OJD Week in Review: Feb. 5-9

This week there are some great opportunities for work, training and community building in juvenile defense.

Job Post Reminder and a Nice Little Feature

We want to remind everyone that the North Carolina Commission on Racial and Ethnic Disparities (NCCRED) will be closing applications for its executive director position on Feb. 15.  The organization seeks an executive director  who can provide organizational leadership, racial equity coalition building, and can manage its commission committees and initiatives.  Top candidates will have a passion for racial justice and criminal justice reform, excellent communication skills, the ability to manage a wide variety of organizational priorities, comfort with conflict and engaging in robust dialogue with people of differing views and experience in criminal justice reform.  Please find the details about the position and how to apply here.

NCCRED

If you haven’t already heard, the UNC School of Government recently added a post promoting the General Counsel Office of the Administrative Office of the Courts.  This post is a Q&A with LaToya Powell, former law professor of UNC and the new assistant legal counsel for the Office of General Counsel, working primarily in juvenile justice.  In the article, written by Austine Long, Powell discusses challenges in her new role, making an impact on Raise the Age, and her personal interest in juvenile justice.  You can read Austine’s post here.

Training for a Better You

On June 12-14, 2018, Global Youth Justice will host its 19th Global Youth Justice Training Institute in Cape Cod, MA.  Through more than 25 presenters, sessions, and workshops, participants will learn strategies to establish or enhance local volunteer-driven juvenile justice and youth justice diversion programs called Teen/Youth/Student/Peer Court or Peer Jury.  Topics will include youth and adult volunteer training; quality community service placements, programmatic enhancements, and operational strategies, administrative tips, grant writing, identifying funding opportunities, and more.  This will be the first year that both adults and youth will be able to attend.  To register and learn more about this exciting event, please check the website here.

training toy storyThe UNC School of Government is excited to announce that the “2018 Child Support Enforcement: Representing Respondents” seminar has been rescheduled to Thursday, March 1 and registration is now open.  This full-day seminar provides training for attorneys who represent alleged contemnors in child support enforcement proceedings.  The seminar will begin with sessions on the requirements for civil and criminal contempt and the dispositional alternatives available to the trial court.  It continues with presentations on understanding the state and federal regulations, community resources for your clients, and advocacy in child support contempt cases.  The seminar also includes a one hour ethics session.  This training is open to public defenders and private attorneys who do appointed work and is geared toward attorneys who represent respondents in child support enforcement proceedings.  Pre-registration is required, there will be no onsite registration, and space is limited.  The registration deadline is 5:00 p.m. on Monday, February 19.  To register online, as well as to find directions and other program information (including our cancellation and refund policy), please visit here.  If you have any questions or would like additional information, please contact Tanya Jisa, Program Manager, jisa@sog.unc.edu or 919-843-8981, or Austine Long, Program Attorney, at along@sog.unc.edu or 919.962.9594.

Registration is still open for the “Advocating for Youth Charged with First Degree Murder” training until Feb. 15.  We want to make sure that everyone, especially those in the juvenile defense community, have a chance to take advantage of this valuable training.  Please be sure to check it out here and we will continue to offer light reminders in the coming weeks.

The Center for Juvenile Justice Reform(CJJR) is accepting applications for its Youth in Custody Certificate Program until March 2.  This program will take place June 11–15, 2018, at Georgetown University in Washington, DC.  The training is designed for juvenile justice system leaders and partners working to improve outcomes for youth in post-adjudication custody.  The curriculum covers critical areas, including culture change and leadership, addressing racial and ethnic disparities, family engagement, assessment, case planning, facility-based education and treatment services, and reentry planning and support.  Upon approval of a Capstone Project Proposal initiating or building on local reform efforts, participants receive an Executive Certificate from Georgetown University and join the CJJR Fellows Network of more than 850 individuals.  For further details on this program and how to apply, please check out the link here.

That will be all for this week.  We will have more to come soon and we encourage you all to check back soon for updates and fresh announcements.

Attorney Position Open at Phillips Black

The Phillips Black Project, a nonprofit, public interest law practice, seeks applicants for an Associate Attorney staff position. It is anticipated that the associate will be based in its San Francisco Office. Phillips Black is committed to providing the highest quality representation to individuals facing the severest penalties under law, litigating breakdowns in the capital post-conviction process, and leading strategic litigation to safeguard the integrity of the criminal justice system. From primary offices in San Francisco, St. Louis, Philadelphia, and New York, Phillips Black attorneys represent inmates across the United States at all stages of litigation. In addition, our principal attorneys conduct clinical education and training with law schools nationwide and carry out research and publishing on the administration of criminal justice.

