Judge Not, Lest We Be Judged

If you’re still not sold on the power of redemption, I may not be able to sway you.

But consider this guy. He committed a carjacking at 16 and spent eight years in prison for it. Today, at 35, he has a wife, two bouncy sons, and now, a law degree from Yale. He just graduated last month. I guess it’s good we didn’t throw away the key.

His story reminded me of three quotes I saw recently. They each spoke to why we should treat people humanely in our justice system. I saw them in the email signature of a defense lawyer in Texas, and while he and I have never met, I think they say something positive about him, too. If you need a lawyer in his neck of the woods, look him up.

I especially liked how the quotes were attributed to three very different people. An itinerant lawyer and activist. An influential computer scientist. An acclaimed writer and novelist.

Three different walks of life, but they seemed to agree on some things.

  1. Freedom is not worth having if it doesn’t include the freedom to make mistakes.”
  2. “Good judgment comes from experience, and experience comes from bad judgment.”
  3. “Sometimes you make choices in life and sometimes the choices make you.”

Great quotes, all. You live and breathe long enough, you know them to be true.

The Lowdown on California’s Proposition 57

Last week it was Proposition 64; this week, it’s Prop 57.

Voters approved it by a wide margin, but what does it do?

Two things.

First, it amended the California Constitution to ensure parole eligibility for people who have been convicted of a nonviolent felony, once they have served the full term for their primary offense. In layman’s terms, that means that you’re eligible for parole once you’ve served the meat and potatoes of your sentence, even if you were sentenced to additional, consecutive time on lesser counts or for sentencing enhancements. But this just means you’re eligible; it doesn’t mean you get released. It just means you’ve got a shot at parole, and something to work toward. No one is automatically released, and no one is entitled to parole.

Second, Prop 57 mandates that a judge must always decide whether a minor age 14 or older should be prosecuted and sentenced in adult court. (Kids 13 and younger don’t go to adult court.) Before, you automatically went to adult court, even at 14, if you were charged with murder or an aggravated sex crime. Or the prosecutor could file your case directly in adult court if you were 16 or 17 and charged with a serious or violent felony or you were 14 or 15 and charged with an especially serious or violent felony. In all cases, the prosecutor could request the juvenile court to transfer your case to adult court, even for a misdemeanor.

Under Prop 57, there’s no direct filing of juvenile cases in adult court, and prosecutors have less discretion to request their transfer. For ages 14 or 15, they may request a transfer only if the kid is charged with a serious or violent felony. For ages 16 or 17, it can be any felony but not a misdemeanor.

Some things haven’t changed, like the criteria for deciding whether a minor’s case should be transferred to adult court. These include the following:

  • the nature and seriousness of the charges
  • the degree of criminal sophistication he displayed, given his age, maturity, intelligence, environment, and upbringing
  • his prior history of delinquency, if any
  • whether he can be rehabilitated by the time he comes of age or close to it

Out of the Mouths (or Lives) of Babes

If you’re on probation, can the court require you to surrender your passwords to your electronic devices and social-media accounts, so they can be searched at any time?

California has been weighing that question lately, and one month ago, the Court of Appeal issued decisions in two separate juvenile cases—one with a girl and one with a boy—that help shed light on the answer.

For starters, courts have plenty of discretion in formulating probation conditions, and when it comes to kids, they have even more latitude than they do with adults because kids need more guidance and supervision, and their rights haven’t ripened to maturity.

The final analysis, however, is the same for kids or adults: A probation condition is invalid if it’s not reasonably related to any of the following: (1) your underlying crime; (2) conduct that is criminal in itself; or (3) conduct that makes it more likely you’ll commit more crime. See People v. Lent (1975) 15 Cal. 3d 481, 486; In re D.G. (2010) 187 Cal. App. 4th 47, 52-53 (applying Lent to juvenile probation conditions).

First, the girl’s case. It began one day when she was meeting with her school counselor, who thought she was high on something because she was acting fidgety and her pupils were dilated. After their meeting, the girl left her purse behind, so the counselor opened it and found a sandwich bag of 30-45 orange pills. The counselor took one of the pills before the girl came back for her purse, and the pill later tested positive for amphetamine.

Subsequently, the girl admitted to misdemeanor possession of ecstasy, and the court put her on probation, which included drug testing as well as searches of her person, room, vehicle, and property.

She didn’t fight those conditions, but another one was that she submit to searches of her electronic devices and surrender her passwords to them. The probation office hadn’t recommended that, and the girl objected to it, but the court wouldn’t budge.

On appeal, however, the court struck that condition because there was nothing in the record that tied the girl’s drug possession to her use of electronic devices. The government argued that she could’ve used her devices to sell the pills, but there was no evidence she ever did that. Since her use of electronic devices was not criminal in itself, and it bore no reasonable relationship to her risk of getting in trouble again, the court struck the condition.

