West Virginia Eases Strict Truancy Law


Detention for truancy used to mean sitting in a classroom after school while your friends went out to play.

In West Virginia, especially for the past five years, detention for unexcused absences has too often meant something else entirely: appearing before a magistrate and, in many cases, ultimately being locked up.

For five unexcused absences. In an entire school year.

One in three children was considered truant in the state by 2012, the latest year for which statistics were available, while 40 percent of juvenile court referrals — about 2,750 children — were for truancy.

Now, after an aggressive campaign against the truancy law by the American Civil Liberties Union of West Virginia, state lawmakers have voted to ease the law, perhaps the strictest in the nation.

The ACLU dubbed its campaign “5 Days to Life,” (Twitter: #5daystolife), underscoring how youngsters’ involvement in the juvenile justice system for five unexcused absences can have impacts extending into adulthood. Among them: “collateral” consequences in seeking employment, housing or entering the military, for example, and  increased likelihood of becoming involved with the criminal justice system as an adult

“We wanted to make clear to legislators that sending a kid to the court system for truancy could have lifetime consequences, and they should look long and hard at whether shuffling kids to the justice system is the best approach,” said Jennifer Meinig, executive director of the ACLU of West Virginia.  “Once you touch the system, it’s like quicksand. It forever changes a youth’s life.”

When a youth gets involved in the system, it’s easy to get caught up in the vortex of parole violations and ensuing incarceration. In West Virginia, truancy is the most common offense for children put on probation or on an “improvement period” similar to probation , and children who fail to meet requirements can face court-supervised probation until age 21, which in turn can lead to incarceration.

hub_arrow_2-01And while the human costs of incarceration are incalculable — youths incarcerated for truancy spend an average of 400 days locked up — the monetary costs are pretty steep too: West Virginia spends an average of $100,000 per year to incarcerate a child, often in for-profit facilities, and even more money to imprison them out of state.

Meinig said “youth reporting centers” where truants will check in but not be locked up or stay overnight will sometimes be used as an alternative to incarceration.

The existing truancy law, enacted in 2010 as part of a get-tough policy on unexcused absences, reduced from 10 to five the number of unexcused absences leading to a court appearance, unless a parent or guardian shows up for a meeting with school officials.

The new law, which takes effect in June, will change the threshold for a court appearance back to 10 days while adding other provisions designed to return more truants to the classroom while keeping them out of the courtroom.

Among the changes:

  • County attendance officers must make home visits to families of students suspected of truancy as part of an effort to return the child to school without the need for a court appearance.
  • A parent or guardian of a student with three unexcused absences must receive a written notice of a required conference with a school official and be told a conference with the principal will be required if the student accumulates five unexcused absences.
  • After five unexcused absences, a parent or guardian will receive a written notice of a required conference with the principal or another school official to “discuss and correct the circumstances causing the unexcused absences of the student,” according to the newly enacted law.
  • Schools, the law says, must “take such steps as are, in their discretion, best calculated to encourage the attendance of students and to impart upon the parents or guardians the importance of attendance and the seriousness of failing to do so.”
  • Health and disability-related absences are not to be counted as truancy. (Some schools had interpreted these absences as truancy, while others did not.)
  • The law also forbids schools to count as truancy days during which students are suspended, as one school did in the case of “Brandi B.,” a decision backed by the state’s supreme court in 2013.

Students with 10 unexcused absences will still be referred to court, and the children as well as parents and guardians can be arrested.

For the first time in more than 80 years, both houses of the West Virginia Legislature are controlled by Republicans. But the truancy measure received overwhelming bipartisan support, approved 95-2 in the Senate and 31-2 in the House of Delegates.

The ACLU’s Meinig called the easing of the state’s truancy law a “good first step” but added, “Obviously, we thought it could have been tweaked and we wanted to push forward juvenile justice reform that didn’t make it into the legislation.”

For example, schools themselves do not have the final say over whether to refer truant students to court, as schools in many states do.

And Mishi Faruqee, national juvenile justice policy strategist at the ACLU, said courts aren’t equipped to deal with the causes of why kids miss school.

Stephen Skinner, a Democrat in the West Virginia House who cosponsored the truancy legislation, called the existing truancy law Draconian.

“We want kids to be productive members of society, and they’re not going to be productive  members of society if we’re incarcerating them off and on for their entire life,” Skinner said.

“We’re going to have evidence-based decisions about placements and we’re going to be able to intervene at the community level much sooner.”

A Portrait of the Artist As a Juvenile Lifer

Keith Sanford, Ken Crawford and Cindy Sanford.

“I was in prison and you came to visit me.”
— Matthew 25:36

WAYNESBURG, Pa. — The boy loved to walk in the woods.

He savored the gurgle of the creek as the water tumbled over the rocks, the sweet melody of birdsong, the wind rustling the leaves in the trees that soared high overhead.

It seems a faraway place to him now — now that he has grown into a man, a place of dream stuff.

Five years ago, Kenneth Carl Crawford III returned to that woods behind his childhood home in Oklahoma, but only in his mind — the only way he can go back now, perhaps the only way he’ll ever go there again in his time on this Earth.

After a storm, he had been gazing at a thick forest about 100 yards away when he noticed a bunch of leaves had blown over the high electric fences topped by razor wire and landed in the prison yard at the State Correctional Institution-Greene, here in the southwest corner of Pennsylvania.

Crawford picked up one of the leaves. “It had been a long time since I had touched a part of a tree, let alone held a piece of it in my hands,” he would write in his journal.

He kept looking at the leaf, mesmerized, nostalgic for so much of a bit of boyhood paradise lost.

Crawford leaf 3cThen he took the leaf back to his 8-by-12-foot cell and decided to recapture some of what he missed so dearly — and ultimately painted on it a scene right out of the woods he remembered.

He’s been painting wildlife scenes — and painting them superbly — on leaves ever since.

Crawford, 31, has plenty of time to create his miniature masterpieces. He’s serving a mandatory life-without-parole sentence for his involvement in a double murder at age 15 in 1999.

His only hope for an eventual resentencing hearing is the U.S. Supreme Court, which on March 20 agreed to consider a Louisiana case in which it will decide whether to apply retroactively its landmark 2012 Miller v. Alabama ruling, declaring unconstitutional mandatory sentences of juvenile life without parole.

The high court did not clearly specify whether the ruling should apply to cases decided before Miller, and state courts and lower federal courts have been divided. That has left about 2,100 people nationwide imprisoned under sentences of mandatory life without parole for murders they committed as juveniles.

“A window to your soul”

Cindy Sanford will never forget the first time she saw some of Crawford’s paintings.

She was managing an art co-op in 2009 in the small town of Berwick on the Susquehanna River in east-central Pennsylvania when a woodcarver, whose friend had been Crawford’s cellmate, brought in some of the painted leaves.

Sanford, now 56, recalls gasping at their beauty: a newborn fawn, a woodpecker peeking out of a hole in a tree, a wood duck on a log, a white-tailed deer, a cougar looking like it could leap off the leaf.

When she first saw the art, she knew the artist was a prisoner at a maximum-security prison but not that he had been convicted of murder.

At Sanford’s co-op, Handmade Gems and Treasures, she also sold her own wares — glass jewelry she made in a kiln — and appreciated the transcendent power of art.

“I remember really studying the wildlife paintings and thinking, ‘How could anyone evil paint something so beautiful?’” Sanford says. “I felt art was a window to your soul, and I remember thinking that and thinking, ‘No, he couldn’t be evil. Whatever he was, whatever he did, he could not be 100 percent evil creating something like this.’ It was that powerful to me.”

But when she learned a felon serving a life sentence for murder had painted them, she wanted to keep her distance.

“I’ve always been a big believer in law and order, and at that time, I’m not thinking there’s anything redeeming about him,” she says. “For a long while, I was very suspicious of him and didn’t believe anything he said.”

Sanford — a conservative Republican and the wife of a retired Pennsylvania wildlife conservation officer and granddaughter of a New York City police officer once shot in the leg while on duty — firmly believed those guilty of murder should be locked up for life.

But Crawford kept sending his paintings, and Sanford’s co-op kept selling them. Before long, his leaf paintings outsold the works of the co-op’s woodcarver, and Sanford moved the paintings to a more prominent place. The woodcarver, miffed when Sanford refused to use proceeds from the paintings to pay the rent for his space, packed up his ducks and left.

