Wednesday, July 06, 2016
The title of this post is the title of this notable new paper authored by Perry Moriearty and now available via SSRN. Here is the abstract:
Over the last fourteen years, the Supreme Court has issued five decisions that impose substantive constraints on our harshest punishments -- forbidding the execution of those with “mental retardation” in Atkins v. Virginia, of juveniles in Roper v. Simmons, and of those convicted of child sexual assault in Kennedy v. Louisiana, and forbidding the sentence of life without parole for juveniles who had not killed in Graham v. Florida and for all juveniles when it is imposed mandatorily in Miller v. Alabama. Because the offenders in question were categorically less culpable, the proscribed punishment was disproportionately severe, the Court held.
In many respects, these decisions reinvigorated the Court’s substantive proportionality jurisprudence, which had been virtually dormant for two decades. Yet, three of the five decisions simply have not yielded in practice what they promised in principle. The implementation of Atkins, Graham and Miller has been so protracted, litigious and encumbered by procedural obstacles that, of the nearly 3,000 inmates nominally impacted by the decisions, only a fraction has been relieved of their sentences. In the meantime, inmates with IQs of 61 have been executed, and others have died waiting to hear whether the Court’s decisions apply retroactively.
This Article argues that, despite its transformative potential, the Court’s contemporary proportionality jurisprudence has been diminished in scope and potency in the course of its implementation -- a dynamic that has been called “slippage.” In many respects, the “slippage” of these mandates can be attributed to the decisions themselves, which are deregulatory and, in concert with the Court’s broader efforts to limit federal court jurisdiction over state criminal justice processes, tie the scope of relief to the political whims and majoritarian preferences of the States. On some issues, the procedural docility of these decisions has proven so problematic that the Court has twice within the last two years had to intervene, striking portions of Florida’s capital sentencing scheme in 2014 and, just weeks ago, declaring in Montgomery v. Louisiana that Miller does in fact apply retroactively.
While the Court’s reluctance to regulate the implementation of its proportionality mandates may be rationalized as necessary deference to the principles of federalism and finality, these justifications are far less compelling in the Eighth Amendment context. The very establishment of federal habeas, executive clemency, and Supreme Court review suggests that the Framers themselves recognized that there are normative points when interests in federalism and finality simply must yield. By contrast, the risk of offending constitutional norms through slippage may be at their most pronounced since one of the Eighth Amendment’s primary purposes is to protect the politically powerless from government overreach. I conclude that, if the Court is serious about implementing in practice the substantive constraints on punishment it has imposed over the last fourteen years, it must accompany its substantive mandates with a minimum threshold of procedural prescription.
July 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Jackson and Miller Eighth Amendment cases, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
Friday, December 12, 2014
Supreme Court grants cert to (finally!?!) resolve whether Miller applies retroactively
The Supreme Court, as revealed by this order list, finally appears set to resolve an issue that it has been avoiding for a few years as lower courts have split over implementing its Eighth Amendment work in Miller v. Alabama. Here is the basic news as set out in the order list:
TOCA, GEORGE V. LOUISIANA
The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted limited to the following questions: 1) Does the rule announced in Miller v. Alabama, 567 U. S. ____ (2012), apply retroactively to this case? 2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find a Teague exception?
December 12, 2014 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack
Tuesday, February 11, 2014
"The Illusory Eighth Amendment"
The title of this post is the title of this notable new article by John Stinneford now available via SSRN. Here is the abstract:
Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.
This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a substitute for constitutional interpretation. A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation. Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication.
This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation. When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning. Such rules also narrow the scope of the Constitution itself, denying protection to any claimant who does not come within the rules. The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it.
February 11, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Sunday, October 20, 2013
"Alleyne v. United States, Age as an Element, and the Retroactivity of Miller v. Alabama"The title of this post is the title of this intriguing Essay by Beth Colgan recently published on the UCLA Law Review's on-line supplement. The introduction previews the issues and argument in the piece:
The U.S. Supreme Court announced in Miller v. Alabama, that the mandatory imposition of life in prison without the possibility of parole against juveniles is cruel and unusual punishment in violation of the Eighth Amendment. The million-dollar question is whether it would do any good for the over 2000 juveniles who had previously been so sentenced. For those jurisdictions that follow or rely heavily on the dictates of retroactivity set out by the Supreme Court in Teague v. Lane, the touchstone of Miller’s retroactivity hinges on whether the rule it announced is substantive — and therefore retroactive — or procedural.
The Miller opinion provides no clear guidance. On the one hand, the opinion sounded in procedure, with the Court requiring “that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty.” On the other hand, the opinion sounded in substantive law, in that it required fundamental changes in criminal laws that mandate the imposition of life without parole in homicide cases where the crime was committed before the defendant’s eighteenth birthday. Prior to Miller, states and the federal government could require that a court impose a sentence of life without parole on a juvenile without consideration of the defendant’s youth. But the Miller Court rejected such mandatory sentencing, reasoning that “age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” a juvenile’s history of abuse, the role the juvenile played in the homicide, the existence of peer pressure, the difficulties juveniles have navigating the legal system, and juveniles’ unique capacity for rehabilitation are all constitutionally relevant and therefore a sentencer must have an opportunity to consider such facts at sentencing.
The quasi-substantive/quasi-procedural nature of the opinion created a conundrum for lower courts assessing the retroactivity of the decision. The answer to this puzzle may come from an unlikely source: the Court’s Sixth Amendment jury trial jurisprudence, and particularly its June 2013 interpretation of that right in Alleyne v. United States. Though unrelated to both juvenile sentencing and the question of retroactivity, the Alleyne Court did determine that where the existence of a fact dictates whether a mandatory minimum applies, the fact is, in effect, an element of the underlying offense. This Essay extrapolates from the Alleyne holding to argue that Miller’s requirement that sentencers consider age and its attendant consequences in cases involving juveniles — making age at the time of the offense a fact that triggers whether the mandatory minimum sentence of life without parole applies — converts age to an element of the underlying offense, rendering Miller a substantive rule that must be applied retroactively.
October 20, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack
Monday, September 09, 2013
"Talking About Cruelty: The Eighth Amendment and Juvenile Offenders after Miller v. Alabama"The title of this post is the title of this notable new paper by Samuel Pillsbury now available via SSRN. Here is the abstract:
After setting out the issues and approach of the U.S. Supreme Court majority in Miller v. Alabama, the article develops cruelty as a constitutional norm. Initially cruelty as a norm for Enlightenment thinkers in the late 18th century and in the creation of the American penitentiary in the early nineteenth century is considered. Then the article examines cruelty as a modern norm that condemns both sadism and indifference towards the serious suffering of others. This norm supports the Miller conclusion that mandatory life without chance of parole sentences for certain juvenile offenders are cruel, because such sentences mandate a form of culpable indifference to individual value.
The article then describes how a cruelty norm may guide courts in resolving the constitutionality of a life without chance of parole sentence for juvenile by a judge who had discretion to order a lesser sentence. The cruelty norm described would find unconstitutional a life sentence for a juvenile unless a subsequent opportunity was provided for the offender to seek release based on personal reform. Otherwise, a life sentence would disregard the basic value of the offender in the person that he or she might become.
September 9, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Monday, August 26, 2013
Terrific Stateline review of states' varied applications of and reactions to MillerMaggie Clark over at Stateline has this notable new article (and this amazing associated resource) reviewing all the diverse ways states are deal with the Supreme Court's Miller ruling. the piece is headlined "After Supreme Court Ruling, States Act on Juvenile Sentences," and here are excerpts:
Last year, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory life sentences for offenders under 18 are cruel and unusual punishment, and therefore unconstitutional. In the wake of that decision, a federal court this month ruled that ... more than 300 other Michigan juvenile lifers are entitled to a parole hearing.
Michigan is one of at least 11 states that have revisited their sentencing laws in response to the Supreme Court decision (see Stateline chart). Generally, juvenile killers in those states will be eligible for a parole hearing after serving a mandatory minimum sentence of about 25 years.
Still, there are at least 15 states that have not yet eliminated mandatory life without parole sentences for juveniles. In many states, legislatures and courts aren’t sure how the Miller decision should apply to offenders such ... already serving such sentences. Nationwide, there are more than 2,000 prisoners in 43 states serving life without parole sentences for crimes they committed as juveniles....
[I]n Pennsylvania, which has largest number of inmates whose sentences are covered by the Supreme Court ruling, the state Supreme Court has been considering the retroactivity question for over a year. The court’s decision could lead to the resentencing and eventual release of over 400 convicted murderers.
