Resurrecting Arbitrariness

What allows judges to sentence a child to die in prison? For years, they did so without constitutional restriction. That all changed in 2012’s Miller v. Alabama, which banned mandatory sentences of life without parole for children convicted of homicide crimes. Miller held that this extreme sentence was constitutional only for the worst offenders—the “permanently incorrigible.” By embracing individualized sentencing, Miller and its progeny portended a sea change in the way juveniles would be sentenced for serious crimes. But if Miller opened the door to sentencing reform, the Court’s recent decision in Jones v. Mississippi appeared to slam it shut. Rather than restrict the discretion of a judge to throw away the key in sentencing child defendants, the Court in Jones increased that discretion. It recast Miller as a purely procedural decision that only required a barebones “consideration” of a defendant’s “youth and attendant characteristics” to fulfill its mandate of individualized sentencing. Jones further held that judges need not engage in any formal factfinding before sentencing a child to die in prison, which renders these sentences nearly unreviewable. This Article argues that, through these two jurisprudential moves, Jones created conditions that will maximize arbitrary and racially discriminatory sentencing outcomes nationwide, resembling the unconstitutional death sentences of the mid-twentieth century. This Article is the first to comprehensively analyze Jones, contending that the decision represents an embrace of unfettered discretion in the sentencing of children facing life without parole. Given the Supreme Court’s gutting of the Eighth Amendment, I contend that state solutions are the way forward. I propose that states join the national trend of abandoning life without parole sentences for children. Short of abolishing the sentence, I offer three procedural interventions. First, states should enact “genuine narrowing” requirements that establish criteria designed to limit eligibility for life without parole sentences for children to the theoretical “worst of the worst.” While inspired by the narrowing requirement in capital sentencing, “genuine narrowing” relies on meaningful and concrete criteria that seek to achieve the mandate of Miller that such sentences be uncommon. Second, states should require jury sentencing, which ensures that sentences will be imposed by multiple, and typically more diverse, voices than what currently occurs with judicial sentencing. Third, states should go beyond merely telling sentencers to take youth into account in their sentencing decisions, but should instead inform them that the characteristics of youth are “mitigating as a matter of law,” and when present, must weigh against an imposition of life without parole

The Eighth Amendment Power to Discriminate

For the last half-century, Supreme Court doctrine has required that capital jurors consider facts and characteristics particular to individual defendants when determining their sentences. While liberal justices have long touted this individualized sentencing requirement as a safeguard against unfair death sentences, in practice the results have been disappointing. The expansive discretion that the requirement confers on overwhelmingly White juries has resulted in outcomes that are just as arbitrary and racially discriminatory as those that existed in the years before the temporary abolition of the death penalty in Furman v. Georgia.1 After decades of attempting to eliminate the requirement, conservative justices have recently employed a new tactic: extinction through expansion. By relying on the individualized sentencing requirement to discourage jury instructions that enhance consideration of mitigation evidence, these justices have stretched the doctrine well beyond its intended meaning. This broad interpretation renders individualized sentencing ephemeral to the point of insignificance, ensuring that the problems with capital sentencing will continue in the years to come. While an examination of individualized sentencing is overdue, the solution is not to jettison the requirement, but instead to permit states to channel juror discretion. This Article is the first to contend that states may achieve the goals of individualized sentencing, not by expanding juror discretion to consider mitigation evidence, but, counterintuitively, by narrowing it. It proposes that states employ specific jury instructions that: (1) require jurors to consider certain types of evidence as legally mitigating; (2) address the historically racist application of the death penalty; and (3)permit unfettered discretion solely in the direction of leniency. Channeling and redirecting discretion will minimize racist and arbitrary outcomes and realize true individualized sentencing

