Pennsylvania’s General Assembly last week, on the last day of its session, voted to end the automatic life without parole for teens convicted of first- or second-degree murder. But some advocates say the new scheme misses the point of real reform.
Senate Bill 850 sets the minimum sentence for first-degree murders committed by 15- to 17-year-olds at 35 years. For younger teens, it’s 25 years.
New second-degree murder minimum sentences would be broken up in the same tiers: 30 years for older teens; 20 for younger ones.
The bill is now on the desk of Pennsylvania Gov. Tom Corbett. According to AP reports, he is likely to sign.
That replaces a mandatory sentencing scheme that sent such teen offenders to life without parole or even death. Pennsylvania is among the first of about 25 states that still need to change those mandatory sentences for young people after the U.S. Supreme Court declared them unconstitutional earlier this year.
But the new bill is “harsher than it needed to be, it left a lot of what the U.S. Supreme Court told us on the table,” said Marsha Levick, deputy director and chief counsel of the Philadelphia-based Juvenile Law Center.
The U.S. Supreme Court ruling in Miller v. Alabama this June said that young people are more impulsive, more capable of change and less mature and less able to make good judgments than adults. Thus, the court argued, juveniles convicted of murder must be given a sentencing hearing and judges must take into account mitigating factors such as age, past experience with the courts, family history, or mental illness. That rules out mandatory sentences.
Levick said she believes the U.S. Supreme Court is advising “a different paradigm” that’s more flexible, individualized and sensitive to research on adolescent brain development.
Decarcerate Pennsylvania, a grassroots group fighting to end and reverse prison expansion, also argued against the bill. Their official statement argues that new sentencing rules should make “meaningful and substantive” change.
“The bill does not honor the spirit of the U.S. Supreme Court decision which asserts that children should be sentenced in a way that holds them accountable for their mistakes while also recognizing their youthfulness and their potential for change,” reads a statement the group released.
The new sentencing rules were amended onto an existing bill in September, the first chance Pennsylvania had to make a change after the Miller ruling.
Decarcerate Pennsylvania’s statement argued that the process was too fast, lacking public debate and discussion, and closing an opportunity for “substantive, thoughtful” legislation.
Levick thinks the door is closed on a redo, predicting the General Assembly will have no “appetite” to revisit juvenile murder sentencing.
The bill is not retroactive either, so does not apply to Pennsylvania’s 500 or so lifers, though Levick is arguing a case at the state Supreme Court that could make them eligible to apply for resentencing.
Oral arguments have already been made, but the state supreme court has yet to announce a date for its opinion.
The Pennsylvania Supreme Court is hearing oral arguments today that may lead to a chance at parole for more than 400 inmates convicted of murder as minors.
The Court is deciding if a June 2012 U.S. Supreme Court decision is retroactive, and if so, what sentence should be given to two convicts in today’s cases. The federal court, in Miller v. Alabama, said that minors convicted of murder have a right to present mitigating factors — such as the immaturity of youth — to sentencing judges. That invalidates one-size-fits-all mandatory life without parole sentences listed in federal and 28 states’ statutes.
“It’s about retroactivity and also resentencing,” said Marsha Levick, deputy director of the Juvenile Law Center in Pennsylvania, who is arguing for retroactivity before the court. The decision for the two defendants could set a precedent for the hundreds more like them in Pennsylvania.
She argues the U.S. Supreme Court intended for Miller to be retroactive. The federal court itself granted relief to a minor in a case tied to Miller who was already sentenced to life without parole. She said the court would not have done that unless they meant it to apply to all people similarly situated.
As for the sentence, “once you declare mandatory life without parole sentences for juveniles unconstitutional, we have no other sentence for first- and second- degree murder,” said Levick.
So the defense will argue for a reversion to the sentence for third-degree murder and the next most severe sentence available after first- and second- degree murder. In Pennsylvania, that’s a maximum of 40 years.
Sentencing laws vary by state, what’s on Pennsylvania’s books doesn’t match other states, but the principle may apply across borders. Said Levick, “the analysis that gets us there [to the next most severe sentence] may likely be relevant to jurisdictions across the country where there is no sentencing option on the books.”
Douglas Berman thinks prospects for retroactivity are good. “It’s in no one’s interest to litigate this,” said the law professor at Ohio State University and author of the award-winning Sentencing Law and Policy blog.
