Arizona, Other States Need Resentencing Guidelines for JLWOP Youth

The current law of the land prohibits the use of mandatory sentences of life without the possibility of parole (LWOP) for juvenile offenders due to Miller v. Alabama. That case’s standards also apply to offenders previously given natural life sentences for homicide offenses because of the Supreme Court’s ruling in Montgomery v. Louisiana. It is unclear, however, how these important changes in law will translate into actual practices.

Some of the practical challenges associated with these changes in law pertain to the interpretation of specific standards governing juvenile sentencing and release decision-making processes, e.g., transient immaturity, irreparable corruption and meaningful opportunities for release.

These standards address important principles identified by the Supreme Court in support of its reasoning as to why sentencing juveniles to life requires different considerations from adults: a) juveniles have diminished culpability because of their developmental and neurological immaturity; b) juveniles have more of a capacity for change than adults. Yet minimal attention has been devoted in Arizona toward providing decision-making authorities with guidelines for implementing these special juvenile considerations.

Twenty-nine states had life sentences for juveniles without the opportunity for parole when the Miller case was decided. Arizona was one of those states, so the 34 juveniles given LWOP sentences before the Miller decision need to be resentenced.

Arizona did not commute its juvenile natural life sentences to indeterminate-life terms of imprisonment as did 17 other jurisdictions. As a consequence, the courts in Arizona must implement the individualized sentencing process prescribed in Miller when the 34 become eligible for resentencing.

In the Miller decision, the court was not banning life sentence for juvenile offenders, but equated a life sentence with a death sentence, which means life sentences for juveniles now require the kinds of individualized determinations that are required for death sentences. However, a number of legal scholars have questioned whether Arizona and other states will implement the intent and spirit of the standards governing these individualized sentencing processes.

The legal officials who will participate in these resentencing and future sentencing procedures for juveniles convicted of homicide offenses are expected to take into account whether the offense reflected the offender’s transient immaturity or the juvenile’s irreparable corruption. While many expert witnesses and other consulting professionals are aware of the contributions of immaturity to various forms of behavior, there is a lack of credible evidence in the scientific literature on how to make valid recommendations about whether or not a juvenile is irreparably depraved or unlikely to change. As a consequence, lawyers in Arizona and other jurisdictions are struggling with how to develop effective strategies for presenting evidence to dispute claims of irreparable corruption.

The Miller decision also has implications for how parole boards and other releasing authorities insure that juveniles are afforded meaningful opportunities for release. In order to address this new legal requirement, some states have developed specialized criteria for guiding releasing authorities in the implementation of Miller requirements.

Thus far, Arizona has not followed the lead of California and other jurisdictions that modified their parole procedures and criteria for determining a juvenile lifer’s suitability for release. Arizona has 74 juveniles who were sentenced to 25 years to life. They will be eligible for release by the Arizona Board of Executive Clemency under Miller, but not all of them will have access to legal counsel to assist them in making a case of their suitability for release. The availability of legal counsel in these parole processes also will vary from state to state.

In Arizona, the Arizona Justice Project is a nonprofit group of lawyers and volunteers who are developing strategies in conjunction with the Sandra Day O’Connor Post-Conviction Law Clinic and faculty and students from the Office of Offender Diversion and Sentencing Solutions (OODSS) in the School of Social Work at Arizona State University to assist inmates seeking release pursuant to Miller requirements. The Arizona Justice Project “reviews and assists in cases of actual innocence or cases in which a manifest injustice has occurred.”

The pilot project with the OODSS was developed to assist lawyers working with the wrongly convicted in helping them address their reentry concerns. The student social workers in this pilot program not only provide supportive services to inmates experiencing reentry difficulties, but also assist inmates at their release hearings by presenting responsive release plans that address relevant risks and needs. This strategy, employed by the Arizona Justice Project for collaborating with faculty and students from the School of Social Work, is an interim solution to a pressing problem.

In 2018, the number of inmates in Arizona who will become eligible for consideration for release will begin to exceed the capacity of the pilot project. This project and other legal assistance programs serving these offenders will have to make difficult decisions in selecting cases for their assistance. This is unfortunate because the release planning provided by the reentry team has helped assuage a number of concerns from the defense community about releasing inmates who were disconnected from family and other relevant supports needed for a successful reintegration in society. Clearly, advocates in Arizona and other jurisdictions need to push for funding of this and other kinds of initiatives to work on the translation of Miller principles into meaningful opportunities for release of juvenile lifers.

The pilot project has already produced positive outcomes in addressing reentry and release planning issues. In addition, it is demonstrating the importance of promoting similar forms of interprofessional training with a focus on principles of holistic defense in sentencing juveniles from indigent backgrounds to a LWOP sentence. Indeed, similar interprofessional training programs are needed for preparing social workers and lawyers in the sentencing of juveniles in states that have maintained LWOP sentences for irreparably corrupt youth.