No Sense of Decency

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen as a lightning rod over constitutional interpretation, as its very language embodies living constitutionalism and seems to reject originalism. Now an evaluation of the possible replacements for the “evolving standards of decency” test takes on greater urgency. Appellate court judges have begun to press the Court to replace or reconsider the test. Three Justices have signaled their willingness to overrule the test, and at least two more are likely to join them. Given that stare decisis does not appear to be a formidable constraint on the current Court, the time has come to grapple with a new reality for the Eighth Amendment. This Article begins with a comprehensive evaluation of the tests that both originalist and non-originalist scholars have proposed as replacements. It contends that none of the proposed tests eliminate the shortcomings of the evolving standards of decency test, then concludes that originalism is an unsuitable methodology for interpreting the Eighth Amendment. The Article then proposes a new test—grounded in the structural harms of the modern criminal punishment system—that constrains judicial discretion in line with the constitutional values of antisubordination and human dignity. This new test addresses the flaws of the evolving standards of decency test without rendering Eighth Amendment jurisprudence a dead letter

No Sense of Decency

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen as a lightning rod over constitutional interpretation, as its very language embodies living constitutionalism and seems to reject originalism. Now an evaluation of the possible replacements for the “evolving standards of decency” test takes on greater urgency. Appellate court judges have begun to press the Court to replace or reconsider the test. Three Justices have signaled their willingness to overrule the test, and at least two more are likely to join them. Given that stare decisis does not appear to be a formidable constraint on the current Court, the time has come to grapple with a new reality for the Eighth Amendment. This Article begins with a comprehensive evaluation of the tests that both originalist and non-originalist scholars have proposed as replacements. It contends that none of the proposed tests eliminate the shortcomings of the evolving standards of decency tests, then concludes that originalism is an unsuitable methodology for interpreting the Eighth Amendment. The Article then proposes a new test—grounded in the structural harms of the modern criminal punishment system—that constrains judicial discretion in line with the constitutional values of antisubordination and human dignity. This new test addresses the flaws of the evolving standards of decency test without rendering Eighth Amendment jurisprudence a dead letter

A Second Look for Children Sentenced to Die in Prison

Scholars have championed “second look” statutes as a decarceral tool. Second look statutes allow certain incarcerated people to seek resentencing after having served a portion of their sentences. This Essay weighs the advantages and disadvantages of these statutes as applied to children sentenced to die in prison and argues that focusing on this small, discrete group may be a digestible entry point for more conservative states who fear widespread resentencing. Moreover, because early data indicates that children convicted of homicide and released as adults have very low recidivism rates, second look beneficiaries are likely to pose little threat to public safety. While resentencing and even releasing these individuals would not directly result in mass decarceration, it would serve as a litmus test for expanding second look statutes to adults convicted of violent crimes—the very group for whom meaningful decarceral efforts must ultimately be aimed.The Essay also argues that second look legislation has the potential to redress two specific sentencing problems common to cases involving children: the inability to accurately assess an individual’s capacity for change and racially discriminatory sentencing outcomes. To redress these problems, and to avoid reflexive impositions of original sentences, this Essay recommends three critical additions to juvenile second look statutes: automatic eligibility for resentencing at age twenty-five, jury resentencing, and inadmissibility of the defendant’s original sentence

College of Saint Benedict/Saint John’s University HLC Quality Initiative Summary Report

This Quality Initiative (QI) sought to identify more systematically how the College of Saint Benedict (CSB) and Saint John’s University (SJU) structures, programming, curriculum, and environments promote or inhibit healthy gender development among CSB and SJU students. CSB, a Catholic Benedictine residential liberal arts college for women, and SJU, a Catholic Benedictine residential liberal arts college for men, share a common academic program, while maintaining separate residential life and student development offices. Gender is a central component of our missions. As single-sex institutions working in partnership with each other, we have a unique obligation and opportunity to focus on gender development. The project sought to 1. Examine the current status of gender development on campus; 2. Examine the impact of gender-related policies (or lack thereof) on gender development and gender inclusion on campus; and 3. Examine the gender development impact of several high impact academic programs. The project involved hundreds of CSB and SJU faculty, staff, and students across multiple disciplines and institutional areas in designing and conducting six distinct projects to address the research goals. The Primary Investigators (PI) established connections among the various projects and shared findings with internal and external communities throughout the course of the QI project

