WASHINGTON — James Bell, founder and president of the W. Haywood Burns Institute, told a gathering of juvenile justice reformers earlier this month that it was time to begin “an uncomfortable” conversation about racial disparities in the youth justice system.
He made the comments to Models for Change stakeholders gathered here to discuss the John D. and Catherine T. MacArthur Foundation’s final evaluations of the $121 million juvenile justice reform initiative, which began in 2004. It ended as MacArthur changed its emphasis from reforming youth justice to jail reform.
The daylong meeting centered around the many success Models for Change helped bring about, from reducing incarceration sentences to influencing states to stop shackling youth in courts to raising the age at which teens are treated as adults in court.
Bobbe Bridge, founder and president of Center for Children & Youth Justice in Washington state, said, “Models for Change was certainly the catalyst in accelerating reform. We have certainly changed the conversation.”
Yet, thanks in part to Models for Change support for data collection, it is apparent that racial disparities in the youth justice system, if anything, have gotten worse, not better.
A MacArthur-commissioned evaluation of Models for Change by Mathematica Policy Research found that disparity “persists, mostly at pre-Models for Change levels.” The Sentencing Project recently reported that in 2015 black male youth were five times more likely to be locked up than white youth.
Speaking of the reforms, Bell said, “What we now know after 10 years of informed analysis is that all of those things have benefitted white kids and the racial disparities persist.”
In the past, he said, the reformers wanted “to get something rather than nothing” so the discussions that might have made decision-makers uncomfortable didn’t happen. Now, he says, “As we go into 2.0 of reform policy we are going to make people very uncomfortable to examine why the disparities still persist.”
Laurie Garduque, who led the Models for Change initiative at the MacArthur Foundation, said although the disparities rate has not improved, the harm done to youth in the system has been reduced for kids of color. “Fewer of them are being swept up in the system, more of them are being diverted and remain in the community, fewer are incarcerated; the incarceration rate has dropped dramatically, somewhere between 40 and 60 percent depending on the state,” she said.
She added, “You are dealing with a host of economic, structural and political issues … you can’t expect the justice system to overcome. So there has to be an acknowledgement that we can make the system fairer and more just, but the deck is stacked against certain groups in such a way that it is very hard to make it equitable.”
The Mathematica evaluation reports that in states where Models for Change concentrated its effort:
“Significant paradigm shifts not only continued during Models for Change, they were propelled by it ...
“State and local stakeholders became more aware of the harms of detaining youth, particularly low risk youth, in out-of-home placements.
“The poor conditions that characterized confinement drew attention and litigation.
“Evidence mounted about the ill effects of formal involvement in the justice system.
“As these perspectives took shape, so did intentions to divert youth from pretrial detention and secure confinement and from the justice system entirely.
“As interest in diversion and serving youth in the community grew, evidence-based programs emerged as desirable alternatives to secure confinement and formal processing.“
Donald K. Ross of Malkin & Ross said his public policy firm, which worked for Models for Change, hired 56 different lobbying firms to work with states to help bring about reforms. For example, at the beginning of Models for Change in 2004 only 10 states forbade shackling of youth in courtrooms. Today there are 31 such states.
Marsha Levick, deputy director and chief counsel of the Juvenile Law Center, said that when the U.S. Supreme Court ruled that kids are different, it gave everyone the freedom to use the youth developmental language. Yet, “what we haven’t eliminated is a persistently punitive response to offending in this country that still infiltrates and drives our criminal justice system.”
Garduque said the research the MacArthur Foundation helped underwrite established the legally relevant ways that kids are different from adults, which was made concrete by Supreme Court decisions. Now there is a reluctance to think of young people as the worst thing they have done and focus instead on the individual young person.
The field was forced to ask, she said, “How can we hold young people accountable for their transgressions in ways that recognize that they are not adults and doesn’t jeopardize their future life chances and gives them the skills and competencies to become successful adults?”
What’s most gratifying for her is that “Those principles have been adopted and now seem to be secure and are the basis for another generation of law and policy reform where we are rolling back those harsh and punitive sanctions.”
Leonard Witt is executive director of the Center for Sustainable Journalism, the publisher of the JJIE. The JJIE was a MacArthur Foundation Models for Change grantee.
Hello. The national Knight Foundation and the Democracy Fund like our work so much that they have agreed to match donations of up to $1,000 per person. They will spend up to $28,000 through the end of December.
So this would be an especially good time to donate to the Juvenile Justice Information Exchange. Any money you give us up to $1,000 will be doubled.
Our independent journalism on the juvenile justice system takes a lot of time, money and hard work to produce. But we believe it’s crucial — and we think you agree.
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.
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 Millerprinciples 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.
When I was 17, I accepted a plea agreement and 25-year prison sentence to avoid the likelihood of spending the rest of my life in prison.
I had been involved in the death of another person. Prosecutors initially charged me with first-degree murder and aggravated robbery and planned to seek a sentence of life without the possibility of parole. When they offered instead to allow me to plead guilty to the robbery charge plus facilitating first-degree murder, I quickly agreed. My co-defendant wasn’t so fortunate. He was sentenced to life with parole eligibility after 51 years, plus 25 years.
My home state of Tennessee has yet to ban life without parole for children or penalties that are their functional equivalent. Instead, children who are not yet able to vote, buy cigarettes or join the military are told they are worth nothing more than to die in prison. The U.S. Supreme Court has scaled back the use of the most extreme penalties and mandated review opportunities for everyone who, as a child, received a mandatory life without parole order. Yet, as the Associated Press highlighted in a series, where a child committed a crime plays a disproportionately large role in whether their review will truly be meaningful or if they will even have one in a timely manner.