Thus far, the federal government and most states have not identified special funding for the purposes of training releasing authorities, lawyers, judges and other professionals in how to develop effective strategies for responding to Miller requirements. An equally important concern is in the future sentencing of juveniles convicted of homicide offenses. For these youth, they deserve to have their judges have clear guidelines for interpreting Miller standards. These youth also should have public defenders and mitigation specialists who have access to the kinds of training and supports currently available to mitigation professionals in capital cases.

The U.S. Supreme Court is requiring that given the seriousness of LWOP sentences that practitioners must connect the seriousness of a youth’s offense to special circumstances of youth. In order to avoid claims of ineffective assistance of counsel in these matters, the juvenile justice community must take affirmative steps to make sure that lawyers and mitigation specialists are prepared to develop and present evidence of “transient immaturity” in making a case for leniency when youth are convicted of heinous offenses.

José B. Ashford is a professor of social work and doctoral program in sociology. He is also the director of the Office of Offender Diversion and Sentencing Solutions and of the graduate certificate on criminal sentencing and sentencing advocacy. He is an affiliate faculty member in the schools of Criminology and Criminal Justice, Program on Law and Behavioral Science, and School of Justice and Social Inquiry.

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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Californians Lean Toward Eliminating Youth Prisons in New Survey

LOS ANGELES — California’s juvenile prisons have long had a poor reputation as mere stops on the way to grown-up prisons, overcrowded places where reform or rehabilitation were rarely achieved.

That bad rep might help explain why most Californians voice some support for closing youth prisons, according to a recent survey commissioned by the California Endowment, a private health foundation.

A majority of respondents want to close juvenile corrections facilities on those terms, with 22 percent voicing strong support and 39 percent saying they “somewhat support” closures. Only 13 percent were strongly opposed to the idea, while 20 percent remained “somewhat opposed.”

Instead of feeding teens into a system that exacerbates trauma and harm, we need to offer meaningful alternatives, Democratic Sen. Holly J. Mitchell said.

“We need to get frank about the overpolicing in certain communities and the perceptions that black and brown kids are more violent and less deserving, and how that impacts their lives,” she said. “In some cases, the pendulum has swung way too far, to where kids’ typical adolescent behaviors have been criminalized.”

Dr. Robert K. Ross, president and CEO of the California Endowment, a private health foundation that commissioned the survey, praised Californians in a statement for understanding “what the research clearly shows: incarcerating young people is a failed strategy that must be replaced with what works” by shifting “tax dollars from punishment to prevention.”

Between June 19 and 23, researchers conducted an online survey and collected responses from 1,042 California adults. The study, which set quotas for respondents to ensure a “representative, demographically balanced sample,” found little difference along lines of gender, age, ethnicity or political party. In a rare moment of bipartisan agreement: Sixty-seven percent of Democrats and 50 percent of Republicans voiced some support for closing youth prisons, with 47 percent of GOP respondents opposed and others declining response.  

Across the board, more people supported closing juvenile prisons — to the tune of five to 10 percentage points — after hearing about their high costs, some of the reasons behind incarcerations and the racial disparities in the system.

California spends more than $1 billion a year on its youth prison system — one of the nation’s largest — and operates more than 125 state and county lockups, according to the Endowment’s report. Of the 6,000 young people currently locked up, about three-fourths have been found guilty of nonviolent offenses such as theft, vandalism or even running away from home.

About 80 percent of incarcerated youth are black or Latino, according to the report. By comparison, about 57 percent of California youth were black or Latino in 2016, according to the census.

That overrepresentation of youth of color in our juvenile prisons reflects the troubling racial disparity that is seen in the adult prison population, too — a disparity that experts increasingly believe is a result of persistent biases that are present in modern policing, and date back to slavery.

Legislators are troubled by those parallels, and the way adolescents are facing adult consequences for what too-often amounts to childhood indiscretions.

A recent study from experts at the Georgetown Law Center on Poverty and Inequality found that the problem of biases in perceptions are particularly pronounced for black girls, who are viewed by adults as “less innocent and more adult-like than their white peers” when they are 5 to 14 years old. The researchers found that this characterization “may contribute to more punitive exercise of discretion by those in positions of authority, greater use of force, and harsher penalties.

Mitchell and Sen. Ricardo Lara, a Democrat, filed a package of bills this past spring that intend to divert children from landing in juvenile detention facilities, including a provision that would bar kids under the age of 12 from being sent to juvenile prisons, and a mandate that anyone under age 18 speak to an attorney before waiving his or her rights in police interviews. Another bill in the package makes California law reflect the U.S. Supreme Court’s ruling in Miller v. Alabama and bars minors from being sentenced to life without parole.

Although that last bill is rooted in a precedent set by the highest court in the U.S., Mitchell says, like most criminal justice proposals, her legislation faces an uphill battle with advocates for law enforcement and district attorneys in Sacramento. One of the bills in the package has been signed into law; the others are still in the mix.

