Cruel & Unusual

Michigan Supreme Court Grants Leave on Carp and Eliason and J-LWOP

The Michigan Supreme Court just granted permission to appeal on People v Carp and People v Eliason. These cases deal with the retroactivity of the United States Supreme Court’s ruling in Miller v Alabama (Carp); and the appropriate remedy should be for these individuals (Eliason). The Court has also agreed to hear a third case where the question is whether a juvenile convicted of aiding and abetting first degree murder can potentially receive a natural life sentence or whether Graham v Florida bars this. I will post an update to this with links to the various orders in the near future. In the mean time, here is a good link from M-Live.

Second Circuit Reverses Judge Weinstein's Child Porn's Ruling

Critics decry mandatory minimum sentences for non-violent offenders as an unfair and expensive means of ruining lives. Yet the United States Court of Appeals, Second Circuit, recently stood its ground when it reversed federal Judge Jack Weinstein’s ruling to deliver a 30-month prison sentence to Corey Reingold, who had pled guilty to committing, at age 19, one count of distributing child pornography. According to a Sept. 27, 2013, news account from the ABA Journal, Reingold had shared child pornography through a file-sharing program called GigaTribe. He had admitted to downloading “a ton” of child porn and also admitted to sexual conduct with a minor who is a relative. The mandatory minimum sentence was five years. Their ruling is available here.
In the Second Circuit’s Sept. 26, 2013, reversal, where the order is to “remand the case to the district court with directions that it vacate the sentence and resentence the defendant consistent with this opinion,” Judge Weinstein’s 401-page sentencing opinion came under review, along with the judge’s allegation that a five-year sentence for Corey Reingold was an unconstitutional Eighth Amendment violation. Judge Weinstein had claimed the mandatory minimum a cruel and unusual punishment and had suggested that 30 months would provide enough psychiatric treatment to prevent a repeat offense.

The 2nd Circuit’s reversal, though, found no such constitutional violation and a case analysis gave much attention to
Harmelin v. Michigan, 501 U.S. 957 (1991), for case specific analysis and Graham v. Florida, 130 S.Ct. 2011 (2010), for categorical rule analysis. The court emphasized, citing Graham, that punishments are deemed cruel and unusual when they are both “inherently barbaric” and “disproportionate to the crime.” A five-year sentence, the court said, requires categorical rules to ensure constitutional proportionality as applied to particular felony crimes or classes of defendants, and the Second Circuit ruled that Judge Weinstein had not employed Graham’s analytic approach to pronounce a categorical rule. Instead, the appellate court said Judge Weinstein had found the five-year minimum disproportionate to the offense as applied specifically to Reingold. “The Supreme Court’s proportionality jurisprudence does not support such a substitution of Graham’s categorical-rule approach for Harmelin’s particular-case approach to assess the proportionality of an otherwise permissible term-of-years sentence as applied to a particular case,” the court said.

The reversal also criticized Judge Weinstein’s emphasis on juvenile offenders. “Reingold was already 19 when he committed the crime of conviction,” the 2
nd Circuit’s opinion reads. “In short, he was an adult, not a juvenile.”

Judge Weinstein’s sentencing opinion states that Corey Reingold was 15 when he started smoking marijuana and drinking alcohol. A year later, the judge wrote, a friend introduced him to child pornography on the Internet. He began watching the material with male and female peers.


Interesting Miller Developments in Massachusetts

Professor Berman has an interesting article on his blog about how Massachusetts is planning on dealing with the Miller problem. Under the bill, they will extend juvenile court jurisdiction to age eighteen. The juvenile court could sentence a defendant into adult court or even give him/her natural life, but the assumption is that the juvenile court would have better experience how to deal with a juvenile.