A few days before my arrest, I had been making plans for college, where I hoped to study child development and become a social worker. But I first needed to earn another credit to get out of high school and had asked the younger brother of a fellow gang member to consider enrolling with me.
Once he agreed, we sat around smoking marijuana and drinking alcohol. He suggested we act out a scene from a movie. Our plan was go to a convenience store, taking along two guns — one of which was nonfunctioning and the other supposedly had no bullets — to frighten the store employee and anyone who walked up. We’d grab more beer and run.
I agreed to stand watch as he went inside for what seemed like forever. Then I heard gunfire and he ran out. I went into the store and found Mr. Cantrell lying on the floor unresponsive. I ran, and we were arrested a few hours later.
I am deeply remorseful that I had a role in taking the life of another person. I can never repay what I took, and have been inspired to spend my life working to help children avoid the mistakes that I made. I also want to help create a justice system that holds children accountable in age-appropriate ways, accounts for their exposure to trauma and prepares them for reintegration into society.
My story is similar to that of many other youth who have gotten into serious trouble. Throughout my early childhood, I saw my alcoholic father physically abuse my mother. She, my siblings and I were sometimes so afraid that we hid in my bedroom, barricaded the door with furniture and prayed he would never return. I remember one particularly harrowing evening when my mother attempted to escape with the children. He appeared, seemingly out of nowhere, knocked my mother to the ground then grabbed her hair and dragged her through the mud. When she finally broke free, we drove to the police station, where she filed a restraining order against him. I was shaken to my core.
Even after my mother moved us to a new neighborhood, with a new house and a new school, my father showed up drunk late at night, creating lots of noise. The neighbors sometimes came out of their homes just to watch, and neighborhood kids mocked me at school.
By the time I was in sixth grade, though, I began to use academics as an escape from my world. That all changed when we moved again. At the new school, other kids said I spoke up too often in class and studied too much. In an effort to be more like the people around me, I stopped studying and even failed ninth grade. I also became an active gang member. I saw it as a way to end the loneliness.
I developed a practice of ending each school day at lunchtime. Before long, I began transporting and selling marijuana. My mother learned I wasn’t going to class when my high school sent a letter during my senior year, informing her that I had missed so many days of school that I would need to attend summer school in order to graduate.
That led us to that day in 1994, when marijuana, alcohol and the impulsivity of a child with a still-developing brain led me to take part in an unthinkable crime.
While in prison, I grew up. I denounced my gang membership, earned my GED, became a licensed barber and studied psychology and child development. These classes helped me understand the impact of the trauma that I and others had experienced and enabled me to counsel others in denouncing their gang memberships.
In addition, I completed anger management counseling and joined the Parents in Prison group, which helped men focus on the needs of their children. I was not a parent, so I spent the next year thinking about my needs as a child and how those needs could be addressed for children in situations similar to what I had experienced.
On my third visit to the parole board — and after I had served 10 years — the board granted my release. I stayed in Nashville and worked for a barbershop for a while. Then I began volunteering in a local school, working with children who were disruptive in the classroom, teaching them conflict resolution skills and helping them access other services they needed. I was then asked to do this work as an AmeriCorps volunteer with the Community Health Corps in Nashville, then as a full-time employee of the agency.
I was later was hired to direct a YMCA of Middle Tennessee outreach program that provided services to 25 to 30 students each year who faced issues similar to what I had experienced as a middle school student. Along the way, I also helped found the Incarcerated Children’s Advocacy Network (ICAN), a national network comprised of and led by individuals who went to prison as children for serious crimes and are now out living productive lives. All our members were charged with homicide-related crimes and/or faced life without parole as a child.
My original 25-year sentence expired March 3, 2016. I had no infractions during my 12 years of parole. A year later, I joined the Campaign for the Fair Sentencing of Youth, where we work to replace life without parole and other extreme penalties for children with age-appropriate accountability that accounts for children’s experiences and unique capacity for change.
I’ve dedicated every day of my free life to demonstrating that I am worthy of this second chance. I’ve tried to make sure fewer families suffer the same losses as the Cantrell family. I’ve poured myself into the lives of many.
And I am not unique. The members of ICAN, which I now help to coordinate, do the same, as do many other formerly incarcerated youth I have never met. We are all more than the worst thing we have ever done. We just need an opportunity to prove it.
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, then 17, was convicted of capital murder in the 1983 killing of 16-year-old Kathleen Bedsole during a robbery and kidnapping. As an accomplice, Kinder was spared the death penalty, but got life without parole. The 21-year-old gunman, David Duren, went to the electric chair in 2000, having dropped his appeals after a religious conversion.
Jaffe called Kinder’s resentencing “excruciating” and “heart-wrenching.” It featured testimony from Bedsole’s boyfriend, who survived his wounds that night. But guards and teachers at the prison where Kinder has been locked up testified that he has been a model prisoner. His disciplinary record includes only one infraction, and he earned a high school equivalency diploma, an associate’s degree from a community college and a trade school diploma in furniture refinishing.
In addition, Duren’s attorney signed an affidavit recounting that his client had said he made the decision to shoot Bledsoe and her boyfriend without telling Kinder, and that Kinder had told him there “was no need to shoot.” Jaffe said Circuit Judge Teresa Pulliam found Kinder “was not only rehabilitatable, but had been rehabilitated.”
Pulliam has scheduled several other hearings for inmates convicted in Jefferson County, the state’s largest, said Michael Hanle, president of the Alabama Criminal Defense Lawyers Association. But for convicts in other counties, there’s little movement, he said.