Mitchell and Lara also want to crack down on what’s called a debt trap in the juvenile justice system — court and detention fees. The Juvenile Law Center, a public interest law firm, says that too often, a family’s inability to pay these fees can push the child deeper into the system. “Racially disproportionate treatment in the system leaves people of color with significantly more criminal justice debt, including burdensome administrative fees,” according to a University of California at Berkeley study.

In California, juvenile corrections have faced reform efforts for years. In 2003, advocates brought a lawsuit (Farrell v. Cate) alleging unsafe overcrowding and the rise of gangs and violence within facilities, among other problems. A consent decree was issued in late 2004 to require state juvenile corrections officials to improve safety, staff training and access to mental health, education and religious services. In 2007, Gov. Arnold Schwarzenegger signed reform legislation that barred low-level offenders from being committed to the state system and offered county probation systems more funding to keep more offenders local.

In the years since, Gov. Jerry Brown has called for California to become the first state to entirely eliminate state-run prisons for juvenile offenders. After years of closures, the state currently operates three youth prisons.  

The California Endowment funds coverage in California for Youth Today and the Juvenile Justice Information Exchange.

This story has been updated.

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OP-ED: Reflections on Miller v. Alabama: Roses, Thorns and Buds

Tamar Birckhead newTo generate some (hopefully) meaningful conversation around our dinner table, I have begun to use a tool that my daughters picked up at one of their summer camps: “Rose, thorn and bud.” We each describe a good thing from our day (the rose), followed by a lousy thing (the thorn), and then conclude with something we are looking forward to (the bud). The exercise enables each person to share several different moments from the past 12 hours with the rest of the family; it doesn’t require too much effort or contemplation, and it is relatively light-hearted. In fact, not infrequently the rose is the dinner itself and the bud is the dessert. The discussion that follows rarely leads to anything profound, but the ritual forces us to pause, consider the day’s events and make an effort to connect.

Imagine my surprise when I attended the annual convening of the Campaign for the Fair Sentencing of Youth (CFSY) in November and the same prompt was used. A group of about 40 of us — lawyers and advocates, family members of those serving juvenile life without parole sentences (JLWOP), and former juvenile lifers — had been divided into geographical regions and were seated around tables in a small meeting room at the Hyatt Hotel near Union Station in Washington, D.C. “Please share a rose, thorn, and bud since the last convening,” the facilitator at my table directed, “and consider how things have changed.”

For most of us this meant reflecting on the impact of the 2012 U.S. Supreme Court decision in Miller v. Alabama that ended mandatory JLWOP and required individualized sentencing hearings. While it was a promising opinion by the Court, it was not the decision many of us hoped would end, once and for all, life imprisonment for juvenile offenders.

As we took our turns, it was clear that the past year had meant different things to each of us — with many thorns among us. For the mom of a young man serving JLWOP whose new sentencing hearing resulted in the imposition of the same sentence, the Miller decision represented dashed hopes.

For a father whose state had ruled that Miller did not apply retroactively, it meant complete devastation. For a former juvenile lifer who had been released, there was the rose of freedom but the thorns of guilt and sadness for his friends who were still — and would likely remain — incarcerated.

When it was my opportunity to speak, I shared what I am perhaps best equipped to offer to the discussion: perspective on the broader legal landscape and how quickly it has shifted to reflect an enlightened view of adolescent culpability and capacity, as well as an endorsement of the proportionate sentencing of youth.

I recalled that only eight years ago, it was legal in the United States to put juvenile defendants to death, but that Roper v. Simmons ended that practice when the Supreme Court ruled that it violated the Eighth Amendment prohibition on cruel and unusual punishment.

I reminded folks that only three years ago, it was legal to sentence juveniles to LWOP for non-homicides, but that Graham v. Florida ended that practice as well.

And while Miller v. Alabama didn’t impose a flat ban on JLWOP, the decision did require that before such a sentence may be imposed as punishment for homicide, the offender’s age, background, mental and emotional development must be considered. Likewise, the Court specifically emphasized that the offender’s immaturity, impetuosity and failure to appreciate risks and consequences — basic hallmarks of youth — must also be taken into account.

One year later, there aren’t many roses, but then again, thorns exist to protect the flower’s petals and blossoms from those who try to graze on them. It’s not a perfect analogy, to be sure, but there is cause for feeling optimistic, for hoping that the bud is the celebration we will have at next year’s CFSY convening, when we will be one step closer to ending the practice of sentencing children to die in prison.


Tamar R. Birckhead is associate professor of law and interim director of clinical programs at the University of North Carolina School of Law.

Appeal Likely in Juvenile Lifer Ruling

Five of seven judges seats in the Supreme Court chamber in the Pennsylvania State Capitol in Harrisburg, Pa.
Five of seven judges seats in the Supreme Court chamber in the Pennsylvania State Capitol in Harrisburg, Pa.