Crawford leaf 1cWith that, Sanford lost the go-between connecting the co-op to the prisoner. She needed to pay Crawford for works that had sold and wanted to ask him for more paintings. After all, her customers couldn’t seem to get enough of them.

Sanford got Crawford’s address at the prison from her sister, who had bought one of his matte-mounted leaf paintings, which had the prison’s Department of Corrections return address on the back.

When Crawford received the letter, he was doing a 120-day stint in solitary at SCI-Greene — for allegedly having unauthorized art supplies that he says other inmates gave him as they prepared for release and for cutting out wildlife photos from a magazine.

In late 2009, Sanford’s art co-op closed, a victim of the Great Recession, which hit Berwick hard.

And Cindy Sanford, who no longer had a place to sell Crawford’s art, all but forgot about him.

Then she got a Christmas card from him in 2010, followed a few days later by a polite letter in which he addressed her as “ma’am,” and she responded by sending him a Christmas card.

Sanford, in an absorbing new book chronicling her relationship with Crawford, “Letters to a Lifer: The Boy ‘Never to be Released,’” recalls reading part of his letter to her sister on the phone.

Be careful, her sister warned. He could be a serial killer.

Having Googled SCI-Greene, Sanford knew the 2,000-inmate Supermax prison held murderers, gang members, drug dealers and prisoners on death row.

Now, added to her newfound knowledge of the prison, the specter of a possible serial killer did nothing to ease her anxiety. (And Crawford had her return address, prompting more fears: What if he escaped or had connections outside the prison who could do her harm?)

Upbeat letters, sad eyes

Crawford’s letters kept coming.

“Hello, Ma’am,” he wrote in one. “How are you? I hope you are well. I was so happy and surprised to hear from you. You can’t really know how much a simple thing like a Christmas card means to me. For that little show of kindness, I am deeply grateful.”

And he included a few photos of himself, which belied Sanford’s expectations of a bald, tattooed man with missing teeth. Looking at the boyish-faced man with close-cropped brown hair, she focused on the translucent blue eyes that somehow appeared so sad.

When she wrote back to inform the leaf artist that her co-op had closed, he responded by saying he would pray for her and assuring her, “Another opportunity will present itself.”

His ever-polite letters notwithstanding, Sanford decided she had enough going on in her life without taking on the added burden of a pen-pal relationship with, of all people, a convicted murderer.

She was still shaken by the closing of her art co-op when her mother died of cancer just four months after being diagnosed. Two of her three grown sons, David and Jeff, had left for two-year, overseas church missions. In her role as a part-time registered nurse, she had seen way too many people die.

And her husband had warned her that many criminals were scammers.

But Crawford’s letters soon began softening her skepticism.

He told of how he taught himself to paint by studying books from the prison’s modest art room and described the painstaking process to create the artwork using leaves as canvasses. Crawford collected the leaves in the prison yard, soaked them clean in water and left them pressed between the pages of books for months to flatten them. Then he coated them with layers of base paint used as a preservative and, finally, painted the stunning wildlife images onto the leaves.

Crawford leaf 2cIn another letter a few weeks into 2011, he wrote: “Most inmates get dragged down in the environment that’s created in here. But the Lord has given me many things that I like to share, and has given me my art as the way of sharing it.”

Still, Sanford’s anxieties persisted: After all, she thought, this was coming from a convicted murderer.

But by that time, she and her husband, Keith, say today, they believed that perhaps God had put Ken Crawford in their lives for good reasons.

In his journal, Crawford wrote that he’s overjoyed Cindy Sanford continues writing to him even though he no longer has art supplies, and the art room at SCI-Greene had closed because of budget cuts.

“I just want someone to see me for who I am now, and know how thankful I am to God for bringing me a friend,” he wrote in his journal. “I prayed for some relief from all the hard times in here and it seems that Mrs. Sanford might be the answer to that prayer.”

For the Sanfords, a pivotal point in their relationship with Crawford came when he politely declined their offer to give him money for art supplies, saying too many inmates take advantage of people on the outside.

“I think the most powerful thing for us was when he turned down our offer to help him with art supplies,” Cindy Sanford says now. “That was kind of proof to us at that point that this wasn’t just about what he could get out of this.”

Unlikely pen pals

In his early 2011 letters, Crawford offered hints of a Dickensian childhood, as he and siblings suffered severe abuse and neglect at the hands of their parents and various foster parents.

Cindy Sanford empathized to a degree, for she had endured an emotionally distant, alcoholic father who never showed her love or his approval of her.

A few months after Cindy Sanford and Crawford began exchanging letters regularly, he asked if it’d be OK to call her.

She said yes, and during the first call, he thanked her profusely for talking to him. He explained that he hardly heard from anyone on the outside except his grandmother, with whom he spoke only occasionally. (“Grandma Fay” died in March 2013.)

In a letter soon after the call with Cindy Sanford, Crawford asked if the Sanfords might visit him.

She and her husband talked it over and decided to make the nearly five-hour, one-way trip across the state from their home in Mifflinville, Pa., to the prison. They figured they would spend maybe two hours at SCI-Greene, then go shopping in nearby Pittsburgh.

Ken Crawford, DOC Inmate No. EN4939, didn’t sleep the night before the Sanfords’ first visit in the spring of 2011.

He was so nervous about finally meeting them, and desperately wanted to make a good impression.

He did. Indeed, they stayed for the entire six-hour visiting period.

At the end of that first visit, Keith Sanford, 62, recalls Crawford’s saying in his Oklahoma drawl, “Y’all can come back tomorrow if you want.”

Adds Sanford: “You look at that smile and those puppy eyes — and I thought we were going to Pittsburgh.”

They never made it to the city on that trip. They’ve come back to visit Crawford for nearly four years and now visit two days of every month and talk to him on the telephone almost daily.

Murder and remorse

On that first visit, they talked about Crawford’s childhood. About his life in prison. About his artwork. About the July 1999 murders at the Paradise Campground Resort in Nescopeck, Pa., just 15 miles from the Sanfords’ home. Cindy Sanford recalled the murders so close to her home — and the ensuing manhunt — and how she had feared for her sons’ safety.

Crawford, who was 15 at the time of the murders, had been traveling the country with a fellow drifter and carnival worker, 18-year-old David Lee Hanley.

The murder victims — Diana Lynn Algar, 39, and her friend Jose Julian Molina, 33 — had picked up Crawford and Hanley, who were hitchhiking near a truck stop.

The victims had been beaten, robbed and shot. Their bodies were found inside Algar’s trailer.

Fox TV’s “America’s Most Wanted” featured the high-profile case within days of the crime.

About eight months later, Crawford, who had been in a juvenile detention center in Missouri on an assault charge, was extradited to Pennsylvania, and Hanley was arrested in Florida around the same time.

Hanley pleaded guilty to two counts of first-degree murder in August 2000 in a plea bargain to avoid a possible death penalty and is now serving a sentence of life without parole at State Correctional Institution-Smithfield in the Allegheny Mountains in Huntingdon, Pa.

A jury found Crawford guilty in January 2001.

Crawford, who was tried as an adult, testified at his trial that he drove the getaway car but did not kill either victim. A defense witness in the case, who had been Hanley’s cellmate, Paul Grodis, testified that Hanley had admitted killing both victims.

See sidebar "Supreme Court to Weigh Retroactivity of Mandatory JLWOP"

Crawford said he would always regret his role in the murders. “I was too drunk and full of pills and have only myself to blame,” he wrote to the Sanfords.

The victims, he continued, “were good people and their families did not deserve the pain and suffering they endured. I have begged the Lord for forgiveness and I believe I have been forgiven. But I will never forgive myself.”

After reading the letter, Cindy Sanford says now, she believed Crawford was genuinely repentant.

Whether Crawford is repentant remains immaterial to Robert Algar Jr., the widower of murder victim Diana Lynn Algar. He says her killers do not deserve sympathy and should never be released from prison.

“They’re in jail. They’re not in there to be protected from society; they’re in jail to be protected from me,” said Algar, a transportation dispatcher who lives in Scranton, Pa. “They get out, I take care of them. That’s how I feel about it, really.”

Cindy Sanford says she wrote a letter to Algar but he did not respond.

“My heart goes out to him,” she says. “The loss of his wife is not something that anyone can ever expect him to get over. He’ll never get over that.”

