Graham v. Florida -- A Look at the Projects to Prison Pipeline through Sentencing and the Eighth Amendment

Graham v. Florida – decided May 17, 2010

In Mid-May, the US Supreme Court issued yet another criminal case. Graham v. Florida focuses on the issue of whether a defendant who is sentenced for a crime committed while a minor but sentenced as an adult can be sentenced to life without the possibility of parole for certain crimes.

The facts of the case at hand are a tragedy. Graham was 16 years old when he committed armed burglary in Florida. He had a plea agreement, and while he was on probation and still a minor, Graham committed a home invasion robbery, and he had possession of a firearm and was associating with people involved in criminal activity. Graham had grown up with parents addicted to crack cocaine, and Graham himself became involved with drugs and alcohol at the age of 9. When Graham was brought before the court on his probation violations, he admitted violating his probation. The trial court sentenced Graham to life in prison without the possibility of parole. The trial court, reviewing the circumstances, stated, “ . . . I don’t understand why you would be given such a great opportunity to do something with your life and why you would throw it away. The only thing that I can rationalize is that you decided that this is how you were going to lead your life and that there is nothing that we can do this.” The court then referenced the State’s argument that the Defendant showed “an escalating pattern of criminal conduct.” The trial court then said, “[W]e can’t help you any further. We can’t do anything to deter you.” With that statement, the trial court then explained that since it cannot reform the Defendant, it must act to protect the community by removing him for the rest of his life. Given that Florida has abolished its parole system, the Defendant has no chance of release except for executive clemency.

Graham brought this case up to the Supreme Court under the Eighth Amendment, which guarantees that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The courts have interpreted cruel and unusual based on the “evolving standards of decency that mark the progress of a maturing society.” Estell v. Gamble, 429 U.S. 97, 102 (1976). This, of course, makes sense. Looking to our past, we see that American colonists came from England, where drawing and quartering, holding someone’s feet to flames, imprisoning someone for an indeterminate period of time, and hanging were the usual. In fact, such actions were often deemed entertainment for a town. When America was settled, recall that the country went through a period of setting women ablaze to determine their guilt about deals with the devil. America has grown out of the gas chamber, mostly out of the electric chair, out of the death penalty all together, and back into the death penalty. The only measuring stick of whether a practice is cruel and unusual is the current measuring stick of society. As society evolves, so will its methods of dealing with those who break laws.

Legally speaking, when a defendant challenges a punishment on Eighth Amendment grounds, the defendant must try to prove that the sentence is not proportional to the crime. This is done by proving either that the length of the sentence (think of a lifetime sentence for a seventh conviction for passing bad checks – see Solem v. Helm, 463 U.S. 277 (1983)) or that there is a categorical violation (think of restrictions on what types of crimes may be eligible for the death penalty). This second avenue for relief generally requires a showing of a grossly disproportionate sentence when compared to the crime, and it is what Graham chose to appeal. He is claiming that defendants who committed non-homicidal crimes as a minor should not be eligible for sentences of life without parole.

To understand what society considers acceptable, the Court looked at the statutes of the states to determine how many states permitted life without parole sentences for juveniles. Seven jurisdictions allowed such a sentence for minors only convicted of homicide cases. Thirty-seven states and the District of Columbia permit such a sentence for minors convicted of non-homicide cases. Given the lack of a clear direction of society’s view on this issue, the Court then analyzed how courts actually sentence minors. The Court recognized that while laws may permit certain sentences, what matters is whether the leniency of those laws is actually relied upon and used by judges across the country. The Court noticed that there are 129 juvenile offenders serving life without parole sentences for nonhomicidal crimes, and 77 of those are in Florida.

Reaching its conclusion, the Court came to four conclusions: (1) the rules of governing juvenile offenders rely on a discretionary, subjective treatment by a judge or jury that a defendant is “irredeemably depraved” and eliminate the chance that the offender will receive a life without parole sentence “despite a lack of moral culpability;” (2) a case-by-case approach would not provide the necessary accuracy to determine whether a juvenile offender has “sufficiency psychological maturity and dep[r]avity to merit a life without parole sentence” versus those who have the capacity to change; (3) such sentences do not allow for the scientifically-known facts that adolescents are impulsive, have difficulty in thinking long-term; and are reluctant to trust adults; and (4) the United States is the only nation that imposes this type of sentence on this type of defendant.

