Other than criminal history, is there any "offender characteristic" that you think must be considered at sentencing?

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November 15, 2019

Timely "offender characteristic" news and notes from SCOTUS and from NJ

As we continue to discuss offender characteristics at sentencing, we have two notable new current events to add to the discussion:

A.  The US Supreme Court added another criminal history/ACCA case to its docket this afternoon.   Here via this post at SCOTUSblog is a link to the briefing and a brief description:

In Walker v. United States, the justices will consider whether a criminal offense that can be committed merely by being reckless can qualify as a “violent felony” under the Armed Career Criminal Act, a 1984 law that extends the sentences of felons who commit crimes with guns if they have been convicted three or more times of certain crimes.

The question comes to the court in the case of James Walker, an elderly Tennessee man who was sentenced to 15 years in prison under the ACCA after police discovered 13 bullets — which Walker had found while cleaning the rooming house that he managed — when responding to reports of drug sales at the house.  Walker argues that the ACCA should not apply to his case.  He contends that one of his prior convictions, for robbery in Texas, does not qualify as a “violent felony” because a defendant could be convicted if he recklessly caused injury during a theft.  The federal government agrees with Walker that the justices should weigh in on the issue, but it maintains that the lower court was correct in deeming Walker’s robbery conviction a “violent felony” for purposes of the ACCA.

B. The New Jersey Criminal Sentencing and Disposition Commission yesterday issued a big interesting report, available at this link, with all sorts of interesting recommendations including a call for the state to eliminate mandatory minimum sentences for all non-violent drug and property crimes.  And on the offender characteristic front, there was this:

Recommendation #5: Create a New Mitigating Sentencing factor for youth.

When determining a defendant’s sentence, the judge must consider a number of statutorily-defined aggravating and mitigating factors.  The CSDC recommends that the Legislature create a new mitigating factor that allows judges to consider a defendant’s youthfulness at the time of the offense.  The members of the Commission recommend that the mitigating factor read as follows:

       The defendant was under 26 years of age at the time of the commission of the offense.

It would be within the court’s discretion to determine the weight to be given to the factor in any given case.  If a juvenile prosecuted as an adult, after consideration of this mitigating factor, is nevertheless sentenced to a term of 30 years or greater, he or she would have the same right to apply for resentencing after 20 years with the required consideration of the factors established by the U.S. Supreme Court in Miller v. Alabama, 567 U.S. 460 (2012), in light of the inmate’s record while incarcerated (e.g., evidence of rehabilitation, greater maturity, etc.

November 15, 2019 in Recent news and developments, SCOTUS cases of note | Permalink


I particularly like the specific number given for age mitigation. In comparison to a vague "youthfulness" mitigation, I think it opens the mitigation to disparity as a result of varying discretion. To begin, to a young judge, 26 may not seem youthful, whereas to an older judge, 26 may seem eons away--discretion may result in applying this standard haphazardly to defendants of the same age. In addition, the discourse in the news surrounding the characterization of African-American youths as "adults" in comparison to Caucasian "youths" the same age leaves a more discretionary standard to be applied in ways that result in similar disparities. I was curious how they had decided the correct number to settle on, though I didn't see it in the report. I imagine it was linked to the final maturation of the brain, which I believe is around 25. Overall, though, I find it to be an excellent suggestion. Particularly for a society focused on rehabilitation, a person with their whole life ahead of them does, I think, deserve extra acknowledgement and thought.

Posted by: Bethany Jones | Nov 18, 2019 3:17:22 PM

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