‘I got a family now’

On a frigid, gray Friday in February, a watchtower with an armed guard inside looms large over the sprawling prison complex that is SCI-Greene.

When they enter the prison’s lobby, the Sanfords have the drill down. They leave their wallets in a locker, take off their belts to go through a metal detector, present photo IDs and have their hands checked by a wand that can detect illicit drugs.

They go through heavy steel doors and enter the visiting room, which resembles a large waiting room in a hospital, only more drab, with a watchful corrections officer sitting at a raised platform desk.

Crawford, a big smile on his face, rushes up to hug them. He greets them this way every time.

“It definitely feels like I got a family now,” says Crawford, wearing a burgundy jumpsuit with “DOC” in big white letters on the back. “It’s better than any family I had.

“It was getting to a point where I needed some help, and these two old-timers came into my life,” Crawford says, and all three laugh — which they do easily and often during the visit.

(Once, before SCI-Greene banned the sale of art inside the prison, Crawford’s paintings had been displayed in the visiting room, but now the light blue walls are bereft of  the natural beauty of his art.)

The Sanford couple’s three grown sons — Eric, 31, David, 29, and Jeff, 24 — sometimes visit Crawford too, and all the family members have made Christmas Eve visits.

Crawford, a lean man with the beginnings of a mustache and beard, calls the Sanfords “Mudder” and “Peepaw.”

“I’ve had ‘mothers’ and ‘fathers,’ and none of them turned out too well,” he says.

Indeed, his alcoholic father beat him, his brother and his two sisters with extension cords and switches in drunken rages and often left them home alone in their ramshackle trailer with no electricity or heat and little food. And he forced them to tend to his marijuana plants behind the trailer.

Crawford’s mother ran off with one of her boyfriends to work the carnival circuit when Ken was 5.

Sanford recently tracked down Crawford’s mother through Facebook and asked her to get in touch with her son or at least write him a Christmas card. The mother did neither.

When he was 9, Child Welfare Services came to remove Ken and his siblings from their father’s custody — and promised the children their lives would be much better with foster parents.

They weren’t.

Crawford recalls one 400-pound foster father who forced the children to scratch and bathe his legs because he could not reach down to them.

Another foster father showed off Ken’s ability to play football — until he outshone the man’s biological son, at which point the foster father made Ken quit the team.

A third foster father told him he’d be in prison by the time he was 18.

When Ken was 10 and wetting the bed, his foster mother screamed at him and ordered him to strip naked and lie on a towel on the living room floor. As other children in the home laughed, she put a diaper on him and made him wear it to school the next day.

He wet the bed again that night, and she forced him to sleep in the bathtub.

If he could change two things in his life, Crawford says now, he would have never have hung out with David Lee Hanley, and, if it were somehow possible, he would have eluded Child Welfare Services workers.

“If I could go back in time, I would have hid from Child Welfare Services. I should have hid. I shouldn’t have let them find us,” he says.

Speaking of his father’s abuse and neglect, he says: “That’s what we knew. It was nothing out of the ordinary for us. We still had something, and the physical abuse we grew up with I was used to.

“In foster care, it was mental abuse, and the mental abuse was much worse.”

Still, he’s quick to add that he doesn’t blame anybody for the circumstances that led to the double homicides. “I made the choices,” he says.

Crawford ran away from his last foster home as a 12-year-old, lied about his age and became a nomadic carnival worker who stayed in hotels or trailers in Pennsylvania, New York state, Massachusetts, Arkansas, Texas, Louisiana and Kentucky.

He began smoking pot daily and by age 14 became addicted to painkillers he was prescribed after putting his arm through a window while chasing a man he saw slap a young boy in Henderson, Ky.

But Crawford tries not to dwell on the past and has a knack for lifting the spirits of others — even in a place plagued by gangs, violence, drugs, racism – and a suicide that shook him badly. The victim had been dragged out feet-first in a body bag while some prisoners and paramedics laughed.

Crawford found nothing humorous about it.

Before the inmate’s suicide, Crawford had befriended another despondent inmate — his former cellmate, or “cellie,” nicknamed “Tivo,” a lonely soul who never received mail and did not believe anyone loved him.

At the time, Crawford and Tivo were the only black and white inmates in the same cell in the entire prison.

Crawford, whose nickname at the prison is “Oak” (short for Oklahoma) decided on his therapy: Every day, he would give Tivo a hug and say, “I love you.”

Pretty soon, Tivo came to believe it and no longer felt so alone.

Crawford also noticed a mentally challenged inmate, Randy, kept getting in trouble for breaking rules after other inmates told him to do so. Then Crawford befriended Randy and persuaded other inmates to back off.

Once during a football game in the prison yard, Crawford talked the coach into putting Randy into the game for a change, and then got other inmates to purposely let Randy gain a lot of yardage on a handoff.

Crawford says he leavens the mood and relishes keeping other inmates entertained, which in turn improves his outlook.

Sometimes, that means being enterprising — like when he created a miniature golf course in his cell by making clubs from rolled-up paper and cardboard, balls from deodorant and holes from empty cups and toilet paper rolls.

He’s a model prisoner, the guards tell the Sanfords, and maybe that’s why they allow violations of the rules on “contraband.”

Every spring, Crawford “adopts” a baby bird that falls out or is kicked out of nests in eaves next to the prison yard, names it, feeds and cares for it in his cell, then frees it into the wild, recalling the Birdman of Alcatraz, Robert Stroud.

And while Crawford has only a sixth-grade education, he earned his GED and now takes correspondence courses through Hobe Sound Bible College, a well-established school that opened in 1960 in Southeast Florida. Cindy Sanford agreed to pay half the tuition as long as Crawford got no grades lower than a B. He has made straight A’s thus far.

He’s an avid reader whose favorites include the Bible, art books, fiction and his college textbooks, and he relishes beating the Sanfords at Bananagrams, an anagram word game played with Scrabble tiles.

Cindy Sanford marvels at his progress, and says it clearly demonstrates he no longer resembles the boy convicted half a lifetime ago.

But with all the misgivings, the heartbreak, the tears, the tantalizing but unrequited dream that Crawford will one day be freed and the Sanfords will be able to take him into their home (as they did with a homeless man from 2007 to 2009), what keeps the Sanfords from losing hope?

“Just plain old love right now, and it’s not like this is some divine mission I think I’m fulfilling or anything like that, which is not to say that I don’t think God has had a hand in it,” Cindy Sanford says. “It’s love. That’s my son. I would never think of letting him go, never.”

She and her husband have closely followed rulings relating to Miller retroactivity. They went to the U.S. Supreme Court in Washington for the oral arguments in Miller v. Alabama and had their hopes dashed when the Pennsylvania Supreme Court ruled 4-3 in October 2013 against applying Miller retroactively to the state’s estimated 500 juvenile lifers.

But they cling to their dream that the U.S. Supreme Court will rule Miller retroactive — and that Ken Crawford may one day be freed.

So does Crawford’s lawyer, Sara Jacobson.

“I think with Miller, the court was essentially recognizing that people are worth more than the worst moment in their life and certainly that kids can be reformed,” says Jacobson, a professor at Temple University Law School in Philadelphia. “It’s just a tragedy that so many people who have been sentenced to life without parole as juveniles don’t have the opportunity for courts to even look at their cases, to look to see whether they’ve been reformed."

For now, Crawford keeps painting wildlife scenes, now being sold at The Gold Leaf Frame Shoppe gallery in Williamsport, Pa. (His works have fetched up to $375.)

And Cindy Sanford longs for a day he’ll be able to walk once more in woods far beyond the high walls of the prison.

She says she has forgiven Crawford and knows God has forgiven him too, no less than the Lord forgave St. Paul for persecuting Christians before his conversion.

“I believe in a God who forgives us, if you approach him and you’re remorseful,” she says. “God loves us all. There’s no saints on this Earth. I believe God loves him as much as he loves me.”

As 3 p.m. approaches, the end of visiting hours, Ken Crawford’s smile fades, and his eyes turn downcast. He tells Mudder and Peepaw he loves them.

The three of them embrace before Crawford heads back to his cell block.

And the Sanfords are already looking forward to the next month’s visit with the man they now consider a fourth son.

See sidebar "Supreme Court to Weigh Retroactivity of Mandatory JLWOP"

This article also featured in the Pittsburgh Post-Gazette.

