Dark Clouds on the Horizon for Graham v. Florida?

A photo of the Supreme CourtIn 2010, the Supreme Court ruled in Graham v. Florida that a juvenile sentenced to life in prison for a nonhomicide crime must be given “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” But what makes a release opportunity “meaningful”? The Court’s decision yesterday in Virginia v. LeBlanc suggests that the threshold may not be as high as some hoped.

LeBlanc was convicted of committing a rape when he was 16 and sentenced to life in prison without the possibility of conventional parole. On the face of it, this would seem a clear violation of Graham. However, in federal habeas proceedings, the state argued that LeBlanc would eventually have his “meaningful opportunity” through a geriatric release program, which permits the release of some inmates who are age sixty or older.

Since many other states also have geriatric release programs, the issue presented by LeBlanc has important, national ramifications for the strength of the Eighth Amendment right recognized in Graham.

A district judge and then a panel of the Fourth Circuit held in LeBlanc’s favor. The Fourth Circuit noted the highly discretionary nature of geriatric release under Virginia law, which effectively permits the releasing authority to disregard an applicant’s “demonstrated maturity and rehabilitation,” contrary to Graham. 841 F.3d 256, 269 (4th Cir. 2016).

Yet, the Supreme Court reversed yesterday in a brief per curiam opinion.  

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Insights on Judiciary and Tech Industry Highlight New Marquette Lawyer Magazine

Marquette Lawyer Summer 2017 CoverTwo pairs may not be the most powerful hand in poker, but they are definitely a winning combination for the Summer 2017 edition of Marquette Lawyer, the Marquette Law School magazine.

One pair in the magazine focuses on how long U.S. Supreme Court Justices should serve and, more broadly, how to assure confidence in the judiciary. Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit focused on this in the E. Harold Hallows Lecture he delivered at Marquette Law School in 2016. The magazine offers a lightly edited text of the lecture by Diaz, including his advocacy of ideas he presumes that few of his fellow judges would support. Paired with the text is a comment from Diaz’s colleague on the Fourth Circuit, Judge James Wynn, L’79. An interview and profile of Wynn accompany his comment. The Diaz text may be read by clicking here and the Wynn comment (and interview) here.

The other pair in the magazine offers provocative insights from two people who play leading roles in the tech world. Brad Smith, president and chief legal officer of Microsoft, made two appearances at Marquette Law School on November 15, 2016, delivering the Helen Wilson Nies Lecture on Intellectual Property and participating in an “On the Issues with Mike Gousha” program. A selection of his thoughts may be found by clicking here.

Ted Ullyot is currently a partner at Andreessen Horowitz, a leading venture capital firm in Silicon Valley, and he was formerly general counsel for Facebook—indeed, the lawyer who led the company in the process of going public. An edited version of Ullyot’s remarks at the Law School in a Helen Wilson Nies Lecture in April 2016 may be found by clicking here. 

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A Win for Judicial Sentencing Discretion in Armed Robbery Cases; Additional Reform Still Needed

A photo of the Supreme CourtEarlier this month, in Dean v. United States, the Supreme Court ruled that federal sentencing judges retain some discretion to soften the notoriously draconian sentencing scheme of 18 U.S.C. §924(c). The statute establishes a mandatory prison term when a defendant uses or possesses a firearm in connection with a violent or drug trafficking crime. Unlike most minimums, though, this one must be imposed to run consecutively with any other sentences imposed at the same time. Thus, for instance, a defendant convicted of both a robbery and possession of a firearm during the robbery must get at least five years on top of whatever sentence is ordered for the robbery.

But what if a judge—in light of all of the facts of the case and the circumstances of the defendant—decides that five years is a sufficient punishment for the crime? Could the judge impose a sentence of just one day on the robbery count, so that the total sentence does not exceed what is necessary? In other words, in sentencing for the robbery count, can the judge take into consideration what she will have to impose for the §924(c) count?

Yes, said the Supreme Court in Dean.  

Continue ReadingA Win for Judicial Sentencing Discretion in Armed Robbery Cases; Additional Reform Still Needed