“We’re not quick to the table,” said Hanle, who is also Jaffe’s law partner. Rural counties especially “are not moving as quickly as in some other jurisdictions, and they’re having a little more difficult time.”
Many judges aren’t eager to reduce sentences, and defense lawyers are often court-appointed and lack the resources to assemble their case. But the biggest obstacle is time, he said.
“Some of these guys have been in prison 20, 25, 30, 35 years, and a lot has happened during that time,” Hanle said. Finding witnesses becomes harder, and it’s more difficult to present testimony that would point toward a lighter term.
“And of course, a defendant has a lifetime literally in the Department of Corrections, which comes with its ups and downs,” he said. “Some of them have gone on to do great things as far as their education, training and rehabilitation. Others have had problems, and all those things are going to be brought back up during the resentencing.”
Hill said the judges he knows “all want to follow the law, whether they like it or don’t like it.”
“I think it’s a necessity that we do it,” he added. “It’s one of those things that when you see what the situation is, you need to address it. It took us a couple of years to address it, but we did, and I’m very glad that we did.”
Miller is represented by the Montgomery-based Equal Justice Initiative, which took his case to the U.S. Supreme Court. Bryan Stevenson, EJI’s executive director, did not respond to a request for comment.
Nationwide,about 2,500 inmates are eligible for new hearings under the Miller and Montgomery decisions. It’s not clear how many of them have had those hearings, but states well beyond Alabama have been slow to schedule them, said Josh Rovner, a juvenile justice advocacy associate at The Sentencing Project.
“While there are certainly states that have sharp declines — sometimes because state supreme courts required it — in many cases, the states barely budged in the number of people serving life without parole for things they did as a juvenile,” Rovner said.
For example, Iowa has moved quickly to resentence inmates eligible for new hearings under Miller, and it has eliminated mandatory minimum sentences for crimes committed by juveniles altogether, Rovner said. But in Arkansas, a judge recently struck down the state’s new sentencing law because it failed to provide for individualized hearings. And the three states with the most juvenile life-without-parole sentences — Michigan, Louisiana and Pennsylvania — “really dragged their feet on this,” he said.
“The facts are rarely in question,” Rovner said. “The question is what is the juvenile’s maturity, involvement in the offense, what was his family life like — these are questions that are able to be answered.” Caseloads and procedures might move at different paces in some places, but he said waiting five years since the Miller decision “is preposterous.”
Hello. We have a small favor to ask. Advertising revenues across the media are falling fast. You can see why we need to ask for your help. Our independent journalism on the juvenile justice system takes a lot of time, money and hard work to produce. But we believe it’s crucial — and we think you agree.
If everyone who reads our reporting helps to pay for it, our future would be much more secure. Every bit helps.
Decades of research from the fields of criminology and adolescent brain science find that the decisions made in youth — even very unwise decisions — do not crystallize criminality. Instead, as young people age and mature they develop the capacity to make different choices.
Fortunately, more informed policies have begun to replace the punishments that proliferated during the 1990s when fear of “superpredators” and calls for “adult time, adult crime” dominated youth crime policy. The incarceration rate for youth in juvenile and adult systems soared then. Today, youth incarceration in juvenile facilities is now half its level of 20 years ago. Driven by the work of advocates, legislators, researchers and judges, many now readily acknowledge that the juvenile justice system should be used sparingly and only for those who truly need confinement.
Based mostly on the adolescent brain science discoveries that concluded that executive functioning is not fully developed until adulthood, in 2005 the Supreme Court ruled in Roper v. Simmonsthat the death penalty for juveniles violated the 8th Amendment. The Supreme Court has taken up the issue of severe sanctions for juveniles three more times since then, and as a result there are restrictions in the use of life without the possibility of parole (LWOP) for juveniles.
Changing public sentiment regarding the wisdom of sending young people to adult prisons has led policymakers in many states to revise misguided policies in this area. Many juveniles who would otherwise be languishing in adult prisons are now either in juvenile confinement facilities that are better designed for their needs or have been diverted from confinement altogether. In 2015, the number of juveniles held in adult prisons declined to less than 1,000, an 82 percent drop from the peak year in 1997.
These reforms have not resulted in any adverse public safety outcomes. Crime continues to be at historic lows.
Despite these advances, more than 9,000 people who were convicted as youth still do not stand to benefit from reforms either in the juvenile system or of the restrictions on punishments in the adult system. The Sentencing Project recently released a national study on the prevalence of life sentences nationwide, disaggregated by crime of conviction, race and ethnicity, gender and juvenile status. We obtained data from the states and federal Bureau of Prisons on the number of people serving three categories of life sentences: life with the possibility of parole (LWP), LWOP and virtual or de facto life sentences that amount to terms of 50 years or more. We learned that 1 in 7 prisoners is serving one of these sentences and that nearly 6 percent of the lifer population was under 18 at the time of the crime.
Aside from the roughly 2,300 individuals serving JLWOP there are approximately 7,000 juveniles who are serving parole-eligiblelife sentences around the country. For them, a statutory mandate or judicial decision has determined that spending the rest of their life in prison is reasonable if parole is not granted sooner. In New York, Georgia and Texas, more than 600 people sentenced for crimes in their youth have parolable life sentences. In California, which leads the nation in the category of life sentences, a notable 2,700 individuals are serving parole-eligible life for a crime committed under age 18.
In addition to the 7,000 juveniles serving life with parole, nationwide 2,000 individuals are serving de facto life sentences of 50 years or more for crimes committed when they were less than 18 years old. Louisiana reports 600 virtual lifers who were juveniles when their crime occurred and Texas reports nearly 450 such individuals.