In Michigan, Iowa, Illinois, Louisiana and Mississippi, judges have ruled that the Supreme Court decision applies retroactively to all prisoners serving such sentences. But in Minnesota and Florida, judges have ruled that the Supreme Court decision only applies to future cases.
State Supreme Courts in Illinois, Florida, Massachusetts and Colorado will likely consider the retroactivity question this fall, said Marsha Levick, chief counsel at the Juvenile Law Center, a legal advocacy group for youth....
The super-predator theory, popular in the early 1990s, predicted a wave of juvenile violent crime in the following decade. States reacted by treating many juvenile offenders as if they were adults. Between 1992 and 1995, 48 states increased penalties for juveniles convicted of violent crime, according to the Department of Justice. But that wave never came: Juvenile crime started to drop in the early 1990s, and it has continued to decline in the years since, as has adult crime.
The harsher juvenile sentencing laws likely were not a factor in the decline, since data show there was no difference in the crime rate for states with mandatory life without parole sentences and those without. Crime has declined nationwide, and across all demographics....
Considering youth as a mitigating factor is part of the Supreme Court’s broader move toward treating kids differently than adults. In two decisions banning the death penalty for juveniles for both homicide and non-homicide crimes, the justices relied heavily on neuroscience showing that brains are still growing and changing well through the teenage years, meaning that juveniles are likely to grow out of their criminal behavior, especially if they’re put in a rehabilitative setting.
Still, kids are committing adult crimes, and in these cases, victims’ families were promised life without parole sentences for their family member’s killer, said Joy Yearout, spokeswoman for Michigan Attorney General Bill Schuette. “Families were told that (the killers) would never be paroled, and that could have been 20 or 30 years ago,” Yearout said. “Now the families are being told that’s not true anymore and that’s very frightening. It’s very important to have truth in sentencing so that victims have assurance that the sentence will actually be what’s set.” Schuette has said he will appeal the Michigan federal court decision.
Most of the 11 states that have changed their laws to comply with Miller v. Alabama have either discouraged the use of life without parole sentences for juveniles, or scrapped them altogether.
But because the Supreme Court only struck down mandatory life without parole for juveniles, and not all such sentences, states are not required to completely overhaul their juvenile sentencing policies. In Alabama, where the Supreme Court case originated, the attorney general recently advised district attorneys to seek life with parole in two ongoing juvenile murder cases. The Alabama legislature has not yet approved any changes in mandatory sentencing laws to comply with the Supreme Court ruling.
August 26, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, August 13, 2013
US District Judge tells Michigan that all its mandatory juve LWOP sentences are unconstitutionalAs reported in this local piece, headlined "Judge upholds ban on life, no parole for juveniles in Michigan," a federal district judge in the state up north has issued a new little opinion with significant impact for juve LWOP defendants sentenced before Miller. Here are the basics:
A federal judge ruled Monday that Michigan must grant parole consideration to anyone convicted of murder as a juvenile, rejecting the state attorney general’s request that an earlier decision to implement the U.S. Supreme Court’s ban on no-parole sentences for juveniles apply only to the convicts who challenged the state’s law.
Michigan has an automatic life-without-parole sentence for first-degree murder convictions, and applies at any age. The U.S. Supreme Court ruled last year that it is cruel and unusual punishment to deny parole consideration to those who are under 18 when convicted. The state said at the time said it had more than 350 prisoners in that category, out of about 2,000 nationwide....
Acting on a 2010 suit by nine Michigan prisoners who received no-parole sentences as juveniles, U.S. District Judge John Corbett O’Meara in Ann Arbor ruled Jan. 30 that Michigan must allow the possibility of parole in cases where the defendant is under 18 when convicted. The U.S. Supreme Court ruled on mandatory no-parole punishments while that lawsuit was pending.
Michigan Attorney General Bill Schuette filed a motion that O’Meara’s decision apply only to those who brought the suit, while the ACLU asked that it apply to those now serving life without parole for convictions as juveniles. Schuette’s office has contended that the Supreme Court’s decision didn’t automatically apply to past sentences, only to those sentenced since the 2012 high court ruling.
On Monday, O’Meara rejected Schuette’s request and said the high court’s ruling applied to past as well as future sentences. State prosecutors “believe they may enforce the statute, which the court has declared unconstitutional, with respect to other juveniles sentenced to life in prison,” the judge wrote. “As this court now makes clear, defendants are incorrect.”
“Every person convicted of first-degree murder in the state of Michigan as a juvenile and who was sentenced to life in prison shall be eligible for parole,” the judge said.
Schuette spokeswoman Joy Yearout said the attorney general “disagrees strongly” with the ruling and said it would subject victims’ families “to re-live horrible tragedies at future parole hearings for teenage murderers already sentenced by a jury of their peers to life in prison without parole.”
“Once a final order is entered in this case, Attorney General Schuette intends to file an immediate appeal,” Yearout said in an email.
The order referenced here runs only two pages and is available at this link. I think it kind of "resolves" the issue of whether and how the Supreme Court's Miller rulong applies retroactively in a potent and (unduly?) simplistic way. It will be interest to see just how the Michigan AG develops his arguments on appeal and what the Sixth Circuit ultimately has to say about them.
August 13, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack
Thursday, May 23, 2013
NACDL rolls out state-by-state "excessive sentencing" proportionality litigation resource
I am extraordinarily proud and excited to report that, as detailed via a new NACDL news release, that the National Association of Criminal Defense Lawyers is now offering, "as a resource for its members and as a service to the public, a collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."
This resource has been given the name Excessive Sentencing: NACDL’s Proportionality Litigation Project its main page can be accessed via this link. Here is a bit more from the NACDL press release about the resource (and also my role therein):
Development of this new resource was inspired in part by the Supreme Court’s recent landmark constitutional decisions in Graham v. Florida, 130 S. Ct. 2011 (May 17, 2010), and Miller v. Alabama, 132 S. Ct. 245 (June 25, 2012), which pronounced new Eighth Amendment limits on when and how states can impose life without parole prison terms on juvenile offenders. The state profiles and related materials provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. They are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms.
The primary academic supervisor of this resource is Professor Douglas A. Berman of The Ohio State University Moritz College of Law.... Professor Berman intends to update these materials regularly as developments in the law warrant and new information becomes available.
On the project’s landing page –- which can be accessed here -- there is a free, nearly 90-minute sentencing skills webinar featuring Professor Berman and Stephen Hardwick, an assistant public defender in Columbus, Ohio....
In addition, the project landing page has this additional account of what this resource now provides and hopes to help achieve:
The state profiles and related materials, which were prepared by recent law school graduates under the supervision of Professor Douglas A. Berman, provide a detailed snapshot of existing proportionality doctrines and jurisprudence as of fall 2012. Unsurprisingly in the wake of Graham and Miller, there has been a significant increase in state-level litigation concerning lengthy prison terms, especially for juvenile offenders. The expectation is to have Professor Berman, in conjunction with the pro bono efforts other lawyers and aided especially by NACDL members and others who utilize this resource, revise and update these profiles regularly.
The profiles and charts are intended as a resource for practitioners in all phases of the criminal justice system, for sentencing and appellate courts, for policymakers and advocates concerned with the high economic and human costs of excessively long terms of imprisonment, and for defendants facing or serving extreme prison terms. The Supreme Court has repeatedly stressed that the Eighth Amendment’s “scope is not static [but] must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 (1958); state-level doctrinal and jurisprudential developments have thus always had heightened federal constitutional significance in this area of law. Moreover, state policy-makers and state jurists have long understood that the Eighth Amendment sets only a minimum constitutional floor limiting only the most extreme punishment policies and practices: state lawmakers and judges can and should feel not merely free, but institutionally obliged, to consider developing their own distinct legal limits on unduly harsh sentencing terms based on distinct state-level requirements and needs. The profiles posted here demonstrate that, even though there is some notable convergence in state-level proportionality doctrines, there are also some important variations and innovations concerning how states seek to protect its citizens from extreme or excessive criminal punishments.
I plan to discuss this web resource and the broader NACDL projectin a series of posts over the next few weeks and months. For now, I just hope everyone will take a look at what we have posted (and perhaps begin commenting on what other materials might be usefully assembled and linked in this space).