Supreme Court to Weigh Retroactivity of Mandatory JLWOP

WASHINGTON – A U.S. Supreme Court decision could forever alter the landscape of sentences of mandatory juvenile life without parole, potentially leading to resentencing hearings for some 2,100 convicted murderers.

The high court agreed on March 20 to hear a case that could set a precedent on whether its landmark 2012 Miller v. Alabama ruling applies to cases decided before that ruling.

In the 5-4 Miller ruling, the court did not specify definitively whether the decision should apply retroactively, and lower federal courts and state courts have been divided on the issue.

If the Supreme Court decides Miller should be applied retroactively, those sentenced before the ruling to mandatory life without parole for murders committed as juveniles could receive sentence reviews. Depending on the state, they could still be sentenced to life without parole, to life with parole eligibility after a specified number of years or be released, likely for time served, said Emily Keller, a staff attorney at the Juvenile Law Center in Philadelphia.

Opponents of mandatory juvenile life without parole (JLWOP) hailed the Supreme Court’s decision to take up the retroactivity issue on a Louisiana case, Montgomery v. Louisiana, expected to be heard this fall.

“We’re really hopeful that the Supreme Court will rule that Miller applies retroactively and that the thousands of individuals serving these unconstitutional sentences will have an opportunity for new sentencing hearings,” Keller said.

Of the court’s decision to take up the case, Keller said: “It’s a very hopeful sign; it’s a signal that the court thinks this is an important issue that needs to be addressed, and we’re hopeful that they’ll rule that Miller does apply retroactively and that everyone does get a chance to receive a constitutional sentence.”

Florida just became the 10th state whose Supreme Court ruled Miller v. Alabama should apply retroactively. (The other states are Illinois, Iowa, Massachusetts, Mississippi, Nebraska, New Hampshire, South Carolina, Texas and Wyoming.)

Courts in five states — Alabama, Louisiana, Michigan, Minnesota and Pennsylvania — have ruled Miller does not apply retroactively.

Keller said it’s patently unfair – and unconstitutional – to allow when and where a conviction took place to determine whether someone gets a resentencing hearing.

“I believe it’s a matter of fairness and justice, and whether or not you’re forced to serve an unconstitutional sentence shouldn’t depend on the arbitrary date that your conviction became final or the state where you reside,” she said.

Heather Renwick, litigation counsel for the Washington-based nonprofit Campaign for the Fair Sentencing of Youth, also cited the split among state court rulings on retroactivity.

“It’s inconsistent treatment across the U.S., depending on what state you’re in,” Renwick said. “So we’re hoping the U.S. Supreme Court will hold that Miller v. Alabama is retroactive so that every child sentenced under a mandatory sentencing scheme to die in prison will be afforded a second chance to demonstrate rehabilitation and the capacity to re-enter the community.”

In Miller, the U.S. Supreme Court ruled mandatory JLWOP violated the Eighth Amendment’s prohibition against “cruel and unusual punishment.”

Renwick said that if mandatory JLWOP was found to be cruel and unusual by the highest court in the land, the standard should apply to juveniles sentenced before the ruling.

Pennsylvania has the highest number of prisoners serving mandatory JLWOP sentences in the country, with some 500 inmates serving such sentences, including Kenneth C. Crawford III (see related story). The state’s juvenile lifers had their hopes for a resentencing hearing dashed when the Pennsylvania Supreme Court ruled 4-3 in October 2013 against applying Miller retroactively.

In its ruling in Commonwealth of Pennsylvania v. Ian Cunningham, the Pennsylvania high court stated: “Significantly, for present purposes, the Miller majority did not specifically address the question of whether its holding applies to judgments of sentence for prisoners, such as Appellant, which already were final as of the time of the Miller decision. As such, the opinion does not set out the principles governing the High Court’s retroactivity jurisprudence.”

In Michigan, too, with nearly 350 inmates serving terms of mandatory JLWOP, the state Supreme Court ruled 4-3 in July that Miller does not apply retroactively.

On the day the ruling was handed down, Michigan Attorney General Bill Schuette said in a statement: "Today the Michigan Supreme Court upheld the rights of crime victims and their families. This ruling should bring a measure of peace to the many families who struggled with the possibility of painful resentencing hearings for cases successfully prosecuted decades ago."

In Montgomery v. Louisiana, the appellant in the case, Henry Montgomery, received a sentence of mandatory JLWOP for murdering a police officer in 1963 less than two weeks after his 17th birthday.

A Montgomery v. Louisiana petition to the U.S. Supreme Court cited a lower federal court ruling and argued that the Miller decision is “a substantive constitutional rule that mandates courts to implement a new procedure in the sentencing of juveniles.”

In Miller, the U.S. Supreme Court pointed to research showing adolescents’ brains are not fully developed and that youths are more susceptible than adults to peer pressure, more reckless and impulsive, more likely to take risks and less likely to consider long-term consequences.

The court said life circumstances, including trauma, must be taken into account in sentencing — and, notably, also found juveniles are amenable to rehabilitation, a finding often cited by opponents of mandatory JLWOP.

Mishi Faruqee, juvenile justice policy strategist at the American Civil Liberties Union, noted the United States is the only country in the world to sentence juveniles to life without parole. (The United Nations special investigator on torture, Juan E. Méndez, condemned juvenile life without parole in a report last month.)

“A child should never be sentenced to die in prison; I mean, they always have that capacity for change,” Faruqee said.

“Part of the nature of being a child is you’re still growing and developing who you are, and so I think it’s absolutely unacceptable to condemn a child to spend the rest of their life in prison. And that’s something that the whole world has recognized except the United States.”

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DOJ Weighs in on Georgia Juvenile Indigent Defense Suit

Juvenile defendantsFor the first time, the U.S. Department of Justice has intervened in a state lawsuit alleging juvenile defendants have been routinely denied adequate representation.

“Due process requires that every child who faces the loss of liberty should be represented from their first appearance through, at least, the disposition of their case by an attorney with the training, resources and time to effectively advocate the child’s interest,” the DOJ said in its 22-page statement of interest.

“If a child decides to waive the right to an attorney, courts must ensure that the waiver is knowing, intelligent, and voluntary by requiring consultation with counsel before the court accepts the waiver.”

The DOJ’s statement of interest in the suit, filed in Georgia, invokes the 1967 landmark U.S. Supreme Court ruling In Re Gault. In Gault, the high court ruled that juveniles in delinquency proceedings are guaranteed many of the same due process rights as adults in criminal trials. Among them: the right to counsel, the right to confront witnesses, the right to appeal and the right to avoid self-incrimination.

The Justice Department did not take a legal stand on the merits of the Georgia case.

But if legal standards are not put in place to guarantee due process for juveniles in the four-county Cordele Judicial Circuit in south Georgia, the Justice Department told a Fulton County Superior Court judge that he should find the constitutional rights of juvenile defendants are being violated.

(The Georgia lawsuit, N.P. v. Georgia, alleges due process violations for juvenile and adult defendants. For adults, the suit cited the landmark 1963 Supreme Court ruling Gideon v. Wainwright, which established the right to counsel for adults who cannot afford a lawyer.)

The Justice Department’s statement of interest focuses only on juvenile defendants.

The Atlanta-based Southern Center for Human Rights and the Washington law firm Arnold & Porter filed the lawsuit last year, saying juvenile defendants had often appeared in court without a lawyer, while others met with a lawyer for just 10 or 15 minutes before their proceedings.

The suit claims the public defense system in the Cordele Judicial Circuit (Crisp, Ben Hill, Dooly and Wilcox counties, south of Macon) is so underfunded and poorly staffed that indigent juvenile defendants are routinely denied their right to legal representation.

Because of understaffed and underfunded public defense offices, children routinely waive their right to counsel without knowledge of the implications of doing so, the suit says.

In statements, Justice Department officials suggested the violations of juveniles’ right to due process guaranteed by Gault extend far beyond this judicial circuit that is the subject of the lawsuit.

The Justice Department did not immediately return requests for further comment.

The Cordele lawsuit listed among defendants the state of Georgia, second-term Republican Gov. Nathan Deal and the Georgia Public Defender Standards Council (GPDSC). The independent agency within the executive branch of Georgia’s government is charged with ensuring each case handled by a public defender receives “zealous, adequate, effective, timely and ethical legal representation,” consistent with requirements of the Georgia and U.S. constitutions.

