Attorneys General Respond to Juvenile Life Without Parole Ban

Weeks after the U.S. Supreme Court says juvenile murderers cannot automatically be sent to prison for life without the chance at parole, attorneys general, soon to be joined by courts, are laying down what may be influential alternative sentences.

The Supreme Court’s Miller v. Alabama decision in June 2012 invalidates mandatory sentencing laws in 28 states and federal court that send juveniles convicted of murder straight to life without parole. The court said juveniles are less mature, therefore less culpable, and entitled to present mitigating factors to a sentencing judge.

In Florida, where Miller may affect more than 200 people, Attorney General Pam Bondi acknowledges that some inmates are entitled to relief, but in an early case, her office argues that a replacement sentence is already set.

Down in the Florida panhandle, a Bay County jury in 2009 found Jose Gonzalez guilty of murdering a man the year before during a robbery, when the defendant was under 18.

Gonzalez’ 2012 petition for a writ of habeas corpus in north Florida’s First District Court of Appeal asks the court to determine if his term of incarceration is legal.

In response, the state wrote to the court that the proper remedy is a reversion “to the earlier constitutional sentence for a capital felony of life with the possibility of parole after 25 years.”

In other words, Bondi’s office argues that if Florida’s sentencing law is now invalid, Gonzalez should be subject to the piece of code that predated it: 25 years then the possibility of parole.

Florida decisions will be key, along with California, says advocate Dana Isaac, the director of the Project to End Juvenile Life Without Parole at the University of San Francisco School of Law. Even though each state sets its own response to Miller, “I think it’s very difficult not to look at what other states are doing,” she said, especially a look at those two because they have large caseloads.

In the same Gonzalez filing, Florida says Miller is retroactive in the state, if not by the high court’s ruling, then by Florida law.

But Michigan Attorney General Bill Schuette is aiming to pre-empt any retroactivity argument in his state’s 340 or so cases, by asking the Michigan’s highest court to “follow established court precedent” and declare that U.S. Supreme Court decisions on criminal justice processes are not retroactive.

"Hauling hundreds of crime victims and their families back into court to relive these horrific murders would be a terrible tragedy," said Schuette in a prepared statement.

In Iowa, 38 people are serving mandatory life without parole sentence for murders they committed when they were juveniles. When the Supreme Court invalidated such sentences, the governor commuted them to life with the chance of parole.

The Iowa Attorney General’s office is ready to defend the governor’s decision. It would not outline the advice it gave to the governor, citing attorney-client privilege, but released a statement reading: “The Governor’s office consulted with us on the legal issues. We’re prepared to defend the Governor’s action in court and any legal matters surrounding it. The state needs to do all it can within the confines of the U.S. Supreme Court decision to help protect public safety.”

There’s a risk in being among the first Miller defendants, according to Isaac. “If they rush in without precedent, they may get very long sentences,” she said.

But a Michigan court may be the first to accomplish a Miller resentencing, through no design of the defendant.

On Aug. 2 , the State of Michigan Court of Appeals, citing Miller, vacated the mandatory life without parole sentence of Quamain Leak, convicted for participating in a first degree murder at the age of 17.

Leak had filed the appeal in 2011 on grounds of ineffective trial council and other irregularities.

But Miller seems to have cut through any of that. “At oral arguments, the prosecution noted that the defendant was seventeen years old at the time he committed the offenses … Under the circumstances, the prosecutor acknowledged, and we agree, that defendant is entitled to resentencing under the principles articulated in Miller v. Alabama,” wrote the appeals court in its decision.

Now Leak is heading back to trial court for resentencing.

In the Wake of High Court Ruling, A Reprieve for Juvenile Lifers?

The U.S. Supreme Court’s recent decision banning mandatory life without parole for juvenile criminals gave inmates like Christine Lockheart a glimmer of hope.

In response to the Court’s ruling, the Iowa Court of Appeals earlier this month overturned Lockheart’s mandatory life sentence for a murder committed when she was 17 and ordered a judge to hold a new sentencing hearing.

But less than a week later, Iowa Gov. Terry Branstad commuted the sentences of all state prisoners serving mandatory life terms for crimes committed as juveniles, and instead gave them life with the possibility of parole after 60 years.