Reviewing this opinion, I find it to be extremely well-reasoned and to take into account what society has come to understand about adolescents. With all of the current research about development and the impact of physiology on behavior, I think it would be remiss for the Court to have ignored such findings. Adolescents are by nature impulsive and have trouble analyzing the consequences of certain actions. To imprison a young person for the rest of his life for crimes done while a juvenile seems barbaric to me, especially when those crimes do not include homicide. For me, I would even ban life without parole for juveniles who commit homicide, but I know many others would not agree with me. Taking the limitations of adolescent analytical powers at face value and believing wholly in the power to change, I have difficulty locking someone up for the rest of his life based on young, foolish actions.

In addition, I think this opinion serves also to provide a lens on the pipeline from the projects to prison. Here in Nashville, there are several organizations that work to break that pipeline. Defendant Graham is essentially poster-child for the failures of a society to care for its young and ensure they are raised to become valuable, contributing members. Graham’s parents were drug-addicted, absent parents. How was he supposed to know what was good or bad? I am not absolving Graham of all his culpability, but I am asking how he was supposed to know right from wrong. He was not brought into the world with responsible caretakers and leaders. It can be a parent, it can be a minister, it can be a teacher. At some point, we need people to step up and say, “I will lead this child and introduce him to the world.” Knowing that adolescents are impulsive and prone to mischief, it is only a matter of time before a teenager essentially raised with backwards morals and living in a sea of crime becomes an actor in it himself. These actions do not necessarily mean that the juvenile offender is locked into a loop of crime for the rest of his life, but it does mean that there is plenty of room for improvement. I think the Court’s opinion really opens up a dialogue about the projects to prison pipeline and allows for a close examination of how much we, as a society, can expect (whether it be good behavior before prison or bad behavior during prison or after any release) from someone who is traveling along that pipeline. This opinion serves as a wake-up call to making sure our science, our community-action, our service to others, and our justice system are all in line. Let us use this call to action to help break the pipeline for someone. Get involved today.



For two great organizations in Nashville that address the projects to prison pipeline, please see Preston Taylor Ministries at http://www.ptmweb.ik.org/ and the Martha O'Bryan Center at http://www.marthaobryan.org/aboutus.

United States v. Comstock Et Al. -- a lesson in protecting the public

The United States Supreme Court released the opinion United States v. Comstock Et Al, this past week. It focused on the federal government's power to hold a federal prisoner longer than the sentenced ordered based on the concept that the prisoner has been deemed sexually dangerous. This case centers on the law found in 18 USC 4248. The Court upheld the law, and it concluded the law was constitutional under the necessary and proper clause of the Constitution.

To set the background, the law at issue (18 USC 4248) says that the Department of Justice has the power to detain a mentally ill, sexually dangerous federal prisoner beyond the prisoner's release date. States have enacted similar laws, and the US Supreme Court has previously analyzed whether those laws violated the Due Process Clause (See Kansas v. Hendricks, 521 US 346 (1997) and Kansas v. Crane, 534 US 407 (2002)). The requirements of the federal law permit a district court to order the civil commitment of a person who is currently in the Federal Bureau of Prisons if the individual:

(1) has previously engaged or attempted to engage in sexually violent conduct or child molestation;

(2) current suffers from a serious mental illness, abnormality, or disorder; AND

(3) as a result of that mental illness, abnormality, or disorder, is sexually dangerous to others in that he would have serious difficulty in refraining from sexually violent conduct or child molestation if released. See 18 USC 4247.

If the DOJ has identified such a person, then it (the DOJ) must certify to a federal district judge that the prisoner meets those requirements. When the certification is filed, the statute stays the prisoner's release until a hearing is held and the Government is able to provide proof to support the civil commitment of the prisoner. In a sort of hybrid of criminal-civil-adjudicative hearings, the prisoner is entitled to an attorney and the right to be heard. The DOJ must prove its case by clear and convincing evidence. If the DOJ meets its burden of proof, and the court issues the civil commitment, then the federal government is to try to get the State where the trial was held or the prisoner is domiciled to take custody of the prisoner. If the State does not take custody, then the prisoner remains in federal custody. A prisoner who is being held under civil commitment is entitled to ongoing psychiatric and judicial review of his case, and he may request hearings every six months to evaluate his release. In order to be released from federal custody, the prisoner must either be taken into State custody or have improved his mental condition to the point where he is no longer dangerous.