Under supervision of a principal attorney and in collaboration with case teams, the associate will work on post-conviction litigation in several states attacking death sentences and sentences of life without parole imposed on juveniles.  The position requires substantial travel.

Qualifications

  • At least two years of relevant attorney experience, preferably in capital post-conviction litigation
  • Excellent research and writing skills
  • Substantial experience conducting case investigations, including witness interviews
  • Extensive experience in case management responsibilities
  • Spanish language fluency preferred

Salary

The salary will be based on the attorney’s experience. Salary and benefits are highly competitive with similar providers of indigent defense.

Application

Please send any inquiries or simply submit your (a) resume, (b) cover letter, (c) ten-page writing sample, and (d) three references to: admin@phillipsblack.org.

For earliest consideration, submit your application by December 2, 2016.

Details

Phillips Black is a 501(c)(3) non-profit corporation and is committed to providing equal opportunity to all applicants for any position with the organization. Each staffing decision is made on a non-discriminatory basis and with a commitment to attracting diverse candidates with respect to race, color, religion, gender, gender identity or expression, sexual orientation, national origin, citizenship, disability, pregnancy or maternity, veteran or governmental service status, and any other status protected by federal, state or local law.

http://www.phillipsblack.org/opportunities/

 

New Resources for Miller and Transfer Cases

Earlier this year, the Supreme Court of the United States issued its opinion in Montgomery v. Louisiana, 193 L. Ed. 2d 599, 622 (2016), which made the holding of Miller v. Alabama, 183 L. Ed. 2d 407, 424 (2012), retroactive. Miller, of course, held that mandatory life without parole sentences for juvenile defendants violate the Eighth Amendment ban on cruel and unusual punishment. However, Miller also laid the groundwork for the Court’s determination in Montgomery that a discretionary life without parole sentence also violates the Eighth Amendment “for a child whose crime reflects ‘unfortunate yet transient immaturity.’” Montgomery, 193 L. Ed. 2d at 619 (quoting Miller, 567 U.S. at ___, 183 L. Ed. 2d at 424).

To help attorneys prepare for these hearings, a working group of attorneys from the Office of the Juvenile Defender, the Office of the Capital Defender, the Office of the Appellate Defender, and North Carolina Prisoner Legal Services has developed a handout entitled, “Strategies for Litigating Miller Cases.” The handout provides advice for obtaining mitigating evidence, a description of the research that influenced Miller and Montgomery, a discussion of constitutional arguments against life without parole sentences, and much more. The handout also provides hyperlinks to sample motions and other resources that will aid attorneys as they defend their clients in these cases.

However, for the juvenile defense bar, the handout’s usefulness is not limited to cases involving litigation of a life without parole sentence for a juvenile who is 16 or 17 years old or a 13-, 14-, or 15-year-old who has been transferred to superior court on a first degree murder charge. Many juvenile defense attorneys have to defend their 13-,14-, and 15-year-old clients from discretionary transfer to the adult system if they have been charged with a serious felony and the district attorney requests transfer. The handout provides arguments and resources that can be used to argue against transfer during the discretionary transfer hearing. Counsel should follow the advice in sections III, IV, and VI in the handout to present a comprehensive view of the juvenile to the court and argue that the juvenile should remain in juvenile court in order to receive treatment and rehabilitation that is unavailable in superior court.

If you are appointed to handle a case involving a new first-degree murder charge against a juvenile client or your client may be subjected to discretionary transfer, please be sure to review the handout, which is available in the “Transfer Hearings” section on the Office of the Juvenile Defender website and the “Litigation Guides” section on the Appellate Defender website. In addition, if you are interested in joining a listserv about Miller issues, please send an email to David Andrews, Assistant Appellate Defender, at David.W.Andrews@nccourts.org. The listserv will enable attorneys in the working group to post new appellate court decisions on Miller issues and provide a forum for questions on Miller cases. Finally, please stay tuned for announcements on training events for Miller cases. Over the next several months, the working group will develop presentations on Miller issues and will work to share those presentations to attorneys across the state.

Tips on Using Age to Defend Juvenile Clients in Criminal Court, Part 2 – by Guest Blogger John Mills

The North Carolina Court of Appeals has recently released a couple of important opinions for juvenile justice.  The first, State v. Bowlin, I covered in a prior post.  Here, I’ll cover State v. Collins.*  As with the prior post, I’ll provide an overview of the opinion and some of its implications, providing some practice points along the way.