He explained that retroactivity historically deals with the possibility of overturning convictions. So prosecutors fight hard to protect convictions they have won in the past. But Miller only talks about sentences. All convictions will stand. And judges can still hand out sentences of life without the chance of parole or even decades-long sentences.
Indeed, Berman predicts some judges will do just that. He points out that under an earlier U.S. Supreme Court ruling granting resentencing to certain juvenile lifers, some Florida judges have laid out sentences of 100 years.
Levick is more cautious about retroactivity in other states. “I think the response from prosecutors is uneven. They’re challenging it in Pennsylvania,” she said, but “I don’t know that we should assume they will be challenging it in the 28 other states in which these cases are at issue.”
Pennsylvania’s is the first state Supreme Court test of Miller retroactivity. The state holds more juvenile lifers for murder than any other. In Florida, which counts more than 250 similar inmates, state law already considers Miller retroactive. In Iowa, the governor has by executive order converted the state’s 38 juvenile life without parole sentences to 60-year minimum sentences. However, that order may be challenged in court.
The Pennsylvania high court has no deadline to make its decision.
A bill is expected to be filed in the next session of the state Legislature that would lay out new sentencing guidelines for first- and second-degree murders committed by minors, to replace the laws invalidated by Miller.
California has always been ahead of the curve. Fresh on the heels of the Supreme Court ruling in Miller v. Alabama, which prohibits mandatory juvenile life without parole sentences (JLWOP),the California Supreme Court announced that a 110-year sentence for a non-homicide crime was the equivalent of juvenile life without parole and thus unconstitutional in the case of People v. Caballero. Caballero, who was 16 at the time his crimes occurred, would have had to serve 110 years in prison before even having the possibility of going before a parole board.
The California Court’s opinion, released August 16th 2012, relies heavily on the reasoning put forth by the United States Supreme Court two years earlier in Graham v. Florida, where it flatly prohibited a JLWOP sentence for a non-homicide crime. The Caballero Court noted that developments in psychology show fundamental differences between juvenile and adult minds, that a life without parole sentence serves a very limited penological purpose for juveniles, and that children have the greatest possibility of rehabilitation. Of particular note to those in similar shoes as Rodrigo Caballero, the Court stated that those serving de facto sentences may file a writ of habeas corpus in trial court allowing mitigating evidence to be presented in order to be resentenced.
Relegated to a footnote, the Court opined, “We urge the Legislature to enact legislation establishing a parole eligibility mechanism that provides a defendant serving a de facto life sentence without possibility of parole …” Although the Court’s wishes would help those already serving de facto JLWOP sentences, legislative changes to California’s existing sentencing schemes would ensure that all juveniles receive fair sentences.
Often de facto JLWOP sentences are created through the combination of two mechanisms: mandatory sentencing and consecutive sentencing -- both are legislative creations. Mandatory minimum sentences mean that once there has been a finding of guilt, the penalty has already been determined by a statute created by the legislature. Judges are deprived of the opportunity to tailor punishments, and cannot take mitigating information, such as a defendant’s background or role in the crime, into account at sentencing.
Consecutive sentences distinguish between more than one crime and assign punishment for each. These sentences are then served one after the other. While this sounds like a fair system, it can play out in unreasonable ways. A juvenile who approaches a group of three people and asks for their money is charged with three separate counts of robbery, and is given an individual sentence for each count, which they will serve one after another. In this scenario, our kid could get 10 years for each count, and would serve 30. Should he have a gang or weapon enhancement, this time would be added and would also have to be served consecutively -- which could turn that 30 years into 60.
Consecutive sentences are hardly a U.S. invention. However what sets the United States apart is the lack of regulation surrounding these consecutive sentences. Over three-quarters of the countries in the world regulate consecutive sentences by allowing the sentences to be served at the same time, capping the sentences at a certain amount of years or merely enhancing the most serious offense.
These global practices recognize that uncapped consecutive sentences can lead to prison terms that are out of step with severity of the crime.
Likewise, mandatory minimum sentences are common practice worldwide -- they establish a framework that ensures that sentences for similar crimes are the same across the jurisdiction. Although mandatory minimums are a part of the laws of most countries, the severity of the United States mandatory minimums stand out in stark contrast. The majority of countries allow for judges to exercise their discretion within the mandatory terms -- so the fact that the perpetrator was a juvenile from a rough home can play a part in sentencing.
