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A Debate within the Virginia Supreme Court: De Facto Life Sentences for Juveniles and the Eighth Ame

On February 12, 2016, the Virginia Supreme Court handed down its decision in two consolidated appeals, Darien Vasquez v. Commonwealth of Virginia, (Record No. 141071), and Brandon Valentin v. Commonwealth of Virginia, (Record No. 150357). See Vasquez v. Commonwealth, ___ Va. ___, 781 S.E.2d 920 (2016). The cases originated in the Rockingham County Circuit Court.

Vasquez and Valentin, co-defendants, appealed their convictions for a host of violent felony offenses. The prosecutions arose from their armed burglary of an occupied townhome. In addition to the burglary, the crimes they committed together included such offenses as rape, forcible sodomy, inanimate object sexual penetration, abduction, and larceny. Each defendant was sixteen years old on the offenses date; they were tried as adults. They both received multiple term-of-years sentences. Vasquez’ aggregate consecutive sentences totaled 283 years, with 150 suspended, for an active incarceration term of 133 years. Valentin received 148 years, with 80 suspended, leaving him with 68 years to serve. The Court noted that “[b]etween the two defendants and their total of thirty convictions, each conviction received an average of 6.7 years of active incarceration.”

Their respective appeals asserted several assigned errors. Of key interest here, each claimed that his aggregate term-of-years sentences “violated the Eighth Amendment’s prohibition of cruel and unusual punishment.” Justice Kelsey wrote for a five-member majority, and affirmed the defendants’ convictions. Justice Mims authored a concurring opinion, joined by Justice Goodwyn.

Justice Kelsey commenced the majority’s Eight Amendment analysis with a discussion of recent applicable U.S. Supreme Court precedent. First, under Roper v. Simmons, 543 U.S. 551, 578 (2005), the Court ruled that the Eighth Amendment and Fourteenth Amendments “forbid imposition of the death penalty” on juvenile offenders. Next came Graham v. Florida, 560 U.S. 48, 77 (2010), wherein the Court forbade imposition of life-without-parole on a “juvenile offender who did not commit homicide.” Third, in Miller v. Alabama, 567 U.S. ____ (2012), the Court ruled that “mandatory life-without-parole sentences for juveniles violate the Eighth Amendment.”

The Court noted that neither Vasquez nor Valentin contended that their sentences violated the “case-by-case approach to judging disproportionate sentences under the Eighth Amendment.” Citing discussion Graham, 560 U.S. at 86-96 (Roberts, C.J., concurring). Instead, the appellants argued that the Court should extend Graham’s “categorical” prohibition of life-without-parole sentences “to non-life sentences that, when aggregated, exceed the normal life spans of juvenile offenders.” The Court, Justice Kelsey wrote, declined “the invitation to do so.”

The Court ruled that Graham’s holding applied only to the imposition of a life without parole sentence on a juvenile who did not commit homicide. The decision therefore did not “address multiple term-of-years sentences imposed on multiple crimes that, by virtue of the accumulation, exceeded the criminal defendant’s life expectancy.”

Thus, the “only reason that the aggregate sentences exceeded their life expectancies was because they committed so many separate crimes. These cases are nothing like Graham, which involved a single crime resulting in a single life-without-parole sentence.” To so extend Graham would represent an unwarranted “proactive exercise inconsistent with our commitment to traditional principles of judicial restraint.” The Court looked to the holdings of two federal circuits, and a number of state court decisions, to support its decision against extending Graham’s holding to what it found to be a “dissimilar context.” See e.g. Bunch v. Smith, 685 F.3d 546, 547 (6th Cir. 2012); U.S. v. Walton, 537 F. Appx. 430, 437 (5th Cir. 2013)(per curiam)

Clearly anticipating the concurrence, Justice Kelsey added that “[o]ur holding…should not be read to signal the end of debate on the underlying issues raised by aggregate term-of-years sentences imposed upon juveniles.” Instead, the General Assembly, through its plenary legislative power, “has the opportunity to explore additional ways of calibrating the just aims of the criminal justice system to the unique circumstances of juvenile offenders, particularly in cases in which juveniles commit nonviolent crimes and demonstrate a level of genuine contrition suggesting a realistic hope of rehabilitation.”

