Merit Decision: Youth of Juvenile Homicide Offender Must be Considered when Imposing Life Without Parole. State v. Long.

Update: read what happened on remand in this case here.

On March 12, 2014, the Supreme Court of Ohio handed down a merit decision in State v. Long, 2014-Ohio-849. While the justices unanimously agreed that a trial court must consider youth as a mitigating factor in imposing a sentence of life without parole on a juvenile offender, and has considerable discretion in the weight the factor of youth deserves, the justices split 5-2 on whether the trial court actually and properly did consider the youth factor in this case. Justice Lanzinger wrote the majority decision. Chief Justice O’Connor concurred in the syllabus, judgment, and the opinion, but wrote separately to add a few points.  Justice O’Donnell dissented, joined by Justice Kennedy.  The case was argued June 11, 2013.

Key Precedent

Miller v. Alabama, 132 S.Ct. 2455 (2012) (imposing a mandatory sentence of life without parole on a juvenile is cruel and unusual punishment and thereby violates the Eighth Amendment).

Graham v. Florida, 130 S.Ct. 2011 (2010) (juvenile non-homicide offenders cannot be given a sentence of life without parole).

Roper v. Simmons, 543 U.S. 551 (2005) (the death penalty cannot be imposed for a crime committed as a juvenile.)

In re C.P., 131 Ohio St.3d 513 (2012)   (a statute imposing automatic, lifelong registration and notification requirements on juvenile sex offenders violates the prohibition against cruel and unusual punishment in the Ohio Constitution).

Case Background

Eric Long, then seventeen, along with two adult offenders, aged 25 and 26, was involved in two separate shootings in Hamilton County.  In one, assault-style weapons were fired into a house in Lincoln Heights. Several days later, again with assault-style weapons, Long participated in the killing of two men in a car on I-75. All three co-defendants, who were tried together, were found guilty of two counts of aggravated murder and numerous other felonies related to the two incidents. At a joint sentencing hearing with the two adult co-defendants, Long was sentenced to consecutive terms of life without parole on the homicide counts, and an additional nineteen years on the remaining counts and specifications, also consecutive. The First District Court of Appeals affirmed Long’s sentence. The appeals court distinguished the case from Miller (which came out after Long was sentenced) because Long’s sentence was not mandatory and the trial court did consider Long’s youth in imposing sentence. Read the oral argument preview of the case here, the analysis of the argument here, and student contributor Cam Downer’s law review blog post on the case here.

Merit Decision

The Court accepted Long’s proposed proposition of law in this case, which was that “the Eighth Amendment requires trial courts to consider youth as a mitigating factor when sentencing a child to life without parole for a homicide.” To this, the Court added that the record must reflect that the trial court specifically considered youth as a mitigating factor at sentencing when imposing a prison term of life without parole on a juvenile.

The U.S. Supreme Court Mandate

Justice Lanzinger reviewed the trio of cases from the U.S. Supreme Court most pertinent to this appeal—Roper, Graham, and Miller. The take-aways from these cases about why juveniles who commit the most serious offenses are different from adults are lack of maturity and an underdeveloped sense of responsibility, increased vulnerability and susceptibly to negative influences and out­side pressures, including peer pressure, and character that simply is not yet formed.  This set of value judgments forms a kind of leitmotif in the majority opinion.

Two Issues Waived by Long

Long argued that he wasn’t actually convicted of a homicide offense because the jury was charged on complicity, which meant he could have been found guilty of aggravated murder without a finding that he acted with prior calculation and design or specific intent to kill.  Thus he could not be sentenced to life without parole.  He also argued that Article I Section 9 of the Ohio Constitution requires that all children have the right to a meaningful opportunity for release, regardless of the crimes they have committed.  The Court found that both arguments were waived because they were never raised in the court of appeals.  That is unfortunate because the second—the state constitutional argument—would have been of particular interest to a number of justices, led by Justice Pfeifer.

Key Ohio Sentencing Statutes—Judicial Discretion

Miller v. Alabama mandates that “a sentencer follow a certain process-considering an offender’s youth and attendant characteristics—before imposing a particular penalty,” but doesn’t lay out that process. The majority looked at Ohio’s statutory sentencing scheme to determine if it sets forth an appropriate process, and found that it did.

The two key statutory provisions that allow a court to consider youth a factor in sentencing are R.C. 2929.11 and R.C. 29292.12.

R.C. 2929.11(A)  and (B) provide that the nature of the offender and the possibility of rehabilitation are points for a court to consider when deciding upon a sentence.

R.C. 2929.12 specifies that in exercising its discretion, a trial court must consider certain factors that make the offense more or less serious and that indicate whether the offender is more or less likely to recidivate.  While youth is not specifically mentioned in this statute, Lanzinger notes that an offender’s youth and its attendant circumstances could clearly be considered under this section.

Conclusion here: Ohio’s sentencing scheme as applied to a juvenile found guilty of aggravated murder does not fall afoul of Miller  because the sentence of life without parole is discretionary, not mandatory.  Nevertheless, the Court expressly clarified that youth is a mitigating factor a court must separately consider when sentencing a juvenile, and when sentencing a juvenile to life-without-parole, the court’s reasoning for that choice must be clear on the record.  The Court then turned to Long’s actual sentencing hearing.