The combination of these legislative enactments has resulted in extremely long-term sentences -- much like Rodrigo Caballero’s 110-year sentence. Caballero received mandatory sentences of 15, 25, 15, 20, 15 and 20 years, all to be served one after the other for crimes that occurred in a single incident. Rodrigo Caballero did not kill a single person.
The interplay of these legislative enactments has resulted in these far reaching consequences, some that the Legislature may not have actually intended. This very issue was mentioned by the Supreme Court in Miller v. Alabama, where, while discussing juvenile life without parole, the Court noted “… it is impossible to say whether a legislature had endorsed a given penalty for children.”
In the wake of Caballero, California should continue to be progressive. The Legislature should not only enact specific parole eligibility mechanisms for juveniles serving de facto life without parole sentences but should also focus on reworking the existing statues that created these sentences in the first place.
Despite the recent Supreme Court ruling in Miller v. Alabama, the United States will remain the only country in the world to sentence children to spend their lives in prison. Like countries worldwide, our laws prohibiting children from marrying, voting and drinking recognize that those under the age of 18 are categorically different from adults -- a difference we fail to apply to their treatment under criminal law.
Enshrined in laws in 28 states and in federal court, children in the United States could be transferred to adult court, tried as adults, and subject to mandatory sentencing schemes. In the Miller decisionthe Court ruled that a mandatory sentence of life without parole is unconstitutional when applied to juveniles for homicide crimes. Under this decision, judges in all U.S. courts are required to take into account factors such as the defendant’s age, background, involvement in the crime, and possibility of rehabilitation before issuing a sentence.
This confirms what the vast majority of countries around the globe have done all along. A new study by the Center for Law and Global Justice at the University of San Francisco found that 84 percent of countries take into account the age of the offender at trial, leaving the United States as the lone Western country that does not follow this practice. Most countries also cap sentences for kids at 20 years or less, or reduce the degree of the crime to one that carries a much lighter sentence. Paired with its 2010 Graham v. Floridadecision banning juvenile life without parole sentences for non-homicide crimes, Miller suggests the Supreme Court may not be satisfied with our outlier status.
However, the Supreme Court did not reference international practice or treaty obligations in Miller, and did not completely ban the possibility of juvenile life without parole. Instead, they merely hoped that the sentence would be “uncommon.”
The United States has consistently prided itself on its commitment to and protection of international human rights through its role at the United Nations, and in its longstanding attempts to foster democracy in other countries. Yet, how can the United States be an international example when it stops short of matching international norms when it comes to children? A glaring example of this contradiction: the United States is one of only three countries in the world that is not party to the Convention on the Rights of the Child, a major U.N. treaty which sets up legal protections for children. We share this distinction with Somalia, which lacks a formal government, and South Sudan, a newly formed country.
While the estimated 2,594 children currently serving life without parole sentences and their advocates rejoiced over the Miller ruling, others will struggle to figure out whether this ruling will affect them. In practical terms, many states have consecutive sentencing that in effect sentences a juvenile to so many years in prison that they will never be released.
Courts are currently battling with these de facto life without parole cases. The California Supreme Court is determining whether a sentence of 110 years is covered under Graham. The Supreme Court of Florida agreed to review a case to determine if a sentence of 70 years handed to a child counts as life without parole. One juvenile, challenging his case before federal court in Missouri, was sentenced to 241 years for a crime committed at the age of 16. These cases were not addressed in Miller, as they were not labeled life without parole sentences.
Will these children benefit from the ruling in Miller? Will judges recognize that a 100-year prison sentence is the same as mandatory life without parole?
Both the Miller and Graham rulings indicate that the United States is working to align its treatment of children under international law to match the practices of the rest of the world. However, if the United States is serious about keeping its position as a human rights leader on the global stage, it will eradicate juvenile life without parole sentences – regardless of the form they take.
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.
Many states are scrambling to figure out how to comply with the recent U.S. Supreme Court ruling in Miller v. Alabama that mandatory life-without-parole sentences for children are cruel and unusual punishments.
The best advice is simple: slow down and take advantage of this opportunity to rethink how you should hold youth accountable for serious crimes.