Illinois Court of Appeals Says Miller is Retroactive

The Illinois Court of Appeals just issued a 29 page opinion saying that Miller v Alabama is fully retroactive. This directly conflicts with the Michigan Court of Appeals ruling from two weeks ago to the contrary in People v Carp. The Court said that the ruling was a watershed ruling.
Williams - Miller retroactivty

Court of Appeals Affirms Carp

Today the Michigan Court of Appeals upheld People v Carp. At issue was was whether the Supreme Court’s ruling in Miller v Alabama was retroactive. If Miller was retroactive, the Court also had to figure out what the appropriate remedy. The Court found that Miller was not fully retroactive and did not apply to cases that were final when Miller was decided. The Court stated that until legislation is passed to fix the Miller problem in Michigan, the remedy was to reduce individual sentences to life with the possibility of parole. The pleadings are available here.

Meanwhile the Legislature has taken action to try and fix things as well.
According to this news article, Michigan has proposed a new bipartisan package of bills on JLWOP in response to Miller. News coverage is here: . Here a legislative summary.

Michigan Supreme Court Vacated In re TD - DiPiazza Lives

In People v DiPiazza, 286 Mich App 137, 778 NW2d 264 (2009), the Michigan Court of Appeals ruled that Michigan's sex offender registration can be unconstitutional as applied to certain individuals. Mr. DiPiazza was involved in the classic "Romeo and Juliet" relationship with his fifteen year old girl friend. He was given a Holmes Youthful Trainee Act (“HYTA”) by a Muskegon County judge. This meant that he did not have a criminal conviction. Notwithstanding the HYTA, he was placed on the sex offender registry. He later married his girl friend and they had children together. Because of his being listed on the sex offender registry, the Defendant became virtually unemployable. A Grand Rapids panel of the Court of Appeals found that SORA was cruel and unusual as applied.

In re TD, the Court of Appeals refused to apply the ruling to juveniles. These Defendants were convicted in the Family Division of the Washtenaw County Circuit Court of second degree criminal sexual conduct. Shortly before the Defendant turned eighteen, he petitioned for relief from the sex offender registry. The Washtenaw judge found that the Defendant did not meet the statutory criteria for removal, but found that DiPiazza made the registry unconstitutional punishment. The Washtenaw County Prosecutor’s Office appealed to this ruling to the Lansing Division of the Michigan Court of Appeals. That panel reversed the trial court’s ruling. They distinguished and somewhat criticized the DiPiazza ruling.

Because of a statutory change, the former juveniles in In re TD, however, were relieved from their registration obligations. Taking the case over at the Michigan Supreme Court level, the University of Michigan Juvenile Law Clinic successfully convinced the Michigan Supreme Court to set aside the Court of Appeals ruling.
Click here to see their order. This has created as a "reset" and returned the law to a pre-In re TD state. Congratulations to my friend Professor Kim Thomas of the University of Michigan Law School in Ann Arbor on a job well done!

Pennsylvania Governor Signs Senate Bill into Law

On Friday, the Michigan Court of Appeals ruled that individuals have the right to “open carry” a firearm to a public library. The ruling and various reference links are available under my extended analysis which you can see by clicking the “read more” link below. Read More...

Former Prosecutor Supports Relief to JLWOP Defendants

There was an interesting article by a former appellate prosecutor (now disciplinary counsel) Preston Shipp supporting California’s Senate Bill No. 9 giving relief of former juveniles serving life without a parole (JLWOP) for offenses committed while they were juvenile. Contrary to the rigid beliefs of many prosecutors, Mr. Shipp believes these individuals deserve a second chance.

Pennsylvania Legislature Passes Miller Fix - Updated

According to this AP article, the Pennsylvania Legislature has just passed this Miller fix. Pennsylvania Senate Bill 850. For first degree murder, 15-17 year olds would get either a mandatory 35 years to life sentence or a LWOP sentence; those under 15 years old would get either a mandatory 25 years to life or LWOP sentence. For second degree murder, 15-17 year olds would get a mandatory 30 years to life sentence; those under 15 would get 20 years to life sentence. Here is another interesting summary. Here is a link to the official history on the bill. Here is a link to the Senate Fiscal analysis.It is important to stress that higher sentences are possible and it is possible for a judge to still impose a non-parolable life sentences (for first degree murder defendants only) based on a specific finding of facts.