May 23, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack
Wednesday, May 22, 2013
Notable Miller-aftermath news from three states
Coincidentally, I saw these three news stories this morning concerning how three states are dealing (or not dealing) with the Supreme Court's 2012 Miller ruling concerning the sentencing of juvenile murderers:
From Alabama here, "Lawyers look to Alabama Supreme Court on juvenile killer sentences after legislature fails to act"
From Louisiana here, "Juveniles serving life sentences could become parole eligible under bill headed to Louisiana Senate"
From Missouri here, "Missouri sentencing law for juveniles draws criticism"
In addition to urging readers to comment on which of this trio of states seems to be doing better or worse job with Miller management, I wonder if anyone knows of a collection of resources (ideally on-line) with a state-by-state accouting of responses to Miller and/or a defendant-by-defendant review of efforts to obtain resentencing based on Miller.
May 22, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Thursday, April 25, 2013
Arkansas Supreme Court explains what Miller ruling means now for Kuntrell JacksonAs reported in this AP piece, in a ruling today the Arkansas Supreme Court "ordered a new sentencing hearing for Kuntrell Jackson, whose case was one of two that led to a U.S. Supreme Court decision last year throwing out mandatory life sentences without parole for juveniles." The nine-page ruling in Jackson v. Norris, 2013 Ark. 175 (April 25, 2013) (available here), is an interesting read for a number of reasons.
First, this latest round of habeas litigation for Kuntrell Jackson does not deal at all with any possible dispute over whether the Supreme Court's Miller ruling is to be given retroactive effect. This may because it appears the prosecution did not contest Jackson's request to be resentencing in light of Miller, as evidence by this sentence from the opinion: "We agree with the State’s concession that Jackson is entitled to the benefit of the United State’s Supreme Court’s opinion in his own case. See Yates v. Aiken, 484 U.S. 211, 218 (1988)."
Second, after parroting most of the key language from the SCOTUS Miller ruling, the Arkansas Supreme Court has an interesting discussion of how to revamp the sentencing provisions applicable to Kuntrell Jackson's conviction in the wake of Miller. Here is how that discussion finishes:
We thus instruct the Mississippi County Circuit Court to hold a sentencing hearing where Jackson may present Miller evidence for consideration. We further instruct that Jackson’s sentence must fall within the statutory discretionary sentencing range for a Class Y felony. For a Class Y felony, the sentence is not a mandatory sentence of life imprisonment without parole, but instead a discretionary sentencing range of not less than ten years and not more than forty years, or life. Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997).
Finally, we are mindful that Jackson argues that as a matter of Eighth Amendment law, and because of the unique circumstances of this case, he cannot be sentenced to life imprisonment. However, it is premature to consider whether a life sentence would be permissible given that a life sentence is only one of the options available on resentencing.
Notably, Jackson's crime took place in 1999, and I presume he has been in custody since his arrest. In other words, given that he has already served more than a decade in prison and that the Arkansas Supreme Court has decided he is now eligible for a sentence as low as 10 years, he could possibly upon resentencing get a term of only time served. Going forward, it will be interesting to see what sentence state prosecutors request and what sentence actually gets imposed on Jackson at his future resentencing.
April 25, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, March 19, 2013
Is TJ Lane eager to be the "uncommon" juvenile murderer who can constitutionally get an LWOP sentence?The question in the title of this post is prompted by this local news report about a high profile state sentencing proceeding which took place in Ohio this morning. The piece is headlined "Ohio school shooter, wearing 'KILLER' T-shirt, sentenced to life in prison," and here are excerpts:
An Ohio judge has sentenced T.J. Lane, the Ohio teen charged with shooting three students to death and wounding three others last February, to life in prison without parole.
Lane showed up to his sentencing wearing a white T-shirt with the word "KILLER" in capital letters scrawled on it -- the same word police say he had emblazoned on his shirt the day of the shootings at Chardon High School.
Lane, 18, pleaded guilty last month to all charges against him in the Feb. 27, 2012, shootings, in which he opened fire on a cafeteria table full of students in the rural community of Chardon.
In a brief statement during his sentencing on Tuesday, Lane flipped his middle finger to people in the courtroom, which included family members of his victims, reported NBC affiliate WKYC.com. He revealed his "KILLER" T-shirt to the court once he was inside, taking off a blue button-down shirt he had worn on the way in, the station reported.
Three students -- Demetrius Hewlin, 16; Russell King Jr., 17; and Daniel Parmertor, 16 -- were killed last February. Nate Mueller and Joy Rickers were wounded, as was Nick Walczak, who is paralyzed from the waist down, according to Reuters.
Lane has not given a motive for the shootings, which rocked the tiny town 30 miles outside Cleveland.
The families of the boys who died in the shooting have attended every one of Lane’s court hearings, The Plain Dealer said. "I feel he should be locked up for the rest of his life," Domenick Iammarino, grandfather of Daniel Parmertor told The Plain Dealer ahead of the sentencing. "It was a despicable, premeditated act. He should breathe his last breath in prison."
Those readers involved with juvenile sentencing or following closely modern Eighth Amendment rulings concerning life without parole sentences (LWOP) know that the Supreme Court in its recent ruling in Miller v. Alabama stated that "given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon." It would seem that TJ Lane, who was well past his seventeenth birthday at the time of his seemingly random act of mass murder, was eager to use his time in court today to help ensure that he could be a "poster child" for the kinds of cases and kinds of juvenile defendants for which an LWOP sentence may still be constitutionally permissible.
A few recent related posts:
March 19, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (14) | TrackBack
Sunday, November 18, 2012
Does Miller also render presumptive juve LWOP sentencing unconstitutional?The question in the title of this post is prompted by this notable new SCOTUSblog post by Lyle Denniston under the headline "A puzzle on juvenile sentencing." Here are excerpts from Lyle's very lengthy post:
Most of the time, when the Supreme Court sends a case back to a lower court for a further look, the task for the lower court is clear. But the Justices have left the California courts with little guidance on what to do now with a case involving a teenager convicted for his role in gang-related, drive-by shootings that left three people dead six years ago. The case involves a youth, seventeen at the time, who received three sentences of life without parole — to run one after the other — plus added prison terms.
Depending upon how California courts react, the case of Michael Angelo Mauricio of Compton, California, might well lead to added protection for minors convicted of murder. The case is Mauricio v. California (docket 11-10139).
What is at issue in his case is what the Supreme Court meant last month, when it ordered California’s Second District Court of Appeal to reconsider the sentences for Mauricio, focusing on the Court’s decision last Term in Miller v. Alabama (docket 10-9646). The Miller decision barred life-without-parole sentences for minors convicted of murder, but appeared to be limited to cases in which that sentence was mandatory. The puzzlement in Mauricio’s case is that, under California law, life without parole was not mandatory....
Mauricio was convicted ... of three counts of first-degree murder, with special circumstances that led to added punishment. He was sentenced to three consecutive life-without-parole sentences, plus three consecutive terms of twenty-five years to life. Upholding those sentences, the Second District Court of Appeal last year rejected Mauricio’s legal claim that it was unconstitutional, because of his youth, for the judge to opt for life-without-parole sentences when the judge had the discretion under state law to instead impose twenty-five-to-life sentences.
The appeals court said that, under California law, life without parole was the “presumptive punishment” for murder by a minor in the circumstances involved in Mauricio’s crimes, but that the law also said that, “at the discretion of the court,” the sentence could be twenty-five to life....
The Court majority’s opinion in Miller repeatedly stressed that it was dealing with LWOP as a mandatory matter.... But what did [the Court's] admonitions mean, in the face of a state appeals court ruling that had said explicitly that the sentencing judge had, in fact, taken Mauricio’s youth into account, had examined his role in the murders, and had weighed whether his case deserved the more severe punishment of LWOP? The remand order did not say. Still, the case was sent back to the state court, leaving it to figure out how to react.
Because the Supreme Court in Miller referenced an Eighth Amendment capital sentencing jurisprudence that seems to preclude any presumptive death penalty scheme, I am inclined to believe there are five votes to extend the Miller ruling beyond mandatory sentencing schemes to presumptive sentencing schemes. Of course, the remand in Mauricio is not a holding to this effect, but the remand certainly does hint that Miller is not the end of SCOTUS development of Eighth Amendment limits on severe sentencing systems for juveniles.
November 18, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack
Friday, November 16, 2012
Michigan appeals court decides Miller is not retroactive to final juve murder casesAs reported in this local article, which is headlined "Appeals Court: No resentencing for Michigan juvenile lifers, but state law is 'unconstitutional'," an intermediate appellate court has now issued a lengthy ruling on Miller's import and impact in the state up north. Here are the basics from the press report:
The Michigan Court of Appeals today denied a resentencing request for Raymond Carp, 21, who is serving a mandatory term of life in prison without the possibility of parole for a first-degree murder conviction when he was 16....