The June ruling struck down all statutes that require a child to be sentenced to die in prison. In doing so, the Court reaffirmed its recent holdings that require children to be treated differently in the justice system. People now serving mandatory life sentences without parole for crimes committed as youth are due resentencing hearings, which must take into account mitigating factors such as their age at the time of the crime, family history, role in the crime, and other relevant factors.
In many ways, the Court’s ruling was another reaction against the wrongheaded policymaking of the 1980s and 1990s, when upticks in crime among youth led academic researchers and other opinion leaders to predict a major wave of violent crime by “juvenile superpredators.” Policymakers reacted with fear-based 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 originators. The Miller ruling has provided an opportunity for states to revisit the decisions that ignore the unique capacity of children to mature and change their behavior, and have caused prison budgets to balloon while having little discernible effect on public safety.
The ruling does not require swift action by either the legislative or the executive branches of government. The worst approach would be to repeat past mistakes of making politically-motivated policy changes that fail to appropriately reflect the unique characteristics of children. The Supreme Court precedent is clear: the states need to take a long, hard look at how they hold young people accountable for serious crimes, with a consideration of their age and capacity to change.
Already, Iowa Gov. Terry Branstad has demonstrated what not to do. Earlier this summer, he “commuted” the mandatory life without parole sentence of 38 youth offenders eligible for relief under Miller to mandatory 60-year terms. Newspaper editorial pages and Iowa’s U.S. Senator, Tom Harkin, have already spoken out against the move, noting that it conflicts with the Court’s requirement for individualized sentencing that considers mitigating factors.
Policymakers should look to existing models for holding children accountable, such as from Missouri and countries like Germany and New Zealand, which focus on rehabilitation and reintegration into society. These models not only balance retribution and rehabilitation, but are also cost-effective.
Research has proven that the vast majority of children age out of criminal behavior over time. Meanwhile, the average cost of a life sentence that begins in one’s late teens is $2 million, once the increased medical costs of old-age are considered. Keeping aging people locked up forever serves no public safety purpose and wastes taxpayer dollars. If we check in on children later in life to see if they have been rehabilitated and release those who have, states can use the taxpayer dollars that would otherwise be spent on prisoner medical care and housing for crime prevention programs and supportive services for victims, which are sorely underfunded.
The Supreme Court has granted states with an unprecedented opportunity to think holistically about how we want to address the needs of both victims and youthful offenders. States ought to think seriously about the message that the Supreme Court is sending: your old approach to punishing children is unconstitutional. Quick fixes are not sufficient.
Jody Kent Lavy is Director of the Campaign for the Fair Sentencing of Youth.
As Supreme Court arguments from two key juvenile sentencing decisions trickle down through courts and legislatures nationwide, the heaviest sentences for juveniles may be on the verge of shedding some weight.
“Graham and Miller put a constitutional ceiling on what states can do to kids,” argues Los Angeles attorney David Durchfort, continuing, “the big question now is what’s the safe zone? How far can they [states] go in punishing kids without giving them a second chance?”
Graham and Miller, decided by the U.S. Supreme Court in 2010 and 2012 respectively, bar state laws that mandate life without parole sentences for juveniles.
In both cases, the court said children are immature from a brain chemistry point of view. Therefore they are more corrigible and less culpable than adults and cannot rightfully be sentenced to life without parole until a judge takes that youthfulness into consideration. Children, they argued, should have a meaningful chance at rehabilitation and release.
In some states, the rulings make little difference because the states have no mandatory sentencing laws.
But in others, it means a change of statute, vacated sentences and maybe a change of frame of mind.
Durchfort’s arguments for rehabilitating youthful criminals will be among the first with resonance past his own state’s borders. He’s appealing a 110-year sentence handed to Rodrigo Caballero for three counts of attempted murder for shooting at rival gang members in Los Angeles County in 2007.
Caballero was 16 years old at the time and has been diagnosed with schizophrenia.
Durchfort has appealed the sentence all the way up to the California high court, arguing that 110 years without parole is an illegal sentence under Graham, because it is the equivalent of a life sentence, never giving Caballero a meaningful chance at parole.
The court has yet to announce a date for its decision. A measure in the California Assembly, Senate Bill 9, would grant periodic review to all inmates who had been sentenced for serious crimes when they were juveniles. It’s been untouched since an amendment in July.