Lockheart’s lawyer says he plans to challenge Branstad’s order in court, arguing that it violates the Supreme Court’s decision in Miller v. Alabama. That ruling said that sentencing judges should consider the individual circumstances of crimes committed by juveniles, including “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

Lockheart’s case is among the first of what criminal justice experts say will be numerous and lengthy legal battles as courts and state legislatures across the country determine how to comply with the Supreme Court’s ruling — and what to do with the estimated more than 2,000 prisoners currently serving mandatory life sentences for crimes committed when they were under the age of 18.

“This is very clean at the wholesale level and very messy at the retail level,” said Mark Osler, a professor at the University of  St.Thomas Law School, in Saint Paul, Minn. “It’s very clear from 10,000 feet that children are different.”

Osler, who specializes in sentencing law, added:  “But with these 2,000 cases, it’s going to be pretty messy with a lot of different outcomes.”

Left Unanswered

Though the Court barred mandatory life sentences for juveniles, experts said it left unanswered a host of legal issues that could impact who is eligible for a new sentence and what rights they have.

It remains unclear whether the Court’s ruling is retroactive, whether prisoners who petition for a new sentence are entitled to a lawyer, and what standards should be used in handing down sentences for juveniles.

“I expect this will be bounced back up to the Supreme Court multiple times because all those questions have to be answered,” said Frank Bowman, a professor at the University of Missouri and a former federal prosecutor and special counsel to the U.S. Sentencing Commission.  “We will be litigating this for years.”

Alabama Solicitor General John Neiman: PHOTO: PBS

Twenty-eight states and the federal government mandate life without parole for some juveniles convicted of murder, according to briefs filed before the Supreme Court. At least one state, Alabama, asserts that the ruling is not retroactive and does not apply to most of the state’s current inmates, said John Neiman, Alabama’s Solicitor General, who presented his state’s arguments in Miller v Alabama before the Court, in an interview with The Crime Report.

Other state prosecutor’s offices are still considering the issue, which is sure to be contested in court.

Public interest attorneys in several states, including Arkansas and Florida, are just beginning an effort to find all the inmates who may be eligible for a new sentence and assign them lawyers.

Petitions for Resentencing

Prisoners in several states, including Iowa and Pennsylvania, have already filed petitions for resentencing. The two cases heard by the Supreme Court— Kuntrell Jackson in Arkansas, and Evan Miller in Alabama — also were sent back to the state courts for resentencing.

Evan Miller. PHOTO: Equal Justice initiative

But, in some states, there may be little courts can do until the legislature acts.

Many state statutes do not provide judges with a clear alternative sentence if mandatory life without parole is no longer available, making it unclear what sentences judges are legally able to impose,  according to Marsha Levick, a co-founder of the Juvenile Law Center in Philadelphia.

Other states that have done away with parole also may have to revise their laws, Osler said.

Scott Burns, the executive director of the National District Attorneys Association, which is advising states on how to comply with the decision, said legislators in all 28 states will consider alternative sentencing laws.

Resentencing could also involve lengthy reinvestigations of crimes, some of which are decades old, and the psychological and family histories of criminals.

Tyrone Jones, who was 16 in 1973 when he was arrested for the murder of Henry Harrison in Philadelphia, is among the first prisoners to petition for a new sentencing hearing.  Jones, who also claims he is innocent, was given a mandatory life sentence in 1975; he has been in prison for 37 years, his entire adult life.

In court papers filed in Philadelphia earlier this month, Jones’s lawyer asked for a new sentencing hearing and for access to prosecution records regarding Jones’s level of culpability and participation in the murder.

Jones’s behavior when he was 16 and his subsequent prison record could impact his sentence, said his attorney, Hayes Hunt. Jones initially confessed to shooting an unidentified boy while with a friend, Michael Long.  But Jones was arrested with a gun that did not match the murder weapon, according to court documents filed by his lawyers.

Kuntrell Jackson, PHOTO: Arkansas Department of Corrections

The charges against Long were dropped; and Long has since said Jones was not involved in the murder, according to the documents.

‘Forgotten Soul’

“We have this forgotten soul who’s been in prison for decades,” Hunt said. “I have to reconstruct this man’s history and try to figure out who he was the day he was arrested in 1973 as a 16 year old.”

A spokeswoman for the Philadelphia District Attorney’s Office declined to comment on Jones’s case, but said that resentencing should be available only for cases where the issue was raised on direct appeal, meaning it would not apply to the majority of the state’s inmates.

The Supreme Court did not bar all life without parole sentences for juveniles. Rather, it said that judges must take into account the individual circumstances of each case, and consider that children are less responsible for their actions and more capable of reform.

