative influences and outside pressures and have limited control of their environment.

Third, a child’s character is not as well formed; his traits less fixed and his actions less likely to be evidence or irretrievable depravity.

Therefore, before imposing a sentence of LWOR for a juvenile who commits a homicide, the sentencing authority (judge or jury) must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.

The rule of Miller v. Alabama spurred post-conviction appeals for offenders who were juveniles at the time of the offense, now serving Life sentences in Minnesota; those with LWOR and those with Life with the possibility of release (2012-2015).

Montgomery v. Louisiana (2016)

The rule announced in Miller is a substantive rule of criminal law and applicable to the States. Therefore, all defendants, who as juveniles were sentenced to LWOR for homicides, are entitled to the retroactive application of Miller.

Henry Montgomery Born in 1946

Henry Montgomery was convicted of the murder of Charles Hurt, a deputy sheriff in East Baton Rouge, Louisiana in 1963. He was 17 years old at the time. He was sentenced to LWOR.*

* He had been first sentenced to death. On his re-trial, a jury returned a verdict of guilty without capital punishment.

He has been an inmate in the Louisiana Department of Corrections since his original sentence in 1964. He is now 70 years old.

Montgomery petitioned for collateral review of his sentence to correct his sentence following Miller v. Alabama. The U.S. Supreme Court granted certiorari of his case to resolve the question of whether the holding of Miller is retroactive.

From Montgomery

Miller announced a substantive rule of constitutional law.

“Like other substantive rules, Miller is

retroactive because it ‘necessarily carries a significant risk that a defendant – here, the vast majority of juvenile offenders – faces a punishment that the law cannot impose.”

The fact that life without parole could be a proportionate sentence for the latter kind of juvenile offender [those whose crimes reflect permanent incorrigibility] does not mean that all other children imprisoned under a disproportionate sentence have not suffered the deprivation of a substantive right.

To be sure, Miller’s holding has a procedural component. Miller requires a sentence to consider a juvenile’s youth and attendant characteristics before determining that life without parole is a proportionate sentence.

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.

MINNESOTA CASES & CASE LAW

Eric William Mitchell D.O.B. 04/03/1979

In November 1994 in Hutchinson, MN, Eric Mitchell, then 15 years old, killed a 19 year old store clerk during an armed robbery. Evidence showed that the clerk had offered no resistance to the robbery. Mitchell was certified as an adult, tried and convicted of First Degree Murder. He was sentenced to life imprisonment.*

Minn. Stat. § 609.106, subd. 2 and Minn. Stat. § 244.05, subd. 4

* With the possibility of parole after having served a minimum of 30 years.

In his direct appeal (Mitchell 1988), he argued that an automatic sentence of Life imprisonment for a 15 year old offender violated both the U.S. Constitution, amend. VIII and the Minnesota Constitution, Article 1, sec. 5. The trial court held a sentencing hearing pursuant to MRCP 27.04.

Justice Anderson for the court, “We have repeatedly made it clear that [t]he severity of criminal sanctions is a legislative concern. A lawmaking body is equipped to weigh the policy considerations involved and determine what sanctions, if any, serve the interests of the people it represents.”

Mitchell committed one of the most heinous crimes, murder in the first degree. As such, he was given a harsh penalty – life imprisonment for a minimum of 30 years. Therefore, we cannot say that his punishment was out of proportion to his crime.

Accordingly, we hold that such a punishment

is not cruel and unusual under the Minnesota Constitution.

Timothy Chambers D.O.B. 9/21/1978

Chambers (17 years old) killed a Rice County Deputy by driving into his squad car (set up as a roadblock) at a high rate of speed on May 13, 1996). He was tried* and convicted by a jury of Murder in the First Degree and sentenced to Life.**

* Pursuant to Minn. Stat. § 260.115, he was automatically

certified to stand trial as an adult. ** “Life” for the murder of a peace officer (Minn. Stat.

§ 609.185 (4)) was statutorily defined as LWOR per Minn. Stat. § 609.184 (2), now repealed, “the trial court shall sentence a person to life imprisonment without the possibility of release following a conviction of First-Degree Murder of a Peace Officer.”

Judge Dietzen In Chambers III (May 31, 2013) Authors The Opinion:

“The rule announced in Miller v. Alabama is a new rule of criminal constitutional procedure that is neither substantive nor a watershed rule implicating the fundamental fairness and accuracy of the criminal proceeding.

Therefore, appellant is not entitled to the retroactive benefit of the Miller rule in a postconviction proceeding.”

But see, Montgomery v. Alabama (2016). Yes, the rule of Miller is a substantive rule of criminal procedure thereby extending a “right” to all persons similarly situated.

Chambers has since been remanded to the Rice County District Court for a resentencing hearing consistent with Miller v. Alabama and Montgomery v. Louisiana.

In the same Order, dated February 8, 2016, the

United States District Court for the District of Minnesota, VACATED the mandatory life sentence without the possibility of release. Chambers v. Roy, 14-CV-2552 (PJS/BRT).