North Carolina, however, seems to have found a new limit to its juvenile sentences: 25 years. In July 2012, it abolished mandatory life without parole for juveniles. For felony murder, the mandatory punishment is now life, defined as a quarter-century, with the chance of parole.
“Overturning the mandatory life sentence and making it life with parole — they’re going to be able to slip under Miller,” said Raleigh criminal defense attorney M. Moseley Matheson. “I think it’s something that could be challenged, but since life with parole is 25 years [in N.C.], I think it would be a difficult argument,” he said. “I don’t think there’s going to be a problem with that.”
Nevada has tweaked laws into apparent constitutionality as well. In 2011, it erased the possibility of the death penalty for minor offenders. It also set the ceiling for juveniles convicted of non-homicide crimes to life with the possibility of parole.
In Nebraska, 26 people are serving life without parole for murders committed when they were juveniles, according to Sarah Forrest, policy coordinator for child welfare and juvenile justice at Voices for Children in Nebraska, an advocacy group.
Her organization and other advocates are reaching out to those inmates who need help filing their appeals under Miller, which, under state law, need to be filed by June, 2013.
And state code still carries now-unconstitutional mandatory sentences. “Attempts to change it have been unsuccessful,” Forrest related.
Voices for Children and other advocates are calling for a re-write that gives youth an “actual, meaningful opportunity for release,” said Forrest. Kids in adult court can get very long sentences, she said: “Sometimes its 50 years, sometimes it’s 100.”
She called that “extreme sentencing” and said her group does “not want to see juvenile life without parole replaced with virtual life.”
The Nebraska Legislature reconvenes in January, Forrest’s next chance to lobby for any rewrite. “I’d say it’s going to be an uphill battle,” she said.
And it’s not clear that any code changes in any state would be retroactive.
Most of the 100 Illinois juveniles sentenced to mandatory life without parole for murder are in his jurisdiction, said Jeff Howard, deputy assistant public defender, county operations in Cook County, the center of Chicago.
“We have some pending post-conviction cases that Miller impacts,” he said. In other words, after some defendants were convicted, but before they could be sentenced, Miller cut the state’s right to apply mandatory life without parole. Litigation will tell if those cases get the benefit of Miller or not.
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.”
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.”
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.
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.
The charges against Long were dropped; and Long has since said Jones was not involved in the murder, according to the documents.
“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.
Just after the U.S. Supreme Court invalidated some 2,400 life sentences given to juveniles nationwide, Iowa’s governor responded with commuting the 38 cases in his state to minimum 60-year sentences.
The response was different in Pennsylvania, where the state Legislature is speeding to comply with the court’s Miller v. Alabama order for judicial discretion.
“First degree murder is an intentional and premeditated crime and those who are found guilty are dangerous and should be kept off the streets and out of our communities,” reads a statement by Iowa Gov. Terry Branstad, issued Jul. 18. It came with his Executive Order commuting mandatory life without parole sentences handed to 38 Iowa juveniles to 60 mandatory years then a possibility of parole.
The order is in reaction to the Supreme Court’s June ruling that juvenile murder defendants have to be allowed to present mitigating circumstances, especially age, to sentencing judges. That means automatic juvenile murder sentences are out in the federal courts plus the 28 states that have them, and judge’s discretion is in.
But some of Iowa’s legislators want to make sure there’s still a floor for such sentences. Earlier this year in light of the imminent Miller decision, the state House passed House File 607. It said juveniles convicted of the most grave felonies would be given a mandatory term of between 30 and 45 years before a chance at parole, rather than a life sentence.
The state Senate failed to act before the session ended.
In Pennsylvania, where some 440 people are serving life without parole for juvenile crimes, the Legislature immediately started acting to give judges the discretion that Miller requires.
Their state Senate Judiciary Committee has already started hearings that may end in a bill to replace the now-unconstitutional sentencing law with some other guideline.
Pennsylvania activist Anita Colon said that it’s too soon to tell if the new bill will lean toward leniency or hard time.
Her own brother was convicted as a 16-year-old for murder because he was the lookout for a drug deal that went bad and ended with an adult gang member murdering a woman.
Colon expects life without parole to be totally “taken off the books” for cases like her brother’s, when the defendant was an accessory, not the actual killer.