Justice Elena Kagan, writing for the Court, said life without parole should be “uncommon.”

“We say very glibly that kids are different, but the Court has gotten that message, and conveyed that message, loud and clear,” said Levick of the Juvenile Law Center.   “I hope courts will take that language the way it’s meant: kids should not be treated as if they were adults, because they’re not.”

Still, prosecutors and defense lawyers said they expect many current inmates will still receive a life sentence even if they get a new sentencing hearing.  Many judges, lawyers said, may not want to reduce the sentence of anyone convicted of a brutal murder.

In both of the cases heard by the Supreme Court, the defendants were 14 years old when they were arrested.  Kuntrell Jackson was convicted of murder for participating in a robbery of a video store in Arkansas during which an accomplice shot and killed the store clerk, Laurie Troup.

Evan Miller of Alabama and a friend robbed and killed Miller’s neighbor, 52-year-old Cole Cannon. Miller repeatedly hit Cannon with a baseball bat, according to court records, at one point placing a sheet over Cannon’s head and saying, "`I am God, I've come to take your life.'"

He and a friend later set fire to Cannon’s trailer.

‘He Should Never Get Out’

“He should never get out,” Candy Cheatham, Cannon’s daughter, told The Crime Report. “The rest of the world should worry if someone like Evan Miller ever has a chance to get out.  It would be a great injustice for him not to receive the same sentence.”

But the Supreme Court suggested that Miller’s background may warrant a lighter sentence.

“If ever a pathological background might have contributed to a 14-year-old’s commission of a crime, it is here,” the Court wrote. “Miller’s stepfather abused him; his alcoholic and drug-addicted mother neglected him; he had been in and out of foster care as a result; and he had tried to kill himself four times, the first when he should have been in kindergarten.”

Though the Court’s decision was limited, it reflects a broader change in how the legal system deals with underage criminals.

In a series of cases beginning in 2005, the Supreme Court has barred the death penalty for juveniles, banned life in prison for juveniles convicted of crimes other than homicide, and now banned mandatory life without parole sentences for juveniles.

“It is beginning to emerge that children have a constitutional right to be treated differently,” said Stephen Harper, a public defender in Miami.

The decision also opens up the possibility that the Court may consider cases challenging other types of mandatory minimum sentences and non-mandatory life without parole sentences for juveniles, lawyers said.

“We’re just at the beginning of where this is going to go,” said Levick.

Scott Michels is a New York City-based lawyer and a freelance writer for The Crime Report, the nation’s most comprehensive source of criminal justice news and resources.  This story was jointly commissioned by The Crime Report and the Juvenile Justice Information Exchange. Michels welcomes comments from readers.


PHOTO: Richard Ross

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.”

The High Court Should Give Juveniles the Chance to Prove They Have Changed

I suppose it was difficult to imagine Louis Perez changing course. He was only 14 years old when I met him in a probation camp, and yet, he seemed entrenched in the deepest, lethal absence of hope. Unable at that young age to transform his pain of abuse, abandonment and torture, he seemed set on a path doomed to transmit his pain forever.

Now, almost 20 years later, after considerable prison time and having been stuck in a desperate cycle of gang violence and drugs, Louis runs things for me at Homeboy Industries, the nation's largest gang rehab and re-entry program.

It shouldn't surprise us that children and teenagers aren't the same people once they become adults.

Kids grow and have an infinite capacity for redemption. They change and respond to positive attention and are able, ultimately, to inhabit the truth of who they are: exactly what God intended when he made them.

In recent years, the United States Supreme Court has recognized adolescents' enormous capacity for change. Every parent knows the treacherous waters of their kid's adolescence: immaturity, testing, peer pressure and a susceptibility to negative influences. If you add to this "normal" phase abandonment, torture, abuse and violence, then what a teenager has to carry becomes even more of a burden. The court struck down the death penalty for juveniles and life imprisonment without parole sentences for most juvenile offenses because it recognized juveniles as less morally responsible for their wrongdoing than adult offenders. But every parent knows this.

The court sees that a juvenile has this great capacity to be transformed, and so rehabilitation is not just hoped for and possible, but it is what adults have come to expect from teenagers -- they will move beyond this immature, sometimes alarming moment into a fully mature adult.

Only a fool would have tried to predict the full trajectory of Louis' troubled youth. It turned out he was able to become a productive citizen, law-abiding member of the community, father, husband and a mentor at Homeboy Industries to the younger "homies" trying to imagine their futures instead of planning their funerals.