Next, the boy’s case. It began one night when he and his friends robbed and assaulted three different people. The boy was already on probation because of a prior robbery, and he admitted the new violations. The court ordered him detained, and it also ordered all his probation conditions to remain in place, including existing search conditions for his person, room, vehicle, and property. The prosecutor then suggested an additional search condition for his electronic devices, and the court agreed, ordering the boy to submit to searches of his electronic devices and social-media accounts and to turn over all his passwords.

On appeal, the court agreed that the boy, who’d stolen cell phones in the past, would need to submit to searches of devices found in his possession to confirm that he owned them.

But the court stopped short of permitting unfettered searches of the devices he did own or requiring him to give up his social-media passwords. That was a step too far because there was no evidence that the boy used email, text messaging, social media, or other personal data to facilitate his criminal activity, and his personal data implicated not just his privacy rights but those of other kids and people who were not subject to court supervision. So the court modified the electronics-search condition accordingly.

A Teenage Prank Gone Wrong

If you’re bored and feel compelled to shine a commercial laser pointer at passing aircraft, don’t do it, and if you need someone to explain to you why, ask one young man from North Hollywood, California, who was staring at a 30-month sentence in federal prison until three weeks ago, when the court of appeals reviewed his case and sent it back.

The boy probably never saw it all coming, either.

Three years ago, he was an 18-year-old high-school student who probably thought it was a toy or a joke. One of his friends had a green, commercial-grade laser pointer, and the two of them had been goofing around with it, pointing it at stop signs, parked cars, and other objects in their neighborhood. One night, as he was sitting in his backyard near the Burbank airport, the guy shined the laser at an incoming, seven-passenger Cessna. That caused the local police department to send a helicopter to find the source, and when it came, the guy pointed the laser at the helicopter, too. When the authorities got to his house, he admitted he was the one with the laser, and they arrested him on state charges of pointing a laser at an aircraft. Three weeks later, though, they took him federal, indicting him under a new and analogous federal law that had gone into effect six weeks before the night of his arrest. See 18 U.S.C. § 39A. It’s punishable by up to five years in prison, a $250,000 fine, or both.

The problem is that commercial laser pointers can cause flash-blindness to the pilot of an aircraft or otherwise distract him or her, endangering the flight during critical phases like takeoff and landing. You may not know it, but the beam of the laser spreads and expands the farther out it goes, even beyond what your eyes may see, and worse, the beam can refract off the glass of a cockpit in a way that lights the whole thing up. It can be especially disorienting at night, when a pilot’s eyes have adjusted to the dark.

But there was no evidence the teenager knew any of that, and the government didn’t present any. Nor did it prove that within six weeks of the federal law’s effective date, these dangers were generally known to the average person, much less the average teen. The guy’s friend had warned him not to shine the laser directly at someone’s eyes, but that’s very different from warning him that the laser could reach an aircraft and blind a pilot inside the cockpit from thousands of feet away. In fact, the government even believed the teen was suitable for a pretrial diversion program that would have required him to plead guilty but then put him on probation, where he could earn a dismissal. But the court denied it.

Anyway, the guy pleaded guilty, and the only issue at sentencing was whether he deserved an enhancement under the federal sentencing guidelines for “recklessly endangering” the safety of an aircraft. See U.S.S.G. § 2A5.2(a)(2)(A).

That made a big difference to him because the enhancement doubled his guideline score, so to speak. Without it, his range was zero to six months, and he had a good chance of probation. With it, he was looking at 18-24 months in prison.

Because of this pronounced impact, the government needed to prove the enhancement by clear and convincing evidence. United States v. Gonzalez, 492 F.3d 1031, 1039-40 (9th Cir. 2007). But the court applied it even though there was no evidence, let alone clear and convincing evidence, that the guy understood the risk that his conduct created. The court then imposed an above-guideline sentence of thirty months in prison followed by three years of parole. But the sentence was wrong, so the court of appeals sent it back.

Pope Francis Calls for the End of LWOP Sentences

While California still tolerates sentences of life without the possibility of parole for juveniles, and Massachusetts has ruled them out entirely, there is variation nationwide in the use of life sentences—with or without the possibility of parole—in all cases and for all people.

An interesting, multi-state report by The Sentencing Project identifies a total of 160,000 people as serving life sentences as of 2012, with 50,000 of them serving LWOP sentences; 10,000 of them serving life sentences for nonviolent offenses; and over 10,000 of them serving life sentences for conduct that occurred before they turned eighteen.

Last year, we covered a report by the American Civil Liberties Union on the status of people serving LWOP sentences for nonviolent drug and property crimes. According to that report, we are in the minority of countries known to impose LWOP sentences at all, and we are virtually alone among our peers in doing so for nonviolent offenses.