Deal’s office and GPDSC officials did not return calls seeking comment, and a spokeswoman for Georgia Attorney General Sam Olens said he would have no comment.

“The most glaring thing about the children was hearing story upon story about young people appearing in court, and public defenders were not even present,” said Crystal Redd, a staff attorney at the Southern Center for Human Rights. “No one was there to represent them, and they were given the option of going forward without an attorney or having their cases extended to wait for an attorney to get there.”

Sometimes, Redd said, kids were told to talk to a parent if they had a question about the legal process in proceedings that can lead to serious “collateral consequences” for adjudication that could affect employment, education, housing and military service.

Without representation, she said, children are sentenced without having a public defender who can get key information about the defendants, including special education or mental health needs.

Attorney General Eric Holder said, “For too long, the Supreme Court’s promise of fairness for young people accused of delinquency has gone unfulfilled in courts across our country.”

“Every child has the right to a competent attorney who will provide the highest level of professional guidance and advocacy.  It is time for courts to adequately fund indigent defense systems for children and meet their constitutional responsibilities.”

And Acting Assistant Attorney General Vanita Gupta of the Civil Rights Division said: “Every day, in communities across our country, under-resourced public defense systems fail to meet their constitutional obligation to provide effective representation for children.

“Children who depend on these failing systems often get the poorest representation, relegating them to second-class status in our courts. The systemic deprivation of counsel for children cannot be tolerated.”

The four counties include many children living in poverty. Only a small fraction of juvenile defendants from those counties received representation from a public defender. For example, of 661 Cordele juvenile cases heard in 2013, only 26 were represented by public defenders.

Redd said the lack of adequate representation of juvenile offenders has continued, as ongoing monitoring of cases has shown.

The suit seeks to require the Cordele circuit to provide plaintiffs with their rights under the U.S. Constitution’s Sixth Amendment (right to counsel) and 14th Amendment (due process and equal protection clauses) and to rights under the Georgia constitution and other applicable law.

“Juveniles are entitled to effective attorneys who are skilled in defending children,” Redd said.  “That means they have a record of skill and experience in representing children, which is very different than representing adults. The [DOJ] statement also reaffirms that the Constitution requires nothing less, that they made crystal clear that it takes the unique training and the unique skill set to appear in juvenile court.”

In December, David Rigdon was named Cordele public defender to serve 30 hours a week until June 30, 2015, with a salary of $45,000 with no benefits.

A February filing in the lawsuit said Rigdon had no training in juvenile law or child and adolescent development; had not read the juvenile delinquency section of the Georgia Juvenile Code; had not visited a Cordele juvenile detention center where children are detained pending resolution of their cases; and had not advocated for some alternative sentences because he did not know about them.

Asked at a deposition about his knowledge of key Supreme Court cases, he was unaware of Gault as well as three high court cases that took into account unique aspects of adolescent brain development and adolescent behavior, Roper v. Simmons (2005), Graham v. Florida (2010) and Miller v. Alabama (2012).

Rigdon could not be reached Friday morning.

UN Report Faults Practices Common in U.S. Juvenile Justice

WASHINGTON — The United Nations top investigator on torture has delivered a scathing criticism of juvenile justice practices common in the United States, including routine detention of youths, solitary confinement and sentences of life without parole for children.

In a presentation of his report to the U.N. Human Rights Council, Special Rapporteur Juan E. Méndez called on countries to rely on alternatives to detention, which he said should be a “last resort” for “exceptional cases” for the shortest possible period of time when in the “best interest of the child.”

“The detention of children is inextricably linked — in fact, if not in law — with the ill-treatment of children, owing to the particularly vulnerable situation in which they have been placed that exposes them to numerous types of risk,” Méndez told the Human Rights Council in Geneva.

The report said children deprived of liberty are at “heightened risk of violence, abuse and acts of torture or cruel, inhuman or degrading treatment or punishment."

Méndez, a 70-year-old torture survivor and a native of Argentina, did not single out the United States or any other country. But his 21-page report took direct aim at practices common in this country.

The report recommended that children:

  • Never be tried in the adult criminal justice system, never be subjected to adult sentences and never be sentenced to life without parole for crimes committed as youths.
  • Generally be kept separated from adults in detention and be allowed to be held together with adults during daytime hours only under “strict supervision.”
  • Be able to maintain contact while in detention with the outside world, particularly families and legal representatives.
  • Have access to educational, vocational and recreational opportunities and to green space when detained.
  • Be subjected to use of restraints only as a last resort when all other options have been exhausted and a child poses an “imminent threat” to himself or herself.
  • Should not be detained in law enforcement establishments for more than 24 hours.
  • Never be subjected to police questioning without the presence of a lawyer.
  • Have access to pediatricians and child psychologists knowledgeable about the effects of childhood trauma and to specialized medical screenings in places of detention to detect torture and ill treatment.

The report also said places of detention must respond to the specific needs of “groups of children that are even more vulnerable to ill treatment or torture” such as girls, lesbian, gay, bisexual and transgender children as well as children with disabilities.

Mishi Faruqee
Mishi Faruqee

Mishi Faruqee, juvenile justice policy strategist with the American Civil Liberties Union, said the U.N. report underscores the need for a fundamental shift in how the U.S. juvenile justice system treats children.

“The U.S. uses detention to a degree that you don’t see anywhere else in the world for young people,” Faruqee said. “For kids who are currently in the juvenile justice system, there’s a feeling that it’s OK for them to go to facilities that closely resemble adult prisons even though all the research says that that model has totally failed and sending these young people to these large, prison-like facilities produces horrible recidivism rates.”

She noted more states are moving toward the “Missouri Model,” emphasizing smaller, nonprison-like facilities closer to offenders’ homes, and that nationally, youth incarceration has declined by almost half in the past 15 years.

But Faruqee said on any given day, some 60,000 youths are in locked residential placement in the country, two-thirds of them for nonviolent offenses. (Some are placed in locked treatment facilities as opposed to prison-like detention centers.)

hub_arrow_2-01“The message of this U.N. report is that even these so-called ‘treatment facilities’ are depriving a child of their liberty by removing them from their families, removing them from their community, and that in itself is intrinsically harmful for young people and intrinsically undermines their healthy development,” she said.

Often, Faruqee said, youths are placed in locked facilities to get them services like mental health treatment that may be lacking in their communities or to get them away from a chaotic home life.

“We really need to dramatically reduce the number of young people who are detained, who are placed — whatever descriptive term you want to use — and really make sure that the supports and the services that those young people and their families need are available in their communities, and that should be the norm.”

Faruqee pointed to the nonprofit Youth Advocate Programs Inc. (YAP) as a model community-based program.

YAP, based in Harrisburg, Pa., provides community-based alternatives to out-of-home placements for troubled youths in 19 states, with interventions including intensive support for youths and their families in their homes, communities and schools.

Shaena Fazal
Shaena Fazal

Shaena Fazal, national policy director for YAP, said she strongly supported the U.N. report’s recommendation that locked facilities should be a last resort for young offenders.

“I think the overarching thing is that we have to overcome our institutional bias for detention and incarceration and instead have a bias for families and communities as the best way to achieve youths’ well-being,” Fazal said.

Advocates at YAP work with youths and their families on a wide range of needs, including education, health and mental health, aimed at building on kids’ strengths.

YAP focuses heavily on strengthening families.

“We know that kids always gravitate back to their natural families regardless of what has happened in the home, and so the onus is on us to really make that family stronger and a supportive system for the youth,” Fazal said.

She said research shows children who are in conflict with the law are “frequently expressing some type of hurt or behavioral issue, and they need us to help them and not to punish them” when possible, without resorting to incarceration.

Supreme Court Agrees to Hear Miller Retroactivity Issue

The U.S. Supreme Court
The U.S. Supreme Court.

WASHINGTON — The U.S. Supreme Court has agreed to hear a case in which it will decide whether to apply retroactively its landmark 2012 Miller v. Alabama ruling, declaring unconstitutional mandatory sentences of juvenile life without parole.

The justices decided to hear the case at a closed-door conference Friday, the high court announced today.

Opponents of mandatory juvenile life without parole welcomed news that the Supreme Court is taking up the retroactivity issue.