From The Citizens' Voice, Wilkes-Barre, Pa. (MCT)

Joseph Aulisio killed two children. Christian Kenyon helped murder a rival gang member.

Both of the Lackawanna County men were juveniles when they committed their crimes and were sentenced to life without the possibility of parole.

Now two recent rulings by the state Supreme Court have given Kenyon hope he could someday receive a lesser sentence, while Aulisio is destined to die in prison.

Their cases illustrate what advocates for juvenile justice say is the blatant unfairness of a state Supreme Court ruling issued Wednesday that will preclude hundreds of juvenile lifers from seeking new sentencing hearings.

Calling the ruling "appallingly unjust," attorneys with the Juvenile Law Center and Defender Association of Philadelphia say they will likely appeal the decision, issued in the case of Ian Cunningham of Philadelphia, to the U.S. Supreme Court.

The ruling relates to the landmark 2012 U.S. Supreme Court decision in Miller vs. Alabama that declared mandatory sentences of life without parole for juveniles unconstitutional. The court found such sentences violate the Eighth Amendment's prohibition against cruel and unusual punishment.

In a 4-3 decision, the Pennsylvania Supreme Court said the U.S. Supreme Court ruling cannot be applied retroactively to cases in which a juvenile had exhausted all their appeals before the high court decision was issued. The ruling is at odds with a separate ruling the state Supreme court issued in the case of Qu'eed Batts, which said the Miller case is applicable to cases where a juvenile's appeals are still pending.

In Lackawanna County, Kenyon, a Scranton street gang member who at age 17 was convicted of helping two other men kill Allen Fernandez in 2009, was recently granted a new sentencing hearing based on the Batts ruling. No hearing has been set yet as he has an appeal pending of his conviction before the state Supreme Court, said his attorney, Robert Buttner.

Aulisio of Old Forge, who was 15 at the time of his crime, will not get that chance, however. He was convicted of killing 8-year-old Cheryl Ziemba and her 4-year-old brother, Christopher, in 1981 and exhausted his appeals long before the U.S. Supreme Court decision in the Miller case.

Bradley Bridge, an attorney with the Defender's Association, said the court's latest ruling in the Cunningham case is "exceedingly unfair," as it violates a basic tenant of justice that calls for equal treatment of all defendants.

Buttner said he's also troubled by the court's ruling in the Cunningham case, even though it does not affect his client. The U.S. Supreme Court ruling was based on the premise that juvenile's mind is not fully developed, therefore a judge must be given latitude to consider each juvenile's situation, including background, upbringing and likelihood of being rehabilitated, in deciding whether to sentence a juvenile to life.

"Are we saying children's immaturity and development is less now than it was in the 1980s and 1990s?" Buttner asked.

Richard Long, executive director of the Pennsylvania District Attorney's Association, said the focus should be on the question of fairness to victims and their families, who deserve to have some finality to their cases.

"There is always a balancing that goes on with the criminal justice system," Long said. "The survivors of murder victims have had to deal with the loss of a loved one taken from them by a juvenile murderer. Would it be fair to have those cases reopened for another sentencing?"

The ruling affects nearly 500 inmates statewide, according to Marsha Levick of the Juvenile Law Center.


©2013 The Citizens' Voice (Wilkes-Barre, Pa.)

Visit The Citizens' Voice (Wilkes-Barre, Pa.) at

Distributed by MCT Information Services


Miller v. Alabama: One Year Later

US Supreme CourtOne summer night in 2003, 14-year-old Evan Miller and one of his friends discovered Cole Cannon, Miller’s neighbor, apparently passed out in his trailer. As Miller pulled $300 out of his neighbor’s wallet, Cannon suddenly regained consciousness. A fight among Cannon and the two boys ensued, Miller pummeling his neighbor with both his fists and a baseball bat. After covering Cannon in a bed sheet, the two returned to the trailer to clean up the blood. To conceal the crime, Miller and his friend decided to set the trailer ablaze; Cannon was alive, police investigators said, when the flames engulfed his mobile home.

Miller was ultimately found guilty of capital murder and given a life without parole sentence. Following a series of denied appeals on the state level, Miller’s counsel filed a writ of certiorari to the U.S. Supreme Court, which granted the case a review in Nov. 2011.

On June 25, 2012, the high court officially ruled mandatory life without parole sentences (LWOP) for juveniles convicted of homicide are unconstitutional. However, it does not forbid judges from sentencing young defendants to life without parole if mitigating factors are considered. The decision applies to all offenders under the age of 18.

Miller v. Alabama represents the latest in a series of recent Supreme Court decisions that have declared certain juvenile offender penalties unconstitutional under the Eighth Amendment’s prohibition of cruel and unusual punishment. The court’s incremental progress began with Roper v. Simmons, which prohibited mandatory life sentences for all non-homicide youth offenses, and was followed by Graham v. Florida, which eliminated the death penalty for juvenile offenders. Miller takes the next step and, with Roper, has completely forbidden mandatory life without parole for juveniles convicted of all offenses, including murder.