The crimes committed by these juveniles were typically serious: 82 percent of lifers with the possibility of parole have been convicted of a homicide, and for half of these the crime was a first-degree murder. Among those serving de facto life for crimes committed as juveniles, 56 percent were convicted of a homicide and 94 percent were convicted of violent crime, including 22 percent for aggravated assault.
As with all life sentences, racial disproportionality is evident. African-American youth comprise more than half (53 percent) of the parolable and virtual life sentences, slightly less than their composition among the JLWOP population (63 percent). Overall, youth of color make up 81 percent of those serving life and virtual life sentences.
Some states stand out in the proportion of life and virtual life sentences being served by those who were young at the time of the crime. In Wisconsin, for instance, more than 11 percent of the life-sentenced population was a juvenile at the time of the crime. And while a first opportunity for parole comes after “only” 20 years in Wisconsin, we know from mounting research in parole politics and practices that rates of granting parole have fallen, particularly for those convicted of serious crimes and serving lengthy sentences. In Georgia, which in 2016 reported 600 people serving parole-eligible life sentences for crimes committed in their youth, the first opportunity for parole does not occur for 25 to 30 years. In Tennessee, the first parole hearing occurs only after a minimum of 51 years.
The requirement set forth in Graham v. Floridaof a “meaningful opportunity for release based on demonstrated maturity and rehabilitation” has shined a bright light on parole systems’ capacity and willingness to afford a second look, and when this should occur. In June, the Supreme Court ruled in Virginia et al. v. Dennis LeBlanc (582 US ___)that Virginia’s “geriatric release” mechanism provided a sufficiently meaningful opportunity for release. Geriatric release allows review for those 60 years old and older; this means that LeBLanc and other people in his position will wait more than 40 years before being considered for release.
This and other lengthy terms of imprisonment stand to violate the spirit if not the letter of the recent court rulings. They also conflict with recent recommendations of the American Law Institute, a respected body of legal scholars and law practitioners that proposes a review after 10 years for any juveniles sentenced to terms longer than this.
Revised state laws for sentencing juveniles are being developed in the aftermath of the Supreme Court rulings. It is important to include in these considerations all youth with life and lengthy terms; their potential for reform and maturation is just as likely as for those sentenced to life without parole.
If I had to name a single U.S. Supreme Court case that effectively highlights the entrenched problems of the American criminal justice system, it would be Montgomery v. Louisiana: from the 1963 murder of Charles Hurt Jr., a white deputy sheriff in East Baton Rouge, to the conviction of Henry Montgomery, a developmentally disabled African-American teenager, to the ensuing half-century during which Montgomery has been warehoused at the Louisiana State Penitentiary in Angola.
In other words, when Montgomery v. Louisiana is viewed through almost any critical lens, the deep fissures in our broken system are clearly apparent: the legacy of Jim Crow as reflected in the disproportionate representation of people of color in today’s courtrooms, jails, and prisons; the nation’s continued reliance on mass incarceration to solve intractable societal ills; and the refusal of many prosecutors, judges, and juries to consider criminal offenders — even those who are children or are intellectually compromised — as worth more than the worst thing they have ever done.
In November 1963, Deputy Hurt was shot and killed in a park in Scotlandville, a town in the segregated South that has since been annexed by Baton Rouge but which at the time was the largest majority African-American town in Louisiana.
At the time of his death, Deputy Hurt was on patrol, looking for kids who were truant from school. One of his daughters has described her late father as someone who “saw beyond race at a time when such vision was uncommon at best” and even initiated a “Junior Deputy” program for boys from Scotlandville.
Immediately after the shooting, there was a wide-ranging search for Hurt’s killer, with hundreds of deputies and police from neighboring parishes setting up roadblocks and making mass arrests in Scotlandville. Dozens, if not scores, of African-American men from 12 to 59 years old were arrested, held and questioned about the murder.
Among those arrested was Henry Montgomery, a mild-mannered 10th-grader with intellectual limitations who had turned 17 only two weeks earlier. Unfortunately nicknamed the Wolf Man due to his oversized teeth (an “alias” that was publicized prior to the trial), Henry lived with his grandparents, as his mother was autistic and had her own challenges.
Detectives brought Henry to his grandparents’ house, where he pointed out a .22 caliber pistol in the rafters and then accompanied them to the park where he re-enacted the crime. The detectives audiotaped Henry’s confession, during which he stated that he had left school to take a nap in the park and had run into Deputy Hurt behind the recreation center. When Hunt was patting him down, Henry panicked and shot him with the pistol he had placed in his jacket pocket.
In February 1964, a jury of 12 white men deliberated for a day and half before returning a guilty verdict and a death sentence for Henry Montgomery. The Louisiana Supreme Court reversed his conviction two years later and ordered a new trial due to the trial court’s denial of both a motion to continue and a motion for a change in venue, which had been based on threats of cross burnings by the Ku Klux Klan before the trial and East Baton Rouge Parish’s adoption of a resolution proclaiming the first day of the trial to be “Charles Hurt Day.”
Five years later, although the mood of the community was calmer, it took another all white and male jury a mere 90 minutes to convict Henry of first degree murder, after which he was sentenced for an offense committed as a juvenile to mandatory life without parole (JLWOP) and sent to Angola.
Fast-forward 50 years. Henry Montgomery is 69 years old and the U.S. Supreme Court has held in a 6-3 vote, written by Justice Anthony Kennedy and including Chief Justice John Roberts along with the liberal contingent of the court, that its June 25, 2012 decision in Miller v. Alabama declaring that life without parole should be reserved for only the “rarest of children” whose crimes reflect “irreparable corruption” applies retroactively.