“I think it’s a very important step,” said Emily Keller, a staff attorney at the nonprofit, Philadelphia-based Juvenile Law Center. “We’re very hopeful that the Supreme Court is taking this case and will clarify that everyone serving an unconstitutional mandatory life-without-parole sentence for something they committed as a juvenile will have the opportunity to receive a sentence where their age and potential for rehabilitation can be considered.”

The appellant in the case that the Supreme Court agreed to hear, Henry Montgomery, received a sentence of mandatory juvenile life without parole (JLWOP) for murdering a police officer in 1963 less than two weeks after his 17th birthday.

The Montgomery v. Louisiana petition to the U.S. Supreme Court cited a lower federal court ruling and argued that the Miller decision is “a substantive constitutional rule that mandates courts to implement a new procedure in the sentencing of juveniles.” Montgomery is asking to be resentenced.

Nationwide, about 2,100 people are serving mandatory JLWOP sentences for murders committed as juveniles, the Juvenile Law Center says.

“I think it’s crucial that the court addresses the question of the retroactivity of Miller v. Alabama to ensure equal treatment under the Constitution for all individuals who have been sentenced as children to mandatory juvenile life without parole,” said Heather Renwick, litigation counsel for the Washington-based nonprofit Campaign for the Fair Sentencing of Youth.

“It’s an enormously important question in the lives of children who are sentenced to die in prison, and we’re hopeful that the Supreme Court will decide in favor of retroactivity to ensure that all children are given a second chance.”

In Miller, the Supreme Court determined that sentences of mandatory life without parole for those convicted of murder as children violated the Eighth Amendment’s prohibition against “cruel and unusual punishment.”

But the high court has not decided definitively whether to apply Miller retroactively, and lower federal courts and state courts have been divided on whether Miller applies retroactively.

Montgomery v. Louisiana is one of six petitions the Supreme Court received asking it to consider whether Miller v. Alabama should apply to cases decided before the ruling.

The court considered three of the six petitions on Friday.

On Thursday, Florida became the 10th state whose courts have ruled the 5-4 Miller v. Alabama decision should apply retroactively. (The other states are Illinois, Iowa, Massachusetts, Mississippi, Nebraska, New Hampshire, South Carolina, Texas and Wyoming.)

Courts in four states — Louisiana, Michigan, Minnesota and Pennsylvania — have decided Miller does not apply retroactively.

The U.S. Supreme Court had agreed in December to consider retroactivity in another ruling from the Louisiana Supreme Court, Toca v. Louisiana.

In that case, George Toca challenged the mandatory life-without-parole sentence he received for accidentally shooting his best friend when he was 17 in a botched armed robbery in 1984. But Toca was freed in January after nearly 30 years in prison as a result of a deal with prosecutors, thus making his petition to the U.S. Supreme Court moot.

In declaring mandatory JLWOP unconstitutional, the  Supreme Court has cited research showing juveniles’ brains are not fully developed, and youths are more susceptible than adults to peer pressure, more impulsive, more likely to take risks and less likely to consider long-term consequences. The court also pointed to research showing juveniles are amenable to rehabilitation.

Advocates Laud Florida Supreme Court Decisions

Florida Supreme Court
“The Florida Supreme Court ... reflects the growing momentum across the United States toward fairer and more age-appropriate sentences for youth.” - Heather Renwick of the Campaign for the Fair Sentencing of Youth.

WASHINGTON — Juvenile justice advocates hailed Friday four key Florida Supreme Court decisions on life without parole and other extremely long sentences imposed on children.

The decisions invoked U.S. Supreme Court rulings declaring unconstitutional mandatory sentences of juvenile life without parole (JLWOP) for murder and all JLWOP sentences for nonhomicide offenses.

The Florida high court’s decisions came Thursday — a day before the U.S. Supreme Court considered in a closed-door conference petitions asking it to weigh whether its landmark 2012 Miller v. Alabama ruling declaring JLWOP sentences unconstitutional should apply retroactively.

The seven-justice Florida Supreme Court ruled unanimously that new sentencing hearings must be granted to two people sentenced to JLWOP for murder and to two others serving de facto life sentences of 90 and 70 years for nonhomicide felonies.

“The Florida Supreme Court in these four decisions really reflects the growing momentum across the United States toward fairer and more age-appropriate sentences for youth,” said Heather Renwick, litigation counsel for the Washington-based nonprofit Campaign for the Fair Sentencing of Youth (CFSY).

“All four of these decisions reflect this growing understanding that no child should be sentenced to life in a prison, whether that’s a life-without-parole sentence or a 70- or 90-year sentence because children are uniquely capable of change, and sentencing a child to life imprisonment is inconsistent with children’s capacity to grow.”

CFSY, which opposes sentencing juveniles to life imprisonment, reports Florida now has 195 people who received mandatory life sentences for crimes they committed as children. Florida is among the top five states to sentence children to life without parole.

Those 195 people now have two years to pursue resentencing, the Florida Supreme Court said.

Nationwide, about 2,100 people are serving mandatory life without parole sentences for murders committed as juveniles, the Juvenile Law Center says.

Emily Keller, a staff attorney at the nonprofit, Philadelphia-based Juvenile Law Center, which filed amicus briefs in three of the cases before the Florida Supreme Court, also said she was heartened by the decisions.

“In these four decisions, the Florida Supreme Court recognized the importance of ensuring that juveniles receive constitutionally appropriate sentences that reflect their capacity for rehabilitation,” Keller said.

“The Florida court recognized that children are different for the purposes of sentencing and that their age and potential for rehabilitation mean that they should not be sentenced as if they are simply miniature adults.”

But Tamar R. Birckhead, an associate professor of law and director of clinical programs at the University of North Carolina School of Law, had a tempered reaction to the decisions.

“Yes, the decisions reflect opposition to extreme sentencing of youth,” Birckhead said in an email. “But whether that opposition is growing is a matter of interpretation and counting of the very clearly split state and federal decisions, both on the question of Miller retroactivity and on the question of whether lengthy term-of-year sentences for non-homicides are, in practice, ‘life’ sentences.”

Florida becomes the 10th state whose courts have ruled the 5-4 Miller v. Alabama decision should apply retroactively. (The other states are Illinois, Iowa, Massachusetts, Mississippi, Nebraska, New Hampshire, South Carolina, Texas and Wyoming.) Courts in four states — Louisiana, Michigan, Minnesota and Pennsylvania — have decided Miller does not apply retroactively.

The U.S. Supreme Court has not decided definitively whether to apply Miller retroactively.

In a 22-page ruling in one of the Florida cases, Falcon v. Florida, the Florida high court stated, “We conclude that the rule set forth in Miller constitutes a ‘development of fundamental significance’ and therefore must be given retroactive effect.”

The appellant in that case, Rebecca Falcon, was 15 in 1997 when she took part in a robbery that resulted in the death of a cab driver near Panama City, Fla. She was sentenced in 1999.

The Florida high court, citing Miller, found that the mandatory JLWOP sentence imposed on Falcon violated the Eighth Amendment’s prohibition on “cruel and unusual punishment.”

In another decision, the Florida Supreme Court ordered a new sentencing hearing for Anthony Horsley, who was 17 in June 2006 when he fatally shot the owner of a convenience store in Palm Bay, Fla., during a robbery. He was convicted of first-degree murder in 2011 and sentenced to mandatory life without parole.

His sentencing came before a 2014 Florida law eliminating JLWOP in response to the Miller decision, and he is thus entitled to a resentencing hearing, the Florida Supreme Court found.

In its decisions, the Florida Supreme Court also cited the 2010 U.S. Supreme Court decision Graham v. Florida. In Graham, the court ruled it unconstitutional to sentence juvenile offenders to life without parole for nonhomicide felonies.

In its other two decisions, the Florida court decided new sentencing hearings must be granted to Leighdon Henry, serving a 90-year sentence for rapes and other felonies,  and for Shimeeka Gridine,  serving a 70-year sentence for attempted first-degree murder and other offenses he committed at age 14.

Birckhead called the Henry and Gridine rulings “significant,” but added, “It’s too early to say whether they represent a trend.”

She said she’s particularly heartened that the Florida Supreme Court held that Graham applied in Gridine, an attempted murder conviction, even though Graham’s language seems to limit the decision to defendants "who do not kill, intend to kill, or foresee that life will be taken."

Florida’s Supreme Court found in Gridine that the 70-year sentence did not provide a meaningful opportunity for release and is therefore unconstitutional under Graham.