Kim Thul Ouk D.O.B. 4/11/1977

On June 8, 1992, in St. Paul, Kim Ouk (15 years of age) shot and killed two clerks and shot two customers at the Total Mart in an early morning robbery. All of the victims were shot at close range and there was no evidence of resistance prior to the shootings.

Ouk was certified to stand trial as an adult. Following a jury trial he was convicted of two counts of first-degree murder and two counts of attempted first-degree murder. The court sentenced him to two mandatory life sentences with the possibility of parole and two 15 year sentences.

In his post-conviction appeal (Ouk, June 11, 2014), he argued that his sentence(s) be vacated and his case be remanded for an “individualized resentencing” in accordance with the process articulated in Miller.

Justice Anderson for the court, “Because we conclude that a statutory scheme mandating a sentence of life imprisonment with the possibility of release is materially different from a statutory scheme mandating a sentence of life imprisonment without the possibility of release, we affirm.”

Footnote 7 – Ouk does not argue that his sentence violates Miller because it is the functional equivalent of LWOR. We therefore need not, and do not, decide the issue of whether the imposition of permissive consecutive sentences totaling 80 years is functionally equivalent to a life sentence without the possibility of release and thus potentially implicates the Miller rule.

Tony Roman Nose D.O.B. 9/11/1982

In July 2000, Tony Roman Nose, then 17 years old, murdered Jolene Studeman in the course of committing Criminal Sexual Conduct in the First Degree. He was sentenced to Life (LWOR).

In a post-conviction hearing in Washington County District Court in 2013, his sentence was modified to Life with the possibility of release. The State appealed.

In Roman Nose v. State (2014), Justice Gildea for the court, reverses the District Court’s modification of the sentence. The District Court’s action directly contradicts our holding in Chambers III and reinstates the LWOR sentence.

Again, an “individualized sentencing” hearing

as required by Miller v. Alabama for juveniles convicted of first degree murder with mandatory LWOR sentencing is not retroactively applied in Minnesota.

Jerry Vang D.O.B. 5/18/1987

In August 2001, Jerry Vang, then 14 years old, shot and killed a 15 year old neighbor boy and attempted to kill a younger brother. He waived certification and pled guilty to Murder in the First Degree – While Committing a Drive-by Shooting and Attempted First Degree Felony Murder. He was sentenced to Life with the possibility of parole and given a concurrent sentence on the attempted murder.

His case was subsequently remanded for a new trial (Vang I – 2009).

Following a jury trial, he was convicted of

Murder in the First Degree – While Committing A Drive-by Shooting and Attempted First Degree Murder – While Committing a Drive-by Shooting.

In Vang II (2014), he argued that his life

sentence was unconstitutional under both the federal and state constitutions because his sentence violates the principles of Miller.

The Decision Of The Court, By Justice Dietzen:

In Mitchell, we considered whether a sentence of life imprisonment for a minimum of 30 years imposed a 15 year old child convicted of first-degree murder constituted cruel or unusual punishment in violation of the Minnesota Constitution. We concluded * * * that (such) a sentence is neither cruel nor unusual. We reasoned that the juvenile committed “one of the most heinous crimes” and the harsh punishment was not cruel and out of proportion to his crime.

Therefore, Vang’s sentence does not violate either the Eighth Amendment to the United States Constitution or Article I, section 5, of the Minnesota Constitution.

Jason Williams D.O.B. 9/18/1976

On October 12, 1992, Jason Williams at 16 years of age, entered a home in Brooklyn Park, killed the mother and her 3 year old daughter and severely injured the 4 year old son.

He was caught. He was tried as an adult and convicted by jury

of two counts of Murder in the First Degree – Premeditated/Attempted Murder in the First Degree – Premeditated and/Burglary.

He was sentenced to two consecutive Life sentences with the possibility of parole and consecutive sentences for Attempted Murder in the First Degree and Burglary. His consecutive sentences resulted in an aggravated sentence of 74 years.

In State v. Williams (2015), he argues that his sentence is the “functional equivalent of LWOR” and therefore he is entitled to a Miller re-sentencing hearing.

Justice Wright for the court finds no reason to depart from the holdings in Ouk and Vang and denies a re-sentencing hearing.

On the issue of consecutive sentencing, the court notes that, “Unlike the mandatory LWOR sentences in Miller, the decision to impose concurrent or consecutive sentences rests within the sound discretion of the district court.”

Mahdi Hassan Ali D.O.B. 01/01/1993

Three people were killed during a robbery of the Seward Market in Minneapolis on January 6, 2010. Mahdi Ali, at 15 years of age, was charged and convicted of these murders.

He was convicted of one count of Murder

First Degree – Premeditated and two counts of First Degree Felony Murder. He was sentenced to LWOR on the First Degree Murder count and two consecutive Life sentences with the possibility of parole.

Mahdi argued that the imposition of a LWOR violated the Eighth Amendment prohibition against cruel and unusual punishment and the rule of Miller v. Alabama. The Minnesota Supreme Court agreed and remanded his case back to the District Court for a sentencing hearing in accordance with Miller v. Alabama.

In Ali, as to the necessity of a Miller sentencing hearing, the court in Ali, stated:

“We conclude as we did in Chauvin that the second option is the most sensible choice. Assessing what, if any, impact a defendant’s age and family should have on the sentence in any particular case is uniquely a judicial function.”* * Citing State v. Heywood (1983). The mitigating and aggravating factors listed in section II.D. of the

Guidelines focus primarily on the degree of a defendant’s culpability [Durational departures].

* In State v. Trog (Minn. 1982), we said, numerous factors, including the

defendant’s age, his prior record, his remorse, his cooperation, his attitude while in court, and the support of friends and/or family, are relevant to a determination whether a defendant is particularly suitable to individualized treatment in a probationary setting.” [Dispositional departures].

Stafon Edward Thompson D.O.B. 5/02/1991

Stafon Thompson, as a 17 year old, was convicted by a jury of 4 counts of First Degree Murder for the murders of Katrina Daniels and 10 year old Robert Shepard. The offense occurred on June 11, 2008. He was sentenced to 2 consecutive LWOR. He claimed at trial that Brian Flowers committed the murders.

He subsequently successfully petitioned the U.S. District Court in Minnesota for habeas review of his sentence in light of Miller v. Alabama. While on review, the Supreme Court issued Montgomery v. Louisiana. His case has been remanded to the Eighth Circuit Court of Appeals for further decision.

Brian Lee Flowers D.O.B. 6/21/1991

Brian Flowers, as a 16 year old, was found guilty by a jury of 4 counts of aiding and abetting First Degree Murder for the murders of Katrina Daniels and 10 year old Robert Shepard. The offense occurred on June 11, 2008. His co-defendant was Stafon Thompson. At trial, his defense was that Thompson committed the murders.

He was sentenced to two consecutive LWOR. He did not challenge his sentence in his direct

appeal.

Lamonte Rydell Martin D.O.B.: 6/27/1988

Prentis Cordell Jackson D.O.B. 1/24/1989

Prentis Jackson was 17 years old on February 24, 2006.

He was charged and convicted of First Degree Murder of another young person in an apparent gang-related shooting. Evidence at trial was that he was the shooter and shot a gang rival in the head. He was sentenced to LWOR.

His conviction was affirmed on direct appeal in 2008.

In 2015, he brought a post-conviction petition. He seeks a new trial based on the recantation of a trial witness and for the first time seeks a “individualized sentencing” hearing in accordance with Miller v. Alabama, following Montgomery v. Louisiana.

On May 4, 2016, the Minnesota Supreme

Court heard oral arguments on his case (A14-2060).

On August 3, 2016, the Minnesota Supreme Court issued its decision in Prentis Jackson v. State, A14-2060, 2016 WL 4126394. The Court held that a fair and meaningful resentencing hearing as was contemplated in State v. Ali, was not possible in Jackson’s case. The Court vacated his LWOR sentence and remanded the case to district court for resentencing to Life with the possibility of release after 30 years.

John Jason McLaughlin D.O.B. 07/19/1988

John Jason McLaughlin was 15 years old when he took a loaded pistol to his school, Ricori High School in Cold Spring, on September 24, 2003. He shot and killed two fellow students, one of which was alleged to have “teased him.” He maintained that he was laboring from such a defect of reason that he did not know what he did was morally wrong per the M’Naghten rule. Minn. Stat. § 611.026.

Following a bi-furcated trial he was convicted of murder in the First Degree – Premeditated and Murder in the Second Degree – Intentional. The court sentenced him to consecutive terms, a life sentence plus 144 months.

On appeal, McLaughlin argued that the M’Naghten rule as applied to him (a juvenile) was unconstitutional as it violates the Due Process clause of the Minnesota Constitution as applied to adolescent defendants.

[Because it fails to account for the ways in which their brains differ from the brains of adults].*

* Amicus Curiae Brief of the American Medical Association, filed in Roper v. Simmons.

McLaughlin urges us to adopt one of three alternative tests to M’Naghten for determining the legal insanity of adolescents – including a test that would apparently recognize the unique vulnerability of young persons to the “irresistible impulse.”

“We hold that it would not serve the interests of justice for us to consider, on this record, striking the longstanding M’Naghten rule as unconstitutional.

For further explanation of the M’Naghten rule of criminal responsibility see, State v. Rawland (Minn. 1972).

Jose Santoya Juarez was convicted of Attempted Criminal Sexual Conduct in the First Degree, Second Degree Criminal Sexual Conduct, Kidnapping and Assault in the Third Degree. He was sentenced to LWOR (pursuant to Minn. Stat. § 609.3455, subd. 2 (Kandiyohi County – 2010).

Justice Dietzen writing the opinion, states that LWOR is not cruel and unusual punishment under either the U.S. or Minnesota Constitution.

Of future applicability: “When the challenger claims that a state statue imposes cruel or unusual punishment, he bears the heavy burden of showing that culture and laws emphatically and well nigh universally reject the sentence.”

Thank you

David E. Miller Assistant Attorney General