On Point: 3. Harsh and excessive

State v. Antonio D. Barbeau, 2016 WI App 51; case activity (including briefs)

Barbeau killed his great-grandmother when he was 14 years old, and eventually pled no contest to first-degree intentional homicide, which carries an automatic life sentence. When imposing such a sentence, the court must make a decision as to extended supervision: it can either deny any possibility of ES, or it can set a date at which the person becomes eligible, though such date must occur after the person has served at least 20 years. Wis. Stat. § 973.014(1g).

State v. Anthony R. Owens, 2016 WI App 32; case activity (including briefs)

The circuit court properly admitted the victim’s statements about who shot him under the dying declaration exception to the hearsay rule, and the admission of the victim’s statements didn’t violate the Confrontation Clause.

Montgomery v. Louisiana, USSC No. 14-280, 2016 WL 280758 (January 25, 2016); reversing and remanding State v. Montgomery, 141 So.3d 264 (La. 2014); Scotusblog page (includes links to briefs and commentary)

In Miller v. Alabama, 132 S.Ct. 2455 (2012), the Court held that sentencing laws mandating life without parole violate the Eight Amendment’s prohibition on cruel and unusual punishments with respect to those under age 18 at the time of their crimes; here the Court holds that Miller announced a new substantive rule that is retroactive on state collateral review.

Kansas v. Carr, USSC Nos. 14-449, 14-450, 14-452, 2016 WL 228342 (January 20, 2016); reversing and remanding Kansas v. (Jonathan) Carr, 329 P.3d 1195 (Kan. 2014), Kansas v. (Reginald) Carr, 331 P.3d 544 (Kan. 2014), and Kansas v. Gleason, 329 P.3d 1102 (Kan. 2014); Scotusblog page (includes links to briefs and commentary)

The Eighth Amendment does not require courts to instruct the jury deciding whether to impose the death penalty that the defendant does not have to prove mitigating circumstances beyond a reasonable doubt.

Bernard McKinley v. Kim Butler, 7th Circuit Court of Appeals Case No. 14-1944, 1/4/16

McKinley failed to raise an Eighth Amendment claim in his state court challenges to the sentence he received for a murder he committed at the age of 16. That means he procedurally defaulted the claim for purposes of his federal habeas challenge to the sentence. But instead of affirming the district court’s dismissal of McKinley’s habeas petition, a majority of this Seventh Circuit panel stays the habeas proceeding and, based on reasoning that could be useful to other juveniles seeking to challenge long sentences, gives McKinley a chance to go back to state court to challenge his sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012).

GannettWisconsin.com has posted an extensive study of sentencing in Wisconsin during 2005-2014. Click here for “Scales of Justice or Roulette Wheel?” Investigative reporters extracted data from CCAP and created searchable databases that allow the user to see: (1) on a scale of 1 to 10 how harshly a particular judge sentences for certain crimes compared to other judges in his/her county and in the state, (2) the average sentences imposes for certain types of crime,

Glossip v. Gross, USSC No. 14-7955, 2015 WL 2473454 (June 29, 2015), affirming Warner v. Gross, 776 F.3d 721 (10th Cir. 2015); Scotusblog page (includes links to briefs and commentary)

In a 5-to-4 vote, the Supreme Court rejects the claims of Oklahoma death-row prisoners that the use of a particular drug (midazolam) in the three-drug lethal injection protocol violates the Eighth Amendment because it creates an unacceptable risk of severe pain. In addition to deep disagreements about the applicable Eighth Amendment standard and the lower court’s fact-finding, the case is notable for the sparring between two concurring justices (Scalia and Thomas) and a dissenting justice (Breyer, joined by Ginsburg), who now believes “it highly likely that the death penalty violates the Eighth Amendment” and that the Court should ask for full briefing on that basic question. (Breyer dissent at 1, 2).

Questions Presented:

1) Did the rule announced in Miller v. Alabama, 567 U. S. ____, 132 S.Ct. 2455 (2012), adopt a new substantive rule that applies retroactively on collateral review to people sentenced as juveniles to life in prison without parole?

2) Does the Supreme Court have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect to Miller?

Questions presented:

1) Does the rule announced in Miller v. Alabama, 567 U. S. ____, 132 S.Ct. 2455 (2012), apply retroactively to this case?

2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find that a new constitutional rule fits within an exception to Teague v. Lane, 489 U.S. 288 (1989), which held that new constitutional rules are generally not applied retroactively to cases on collateral review?

State v. Britton D. McKenzie, 2014AP314-CR, District 4, 8/28/14 (1-judge; ineligible for publication); case activity

Consecutive jail sentences totaling 24 months were not unduly harsh and excessive.