The impact of the Miller ruling was immediate, and 29 states saw their mandatory sentencing statutes invalidated. As a result, the states faced the question of what to do with the hundreds of juvenile offenders originally given life sentences without the possibility of parole.

In the wake of Miller, three states -- California, Delaware and Wyoming -- passed legislation effectively eliminating juvenile life without parole sentences entirely, while a fourth legislative proposal to completely eliminate juvenile LWOP was advanced, but not made law, in Connecticut earlier this year.

Seven states maintained LWOP as a potential penalty even after Miller, although recent legislation within those states have similarly placed greater restrictions on the use of life without parole as a punishment for juvenile offenders. In both Pennsylvania and North Carolina, juveniles convicted of second degree murder can no longer be given LWOP sentences, while Arkansas, Louisiana, Nebraska and Utah have all retooled their state laws to allow increased parole opportunities for juveniles with homicide offenses. Although South Dakota hasn’t enacted legislation that allows for automatic parole opportunities for juvenile lifers, recent changes to state law have given more leeway to judges, who now have more options in sentencing juveniles with first- and second-degree homicide convictions.

Mandatory minimum sentence legislation was defeated in Florida, Illinois, Missouri, Alabama and Washington.

The Miller ruling also proved problematic for several other states, as legislators scrambled to update their state’s laws. In Iowa, Gov. Terry Branstand’s call to commute the sentences of the states’ juvenile lifers to 60 years to life led to a state Supreme Court case, and Texas has struggled to amend a gap in its code involving 17 year olds convicted of murder. The Minnesota Supreme Court ruled in May that the Miller holding cannot retroactively apply to juveniles given mandatory life without parole sentences.

A year after the Supreme Court ruling, some juvenile justice experts and advocates believe Miller v. Alabama sets the stage for more progressive, state-level juvenile sentencing laws.

“What Miller does is that it says, first of all, that yet again kids are different,” said Jody Kent Lavy, director and national coordinator of the Campaign for the Fair Sentencing of Youth. “We cannot treat young people the same way we treat adults in the context of criminal law.”

With the ruling in effect, young people facing life in prison now have the ability to bring forward evidence in court of mitigating factors that may have contributed to their criminal behavior, such as living environments and maturity, Lavy said.

“That, previously, was not required and it was not considered necessarily relevant before imposing these sorts of extreme sentences,” she said.

The ruling, she said, applies to all states, even those where the age of criminality is lower than 18. “They have to revise their policy as it relates to 17-year-olds to ensure those young people have the same protections in place that Miller required,” she stated.

According to Lavy, a majority of juvenile offenders serving life without parole sentences were in states that employed the now-invalidated mandatory statutes. She believes with the new provisions resulting from Miller that there will be fewer people receiving LWOP sentences as juveniles because judges will now have the discretion to impose other sentences.

Liz Ryan, president and CEO of the Campaign for Youth Justice, said the Miller v. Alabama ruling may have major implications on state policymaking in the future, particularly regarding the practice of trying juvenile offenders in adult courtrooms.

“In the Miller case, one of the outcomes is that they really rejected the notion of making kids eligible for life without parole sentences,” she said. “So this idea of sending kids automatically to adult criminal court, I think, could hopefully, potentially impact the broader notion of kids being automatically [tried as adults.]”

Every state, to some capacity, allows for the criminal prosecution as adults of juvenile offenders, she said.

“Some states allow kids to be sent to adult criminal court on the motion of a judge, and that’s been the traditional way,” Ryan said. “In a number of states, depending on your age and what you’re charged with, you can be placed in adult criminal court.”

Although the Miller v. Alabama ruling does not require states to change their laws regarding the criminal prosecution of juveniles, Ryan believes the Supreme Court holding may influence states to re-examine their policies.

“There’s a direct impact on cases [involving] kids that are for re-examination under Miller, but I think also that a number of states are sort of more broadly looking at the issue of why they’re treating kids in adult criminal courts,” Ryan said. “And some of the methodology that the court considered in this case ought to be considerations ... in any type of sentencing.”

Likewise, Lavy believes the Miller ruling may serve as a precursor to new state-level juvenile justice reforms.

“What I think is important about the Miller decision is that it reaffirms what the Supreme Court has said previously in Roper, Graham and J.D.B. v. North Carolina, which is that youthfulness matters,” Lavy said. “As a result, in the legislatures there have been discussions about ways to not only comply with Miller in the narrowest form, but also to extend the reforms to any child convicted of a crime in adult court.”

In Lavy’s opinion, the notion that “kids are different” -- which she considers a central takeaway from Miller v. Alabama --  has taken hold among policymakers, with recent reforms going beyond merely eliminating long sentences for juveniles. Lavy points to recent legislation in Delaware as an example of how states can construct new ways to hold youth accountable for their offenses without implementing life in prison sentences.

