Some State Laws Slow Resentencings Despite Miller v. Alabama Decision

While the man behind the landmark decision that ended mandatory life-without-parole sentences for juveniles waits for a new sentence, other inmates given the same term are getting a shot at eventual freedom.

Evan Miller went back before a judge in his hometown of Moulton, Alabama, for a three-day resentencing hearing March 13. Lawrence County Circuit Judge Mark Craig’s decision is still pending.

But the Supreme Court ruling that bears Miller’s name is already bearing fruit for other Alabama inmates serving life without parole for crimes they committed before they were 18. For them, the process can be difficult, slow and vary county by county. And thanks to a 2016 state law, they may have a long wait for a parole hearing even if they succeed.

For example, the July 31 decision declaring juvenile lifer Richard Kinder eligible for parole came nine months after a hearing before a judge in Birmingham, attorney Richard Jaffe said.

“The judge wanted to be thorough and know every inch of it — every document, every record, and there were thousands and thousands of pages,” said Jaffe, who defended Kinder in his 1984 trial and served as co-counsel in his resentencing.

Joy Patterson, a spokeswoman for the Alabama attorney general’s office, said about 70 other state inmates are eligible for new sentencing hearings under the 2012 Miller v. Alabama decision and its 2016 follow-up, Montgomery v. Louisiana, which declared the Miller ruling retroactive.

So far, 20 of them have been resentenced to life with a chance at parole, said Eddie Cook, a spokesman for the Alabama Board of Pardons and Paroles.

State Rep. Jim Hill, a former judge who pushed to bring Alabama’s capital sentencing law into line with the Miller decision, said he has urged his old colleagues to get on with the task at hand.

“I have certainly had judges call me and ask, ‘Do I need to have rehearings?’ And my answer to them is, ‘Sure. You must. Go ahead and schedule it and get it done,’” said Hill, a Republican who chairs the state House Judiciary Committee.

Alabama’s new capital sentencing law, passed in 2016, also requires that teens convicted of capital murder serve 30 years before becoming eligible for release. Since Kinder has been imprisoned more than 30 years, he now has the right to a parole hearing, Jaffe said.

But other juvenile lifers will face more years behind bars even if they succeed in getting their chance at parole. That would include Miller himself, who was convicted in 2006.

That 30-year requirement isn’t the most stringent, according to The Sentencing Project, a Washington-based research and advocacy organization. At least two states — Texas and Nebraska — require a 40-year minimum. But it’s tougher than others: West Virginia allows inmates to get a hearing after 15 years; Nevada, 20; and South Dakota leaves the issue entirely up to a judge.

And the Miller decision barred only the automatic imposition of a life-without-parole sentence for a teen killer. Judges can still hand down that term after weighing the evidence. But the justices required them to consider a teen’s "diminished culpability and heightened capacity for change," and the follow-up Montgomery decision limits the punishment to teens whose crimes show “permanent incorrigibility.”

“It’s going to apply to the rarest of the rare cases,” Jaffe said.

Kinder has served nearly 33 years of a life-without-parole sentence for a killing committed when he was 17.

Kinder, then 17, was convicted of capital murder in the 1983 killing of 16-year-old Kathleen Bedsole during a robbery and kidnapping. As an accomplice, Kinder was spared the death penalty, but got life without parole. The 21-year-old gunman, David Duren, went to the electric chair in 2000, having dropped his appeals after a religious conversion.

Jaffe called Kinder’s resentencing “excruciating” and “heart-wrenching.” It featured testimony from Bedsole’s boyfriend, who survived his wounds that night. But guards and teachers at the prison where Kinder has been locked up testified that he has been a model prisoner. His disciplinary record includes only one infraction, and he earned a high school equivalency diploma, an associate’s degree from a community college and a trade school diploma in furniture refinishing.

In addition, Duren’s attorney signed an affidavit recounting that his client had said he made the decision to shoot Bledsoe and her boyfriend without telling Kinder, and that Kinder had told him there “was no need to shoot.” Jaffe said Circuit Judge Teresa Pulliam found Kinder “was not only rehabilitatable, but had been rehabilitated.”

Pulliam has scheduled several other hearings for inmates convicted in Jefferson County, the state’s largest, said Michael Hanle, president of the Alabama Criminal Defense Lawyers Association. But for convicts in other counties, there’s little movement, he said.

“We’re not quick to the table,” said Hanle, who is also Jaffe’s law partner. Rural counties especially “are not moving as quickly as in some other jurisdictions, and they’re having a little more difficult time.”