The Supreme Court began its analysis by pointing out that due process was not an issue raised by the petitioners in this case. Thus, the justices analyzed it from the assumption that the law did not violate due process, and they kept a very narrow analysis on whether the statute in question violates the Necessary and Proper Clause of the Constitution. See Art. I, Section 8, cl. 18; See also McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). Of course, when analyzing whether a statute is "necessary and proper," the Court looks at whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power. See Sabri v. US, 541 US 600, 605 (2004). Here, the Court recognized Congress's broad authority to deal with those imprisoned in the federal system for federal crimes. In addition, Congress has long been involved in the mental healthcare of federal prisoners. In a stroke of astuteness, the Court pointed out that while Congress's long-time involvement does not automatically validate an action, it does help provide a framework of a need and a statutory solution. The Court then described how narrowly tailored the statute is -- it contemplates only those prisoners who have been deemed sexually dangerous and who have proven themselves to be sexually dangerous to the public. The Federal government has the power to protect its citizens and communities from these people known to be dangerous. The Court found the means to be rationally related to the danger sought to be prevented.

In addition, the Court noted that the statute does not infringe upon State's rights. The prisoner at the center of these arguments is a federal prisoner, and not a State prisoner. Moreover, the State will have the ability to take custody of the prisoner, should the prisoner be deemed sexually dangerous and civilly committed. The Federal government is not seeking to take rights from the State, rather it seeks to protect its citizens, as a whole.

Finally, the Court denies the arguments that in order for a law to be necessary and proper, it must only be one step away from the enumerated power and that the statute creates a general police power. As stated before, the standard for necessary and proper is whether the means is rationally related to the implementation of a constitutionally enumerated power. See Sabri, 541 US at 605. There is no "one-step" requirement. Additionally, the federal statute for civil commitment does not create a general police power. Rather, the statute is narrowly tailored to only affect federal prisoners who have been deemed sexually dangerous and who meet the three requirements for certification, as listed above.

Reviewing the opinion, I think that the Court very clearly answered the issue brought in this case on a very narrow ground. I would be interested to see if the Petitioners will now bring claims on due process and how the Court would interpret that issue. As a necessary and proper clause case, I think the Court properly decided the case. The statute is so narrowly tailored to just federal prisoners who meet certain requirements, and it permits States to take custody of these prisoners.

The only concern I have, and this is playing the devil's advocate, is how to determine whether a prisoner suffers from mental illness, abnormality, or disorder. Obviously, the DSM-IV will be consulted to determine if a prisoner has a particular disorder, but given the changes in the classification of what constitutes a mental illness throughout the years (specifically, I'm thinking of homosexuality, which used to be listed as a mental illness), I'm wondering how that might affect the prisoners. I suppose that we have to work within the current guidelines of what we have. A citizen is a product of his or her times, and he or she must conform his or her behavior to those times. Let me be clear that I am in no way saying that sexual crimes will ever be permissible or acceptable. I find them atrocious, and I believe they leave living victims in a state of semi-death. But, considering that other cultures have permitted such acts (even specifically sexual acts with children) as normal and even considered them desirable (I'm thinking of the Ancient Greeks and the various native tribes like the Yanomamu), I'm wondering what, if any, the effect is of classifying what is a criminal propensity in our society as a mental illness. At what point do criminal actions morph into the world of mental illness? The problems with tying a crime or a criminal propensity with a mental illness include the ease with which an action can be brushed off as a manifestation of the illness and the ease with which it is to trap someone in a mental institution or mental illness cycle when there may not be an illness at all. I think the statute at question identifies the way our society is beginning to view certain crimes, especially those of a sexual nature. This idea of sexually-related crimes as manifestations of an illness seem to also reflect the new trend in people seeking therapy and the like for sexual addictions (think of various celebrities and politicians). We are beginning to bring any sort of sexual issues to the forefront of policies and research to where the statutes are matching the views that those who are sexually dangerous must have a mental illness, abnormality, or disorder.