This means that Montgomery, along with the approximately 1,000 or more inmates whose sentences were imposed before Miller (in states that had subsequently found Miller not to apply retroactively or had not yet addressed the question), will now have an opportunity for release.
In fact, the court in Montgomery has gone a step further than many anticipated by suggesting that, rather than conduct resentencing hearings in which the parties must opine whether the inmate was “permanently incorrigible” at the time of the original sentence, states may instead consider whether the inmate should be considered for parole, i.e., release from prison under specified conditions.
The court even referenced (although it did not confirm) Henry Montgomery’s good behavior at Angola, including the fact that he established an inmate boxing team and served as a role model to other inmates, as “relevant” examples of “one kind of evidence that prisoners might use to demonstrate rehabilitation.”
The process by which the court decides that a decision is retroactive was established in its 1989 ruling in Teague v. Lane, which requires retroactive application when the court declares a new rule of “substantive” law but not one of “procedural” law.
With Montgomery, the court ruled that Miller’s prohibition of mandatory life without parole for juvenile offenders was more than a procedural rule merely requiring the judge or jury to consider the defendant’s “youth” before the sentence. Instead, the court ruled that Miller more profoundly “rendered life without parole an unconstitutional penalty” for juveniles whose crimes “reflect the transient immaturity of youth,” and, thus, was the announcement of a new substantive rule.
In classic form, Justice Antonin Scalia’s dissent, joined by Justices Clarence Thomas and Samuel Alito, contends not only that the court lacks jurisdiction to decide the case (meaning that the rule of Miller was procedural and not substantive), but that “the decision it arrives at is wrong.” He asserts that the court’s resolution of the jurisdictional issue is ends-oriented, driven by the majority’s desire to reach the merits rather than a commitment to follow precedent, which he calls “nothing short of astonishing.” He argues that rather than apply Miller to the facts at hand, the majority rewrites it: “This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders.”
It remains to be seen whether Montgomery v. Louisiana will be the death knell for JLWOP. As it stands, judges maintain the discretion to conclude that particular juvenile offenders convicted of homicide are, in fact, intrinsically incapable of redemption and will never be fit to re-enter society. There may be resentencing hearings and reviews by parole boards, but there are no guarantees of release, as we have already seen in states that have found Miller to be retroactive.
Yet, it cannot be denied that Justice Kennedy has continued to chip away at what he considers to be “disproportionate” and thus unconstitutional punishment for juveniles: with Roper v. Simmons, it was the death penalty; with Graham v. Florida, it was JLWOP for nonhomicide offenses; and with Miller v. Alabama, it was mandatory JLWOP for homicides.
With Montgomery, the court’s most consistent swing voter has authored an opinion that leaves little room for the state to justify sentencing a juvenile to die in prison. As Justice Kennedy wrote over a decade ago in Roper, “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”
Tamar Birckhead is a criminal defense attorney, law professor and director of clinical programs at the University of North Carolina at Chapel Hill School of Law.
WASHINGTON — More than 50 years after Henry Montgomery went behind bars, the Supreme Court took up his case today so as to decide whether prisoners serving mandatory life without parole sentences for murders they committed as juveniles should have a chance at release.
In 2012, the justices ruled 5-4 in Miller v. Alabama that mandatory life without parole sentences for juveniles (JLWOP) are unconstitutional on Eighth Amendment grounds.
Now, in Montgomery v. Louisiana, the question for the court is whether the Miller decision should apply retroactively. If the justices rule it should, as many as 2,100 prisoners across the country would qualify for a resentencing hearing.
Montgomery has spent decades in prison since he was convicted in the shooting death of sheriff’s deputy Charles Hurt in East Baton Rouge, Louisiana, in 1963. He was 17 at the time of the murder.
During oral arguments, the justices focused on two questions: whether they have jurisdiction to hear the case and whether Miller set out a new substantive sentencing rule, as opposed to a procedural one.
The latter question depends on an analysis of Teague v. Lane, which sets standards for whether new rules should be retroactive based on whether they are substantive.
Montgomery’s lawyers have argued Miller is substantive and therefore retroactive because it bars a category of punishment from being imposed on a category of defendants.
However, lawyers for Louisiana say Miller is only procedural because the decision still allows for a sentence of juvenile life without parole at the discretion of a judge or jury that considers factors such as age or potential for rehabilitation.
“Leaving the punishment on the table is critical,” said S. Kyle Duncan, a lawyer for Louisiana, during the argument.
Justice Elena Kagan, who wrote the Miller decision, questioned Louisiana’s interpretation during the arguments. She said there is a process component to Miller — establishing factors juries and judges should consider when juveniles are being sentenced for murder — but it is not the only component of the decision.
“What the court has done is say, ‘There have to be other options,’” she said.
Marsha Levick, co-counsel for Montgomery and deputy director and chief counsel for the Juvenile Law Center, said after the session that Kagan’s line of questioning was welcome.
“Her questions seemed to suggest that she felt it wasn’t just about process,” she said.
The landmark Miller decision was the latest in a series from the court rooted in the idea that children should be treated differently than adults because they are less culpable for their actions and have the potential to change.
“Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences,” Kagan wrote for the majority in the decision.
However, much of Tuesday’s arguments focused not on Miller, but on whether the Supreme Court has jurisdiction over the case.
Lawyers for both Montgomery and the state agree the court has jurisdiction. However, because the court itself has questions, a court-appointed lawyer argued against that position.