In Collins, the Court of Appeals was considering a rather straightforward question with profound implications for Mr. Collins: whether the state admitted sufficient evidence of the Superior Court’s jurisdiction.  The court was considering four offenses.  The state’s evidence showed that one offense took place prior to Mr. Collins’ sixteenth birthday.  The state’s evidence was, at best, ambiguous about two offenses.  And its evidence was clear that the fourth took place after his sixteenth birthday.

Practice Point 1: Be sure that you know that you know your client’s date of birth, and be prepared to prove it with admissible evidence (other than your client’s testimony).  If a gas station is able to implement a universal i.d. check policy, then so can you.

When the offenses took place was critical because if they were prior to his sixteenth birthday, then the District Court had exclusive, original jurisdiction over them.  If they took place after, then the jurisdiction was proper in the Superior Court.

This distinction had major implications for Mr. Collins.  In District Court, the judge could choose whether or not to treat him as an adult.  That court had the power, based on his circumstances, to determine whether and for how long juvenile custody was appropriate and to consider additional programming aimed at rehabilitation.  In Superior Court, the judge would be required to impose mandatory minimums under the Structured Sentencing Act.

Practice Point 2: Make the most of the transfer hearing.  It is an opportunity to make all manner of equitable arguments on the behalf of your juvenile client.

To make a decision about whether to treat a juvenile offender as an adult, a District Court must consider eight factors about the juvenile, including the age, maturity, intellectual functioning, and capacity for rehabilitation.  These factors provide significant leeway for presenting evidence helpful to your client.  Evidence related to both the juvenile and the juvenile’s community can be considered.   A wide range of witnesses—including expert witnesses—should be considered for presentation at the transfer hearing: parents and relatives, teachers, psychologists, psychiatrists, religious leaders, coaches, friends, and any other person who knows the client well.

The argument against transfer should focus on the specifics of your client.  Knowing your client well will enable you to make a compelling case against treating your client like an adult, exposing your client to a lengthy prison sentence.

Practice Point 3: Even if you receive an adverse decision at the transfer hearing, the evidence you develop for the hearing could be presented in a sentencing hearing in Superior Court.

Even if the transfer hearing does not go well and if your client is convicted, the evidence you prepared for the transfer hearing may be presented at a sentencing proceeding.  At sentencing, the judge will consider the defendant’s age, maturity, mental capacity, potential support in the community, character, and “any other factor reasonably related to sentencing.”   The work you put in to develop a robust presentation at the transfer hearing will serve you well if you find yourself in a sentencing proceeding in Superior Court.

For Mr. Collins, ultimately, the Court of Appeals vacated three of his four convictions.  For the fourth, the one for the conduct committed as a sixteen year old, the court ordered that he be resentenced.

Juvenile cases present a myriad of legal issues.  Our juvenile clients have a heightened capacity for change and rehabilitation, and we owe it to them to make the best case possible for leniency, both at the transfer hearing and at sentencing.

John Mills is a Principal Attorney at the Phillips Black Project and a Lecturer at UC Berkeley School of Law.  He represents death-sentenced inmates and juveniles facing life without parole sentences and conducts research on the administration of our nation’s harshest punishments.

*I served as counsel of record in Collins.

Tips on Using Age to Defend Juvenile Clients in Criminal Court, Part 1 – by Guest Blogger John Mills

Last month, the North Carolina Court of Appeals issued two important juvenile justice decisions.  The first, State v. Bowlin, addressed whether the Eighth Amendment prohibits a juvenile offender from being subject to a mandatory minimum sentence.  The second, State v. Collins, addressed the role of a juvenile’s age and the jurisdiction of the Superior Court.  I’ll cover them in two guest posts.  Each will come with practice points and a brief discussion of the legal background.  I’ll start right here with Bowlin.

Mr. Bowlin’s charges arose out of three alleged incidents of sexual assault of one of the daughters in the family with whom he was living.  At the time of the incidents, the girl was six and Mr. Bowlin was fifteen.  When the girl was thirteen, she revealed the abuse, and Mr. Bowlin, then twenty-two was ultimately convicted at trial.

The state filed a petition in the juvenile court.  Because of his age, by statute, the District Court was forced to choose between dismissing the case (allowing Mr. Bowlin to escape any punishment) and transferring the case to Superior Court (where Mr. Bowlin would face adult sentencing ranges).  The District Court transferred the case.

Practice Point 1: In Superior Court, when representing a person who was less than eighteen at the time of the offense, ask the court to consider the person’s age a mitigating circumstance.  If the court refuses, object, citing the Eighth and Fourteenth Amendments to the U.S. Constitution and to Article I, section Twenty-Seven of the North Carolina Constitution.