The ruling invalidated strict sentencing laws in Michigan and other states that treat violent offenders as adults, giving hope to hundreds of inmates serving life terms without hope of parole for crimes they committed as kids.
But the three-judge appeals court panel that heard arguments in the Carp case said today that the Supreme Court decision does not apply retroactively to offenders who already have exhausted the direct appeals process. The high court decision "is procedural and not substantive in nature and does not compromise a watershed ruling," they wrote in a 41-page published opinion.
Michigan is home to more than 350 juvenile lifers, one of the highest totals in the nation, and today's ruling may be appealed to the state Supreme Court.
The appeals court made a point to instruct judges in pending cases that Michigan's current law denying parole is "unconstitutional" when applied to juveniles and urged legislators to revise state statutes to comply with the Supreme Court ruling.
The full opinion in Michigan v. Carp, No. 307758 (Mich. Ct. App. Nov. 15, 2012), is available at this link; it runs 41-pages with nearly 200 footnotes. Here are the unanimous opinion's final paragraphs:
The United States Supreme Court has, through a series of recent decisions culminating in Miller, indicated that juveniles are subject to different treatment than adults for purposes of sentencing under the Eighth Amendment. Specifically, we hold that in Michigan a sentencing court must consider, at the time of sentencing, characteristics associated with youth as identified in Miller when determining whether to sentence a juvenile convicted of a homicide offense to life in prison with or without the eligibility for parole. While Miller does not serve to “foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”
While Miller is applicable to those cases currently pending or on direct review, we find that in accordance with Teague and Michigan law that it (1) is not to be applied retroactively to cases on collateral review, such as Carp’s, because the decision is procedural and not substantive in nature and (2) does not comprise a watershed ruling. We urge our Legislature to address with all possible expediency the issues encompassed by and resulting from Miller and that necessitate the revision of our current statutory sentencing scheme for juveniles.
In the interim, as guidance for our trial courts for those cases currently in process or on remand following direct appellate review, we find that MCL 791.234(6)(a) is unconstitutional as currently written and applied to juvenile homicide offenders. When sentencing a juvenile, defined now as an individual below 18 years of age, for a homicide offense, the sentencing court must, at the time of sentencing, evaluate and review those characteristics of youth and the circumstances of the offense as delineated in Miller and this opinion in determining whether following the imposition of a life sentence the juvenile is to be deemed eligible or not eligible for parole. We further hold that the Parole Board must respect the sentencing court’s decision by also providing a meaningful determination and review when parole eligibility arises.
November 16, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
Thursday, November 15, 2012
Notable post-Miller resentencing outcome in Florida caseThe Sun-Sentinel has this interesting report on a notable juve murder resentencing resulting from the Supreme Court's Miller ruling. This piece is headlined "Judge reduces life sentence to 40 years in homeless-beating case," and here are excerpts:
In addition to finding notable that the defendant here got his sentenced cut down to 40 years, I also find it interesting that the defendant here still is getting the longest sentence among his his co-conspirators even as the youngest of three Broward teens convicted of his crimes. He also is now getting, only thanks to the SCOTUS Miller ruling, the sentence that had been requested by prosecutors initially.
A Broward judge on Thursday reduced the life sentence of a teen sent to prison for clubbing to death a sleeping homeless man to 40 years. Thomas Daugherty was the youngest of three Broward teens to go to prison for Norris Gaynor's death and the only one to get a life sentence.
An appellate court has said that Daugherty, now 23, was entitled to a new sentencing hearing in light of a recent U.S. Supreme Court ruling that says judges must scrutinize whether juvenile offenders are amenable to reform before ruling that they can never go free.
Broward Circuit Judge Cynthia Imperato reduced the sentence she imposed in October 2008 after weighing Daugherty's remorse, commitment to bettering himself behind bars, hours of testimony detailing his broken childhood and the strong words of the dead man’s sister. “Your story is clearly heartbreaking,” Imperato said. “But we have someone who is dead, someone who was just sleeping on a bench, a homeless person who was beaten to death like a dog. I can't get beyond all that.”...
Daugherty ... was 17 when he and two friends, fueled on Xanax, marijuana and vodka, committed a trio of pre-dawn attacks against homeless Fort Lauderdale men in January 2006. One of the beatings was captured on surveillance tape at Florida Atlantic University's downtown Fort Lauderdale campus.
The graphic footage showed Daugherty repeatedly walloping a diminutive and defenseless man with a baseball bat, and catapulted the case into the national spotlight. The victim seen in the videotape, Jacques Pierre, survived. Norris Gaynor, 45, did not. His skull was split open as he slept on a park bench. A third victim also survived.
Daugherty told the judge he abhors the aimless, drugged out person he was back then and while incarcerated has sought “to get as far away from that person that I was.”
“I hate who I was,” Daugherty tearfully said. “I hate everything about that person. I hate that video. I don't remember doing that to Mr. Pierrre, but I hate that person.”
In 2008, a Broward jury convicted Daugherty and Brian Hooks, also of Plantation, of second-degree murder and attempted murder for the unprovoked attacks.
William "Billy" Ammons, now 25, took a plea deal in exchange for his testimony and is serving a 15-year sentence at a state prison near Jacksonville. Hooks, now 25, is serving his 30-year sentence at a state prison in Martin County.
Daugherty's sentencing guidelines called for nearly 30 years in prison. Prosecutors suggested 40. Broward Circuit Judge Cynthia Imperato imposed life.
Daugherty returned to Imperato's courtroom at 10 a.m. Thursday as a result of a September ruling from the Fourth District Court of Appeal in West Palm Beach. The state appellate court's decision hinged on a June ruling by the U.S. Supreme Court that judges must consider immaturity and failure to appreciate risks and consequences before concluding that a juvenile offender can never go free....
At sentencing, Imperato told Daugherty she believed his remorse was genuine and that she understood that he had "a horrible and unfortunate upbringing" as the product of a broken home, exposed to drug abuse, neglect and abandonment but she still felt his acts showed "a total disregard for human life." The appellate court ruling did not prohibit Imperato from again imposing a life sentence.
November 15, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack
Tuesday, November 13, 2012
Reviewing Florida's struggles to deal with SCOTUS Miller rulingThe Miami Herald has this notable new article headlined "State courts struggle with Supreme Court ruling on young killers." Here are excerpts:
Five months ago, the U.S. Supreme Court banned mandatory sentences of life in prison without the possibility of parole for juveniles convicted of murder. But since the Miller v. Alabama decision, Florida courts have struggled to apply the ruling — and two Miami-Dade cases may help settle key lingering legal questions.
Does the ruling apply to past cases? A Miami appeals court, ruling on a South Miami-Dade killer convicted in 2000, doesn’t think so. That decision, which affects at least 180 cases statewide, is likely bound for higher courts.
When a judge last month gave convicted killer Benito Santiago 60 years in prison — making him the first South Florida juvenile sentenced after Miller — prosecutors immediately vowed to appeal, saying the sentence was illegal....
The Supreme Court never explicitly said Miller should apply to past convictions for juveniles. Florida has at least 180 defendants who could be eligible for new sentences under the Miller case, according to Barry University’s Juvenile Life Without Parole Defense Resource Center. At least 50 in Miami-Dade may be eligible, according to the Miami-Dade Public Defender’s Office. So far, none have been resentenced.
Within days of the Miller decision, defendants across the state began asking courts to get new sentencing hearings. Some prosecutors assumed the decision would be retroactive.
In Tallahassee, the Attorney General’s Office even agreed that “relief is appropriate” in the 2008 case of then 17-year-old Jose Gonzalez, who stabbed a man to death during a robbery, according to court documents.
In the case of Drewery Geter, he was 16 when he raped and slit the throat of nurse Helen Barker in front of her young son in 2000. After the Miller decision, convicted killer Drewery Geter asked Miami-Dade’s Third District Court of Appeals to toss his murder sentence for raping and slitting the throat of nurse Helen Barker in front of her young son when Geter was 16 years old.
But the court in September ruled Geter couldn’t get a new sentence because judges considering youth during sentencing was merely “evolutionary” and a “procedural change.” The court also ruled that applying Miller retroactively “would undoubtedly open the floodgates” of long-ago convicted killers seeking new sentences....
The Miami appeals court’s decision surprised legal observers — because Geter represented himself. The court did not ask lawyers on either side to lay out their arguments. “Everybody was shocked and dismayed,” said Ilona Prieto Vila, director of Barry’s resource center. “It kind of came out of the blue. You have a right to counsel in Florida and there was a lot of confusion about what happened and why he did not have an attorney.”