Now comes news that Pope Francis has called for the abolition of LWOP sentences. At an October 23 meeting with representatives of the International Association of Penal Law, the Pope called life in prison a hidden death penalty and noted that the Vatican had removed it from its own penal code. He also called for the end of the death penalty and touched on overcriminalization, prison conditions, solitary confinement, and other issues.

Pope Francis said criminal penalties should not apply to children at all, and he denounced a growing tendency to think that the “most varied social problems can be resolved through public punishment.”

Should We Ever Sentence Children to Life Without the Possibility of Parole?

What’s wrong with possibilities?

Earlier this month, the California Court of Appeal held that a trial court could impose a sentence of life without the possibility of parole (or LWOP) on a 16-year-old boy even though the court could not rule out the possibility of rehabilitation.

He’s older now, but the boy was just sixteen years old when he committed the crime. And make no mistake: it was a heinous, horrible crime. If it weren’t then we likely wouldn’t be here. And there’s no way to sugarcoat it. According to the record, the defendant and a 16-year-old relative broke into a home to get money for drugs. They chose the home because they didn’t see a car around, and no one answered their knock on the front door. Inside, they encountered an elderly couple asleep in their beds, and they murdered them. They had brought a knife and baseball bat with them to the burglary, and they stabbed the man multiple times in the neck and beat him about the head and upper body. The woman was beaten severely all over her body, and the entire right side of her face was crushed. That’s all straight from the appellate opinion, so yes, it was bad. From the record, it’s unclear how much of the crime was committed by the boy versus the relative, but at trial, both boys were convicted by separate juries of first-degree murder with special circumstances for committing multiple murders during the commission of a burglary and robbery.

But then, the boy didn’t exactly have role models in life. One of his uncles was already serving a life sentence for murder. His paternal grandfather was an alcoholic, and his maternal grandfather died in prison following his conviction for molesting a 12-year-old relative. His maternal grandmother used speed and cocaine and beat the boy’s mother when she was young, and later, his mom got involved in gangs—as did her siblings—which is how she met his father, who was also a gang member. His mother got pregnant with him when she was 15, and his father described it as an unplanned and unwanted pregnancy. His mother continued to drink heavily after he was born, and he grew up in a neighborhood racked with gunfire and gang activity.

His parents separated when he was a baby, and he rarely saw his father again. His mom hooked up with another gang member, and she had four more children by that guy. The new guy used drugs, drank heavily, and whipped the boy with his hand or a belt.

One day, the mom and her new guy got into it really bad, so the mom took the boy and moved out to her own, unstable mother’s house in Bakersfield. They stayed there with the grandma and her 16-year-old son, who was technically the boy’s uncle and seven months older than him.

Two weeks later, the mom reconciled with her ex and left, but the boy stayed behind in Bakersfield. He had tangled with the ex before, and he was not happy about the reconciliation.

Within days, he and the 16-year-old relative committed the crime. Before that, the boy had his share of problems, obviously, but he had no criminal record.

At sentencing, the boy’s lawyer acknowledged his horrible, horrific crime but urged the court not to give up on him entirely, arguing that he was going to be punished severely even without an LWOP sentence. Under California law, the boy was subject to either an LWOP sentence or, at the court’s discretion, a sentence of 25 years to life. See Pen. Code § 190.5(b).

The court appears to have wrestled with its decision, and at one point, it agreed that it “certainly [could] not exclude the possibility in this case, perhaps a significant one,” that the boy had “some significant possibility of rehabilitating.”

In the end, however, the court emphasized the violent nature and circumstances of the crime, and it sentenced the boy to life without the possibility of parole.

On appeal, his lawyer argued that the Eighth Amendment allows an LWOP sentence for a juvenile only if the facts show that he or she is irreparably corrupt, and that wasn’t the case in light of the trial court’s statements about rehabilitation.

The court of appeal, however, rejected that argument, holding that a trial court could impose an LWOP sentence despite the possibility of rehabilitation, so long as it properly exercised its discretion by weighing all relevant factors, including the defendant’s youth. The appellate court reasoned that a trial court’s discretion under section 190.5(b) had survived all the recent federal and state supreme-court cases on juvenile punishment, including the following:

  • The Eighth Amendment prohibits the death penalty for those who are under 18 years old at the time of their crime. Roper v. Simmons (2005) 543 U.S. 551.
  • The Eighth Amendment allows LWOP sentences for minors only in cases of homicide. Graham v. Florida, (2010) 560 U.S. 48.
  • The Eighth Amendment prohibits mandatory LWOP sentences for minors even in cases of homicide. Miller v. Alabama, 132 S. Ct. 2455 (2012).
  • Under section 190.5(b), there is no presumption in favor of an LWOP sentence over a 25-years-to-life sentence. People v. Gutierrez (2014) 58 Cal. 4th 1354.