Many judges aren’t eager to reduce sentences, and defense lawyers are often court-appointed and lack the resources to assemble their case. But the biggest obstacle is time, he said.

“Some of these guys have been in prison 20, 25, 30, 35 years, and a lot has happened during that time,” Hanle said. Finding witnesses becomes harder, and it’s more difficult to present testimony that would point toward a lighter term.

“And of course, a defendant has a lifetime literally in the Department of Corrections, which comes with its ups and downs,” he said. “Some of them have gone on to do great things as far as their education, training and rehabilitation. Others have had problems, and all those things are going to be brought back up during the resentencing.”

Hill said the judges he knows “all want to follow the law, whether they like it or don’t like it.”

“I think it’s a necessity that we do it,” he added. “It’s one of those things that when you see what the situation is, you need to address it. It took us a couple of years to address it, but we did, and I’m very glad that we did.”

Miller is represented by the Montgomery-based Equal Justice Initiative, which took his case to the U.S. Supreme Court. Bryan Stevenson, EJI’s executive director, did not respond to a request for comment.

Nationwide, about 2,500 inmates are eligible for new hearings under the Miller and Montgomery decisions. It’s not clear how many of them have had those hearings, but states well beyond Alabama have been slow to schedule them, said Josh Rovner, a juvenile justice advocacy associate at The Sentencing Project.  

“While there are certainly states that have sharp declines — sometimes because state supreme courts required it — in many cases, the states barely budged in the number of people serving life without parole for things they did as a juvenile,” Rovner said.

For example, Iowa has moved quickly to resentence inmates eligible for new hearings under Miller, and it has eliminated mandatory minimum sentences for crimes committed by juveniles altogether, Rovner said. But in Arkansas, a judge recently struck down the state’s new sentencing law because it failed to provide for individualized hearings. And the three states with the most juvenile life-without-parole sentences — Michigan, Louisiana and Pennsylvania — “really dragged their feet on this,” he said.

“The facts are rarely in question,” Rovner said. “The question is what is the juvenile’s maturity, involvement in the offense, what was his family life like — these are questions that are able to be answered.” Caseloads and procedures might move at different paces in some places, but he said waiting five years since the Miller decision “is preposterous.”  

Hello. We have a small favor to ask. Advertising revenues across the media are falling fast. You can see why we need to ask for your help. Our independent journalism on the juvenile justice system takes a lot of time, money and hard work to produce. But we believe it’s crucial — and we think you agree.

If everyone who reads our reporting helps to pay for it, our future would be much more secure. Every bit helps.

Thanks for listening.

Contribute Now

Bryan Stevenson Optimistic About Juvenile Justice Trends, But Work Remains

Bryan Stevenson at TED 2012: Full Spectrum
Bryan Stevenson at TED2012: Full Spectrum, February 27 – March 2, 2012. Long Beach, CA.

ATLANTA — The man who took the fight against life without parole sentences for juveniles to the U.S. Supreme Court said he is optimistic about juvenile justice trends, but said there is much work to do in a few areas, most especially around housing youth in adult lockups.

Bryan Stevenson, executive director of the Equal Justice Initiative in Montgomery, Ala., also said the number of states that try juveniles as adults is a problem.

There are 29 states where kids are routinely put in adult jails and prisons, Stevenson said, and “in a kind of perverse way, kids suffer more than adults in these facilities.”

“You put a 14- or 15-year-old in an adult jail who’s awaiting pretrial, they can’t focus on the trial, they can’t focus on defense, they can’t focus on their family and their attorneys,” he said. “They have to focus on survival.”

Then, if a youth is locked up with adults after conviction on a parole-eligible offense, it’s hard for the young person to build up the kind of institutional history that would win them parole. “These kids have three times the disciplinary problems as adults because they’re the targets of so much assault, abuse and violence,” Stevenson said.

The United States must change its narrative about youths, Stephen said in an address to some 450 attorneys and others gathered at the annual summit of the National Association of Counsel for Children.

Or rather, he said, we muct return to what Stevenson sees as the historical norm of considering children as different from adults and properly subject to different consequences.

It was only in the late 1980s that “we categorically gave up on that for thousands of kids,” he said. During the tough-on-crime years, policymakers nationwide, drawing on a narrative that prescribed punishment for both adult and juvenile law-breakers, cracked down on crime with laws like mandatory minimum sentences and mandatory transfer of certain youth to adult courts.