In contrast with the majority, Justices Mims and Goodwyn wrote of their conclusion “that Graham's prohibition on sentences of life without parole for juveniles who commit non-homicide offenses does apply to a term-of-years sentence that constitutes a de facto life sentence imposed in a single sentencing event.” The concurrence defined a “de facto life sentence” as “one in which there is no question that the individual will not be released during his lifetime, not merely one in excess of an actuarial estimate of an individual's lifespan.” The justices cited and discussed a federal circuit decision, and cited several state court decisions, which adopted their viewpoint. See e.g. Moore v. Biter, 725 F.3d 1184 (9th Cir. 2013).

Although the concurring justices did not specifically find that Vasquez’ and Valentin’s sentences met the de facto life sentence criteria, it appears that they held this view, at least as to Vasquez. Yet, they concurred with the majority because of the holding in Angel v. Commonwealth, 281 Va. 248, 704 S.E.2d 386 (2011). In that case, the Court “held that Virginia's geriatric release statute provides the requisite meaningful opportunity for release based on demonstrated maturity and rehabilitation that Graham requires. Vasquez and Valentin will be eligible for such release.”

Va. Code §53.1-40.01 sets forth Virginia’s geriatric release provisions, as follows:

Any person serving a sentence imposed upon a conviction for a felony offense, other than a Class 1 felony, (i) who has reached the age of sixty-five or older and who has served at least five years of the sentence imposed or (ii) who has reached the age of sixty or older and who has served at least ten years of the sentence imposed may petition the Parole Board for conditional release. The Parole Board shall promulgate regulations to implement the provisions of this section.

Yet, despite the statute’s terms, the concurrence expressed serious concern with the statute’s practical application. Justice Mims noted that, “whether the geriatric release statute as applied will continue to provide the ‘meaningful opportunity for release’ required by Graham is subject to debate. Statistics describing the frequency with which geriatric release has been granted post-Angel are troubling: less than 4% of the eligible offenders who applied for geriatric release have received early release. See Virginia Dep't of Corr., FY2014 Geriatric Offenders Within the SR Population 7 (Sept. 2015).”

In a warning tone, the concurrence stated that if “these trends continue as juvenile offenders become eligible for geriatric release, it may become increasingly difficult to maintain that geriatric release as applied truly provides a ‘meaningful opportunity’ for release.” The opinion suggested that the General Assembly “would be prudent to examine carefully the procedures currently governing juvenile sentencing and geriatric release in Virginia.”

In conclusion, Justice Mims stated:

[B]ecause Virginia's geriatric release statute, if applied as written, is capable of providing juveniles with such sentences a meaningful opportunity for release as mandated by Graham, and review of its application to offenders sentenced as juveniles is not yet ripe, I concur in the Court's determination that his sentence does not violate the Eighth Amendment of the United States Constitution.

Without question, the issue of Graham’s possible extension to lengthy term-of-years sentences, those deemed to constitute a de facto life sentence, remains vibrant in federal and state criminal law jurisprudence. The Vasquez decision brings the debate home to Virginia. The decision certainly uncovered a latent factional division in the Court’s membership.

Of note to criminal law practitioners, the Moore v. Biter case produced subsequent procedural history. At 742 F.3d 917 (2014), the 9th Circuit denied a petition for en banc hearing. That denial generated a dissenting opinion, quoted in part by the Vasquez majority. See 742 F3d at 917-22 (O’Scannlain, J., dissenting). In relevant part, Judge O’Scannlain highlighted the problematic legal line-drawing coincident with an extension of Graham’s holding:

At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: twenty, thirty, forty, fifty, some lesser or greater number? Would gain time be taken into account? Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria? Does the number of crimes matter?

Id., quoting Henry v. State, 82 So.3d 1084, 1089 (Fla. Ct. App. 2012). As more federal circuits, and state appeals courts, consider the issue of de facto life sentences for juveniles, we may expect to see a vetting of these and related issues. At some point, the U.S. Supreme Court may well resolve the Graham extension question.

In the meantime, what should a contentious criminal defense counsel do when representing a juvenile offender sentenced to a very lengthy term-of-years? My suggestion is that you should preserve the Eighth Amendment issue for appeal, and, potentially, for a future habeas corpus petition.

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