{"id":18184,"date":"2012-08-17T21:26:07","date_gmt":"2012-08-18T02:26:07","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=18184"},"modified":"2012-08-19T16:19:43","modified_gmt":"2012-08-19T21:19:43","slug":"california-answers-some-of-the-grahammiller-questions-sort-of","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/08\/california-answers-some-of-the-grahammiller-questions-sort-of\/","title":{"rendered":"California Answers Some of the Graham\/Miller Questions, Sort Of"},"content":{"rendered":"

As I discussed in a\u00a0recent post<\/a>, the United States Supreme Court left many questions unanswered in its two recent decisions on life without parole for juveniles.\u00a0 In the first case,\u00a0Graham v. Florida<\/em>\u00a0(2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses.\u00a0 Then, in\u00a0Miller v. Alabama\u00a0<\/em>(2012), the Court banned\u00a0mandatory<\/em>\u00a0LWOP even for juveniles convicted of homicide.\u00a0 These were important Eighth Amendment decisions, but the lower courts have been left to implement them without\u00a0much guidance.<\/p>\n

Yesterday, the California Supreme Court began to address some of the unanswered questions in\u00a0People v. Caballero<\/em><\/a>.\u00a0 I think\u00a0Caballero\u00a0<\/em>got things right, as far as it went, but the case left much open for future litigation.\u00a0<\/p>\n

The facts of the case were straightforward enough.\u00a0 Caballero, age 16, shot a gun at three members of a rival gang.\u00a0 Only one was hit, and he recovered.\u00a0 Caballero was then convicted of three counts of attempted murder.\u00a0 The judge imposed consecutive sentences of 40, 35, and 35 years to life\u00a0on the three counts, for a total of 110 years to life.<\/p>\n

Here are the questions addressed by the California Supreme Court.<\/p>\n

First, the court held that attempted murder counts as a \u201cnonhomicide\u201d offense, and thus comes within\u00a0Graham<\/em>\u2018s ban on LWOP for juveniles.\u00a0 As Justice Werdegar noted in a concurring opinion, this holding was not strictly\u00a0mandated by\u00a0Graham<\/em>, which hinted in places that attempted murder might be treated for Eighth Amendment purposes as a homicide offense.\u00a0 However, the California court decided to treat\u00a0the result of the crime, rather than the intent, as the controlling variable.<\/p>\n

Taken to an extreme, this approach may produce some anamolous results.\u00a0 For instance, while an attempted murderer would be categorically spared from LWOP, a juvenile convicted of negligent homicide would not be, even though many people (including, I think, the vast majority of criminal-law theorists) would regard attempted murder as a much more serious offense than negligent homicide.\u00a0 This may be more a theoretical than a real problem because statutory maximums tend to be relatively low for negligent homicide and because sentencing judges will not often be inclined\u00a0to impose extreme\u00a0punishments for an accident.\u00a0 However, the\u00a0problem may eventually arise in\u00a0a case involving multiple counts.\u00a0 Imagine a teenager whose\u00a0criminally negligent driving causes a bus to crash, involving a half-dozen deaths.\u00a0 Six times whatever the statutory maximum is for\u00a0negligent homicide could, depending on the jurisdiction, start to get into the \u201cde facto\u201d life sentence range.\u00a0 In my view, though, under the proportionality-based logic of\u00a0Graham<\/em>, the Eighth Amendment protections should not be any less for negligent homicide than they are for attempted murder.<\/p>\n

Second,\u00a0the court held that a 110-year sentence is a life sentence for Eighth Amendment purposes.\u00a0 This seems sensible enough; to\u00a0hold otherwise would invite easy evasion of\u00a0Graham\u00a0<\/em>through the use of very long sentences that would unquestionably consume all that remains of the defendant\u2019s life.\u00a0 However, the court declined to draw a bright-line rule as to what counts as a life sentence, at least not in the form of \u201cX or more years.\u201d\u00a0 Instead, the court indicated that the test is whether the defendant\u2019s minimum parole eligibility date is beyond his \u201cnatural life expectancy.\u201d\u00a0 This, in turn, was defined as the \u201cnormal life expectancy of a healthy person of defendant\u2019s age and gender living in the United States.\u201d<\/p>\n

