The White House announcement on February 1, 2013 included the following biographical sketch for Bob:  “Robert Listenbee,  Jr. is Chief of the Juvenile Unit of the Defender Association of Philadelphia, a position he has held since 1997.  He has also been a trial lawyer at the Defender Association of Philadelphia since 1986.  Previously, from 1991 to 1997, Mr. Listenbee was Assistant Chief of the Juvenile Unit.  He is a member of the Juvenile Justice and Delinquency Prevention Committee of the Pennsylvania Commission on Crime and Delinquency, which advises the Governor of Pennsylvania on juvenile justice policy.  Mr. Listenbee serves on the policy committees of the National Legal Aid & Defender Association and the National Center for Juvenile Justice. He serves on the advisory board of the National Juvenile Defender Center and is a board member and former President of the Juvenile Defenders Association of Pennsylvania.  Mr. Listenbee received a B.A. from Harvard University and a J.D. from the Boalt Hall School of Law at the University of California, Berkeley.”

As for Bob’s goals for the job, in an interview just after being named to the post, Bob said: “… [O]ur standards really should be, “Is this good enough for my kid? Is this the kind of program I would want for my child if my child had difficulties and needed to be in the juvenile justice system? Do I have the kind of high aspirations for these children – not just that they shouldn’t get re-arrested – but that they should have hopes and dreams, that will give them productive lives and have families and kids too?  That’s really what I think our system ought to be doing. And that’s the kind of a goal that I think we as practitioners of a system should have.   Those are the kinds of caring and compassionate feelings that we should bring to the task.”   (Jhumra-Smith, “Robert Listenbee: Q&A with Incoming Federal Juvenile Justice Chief” Youth Today (Feb. 12, 2013).)

A number of PJDC members were involved in legislative efforts to pass SB 9, most notably Elizabeth Calvin of Human Rights Watch.

The California Court held:

“Consistent with the high court‟s holding in Graham, supra, 560 U.S. ___ [130 S.Ct. 2011], we conclude that sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender‟s natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment.”  ”Defendant in the present matter will become parole eligible over 100 years from now. (§ 3046, subd. (b) [requiring defendant serve a minimum of 110 years before becoming parole eligible].) Consequently, he would have no opportunity to “demonstrate growth and maturity” to try to secure his release, in contravention of Graham‟s dictate.”

“Under Graham‟s nonhomicide ruling, the sentencing court must consider all mitigating circumstances attendant in the juvenile‟s crime and life, including but not limited to his or her chronological age at the time of the crime, whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or her physical and mental development, so that it can impose a time when the juvenile offender will be able to seek parole from the parole board. The Board of Parole Hearings will then determine whether the juvenile offender must be released from prison “based on demonstrated maturity and rehabilitation.” (Id. at p. ___ [130 S.Ct. at p. 2030].) Defendants who were sentenced for crimes they committed as juveniles who seek to modify life without parole or equivalent defacto sentences already imposed may file petitions for a writ of habeas corpus in the trial court in order to allow the court to weigh the mitigating evidence in determining the extent of incarceration required before parole hearings. Because every case will be different, we will not provide trial courts with a precise time frame for setting these future parole hearings in a nonhomicide case. However, the sentence must not violate the defendant‟s Eighth Amendment rights and must provide him or her a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” under Graham‟s mandate.”

PJDC filed an amicus brief with the court, and Marsha Levick of the Juvenile Law Center argued the amicus on behalf of PJDC: PJDC’s Caballero amicus brief.

The Court instructed that “[d]efendants who were sentenced for crimes they committed as juveniles who seek to modify life without parole or equivalent defacto sentences already imposed may file petitions for a writ of habeas corpus in the trial court.”

The majority opinion is brief (7 pages). Click on this link for the entire opinion: People v. Caballero.

On Monday June 25, 2012, the United States Supreme Court issued its opinion in Miller v. Alabama, No. 10-9646, and Jackson v. Hobbs, No. 10-9647, holding that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”  The Court reversed the decisions of the Arkansas Supreme Court and Alabama Court of Criminal Appeals and remanded the cases for further proceedings. Justice Kagan delivered the opinion of the Court (5-4) in which Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined. Justice Breyer filed a concurring opinion in which Justice Sotomayor joined.   Chief Justice Roberts filed a dissenting opinion in which Justice Thomas and Alito joined.  Justice Thomas filed a dissenting opinion, in which Justice Scalia joined. Justice Alito filed a dissenting opinion, in which Justice Scalia joined.

In each of these cases, a 14-year-old was convicted of murder and sentenced to a non-discretionary term of life imprisonment without the possibility of parole. In November 1999, Kuntrell Jackson, then 14, and two other teenagers went to a video store in Arkansas planning to rob it.  En route to the store, Kuntrell learned that one of the boys was carrying a gun.  Kuntrell decided to stay outside when the two other boys entered the store, but later entered and was present when one of the boys pulled the gun and shot and killed the store clerk.  Kuntrell was charged as an adult with capital felony murder and aggravated robbery, and a jury convicted him of both crimes.  The trial court imposed a statutorily mandated sentence of life imprisonment without the possibility of parole.  Similar to Kuntrell, Evan Miller was 14 years old at the time of his crime. Evan had been in and out of foster care due to his mother’s alcohol and drug addiction and because his stepfather abused him.  The record reflected that Evan himself regularly used drugs and alcohol and had made numerous suicide attempts, the earliest when he was six years old. In 2003, after a neighbor came by Evan’s home to make a drug deal with his mother, Evan and a friend went over to the neighbor’s trailer where all three engaged in an evening of drinking and drug use.  That evening ended in an altercation in which Evan and his friend beat the neighbor and set fire to his trailer. The neighbor died from smoke inhalation. Evan was initially charged as a juvenile, but his case was removed to adult court, where he was charged with capital murder in the course of arson. A jury convicted Evan and the trial court imposed a statutorily mandated punishment of life without parole.

