Forecast 2014: Defense Lawyers Focus On Sentencing Issues

, The Connecticut Law Tribune

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John Walkley
John Walkley

These are complicated times in criminal law. The death penalty as a ultimate punishment has been repealed in Connecticut, but new ways to commit crimes continue to created.

Mandatory minimum sentences continue to be established, but the U.S. Attorney General suggests—at least on paper—that his prosecutors seek those sentences less often. And while the public seems to clamor for longer and longer sentences for convicted wrongdoers, those looking at balancing a tight state budget are trying to reduce prison population and costs of incarceration.

As they say, for every complex problem there is a simple solution, and it's usually wrong. 2014 is likely to shape up as a year that continues this examination of conflicting interests.

Following are a few topics in criminal law I believe will make news in the new year:

Juvenile Sentencing

In the summer of 2012, the U.S. Supreme Court decided Miller v. Alabama and held that defendants who were juveniles at the time of their capital offenses could not be sentenced (except in rare circumstances) to life in prison without the possibility of parole. Based on Miller, a handful of cases have returned or will be returning to the Connecticut dockets for reexamination and resentencing in the near future. Capital defense attorneys will be in full mitigation mode until the time is right to ask the courts to revisit these defendants' sentences.

It is unlikely that this re-examination will end with cases involving life imprisonment without any chance of release. Litigation will also commence in cases in which extremely long sentences were handed out for offenses that occurred while the defendants were juveniles. The second set of litigation is based on another U.S. Supreme Court decision, the 2010 case of Graham v. Florida, in which the justices focused on science demonstrating that the brain is not fully formed until a person reaches 21 to 25 years of age.

At least one Connecticut court has indicated it will not entertain motions based on the young offender's developmental stage. But especially in light of Miller and the changing complexion of juvenile sentencing, these motions are inevitable. One can also expect that the nature of sentencing at the trial level in juvenile court has changed forever.

Forensic Science

Just as the science surrounding juvenile brain development has caused courts to adjust their views on punishment, criminal defense lawyers are asking the courts to reexamine the validity of previously accepted areas of forensic "science."

Based on recent studies, forensic evidence such as fingerprints, hair and fiber comparisons, and bite-mark analysis have been criticized as not actually scientific. Even DNA and DUI Breathalyzer results are being challenged based upon the standards and practices of examining laboratories and the methodology employed.

Freedom of Information Act inquiries are compelling the state forensics laboratories to disclose what lies beneath their analysis. This might begin to uncover "ammunition" for defense lawyers who question long-accepted "scientific" principles. What has long been accepted as science may not be science any longer.

Mandatory Minimum Sentences

Clearly, the ability of criminal defense lawyers to challenge mandatory minimum sentences in a courtroom is limited. But it may be time for the legislature to take a new look at crimes and the penalties they call for.

Some may say that it's unnecessary to eliminate mandatory sentences, as most cases are resolved without the need to resort to an applicable mandatory punishment. This may be correct, but it also demonstrates that the mandatory minimum is mere surplusage: just noise or leverage given to a prosecutor that is irrelevant to the process.

The bottom line is these potential sentences tie the hands of the judges and remove the discretion they otherwise possess to try to resolve a criminal case without a trial. Defendants' exposure to mandatory minimums slows down the entire process, leading to repeated pretrial court conferences and more trials than would otherwise be needed, because few are willing to settle the case pretrial.

Perhaps the legislature, in the coming year, should consider the elimination of many of these mandatory minimums. This would give more discretion to Superior Court judges, allowing them to play a more active role in the disposition of more of these cases, streamlining the criminal prosecution process and saving scarce state dollars at the same time.

I think history will show that neither justice nor mercy will be sacrificed in the process.

Death Penalty

On April 25, 2012, Connecticut repealed the death penalty for qualifying capital murder offenses. While there were a few straggling capital cases that were pending at the time of the repeal, no new sentences of death have been imposed in the Connecticut state courts since that time.

This has not been true in the federal courts. In the nearly two years since repeal, the death penalty has been placed on the table in numerous federal cases that, in the past, would likely have been prosecuted in our state courts. When state repeal came in 2012, there was a universal concern among capital defense practitioners that more federal authorizations would be sought. I expect this trend to continue in 2014 and beyond.

The federal government has the right to prosecute those who violate its laws and to seek the most appropriate punishment those laws allow. At the same time, if a federal prosecution is pursued merely for the purpose of seeking or exposing an accused to a death sentence in an otherwise death-ineligible case in state court, priorities should be questioned.

Whether death is infrequently sought in these federal murder cases or this becomes a trend remains to be seen. But this is something that should be watched in the coming year.•

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