“We’re hoping to develop a sentencing structure that is cognizant of that (youth and other mitigating circumstances) but recognizes the level of safety we need in communities and also loss to victims’ families,” she said. Colon thinks the eventual new law will probably impose “very harsh sentences where warranted, but there will be a range” of punishments.
The Pennsylvania state Legislature reconvenes in September.
Colorado abolished its juvenile life without parole mandatory sentence in 2006. A pair of attorneys there think Miller will be deployed in cases where juveniles were not given life, but were given very long sentences like the ones Iowa’s governor wants.
“I would think any attorney worth his salt would appeal a very long sentence meted out to a juvenile,” said attorney and state Rep. Daniel Kagan (D-Englewood), “on the grounds juveniles are different.” They’re more impulsive, their brains are still developing, he noted.
Kagan thinks Miller seems to put both life and long-term sentences into question. But “whether it flies,” he said, will only be told by litigation.
Boulder County District Attorney Stan Garnett agrees. “The (Supreme Court) holding is binding on Colorado,” he said. But the justices’ reasons are not. “The arguments may or may not be persuasive, but that’s always the case.”
Meanwhile, there are still 48 Colorado inmates who were sentenced under the old juvenile life without parole sentence. It’s not yet clear where or how they will go through the appeals process now open to them under Miller, said Garnett. There are several possibilities including a visit to the Colorado Governor’s Juvenile Clemency Board.
But, he added, DAs are concerned to find a way “that doesn’t put victims through a whole reprocessing of the case.”
The W. Haywood Burns Institute (BI) would like to congratulate our colleague Bryan Stevenson at the Equal Justice Initiative and the legions of lawyers, advocates and families on their victory in the U.S. Supreme Court’s decision in Miller v. Alabama.
This decision will impact more than 2,000 young people of which 75 percent are youth of color. The decision specifically holds that young people convicted of homicide cannot mandatorily be sentenced to life without possibility of parole. While some headlines scream that “murderers” will go free, for those of us that live and work in communities of color, this decision is impactful and important.
In some communities of concentrated poverty across the country, the line between perpetrator and victim is easily traversed. Families of victims and convicted perpetrators are coming to grips with the facts of the new decision. The key elements of the decision involve important principles that are the cornerstone of our jurisprudential system. Those principles involve recognition of adolescent development and proportionality of sanctions. The Court recognizes that teenagers “lack of maturity, have an underdeveloped sense of responsibility…that can lead to recklessness, impulsivity and heedless risk-taking.”
Lifetime incarceration for children is wrong and should not be tolerated by civil society. Miller v. Alabama goes a long way toward making that a reality. All children, regardless of race, religion or ethnic background, are individuals with personal strengths and weaknesses. Indeed, the Court recognizes their immaturity and impulsivity and I would add that these young people are also often abused, ignored, uncared for, disempowered and frequently in a great deal of pain. The Court ruled that a mandatory life sentence for a young person denies their basic humanity.
This decision also gives us an opportunity to examine the use of incarceration as an instrument of social control. In that vein, the overuse of incarceration for young people as a first resort, the current high levels of recidivism and the endless amount of dollars being spent should always be discussed. Heretofore, we as a country were willing to pay any price we believed was necessary for a seductive but hollow phrase; law and order. And pay we did. Between 1971 and 1990, the expenditures for incarceration increased a whopping 313 percent.
During those years we instituted a War on Drugs (brilliantly detailed in Michelle Alexander’s book The New Jim Crow), waged a similar war on children by criminalizing normal adolescent behavior, and became the world’s largest jailer. There is a better way and the Miller decision is a good foundation to move forward with humanity and decency.
At the Burns Institute, we are working on an agenda of humanity and decency that is part of a strength-based approach to children’s basic needs regardless of circumstance. We can reduce crime and the need for life without parole for young people by redefining what youth serving systems should provide. Young people have fundamental rights as human beings that must be adhered to by all systems. We must move to a frame that emphasizes child well being as the preferred method of crime prevention.
Good service provision demands that a youth be involved with a positive, consistent caring adult in their lives. The administration of justice demands that we be creative in order to change the balance of power regarding decisions about who will be the keeper and who will be the kept, who will be servers and who will be the served, and who will suffer abuse and who will be protected from harm.
Thanks to the Miller decision — we are one step closer to a justice system that is equitable and restorative.