Supreme Court rulings, like the 2012 pronouncement in Miller v. Alabama, which Stevenson argued, may represent a national shift away from the ‘80s and ‘90s narrative of children as predators, and tough-on-crime punitive laws.

The Supreme Court is “probably ahead” of the rest of society in considering children different from adults, Stevenson said.

EJI, a nonprofit, provides legal representation to both youth and adult indigent defendants and prisoners, especially those whose trials are marked by racial bias or prosecutorial misconduct.

U.S. Supreme Court Questions If Juvenile Killers Should be Given Second Chance

The U.S. Supreme Court heard arguments today in the cases of two offenders, sentenced at a young age to die in prison, and may choose to further limit such sentences for minors.

Kuntrell Jackson of Arkansas and Evan Miller of Alabama were both 14 years old when they were convicted of a homicide, and both were sentenced to life sentences without the possibility of parole (LWOP). For more on the background of their cases, click here.

A juvenile's "deficits in maturity and judgment and decision-making are not crime specific," said Bryan Stevenson, who represented both offenders. "All children are encumbered by the same barriers."

Stevenson argued that this was the inevitable conclusion to be drawn from the court’s other two recent cases on juvenile sentencing, Roper v Simmons and Graham v Florida.

Roper’s ban on the death penalty implicitly “acknowledged a difference in murder” between juveniles from adults in murder cases, Stevenson argued, and Graham’s abolition of LWOP sentences for juveniles convicted of non-homicides distinguished the two when it came to an opportunity for parole.

In each case, the state’s sentencing structure mandated an LWOP sentence for the crimes of which the two teens were convicted. Stevenson, representing both offenders, attempted a balancing act between challenging the entire practice of juvenile LWOP sentencing and specifically attacking the mandatory sentencing structures that lead to many of those sentences.

Stevenson, the director of the Montgomery, Ala.-based Equal Justice Initiative, made it clear that his preference was for a categorical ban on LWOP sentences for any offender under the age of 18. Justice Samuel Alito wondered why such a ban should assist someone who is “17 years, 10 months” with “great maturity.”

Justice Antonin Scalia asked Stevenson what could reasonably replace LWOP for juveniles, suggesting the hypothetical sentence of 50 years without the possibility of parole?

"If this Court were to say we ban life without parole for these kinds of offenders, it would be somewhat problematic to suggest that we're going to get  as close to death as possible and then facilitate some kind of review," Stevenson replied.

That is already an issue that has arisen in the aftermath of the Graham case, with some Florida judges using sentences of more than 50 or 60 years to replace the LWOP sentences handed down to juvenile non-homicide offenders.

Stevenson told Justice Ruth Bader Ginsburg that an opinion that only rolled back the mandatory imposition of LWOP on juveniles “would not satisfy me.” But pressed by Justices Kennedy and Sonia Sotomayor on what other than a categorical ban might suffice, Stevenson suggested a bifurcated decision that would split adolescents into two groups: 14 and under, and 15 to 17.

Stevenson suggested an outright LWOP ban for the teens under 15, and a requirement that LWOP for older teens could not be part of a mandatory sentencing scheme; that such a sentence would have to be subject to individual review.

Alabama Solicitor General John Neiman argued that the court should not extend past the Graham ruling on LWOP because "Graham's culpability is twice diminished: once because he was a juvenile and once because he had not committed murder," Miller, he said, is entitled only to protection from the death penalty as a juvenile.

Neiman told the court he knows of no studies that show juvenile offenders are more amenable to rehabilitation in adult correctional settings than adults are, a point that Stevenson later disputed.

The prospect for rehabilitation is an ancillary point, Neiman argued. “Retribution is the primary goal. Society doesn’t want to roll the dice on convicted murderers.”

The arguments of Stevenson and Neiman appeared stymied at times by a lack of hard data. Justices asked for, and did not receive, figures on how many juveniles received LWOP within a mandatory scheme and how many had been offered a plea before conviction.

No number was offered on the latter during arguments; Stevenson pointed out that approximately 85 percent of all juvenile LWOP sentences occurred in states where there were mandatory sentences for homicides, and Justice Stephen Breyer mentioned an estimate that 71 of the 79 LWOP offenders under 15 had received the sentence because it was mandatory.

Justice Scalia queried as to how Stevenson could argue a national consensus against sentencing juveniles to life without parole when “something like 39 states allow it?”

Stevenson then made an argument that drew quick retort from conservative justices on the bench: That most state legislators set no threshold on what age a juvenile can be transferred to adult court, which means they have not really addressed it and are perhaps even unaware that juveniles are subject to mandatory LWOP sentences.