Starting Tuesday, the court will hear oral arguments in Jackson v. Hobbs and Miller v. Alabama, two cases that ask the court to decide whether it is constitutional to sentence children as young as 14 to die in prison. Anyone familiar with kids -- parents, teachers and others who work with them -- knows that a 14-year-old is irresponsible, immature, impulsive and vulnerable in ways adults simply are not. Change is the task of every teenager. We don't just nurture that change, but we honor the capacity and bright promise of its certainty.

Louis is no longer that "knucklehead kid" he was at 14. He has moved assuredly to a place of extraordinary healing and a stance of generative goodness and wholeness that would not have seemed possible at 14. He was held accountable for his actions, for sure, but what a waste of life, time and resources, if he had been condemned at 14 to a life without the possibility of hope and redemption.

We measure the health of our society in exactly those ways we treat our children and seek to shape them into healthy adults. For those kids who have found themselves gravitating to trouble, we offer hope, guidance and the endless possibility of rehabilitation. We remain the only country on the planet that sentences children to die in prison. We all agree that we are better than that.


This op-ed originally appeared in the National Catholic Reporter

Life Without Parole for Juveniles: A Brief Look at the Issues

Tuesday the Supreme Court will take up the issue of life sentences without parole (LWOP) for juveniles convicted of murder. In 2010, the nation’s high court ruled juvenile LWOP sentences were unconstitutional in non-homicide crimes. Now, advocates are hopeful the court will extend the same protection to all juveniles, regardless of the offense.

Pointing to research indicating that brains continue to develop into the early 20s, some groups, including the American Bar Association, argue juveniles are uniquely suited to rehabilitation and that a life sentence without the possibility of parole is a violation of the Eighth and 14th Amendments’ prohibition against cruel and unusual punishments.

Juvenile LWOP sentences are, in fact, very rare, especially for 14-year-olds, the age of both juveniles sentenced in the two cases before the court. Jennifer Jenkins, President of the National Organization for Victims of Juvenile Lifers, a group advocating on behalf of crime victims and their families, describes the cases as 'outliers' and says that's precisely why the justices should uphold the constitutionality of juvenile LWOP sentences. NOVJL submitted an amicus brief to the court reflecting that position.

"...[T]hese cases currently before the Supreme Court represent efforts by advocates for the offenders to go after the 'outliers' in this issue," Jenkins wrote in a statement to JJIE. "Ninety percent of all cases of juveniles tried and sentenced to natural life as adults for their exceptionally heinous crimes are 16 and 17-years-old."

But Randee Waldman, director of the Barton Juvenile Defender Clinic at Emory University School of Law, in Atlanta believes the sentence is cruel and unusual because of how rarely it is applied.

“There are very few 13 or 14-year-olds serving life without parole,” she said. “It’s disproportionately used. That’s why it is unusual.”

Human rights watchdogs are taking an international view of the issue because the United States is one of only two countries in the world, along with Somalia, that has not signed the United Nations’ Convention on the Rights of the Child that prohibits juvenile LWOP.

“At the most basic level the sentence of LWOP for those convicted under 18 years old… is clearly in violation of international law,” Elizabeth Calvin, Senior Advocate for Human Rights Watch and LWOP Coordinator, told JJIE in July 2011. “I think we’re at a point in time where the community doesn’t think over-incarceration is the way to go.”

Amnesty International USA is also seeking a ruling from the court striking down juvenile LWOP sentences. As part of their awareness campaign the group produced an infographic highlighting some of the demographics of juvenile LWOP sentencing.

Courtesy Amnesty International USA.

The Humane Options For a Teen Killer in Ohio

John Last 1I have known hundreds of murderers, and befriended many of them. Most were teens or young adults when they committed their crimes. Some killed several people, some killed random victims, and some were mentally ill. Others killed family members or robbery victims. Some of them have been released from prison, usually after 20 or more years. None that I have known have killed anyone else.

I was reflecting on this while reading about 17-yeaar-old J.T. Lane, the Chardon, Ohio, youth who allegedly killed three of his classmates and wounded two others last week while they sat eating lunch in their high school cafeteria. Those killed (seen in this gallery) were Daniel Parmerter, 16, Demetrius Hewlin, 16, and Russell King, 17. The wounded were Nick Walczak, 17, who remains hospitalized, and Joy Rickers, 18, who was released from the hospital shortly after the shooting.

