JUDICIAL RESPONSES TO AGE AND OTHER MITIGATION EVIDENCE: AN EXPLORATORY CASE STUDY OF JUVENILE LIFE SENTENCES IN PRE-MILLER CASES.

• Author: Ashford, Jose B.

INTRODUCTION 594 I. COMPETING INTERPRETATIONS OF BLAMEWORTHINESS 599 II. CONSIDERING MITIGATION IN EVALUATING BLAMEWORTHINESS 602 III. METHODS 606 A. Research Procedures 606 B. Context 608 C. Participants 611 D. Measures 613 E. Data Analysis Design 615 IV. FINDINGS 616 CONCLUSION 624 INTRODUCTION

Prior to the Supreme Court's decision in Roper v. Simmons, (1) juvenile offenders above 16 years of age were subject to discretionary capital punishment. In Roper, the Court reversed its previous position in Stanford v. Kentucky (2) and held the death penalty unconstitutional as applied to juveniles. (3) Nonetheless, the Stanford decision did contain arguments in the concurring and the dissenting opinions about the need for proportionality analyses addressing developmental differences between juveniles and adults in deciding on a juvenile death or life sentence. (4) Some of the reasoning in those opinions in Stanford was adopted in Roper, (5) which has served as the progenitor of a subsequent line of decisions in juvenile jurisprudence that recognize important differences between juvenile and adult offenders in sentencing processes. (6)

The U.S. Supreme Court extended its reasoning in Roper to justify the invalidation of mandatory juvenile life without parole (JLWOP) sentences in its landmark decision in Miller v. Alabama. (7) This decision introduced new substantive and procedural requirements for the imposition of JLWOP sentences. (8) The Court held that it is unconstitutional not to consider age and its attendant characteristics as a special status in determining the proportionality of a natural life sentence for juveniles convicted of a homicide offense. (9)

Juvenile offenders sentenced in Arizona prior to Miller sought post-conviction relief for the retroactive application of the new constitutional standards and procedures prescribed in Miller. (10) However, the Arizona courts largely rejected these initial petitions because of the belief that the sentencing framework in Arizona for natural life sentences already complied with the Miller decision. (11) Retroactivity of Miller was also challenged in jurisdictions across the country. (12) The approach of these courts was found unconstitutional in Montgomery v. Louisiana. (13) Montgomery reaffirmed the need for legal limits on judicial discretion in evaluating mitigation evidence because juveniles as a class require special consideration of their developmental status when imposing life sentences. (14)

Before Miller and Montgomery, there were no legal standards regulating consideration of mitigation evidence in selecting juvenile life sentences. In addition, there were no empirical studies that examined how age and other mitigating factors were considered in assessing the blameworthiness of juveniles facing JLWOP sentences. One social science perspective used to guide investigations of sentencing disparities based on sex, race, ethnicity, and age is the focal concerns perspective first utilized by Steffensmeier and his colleagues. (15) Ulmer and Johnson, for example, write that "[a]ccording to focal concerns theory, judges and other court community actors therefore make situational imputations about defendants' character and expected future behavior, and assess the implications of these imputed characteristics in terms of three focal concerns: defendant blameworthiness, defendant dangerousness and community protection, and practical constraints and consequences connected to the punishment decision." (16) The focal concerns theory allows for investigations of variations in the factors considered and employed by judges when they evaluate questions of blameworthiness. Notwithstanding the presence and use of this perspective in sentencing research, there was limited research on how age and other mitigating evidence were evaluated in local court communities with a history of legal customs that employed what Atiq and Miller called "restrictive consideration" of mitigation evidence. (17)

The inhabited institutions perspective, with roots in organizational sociology, assumes that focal concerns in sentencing are "empirically indeterminate." (18) The concerns are indeterminate because the perspective recognizes that the formal rules can be transformed by local community rules and norms among organizational workgroups and institutional participants. Arizona is a state court system with a history of adopting restrictive consideration of mitigation evidence. (19) Trial and appellate courts in Arizona often would exclude mitigation evidence for consideration not on the basis of its relationship to moral principles of punishment and culpability, but because the evidence lacked a causal nexus with the crime. (20)

