Ohio v. Texas

In a cyclical process, I learned from Grits for Breakfast today that Doug Berman posted his pleasure at discovering that Texas has now eliminated life without the possibility of parole (LWOP) sentences for juveniles. Berman, in turn, learned about it from Scott over at Grits, so the world spins in its way. Except for the fact that it's Texas.

The U.S. Supreme Court is going to be considering two cases this year (Graham v. Florida and Sullivan v. Florida) on whether it is unconstitutional to sentence a juvenile to LWOP for a crime other than murder.

Meanwhile, Ohio chugs along having decided that LWOP should always be an available sentence for aggravated murder. I take some responsibility for that law, which has its virtues, but also its problems.

It used to be that LWOP was a possible sentence only in capital cases. So when prosecutors wanted LWOP, they had to bring death specifications. No big deal, since in the ordinary case, any prosecutor who wanted LWOP really wanted death. But for juveniles, where death wasn't an option, prosecutors still brought death specifications.

Then I won Robert Harwell's appeal. (State v. Harwell, discussed here.) Suddenly, those juveniles charged with death specifications were entitled to all the protections of people actually subject to death. The state didn't want that. So the General Assembly amended the law. Now, LWOP is available for aggravated murder without death specifications.

Juveniles can now get LWOP without receiving any special legal protections. That's bad for kids. On the other hand, it makes it easier for adults to get LWOP, and, therefore, makes it easier for prosecutors not to seek death sentences - or to agree to take death off the table in exchange for a plea. Good for adults, bad for kids.

And then there's Texas where the legislature just said no juvenile can get LWOP.

When I moved to Ohio from Texas in 1989, I thought I was going to a more enlightened place. It's true we don't execute as many folks here as they do there (no place else in the nation comes close to matching Texas on that score, of course), though we're the killingest state in the north. And thanks to my good lawyering, kids here are in some ways worse off than kids there.

Can't win for losing.