The suffering generated by these events is beyond reckoning, and talk has begun about what should happen to Lane and what is a just response to this tragedy. He has reportedly confessed to the shooting, and in all likelihood his case will be transferred to the adult court, where he will be eligible for the maximum sentence of life without parole. He, like all juveniles, is ineligible for the death penalty.

The Associated Press  reported that the Geauga County prosecutor, David Joyce, characterized Lane as “not well.” Mandatory transfer to adult court will happen if Joyce can show probable cause, which is nearly a given in a case with so many witnesses and a reported confession. The release of court records has shown that Lane had some brushes with the law. Additionally, both of his parents have been convicted of domestic abuse (against one another), and the father was imprisoned.

Dramatic and highly publicized crimes like this point out a big deficiency in the country’s approach to juvenile justice. Obviously, Lane must be incarcerated, not only to keep society safe, but to mete the justice that cases like these cry out for. The options are few. If he is tried as a juvenile he would be incarcerated for only a few years. It is unlikely that he will be ready for society in such a short time. Whatever rehabilitation and treatment he needs to make him safe again will take longer than the three or so years he could remain in juvenile custody. Also, such a short time is unlikely to satisfy the need for justice felt by his victims.

The alternative, to try him as an adult, also has problems. First, whatever the law says, he is not an adult, and to face adult consequences for his actions is illogical and even wrong. There is a good chance that he can be redeemed, given the proper treatment. As an adult, he is likely to receive life without parole. Undoubtedly, some see this as just. I do not. I imagine him as an old man, dying in a prison hospice in 2082, and I feel no satisfaction with this outcome either. It seems such a waste, not only of money but of human potential as well. In that far away year he will surely be a different person, far different than the young man he is now, the one who is “not well.”

Potentially he can receive a life sentence but maintain the possibility of parole. This, to me, seems the best course. If he remains a danger, or if it is determined that justice demands it, he can remain in prison until he dies. The decision can be made by those best equipped to make it, in the future. If, however, after some number of years, he is deemed to be no longer a threat to society he can be released. That is difficult to accept now, when the crime is so fresh and the suffering is just beginning, but it is a foreseeable future that is based on mercy and hope, and backed up by research that shows he will most likely be amenable to rehabilitative efforts.

In prison my friends and I judged by a particular criterion. When we talked about whether or not someone should be paroled we would ask a simple question. Would we want the person to live next door to our loved ones? If I apply this toT.J. Lanetoday then the answer is no. In a decade or so I will be willing to ask the question again. I’d like to see him get that chance.

Advocates Hopeful, Want Supreme Court to Reject Life Without Parole for Juveniles

The Supreme Court in 2010.

As the U.S. Supreme Court prepares to hear oral arguments in the cases of two 14-year-olds sentenced to spend the rest of their lives in prison, many advocates and attorneys predict a majority of the justices will decide that life sentences for juveniles without the possibility of parole amounts to cruel and unusual punishment.

Children are “categorically different” from adults, says Andrea Dennis, associate professor at the University of Georgia School of Law, and she wants to see the Court acknowledge that.

“At a minimum,” she said, “I hope the court would reject mandatory juvenile LWOP [life without parole] sentences for all homicide crimes and require juries be allowed to consider the defendant’s youth and other factors as mitigation.”

In both cases, Jackson v. Hobbs and Miller v. Alabama, the sentences were mandatory regardless of the defendant’s age or circumstances and the judges had no discretion in sentencing.

In Jackson, a 14-year-old was convicted as an accomplice to the murder of a store clerk. He did not have a gun or pull the trigger. Miller involved a 14-year-old convicted of murder.

“It’s particularly troublesome when you can’t individualize the results,” said attorney Randee Waldman, director of the Barton Juvenile Defender Clinic at Emory University School of Law, in Atlanta. “Nobody is looking at the kids themselves.” But, she says she is “hopeful for a positive outcome” in the Supreme Court.

The appeal relies on previous decisions by the court, Roper v. Simmons and Graham v. Florida, which recognize children as developmentally different from adults. Advocates argue children are more likely to be rehabilitated because their brains do not fully develop until their early-20s.

“If children commit crimes they should be punished, but the sentence should reflect the fact that they are still developing,” said Melanie Velez, an attorney at the Southern Center for Human Rights (SCHR) in Atlanta.

