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.”  

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Juveniles Convicted of Homicides: Will The U.S. Supreme Court Take the Next Logical Step?

WASHINGTON, D.C. --  “Why is life without parole categorically different? How about 50, 60, 70 years?  As close to death as possible? How are we to know where to draw those lines?”  Justice Antonin Scalia was first out of the box to fire questions at defendant’s attorney Bryan Stevenson.

However, on the first day of Spring in the city of cherry blossoms, all eyes and ears within the U.S. Supreme Court were focused on Justice Anthony Kennedy. Would he repeat the message of hope for young people when he so eloquently wrote for the majority two years earlier in Graham v. Florida: “Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” (Before Graham, the Court’s decision in Roper v. Simmons had ruled the death penalty for juveniles unconstitutional.)

Relying upon scientific evidence that kids are different from adults because their brains hadn’t fully developed and thus lacked impulse control and judgment, the Graham decision held life without parole sentences for juveniles convicted of crimes other than homicides to be cruel and unusual punishment, thus unconstitutional. Would the Court reach the same holding for juveniles convicted of homicides, or will “death is different” trump “kids are different”?

In a nutshell, the eight justices who asked questions on Tuesday struggled with all kinds of criminal justice concepts:  mandatory sentences, transfers to adult court, minimum age limits, individualized sentencing, mitigation evidence and society’s need for punishment and retribution for juveniles who commit murders.

Defendant’s attorney Bryan Stevenson, the executive director of the Equal Justice Initiative, led with his best argument by trying to build upon the momentum of Graham and Roper saying that “deficits in maturity, judgment and decision making found in juveniles are not crime specific.”

But Justice Kennedy seemed reserved and somewhat muted, even when he focused on the “mandatory” aspect of most states’ life without parole statutes for aggravated murders?

“What’s a trial judge supposed to do?” he questioned. “Bring in social scientists or stories of rehabilitation?” He asked both sides – Stevenson and attorneys for the states of Alabama and Arkansas --  what they were arguing for: a categorical ban on life without parole sentencing for juveniles, or an end to the “mandatory” requirement, giving the trial court discretion.

Justices John Roberts and Samuel Alito seemed focused on the concepts of a national consensus, as 39 states utilized the sentence for juveniles and thousands of juveniles convicted of murder were imprisoned across the country. Justice Alito also added that “I’m not sure of the cruel and unusual point, but rather it might be a due process argument, as the defense can’t point out mitigating factors if it’s a mandatory sentence.”  Justice Roberts also found a “state of mind” argument for juveniles, whereby juries will look at the requisite intent, and may not convict of murder” but a lesser crime.

Justice Sonia Sotomayor saw differences between the Miller and Jackson defendants. (Miller, high on drugs and alcohol, started a house fire that ultimately killed his neighbor. Jackson, who’d just turned 14 and also grew up in a gang-ridden neighborhood, was convicted under a “felony murder” theory as he never touched the firearm used to kill the store clerk during a robbery.) “Not every juvenile is equal and not every murder is equal,” she said, summing up both sides of today’s argument.

Justice Stephen Bryer worried aloud about minimum age: “Is there no constitution minimum age for life without parole sentencing?  Can this happen at 10?  At eight?  Is it totally up to the states?” Justice Scalia jumped in again: “What is the minimum? Do we just pluck age out of the air? Is it the age of reason? If you say nine, 10 or 12, I’ll say why not 14.”

I attended the oral argument as one of a dozen retired juvenile judges who signed on to an Amicus Curiae brief in support of the defendants Evan Miller and Kuntrell Jackson in cases arising out of Alabama and Arkansas, respectively. I cheered the earlier Graham decision and hoped its rationale would carry forward in the Miller and Jackson cases.

But, I left the Court today convinced that the decision was not going to be as clear cut as Roper or Graham, but hoped, as an amici, that mandatory life without parole sentences for juveniles would be stuck down and that the Court just might tackle the difficult task of setting minimum age exceptions.


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.