Pennsylvania has three degrees of murder. Murder in the first degree carried natural life or the death penalty. Second degree murder carried a mandatory life without the possibility of parole. Third degree murder is subject to sentencing under Pennsylvania’s Sentencing Guidelines. Pennsylvania Attorney David Lampman has a
nice summary of Pennsylvania’s homicide laws.

Update: I just found out that the Pennsylvania Coalition for Fair Sentencing of Youth and its parent national organization have serious problems with this law. They consider the bill a hasty piece of legislation that has been rushed through. Pennsylvania Governor Corbetthas until October 27th to sign or veto the bill. Under Pennsylvania law, the Governor could also line-item veto the JLWOP provisions from the legislation. Stay tuned.

The law is not retroactive to cases that were finalized before the date that Miller was decided (June 24, 2012).

Miller v Alabama Developments - Updated and Remixed

This is an update and consolidation of several Miller stories posted over the last several days. Last June the United States Supreme Court struck down a mandatory life without a parole sentence given to juveniles who kill. Michigan is the state with second largest group of juveniles serving these JLWOP (“juvenile life without parole”) sentences; Pennsylvania will be the first comprehensive decision. Florida has ruled that Miller is not retroactive in an unpublished decision where the defendant didn’t have counsel and missed key arguments. Louisiana has ruled that Miller is retroactive, but they did so in a summary order without much reasoning. We will be arguing later today that Miller is retroactive in what should be the second comprehensive decision. Read More...

CoA to Hear Miller Retroactivity Case

In People v Carp, the Michigan Court of Appeals agreed to hear whether the U.S. Supreme Court’s ruling in Miller v Alabama is retroactive. Miller struck down mandatory juvenile life without parole sentences for juveniles convicted of murder. Previously, the Court struck down the same punishment as applied to non-murderers.The Court said that life without should rarely be given. One of the two cases that the Court heard was from Arkansas and called Jackson v Hobbs. Since Jackson had already lost his appeal, yet the Supreme Court gave Mr. Jackson the benefit of the ruling, a very good argument exists that Miller is fully retroactive. The Carp pleadings are available here.

SCOTUS Hears Oral Arguments on Life for Juveniles

Yesterday, the United States Supreme Court heard oral arguments in Graham v. Florida, No. 08-7412 and Sullivan v. Florida, 08-7621. In both cases, the Court juvenile offenders were given non-parolable life sentences. Several years ago, the high court struck down the death penalty for juvenile offenders taking notice of cognitive development and the fact that juveniles brains are not fully developed at the time. They neither fully appreciate the consequences of their actions or are as set in their ways as their adult counterparts.According to SCOTUS blog, the oral arguments look promising. Chief Justice Roberts took the lead in arguing that the sanction was too harsh. Stay tuned.

Michigan's SORA Declared Unconstitutional As Applied to Youthful "Romeo"

Individuals convicted of sex offenses in Michigan lives a subhuman life even after they are off parole. Michigan’s sex offender registry forces individuals to register for twenty-five years for most offenses and this registration might as well be the kiss of death. Generally, the Courts have been unsympathetic. In People v DePiazza, Court of Appeals No. 284946, the Court of Appeals finally struck down one application of Michigan’s Sex Offender Registration Act (SORA).


Robert DiPiazza was convicted at the age of eighteen for consensual sex with his then fifteen year old girl friend. (A “Romeo and Juliet” offense). There was no dispute that the act was consensual, the couple subsequently married and are expecting their first child. At the request of the victim’s family, Mr. DiPiazza was given diversion under the Holmes Youthful Trainee act for the reduced offense of attempted third-degree criminal sexual conduct and sentenced to probation. In 2005, he completed the probation and the charges were dismissed.


Despite this, Mr. DiPiazza has been forced to register on the sex offender registry and could not hold a job because he was a “registered sex offender.” A unanimous panel fo the Michigan Court of Appeals found that the law was cruel or unusual punishment as applied.


Congratulations to Miriam Auckerman of Legal Aid of Western Michigan, the ACLU of Michigan, and the many other civil rights groups who won this very difficult victory!

SCOTUS DENIES Rehearing in Kennedy v LA!

Kennedy v LA Goes to Conference