But the difficulty for the courts has always been in determining when a child finishes developing and reaches maturity. In an article published in the Houston Law Review attorney and law professor Jonathan Todres writes about how society and the law tackle the question by dividing every life into two parts — childhood and adulthood.

“In reality,” Todres writes, “an individual does not cross this divide neatly at one point in time into adulthood and self-governance, but rather the law allows individuals to cross into adulthood for select activities while holding them back with respect to others,” such as voting or financial independence.

When the first juvenile courts were established in the early 20th century, he writes, “they were based on the recognition that children are different, have reduced culpability, and have greater likelihood of successful reform.”

Early on, juvenile court judges developed a system that was rehabilitative in nature, not punitive, but a rise in juvenile crime in the 1980s and 1990s lead to tougher measures and more legislation allowing children to be tried as adults for serious crimes.

Recently, the trend has started to reverse. In 2005, in the case of Roper v. Simmons, the Supreme Court ruled the death sentence was unconstitutional for juveniles, overturning a previous ruling allowing capital punishment for adolescents 16 and older. In 2010, the Court went further in Graham v. Florida, holding juveniles were only subject to life imprisonment in cases involving homicide.

“The inadequacy of penological theory to justify life without parole sentences for juvenile nonhomicide offenders, the limited culpability of such offenders, and the severity of these sentences all lead the Court to conclude that the sentencing practice at issue is cruel and unusual,” Justice Anthony Kennedy writes in the majority opinion for Graham v. Florida.

According to Velez, part of what makes a life sentence for children cruel and unusual are the prisons themselves. She says the Southern Center for Human Rights receives hundreds of letters about juveniles in prison every year.

“So much of what we hear about are the conditions in the prison,” she said. “Prisons are violent places and for individuals to serve life sentences is incredibly harsh. For children who commit crimes it would subject them to a very difficult life.”

But Waldman believes the sentence is cruel and unusual because of how rarely it is applied.

“There are very few 13 or 14-year-olds serving life without parole,” she said. “It’s disproportionately used. That’s why it is unusual.”

Juvenile Life Without Parole At Issue in Case Before U.S. Supreme Court

In March, the U.S. Supreme Court will hear oral arguments in two cases that could determine whether life sentences without parole for juvenile killers is unconstitutional cruel and unusual punishment. Attorneys for the two 14-year-olds involved in the cases will argue forensic evidence shows adolescent brains are not fully developed and that teenagers consequently take too many risks, according to The Los Angeles Times.

"Adolescents, because of their immaturity, should not be deemed as culpable as adults," Temple University psychology professor Laurence Steinberg, who spearheaded the research, said. "But they also are not innocent children whose crimes should be excused."

The high court abolished the death penalty for juveniles in 2005 and ruled in 2010 that life sentences without parole for juveniles were unconstitutional except in cases of homicide.

A ruling by the court may not mean release for many juveniles currently serving life without parole. According to The Times, many would not be eligible for parole until they have served 25 years and even then they would need to “show near-unblemished prison records, true remorse and proof they can function in society.”

Photo by U.S. Supreme Court

California’s ‘Second Chance’ Bill Offers Hope for LWOP Sentenced Youth

California's Senate Bill 9A new proposal in California may provide a second chance for the roughly 227 inmates serving the sentence of life without parole for crimes committed before their 18th birthday.

Under California’s Senate Bill 9, inmates sentenced to life without parole (LWOP) for crimes committed as a juvenile have the option to submit a petition for consideration of a new sentence after serving 15 years. If approved by the review court an LWOP sentence could be reduced to a stint of 25 years to life, a prison term that comes with the possibility of parole.

“The neuroscience is clear – brain maturation continues well through adolescence and thus impulse control, planning, and critical thinking skills are not yet fully developed,” state Sen. Leland Yee (D-San Francisco), a child psychologist and author of the bill, said through his office. “SB 9 reflects that science and provides the opportunity for compassion and rehabilitation that we should exercise with minors. SB 9 is not a get-out-of-jail-free card; it is an incredibly modest proposal that respects victims, international law, and the fact that children have a greater capacity for rehabilitation than adults.”

Patricia Soung, staff attorney at the National Center for Youth Law (NCYL) agreed, saying, “this is a modest bill. It holds people accountable, but it also recognizes that at ages 15, 16, 17, that they have a capacity to change.”

California Senator Leland Yee (D-San Francisco)
Senator Leland Yee (D-San Francisco), author of SB 9, is also a child psychologist.