Immediately, hearings for new sentences halted in trial courts around Florida. A Tallahassee appeals court, in the Gonzalez case, last month agreed with the Geter decision. Legal observers believe the “retroactivity” issue will be settled in higher courts....
Higher courts, at least in Florida, and possibly the Legislature itself will likely also have to settle the question of the proper sentence for juveniles convicted after the Miller decision. Santiago’s was the first South Florida murder case to go to sentencing after the Miller decision. He was 17 when he used an AK-47 to mow down a man and woman in Liberty City in 2006. Their young daughter identified the killer because of his distinct face cross tattoos. Miami-Dade jurors in August convicted him of two counts of first-degree murder....
Venzer did not let him off easy: 60 years. Miami-Dade prosecutors say they will appeal. The reason: According to the Florida Prosecuting Attorneys Association, first-degree murder sentences now must “revert” back to before the sentencing laws were changed in 1994. That means youths convicted of first-degree murder should get an automatic life sentence — but with the chance for parole after 25 years.
The state long ago effectively abolished the parole system, but a commission still exists to examine longtime inmates eligible for release because their cases date back to the early 1980s or before. “The parole commission was never eliminated,” said Pensacola State Attorney William Eddins, the head of the prosecutors’ association. “The commission will just have some more cases is what it amounts to.”
Critics, including the Public Defender’s Office, say courts don’t have the authority to “enact a new, hybrid statute.”
Though not mentioned in this article, another good example of Florida's struggles with Miller is reflected in another appellate decision just last week in Washington v. Florida, No. 1D11-2314 (Fla. 1st Dist. App. Nov. 5, 2012) (available here). The majority opinion in this case just remands a juve murder case for resentencing, and the concurrring opinion gets started this way:
I concur in the majority's decision to remand for resentencing pursuant to the dictates of Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012). I disagree, however, with the majority’s decision not to determine which are the appropriate sentencing alternatives available to this trial judge. The failure to reach this difficult issue gives no guidance to this trial judge or the numerous other judges facing sentencing or resentencing decisions in similar circumstances, and it deprives the supreme court of the benefit of our thoughts on an issue which will ultimately reach that court.
November 13, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack
Friday, October 26, 2012
Pennsylvania Gov signs "Miller fix" sentencing legislation into lawAs reported in this local article, headlined "Bill provides alternatives to life sentences for juveniles convicted of murder," I believe Pennsylvania has now won the award for being the first state to reform its law to comply with the Supreme Court's Eighth Amendment ruling in Miller v. Alabama. Here are the details:
Minors convicted of murder in Pennsylvania could serve as little as 20 years in prison under guidelines set in a bill signed into law by Republican Gov. Tom Corbett on Thursday.
Just after seven-thirty on the morning of February 27th, a seventeen-year-old boy named T. J. Lane walked into the cafeteria at Chardon High School, about thirty miles outside Cleveland. It was a Monday, and the cafeteria was filled with kids, some eating breakfast, some waiting for buses to drive them to programs at other schools, some packing up for gym class. Lane sat down at an empty table, reached into a bag, and pulled out a .22-calibre pistol. He stood up, raised the gun, and fired. He said not a word.
Russell King, a seventeen-year-old junior, was sitting at a table with another junior, Nate Mueller. King, shot in the head, fell face first onto the table, a pool of blood forming. A bullet grazed Mueller’s ear. “I could see the flame at the end of the gun,” Mueller said later. Daniel Parmertor, a sixteen-year-old snowboarder, was shot in the head. Someone screamed “Duck!” Demetrius Hewlin, sixteen, was also shot in the head, and slid under the table. Joy Rickers, a senior, tried to run; Lane shot her as she fled. Nickolas Walczak, shot in his neck, arm, back, and face, fell to the floor. He began crawling toward the door.
Ever since the shootings at Columbine High School, in a Denver suburb, in 1999, American schools have been preparing for gunmen. Chardon started holding drills in 2007, after the Virginia Tech massacre, when twenty-three-year-old Seung-Hui Cho, a college senior, shot fifty-seven people in Blacksburg.
At Chardon High School, kids ran through the halls screaming “Lockdown!” Some of them hid in the teachers’ lounge; they barricaded the door with a piano. Someone got on the school’s public-address system and gave instructions, but everyone knew what to do. Students ran into classrooms and dived under desks; teachers locked the doors and shut off the lights. Joseph Ricci, a math teacher, heard Walczak, who was still crawling, groaning in the hallway. Ricci opened the door and pulled the boy inside. No one knew if the shooter had more guns, or more rounds. Huddled under desks, students called 911 and texted their parents. One tapped out, “Prayforus.”
From the cafeteria, Frank Hall, the assistant football coach, chased Lane out of the building, and he ran off into the woods.
Moments later, four ambulances arrived. E.M.T.s raced Rickers and Walczak to Chardon’s Hillcrest Hospital. Hewlin, Parmertor, and King were flown by helicopter to a trauma center at MetroHealth Medical Center, in Cleveland. By eight-thirty, the high school had been evacuated.
At a quarter to nine, police officers with dogs captured Lane, about a mile from the school.
“I hate to say it, but we trained for exactly this type of thing, a school emergency of this type,” Dan McClelland, the county sheriff, said.
Danny Parmertor died that afternoon. That evening, St. Mary’s Church opened its doors, and the people of Chardon sank to their knees and keened. At the town square, students gathered to hold a vigil. As night fell, they lit candles. Drew Gittins, sixteen, played a Black Eyed Peas song on his guitar. “People killin’, people dyin’,” he sang. “People got me, got me questionin’, Where is the love?”
Russell King had been too badly wounded. A little after midnight, doctors said that they couldn’t save him.
There are nearly three hundred million privately owned firearms in the United States: a hundred and six million handguns, a hundred and five million rifles, and eighty-three million shotguns. That works out to about one gun for every American. The gun that T. J. Lane brought to Chardon High School belonged to his uncle, who had bought it in 2010, at a gun shop. Both of Lane’s parents had been arrested on charges of domestic violence over the years. Lane found the gun in his grandfather’s barn.
The United States is the country with the highest rate of civilian gun ownership in the world. (The second highest is Yemen, where the rate is nevertheless only half that of the U.S.) No civilian population is more powerfully armed. Most Americans do not, however, own guns, because three-quarters of people with guns own two or more. According to the General Social Survey, conducted by the National Policy Opinion Center at the University of Chicago, the prevalence of gun ownership has declined steadily in the past few decades. In 1973, there were guns in roughly one in two households in the United States; in 2010, one in three. In 1980, nearly one in three Americans owned a gun; in 2010, that figure had dropped to one in five.
Men are far more likely to own guns than women are, but the rate of gun ownership among men fell from one in two in 1980 to one in three in 2010, while, in that same stretch of time, the rate among women remained one in ten. What may have held that rate steady in an age of decline was the aggressive marketing of handguns to women for self-defense, which is how a great many guns are marketed. Gun ownership is higher among whites than among blacks, higher in the country than in the city, and higher among older people than among younger people. One reason that gun ownership is declining, nationwide, might be that high-school shooting clubs and rifle ranges at summer camps are no longer common.
Although rates of gun ownership, like rates of violent crime, are falling, the power of the gun lobby is not. Since 1980, forty-four states have passed some form of law that allows gun owners to carry concealed weapons outside their homes for personal protection. (Five additional states had these laws before 1980. Illinois is the sole holdout.) A federal ban on the possession, transfer, or manufacture of semiautomatic assault weapons, passed in 1994, was allowed to expire in 2004. In 2005, Florida passed the Stand Your Ground law, an extension of the so-called castle doctrine, exonerating from prosecution citizens who use deadly force when confronted by an assailant, even if they could have retreated safely; Stand Your Ground laws expand that protection outside the home to any place that an individual “has a right to be.” Twenty-four states have passed similar laws.
The day before T. J. Lane shot five high-school students in Ohio, another high-school student was shot in Florida. The Orlando Sentinel ran a three-paragraph story. On February 26th, seventeen-year-old Trayvon Martin left a house in a town outside Orlando and walked to a store. He was seen by a twenty-eight-year-old man named George Zimmerman, who called 911 to report that Martin, who was black, was “a real suspicious guy.” Zimmerman got out of his truck. Zimmerman was carrying a 9-mm. pistol; Martin was unarmed. What happened next has not been established, and is much disputed. Zimmerman told the police that Martin attacked him. Martin’s family has said that the boy, heard over a cell phone, begged for his life.
Zimmerman shot Martin in the chest. Martin did not survive. Zimmerman was not charged. Outside Orlando, the story was not reported.
