Recent Caselaw 2017 Robert E. Shepherd, Jr. Juvenile Law and Education Conference University of Richmond School of Law Julie E. McConnell Director, Children s Defense Clinic University of Richmond School of Law 28 Westhampton Way Richmond, VA 23173 804-289-8205 jmcconne@richmond.edu S
Canales v. Torres, Record No. 1073-16-4 This appeal concerns whether Virginia J&DR and Circuit Courts have jurisdiction to consider and make Special Immigrant Juvenile (SIJ) findings. The appeal arises out of a custody case involving an immigrant child in Loudoun County, VA. The J&DR court and Circuit Court both awarded custody of the child to the petitioning parent (mother). But both wrongly declined to issue the SIJ findings of fact. At the J&DR level, the court refused because the Loudoun County judges interpret the 1 or both parents language to mean both. The Circuit Court refused because it held that it lacked subject matter jurisdiction. LAJC appealed to the CAV and in January 2017, LAJC argued the case before a 3 judge panel in Alexandria, VA. In March 2017, the CAV sua sponte set the case for a rehearing en banc. They also consolidated this case with another arising out of Arlington, invited the AG s office to weigh in, and appointed counsel to represent the interests of the absentee fathers. Both the AG and the VBA s Commission on the Needs of Children provided amicus briefs supporting the LAJC position on the matter and oral argument was May 9 th.
What any parent knows Research on adolescent brain development confirms the commonsense understanding that children are different from adults in ways that are critical to identifying age appropriate criminal sentences. This understanding Justice Kennedy called it what any parent knows (Roper v. Simmons, 543 U.S. 551, 569 (2005) was central to four recent Supreme Court decisions excluding juveniles from the harshest sentencing practices.
Recent Supreme Court Sentencing Decisions Involving Kids Roper v. Simmons (2005) Death Penalty is unconstitutional for minors. Graham v. Florida (2010) No LWOP for non-homicide offenses for minors. Individualized sentencing. J.D.B. v. North Carolina (2011)) The age of a child subjected to police questioning is relevant to the custody analysis of Miranda v. Arizona. Miller v. Alabama (2012) No mandatory LWOP for homicide offenses for minors. Montgomery v. Louisiana (2016) Miller is retroactive and there must be a meaningful sentencing hearing.
Montgomery v. Louisiana, 577 U.S., 136 S.Ct. 718 (2016). The U.S. Supreme Court's decisions in Miller v. Alabama, 132 S. Ct. 2455 (2012) and Montgomery v. Louisiana, 136 S. Ct. 718 (2016) represent a sea change in the administration of justice for youth in our country. Separately and together, they provide hope, and they represent another rung in the ladder toward more thoughtful and humane sentencing for youth. Miller eliminated mandatory life in prison sentences for youth (under age 18) because they are cruel and unusual under the Eighth Amendment, and Montgomery made Miller retroactive. Collectively, they impacted approximately 2,000 cases nationwide, including approximately 15 cases in Virginia.
Miller and Montgomery In Miller, Justice Kagan noted that adolescence is marked by immaturity, impetuosity, and failure to appreciate risks and consequences, all factors that limit an adolescent s ability to make sound judgments. In Montgomery, the Court ruled that allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity and who have since matured will not be forced to serve a disproportionate sentence in violation of the 8th Amendment.
Montgomery Justice Kennedy, writing for a 6-3 majority, noted that the Court in Roper, Graham, and Miller found that children are constitutionally different from adults in their level of culpability. Moreover, the severest punishment must be reserved for the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.
Ban on Life Sentences for Juveniles? Nineteen states and the District of Columbia have banned life sentences without the possibility of parole for juveniles; in a handful of other states, no one is serving the sentence. Virginia has not yet amended the capital murder statute to exclude juveniles.
Prekker v. Commonwealth, 66 Va. App. 103, 782 S.E.2d 604 (2016). The constitutional right to bear arms is not violated by the statute imposing a temporary ban on firearm possession by juveniles who have been adjudicated delinquent for acts that would have been felonies if committed by adults.
Du v. Commonwealth, 292 Va. 555, 790 S.E.2d 493 (2016). Trial court did not abuse its discretion in ordering lifetime probation following defendant s 50 years of active incarceration for statutory rape, aggravated malicious wounding, and malicious wounding convictions. Statutory maximum sentences applicable to defendant s convictions added up to life imprisonment plus 30 years, and imposition of lifetime probation was far less severe than life imprisonment authorized by statute.
Dingle v. Stevenson, 840 F.3d 171 (4th Cir. 2016). Although 17-year-old defendant pled guilty to murder charge to avoid the possibility of a death sentence under then existing law, subsequent Supreme Court decision invalidating death penalty for juvenile offenders did not justify withdrawal of guilty plea, regardless of whether ruling applied retroactively. There is no constitutional requirement that a defendant be permitted to disown his solemn admissions in open court simply because the maximum penalty then applicable has subsequently changed.
Vasquez v. Commonwealth, 291 Va. 232, 781 S.E.2d 920 (2016). Prohibition under Graham v. Florida, 560 U.S. 48 (2010), against life-without-parole sentences for juveniles who were not convicted of homicide does not extend to nonlife sentences that when aggregated, exceed a juvenile s normal life expectancy. The only reason that the aggregate sentences exceeded two juveniles life expectancies was because they committed so many separate crimes.