A coalition of youth advocate organizations, including the NCYLNational and Human Rights Watch, have supported the bill along with a diverse following of child advocates, faith-based communities, mental health experts and others.

“At the most basic level the sentence of LWOP for those convicted under 18 years old… is clearly in violation of international law,” said Elizabeth Calvin, Senior Advocate for Human Rights Watch and LWOP Coordinator. “I think we’re at a point in time where the community doesn’t think over-incarceration is the way to go.”

Outside the United States just seven people are known to be serving life without parole for crimes committed while they were still a juvenile, according to a Human Rights Watch report. By comparison the United States currently houses more than 2,300 such inmates with no chance of parole.

A group of criminal justice organizations in the state have raised opposition to the new measure. In a letter to lawmakers the California District Attorneys Association raised concerns about the specific sentence recall process:

“Under one scenario contemplated by the measure, a petitioner found by the court to have been under the age of 18 at the time of the offense that resulted in his or her LWOP sentence could qualify for a resentencing hearing solely on the basis that the petitioner has performed acts that tend to indicate rehabilitation, or the potential for rehabilitation, or has shown evidence of remorse. Creating the potential for an LWOP sentence to be reduced by setting such a low standard for eligibility is an affront to justice and disrespectful of the victims of these crimes.”

Ten other organizations, including the Crime Victims Action Alliance and the California Association of Highway Patrolmen, have opposed the bill along with “one private individual” according to Assembly Bill Analysis records.

Under the current law judges and prosecutors have the discretion to pursue LWOP cases against juveniles, but a number of such instances have called their judgment into question. Some experts also point out that the harshness of sentences can simply come down to local jurisdiction.

“In California, the decision to impose an LWOP sentence on a youth is significantly influenced by which county they reside in,” said Selena Teji, Communications Specialist with the Center for Juvenile and Criminal Justice. “A youth is more likely to receive harsher punishment if they live in Kern County, than if they had committed that same crime in San Francisco County. It’s a system of justice by geography.”

Other supporters of the legislation also say the measure could correct racial disparities that have become apparent in the last few decades.

"We're talking about children, especially children of color, who are sentenced to die in prison,” Sumayyah Waheed, director of the Books Not Bars program at the Ella Baker Center in Oakland. “It's bad policy, immoral, and it's way past time for California to allow youth one tiny step toward redemption.  California can and must do better by its children."

"When I Die, They'll Take Me Home" | A report by Human Rights Watch
"When I Die, They'll Take Me Home"

California’s law permitting a life without parole sentence for juveniles was enacted in 1990. Since that time African Americans in the state have received the LWOP sentence at a rate of 18 times that of whites, earning the state the worst record in the nation for racial disparity in LWOP sentencing.

According to the Human Rights Watch report “When I Die, They’ll Send Me Home” life without parole isn’t reserved for those youth that committed the most heinous crimes. Forty-five percent of juveniles sentenced to LWOP in California were sentenced for involvement in a murder they didn’t actually commit. Many were convicted of murder charges for aiding and abetting a murder or getting involved in another felony crime, such as a robbery, when a murder took place. Nationally, roughly 59 percent of juveniles sentenced to LWOP had no prior offenses.

California’s SB 9 was approved by the Assembly Public Safety Committee with a 5-2 vote in early July. Next the bill will continue to the Assembly Appropriation Committee before being put to a vote on the floor of the Assembly. The bill cleared the Senate in June with a 21-16 vote.

“We’re pretty optimistic,” said Calvin. “The bill could still fail, but we’re hopeful.”

In 2009 a similar bill failed to clear the Assembly by two votes. SB 9 likely won’t come to a vote until late August or early September, following the Assembly’s summer recess.