Challenges to his assertion dominated the rest of Stevenson’s time. “If a state allows for it,” asked Chief Justice Roberts, “have they not addressed it?”

Justice Anthony Kennedy, who wrote the majority opinions in Graham and Roper, also questioned Stevenson’s logic on that count.

With 2,300 juvenile LWOP inmates, “it’s difficult to suggest the legislators aren’t aware” juveniles are receiving the sentences, said Justice Kennedy, who wrote the majority opinions in Graham and Roper. [The estimated number of inmates is actually 2,570, according to the according to The Campaign for the Fair Sentencing of Youth].

“If states don’t realize” that their juveniles can receive LWOP sentences,” Justice Alito asked, “why don’t you call them?”

Marsha Levick, deputy director of the Juvenile Law Center in Philadelphia, supported Stevenson’s position, saying that many states didn’t “give consideration to the consequences” when they toughened transfer laws in the 1990s.

In Pennsylvania, she said, “we changed our laws in 1995 and the [mandatory] sentencing schemes were already in place.”

During the hour of argument on Jackson v Hobbs, the court did not appear to take much interest in the main difference in the cases, which is that Jackson did not directly cause the death of a victim and Miller did.

The justices went straight into questions when Stevenson stood up on Jackson’s behalf, preventing him from differentiating the case from Miller, and the questions to he and Arkansas Assistant Attorney General Kent Holt focused on mandatory sentencing.

“Why couldn’t a judge have discretion at sentencing?” Kennedy asked of Holt, to which Holt pointed out that in Arkansas, the decision of a prosecutor to subject a juvenile to adult court and LWOP sentences is reviewable. [This is not the case in all states; some allow prosecutors to directly file cases in adult court].

"Isn't the life without parole special enough for an adolescent that you have to let him at least make any mitigating arguments he wants?" asked Justice Breyer, suggesting that LWOP for juveniles might warrant at least the same level of review that a death penalty sentence would for adults.

“That’s not a view that I know has been expressed,” Holt replied.

A group of former juvenile judges from around the country wrote the court in support of Miller and Jackson, arguing that they saw similar teens turn their lives around after being convicted of heinous crimes, including murder.

“Based on decades of experience sentencing juvenile offenders, [we] simply do not believe it is possible to tell which youths will change and which will not at the time of their initial sentencing,” the judges wrote in an amicus brief.

“Notwithstanding this unpredictability,” the brief adds, the judges “believe that individualized consideration is essential at the initial sentencing stage.”

The American Psychological Association (APA) argued in a brief supporting Hobbs and Jackson that younger teens are particularly susceptible to the terrible decision-making that leads to a homicide.

“Older adolescents (aged 16-17) often have logical reasoning skills that approximate those of adults, but nonetheless lack the adult capacities to exercise self-restraint, to weigh risk and reward appropriately, and to envision the future,” the APA brief stated. “Younger adolescents are thus doubly disadvantaged, because they typically lack not only those social and emotional skills but basic cognitive capabilities as well.”

The State of Michigan filed an amicus brief joined by 18 other states urging the court not to interfere with the state’s discretion to use LWOP sentences for all homicide convicts.

“This Court should not casually set aside state sovereignty and sentencing authority, particularly in a controversial area that is still subject to considerable national dialogue and debate.

Reform of juvenile sentencing should be done through democratic, not judicial, channels, the brief argues.

“Depriving American citizens of the opportunity to have a public debate comes at a high cost,” the brief stated. “If this Court holds that LWOP sentences for teenage murderers is unconstitutional, society will not have the opportunity to reach this Court’s understanding of ‘justice’ through public exchanges of information and discussion.”

John DiIulio, a former Princeton professor and faith-based leader in the George W. Bush Administration, predicted a wave of young “super-predators” in the mid-1990s, a prediction that prompted researcher James Alan Fox of Northeastern University to suggest that states include harsher sentences for violent young offenders.

Both signed onto an amicus brief in support of Miller and Jackson, and the brief specifically acknowledged their reticence for earlier forecasts.

“The prediction of a juvenile super-predator epidemic turned out to be wrong; in fact, there was no super-predator generation,” the brief stated. “Professor DiIulio, the original proponent of the juvenile super-predator notion and a signatory to this brief, has repudiated the idea and expressed regret, acknowledging that the prediction was never fulfilled.

“Professor James Fox, who urged that Professor DiIulio’s predictions should drive changes in sentencing laws, also has repudiated the notion of the super-predator and is a signatory to this brief.”