Johnson v. Commonwealth, 292 Va. 772, 793 S.E.2d 326 (2016). Defendant's life sentence for murder, which was committed two months short of his 18th birthday, did not violate Eighth Amendment's prohibition on cruel and unusual punishments, because defendant was not sentenced to life in prison without the possibility of parole. Under sentence, defendant would be eligible for geriatric release when he turned 60.
Jones v. Commonwealth, 795 S.E.2d 705 (2017). Sentence of life for capital murder committed when defendant was 17 years old was not mandatory life sentence in violation of Miller v. Alabama, 567 U.S. 460 (2012). Trial court had the ability to suspend part or all of sentence, and defendant was not denied statutorily provided opportunity to present mitigation evidence at sentencing, but rather affirmatively waived that right as part of negotiated plea agreement. In Virginia, a Miller v. Alabama violation can be addressed on direct review or in a habeas proceeding; because the violation, if proven, does not render the sentence void ab initio but merely voidable, it cannot be addressed by a motion to vacate filed years after the sentence became final. The Virginia Supreme Court is duty bound to enforce the Eighth Amendment consistent with the holdings of the highest court in the land; however, its duty to follow binding precedent is fixed upon case-specific holdings, not general expressions beyond specific holding.
Leblanc v. Mathena, 841 F.3d 256 (4th Cir. 2016). State court s denial of motion to vacate petitioner s sentence to life imprisonment without parole for nonhomicide offense he committed at age 16 based on finding that state s geriatric release program provided meaningful opportunity for release was unreasonable application of Supreme Court s decision in Graham v. Florida, 560 U.S. 48 (2010), which held that the Eighth Amendment forbids sentences of life without meaningful opportunity to demonstrate maturity and rehabilitation for juvenile offenders convicted of nonhomicide offenses, entitling petitioner to federal habeas relief. State geriatric release program authorized parole board to deny geriatric release for any reason and allowed for lifetime incarceration based solely on heinousness or depravity of a nonhomicide offender s crime. Mechanisms that allow a decision-maker to grant or deny a prisoner s early release for any reason without reference to any standards offer inmates nothing more than a bare possibility of release and therefore do not constitute parole for purposes of the Eighth Amendment.
Change our Lens-- Age Should be Mitigating Roper, Graham, J.D.B., Miller, and Montgomery make clear that age should be a mitigating factor, not an aggravating one.
Va. Code Sec. 16.2-266 Any state or local agency, department, authority or institution and any school, hospital, physician or other health or mental health care provider shall permit a guardian ad litem or counsel for the child appointed pursuant to this section to inspect and copy, without the consent of the child or his parents, any records relating to the child whom the guardian or counsel represents upon presentation by him of a copy of the court order appointing him or a court order specifically allowing him such access. Upon request therefor by the guardian ad litem or counsel for the child made at least 72 hours in advance, a mental health care provider shall make himself available to conduct a review and interpretation of the child's treatment records which are specifically related to the investigation. Such a request may be made in lieu of or in addition to inspection and copying of the records.
DJJ s Structured Decision-Making Tools DAI--The Detention Assessment Instrument is designed to enhance consistency and equity in the decision to detain and to ensure that only those juveniles who represent a serious threat to public safety are held. YASI--The Youth Assessment and Screening Instrument includes information on the juvenile s contacts with the criminal justice system. Length of Stay The Guidelines seek to promote accountability and rehabilitation by using data driven decision-making to support a juvenile s successful re-entry from commitment to the community. The LOS Guidelines were recently amended because they were the longest in the country. ***DJJ is also creating a dispositional matrix.
Examples of Evidence-Based Therapies Multi-Systemic Therapy home-based intervention that focus on improving the home environment and providing structure. Family Functional Therapy--The FFT clinical model concentrates on decreasing risk factors and on increasing protective factors that directly affect adolescents, with a particular emphasis on familial factors. Aggression Replacement Therapy focuses on teaching adolescents to replace aggressive behaviors with pro-social ones. Trauma-focused Cognitive Behavioral Therapy Teaches new skills to process thoughts and feelings regarding trauma. Transformation through Accommodation: Reforming Juvenile Justice By Recognizing and Responding to Trauma, Eduardo Ferrer.
Diversion We should be diverting kids away from the court system whenever appropriate. So often, kids are in court for very minor offenses that should have been diverted and once in, it is very hard to get out. Sometimes kids just before the court on status offenses end up on the monitor and in detention for minor violations of court orders. Services are available through the court service unit. They do not have to be in court. When we overwhelm Probation officers, they cannot be effective.
Probation is Not Always Necessary No correlation between recidivism and being on probation. We give it to everybody and it is often unnecessary. Problems are often more complex than getting their attention. Probation is compliance based, not based on risk to re-offend. Match the intervention to actual risk and needs.
Thank You! Julie E. McConnell Director, Children s Defense Clinic University of Richmond School of Law 28 Westhampton Way Richmond, VA 23173 804-921-3887 jmcconne@richmond.edu