Moved Reply: 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,
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
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?]
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.
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
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?
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.
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.
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?
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.