U.S. Supreme Court Heard Key Juvenile Cases Tuesday

Story by John Kelly and Ryan Schill

Today, the Supreme Court will hear oral arguments in two murder cases that resulted in mandatory life without parole (LWOP) sentences for juvenile offenders, both of whom were 14 at the time of crime. At the heart of both cases is the question of the constitutionality of sentencing a minor to die in prison.

Below is a primer with everything you need to know about Tuesday’s oral arguments, and what events led up to them.

The issue

Life without the possibility of parole, which has the common shorthand of LWOP, is the most severe penalty other than death that is handed down to convicts. A prisoner who receives an LWOP sentence will never have the opportunity to become a free citizen again, regardless of his or her attempts to rehabilitate in prison.

More stories:

OP-ED: The High Court Should Hold to Constitutional Principle and End Juvenile Life Without Parole

There are 49 states that allow prisoners to serve life sentences without a chance at parole; only Alaska mandates some opportunity for release. In some of those states, such as Florida, a life sentence has become an inherent LWOP sentence because the state has no parole system in place.

Aside from Alaska, according to The Campaign for the Fair Sentencing of Youth, there are six other states that already prohibit LWOP sentences for juvenile offenders: Colorado, Kansas, Kentucky, Montana, New Mexico, and Oregon. Another five - Maine, New Jersey, New York, Vermont, and West Virginia – do not currently have any offender serving an LWOP sentence for a crime committed as a juvenile.

The federal government also permits juveniles to receive LWOP sentences, according to the Campaign, and there are approximately 36 federal inmates who have received LWOP for crimes they committed before the age of 18.

Cases currently before the Court

Kuntrell Jackson

The Court will first hear arguments in Jackson v. Hobbs, in which the offender, Kuntrell Jackson, did not commit the homicide for which he received a life sentence without parole. Jackson and two older boys quickly schemed a plan to rob a video store while walking together through their neighborhood on Nov. 18, 1999, just 17 days past Jackson’s 14th birthday. He was unaware one of his friends was hiding a shotgun in his coat until just before the robbery.

Jackson remained outside while the other two boys entered the store, not following inside until just before one of his friends

shot the clerk, who had refused to give them money. The three immediately fled without taking anything from the store.

Jackson was eventually convicted of capital murder for his involvement in the homicide, a crime that, under Arkansas law where the murder occurred, carries a mandatory life sentence without parole regardless of any mitigating factors.

Miller v. Alabama will be argued in tandem with Jackson v. Hobbs and involves Evan Miller who, in 2003 at age 14, robbed and beat an older neighbor with a friend. The two boys drank and smoked pot with Miller’s neighbor in his trailer until he passed out, at which point they stole money from his wallet. But while they tried to slide the neighbor’s wallet back into his pants, the neighbor jumped up and grabbed Miller by the throat. Miller’s friend then hit the neighbor in the head with a baseball ball freeing Miller who began to punch the neighbor repeatedly in the face before grabbing the bat himself and continuing the attack.

Evan Miller

The pair left but returned soon after to clean up the blood. As they departed a second time they set the trailer on fire to hide the crime. The neighbor, unable to move after the attack, died in the fire. Miller was convicted of murder and received a mandatory life sentence without parole.

What came before

Two previous rulings by the Supreme Court laid the groundwork for Tuesday’s oral arguments. The high court abolished the death penalty for minors in 2005, and in 2010 eliminated LWOP sentences for juveniles convicted of non-homicides.

In the 2005 case, Simmons v. Roper, Christopher Simmons was sentenced to death for a murder committed in 1993, when he was 17. The jury found Simmons guilty of breaking into a Missouri woman’s home, binding her feet and hands with duct tape and then throwing her off a bridge, drowning her in the river below.

In a 2005 ruling on the case, the Supreme Court deemed capital punishment to be unconstitutional for anyone under the age of 18, citing the Eighth Amendment’s prohibition against cruel and unusual punishments and the “evolving standards of decency what mark the progress of a maturing society.” Writing for the majority, Justice Anthony Kennedy pointed to the “comparative immaturity and irresponsibility of juveniles.”

In 2010, the Supreme Court took another step in Graham v. Florida, using the case to strike down life sentences without the possibility of parole for all non-homicide crimes committed by juveniles. The case involved Terence Graham, who was arrested for a 2003 home invasion robbery when he was 16. The offense was a violation of the terms of his probation from a plea agreement in an earlier armed robbery conviction. A Florida judge sentenced Graham to life, a sentence that inherently carries no opportunity for parole in the state, which abolished parole in 1983.