The day after the shooting in Ohio, I went to a firing range. I’d signed up for a lesson the week before. Once, when I was in Air Force R.O.T.C. for a year, I spent an afternoon studying how to defeat a sniper, but I’d never held a gun before.
The American Firearms School sits in an industrial park just north of Providence, in a beige stucco building topped with a roof of mint-green sheet metal. From the road, it looks like a bowling alley, but from the parking lot you can tell that it’s not. You can hear the sound of gunfire. It doesn’t sound like thunder. It doesn’t sound like rain. It sounds like gunfire.
Inside, there’s a shop, a pistol range, a rifle range, a couple of classrooms, a locker room, and a place to clean your gun. The walls are painted police blue up to the wainscoting, and then white to the ceiling, which is painted black. It feels like a clubhouse, except, if you’ve never been to a gun shop before, that part feels not quite licit, like a porn shop. On the floor, there are gun racks, gun cases, holsters, and gun safes. Rifles hang on a wall behind the counter; handguns are under glass. Most items, including the rifles, come in black or pink: there are pink handcuffs, a pink pistol grip, a pink gun case, and pink paper targets. Above the pink bull’s-eye, which looks unnervingly like a breast, a line of text reads, “Cancer sucks.”
The American Firearms School is run by Matt Medeiros, a Rhode Island firefighter and E.M.T. Medeiros is also a leader of the Rhode Island chapter of Pink Heals, a nonprofit organization of emergency and rescue workers who drive pink fire trucks and pink police cars to raise money for cancer research and support groups. Last year, when Pink Heals opened a women’s center in West Warwick, Medeiros held a fund-raiser at the Firearms School.
Unlike many firing ranges, which are private clubs, the American Firearms School is open to the public. Most mornings, federal, state, and local law-enforcement agencies, as well as private security firms, rent out the ranges for training and target practice. Classes, from beginner to advanced, are held in the afternoons, and are run by certified instructors.
In many states, to purchase a gun from a licensed dealer you need a permit, which requires you to complete firearms-safety training, not unlike driver’s education. But, even if all states required this, not everyone who buys a gun would have to take a class. That’s because forty per cent of the guns purchased in the United States are bought from private sellers at gun shows, or through other private exchanges, such as classified ads, which fall under what is known as the “gun-show loophole” and are thus unregulated.
At the American Firearms School, the Learn to Shoot program, for novices, costs forty dollars for ninety minutes: a lesson, a gun rental, range time, two targets, and two boxes of bullets. This doesn’t constitute sufficient instruction for a gun permit in the state, but the school offers a one-day, ninety-nine-dollar course that does: Basic Firearms Safety includes shooting fundamentals, a discussion of firearms law, and guidance in safe firearms storage.
The idea that every man can be his own policeman, and every woman hers, has necessitated revisions to the curriculum: civilians now receive training once available only to law-enforcement officers, or the military. A six-hour class on concealed carrying includes a lesson in “engaging the threat.” N.R.A. Basic Personal Protection in the Home teaches “the basic knowledge, skills, and attitude essential to the safe and efficient use of a handgun for protection of self and family” and provides “information on the law-abiding individual’s right to self-defense,” while N.R.A. Basic Personal Protection Outside the Home is a two-day course. A primer lasting three hours provides “a tactical look at civilian life.” This raises the question of just how much civilian life is left.
As I waited for my lesson, I paged through a stack of old magazines while watching Fox News on a flat-screen television. In Michigan and Arizona, Mitt Romney and Rick Santorum were competing in that day’s Republican primaries. At the top of the hour came the headlines: in Ohio, Demetrius Hewlin had just died. For a tick, the news announcer fell silent.
I put down Field and Stream and picked up American Rifleman, a publication of the N.R.A. The magazine includes a regular column called “The Armed Citizen.” A feature article introduced David Keene, the N.R.A.’s new president. Keene, who is sixty-six, is a longtime conservative political strategist. Grover Norquist once called him “a conservative Forrest Gump.” The 2012 Presidential election, Keene told American Rifleman, is “perhaps the most crucial election, from a Second Amendment standpoint, in our lifetimes.”
The Second Amendment reads, “A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” Arms are military weapons. A firearm is a cannon that you can carry, as opposed to artillery so big and heavy that you need wheels to move it, or people to help you. Cannons that you can carry around didn’t exist until the Middle Ages. The first European firearms—essentially, tubes mounted on a pole—date to the end of the fourteenth century and are known as “hand cannons.” Then came shoulder arms (that is, guns you can shoulder): muskets, rifles, and shotguns. A pistol is a gun that can be held in one hand. A revolver holds a number of bullets in a revolving chamber, but didn’t become common until Samuel Colt patented his model in 1836. The firearms used by a well-regulated militia, at the time the Second Amendment was written, were mostly long arms that, like a smaller stockpile of pistols, could discharge only once before they had to be reloaded. In size, speed, efficiency, capacity, and sleekness, the difference between an eighteenth-century musket and the gun that George Zimmerman was carrying is roughly the difference between the first laptop computer—which, not counting the external modem and the battery pack, weighed twenty-four pounds—and an iPhone.
A gun is a machine made to fire a missile that can bore through flesh. It can be used to hunt an animal or to commit or prevent a crime. Enough people carrying enough guns, and with the will and the training to use them, can defend a government, or topple one. For centuries before the first English colonists travelled to the New World, Parliament had been regulating the private ownership of firearms. (Generally, ownership was restricted to the wealthy; the principle was that anyone below the rank of gentleman found with a gun was a poacher.) England’s 1689 Declaration of Rights made a provision that “subjects which are Protestants may have arms for their defence suitable to their condition and as allowed by law”; the Declaration was an attempt to resolve a struggle between Parliament and the Crown, in which Parliament wrested control of the militia from the Crown.
In the United States, Article VI of the Articles of Confederation, drafted in 1776 and ratified in 1781, required that “every state shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutred, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.” In early America, firearms and ammunition were often kept in public arsenals. In 1775, the British Army marched to Concord with the idea of seizing the arsenal where the Colonial militia stored its weapons. In January of 1787, a Massachusetts resident named Daniel Shays led eleven hundred men, many of them disaffected Revolutionary War veterans, in an attempt to capture an arsenal in Springfield; they had been protesting taxes, but they needed guns and ammunition. Springfield had been an arsenal since 1774. In 1777, George Washington, at the urging of Henry Knox, made it his chief northern arsenal. By 1786, Springfield housed the largest collection of weapons in the United States. In the winter of 1787, the governor of Massachusetts sent the militia to suppress the rebellion; the Springfield arsenal was defended. That spring, the Constitutional Convention met in Philadelphia. Among the matters the delegates were to take up was granting to the federal government the power to suppress insurgencies like Shays’ Rebellion. From Boston, Benjamin Franklin’s sister Jane wrote to him with some advice for “such a Number of wise men as you are connected with in the Convention”: no more weapons, no more war. “I had Rather hear of the Swords being beat into Plow-shares, and the Halters used for Cart Roops, if by that means we may be brought to live Peaceably with won a nother.”
The U.S. Constitution, which was signed in Philadelphia in September of 1787, granted Congress the power “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions,” the power “to provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress,” and the power “to raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.”
Ratification was an uphill battle. The Bill of Rights, drafted by James Madison in 1789, offered assurance to Anti-Federalists, who feared that there would be no limit to the powers of the newly constituted federal government. Since one of their worries was the prospect of a standing army—a permanent army—Madison drafted an amendment guaranteeing the people the right to form a militia. In Madison’s original version, the amendment read, “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” This provision was made in the same spirit as the Third Amendment, which forbids the government to force you to have troops billeted in your home: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
None of this had anything to do with hunting. People who owned and used long arms to hunt continued to own and use them; the Second Amendment was not commonly understood as having any relevance to the shooting of animals. As Garry Wills once wrote, “One does not bear arms against a rabbit.” Meanwhile, militias continued to muster—the Continental Army was disbanded at the end of the Revolutionary War—but the national defense was increasingly assumed by the United States Army; by the middle of the nineteenth century, the United States had a standing army, after all. Harpers Ferry was the U.S. Army’s southern armory, Springfield its northern. In 1859, when John Brown and his men raided Harpers Ferry, they went there to get guns.
At the American Firearms School, you can either rent a gun or bring your own. It’s like an ice-skating rink that way, except that renting skates when you don’t know how to skate is different from renting a gun when you don’t know how to shoot. The guys who work at the school don’t take any chances. In the twelve years since the school opened, there has never been an accident. “You can’t do anything here without us watching you,” Tom Dietzel told me. “In a swimming pool, there are lifeguards. And this place is a lot more dangerous than a swimming pool.”
