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Thursday, November 29, 2012

12-Year-Old To Prison For 25 Years In Indiana

Indiana appeals court raises questions in case that sent 12-year-old to prison for 25 years Paul Henry Gingerich was 12-years-old when he arrived at the Pendleton Juvenile Correctional Facility in 2011 The future of a boy believed to be the youngest Hoosier ever sentenced to prison as an adult rests now in the hands of three judges who today raised pointed questions about whether his case was handled properly. The Indiana Court of Appeals panel heard 40 minutes of arguments in the case of Paul Henry Gingerich, a 14-year-old who’s been imprisoned the last 2 1/2 years after he pleaded guilty, at age 12, to conspiracy commit murder in the 2010 killing of his friend’s stepfather in Kosciusko County. A decision could take several weeks. The judges’ questions seemed to focus in on whether it was proper that Gingerich’s case was moved out of juvenile court, whether his attorneys had enough time to argue that it should stay and, given all that, his eventual guilty plea wasn’t valid. Gingerich, who is serving time at the Pendleton Juvenile Correctional Facility that could keep him in jail until age 24, was not present for the hearing. But his parents, two sisters, grandfather and a host of cousins helped fill the Supreme Court room where the appeals panel heard the arguments. His attorney, Monica Foster, argued that Gingerich -- an 80-pound sixth grader at the time of the crime -- didn’t understand the proceedings well enough for the case to be moved to adult court. She also said the four days his attorneys had to prepare for the waiver-to-adult-court hearing was inadequate -- that defense attorneys in Marion County, by contrast, typically get three months. She said a psychologist who examined the boy was concerned about his competence to stand trial in adult court and that brain research on the development of youth would have aided his case. The three appellate judges -- James S. Kirsch, John G. Baker and Elaine B. Brown -- quizzed Foster on some matters of law, but their most poignant question was about the risks Gingerich faces if they rule in his favor and give him a legal do-over. In other words, if the process is repeated and he’s again moved to adult court -- at age 15 by the time a new case would be heard -- who’s to say he might not get a stiffer punishment?

Sunday, November 18, 2012

No Resentencing for Michigan Juvenile Lifers

November 16, 2012 http://sentencing.typepad.com/sentencing_law_and_policy/2012/11/michigan-appeals-court-decides-miller-is-not-retroactive-to-final-juve-murder-cases.htmlMichigan appeals court decides *Miller* is *not* retroactive to final juve murder cases As 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.

Friday, November 16, 2012

WIsconsin Upholds Life Without Parole for 14 Year Old

WI Upholds Life Without Parole for 14 Year Old By Jeralyn, Section Juvenile Offenders Omer Ninham was 14 when he was part of a group of kids that killed a 13 year old by throwing him off the top of a parking garage. He was sentenced to life in prison without the possibility of parole. The Wisconsin Supreme Court today upheld the sentence. The opinion is here. The defense argued: Ninham mounts a categorical constitutional challenge, arguing that sentencing a 14-year-old to life imprisonment without parole is cruel and unusual in violation of the Eighth Amendment of the United States Constitution and Article I, Section 6 of the Wisconsin Constitution. In the alternative, Ninham seeks sentence modification on the grounds that (1) his sentence is unduly harsh and excessive; (2) new scientific research regarding adolescent brain development constitutes a new factor that frustrates the purpose of the sentence; and (3) the circuit court relied on an improper factor when imposing the sentence. --------------------------- Michigan Judge Sentences 15 Year Old to Life Without Parole By Jeralyn, Section Juvenile Offenders Posted on Tue Oct 26, 2010 14 year old Dakota Eliason shot and killed his grandfather. He said he went back and forth for hours debating whether to kill him or commit suicide, and decided to on the former. The DA charged him in adult court. Monday, a Michigan judge imposed a sentence of life without parole, finding it violated neither the Constitution nor international treaties. He rejected a sentence of life with parole saying the law didn't authorize it. His opinion is here. His lawyer disagrees: “Anyone that's spent any time around that kid will tell you he's a loving kid, certainly at his point, people that don't know him are defining him by the one terrible thing he did but he does have remorse he does wish he could take it back,” said defense attorney Lanny Fisher.