Christopher Simmons

The high court found life sentences without parole for juveniles convicted of non-homicide crimes to be unconstitutional, deeming it in violation of the cruel and unusual clause of the Eighth Amendment. Justice Kennedy, again writing for the majority, said the State must provide the offender with “some realistic opportunity to obtain release” before the end of their sentence but is not bound to guarantee the offender’s release.

What might happen: The court’s attention to the Roper case followed its longstanding mantra that “death is different.” Graham effectively took the court’s actions on juvenile sentencing to a new realm: that youths are different. Now, the high court must go back to contemplating whether death is different, but this time it will be the death of a homicide victim, not a convict.

It is entirely possible that the train stops here, and the court decides not to infringe upon the ability of states to impose LWOP on juveniles that are convicted of homicides. Should the court choose to limit juvenile LWOP sentences in homicide cases, it could do so in several ways:

-A complete ban on LWOP for juveniles. This would require that all states develop some sort of parole system for all juvenile offenders convicted of life sentences.

-A ban on LWOP for juveniles below the age of 15. There are only 73 current LWOP inmates who were convicted for crimes they committed when they were 14, and nine others who were convicted when they were younger.

Justices have explored the idea of bright-line rulings that would distinguish younger juveniles from older ones in two recent cases – Graham and JDB v. North Carolina, which dealt with police questioning – but decided against it in both cases.

-Judicial review of juvenile LWOP usage in mandatory sentencing schemes. In both cases, the court’s list of “questions presented” includes references to the constitutionality of sentencing juveniles to LWOP under mandatory sentencing schemes that categorically preclude consideration of the offender’s age.

Such a ruling would seem to fall in line with Chief Justice John Roberts’ suggestion during the Graham oral arguments that requiring review of LWOP in all juvenile cases would be more practical than a categorical ban on the sentence for certain offenses.

One concern the justices may harbor in regard to this result would be setting the precedent of subjecting mandatory sentencing to mitigating factors. A mandate that judges consider age as a factor opens up mandatory sentencing schemes to similar challenges for parties claiming exception.

-A ban on LWOP for juveniles who did not commit the act that resulted in homicide. Some of the inmates doing LWOP sentences for juvenile offenses, including Jackson, were convicted of homicide because they were present for the action that precipitated a homicide.

This is the key difference between the two cases taken up by the court today. Both cases question the constitutionality of LWOP for young teens, specifically those subjected to mandatory sentencing schemes, but only Jackson’s case presents a separate question about the fairness of LWOP for a juvenile involved indirectly with a homicide.

Who we're talking about: There are approximately 2,570 offenders serving LWOP for offenses they committed as a minor. There appears to be no good estimate on how many of those offenders are in for homicides they caused directly and how many are offenders who were present for a crime that included another offender killing someone.

Where this matters most: As mentioned, all but seven states allow for juveniles to die in prison. But judges in five states take advantage of the LWOP option for juveniles far more often than colleagues in other states. Nearly two-thirds of the offenders (1,638 of 2,570) currently serving an LWOP sentence for a juvenile crime are in California (250), Louisiana (332), Pennsylvania (444), Michigan (346) and Florida (266).

Personalities in play: Justice Anthony Kennedy has long been the swing voter of the high court, and in the preceding juvenile sentencing cases he swung in favor of shielding juvenile convicts. Kennedy wrote the majority opinions in both Roper and Graham.

Roberts, who was not a member of the court when Roper was decided, agreed with the majority that Graham’s LWOP sentence amounted to cruel and unusual punishment. But he disagreed with the majority that Graham’s case proved the necessity for a categorical ban on LWOP sentences for juveniles.

In a separate opinion, Roberts favored the notion that a juvenile’s age should be factored into sentencing on a case-by-case basis, a view he repeatedly expressed during oral arguments in the case last November. A “categorical conclusion is as unnecessary as it is unwise,” Roberts wrote.

Bryan Stevenson at TED2012: Full Spectrum, February 27 – March 2, 2012. Long Beach, CA. Photo: James Duncan Davidson

Arguing for both convicts in these cases is Equal Justice Initiative Executive Director Bryan Stevenson, who has without question emerged as the leader in the fight to curtail harsh sentences for juvenile offenders. Stevenson represented Joe Sullivan – now 35 and sentenced to life at 13 for rape – in a case that the court heard in tandem with the Graham case. The court did not render a decision in Sullivan v Florida, but the questions at hand in the case were resolved by Graham. EJI has been working since Graham to identify offenders with legitimate ground for relief under the ruling and help them appeal their sentences.

