State v. Ali, Minn.S.Ct., 10/8/2014. When Mr. Ali was a few months shy of his eighteenth birthday he shot and killed three men during a robbery of the Seward Market in Minneapolis. There were a couple of warm up issues addressed in this appeal but the main act was what to do about the sentences that the trial court meted out to Mr. Ali. That sentence was life without the possibility of release for one of the homicides and two consecutive life with possibility of release after thirty years sentences for the other two homicides. With the court’s answer it’s shaped up to be a really bad week for juveniles who have been sentenced to life without possibility of release.
First, the life sentence without possibility of release. Two days before this Opinion came out, the U.S. Supreme Court declined to take up the question whether Miller v. Alabama, 132 S.Ct. 2455 (2012), which says that sentencing schemes that mandate life without parole for juveniles convicted of homicide is unconstitutional, is retroactive. In Minnesota that's the Roman Nose case, read here. Miller said that courts had to take into consideration the individual factors of the juvenile in front of them before locking them up forever. Admittedly, Tony Rome was a procedural mess but with Chambers inexplicably bowing out it was as good a Minnesota case as any to answer the retroactivity question. The Supreme Court apparently had other cases before it on the retroactivity question, which they also declined to hear.
At the time that the trial court sentenced Mr. Ali, the pertinent statute said that for anyone convicted of designated crimes the court “shall sentence a person to life imprisonment without possibility of release”. Minn.Stat. 609.106, subd. 2(1) (2012). So, without further ado that’s what the trial court did.
Mr. Ali's case has been on appeal in one form or another ever since so there’s no retroactivity headache; he gets the benefit of Miller. So, the question becomes, what is that benefit? There were two competing answers to that question. The state said to send the case back to the trial court to conduct an ad hoc Miller hearing. Mr. Ali said, no, the last constitutional sentencing scheme before Miller called for a “regular life” sentence, that is, one that provided for the possibility of release after serving thirty years. The Minnesota Supreme Court sides with the state and turns the trial court loose to craft some sort of "Miller" remedy that it sees fit. It does so even though there’s no longer a constitutional statute that authorizes a judge to give a juvenile life without possibility of release.
The majority, lead by Chief Justice Gildea, admits that the current statute, which says that the trial court shall impose a sentence of life without possibility of release for designated homicides runs afoul of Miller and is therefore unconstitutional. The last constitutional statute that applies to Mr. Ali’s crimes only authorizes a life sentence with the possibility of release after thirty years. In similar situations, the court has reinstated that last constitutionally valid statute. So, when they struck down a statute that allowed public defenders to decline representation of indigent defendants who had pleaded guilty and received less than the presumptive sentence, the court's remedy was to dig out the previous version of the statute and run with that. Deegan v. State, 711 N.W.2d 89 (Minn. 2006) Not so, here, however.
The majority relies upon State v. Chauvin, 723 N.W.2d 20 (Minn. 2006), the case that said that courts had the inherent authority to empanel sentencing juries to find aggravating factors after Blakely said that judges couldn’t do that anymore. The dissenters, Justices Page and Stras, said that the flaw in that approach was that nothing in Blakely changed the trial court’s authority to impose an aggravated sentence; it just changed the method by which that could occur. Miller, on the other hand, eliminated a a court’s authority to mandate life without release sentences for juveniles, and try as it might, the legislature had not come up with a new sentencing scheme. The dissenters argued that the effect of the majority’s Miller remedy was to amend the statute by replacing “shall” with “may for juveniles” impose a life without possibility of release after some sort of ad hoc hearing
Both dissenting justices would reinstate the last constitutional statute,which would impose a life sentence with possibility of release after thirty years. Justice Page points out that since Miller the legislature has wrestled with what statutory scheme should be enacted to comply with Miller but hasn’t enacted a single word. Just what the legislature has in mind is a total mystery, including whether it still wants to authorize a life without possibility of release for juveniles. Justice Page also strongly suggests that it may be constitutionally required under Blakely to have a jury determine the facts on which the court then makes this release/no release decision.
Justice Stras reprises most of what he’s previously had to say about inherent judicial power and then takes on the majority’s reliance on Chauvin:
The court’s conclusion that the remedy in Chauvin is similar to the remedy in this case makes an apples-and-oranges comparison. An apple sounds like an orange when it is described as a sweet-tasting fruit that grows on a tree and has seeds. And while it is true that these are shared characteristics of both fruits, the fact remains that an apple is not an orange, and this case is not Chauvin. The court is correct when it says that Chauvin provides authority for the proposition that a court has the power in certain circumstances to make a procedural decision about which factfinder—the judge or the jury—will make a particular finding, but the court’s comparison falls short when it uses Chauvin to support its chosen remedy in this case. Chauvin simply did not involve a situation in which we were required to change the Legislature’s prescribed sentence for an offense so that the statute could pass constitutional muster. In concluding otherwise, the court confuses apples and oranges.
This is all potentially bad enough for Mr. Ali, this ad hoc Miller hearing, but there’s more. The court also sentenced Mr.Ali to two consecutive “regular life” sentences on the other two homicides. This means that Mr. Ali has to serve sixty years before he could be considered for release on these two sentences. This is known as a “virtual life” sentence. And not one justice dissented from the majority’s conclusion that the trial court had not abused its discretion in stacking these two regular life sentences. The U.S. Supreme Court has also so far been uninterested in addressing this “virtual life sentence” issue for juveniles.
A closing note on one of the “preliminary acts,” having to do with the authentication of Mr. Ali’s Kenyan birth certificate. From the very beginning of the litigation Mr. Ali disputed his age, arguing that he should not have been automatically certified to stand trial as an adult. He submitted a birth certificate from the appropriate District Registrar in Kenya, which bore the registrar’s seal and a signature by the registrar. The defense also submitted an unsigned letter from the Kenyan Embassy in Washington, D.C., which stated that the birth certificate “bears the Seal of the Registrar of Births and Deaths of the Republic of Kenya.” Both the trial court and the supreme court reject the birth certificate as not self authenticated under Rule 902(3)A). Unlike its willingness to read the homicide sentencing statute’s “shall” as really being “may” the court takes a very strict view of the requirements of Rule 902 for self authenticating a foreign document.
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