Birckhead said the Henry decision is a positive sign that what amount to life sentences for nonhomicide crimes will be considered “virtual ‘life’ sentences.”

The Florida high court noted that the U.S. Supreme Court has cited research showing  juveniles’ brains are not fully developed, and youths are more susceptible than adults to peer pressure, more impulsive, more likely to take risks and less likely to consider long-term consequences. The U.S. Supreme Court also pointed to research showing juveniles are amenable to rehabilitation.

(The four Florida Supreme Court full opinions as well as transcripts and videos of oral arguments can be found on the court’s website.)

High Court Asked to Weigh Miller Retroactivity


WASHINGTON — Six petitions have been filed with the U.S. Supreme Court asking it to consider whether its landmark 2012 Miller v. Alabama ruling declaring mandatory sentences of juvenile life without parole unconstitutional should apply to cases decided before the ruling.

Three of the pending petitions — two arguing Miller should apply retroactively, one arguing it should not — are scheduled to be considered at a Supreme Court conference March 20.

In Miller, the high court determined sentences of mandatory life without parole for those convicted of murder as children violated the Eighth Amendment’s prohibition against “cruel and unusual punishment.”

But the court did not decide definitively in that case whether to apply Miller retroactively.

Courts in nine states — Illinois, Iowa, Massachusetts, Mississippi, Nebraska, New Hampshire, South Carolina, Texas and Wyoming — have ruled Miller applies retroactively. Courts in four states — Louisiana, Michigan, Minnesota and Pennsylvania — have decided Miller does not apply retroactively.

But in what some advocates for retroactivity view as a hopeful sign, the Supreme Court had agreed in December to consider the issue in a ruling from the Louisiana Supreme Court, Toca v. Louisiana.

In that case, George Toca challenged the mandatory life-without-parole sentence he received for accidentally shooting his best friend when he was 17 in a botched armed robbery in 1984.

Toca was freed in January after nearly 30 years in prison as a result of a deal with prosecutors, thus making his petition to the U.S. Supreme Court moot.

But Emily Keller, a staff attorney at the nonprofit Juvenile Law Center in Philadelphia, said she is heartened that the court had agreed to weigh retroactivity in Toca after having refused to do so with other petitions.

“We’re very hopeful that the Supreme Court will take one of these cases, and when they took Toca, that suggested that they were interested in resolving this [retroactivity] issue,” Keller said.

She also noted the court has not declined to review other recent retroactivity petitions, instead rescheduling them for other conference dates.

“The fact that they have not been denying the petitions, that they’ve been holding them off to another date makes us hopeful that they’ll take at least one of them to consider this question,” Keller said.

Of the six petitions pending before the Supreme Court, only one, from New Hampshire, argues that Miller should not apply retroactively.

In that petition, in the case of New Hampshire v. Soto et al, the state Attorney General’s Office, citing precedent, asserted that the Miller decision was a “procedural” and not “substantive” ruling of law and therefore should not apply retroactively.

Elizabeth C. Woodcock, the New Hampshire assistant attorney general who filed the petition with the Supreme Court, declined to comment beyond noting a March 5 federal circuit appeals court ruling finding that Miller should not apply retroactively.

In that case, the 4th Circuit U.S. Court of Appeals, based in Richmond, Va., said Miller is not applicable retroactively because it is not a substantive rule of law and does not meet another test, that it be a “watershed rule of criminal procedure.”

The retroactivity issue is still pending in other state and federal courts.

Notably, Bryan Stevenson, who argued Miller and the companion case Jackson v. Arkansas  in the Supreme Court, is the lead attorney on two of the retroactivity petitions before the Supreme Court — Rodney Tolliver v. Louisiana and Cortez Roland Davis v. Michigan.

Stevenson, who operates the nonprofit law firm called the Equal Justice Initiative in Montgomery, Ala., could not be reached for comment Friday.

Tolliver was found guilty of murdering a woman when he was 16 in her Lafayette, La., home in 1985. He was initially charged with first-degree murder, but the charge was later amended to second-degree murder.

In a petition filed in September, Tolliver, who is now being held in the Louisiana State Penitentiary in Angola, La., argued that Miller “is substantive and consequently should apply retroactively.”

He quoted the 5-4 Miller decision: “Children are constitutionally different from adults for purposes of sentencing. … A judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”

In the Michigan case, Davis was 16 when he participated in an armed robbery in which the victim was killed, but he was not the shooter.

The Michigan Supreme Court ruled 4-3 in July that Miller does not apply retroactively.

On the day the ruling was handed down, Michigan Attorney General Bill Schuette said in a statement: "Today the Michigan Supreme Court upheld the rights of crime victims and their families. This ruling should bring a measure of peace to the many families who struggled with the possibility of painful re-sentencing hearings for cases successfully prosecuted decades ago."

However, Heather Renwick, litigation counsel for the Washington-based nonprofit Campaign for the Fair Sentencing of Youth (CFSY), pointed to Miller’s findings that courts should take into account in sentencing juvenile impetuosity, immaturity, life circumstances and capacity for rehabilitation.

“Mandatory life-without-parole sentences for juveniles are inconsistent with what we know of children’s capacity for change,” Renwick said. “We believe a mandatory sentencing scheme that results in imprisoning children for life is absolutely antithetical to the uniqueness of childhood and children.”

She also noted that whether a sentence of juvenile life without parole is retroactive now can depend simply on the state where a juvenile offender was sentenced.

“It’s totally dependent on the state where you are sentenced whether you are afforded a chance at a new sentence or not,” Renwick said. “And so we think it’s very important that the Supreme Court establish a rule where everybody in the United States who is sentenced to life imprisonment as a youth is afforded a second chance.”

New Guidelines Aim to Strengthen Defense in Juvenile Life Cases

Guidelines Aim to Strengthen Defense in Juvenile Life Cases
WASHINGTON — Defense teams representing juveniles facing possible life imprisonment should adhere to rigorous new guidelines designed to safeguard the youths’ constitutional rights, according to standards released today and endorsed by a wide array of legal advocates.

The Washington-based nonprofit Campaign for the Fair Sentencing of Youth (CFSY) released the 24-page “Trial Defense Guidelines: Representing a Child Client Facing a Possible Life Sentence” in response to findings of the U.S. Supreme Court in the landmark 2012 Miller v. Alabama decision.

“These kids are being sentenced to die in prison, and these guidelines are intended to raise the specialization and quality of defense,” said Heather Renwick, litigation counsel for CFSY, which opposes extreme sentences for young people.

“Miller really showed to the defense community the importance of and acted as an impetus for raising awareness around the specialization required in defending kids facing life sentences,” Renwick said. “Miller really got the ball moving as far as developing the guidelines.”

The 2012 Supreme Court decision declared unconstitutional mandatory life sentences for offenses committed by juveniles, citing characteristics unique to young people, including research on adolescent brain development.

The 5-4 high court decision did not, however, ban life sentences for juveniles, only mandatory ones.

The new CFSY guidelines call for a “national standard to ensure zealous, constitutionally effective representation” for all juveniles facing a possible life sentence and cite Miller’s holding that trial courts must “take into account how children are different and how those differences counsel against irrevocably sentencing [children] to a lifetime in prison.”

Representing defendants facing possible life sentences for crimes committed while juveniles is a “highly specialized area of legal practice,” the guidelines state, and as such, require teams comprising two attorneys, an investigator and a “mitigation specialist.”

At least one of the attorneys should have experience in dealing with defendants facing homicide charges, the guidelines say, and at least one should have experience representing youths.

Evidence-based Practices at the Juvenile Justice Resource HubThe investigator, who could come from a variety of educational and professional backgrounds, would be involved in the trial portion of the case, where guilt or innocence is determined. Typically a person with experience in this type of investigative work, the investigator should examine facts of the case on behalf of the defendant.

The mitigation specialist, who could have a background in psychology, social work or counseling, would become involved in the sentencing portion of a case and examine factors in a defendant’s life that could mitigate against a life sentence such as abuse, poverty, trauma, family history and education.

“I think one of the most important factors of the Miller vs. Alabama decision was that the court mandated that before a child is sentenced to life in prison, the court needs to take into account that child’s life, and that includes all of the hardships associated with that child’s life,” Renwick said. “All of that child’s life story needs to be taken into account and presented to the court.”