Metabolic Versatility in Melainabacteria, a Close Relative of Cyanobacteria

A New Member of Melainabacteria, the Closest Relatives of Cyanobacteria Melainabacteria are the recently discovered, closest non-photosynthetic relatives of cyanobacteria, the organisms responsible for the oxygenation of Earth\u27s atmosphere. Previous work has shown that Melainabacteria live in a wide range of environments, including deep groundwater, anoxic sediments, and the digestive tracts of termites and mammals. These bacteria have been suggested to play a significant role in the latter environments and may contribute to neurodegenerative and gastrointestinal disease in human populations. However, our knowledge of Melainabacteria diversity and metabolism is still very limited, principally because no member of this group has been successfully cultured in the laboratory. Recently, DNA sequencing has revealed that a member of the Melainabacteria is growing in co-culture with an established diatom strain at the University of Montana’s Miller lab. In this study, we obtained a nearly complete Melainabacteria genome from metagenomic sequencing data. We then compared this genome to other previously sequenced Melainabacteria genomes to better understand genome architecture and the metabolic capacity of this bacterium. These data will guide further culturing efforts and future experiments. Together, our work will help clarify the functional role(s) of Melainabacteria in its environment and how it “makes a living” energetically. It will also provide new insights regarding the metabolic capabilities of the cyanobacterial ancestor and the origin of oxygenic photosynthesis

Thriving for Individuals with Disabilities: Towards a Collective Model in Midland County, Michigan

Midland County, Michigan, is a progressive community in which positive psychology contributes to the flourishing of its citizens. They have formed a Steering Committee consisting of numerous organizations that serve people living with disabilities. The purpose of this project was to develop a collective model of success for individuals with disabilities that would enable agencies supporting this population to effectively partner and build flourishing for this community. This project identified four key pillars that support thriving for individuals with disabilities: character strengths, self-determination, mattering, and belonging. Through a series of 15-minute workshops facilitated by a Steering Committee member, they will understand the construct of each pillar, have the opportunity to practice specific interventions in their personal and professional lives, and develop ways to implement the key concepts within their agencies to serve the individuals with disabilities

The relationship between types of childhood victimisation and young adulthood criminality

BackgroundPrevious research suggests that some types of childhood abuse and neglect are related to an increased likelihood of perpetrating criminal behaviour in adulthood. Little research, however, has examined associations between multiple different types of childhood victimisation and adult criminal behaviour.AimsWe sought to examine the contribution of multiple and diverse childhood victimisations on adult criminal behaviour. Our central hypothesis was that, after controlling for gender, substance use and psychopathy, each type of childhood victimisation â specifically experience of property offences, physical violence, verbal abuse, sexual abuse, neglect and witnessed violence â would be positively and independently related to criminal behaviour in young adults.MethodsWe examined data from a large, nationally representative sample of 2244 young Swedish adults who reported at least one form of victimisation, using hierarchical regression analysis to also account for gender, substance use and psychopathy.ResultsExperiences of physical assaults, neglect and witnessing violence as a child were significantly associated with adult criminal behaviour, but not experiences of property, verbal or sexual victimizations.ConclusionsOur findings help to identify those forms of harm to children that are most likely to be associated with later criminality. Even after accounting for gender, substance misuse and psychopathology, childhood experience of violence â directly or as a witness â carries risk for adulthood criminal behaviour, so such children need targeted support and treatment. Copyright © 2016 John Wiley & Sons, Ltd.Peer Reviewedhttps://deepblue.lib.umich.edu/bitstream/2027.42/138903/1/cbm2002.pdfhttps://deepblue.lib.umich.edu/bitstream/2027.42/138903/2/cbm2002_am.pd