As for whether the statute violates due process, that is another issue. The idea that a prisoner can be sentenced, fulfill that sentence, and then been deemed to be too dangerous to be released and have to continue to be held until he proves he is fit is a little strange. If the prisoner is so sexually dangerous to where he should not be released (specifically having engaged or attempted to engage in sexually violent conduct or child molestation), then wouldn't that have come forward and been considered during his trial? If we are classifying the prisoner as having a mental illness, abnormality, or disorder to the point where it results in his being sexually dangerous to others, then why would that not be a defense to the crime at the time of trial? Tying together the concept of mental illness and criminal propensity would exculpate the crime and instead render the defendant a candidate ripe for commitment starting from trial. I suppose it is possible that the defendant begins exhibiting sexually dangerous behavior in the prison, and thus, the statute would provide for an additional incarceration of sorts until he is either medically stable or the state takes custody of him (presumably to treat or house him until he is stable). Under that scenario, the statute would provide the defendant with a hearing and the right to counsel, as most adjudicative processes require. However, when we're talking about a defendant's right to be set free, it seems like a hearing is a little easy on the government. Is the hearing really more of a small trial, where the defendant's rights to not be held against his will are properly address? I don't know, and I think I would need to read more on that process before weighing in on it.

The fact that the defendant can request a review hearing every six months certainly helps the constitutionality of the statute in the due process issue. I think perhaps the statute should have a requirement that the hearing be within a certain time period, so as to set a limit on what could be an indefinite period of time. When we're dealing with someone's liberty, and this someone has served his court-ordered period of time, then the hearing should be in an expeditious manner. I know there is a strong public sentiment now to lock up sexual offenders, especially those who have child victims, and throw away the key, but every defendant has certain rights. It seems that the statute permits a defendant's rights to be put on hold in the name of public safety while the government gathers evidence to support a civil commitment for actions which were known of and possibly used at the time of trial and sentencing. I fail to see a clear break between the crime and sentence imposed and the actions used to set a civil commitment in place. It seems like the defendant is being punished once for the actions he committed to be found guilty and serve a sentence, and he is being punished again because society really doesn't like those crimes and wants to keep him locked up for as long as possible. If that is the case, then the original sentence is not a true sentence, and it means nothing. This is just the type of case to keep your eye on for the future.

Bankruptcy, etc.

My day job is being a Tennessee attorney who focuses on chapter 7 bankruptcies. You can read my job-related blog posts at http://gordonlawgroup.com/nashvilleattorney/.

The New Yorker's "After Stevens"

The New Yorker, one of my favorite publications, featured a profile on Justice John Paul Stevens in its March 22, 2010, issue. See http://www.newyorker.com/reporting/2010/03/22/100322fa_fact_toobin. All too often, Supreme Court justices are cloaked in mystery. They are held apart from most of society. Part of that separation is necessary -- it helps them focus on the cases as they are presented. It also reduces any pressure to decide a case on alternative grounds. However, I found it interesting that the justices are isolated not only from society, as a whole, but they are also relatively isolated from each other. Having clerked for an appellate judge, I realize that each judge must make his or her own decision and that discussion is limited between the judges. Most of the time, at least in the chambers I have experienced, it is because the judges are simply too busy writing and editing. Additionally, many of the cases had simple issues that could be addressed easily. When a case presented a particularly troubling issue, it was common for the judges to discuss the different principles once a draft had been circulated. According to Jeffrey Toobin's description of the Supreme Court's protocol, the justices rarely interact, and they prefer to send each other memorandums. This is the court that is deciding cases that have come through the Federal court system and been deemed to have enough merit to be heard by the Supreme Court of the United States. Where is the roundtable? I can't help but think that maybe if the justices interacted a little more in person, there might be fewer catty opinions (See Scalia's contribution to the 2008 case Baze v. Rees, Scalia's dissent in Hamdi v. Rumsfeld, 542 US 507 (2004), and Scalia's dissent in Lawrence v. Texas, 539 U.S. 558 (2003), to name a few). The justices need not agree on all issues, but they should respect one another enough not to launch personal attacks on each other in opinions that are supposed to be addressing Constitutional issues. I think Toobin's article sheds some light on the mystery encircling the justices, and the explanation of how they interact helps explain how some of their opinions are drafted.

Purpose:

So many times, I come across interesting legal matters in the world, but I do not have the time to talk about what I find to be so interesting. This blog is meant to provide me with a forum where I can take some time and write about something I find interesting, and, if I am lucky, someone will respond and have a response. The main focus of the blog are legal cases, but it will obviously move into other areas occasionally. Let's give it a try.