Dietzel, who is twenty-four and has long dark hair, is one of the few instructors at the school who isn’t ex-military, ex-police, or ex-rescue. He led me to a classroom, opened a case, and took out a .22-calibre Mark III Target Rimfire pistol. Dietzel studied history in college, and on weekends he gives tours of the Freedom Trail, in Boston. We talked about the eighteenth-century portraits in the new wing of the Museum of Fine Arts; we debated the oratory of Joseph Warren. Dietzel owns a flintlock musket; he’s a Revolutionary War reënactor, with the Thirteenth Continental Regiment. He showed me a photograph of himself in costume: a cocked hat, a mustard-colored scarf of flax. He could have been painted by Gilbert Stuart.
Dietzel is a skilled and knowledgeable teacher, steady, patient, and calm. He had written safety rules on a whiteboard: Never point your gun at anyone. Keep your finger off the trigger. Don’t trust the safety. Assume every gun is loaded.
He explained how to load the magazine. “This is a semiautomatic,” he said. “After you fire, it will load the next bullet, but you have to pull the trigger again to fire. We don’t have automatics here.” Automatic weapons are largely banned by the federal government. “An automatic, you pull the trigger and it keeps shooting.” Dietzel shook his head. “Because: why? Why?”
Gun owners may be more supportive of gun-safety regulations than is the leadership of the N.R.A. According to a 2009 Luntz poll, for instance, requiring mandatory background checks on all purchasers at gun shows is favored not only by eighty-five per cent of gun owners who are not members of the N.R.A. but also by sixty-nine per cent of gun owners who are.
Dietzel rose. “Stand like a shortstop about to field a ball,” he said.
He showed me how to hold the .22.
Every day, Dietzel goes to work and, at some point, has to hand a gun to a perfect stranger who has never used one. He went over the rules again.
We got earplugs and headgear and ammunition and went to the range. I fired a hundred rounds. Then Dietzel told me to go wash my hands, to get the gunpowder off, while he went to clean the gun.
The halls at the American Firearms School are decorated with framed prints: Monet’s “Impression, Sunrise”; van Gogh’s “Irises.” A sign on the door of the women’s restroom reads, “Every Tuesday Is Ladies Night. Ladies Get FREE Range Time from 5:00 PM to 9:00 PM.”
I opened the door, and turned on the tap. T. J. Lane had used a .22-calibre Mark III Target Rimfire pistol. For a long time, I let the water run.
On March 8th, Trayvon Martin’s father, Tracy Martin, held a press conference in Orlando. “We feel justice has not been served,” he said. He demanded the release of recordings of calls to 911. “Family Wants Answers in Teen’s Death,” the Associated Press reported.
Two days later, the biggest gun show in New England was held in West Springfield, Massachusetts, in an exposition center the size of an airport hangar. (Nationwide, there are about five thousand gun shows annually.) Early in the morning, men with guns lined up to have them inspected at the door: two policemen made sure that every gun was unloaded; a plastic bucket on the floor, half filled with sand, was for dumping ammunition, like the bin at airport security where T.S.A. officers make you chuck your toothpaste. Tickets cost eleven dollars, but there was no charge for children younger than twelve.
Inside was a flea market: hundreds of folding tables draped with felt tablecloths and covered with guns, along with knives, swords, and a great deal of hunting gear. Long guns stood on their stocks, muzzles up. Handguns rested under glass, like jewelry. “Cash for Guns,” the sign at the Tombstone Trading Company read. Ammunition was sold outdoors, in cartons, as in the fastener aisle of a hardware store. At the N.R.A. booth, membership came with a subscription to one of the N.R.A.’s three magazines, an N.R.A. baseball hat, twenty-five hundred dollars of insurance, “and the most important benefit of all—protecting the Constitution.”
I stopped at the table of Guns, Inc., which advertises itself as the largest firearms dealer in western Massachusetts. Guns, Inc., is also an arsenal: a place where people who don’t want to keep their guns at home can pay to have them stored.
In the nineteenth century, the Springfield Armory grew to become the single biggest supplier of long arms to the U.S. Army. It shut its doors in 1968. A National Historic Site now, it houses about ten thousand weapons, most of which are shoulder arms. A sign on the door warns that no firearms are allowed inside. “People ask about that,” Richard Colton, a park ranger and the site’s historian, told me when I visited, “but we have plenty of guns here already.”
The story of the Springfield Armory illustrates a shift in the manufacture and storage of firearms: from public to private. In 1974, a family in Illinois founded a company devoted to arms manufacturing and import called Springfield Armory, Inc. The firm, “the first name in American firearms,” is one of the largest of its kind in the United States. Dennis Reese, the current C.E.O., and his brother Tom have staunchly opposed gun regulation. I asked Brian Pranka, of Guns, Inc., if he had any Springfield Armory guns. He said, “You can’t buy a Springfield handgun in Springfield.” The company does not make handguns that conform to all the gun-safety regulations in states like Massachusetts, New York, and California, and in Illinois they have lobbied the legislature, successfully defeating a state ban on assault weapons. In 2008, the Illinois State Rifle Association gave the Reeses the Defenders of Freedom Award.
On the first day of the Springfield gun show, Trayvon Martin’s parents appeared on “Good Morning America.” On March 19th, the Department of Justice, responding to growing protests, announced that it would conduct an investigation. On March 23rd, President Obama answered questions about the shooting at a press conference. “If I had a son, he’d look like Trayvon,” the President said. Later that day, Rick Santorum spoke outside a firing range in West Monroe, Louisiana, where he’d just shot fourteen rounds from a Colt .45. He told the crowd, “What I was able to exercise was one of those fundamental freedoms that’s guaranteed in our Constitution, the right to bear arms.”
In the two centuries following the adoption of the Bill of Rights, in 1791, no amendment received less attention in the courts than the Second, except the Third. As Adam Winkler, a constitutional-law scholar at U.C.L.A., demonstrates in a remarkably nuanced new book, “Gunfight: The Battle Over the Right to Bear Arms in America,” firearms have been regulated in the United States from the start. Laws banning the carrying of concealed weapons were passed in Kentucky and Louisiana in 1813, and other states soon followed: Indiana (1820), Tennessee and Virginia (1838), Alabama (1839), and Ohio (1859). Similar laws were passed in Texas, Florida, and Oklahoma. As the governor of Texas explained in 1893, the “mission of the concealed deadly weapon is murder. To check it is the duty of every self-respecting, law-abiding man.”
Although these laws were occasionally challenged, they were rarely struck down in state courts; the state’s interest in regulating the manufacture, ownership, and storage of firearms was plain enough. Even the West was hardly wild. “Frontier towns handled guns the way a Boston restaurant today handles overcoats in winter,” Winkler writes. “New arrivals were required to turn in their guns to authorities in exchange for something like a metal token.” In Wichita, Kansas, in 1873, a sign read, “Leave Your Revolvers at Police Headquarters, and Get a Check.” The first thing the government of Dodge did when founding the city, in 1873, was pass a resolution that “any person or persons found carrying concealed weapons in the city of Dodge or violating the laws of the State shall be dealt with according to law.” On the road through town, a wooden billboard read, “The Carrying of Firearms Strictly Prohibited.” The shoot-out at the O.K. Corral, in Tombstone, Arizona, Winkler explains, had to do with a gun-control law. In 1880, Tombstone’s city council passed an ordinance “to Provide against the Carrying of Deadly Weapons.” When Wyatt Earp confronted Tom McLaury on the streets of Tombstone, it was because McLaury had violated that ordinance by failing to leave his gun at the sheriff’s office.
The National Rifle Association was founded in 1871 by two men, a lawyer and a former reporter from the New York Times. For most of its history, the N.R.A. was chiefly a sporting and hunting association. To the extent that the N.R.A. had a political arm, it opposed some gun-control measures and supported many others, lobbying for new state laws in the nineteen-twenties and thirties, which introduced waiting periods for handgun buyers and required permits for anyone wishing to carry a concealed weapon. It also supported the 1934 National Firearms Act—the first major federal gun-control legislation—and the 1938 Federal Firearms Act, which together created a licensing system for dealers and prohibitively taxed the private ownership of automatic weapons (“machine guns”). The constitutionality of the 1934 act was upheld by the U.S. Supreme Court in 1939, in U.S. v. Miller, in which Franklin Delano Roosevelt’s solicitor general, Robert H. Jackson, argued that the Second Amendment is “restricted to the keeping and bearing of arms by the people collectively for their common defense and security.” Furthermore, Jackson said, the language of the amendment makes clear that the right “is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state.” The Court agreed, unanimously. In 1957, when the N.R.A. moved into new headquarters, its motto, at the building’s entrance, read, “Firearms Safety Education, Marksmanship Training, Shooting for Recreation.” It didn’t say anything about freedom, or self-defense, or rights.