EJI’s LWOP work was at one time funded almost entirely by the JEHT Foundation, which was done in by Bernie Madoff’s Ponzi scheme. Recently, as JJIE has reported, a speech by Stevenson at the TED 2012 Conference this month helped garner EJI $1 million in new funding.

Alabama Solicitor General John Neiman will argue for the state in Miller, and Assistant Attorney General Kent Holt will argue for Arkansas in Jackson.

Supporters and opponents: There were notably less amicus briefs filed in tomorrow’s two cases than were filed in Graham. Among the organizations that passed on filing a brief thus far in tomorrow’s cases: The Council of Juvenile Correctional Administrators and the National Partnership for Juvenile Services.

The Juvenile Law Center filed on behalf of Miller and Jacksons, as did Amnesty International and a group of family members who have lost relatives to homicides committed by juveniles. Two of the six groups filing on behalf of states against Terence Graham filed again in support of Alabama and Arkansas: The National District Attorneys Association and the National Organization of Victims of Juvenile Lifers.

Perhaps the most interesting names on any of the amicus briefs were those of James Alan Fox and John Dilulio, who signed onto a brief filed by juvenile justice researcher Jeffrey Fagan in support of Miller and Jackson. Fox and Dilulio forecasted a rising tide of violent juvenile offenders in the mid 1990s, and are widely blamed by reform advocates for helping to prompt a wave of get-tough laws that subjected more young offenders to adult courts and sentences.


VIDEO: Equal Justice Initiative Founder: ‘We Need to Talk About an Injustice’ TED Talk

Bryan Stevenson speaking at TED

TED2012 helped Bryan Stevenson raise more than $1 million following his impassioned plea for justice at the California conference last week. Stevenson, a human rights attorney and founder of the Equal Justice Initiative, spoke about the role of race in today's justice system, including juvenile justice. You can watch his talk below.

TED2012 Helps Equal Justice Initiative Founder Raise $1 Million

Bryan Stevenson at TED2012: Full Spectrum, February 27 – March 2, 2012. Long Beach, CA. Photo: James Duncan Davidson

“All of our survival is tied to the survival of everyone,” said Bryan Stevenson Thursday at the 2012 TED Conference in Long Beach California. Stevenson is an attorney and the founder and executive director of the Equal Justice Initiative, a nonprofit organization that litigates on behalf of condemned prisoners, juvenile offenders and others whose trials are marked by racism and misconduct.

Stevenson spoke passionately about how the American justice system is distorted around race and poverty. Our prisons are overflowing and the U.S. is still the only industrialized nation in the world that will sentence juveniles to life in prison.

Following his talk, $1 million was raised for a campaign run by Stevenson that ends excessive sentencing of children and stops the practice of putting kids in adult jails and prisons.

TED posted a wonderful blog post describing Stevenson’s talk in detail. You can read it below.

From the TED Blog, written by guest blogger Ben Lillie:

Bryan Stevenson spends most of his time in jails and prisons and on death row. He’s a lawyer, and the founder of the Equal Justice Initiative.

So he’s found it very energizing at TED, and wanted to start by pointing out that there is a distinct identity here. Things said here have a power that maybe they don’t elsewhere.

The point, he says, is that, “Identity is important.”

Identity in his life

He illustrates this with a story. He grew up in a matriachal house, where the undisputed matriarch was his grandmother: “She was the end of every argument in the family.” The daughter of people who were enslaved, she was tough but loving. She would often squeeze him so tight he could barely breathe.

When he was 8 or 9, he went into the living room, and his grandmother was staring at him. After 15 or 20 minutes, she took him aside and said, “We’re going to have a talk.” She said, “I want you to know I’ve been watching you. I think you’re special. I think you can do anything you want to do. Just promise me 3 things. 1) Love your mom. 2) Always do the right thing, even when it’s the hard thing. 3) Never drink alcohol.”

Later, when he was 14 or 15, his siblings offered him a beer, which made him uncomfortable, and he refused. His brother stared at him and said, “I hope you’re not still hung up on that conversation. Mama tells everyone they’re special.”

The point though, is this: He is 52, and he has never had a drop of alcohol. He says that, not because he thinks it is virtuous, but because there is an extraordinary power in identity. “We can say things to the world around us that they don’t yet believe, and get them to do things that they don’t think they can do.”