Long’s Sentencing Hearing

Long’s Argument

Long argues that the trial court’s sentencing statement fails to show that it followed the mandates of Miller, and that he should have received the minimum sentence because of his age.

State’s Argument

The record reflects that the trial court did consider Long’s youth before imposing sentence. There were also a number of aggravating factors that supported the sentence of life without parole in this case.

Court’s Take on This

Bottom line-Long did raise his youth as a mitigating factor at sentencing.  The majority found, however, that because the trial court did not separately mention Long’s juvenile status when he committed the offenses, it could not be sure how the trial court applied this factor. Significant to the majority was the fact that Long was sentenced along with two adults in a group sentencing, and therefore his youth might not have been given the appropriate consideration.

“Although Miller does not require that specific findings be made on the record, it does mandate that a trial court consider as mitigating the offender’s youth and attendant characteristics before imposing a sentence of life without parole,” wrote Lanzinger.  The majority also issued a firm reminder that  Miller suggests that such a penalty should rarely be imposed on juveniles.

Outcome

The court of appeals was reversed, and the case was sent back for re-sentencing.

Chief Justice O’Connor’s Additional Points

The Chief wanted to make it clear that all seven justices agreed on two points—a trial court must consider youth as a mitigating factor when deciding upon a sentence for a crime committed by a juvenile, and that a trial court has broad discretion to determine how much weight to give to that factor.

She had a few other points to make.  While there is nothing new about the fact that juveniles can commit some very heinous offenses, Miller, Graham, and Roper have changed “the legal lens” through which to view the sentencing of juveniles.  Youth who commit very serious offenses must be treated differently from adults who commit those same crimes.

But the Chief also wanted to underscore the fact that judges have great discretion in sentencing, and that nothing in this decision changes that.  What is added to the sentencing calculus is “that an offender’s youth must be an articulated consideration in the sentencing analysis, at least in cases in which life without parole is a potential sanction.” She emphasized the fact that in remanding the case for re-sentencing, the Court was not expressing any opinion on the merits of Long’s sentence—which could remain the same after the proper considerations are undertaken.

The Dissent

Justice O’Donnell has consistently been unsympathetic to juveniles who commit horrific, violent crimes, especially those like Long who was seventeen years and nine months at the time of the offenses.

O’Donnell would find that the trial court did sufficiently indicate that it had considered Long’s youth as a mitigating factor before imposing sentence, and the lack of a more substantial record on this point was because of Long’s failure to present anything specific for the judge to consider.

“Yet here, Long was only three months shy of his 18th birthday, and he presented no concrete information about his personal background or family history that would have allowed the court to evaluate his mental condition and development, maturity, and relative culpability for his crimes. Long cannot fail to present specific mitigating evidence and then fault the trial court for not considering it,” wrote O’Donnell, in a kind of invited error take.  Additionally, to O’Donnell, the aggravating factors in this case were horrific, and were not outweighed by Long’s youth, at least on this record. He believes the trial court followed the law and properly exercised its discretion in this case, and would also affirm the court of appeals.  Justice Kennedy joined this dissent.

Case Syllabus

1. A court, in exercising its discretion under R.C. 2929.03(A), must separately consider the youth of a juvenile offender as a mitigating factor before imposing a sentence of life without parole. (Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), followed.)

2. The record must reflect that the court specifically considered the juvenile offender’s youth as a mitigating factor at sentencing when a prison term of life without parole is imposed.

Concluding Observations

Both Cam (my student contributor on this case) and I were wrong on this one—it looked like a win for the state. Defense counsel really struggled during the argument.  But in a number of other cases a majority of the justices—especially the Chief, Justice Pfeifer, and Justice Lanzinger–have been very sympathetic to arguments that juveniles really are different from adult offenders. Justice Pfeifer wrote quite a treatise on this in In Re C.P. (striking  down automatic lifetime registration and notification requirements for certain juvenile sex offenders)  The Chief has had a lot to say on protecting the rights of juvenile offenders in In re C.S.,2007-Ohio-4919, (invalidating waiver of counsel by juvenile after mother had advised him to do so) and more recently in In Re M.W., 2012-Ohio-4538. (right to counsel in police interrogation; O’Connor, C.J., dissenting)

Justice O’Donnell, on the other hand, has been decidedly hostile to greater protections for juvenile offenders.  He dissented from the holding in In Re CP, 2012-Ohio-1446  .  He wrote the majority decision in In Re M.W., holding that a juvenile has no statutory right to counsel during police questioning before court proceedings have begun. He dissented in In re C.S., finding that the juvenile’s mother did act in his best interest in that case. He also voted against the recent amendments to Juvenile Rule 3, which really tightens up the right to counsel by juveniles, and requires very strict judicial review of any kind of waiver of this right. In this case, O’Donnell’s questioning at oral argument clearly telegraphed his position that the trial court did what Miller required.

It will be very interesting to see what happens at Long’s re-sentencing hearing.  While the trial judge will clearly put much more on the record (and the defense would be well advised to put a lot more information about Long’s background into the record), the trial judge may well hand down the same sentence, or something equivalent. The blog shall report as soon as it learns of the re-sentencing.

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