Supporting Opposing
___ ___
Human Rights Watch, Children's Rights Division (Sponsor)
Advancement Project
Alliance for a Better District 6
American Civil Liberties Union
American Federation of State, County and Municipal Employees
American Probation and Parole Association
American Psychiatric Association
Bar Association of San Francisco
Books Not Bars (An Ella Baker Center for Human Rights Campaign)
Buddhist Peace Fellowship
California Attorneys for Criminal Justice
California Catholic Conference, Inc.
California Church Impact
California Coalition for Women Prisoners
California Committees United Institute
California Mental Health Directors Association
California National Organization for Women
California Psychiatric Association
California Public Defenders Association
California-Nevada Annual Conference of the United Methodist Church
Californians United for a Responsible Budget
Campaign for the Fair Sentencing of Youth
Center for Global Law & Justice at University of San Francisco
School of Law
Center for Juvenile Law and Policy at Loyola Law School
Child Welfare League of America
Children's Advocacy Institute
Children's Defense Fund
Disability Rights California
Disability Rights Legal Center
District Attorney, City and County of San Francisco
Equal Justice Initiative
Everychild Foundation
Feminist Majority & National Center for Women and Policing
Friends Committee on Legislation of California
Healing Justice Coalition
Human Rights Advocates
International Community Corrections Association
John Burton Foundation for Children Without Homes
Just Detention International
Justice Now
Justice Policy Institute
Juvenile Law Center
Law Offices of the Los Angeles County Alternate Public Defender
Legal Services for Children
Legal Services for Prisoners with Children
Life Support Alliance
Los Angeles County Democratic Party
Lutheran Office of Public Policy - California
NAACP Legal Defense and Education Fund, Inc.
National African American Drug Policy Coalition, Inc.
National Alliance on Mental Illness California
National Center for Lesbian Rights
National Center for Youth Law
Office of Restorative Justice of the Archdiocese of Los Angeles
Pacific Juvenile Defender Center
Post-Conviction Law Justice Project at University of Southern
California Gould School of Law
Prison Fellowship
Prison Law Office
Progressive Christians Uniting
Public Counsel Law Center
Sacramento Lorenzo Patiflo League of United Latin American
Citizens Council
Sisters of St. Joseph of Orange
Southern Poverty Law Center
St. Mark Presbyterian Church, Peace and Justice Commission
The Sentencing Project
United Church of Christ
W. Haywood Burns Institute
Youth Justice Coalition
Youth Law Center
1,879 private individuals
California Association of Highway Patrolmen
California District Attorneys Association
California Narcotic Officers' Association
California Police Chiefs Association
California State Sheriffs Association
Crime Victims Action Alliance
Crime Victims United of California
Los Angeles County District Attorney's Office
Los Angeles Police Protective League
Peace Officers Research Association of California
Sacramento County District Attorney's Office
One private individual

Source: SB 9 Bill Analysis by the Assembly Committee on Public Safety. July 5, 2011.


Sonya Ziaja: Death-in-Prison Sentences Constitutional in Wisconsin, at Least for Now

The Supreme Court of Wisconsin has just ruled that it's constitutional to sentence juveniles to life imprisonment without the possibility of parole for intentional homicide. The defendant in that case, Omer Ninham, was 14 years old when he was charged with killing a 13-year-old boy. The case will very likely be appealed to the U.S. Supreme Court.

The Supreme Court hasn't yet decided whether sentencing a juvenile to “death in prison” is cruel and unusual punishment. It has, however, indicated that how we sentence juveniles has to be different from how we sentence adults. In both Roper v. Simmons and Graham v. Florida the Court relied on scientific evidence about the adolescent brain. Ultimately that evidence allowed the Court to conclude that extreme sentences—respectively, death penalty in cases of homicide and life imprisonment in cases short of homicide—violate the Eigth Amendment's prohibition against cruel and unusual punishment.

In a departure from the U.S. Supreme Court's approach to neuroscience and sentencing, the majority of the Wisconsin Supreme Court did not find scientific studies sufficiently compelling to alter Omer Ninham's sentence. The dissenting judges, however, relied on science in their discussion of the constitutionality of life sentences for children. They reasoned that imposing a death-in-prison sentence on a 14-year-old child is unconstitutional, considering children's altered capacity for both culpability and rehabilitation.

While the dissenting judges were outnumbered in Wisconsin, nationally the idea that criminal law needs to reform in light of new scientific findings is gaining ground. Earlier this month, legal scholars and scientists convened for a conference on “Adolescent Brains and Juvenile Justice” in Phoenix. There is ever-mounting scholarship about the developing brain's ability to make decisions and change that supports alternative sentencing schemes for adolescents. And last month, the Equal Justice Initiative appealed two cases, involving death-in-prison sentences for 14-year-olds, to the U.S. Supreme Court.

We don't have the Supreme Court's final say on death-in-prison sentence yet, but it looks like Wisconsin's decision might not last long.


The above story is reprinted with permission from Reclaiming Futures, a national initiative working to improve alcohol and drug treatment outcomes for youth in the juvenile justice system.