The criminal justice system

Stevenson works in the criminal justice system, and ours here in the United States is in a terrible state. In 1972, there were 300,000 people incarcerated. Today, there are 2.3 million. That’s the highest rate in the world. Mass incarceration is at an extraordinary level: 50-60% of young men of color are in jail, prison, or on parole. And that is fundamentally changing how we live.

Our justice system is distorted around race and also around poverty. It’s a system that “treats you much better if you’re rich and guilty than if you’re poor and innocent.” It feels like a problem that we should all want to solve, but the politics have made us feel that these are not our problems. We are extremely uncomfortable talking about race and poverty. For example, Alabama permanently disenfranchises convicted felons. As a result, 34% of African American men in Alabama have permanently lost right to vote.

And yet, there is a stunning silence.

The United States is the only country that will sentence 13-year-old children to die in prison. And yet we largely don’t talk about it. The death penalty is, of course, a fantastically important issue, but the way we frame the question is important. One way of asking is, “Do people deserve to die for the crimes they’ve committed?” But another way is, “Do we deserve to kill?” For every nine people on death row executed, there is one found to be innocent and released. That is a statistic that would never be allowed in any other industry.

We live in a country that embraced slavery, where after reconstruction and through Jim Crow a huge part of the population was subject to terrorism, to constant threats of being lynched and fire-bombed. But we don’t like to talk about it: “We don’t understand what it is to have done what we’ve done.” In South Africa, after apartheid ended, there was an extended process of truth and reconciliation, but here in America, neither at the end of slavery nor after the passage of the Civil Rights Act: nothing.

Stevenson gave a lecture in Germany and someone said to him, “We can never have the death penalty in Germany….There is no way with our history we could engage in the systematic execution of human beings. It would be unconscionable.” Imagine if in Germany today there was a death row, and that Jewish people were systematically more likely to be convicted. And yet here in this country, in the states of the Old South, a defendant is 11 times more likely to get the death penalty if the victim is white, and 22 times more likely if the defendant is black.

Our future identity

Our whole identity is at risk. “If we don’t care about these things, then the positive things are implicated.. Our hopeful, forward-looking realities are always shadowed by suffering, abuse, degradation, marginalization. Don’t always just be attentive to the bright and dazzling things but also to the dark and depressing things.”

We need to integrate the light and the dark. TED’s communities have to be engaged in this. There is no disconnect around technology and design that will allow us to be fully human until we also pay attention to suffering.

This identity is a much more challenging identity.

Rosa Parks onced asked him to describe his work with the Equal Justice Initiative, which he did. She said, “Oh, that’s going to make you tired , tired, tired.” And then, “That’s why you’ve got to be brave, brave, brave.” The TED community, Stevenson exhorts, needs to be more courageous. Because who we are, and the extent to which we are human, depends on how human everyone around us is. “At the base is a basic human dignity that needs to be respected.”

Stevenson believes our country, along with others, has a fundamental problem with humanity: “In many parts of this country the opposite of poverty is not wealth. In too many places the opposite of poverty is justice. We will ultimately not be judged by our technology and design, we will judge the character of our society, by how they treat the poor. That is when we’ll understand truly profound things about who we are.”

Anger, and hope for the futre

In the middle of a case where a Judge ruled that a 14-year-old was fit to stand trial as an adult, Stevenson wondered, “How can a judge turn a child into an adult? The judge must have magic powers.” So, late at night and very tired, he worked on a motion to treat his 14-year-old poor black male client to be tried as a wealthy privileged 70-year-old white male. He wrote a searing critique and went to bed. Woke up and realized: He’d hit Send.

Months later, he went to court, wondering what the judge would say. On the way there he met a janitor, who found out he was a lawyer. The janitor hugged him and said he was proud of him. Then Stevenson went into court, and the judge was furious. Inside the court, people were angry. “Angry that we were talking about race, and poverty, and inequality.”

The janitor had come in and sat behind him, and at recess a deputy demanded to know what a janitor was doing there. The janitor replied, “I came into this courtroom to tell this young man, ‘Keep your eyes on the prize, and hold on.’”

Today, Stevenson wants to tell us, “All of our survival is tied to the survival of everyone,” and we can not be fully evolved human beings until we care about justice for all and are truly willing to confront our difficult past.

But most of all, “I’ve come to tell you to keep your eyes on the prize, and hold on!”

TED is known as a place where standing ovations happen. But the response of the audience was beyond overwhelming. To a one they stood, and refused to sit down. An ovation that strong has simply never happend at TED before.