“They took life without parole off the books for the most serious crimes,” she said, “and replaced it with a 30-year minimum, and then for any other youth who was tried in adult court, they now have review after 20 years.”

Young people, Lavy said, differ from adults and should be viewed differently in the context of the Constitution. She considers the Miller ruling an incremental, yet critical, step forward toward broader juvenile justice reform.

“I think that one of the things we as a community need to be looking to is models for how we hold young people accountable for serious crimes in ways that reflect their age and capacity to change,” she concluded. “And I think policymakers thinking about Miller would be well-served to look to those sorts of models.”

Notion that “Kids are Different” Takes Hold in Youth Justice Policy Reform

2005 – Roper v. Simmons: U.S. Supreme court rules that it is cruel and unusual punishment to impose the death penalty on people for crimes committed when they were younger than 18.

“[F]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Roper v. Simmons, 543 U. S. 551, 570 (2005). 

2010 – Graham v. Florida: U.S. Supreme Court rules that life-without-parole sentences imposed on children for non-homicide offenses are unconstitutional.

“‘(J)uvenile offenders cannot with reliability be classified among the worst offenders.’ “ Graham v, Florida, 130 S. Ct. 2011, 2026 (2010), quoting Roper, 543 U.S., at 573.“Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults. Id. 

2011 -- J.D.B. v. North Carolina: U.S. Supreme Court establishes that youth status matters in areas of youth justice beyond the context of harsh sentencing policies when it imposed the requirement that law enforcement officials must consider the age of a suspect in determining whether Miranda warnings should be issued.

“Children generally are less mature and responsible than adults; they often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them; and they are more vulnerable or susceptible to . . . outside pressures than adults.  J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403 (2011) (internal quotation marks omitted).

2012 – Miller v. Alabama: U.S. Supreme Court rules that the imposition of a mandatory life without parole sentence on someone convicted of a crime as a child violates the 8th Amendment ban on cruel and unusual punishment.

“Youth is more than a chronological fact. It is a time of immaturity, irresponsibility, impetuousness[,] and recklessness. It is a moment and condition of life when a person may be most susceptible to influence and to psychological damage.  And its signature qualities are all transient.” Miller v. Alabama, 132 S. Ct. 2455, 2467 (2012) (internal quotation marks omitted).    

If there was uncertainty seven years ago when the U.S. Supreme Court abolished the death penalty for children, or in 2010 when it ruled that life-without-parole sentences imposed on youth for non-homicide crimes are unconstitutional, it should be clear by now that this is a new day for youth justice reform.

Our nation’s highest court has held three times in the last three years that child status is relevant to matters of justice and the law. The message that “kids are different” has been established by the Court, scientific research and, increasingly, among liberal and conservative policymakers alike. As a result, the parameters for how we treat children in the U.S. justice system are forever changed.

Just as we consider the unique characteristics of young people when making decisions about when they are allowed to volunteer for military for service, drive, serve on juries or register to vote, we also must consider these differences in the context of youth justice policies. Laws that treat children like adults and ignore relevant factors related to their status as children — their lessened culpability, their unique vulnerability to peer pressure, their lack of understanding of the consequences of their actions and impulse control, and their particular capacity for rehabilitation— can no longer be justified.

The Court has scaled back some of the misguided policymaking of the 1980s and 1990s, when upticks in crime among youth led criminologists and other opinion leaders to predict a major wave of violent crime by “juvenile superpredators.” Policymakers reacted with fear-based “tough on crime” policy reforms making it easier to try children as adults and making more extreme sentences available to them.

These juvenile crime waves never materialized, and the superpredator theory has been debunked and acknowledged as inaccurate by the same criminologists who brought credibility to it. In addition, many of those criminologists have since emphasized the need for rehabilitation rather than harsh penalties to appropriately hold youth accountable and improve public safety.  This is the direction in which the pendulum is now swinging.

Policymakers and opinion leaders across the political spectrum have recently called for age-appropriate reforms to laws that ignore the differences between children and adults. These have included the New York Times, President Jimmy Carter, and conservative former lawmakers Newt Gingrich and Pat Nolan. Earlier this month, the Attorney General’s Task Force on Children Exposed to Violence, which is co-chaired by Joe Torre, Major League Baseball Executive Vice President of Baseball Operations, recommended in its report that the United States “stop treating juvenile offenders as if they were adults, prosecuting them as adults in adult courts, incarcerating them as adults, and sentencing them to harsh punishments that ignore their capacity to grow.” (See Recommendation 6.9, page 124).

As we look to the New Year, I am heartened that the notion that “kids are different” is taking hold. Policymakers who have been reticent to do so are realizing now that it is time to rethink policies that require youth to be tried and sentenced as adults and those that allow children to be incarcerated in adult jails and prisons, without consideration of their unique characteristics as children. Such policies are no longer tolerable. I am hopeful we can learn from the advances of the last decade and that this new day, and the new year, will bring about meaningful practices and policies that hold youth accountable for the harm they have caused in age-appropriate ways that help to rehabilitate them and prepare them for reintegration into society.