It\u2019s not clear why these criteria were chosen.\u00a0 For instance, I wonder, why take into account the defendant\u2019s\u00a0gender but not his chronic health conditions or socioeconomic status or the fact that he is going to spend the next few decades of his life in prison?\u00a0 Based on all of the information that gets collected and crunched when one purchases life insurance, I imagine that existing actuarial knowledge could permit considerably more fine-grained determinations of life expectancy without creating litigation quagmires for the courts.\u00a0 Indeed, I expect that the limited California approach\u00a0will eventually\u00a0come under serious pressure\u00a0with respect to juveniles with serious health conditions who can demonstrate without any real question that their actual life expectancies are far short of those of a healthy person of the same age and gender.<\/p>\n

Third, the court held that the\u00a0Graham\u00a0<\/em>rule should be applied to Caballero\u2019s entire sentence, rather than to\u00a0each count separately.\u00a0 This seems to make sense, especially given that Caballero\u2019s conviction, while divided into three counts, was really for a single incident.\u00a0 Would the result be different, though, if the three offenses were more clearly distinct from one another?\u00a0 What if the three shots were fired a month apart from one another?\u00a0 What if Caballero\u00a0was charged for the first shot and was out on bail\u00a0when the second two occurred?\u00a0 By common\u00a0ways of thinking about\u00a0proportionality, these variations on the facts would render Caballero more blameworthy.\u00a0 Perhaps, then, he should not get the benefit of having his sentence evaluated in a unitary fashion.<\/p>\n

Coming at the issue from the opposite direction, though, one might wonder to what extent prosecutors could evade\u00a0Caballero\u00a0<\/em>by charging separate\u00a0offenses in separate indictments or informations.\u00a0 Presumably, the sentences would still be treated in a unitary fashion for Eighth Amendment purposes if the cases were consolidated for trial, but defendants might not\u00a0seek consolidation\u00a0for fear that evidence of multiple offenses would prejudice them in the eyes of the jury.<\/p>\n

Yet another problem is presented by new\u00a0offenses committed while a juvenile is under sentence for a prior offense.\u00a0 What if Caballero, in prison\u00a0on his three counts of attempted murder,\u00a0tries to\u00a0kill another inmate?\u00a0 Or what if he is given a long suspended sentence, commits another serious crime, and faces both the imposition of the suspended sentence and a long new sentence?<\/p>\n

And what if Caballero, in connection with the same three-shot incident that prompts the California prosecution, is also prosecuted federally on a gun charge and receives, say, a ten-year federal sentence while the state case is pending?\u00a0 Would the California courts have to take the federal sentence into account in deciding how long the state sentence could be?<\/p>\n

Fourth, the court indicated that Caballero should be resentenced so that he could get a parole hearing within the period of his life expectancy.\u00a0 The court directed that the sentencing judge \u201cmust consider all mitigating circumstances attendant in the juvenile\u2019s crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development.\u201d\u00a0 It is not clear, though, what \u201cmust consider\u201d means.\u00a0\u00a0Imagine that\u00a0the sentencing judge says this: \u201cI\u2019ve listened to all of the mitigating evidence presented by Caballero, and I have decided to give it zero weight.\u00a0 Juveniles must be sent a message not to join gangs and not to use firearms.\u00a0 Caballero\u2019s life expectancy is age 74.\u00a0 He can have his parole hearing when he is 73 years and 364 days.\u201d\u00a0 What then?<\/p>\n

Finally, the court stated that other\u00a0incarcerated juvenile offenders\u00a0seeking to modify their sentences \u201cmay file petitions for a writ of habeas corpus in the trial court.\u201d\u00a0 It is not clear, though, if this is the only permissible remedy.\u00a0 If an offender believes that the trial court would be particularly unsympathetic, for instance, could the offender petition the parole board directly for a hearing?<\/p>\n

It\u2019s good to see the California Supreme Court trying to give life to\u00a0Graham<\/em>, rather than minimizing its import through the sort of crabbed formalism for which the state was arguing.\u00a0 Whether California will prove a national\u00a0trendsetter or an aberration remains to be seen.<\/p>\n

Cross posted at Life Sentences.<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

As I discussed in a\u00a0recent post, the United States Supreme Court left many questions unanswered in its two recent decisions on life without parole for juveniles.\u00a0 In the first case,\u00a0Graham v. Florida\u00a0(2010), the Court banned LWOP for juveniles convicted of nonhomicide offenses.\u00a0 Then, in\u00a0Miller v. Alabama\u00a0(2012), the Court banned\u00a0mandatory\u00a0LWOP even for juveniles convicted of homicide.\u00a0 […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,122,24],"tags":[],"class_list":["post-18184","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-public","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/18184","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=18184"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/18184\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=18184"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=18184"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=18184"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}