In the Miller decision, the court noted among other things that adolescents are prone to be highly susceptible to peer pressure, can be reckless and impulsive, and fail to take into account the long-term consequences of their actions. Research has shown adolescent brain development continues through the mid-20s, that most youths outgrow delinquent behavior and that youths are amenable to rehabilitation.

The new guidelines drew widespread praise from juvenile justice experts and child advocates.

“The Trial Defense Guidelines recognize that children need to be treated as children when facing a possible life-in-prison sentence,” said Marsha Levick, chief counsel and deputy director at the Philadelphia-based, nonprofit Juvenile Law Center, in an email. “The guidelines also will ensure a child receives a meaningful, individualized sentencing hearing before imposition of a sentence.

“Without effective and trained counsel, we risk losing the real fight for justice, which will unfold in courtrooms across the country,” Levick added.

Patricia Puritz, executive director of the nonprofit National Juvenile Defender Center in Washington, called the guidelines “long overdue” and said they should be uniformly adopted across the nation.

“It is unimaginable to me that a child facing the possibility of a life sentence in prison in the United States of America would not have the type of specialized defense counsel envisioned in the Trial Defense Guidelines,” Puritz said in a statement. “Simply stated, that seems unethical, immoral, and a fundamental denial of the constitutional and developmental differences between adults and children.”

CFSY drafted the guidelines in collaboration with attorneys and advocates from across the nation.

The guidelines have been endorsed by dozens of national and local organizations that provide defense services, including the Washington-based National Association of Criminal Defense Lawyers, the NAACP Legal Defense Fund in New York City, the Southern Poverty Law Center in Montgomery, Ala., the National Juvenile Defender Center and the Juvenile Law Center.

Grassley OJJDP Probe Widens, Implicating 6 States, 2 Territories

Charles Grassley
Senate Judiciary Committee Chairman Charles Grassley.

WASHINGTON — Sen. Charles E. Grassley, R-Iowa, has widened his inquiry into whistleblowers’ claims of fraud and mismanagement in the awarding of grants from the federal Office of Juvenile Justice and Delinquency Prevention (OJJDP).

The federal juvenile justice grants went to states and territories that allegedly incarcerated foster children, runaway youth and other vulnerable juveniles in violation of federal law.

In addition to the states and territories named in the inquiry so far, Grassley’s office said in a news release, “The alleged mismanagement may extend to many more states and could date as far back as 1986.”

“Juvenile justice and delinquency prevention grants were designed to protect at-risk youth,” said Grassley, chairman of the Senate Judiciary Committee, in the news release.

“Any failure to administer this program is a failure to those that it was intended to serve. Unfortunately, the alarmingly high prevalence of alleged failures and the department’s own responses to those allegations suggest systemic mismanagement that must be corrected. These kids and young adults deserve and depend on accountability from government.”

In a seven-page letter Friday to Assistant Attorney General Karol Mason, Grassley outlined allegations by whistleblowers that oversight failures may have led to unlawful OJJDP grants to Alabama, Idaho, Illinois, Puerto Rico, Rhode Island, Tennessee, Virginia and Washington, D.C.

In a January letter, Grassley demanded that Mason, who heads the Office of Justice Programs, respond to whistleblowers’ claims that OJJDP had knowingly violated federal law by giving millions of dollars in grants to Wisconsin and four other states or territories that incarcerated runaway youth, foster children and other “vulnerable minors” in violation of the federal Juvenile Justice and Delinquency Prevention Act (JJDPA). The four were not named.

The law contains four “core requirements” states and territories must comply with to earn OJJDP grant money: deinstitutionalization of status offenders, those who commit acts that are offenses only because of their status as juveniles, such as skipping school; addressing disproportionate minority contact (DMC) with the juvenile justice system through detailed plans aimed at reducing it; removal of juveniles from adult jails within prescribed time limits; and separation of juveniles from adult inmates when the juveniles are in adult facilities.

The latest letter said whistleblowers also had alleged that two states, Illinois and Rhode Island, had improperly received full grant funding despite failing to comply with the DMC requirement.

Starr Stepp, a Justice Department spokeswoman, did not immediately respond to a request for comment.

Grassley plans to offer reforms to the OJJDP grant program in the JJDPA reauthorization bill in response to the whistleblowers’ allegations, Tuesday’s news release said .

Requirements and claims

Under the JJDPA, Grassley’s letter noted, OJJDP is required to reduce a state’s JJDPA grant funding for a given year by 20 percent for each core requirement violated in the previous fiscal year.  The letter also pointed out a state is to receive no JJDPA funds for the year following a violation unless it meets one of two criteria, which include showing “subsequent, substantial compliance with the requirement(s) it was violating.”

An OJJDP employee, who had previously worked as the agency’s JJDPA liaison for Virginia, admitted he knowingly submitted fraudulent data on behalf of the state in its annual applications for JJDPA grants, Grassley said. It “was widely believed among the states that OJJDP does not verify data reported by the states,” Grassley said in his letter.

A whistleblower had claimed that in 2005 Virginia reported to OJJDP it had only seven lock-ups in the entire state, when there may be 70 in Northern Virginia alone, the letter said. According to the OJJDP website, the state has received full JJDPA funding every year since 2006.

“Such reports seem to underscore whistleblowers’ core allegation that OJJDP knowingly allows states to receive JJDPA funds to which they are not entitled, and that this lack of compliance monitoring is common knowledge among the states,” Grassley wrote in the latest letter.

The senator’s letter also contained these allegations:

  • Tennessee violated the core requirement that forbids states to incarcerate status offenders after adjudication. In Knox County, Tenn., alone, status offenders have been incarcerated hundreds of times, according to a law school professor who operates a clinic that represents status offenders in Knox County courts. The professor wrote to OJJDP Administrator Robert L. Listenbee Jr. about these concerns on Nov. 6, 2013, but “OJJDP was unwilling to receive documentation of these alleged violations,” Grassley wrote.
  • Idaho reported in 2009 that none of its lockups held any juveniles, contradicting information from the Boise and Jerome police departments. An OJJDP compliance monitor also reported that not all 85 lockups could have reported data to the state on the number of juveniles held. A revised compliance monitoring report revealed violations of the core requirements on status offenders, removal of juveniles from adult facilities and separation of juveniles from adults when they are held in adult facilities. Nonetheless, Idaho has received full JJDPA grant funding every year since 2006, except for fiscal year 2012. That year, the state’s funding was reduced by 20 percent for status offender violations.
  • A whistleblower alleged Illinois has not complied with the DMC requirement since 2008 even though it has received full JJDPA grant funding since 2006. The whistleblower found a “serious deficiency” in Illinois DMC programs and determined funding should be reduced as a result. The Office of General Counsel in DOJ’s Office of Justice Programs agreed, but Listenbee overruled both determinations “without providing a legitimate justification,” Grassley wrote. The whistleblower also alleged Listenbee had recently instructed OJJDP staff to issue a “blanket pass for all states regarding the DMC requirement” by notifying them they will not be found out of compliance with the requirement. OJJDP said in an Oct. 28, 2014, letter that it had stopped finding DMC noncompliance in 2013 and would continue to do so until a new DMC compliance tool was developed, Grassley wrote.
  • In Rhode Island, whistleblowers alleged during one year that all the state had to do was arrange for a single meeting with a local NAACP chapter to demonstrate DMC compliance, Grassley wrote. His letter did not specify the year but said the single meeting “would seem to fall short of the statutory requirement that a state seeking to satisfy the DMC requirement must submit a detailed plan outlining programs, projects, and activities aimed at ‘reducing the disproportionate number of juvenile members of minority groups, who come into contact with the juvenile justice system.’”
  • Each year since 2006, Puerto Rico has not complied with core requirements on removal of juveniles from adult jails and lockups and separation of juveniles from adult offenders in adult facilities. Puerto Rico’s JJDPA funding had been reduced for these violations each year. But partial funding should have been allowed only if the territory had shown  “subsequent, substantial compliance with the non-compliant requirements” or agreed to spend 50 percent of the partial funds to achieve compliance. “Whistleblowers allege that OJJDP employees who raised these issues internally were removed from duty or prompted to look the other way,” Grassley said in his letter. He noted Puerto Rico’s funds had been frozen in 2013 but later unfrozen — a decision allegedly made in part to cover the salary of a JJDPA liaison in Puerto Rico who is married to an OJJDP employee.