The Ninth Circuit Court of Appeals found the use of the causal connection practice in capital sentencing in Arizona unconstitutional in McKinney v. Ryan. (21) This decision addressed existing disputes in case law about consideration of non-statutory evidence of mitigation when imposing the death penalty. However, divisions remained among judges on the Ninth Circuit, as well as among the justices of the Arizona Supreme Court, about what "consideration" means when sentencing an offender convicted of first-degree murder. Judge Carlos Bea of the Ninth Circuit Court of Appeals, for instance, challenged in his dissenting opinion the assumption in the majority opinion in McKinney that the trial judge had not considered the mitigating evidence given the fact that the judge when sentencing the offender used the word "considering" in examining the case's mitigation evidence. (22) He opined that "giving little or no weight to such evidence [after consideration]... is perfectly permissible under Eddings." (23)

The concurring opinion in the post-Miller Arizona case of State v. Valencia reflected different concerns about the manner in which Montgomery addressed the degree of blameworthiness for juvenile offenders. (24) Justices Bolick and Pelander argued that,

By announcing in advance that most murders committed by juveniles "reflect the transient immaturity of youth," the Court trivializes the killers' actions and culpability. "Transient immaturity" is when my adolescent daughter slugs her big brother. It may even describe peer pressures that influence reckless behavior. But it is not apt rationalization for cold-blooded murder. (25) A similar viewpoint was reflected in a report utilized by the Maricopa County Attorney's Office to contest the science in future cases associated with assumptions about the diminished moral culpability of juveniles reflected in Miller and Montgomery, (26) Indeed, Maricopa County represents a court culture with a long history of placing restrictive conditions on its consideration of personally mitigating factors. (27) Moreover, the prosecutors in Maricopa County have shown institutional rejection of the scientific evidence relied on by the Supreme Court in Roper v. Simmons, Graham v. Florida, Miller v. Alabama, and Montgomery v. Louisiana. (28)

Inasmuch as the Supreme Court introduced in Miller the importance of considering age and its attendant characteristics when sentencing juveniles to life without parole, some judges in Arizona have denied post-conviction relief to offenders on the basis that age was considered when sentencing juveniles to JLWOP sentences prior to Miller. (29) Yet, these post-conviction decisions came without any supporting empirical evidence of such consideration of age and attendant circumstances by the sentencing courts. For this reason, this study examined the percentage of pre-Miller cases in Maricopa County in which judges referred to age and other mitigation when giving their reasons for sentencing juveniles to "life" (25-to-life) or "natural life." The study also examines the odds ratios of life or natural life sentences when variables measuring the characteristics of the crime and judicial findings of aggravating and mitigating circumstances were present. Additionally, the study computes the odds ratios of specific life sentences for each of the proffered reasons for these sentences and whether age-related reasons correlated with other variables that show a statistical association with life sentences in this county.

1. COMPETING INTERPRETATIONS OF BLAMEWORTHINESS

   Mitigating and aggravating circumstances did not become relevant considerations in criminal sentencing until the emergence of the neoclassical philosophy of crime and punishment. (30) The neoclassical schools of criminology and punishment challenged legal codes that assume all persons who violate a given abstract criminal classification are equally culpable. (31) The neo-classicists contended that "[c]hildren, persons under duress, and individuals who were suffering from mental illness were seen as having characteristics that differentially affected their moral culpability." (32) This reform in criminal jurisprudence challenged classical principles of punishment that originated in the writings of Cesare Beccaria and Jeremy Bentham. (33)

   Beccaria and Bentham stressed selecting punishments that were proportional to the seriousness of the offense. (34) Their philosophies of punishment have left an important legacy that continues to influence sentencing frameworks that give primacy to the nature of the offense in selecting an appropriate punishment. Beccaria considered discretionary applications of punishment suspect because they contributed to differential treatment of persons from different backgrounds and social classes, as well as excessive punishments that were inconsistently applied to individuals with convictions for the same offenses. (35) Consequently, the classicists recommended treating all individuals as equally culpable for committing specifically defined crimes and their corresponding punishments. (36) A consequence of this opinion was that no distinctions in culpability were applied to persons convicted of homicide offenses based on...