Even so, it seems to me that life without the possibility of parole is always the inferior choice.

A ray of hope remains in California. Based on a new 2012 law, a minor may now petition for the 25-years-to-life sentence after serving 15 years of an LWOP sentence. See Pen. Code § 1170(d)(2). If his petition isn’t granted, he gets two more chances to petition for resentencing after 20 and 24 years. See id. But then that’s it. And he has no right to a lawyer to help prepare his petitions. Plus, there are many qualifiers and disqualifiers. So it’s a hard road, but it presents a chance.

Why We Defend Child Molesters

Here’s one reason.

Last week, a federal court of appeals reversed the conviction of an 18-year-old boy who had confessed to molesting another 8-year-old boy. That may sound like an open-and-shut case of a predator or monster we should throw the book at, but hold on. The older boy had an IQ of 65, and the court reversed his conviction because it held that his so-called confession was involuntarily obtained. That’s a nice way of saying it was coerced, and in all likelihood, it was a false confession about a crime that never occurred.

You see, the two boys were part of the same extended family, so they were relatives, and their families were feuding something fierce. It may have been like the Hatfields and McCoys but worse because the families lived next door to each other. I don’t think the Hatfields and McCoys did that.

One day, allegedly, the eight-year-old came home and told his family that the older boy had “put his pee-pee in [my] butt” and that “his butt was hurting.” The next day, he was asked about it in a forensic interview, and bless his heart, the boy proceeded to spin a yarn so fantastical that only an eight-year-old could pull it off with a straight face. You have to read it to believe it. Most of his allegations were not corroborated by any physical evidence, and his anal and genital exam revealed no signs of trauma, injuries, or bodily fluids.

A week later, investigators showed up at the older boy’s house to interrogate him. They realized right away that he was intellectually disabled, but they either didn’t know any better as investigators or didn’t care enough about getting things right, because they didn’t let that get in the way of their collar.

They asked him whether he was home on the day in question, and they insisted that he was until he eventually stopped disagreeing with them, even though he wasn’t. They suggested he wouldn’t get in any trouble if the hypothetical encounter was just a one-time thing, saying he could “move on” if it was all “just a misunderstanding,” but only if he were truthful. They conveyed, repeatedly, that he had to tell them something or they would keep coming back until he did.

Basically, they badgered and browbeat him until he told them what they wanted to hear, or until he began agreeing with their version of the facts, and when he did, they wrote out a statement for him and made him sign it, telling him it was just an apology note to the other kid and they wouldn’t tell anyone about it.

Oh, they told on him alright. The boy was charged with aggravated sexual abuse of a minor in violation of 18 U.S.C. § 2241(c), which means he initially faced a thirty-year mandatory-minimum sentence. He was eventually convicted of a lesser offense (on the basis of the confession, no doubt), and sentenced to fifty months in prison and a lifetime of supervised release. On appeal, a panel of two appellate judges voted to uphold the conviction while one dissented. The boy’s lawyers petitioned the full court of appeals to rehear the case, and the wrong was finally righted. Sort of.

Just makes you wonder what took so long.

Massachusetts Says No to LWOP Sentences for Children and Adolescents

On Christmas Eve, the Massachusetts Supreme Judicial Court, which is the highest court in the Commonwealth, held that sentences of life without the possibility of parole (or LWOP) for people under the age of 18 were unconstitutional, and it struck them down. The court based its ruling on the Eighth Amendment, and it observed that imposing LWOP sentences on minors was “strikingly similar, in many respects, to the death penalty.”

The decision stemmed from two cases of juveniles who were 17 years old when they committed their crimes. It extends the logic of a case from last year in which the U.S. Supreme Court rejected LWOP sentences for two boys who were 14 years old when they killed. The decision also builds on U.S. Supreme Court cases from 2005 and 2010 that rejected, in turn, the death penalty for minors as well as LWOP sentences for minors convicted of non-homicide offenses.

These decisions make sense, and they serve the interests of justice. As the Massachusetts Court explained in its opinion, an LWOP sentence requires—or should require, anyway—a finding that the offender is “irretrievably depraved”—that he’s a lost cause—and we can’t possibly say that about people whose brain is not fully formed or developed at their age. Although science is driving that point home, moreover, we’ve always known from a common-sense standpoint that children are different from adults, even or especially in the case of an irrational, impetuous teenager who kills.

Life is not only imperfect but flawed, messy, and often tragic, but even in the most extreme cases of juvenile violence, we must know in our hearts that we can’t lock up a kid, throw away the key, and say that he or she is beyond all hope or redemption. As if we know. Perhaps because we do know that the heaviest hammers in the world will not deter the most aberrant excesses of adolescents, or perhaps because we know that, in such cases, the world they were brought into shares some of the blame.

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