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Moved Reply:

It's early and I've yet to have my chai.

What are the other counties going to do with their offenders while we wait to see if the governor acts?
 
Posts: 286 | Registered: February 13, 2006Reply With QuoteReport This Post
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Moved Reply:

quote:
Originally posted by Martin Peterson:
Can a special session of the legislature still be called?

It can, but that has a 0.0% chance of occurring--unless you can figure out a way to tie this problem to "sanctuary cities." Wink

As for commutations, that is unlikely to happen of its own accord. If you want a sentence commuted, you probably need to ask for it.

But before going there, ponder this point of view:

quote:
"So, for cases that were already final on appeal before today, I think there is a strong case for resisting retroactive application."

http://www.crimeandconsequence...ought-on-miller.html

Thoughts?
 
Posts: 2395 | Location: TDCAA | Registered: March 08, 2002Reply With QuoteReport This Post
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What do you mean, we should ask for it?

My case isn't final yet (appeal pending).
Yet, he got LWOP.

How should does this case apply to him?
 
Posts: 286 | Registered: February 13, 2006Reply With QuoteReport This Post
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RK, until the governor commutes an LWOP sentence, the person in custody will have an easy claim that he is being illegally confined (no valid sentence). Neither TDCJ nor the BPP can solve the problem on their own because they must honor the sentence assessed by the trial court (which presumably specifies release on parole is prohibited). The issue about what the writ court would do (if the sentence is not commuted) is more interesting, as resentencing is an impossibility too. Can a special session of the legislature still be called?

[Sorry, this got out of order when it was moved!]

This message has been edited. Last edited by: Shannon Edmonds,
 
Posts: 2335 | Registered: February 07, 2001Reply With QuoteReport This Post
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quote:
Originally posted by rk:
What do you mean, we should ask for it?


See 37 TAC 143.52

quote:
Originally posted by rk:
My case isn't final yet (appeal pending).
Yet, he got LWOP.

How should does this case apply to him?


If the appeal is pending, then Miller should apply to him, and your guess is as good as mine as to what the courts can or will do with it.
 
Posts: 2395 | Location: TDCAA | Registered: March 08, 2002Reply With QuoteReport This Post
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So, can a governor commute a sentence to a life with parole and set the minimum before parole eligibility without any statutory authority?

Looks like you can in Iowa:

Details.
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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While I agree with Shannon that all anyone can do is guess about what the courts of appeals will do with those cases pending on direct appeal (where the issue was raised or is now raised), for what it is worth, I have posted a brief containing my research on how it might play out. Reformation
 
Posts: 2335 | Registered: February 07, 2001Reply With QuoteReport This Post
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Nationwide, there are roughly 2,500 inmates who killed as juveniles that are serving life in prison without parole, including 309 California inmates serving such sentences, according to the California Department of Corrections and Rehabilitation.

"Because their brain is still developing, they have the ability to rehabilitate," said Michael Harris, a senior attorney at the National Center for Youth Law. "They are more likely to rehabilitate than an adult."

[Is there some actual evidence to support that last statement?]

Details.
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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So, when is the best chance for rehabilitation, before you start serving a 15-year minimum in prison? I would think almost any significant time in prison would offset the developing brain theory. So the argument appears to be not only parole, but very quick parole.

The solution to the problem in Miller was for the Supremes to set out what sentence would not be cruel (thereby defining how and why parole will make any real difference, except to add to the chance of another victim). Even with all their super-legislative powers they did not dare make the attempt.
 
Posts: 2335 | Registered: February 07, 2001Reply With QuoteReport This Post
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The good: capital murder conviction affirmed.
The bad: no reformation of sentence possible.
The ugly: So, at new punishment hearing, State tries for LWOP, but what happens if LWOP determined to be cruel, and who decides?
The best hope: commutation by Governor avoids all questions and need for new punishment hearing. At least we are no longer completely in the dark.
Henry
 
Posts: 2335 | Registered: February 07, 2001Reply With QuoteReport This Post
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I don't see how the decision decided anything. They simply noted the Miller case and punted it back to the trial judge for re-sentencing. But gave that judge absolutely no clue as to what choice he would have other than to give the defendant the only sentence available by law: LWOP.

So, is the judge supposed to order the Legislature to pass a bill that creates a retroactive application of life with parole? With the LWOP sentencing having been vacated, the Governor can't even grant clemency.

Or, could the trial judge hold a punishment hearing, inviting mitigating evidence, and then decide whether LWOP could nonetheless be re-imposed?
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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Well, I just indicted a 17 year old for Capital Murder that occurred in 2009. I threw in a count of murder and a count of aggravated robbery as a backup. We'll see what happens. Hopefully the legislature can fix the punishment before I go to trial.
 
Posts: 233 | Location: Anderson, Texas | Registered: July 11, 2001Reply With QuoteReport This Post
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While Miller had nothing to do with punishments in non-homicide cases, it was interpreted to change sentencing law in California. Any juvenile there may now challenge the applicable parole eligibility law as operating in a cruel and unusual fashion. Here is how the Supreme Court of California described the procedure: habeas jurisdiction will be utilized to allow the trial court to weigh the mitigating evidence in determining the extent of incarceration required before parole hearings. Because every case will be different, we will not provide trial courts with a precise timeframe for setting these future parole hearings in a nonhomicide case. However, the sentence must not violate the defendant's Eighth Amendment rights and must provide him or her a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” under Graham's mandate.
 
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Wow. A sliding scale for parole.
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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Gee, I thought parole suitability was a function of the executive branch.

I guess they do things differently in California. Roll Eyes
 
Posts: 218 | Location: Victoria, Texas | Registered: September 16, 2002Reply With QuoteReport This Post
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If 15 years is the right number for homicides, I am guessing maybe half that is generally right for other life sentences. But, my brain is not sufficiently developed to figure this out. So I am glad Californians have judges at the local level who can do that. Not likely to be very uniform though and the parole board will have a lot of different numbers to keep track of. This should certainly help solve the state's bugetary problems one way or another, right?
 
Posts: 2335 | Registered: February 07, 2001Reply With QuoteReport This Post
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More on the proposed California solution:
http://www.rawstory.com/rs/201...get-a-second-chance/
 
Posts: 2395 | Location: TDCAA | Registered: March 08, 2002Reply With QuoteReport This Post
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California was also one of the first places to find a valid LWOP sentence after Miller. People v. Gutierrez, 2012 Cal. App. LEXIS 1000. Perhaps Indiana was the very first, though, in Conley, 972 N.E.2d 864.
 
Posts: 2335 | Registered: February 07, 2001Reply With QuoteReport This Post
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Florida appellate court holds Miller NOT retroactive after conviction final:

http://www.crimeandconsequence...bama-not-r.html#more

Also, California governor signs bill on restricted juvenile re-sentencing procedure:

http://blogs.sacbee.com/capito...young-murderers.html

This message has been edited. Last edited by: John A. Stride,
 
Posts: 444 | Location: Austin, Texas, USA | Registered: January 06, 2010Reply With QuoteReport This Post
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Today, the SCOTUS also remanded cases from Texas and a Wyoming in light of Miller. The Texas case is Herbert R. Wilson out of 14th COA.
 
Posts: 444 | Location: Austin, Texas, USA | Registered: January 06, 2010Reply With QuoteReport This Post
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