The central issue stems from Louisiana’s decision to apply the Teague standard to its ruling that Miller is not retroactive. The court wants to know whether that voluntary choice makes the case a state or federal question.
The court will have to decide whether it has jurisdiction before considering the retroactivity question.
If the court declines the case, Duncan said after the session, that won’t be the final word.
“The court will have to reach the merits at some point because there are many cases presenting the same issue,” he said.
Should the court decide in Montgomery’s favor, then prisoners across the country would be eligible for resentencing.
Levick said Montgomery and others like him deserve the opportunity for resentencing.
“They’ve matured in prison, they’ve grown up in prison. They’ve developed skills and opportunities that they can use in the community and many of them should have that right to get back into the community,” she said.
Duncan said after oral arguments that resentencing hearings would impose a significant burden on the states.
“It would make the state do a fact-intensive resentencing for thousands of offenders who are nonetheless facing a constitutionally valid sentence,” he said.
In the federal system and states that have decided Miller is retroactive, resentencing hearings already are underway.
In those states, judges have to consider the factors that the Supreme Court set out in Miller: including a juvenile’s age, home life, capacity to understand the criminal justice system and potential for rehabilitation.
Courts in 12 states have applied the Miller ruling retroactively: Arkansas, Connecticut, Florida, Illinois, Iowa, Massachusetts, Mississippi, Nebraska, New Hampshire, South Carolina, Texas and Wyoming. Courts in seven states have ruled otherwise: Alabama, Colorado, Louisiana, Michigan, Minnesota, Montana and Pennsylvania.
BATON ROUGE, La. — These days, Henry Montgomery, 69, is known as the man of few words who works in a gym at the Louisiana State Penitentiary at Angola.
Josh Carter, 70, worked next to Montgomery for years, cleaning a prison gym after games, but he knows little about his friend. “He is an easygoing fellow,” Carter said. “But he never said anything about himself.”
His attorney from a half-century ago believes that’s an enduring sign of developmental delays. Montgomery was a “slow learner,” with an IQ in the low 70s, said Johnnie Jones, now 95. He still remembers the day when Montgomery, then 17, was picked up for the murder of a deputy just outside Baton Rouge.
Though Angola holds more than 4,000 lifers, few inmates have served as long as Montgomery. He has been there nearly 50 years, with no hope of release since his appeal became final in 1970. On the other side of the prison, inmate carpenters make caskets for lifers like him.
Tuesday, Henry Montgomery will be propelled into the national spotlight when the U.S. Supreme Court hears his case, Montgomery v. Louisiana.
Justices will decide whether to offer hope of parole to prisoners automatically sentenced to life in prison for crimes they committed before they turned 18. The ruling will impact 271 prisoners like Montgomery in Louisiana and between 1,300 and 2,100 across the nation. (The range is so wide because most prison systems don’t track prisoners who were juveniles at the time of their offense and because some prisoners have been recently released in individual court decisions that are difficult to track.)
The U.S. Supreme Court took up Montgomery’s case to resolve differing state interpretations of its landmark 2012 ruling, Miller v. Alabama, which banned automatic life-without-parole sentences for youth.
“Mandatory life without parole for a juvenile,” the justices wrote, “precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences.”
Citing Eighth Amendment prohibitions on excessive punishment, the justices struck down laws mandating life sentences without parole for juveniles in 28 states and in the federal court system.
In some states, the ruling cleared the way for some prisoners with life sentences to be freed. But states disagreed on whether the ruling applied to prisoners who had already received mandatory life sentences as juveniles.
Courts in 12 states have applied the Miller ruling retroactively: Arkansas, Connecticut, Florida, Illinois, Iowa, Massachusetts, Mississippi, Nebraska, New Hampshire, South Carolina, Texas and Wyoming. Courts have ruled otherwise in seven states: Alabama, Colorado, Louisiana, Michigan, Minnesota, Montana and Pennsylvania.
A few states have dealt with it legislatively, passing laws offering parole review after defendants have served a certain number of years, ranging from 25 years in North Carolina and Washington to 35 in Delaware.
The U.S. Department of Justice instructed federal prisons to identify prisoners affected by the Miller ruling. It has weighed in on Montgomery, saying the decision should be retroactive.
In Louisiana, Montgomery appealed to the U.S. Supreme Court after the state supreme court shot down his plea for resentencing.
The argument for Montgomery: Young criminals can change
The U.S. Supreme Court is not concerned with Montgomery’s guilt or innocence. Rather, his lawyers are asking the court to resolve his “unconstitutional confinement.” Because of the Miller decision, they argue, Montgomery and others convicted of murder as juveniles were imprisoned under a now-unconstitutional legal structure — one that didn’t take their youth into consideration and mandated an automatic sentence of life without the possibility of parole.
Among those arguing against retroactivity is the state of Louisiana, which contends that its prosecutors would have to reconstruct hopelessly old cases, like the one against Montgomery in the 1963 shooting death of Charles Hurt, a sheriff’s deputy.
In his case, the state argues that the court would have to determine “whether Montgomery’s youth should have impacted the sentence he received for a crime he committed a half-century ago ... in a case where, as far as counsel can tell, virtually everyone involved … is dead.”
East Baton Rouge Parish District Attorney Hillar Moore III, one of the authors of the state's argument, believes the case against retroactivity is strong. "If the court opens the door on this, when is any case ever finalized?" he asked.
The state’s contention is supported by Hurt’s daughter, Becky Wilson, who filed a brief along with the National Organization of Victims of Juvenile Murderers. Wilson was 9 years old in November 1963, when her father was fatally shot in a park near Baton Rouge. Making Miller retroactive would “deprive surviving family members of the finality that they have had for years,” Wilson and her group wrote.