Nebraska Pardons Board Cancels Hearings for LWOP Prisoners Convicted as Juveniles

The Nebraska Pardons Board cancelled this week’s hearings following the granting of an injunction request by more than a dozen prisoners, who said that the meetings, following the U.S. Supreme Court’s ruling in Miller v. Alabama, may result in them receiving prison sentences of at least 50 years.

The Omaha World Herald reports that Douglas County Judge Thomas Otepka granted the request late last Friday, with the Pardons Board subsequently postponing several hearings scheduled for Monday and Wednesday.

“Defendants are enjoined from commencing the commutation hearings scheduled for December 3 and 5, 2012, until such time as the Nebraska Supreme Court and the Nebraska Legislature addresses the constitutional mandates of Miller v. Alabama,” Otepka wrote.

Two weeks earlier, Nebraska Attorney General Jon Bruning - a member of the state’s Pardons Board - said that he would likely give the prisoners, all currently serving life sentences for crimes they committed as juveniles, minimum 50-year sentences in hearings originally scheduled for this week.

“We respectfully disagree with the court’s decision,” Bruning said. “This is an unnecessary delay to Nebraska’s compliance with the Miller v. Alabama decision that risks untold state financial resources.”

Earlier this year, the U.S. Supreme Court ruled that mandatory life sentences for juveniles without the possibility of parole were unconstitutional, although the Miller v. Alabama ruling still does not forbid judges from sentencing to life sentences young offenders found guilty of murder.

Prior to the Pardons Board’s decision to cancel the week’s hearings, several state prosecutors asked them to wait until the Nebraska Legislature and other courts formalized a plan to deal with the state’s juvenile offenders.

Tuesday morning, Bruning announced plans to petition the Nebraska Supreme Court to withdraw Otepka’s injunction so that the commutation hearings could be rescheduled.

Photo by ensign_beedrill via Flickr. 

Federal, State Courts may Clash on 350 Juvenile Lifers

A Michigan state court case says some 350 people given mandatory no-parole sentences for murders committed as juveniles must serve their full sentences. But in the coming days, a federal court is expected to opine on a similar question.

A federal court in Michigan will soon rule on the constitutionality of automatic, no-appeal life sentences given to 13 people over the last few decades. The offenders in Hill et. al. v. Granholm all committed murder aged between 14 and 17.

“The court will decide in light of the admitted unconstitutionality of [Michigan] statute, which doesn’t give parole to juveniles convicted of first degree murder, what is the mechanism that will provide meaningful opportunity for release,” said Deborah LaBelle, an independent attorney on the team arguing for Henry Hill and the others in front of the U.S. District Court for the Eastern District of Michigan.

The case started in 2010 with nine original plaintiffs who argued that holding them for life with no meaningful opportunity for release was unconstitutional.

Since then, the U.S. Supreme Court has agreed with a similar argument in a separate Alabama case. In Miller v. Alabama, the justices found that juveniles are less mature, and therefore less culpable than adults when it comes to the crime of murder. They said lower courts must consider the mitigating factor of age and immaturity when sentencing juveniles for murder. That rules out one-size-fits-all sentences.

The Michigan state legislature has not yet had time to write a new sentencing guideline that fixes their statute, though some proposals may yet come up for a vote this year.

But as the Hill plantiffs wait for their federal ruling, a state court has said new sentencing rules will not apply to those already serving time.

Raymond Carp, 21, must serve life in prison without the chance of parole for stabbing a woman to death in 2006, the state of Michigan Court of Appeals ruled last week. Carp asked for a new sentencing hearing in light of Miller v. Alabama. The panel of judges said no.

“We hold that in Michigan a sentencing court must consider, at the time of sentencing, characteristics associated with youth as identified in Miller when determining whether to sentence a juvenile convicted of a homicide offense to life in prison with or without the eligibility for parole,” the judges wrote.

But the new U.S. Supreme Court guarantee of such a hearing is a “procedural” change, not a “substantive” change, they continue. Thus by precedent and Michigan law, it only applies going forward, not to offenders like Carp who have already exhausted direct appeals.

Yet Carp’s case will be appealed to the state Supreme Court, LaBelle predicted.

State Attorney General Bill Schuette has fought resentencing for juvenile lifers, both by public statement and in court filings. "Fortunately, the Court of Appeals agreed to follow long-standing precedent that says U.S. Supreme Court rulings addressing criminal justice processes are not retroactive,” he said in a written statement. “I pray that the families of those murdered can find some comfort in the knowledge that their days in court are over.”

Michigan holds more of the estimated 2,500 juvenile lifers nationwide than any other state.

