CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, June 8, 2021

Friedman on Sentencing MS-13 Juvenile Homicide Cases

Raphael A. Friedman has posted Roper, Graham, Miller, & the MS-13 Juvenile Homicide Cases (NYU Annual Survey of American Law, Forthcoming) on SSRN. Here is the abstract:

The majority of MS-13 suspects arrested for murder on Long Island in recent years have been minors. This shocking and tragic phenomenon raises vexing issues for law enforcement, the courts, politicians, educators, and all citizens in communities plagued by gang violence. This Note focuses on a single legal issue: in light of recent Supreme Court cases, beginning with the 2005 landmark ruling in Roper v. Simmons, how should judges impose sentences on persons convicted of committing homicide before their eighteenth birthday? Although we will see that the holdings of the three leading Supreme Court cases addressing this question are reasonably clear, many challenging questions remain for sentencing judges who attempt to faithfully apply these decisions. This Note will explore some of these issues through the prism of MS-13 juvenile-homicide cases, using the sentencing of Josue Portillo for his quadruple murder when he was 15 years-old, as a case study.


This Note proceeds in three parts. Part I sets the stage for studying the Supreme Court’s juvenile sentencing jurisprudence. It takes a step back in order to orient the landmark trilogy of cases—Roper, Graham, and Miller —within the broader legal framework of criminal and juvenile justice. It is broken into three subcategories. Subpart (A) briefly explains the principal justifications for punishing criminality. After better understanding why we punish altogether, Subpart (B) analyzes why juveniles should be punished differently from adults. This is explored very briefly from a historical, political, and legal perspective. Subpart (C) explains in what circumstances juveniles in the justice system are treated like adults and why, again from a historical, political, and legal perspective. Part II examines how the Supreme Court limited in some measure the punishments that can be meaded out to juveniles, even if being sentenced within the adult criminal justice system. Roper, Graham, and Miller are explored in detail, as well as some of the preceding cases that paved the road to these landmark rulings, and some subsequent cases. Part III analyzes how judges should implement the guidance given by the Supreme Court in these cases. The analysis will trace Josue Portillo’s case but its implications apply across the field of juvenile justice.

https://lawprofessors.typepad.com/crimprof_blog/2021/06/friedman-on-sentencing-ms-13-juvenile-homicide-cases.html

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