Several groups and experts arguing for or against Montgomery have filed briefs with the Supreme Court documenting stories like his. They describe youths who committed murders in circumstances both grisly and appalling. Yet, over and over, petitions filed on behalf of Montgomery argue that the people who committed these crimes have changed and are now worthy of one specific form of mercy: a parole hearing.
One group of unlikely allies from Louisiana submitted an amicus brief. Pascal Calogero, a former state supreme court chief justice, wrote a joint petition with criminologist Burk Foster, former Angola warden John Whitley and the Louisiana Center for Children’s Rights.
Despite disparate experiences, the four parties shared a common understanding, they wrote: “They all have observed juvenile offenders, convicted even of the most serious crimes, processed through one of the most historically difficult systems of justice, and housed under the most violent, hostile, and hopeless conditions, who can and do find the spark of rehabilitation, and who can and do grow and develop to the point where they could be welcomed back into society.”
The Miller decision is premised on a similar sentiment, that life without parole was “at odds with a child’s capacity for change.”
As a young prisoner, Montgomery made choices that can be seen in the man he is today, said Calvin Duncan, a former Angola inmate who was held for 28 years for a crime he didn’t commit and lived in the same dorm as Montgomery at one point. “He was no trouble,” said Duncan, who doesn’t remember Montgomery ever getting a disciplinary write-up.
After observing Montgomery, Duncan concluded that he was “impressive.” After all, by the time Duncan made it to Angola in the late 1980s, Montgomery’s chances at an appeal had been dead for nearly two decades. “The law said that he was going to die in prison,” Duncan said. “Despite that, he did positive things, helping to coach the young guys, and working at the gym.”
Angola officials don’t allow reporters to talk with prisoners about cases, but Montgomery’s cousin Diane Coleman approached him on behalf of the Juvenile Justice Information Exchange during a recent visit. He told her that he had been advised by his attorneys not to comment.
He might not have said much anyway, said his aunt Janie Smith, 88, who typically visits him once a month with Coleman, her daughter. Yet Coleman and the rest of her family don’t equate Montgomery’s taciturn nature with a lack of intelligence because he comes from a long line of understated people.
Smith remembers him as a mild-mannered teenager who was raised by her parents until his arrest. She hates to see him in Angola, and she hopes that the Supreme Court hearing could lead to his release. “I keep praying for him,” she said. “I pray that God will open a door for him.”
Coleman, who is now 60, started visiting him almost 40 years ago. Before that, no one in the family was able to, she said. Their grandparents, who raised Montgomery, were elderly. His mother was autistic and unable to visit him on her own, she said. “They basically swept him under the rug.”
Though Angola’s rules allowed visits only from immediate family, Coleman was allowed to begin seeing him close to 10 years after he’d arrived, after prison officials looked through their records and found that no one else had come.
Coleman said her cousin has always been generous with his advice. Over the years, he has become a hero of sorts to her, she said. “Despite all that he’s been through, he is always cheerful and smiling.”
A shooting, and a roundup
Coleman was in grade school when her cousin, whom she calls by his last name, was arrested. She’s heard about that day all her life. First, deputies came to the house and roughed up her uncle, Wendell Smith.
“They beat him right in the presence of my grandmother,” she said. “The next thing that the family knew, they were getting Montgomery.” Like school friends who grew up with him, she also occasionally refers to him by his nickname, Wolf Man, given to him because of his oversized incisors.
Hurt had been killed in a park the day before Montgomery was arrested. His lawyers consistently argued that Montgomery, who was skipping school that day, became terrified and killed Hurt as the deputy frisked him.
Others aren’t sure he did it. After all, it was the early 1960s and police were often heavy-handed in working-class, African-American communities. Before it was annexed by Baton Rouge 40 years ago, Scotlandville, where the murder was committed, was the largest majority-black town in Louisiana. It was a place where boys grew up hearing stories of innocent men who were picked up for random crimes and sent to prison.
To neighbors, a guy like Montgomery, who had known cognitive impairments, seemed like an easy scapegoat, someone who might be prone to confess.
Stories from that day don’t shed any light on Hurt’s shooting in the park, but they do help to place the crime in the context of the time.
One of the tragic ironies of the case is that, according to his daughter’s brief, Hurt had been assigned to Scotlandville because he was considered racially fair-minded. As his daughter wrote, “Hurt was different … because the Louisiana of the 1960s did not generally think that way.” He chose to work with the juvenile division and started a Junior Deputy program for boys from Scotlandville.
As a result, Hurt was familiar with the part of Scotlandville where he was killed. Outside the park’s entrance, some of the roads meander and feel almost rural. Many of the streets are named for birds — Cardinal, Grebe, Osprey, Cormorant, Sparrow, Goose. Its narrow streets are lined with large trees and modest homes, dotted with a few churches, auto shops, a liquor store and an American Legion hall.
Yet the area felt like a war zone the day Hurt was killed. Nearly 300 deputies and police officers from neighboring parishes came to set up roadblocks and make mass arrests. Black men and teens were detained all across Scotlandville that afternoon.
Seven of the arrested men located by the Juvenile Justice Information Exchange remember that day clearly, even 52 years later.
“Long as you were black, they were picking you up,” said Louis Walker, now 70, then a recent high school graduate who was arrested as he walked out his door on his way to look for work. That matches with the memory of Joe Louis Bowie, now 73. He was getting off the bus from New Orleans when deputies nabbed him. “Young, old, crippled, crazy, they were picking them up,” he said.
