Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »



One of the major goals of capital punishment opponents has been to offer penalty alternatives to death, one being life imprisonment without parole.  As I mentioned three years ago, studies have shown that the availability of LWOP has had virtually no effect on the imposition of the death penalty.  What's more, the law of unintended consequences has raised its ugly head:  life without parole is now available for a number of non-capital crimes, such as, in Ohio, rape of a child.  Almost 10% of the prison population is serving a life sentence, and, of those, 29% have no possibility of being paroled. 

In a little more than a month, the US Supreme Court will open its term by hearing oral argument in two cases involving a segment of that population:  the more than 2,225 people who were sentenced to life without parole for crimes they committed as juveniles.

Most JLWOP cases arise from murder convictions.  Pennsylvania leads the nation in the number of those sentences, with 444, because of two quirks in its laws:  both types of murder -- 1st degree (premeditated) and second degree (committed in course of felony) -- require LWOP sentences, and anyone charged with murder is required to be tried as an adult.  The two cases that the Supreme Court will consider, though, both come from Florida, and neither involve homicide.

The first case to reach the Court was Graham v. Florida.  (Opinions and pleadings can be found here.)  Graham was convicted at 16 of armed burglary and attempted robbery, and given three years of probation.  A year and a half later, he was charged with a probation violation for having committed several home invasion robberies.  The judge decided that, Graham having spurned a chance at rehabilitation, life without parole was the suitable penalty for the violation.

The second case, Sullivan v. Florida, came soon after.  (Pleadings, etc. here.)  Sullivan was convicted of rape when he was 13 years old, and the facts surrounding his conviction, at least those set forth in the petition for certiorari, are simply appalling:  he was mentally disabled, and was one of three participants in the crime; the two others, one of whom might have been the actual assailant, received short juvenile detention sentences.  No biological evidence linked Sullivan to the crime, the main testimony being a voice identification from the victim -- who never saw her assailant -- that Sullivan's voice "sounded like" that of the person who raped her.  The trial lasted a day, Sullivan's appellate counsel filed an Anders brief, and the Florida court of appeals didn't even bother to write an opinion on the case, which foreclosed the possibility of further appeal. 

The Court has been notably reluctant to expand 8th Amendment jurisprudence into non-capital areas.  It upheld California's "three-strikes" laws on two occasions this decade, and just two terms ago rejected certiorari in a case where an Arizona court imposed a 200-year sentence on a defendant for downloading child pornography ; a similar crime under Federal law would have resulted in five years in prison.  Sullivan and Graham, though, work the juvenile angle, building off Roper v. Simmons, the 2005 decision in which the Court held that imposing the death penalty on minors violated the Eighth Amendment.  That's not a sure road to success, by any means; just last year, the Court rejected cert in a case involving a 12-year-old who was given a 30-year sentence, without parole, for a double murder.  Again, though, neither Sullivan nor Graham involves the death of the victim.

The interesting aspect of the Supreme Court's impending review is that it accepted both cases, without consolidating them, leaving open the possibility of different results.    To be sure, the cases present somewhat different issues.  Sullivan represents the "purest" distillation of the issue:  his lawyers argue that the "freakishly rare" nature of his sentence -- only one other 13-year-old in the country has been sentenced to LWOP for a non-homicide -- reflects a consensus that such a penalty is indeed cruel and unusual.  (In only eight cases in the nation has someone as young as 13 been condemned to die in prison for any crime, including homicide.)

Graham, on the other hand, was actually 19 when he was sentenced, and there might be some Sixth Amendment issues as well, given that he was essentially convicted and sentenced in a probation violation hearing.  (Although there's serious question as to whether these issues were properly raised and preserved in the courts below.)  At any rate, we may get a pretty good idea of where the cases are going when they're argued on October 5.

By the way, this is a purely American problem.  In the entire rest of the world, there are only a dozen people serving JLWOP:  Israel has 7, South Africa 4, and Tanzania 1.  Several years ago the United Nations proposed an amendment to the Convention on the Rights of the Child which would have prohibited such a sentence.  It was ratified by 191 nations.  Two objected.  One was the United States.  The other was Somalia.


Recent Entries

  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means
  • October 13, 2017
    Friday Roundup
    Musings about the death penalty and indigent defense
  • October 11, 2017
    Case Update
    SCOTUS starts its new term, and the Ohio Supreme Court hands down two decisions
  • October 10, 2017
    What's Up in the 8th
    Collaboration by inmates, fun in Juvenile Court, the limits of Creech, and more
  • October 5, 2017
    State v. Thomas
    The Ohio Supreme Court reverses a death penalty conviction
  • October 4, 2017
    Russ' Excellent Adventure
    A juror doesn't like me. Boo-hoo.
  • October 3, 2017
    What's Up in the 8th
    What not to argue on appeal, waiving counsel, the perils of being a juvenile, and expert witnesses