 The question before the United States Supreme Court was whether imposing a mandatory sentence of life without the possibility of parole on a juvenile offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.

 Justice Kagan, writing for the majority, extended the court’s rulings in Roper and Graham noting that while Graham applied only to non-homicide crimes “[N]one of what it said about children—about their distinctive (and transitory) mental traits and environmental vulnerabilities—is crime-specific.” As such,  “Graham’s reasoning implicates any life without-parole sentence imposed on a juvenile.” The Court eliminated mandatory sentences because they bar consideration of children’s unique characteristics.  Justice Kagan stated, “Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features – among them, immaturity, impetuosity, and failure to appreciate risks and consequences.  It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional.  It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him . . . And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.”

The Court notes that since it’s “holding [that the Eight Amendment forbids a sentencing scheme that mandates life in prison with the possibility of parole for juveniles] is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger.” While the Court’s ruling does not categorically ban juvenile life without parole in all circumstances, “Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.” Further, Justice Kagan wrote, “given all that 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.”   Elaborating on this discretion the Court stated, “Although we do not 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.”

In a concurring opinion, Justice Breyer, joined by Justice Sotomayor, would have gone even further prohibiting life without parole sentences for all juveniles who did not actually kill or intend to kill the victim. Justice Breyer stated, “Moreover, regardless of our law with respect to adults, there is no basis for imposing a sentence of life without parole upon a juvenile who did not himself kill or intend to kill… [T]he ability to consider the full consequences of a course of action and to adjust one’s conduct accordingly is precisely what we know juveniles lack capacity to do effectively.”

Chief Justice Roberts filed a dissent joined by Justices Alito, Scalia and Thomas, criticizing the majority holding. The Chief Justice stated “Perhaps science and policy suggest society should show greater mercy to young killers, giving them a greater chance to reform themselves at the risk that they will kill again,” Chief Justice Roberts wrote. “But that is not our decision to make.”

Justice Alito, wrote a separate dissent which was joined by Justice Scalia, accusing  the court of usurping legislative authority and asserting that decisions about the appropriate prison sentences for “murders under the age of 18” should be made by legislators, not by the courts.

The opinion can be reviewed at this link: http://www.supremecourt.gov/opinions/11pdf/10-9646g2i8.pdf

Related case briefs and documents can be accessed directly at this link:

http://www.scotusblog.com/miller-v-alabama/

http://www.scotusblog.com/jackson-v-hobbs/

Click here to read PJDC’s statement.

CALIFORNIA SUPREME COURT RULING ON HOME BURGLARY

Bob Egelko

Applying a centuries-old criminal law to the electronic age, the state Supreme Court ruled Thursday that residential burglary – entering a home with felonious intent – is not committed by someone who is arrested after using a remote control to open a garage door.

Although the suspect may have intended to break into the home, “he did not commit burglary because he did not enter the residence. Nothing penetrated the outer boundary,” said Justice Goodwin Liu in the unanimous ruling.

That means Christopher Magness, jailed since his arrest in July 2010 outside a Sacramento home, can be convicted only of attempted burglary, punishable by up to three years in prison, said his lawyer, Arthur Bowie, an assistant county public defender.

Residential burglary is punishable by up to six years. Magness’ sentence could be doubled because he has a previous felony conviction covered by the state’s three-strikes law.

The court said a homeowner heard the door opening, ran into the garage and saw Magness standing outside. He chased Magness on a bicycle and then called sheriff’s deputies, who arrested Magness. On the driveway they found the remote control, which he had apparently taken from the owner’s car by peeling away a door seal and reaching inside, the court said.

Prosecutors charged Magness with burglary, relying on a case in which a would-be assailant kicked in the door of a man’s home but never went inside. A state appeals court ruled in 2007 that burglary had been committed because the door was an “instrument” under the defendant’s control and was used to enter the home.

That reasoning was flawed, the state’s high court said Thursday. Burglary, Liu said, requires either a physical entry into the home – possibly by the foot that kicks in the door – or some instrument or tool that crosses the threshold, like a drill through a wall or a tire iron that pries the door open.

“Something that is outside must go inside for an entry to occur,” Liu said. He said Magness’ alleged actions were comparable to those of a would-be intruder who slid open an unlocked glass door but was arrested before entering.

Bowie said the ruling made sense. By charging the more serious crime only after physical entry, the defense lawyer said, “you’re giving perpetrators pause to think about what they’re doing.”

Attorney General Kamala Harris’ office was disappointed by the ruling, said spokeswoman Lynda Gledhill

The ruling in Magness vs. Superior Court, S194928, can be viewed at http:// sfg.ly/KBICgz.

The award also honors Elizabeth for her amazing career in juvenile advocacy.  She was the co-founder to Washington State”s TeamChild program, which provides holistic respresentation to youth in the court system.  She has worked since its inception with the National Juvenile Defender Center and has been a part of the Equity Project, focusing on the needs of LGBT youth in the juvenile justice system.  She served on the California Team for the MacArthur Foundation’s Juvenile Indigent Defender Action Project, and is on the Boards of PJDC, TeamChild and the Center for Juvenile Law & Policy.  She also coordinates California’s Coalition for Fair Sentencing of Youth, an interfaith group that works with families impacted by youth violence, families of youth in the system, and advocates deidcated to ending extreme sentences for youth.  Additional information about  Elizabeth’s work is posted on the Human Rights Watch web site.