Reconsidering Life Sentences for Juveniles who Kill

In the 1993 book "Dead Man Walking,” Sister Helen Prejean tells the story of people directly impacted by capital punishment – convicted murderers counting down to their own executions, wardens and guards dutifully operating the machinery of death, and victims who are consumed by rage and grief.

Prejean’s book, upon which the popular movie was based, is much more than a memoir. Well-researched and annotated, it carefully explores the legal, ethical and philosophical issues raised by the most controversial form of punishment in the United States. But the power of the book comes from its candor – from the fact that Prejean began her journey without a clear perspective or opinion on the death penalty.

I read "Dead Man Walking" when it was first published. I had recently graduated from law school and was clerking for an appellate court judge. Although only vaguely interested in criminal law, I finished it quickly, engrossed by Prejean’s account of her experiences as a spiritual adviser for men on death row and moved by her struggle to find common ground with the families of victims.

I thought of this last weekend after reading Ethan Bronner’s article in The New York Times on reactions to Miller v. Alabama, the 2012 U.S. Supreme Court decision holding that mandatory life without parole sentences for juvenile offenders are unconstitutional. With more than 2,000 offenders across the country who may be resentenced as a result of Miller, Bronner focused on a single case – a pregnant teen killed by her 15-year-old boyfriend – and prominently featured an interview with the victim’s sister, Bobbi Jamriska, who is active in the National Organization of Victims of Juvenile Lifers.

Unlike Prejean’s book, but typical of most coverage of criminal sentencing, the Times article explicitly pits juveniles serving life sentences against victims’ families; it asserts without attribution that the decision in Miller threw "thousands" like Jamriska into "anguished turmoil at the prospect that the killers of their loved ones may walk the streets again.” Such hyperbole only perpetuates the notion that the ideal resolution is always to warehouse young offenders – without opportunity for review of their sentences – forever.

I do respect Mr. Bronner’s work, but I don’t agree with the way he handled this piece and I told him so.

In response to my email, he wrote in part: “… For some reason, you took the article to be an endorsement of Ms. Jamriska's perspective. It was an attempt to put a strong case forward for both sides in this issue -- that of the juvenile offender and the brain science that says juveniles must be judged differently from adults, and that of the victim's family. It was important to me to represent both sides. I'm sorry it didn't come across that way to you.”

Fair enough, yet contrast the Times piece with a recent video from the Campaign for the Fair Sentencing of Youth, in which parents of murder victims express sympathy for juvenile offenders and, ultimately, forgiveness. One mother, Mary Johnson, related that it was healing to watch O’Shea Israel, the youth who had killed her son 20 years earlier, develop into a respectable adult after his release from prison. As the two stood side by side, Johnson explained, "He’s not that 16 year-old boy that has taken my son’s life.  He’s now a man. He’s turned his life around, and I know it’s genuine."

Jamriska and others have voiced a legitimate concern that post-Miller resentencing hearings will force victims’ families to "relive the horrors again."

One option is for these hearings to be narrowly focused on the offender – the young person’s background, the circumstances of the crime, and his or her role in the offense – rather than publicly reexamining the pain and loss experienced by the victims. Another option is for victim impact statements and other documentary evidence introduced at the original sentencing hearing to be considered anew, making it unnecessary for the victims' families to be physically present in court. Although hardly perfect, such procedures may provide the first steps toward an acceptable solution.

An additional issue may be addressed through reasoned discussion and education. In the Times article, Jamriska repeats a common refrain heard among victims and others who oppose the reconsideration of life sentences for youth: "I don’t care if you’re 5 or 50, you know that killing is wrong” – with the implication being that as long as an offender understood the wrongfulness of the act, the punishment should be the same regardless of his or her age.

Yet, there's a difference between capacity and culpability.Yes, most adolescents understand intellectually that to kill another human being is wrong. That is precisely why we condemn it and punish those who commit it. But because of the lesser culpability or blameworthiness of young offenders, the punishment should not be as harsh as it is for adults.

By the end of "Dead Man Walking", Prejean’s story has come full circle. She begins her narrative suspicious and judgmental of the men on death row; she sees only their brutal crimes, not the human beings behind them. Once she has connected with them, however, she is conflicted and avoids their victims. Prejean finds peace only after she has reached out to those victims, met with and listened to them – and they to her.

In the wake of the Miller decision, we must be sensitive to victims’ families and try to understand their desire for retribution – but at the same time we must emphasize that imprisoning juveniles for life is not the answer.

The words of Mary Johnson, who befriended O’Shea Israel, continue to resonate:

“The young people that have been given life without parole – we need to think about them as though they are our children. Give them the opportunity – if they’ve been worked on in the prison and have worked on themselves – give them the opportunity to come out and prove themselves, as O’Shea has done.”

Sister Helen Prejean would agree. Perhaps one day Bobbi Jamriska will as well.

Professor Birckhead’s commentary is also posted at the Huffington Post