In Superior Court, Mr. Bowlin pled guilty.  At sentencing, the Superior Court rejected Mr. Bowlin’s age at the time of the offense as a mitigating factor.  When he was sentenced (and again on appeal), Mr. Bowlin raised an Eighth Amendment challenge to the sentence: being subjected to a mandatory minimum designed for adults for an offense he committed as a fifteen year old is cruel and unusual punishment.  He argued that, because of his age, the sentencing court should have had discretion to impose a shorter sentence than the minimum sentence imposed on adult offenders.

The Court of Appeals rejected the argument.  It held that his sentence was not “grossly disproportionate” to the offense.  The lack of disproportion ended the inquiry for the court because the sentence was to a term of years. Without explaining why, the court also “note[d] that the trial court exercised its discretion to consolidate the offenses and to sentence the defendant in the mitigated range, but chose not to find ” that Mr. Bowlin’s age at the time of the offense was mitigating.  The court did not explain the significance of its note.  A petition for discretionary review to the North Carolina Supreme Court has been filed but not yet ruled on.

The court’s bottom line holding is in conflict with at least two recent cases either invalidating or calling into question mandatory minimums for juvenile offenders. Until the North Carolina Supreme Court takes up this important constitutional question, Eighth Amendment challenges to mandatory minimums, even imposed on juveniles, may prove unavailing.

However, the court’s note highlights two open questions about juvenile sentencing in North Carolina.  First, is a juvenile offender ever entitled, as a matter of law, to have age found as a mitigating factor? Second, if a sentencing court lacks discretion to consider a juvenile’s age and craft a sentence accordingly, does that sentence comply with the Eighth Amendment?

Starting in 2005, the U.S. Supreme Court has time and again recognized “what every parent knows”:  juveniles (1) “lack maturity and have an underdeveloped sense of responsibility leading to “ill-considered actions and decisions,” (2) are “susceptible to negative influences,” and (3) have a personality and character that is “not as well formed.”   For these reasons, the high Court has held that the primary purposes of punishment—retribution, deterrence, and rehabilitation—are ill-served by imposing lengthy prison sentences on juveniles.  Most recently, the Court explained that these facts about juveniles means “a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect ‘irreparable corruption.’”

Practice Point 2: Throughout the case, but particularly in transfer proceedings and at sentencing, link the Supreme Court’s language about a juvenile client’s limitations to your client’s behavior and make the case that your client is a good candidate for rehabilitation.

Returning to the first open question, the U.S. Supreme Court’s repeated reliance on these basic facts to hold that a juvenile’s culpability is less than that of an adult calls into question any sentencing judge’s decision that age is not a mitigating factor (something not challenged in Bowlin).  When representing a juvenile in Superior Court sentencing proceedings, there is no reason not to object—citing the Eighth and Fourteenth Amendments to the U.S. Constitution and to Article 1, section 27 to the North Carolina Constitution—to a sentencing judge’s decision not to find that the age of a juvenile client is a mitigating factor.  For reasons similar to the limitations inherent to youth, the U.S. Supreme Court has held that limitations in cognitive functioning are “inherently mitigating.”  We should demand courts hold the same regarding our juvenile clients’ age and ask them to find a juvenile’s age mitigating as a matter off law.

The second open question is narrower: whether the Eighth Amendment is satisfied if the sentencing court has no discretion to tailor the sentence to the defendant’s age.  The context in which this arises in North Carolina is felony murder by a person less than eighteen years old.  A juvenile convicted of felony murder receives a life sentence without possibility of parole for twenty-five years.  No other sentence is available.  There is no shortage of scholarship explaining the case for an Eighth Amendment bar to blocking sentencers from considering a juvenile offender’s age and crafting a sentence accordingly.  The basic argument is that “children are different” and require the increased protection of individualized consideration vis-à-vis a discretionary sentence.  If the argument holds, then the mandatory sentence of twenty-five to life violates the Eighth Amendment.  The Court of Appeals’ apparent need to “note” that there was discretion suggests this may be an issue it will need to take up in the future.

Regardless, Bowlin highlights the ongoing importance of being attuned to the limitations that our juvenile clients have and the need to link those limitations to why our clients are good candidates for rehabilitation and mercy.

John R. Mills is a Principal Attorney with Phillips Black, a non-profit, public interest law practice.

Montgomery v. Louisiana – Decision and Resources

On January 26, 2016 the United States Supreme Court determined in Montgomery v. Louisiana that the 2012 decision of Miller v. Alabama applies retroactively to juveniles who are currently serving life without parole sentences.  This ruling may lead to the review of sentences for former juveniles currently incarcerated under life sentences in North Carolina and around the country.  For more information about the case and its potential impact, please see: