( – promoted by Colorado Pols)
The U.S. Supreme Court’s ruling today in the Miller v. Alabama case has held that juvenile life without parole homicide sentences, which several dozen juveniles are currently serving in the state under a now repealed state criminal statute, are unconstitutional under the circumstances under which they were imposed in Colorado.
Realistically, the Colorado General Assembly will probably be given an opportunity to draft a new law to govern how these juveniles should be resentenced before a court orders a particular response. The obvious option would be to reply the existing sentencing law for juvenile first degree murder convicts retroactively, something that Colorado prosecutors have fiercely resisted when this has been proposed in the Colorado General Assembly.
The existing law in new first degree murder cases with juvenile defendants imposes life sentences with a possibility of parole after forty years (barring any recent amendments of which I am not aware in the 2012 legislative session package of juvenile justice statutory amendments [UPDATE: there weren't any amendments to Colorado Revised Statutes 18-1.3-401(4)(b) where the 40 years rule is found, in the 2012 legislative session.]).
Neither Governor Hickenloooper nor Governor Ritter before him, have used their pardon powers to address this issue comprehensively.
As I heard it, it was only in cases where life without parole is automatic. If the jury has a choice between life without parole and a lesser penalty, and chooses life without parole, life without parole is not per se unconstitutional.
How did the process work in Colorado?
I know on murder 1 for adults, conviction meant automatic life without parole. (or a death penalty, if one was sought. death penalty was a separate procedure and failure to apply it was cause for life without parole. I actually went through this on a death penalty jury, though under a previous statute.
Was the final juvie tried as an adult murder rule one where conviction meant automatic life without parole? If so, I agree with you, they need to go back to the drawing board. But I’m not quite sure what the statute was after the high court ruled out death for crimes committed before the perp turned 18.
Juvenile life without parole was abolished in Colorado for offenses committed on or after July 1, 2006, which now has a 40 year to life sentence for class 1 felonies (i.e. first degree murder and kidnapping cases where the victim is never found and presumed dead) committed by juveniles instead of life without possibility of parole sentences.
From July 1, 1993 to June 30, 2006, juveniles convicted as adults (an offense for which prosecutors were permitted to direct file without judicial review of the appropriateness of charging a person as an adult) the convicted defendant faced the same punishment as adults for class 1 felonies then and now: life in prison without possibility of parole, or death (if sought by the prosecutor).
Both then (in cases where the death penalty was not sought or a demand for a death penalty was withdrawn after conviction by the prosecution), and now (in every class 1 felony case), the sentencing hearing is a very short formality on the LWOP count (it is longer if there are lesser charges whose sentences might matter if the conviction on the class 1 felony count is reversed on appeal). The maxmimum sentence and the mimimum sentence are the same. Counsel for the defendant can try to make an appellate record arguing that the sentence in question violates the 8th Amendment under unprecedented new interpretations of the U.S. Constitution or Colorado Constitution, but that is pretty much it (sometimes an outraged judge will specifically opine that he wouldn’t have ruled the same way if not required by law to do so, but that is also rare).
Forty-some juveniles were sentenced to life without possiblity of parole in this thirteen year time period (all for first degree murder including about one in three for felony-murder without personally intending to or actually killing someone, and a few of whom were quite young when the offense was committed), of whom two have since received clemency from Governor Ritter (so far as I known, Governor Hickenlooper has not done so, and the prosecutors might prefer that he does now, to avoid setting a precedent for retroactive legislative sentence reduction in the state).
Due to the political resistance of prosecutors to legislative retroactive reduction of sentences generally (including by Denver Democrats who were prosecutors in Denver, former Governor Ritter and current DA Mitch Morrisey), Democratic party efforts to make the 2006 bill retroactive and similar efforts in subsequent sessions did not become law. There have also been one or two efforts to reduce the forty-year parole eligibility to an earlier date that have failed thusfar in Colorado.
None of the juveniles serving LWOP sentences in Colorado have actually been in prison for even twenty years, and the juvenile offenders in Colorado prisons who have actually served the longest sentences right now are there for long non-LWOP sentences.
By comparion the normal maximum sentence for second degree murder is 48 years (which can drop to 36 years with good time) followed by five years of parole, the normal minimum sentence for second degree murder is sixteen years (which can drop to twelve years with good time). The sentence for conspiracy to commit first degree murder (other than those that fall within the felony murder doctrine) and attempted first degree murder is the same as the sentence for second degree murder, a class 2 felony. There are many nuances and details and exceptions, however.
Prosecutors usually don’t seek the death penalty in felony-murder cases (which make up a tiny percentage of people on death row even though the death penalty is constitutional for adults, and was constitutional for juveniles until the U.S. Supreme Court not so long ago ruled otherwise as to the juvenile death penalty generally, and even though a large share of first degree murder convictions are for felony murder). Prosecutors rarely got the death penalty in juvenile cases even when juveniles were convicted and hence eligible for it. Colorado hasn’t sentenced anyone to death for a juvenile offense for at least half a century and you can count the number of people on death row on your fingers. But, a number of juveniles with life in prison without parole sentences (including some in Colorado, IIRC) ended up there after pleading guilty in order to avoid death sentences back when it was believed to be constitutional to execute older juveniles.
At least some states do have discretionary life without parole sentencing for juveniles. One example that I am aware of is Wisconsin, and that statute will remain good law.
I also like this (much shorter) discussion of the dissenting opinions at:
http://www.boomantribune.com/s…
Of course, the cases actually decided by the U.S. Supreme Court are not Colorado cases. This sets a precedent that should apply to Colorado cases, but does not change the fate of Colorado inmates directly or automatically. The Colorado cases would have to be decided in separate lawsuits or by separate legislative or executive branch action.
At least one of the cases decided today was on collateral review of a state court habeas corpus petition, rather than on direct review of a state court conviction, so the very high likelihood is that this ruling should apply retroactively as a “new rule” for habeas corpus purposes, rather than a “procedural rule” which is applicable only prospectively.
There is a colorable argument that it would not apply to someone who had exhausted their state court collateral appeals (or perhaps all of their collateral appeals) but I think that it is very unlikely that this conclusion would be reached.
Indeed, in the current administration, I wouldn’t be surprised if the State of Colorado acting at the direction of Hickenlooper and Colorado’s AG, deliberately refrained from raising that argument in order to avoid a high profile fight that they were likely to lose.
Many of the later cases have graham issues perserved which should allow them to be handled judicially. What happens with the remaining cases remains a question. It is important to remember it isn’t a ban on jlwop but rather a ban on mandatory jlwop
Interesting note in the concurence about 40% of the kids doing lwop are there on felony murde.
I’m still digesting the opinion, but it seems to have real resistance to mandatory sentences period..
graham issues?…ummm…bad crackers?
in SCOTUS that recently repealed LWOP for juvenile offenders committing non-murder crimes (mostly in Florida, one of that few states to allow such sentences).