The modern gun debate began with a shooting. In 1963, Lee Harvey Oswald bought a bolt-action rifle—an Italian military-surplus weapon—for nineteen dollars and ninety-five cents by ordering it from an ad that he found in American Rifleman. Five days after Oswald assassinated President Kennedy, Thomas Dodd, a Democratic senator from Connecticut, introduced legislation restricting mail-order sales of shotguns and rifles. The N.R.A.’s executive vice-president, Franklin L. Orth, testified before Congress, “We do not think that any sane American, who calls himself an American, can object to placing into this bill the instrument which killed the president of the United States.”
Gun-rights arguments have their origins not in eighteenth-century Anti-Federalism but in twentieth-century liberalism. They are the product of what the Harvard law professor Mark Tushnet has called the “rights revolution,” the pursuit of rights, especially civil rights, through the courts. In the nineteen-sixties, gun ownership as a constitutional right was less the agenda of the N.R.A. than of black nationalists. In a 1964 speech, Malcolm X said, “Article number two of the constitutional amendments provides you and me the right to own a rifle or a shotgun.” Establishing a constitutional right to carry a gun for the purpose of self-defense was part of the mission of the Black Panther Party for Self-Defense, which was founded in 1966. “Black People can develop Self-Defense Power by arming themselves from house to house, block to block, community to community throughout the nation,” Huey Newton said.
In 1968, as Winkler relates, the assassinations of Robert Kennedy and Martin Luther King, Jr., gave the issue new urgency. A revised Gun Control Act banned mail-order sales, restricted the purchase of guns by certain high-risk people (e.g., those with criminal records), and prohibited the importation of military-surplus firearms. That law, along with a great deal of subsequent law-and-order legislation, was intended to fight crime, control riots, and solve what was called, in the age of the Moynihan report, the “Negro problem.” The regulations that are part of these laws—firearms restrictions, mandatory-sentencing guidelines, abolition of parole, and the “war on drugs”—are now generally understood to be responsible for the dramatic rise in the U.S. incarceration rate.
The N.R.A. supported the 1968 Gun Control Act, with some qualms. Orth was quoted in American Rifleman as saying that although some elements of the legislation “appear unduly restrictive and unjustified in their application to law-abiding citizens, the measure as a whole appears to be one that the sportsmen of America can live with.”
David Keene, the N.R.A.’s president, is the former chairman of the American Conservative Union. In his office in Washington, he has a photograph of Ronald Reagan on the wall and a view of Pennsylvania Avenue out the window. Keene has white hair, blue eyes, and an air of plainspoken geniality. When he was eight or nine, he says, his grandfather taught him how to shoot by aiming a .22 at squirrels and rabbits.
Keene’s parents were labor organizers. They never once voted for a Republican. “My first political activity was going door to door passing out pamphlets for J.F.K. in the snows of Wisconsin,” Keene told me. In the nineteen-fifties, he said, “Lionel Trilling considered conservatism to be a political pathology.” Keene became a conservative in high school, when he read “The Constitution of Liberty,” by Friedrich Hayek. In 1960, at the Republican National Convention, Barry Goldwater said, “Let’s grow up conservatives, if we want to take this party back, and I think we can someday. Let’s get to work.” Four years later, Keene volunteered for Goldwater’s campaign.
After Goldwater’s defeat, Keene finished college and went on to law school. He became the national chairman of the Young Americans for Freedom. “What brought conservatism to dominance was the Great Society,” Keene argues, because Johnson’s vision represented “the culmination of the thinking that you could solve everything with money, and nothing worked.” Keene went to D.C. to work for Spiro Agnew, and then for Richard Nixon.
On Election Day in 1970, Keene was at the White House. Joseph Tydings, a Democratic senator from Maryland who had introduced a Firearms Registration and Licensing Act, was running for reëlection. “The returns were coming in, and someone said, ‘What’s going on in Maryland?’ ” Keene recalled. “And someone answered, ‘I can tell you this: everywhere except Baltimore, there are long lines of pickup trucks at the polls. He’s going down over gun control.’ ”
In the nineteen-seventies, the N.R.A. began advancing the argument that the Second Amendment guarantees an individual’s right to carry a gun, rather than the people’s right to form armed militias to provide for the common defense. Fights over rights are effective at getting out the vote. Describing gun-safety legislation as an attack on a constitutional right gave conservatives a power at the polls that, at the time, the movement lacked. Opposing gun control was also consistent with a larger anti-regulation, libertarian, and anti-government conservative agenda. In 1975, the N.R.A. created a lobbying arm, the Institute for Legislative Action, headed by Harlon Bronson Carter, an award-winning marksman and a former chief of the U.S. Border Control. But then the N.R.A.’s leadership decided to back out of politics and move the organization’s headquarters to Colorado Springs, where a new recreational-shooting facility was to be built. Eighty members of the N.R.A.’s staff, including Carter, were ousted. In 1977, the N.R.A.’s annual meeting, usually held in Washington, was moved to Cincinnati, in protest of the city’s recent gun-control laws. Conservatives within the organization, led by Carter, staged what has come to be called the Cincinnati Revolt. The bylaws were rewritten and the old guard was pushed out. Instead of moving to Colorado, the N.R.A. stayed in D.C., where a new motto was displayed: “The Right of the People to Keep and Bear Arms Shall Not Be Infringed.”
Ronald Reagan was the first Presidential candidate whom the N.R.A. had endorsed. David Keene ran Reagan’s Southern campaign. Reagan’s election, in 1980, made it possible for conservatives to begin turning a new interpretation of the Second Amendment into law. As the legal scholar Reva B. Siegel has chronicled, Orrin Hatch became the chair of the Subcommittee on the Constitution, and commissioned a history of the Second Amendment, which resulted in a 1982 report, “The Right to Keep and Bear Arms.” The authors of the report claimed to have discovered “clear—and long-lost—proof that the Second Amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.”
In March of 1981, John Hinckley, Jr., shot Reagan, the White House press secretary, James Brady, a D.C. policeman, and a Secret Service agent. He used a .22 that he had bought at a pawnshop. A month later, the Times reported that Harlon Carter, then the N.R.A.’s executive vice-president, had been convicted of murder in Laredo, Texas, in 1931, at the age of seventeen. Carter had come home from school to find his mother distressed. She told him that three teen-age boys had been loitering nearby all afternoon, and that she suspected them of having been involved in stealing the family’s car. Carter left the house with a shotgun, found the boys, and told them that he wanted them to come back to his house to be questioned. According to the trial testimony of twelve-year-old Salvador Peña, Ramón Casiano, fifteen, the oldest of the boys, said to Carter, “We won’t go to your house, and you can’t make us.” Casiano took out a knife and said, “Do you want to fight me?” Carter shot Casiano in the chest. At Carter’s trial for murder, the judge, J. F. Mullally, instructed the jury, “There is no evidence that defendant had any lawful authority to require deceased to go to his house for questioning, and if defendant was trying to make deceased go there for that purpose at the time of the killing, he was acting without authority of law, and the law of self-defense does not apply.” Two years later, Carter’s murder conviction was overturned on appeal; the defense argued that the instructions to the jury had been improper.
When the Times broke the Casiano murder story, Carter at first denied it, saying the trial record concerned a different man with a similar name. He later said that he had “nothing to hide” and was “not going to rehash that case or any other that does not relate to the National Rifle Association.”
James Brady and his wife, Sarah, went on to become active in the gun-control movement, but neither the assassination attempt nor Carter’s past derailed the gun-rights movement. In 1986, the N.R.A.’s interpretation of the Second Amendment achieved new legal authority with the passage of the Firearms Owners Protection Act, which repealed parts of the 1968 Gun Control Act by invoking “the rights of citizens . . . to keep and bear arms under the Second Amendment.” This interpretation was supported by a growing body of scholarship, much of it funded by the N.R.A. According to the constitutional-law scholar Carl Bogus, at least sixteen of the twenty-seven law-review articles published between 1970 and 1989 that were favorable to the N.R.A.’s interpretation of the Second Amendment were “written by lawyers who had been directly employed by or represented the N.R.A. or other gun-rights organizations.” In an interview, former Chief Justice Warren Burger said that the new interpretation of the Second Amendment was “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special-interest groups that I have ever seen in my lifetime.”