A Baton Rouge Morning Advocate story described the wide-ranging search. “Every Negro fitting the general description of the suspect, thought to be tall and slender, was apprehended.” Though bloodhounds were brought in, they didn’t pick up a scent, the newspaper reported.
In 1963, Isaiah Henry, then a 29-year-old military veteran, was arrested as he and five classmates drove home from Southern University, which sits on a curve of the Mississippi River across the railroad tracks from the park.
“What I saw: a lot of white officers and a lot of black people being questioned,” said Henry, now a retired math teacher. He recalled that he and his fellow students called Ulysses S. Jones, the university’s now-legendary dean, who came down to headquarters, talked to the sheriff and got them released.
There was no outrage about the roundup, Henry said. “I guess at that time it was just a part of life.”
Even today, if Morris Scott, 78, sees flashing lights and police cars lined up, he will not stop to ask what happened.
The day Hurt was killed, Scott was headed to work not far from his house on Oriole Street. He always walked past a cab stand on Scotland Avenue, where he’d often stop to jaw with his friend, a cabbie. That day, they heard all sorts of sirens a few blocks away. Scott hopped into his friend’s taxi for a three-block drive to Anna T. Jordan Park, the scene of the crime.
A sheriff’s deputy had just been killed, a neighbor told Scott as several dozen people watched a crowd of white police officers search bushes and high weeds in the park. Then the officers moved toward the park entrance and trained their guns on the crowd, fingers on the triggers, Scott said. “They said, ‘Don’t nobody move.’”
It was the biggest manhunt ever seen in Scotlandville, said Scott and the other men, now elderly. The jail log for that day includes the handwritten names, ages and addresses of 60 men from 12 to 59 years old. In the column where a suspect’s crime was typically recorded, deputies simply wrote “investigation.” The Morning Advocate reported that the men were “booked for investigation and jailed,” then fed peanut butter, jelly and ham sandwiches for supper, and kept overnight.
Scott was taken to the sheriff’s office in a paddy wagon with 30 people. “We were sitting three high, one on top of each other,” he said, estimating that the police rounded up a few hundred people that day. Henry too thought the actual numbers were much higher than 60. He asked to hear all the names on the jail list, then said that of his group of six men, his was the only name recorded.
While most were released early the next morning, some were kept longer. Clyde Robvais, who was 16 at the time, is listed in the jail log as a “material witness.” Though he didn’t know about that notation at the time, the deputies’ perceptions became obvious: For the next 10 days, he was kept in jail and repeatedly asked if he’d witnessed anything. After he didn’t show up for his after-school dishwashing job, he was fired, he said, though he quickly landed another position.
Consequences were more weighty for Wilbert Forrest, 23, then a Southern University student, who was taken into custody the same day as Montgomery. Deputies told him that he looked like someone who had shot a policeman, he said. He was held more than two weeks, though he was transferred after about a week to neighboring Port Allen on a trumped-up charge — shooting at cows, he said — that was eventually dropped.
Forrest was forced to withdraw from classes because he’d missed too much time. “I lost that semester,” he said.
Emmanuel Cannon, who was 18, was walking home to lunch from Scotlandville High School when deputies stopped him. They walked him to Jordan Street, where they searched his family’s house, then handcuffed him and put him on the ground, he said. He spent the night in jail; his parents came to get him in the morning.
Soon afterward, he heard that his schoolmate, Montgomery, had been arrested. That never made sense to him.
“Later on in life, it hit me,” Cannon said. “That could’ve been me. They could’ve locked me up in jail for the rest of my life.”
‘Wolf Man’ goes on trial
The larger context — the racially segregated world that Montgomery lived in, along with his limited intellect and tough childhood — can’t be separated from his legal case, said Marsha Levick of the Juvenile Law Center, who is acting as co-counsel for Montgomery before the Supreme Court.
That’s the entire premise of Miller ruling, she said. Since the decision, no juvenile can face life in prison without parole unless a judge holds a hearing to examine how his youth and individual circumstances may have affected his actions.
“Context is important,” Levick said. “Montgomery’s case illustrates the type of miscarriage of justice that the court wanted to avoid in issuing its Miller decision.”
The day Montgomery was arrested, detectives took a newspaper photographer from the Morning Advocate along with them as Montgomery showed them the shed behind his grandparents’ house and pointed to the small .22-caliber pistol he’d hidden in the rafters. Montgomery also took detectives to the park and re-enacted the crime, the newspaper reported.
That same day, the detectives taped his confession. No need to inform him of his “right to remain silent” beforehand, because the U.S. Supreme Court’s Miranda decision wouldn’t be rendered for three more years.
The following day, the headline in the Morning Advocate read, “Negro admits panic slaying of BR deputy: revolver and cartridges are recovered.”
The same day, the newspaper reported that Montgomery told detectives he had skipped out of his 10th-grade classes to take a nap in the park. There, he ran into Hurt, who had walked behind the recreation center to “break up ‘hooky-playing’ in the area,” according to the newspaper.
Johnnie Jones, Montgomery’s former lawyer, remembered what he’d heard. Hurt was patting down Montgomery from the waist down in case he had a knife or gun. But Montgomery had put his gun in the breast pocket of his jacket, Jones said.
“So while the police was patting him down from his waist to his shoe top, Henry had a Saturday night special, a little gun, under his arm,” Jones said. “He panicked and shot the officer.”
The landmark Gideon U.S. Supreme Court decision had come down eight months earlier, finding that defendants have a fundamental right to counsel. So the judge appointed two lawyers for the 17-year-old: Jones and Murphy Bell. They defended him for the next six years, through two trials, after a higher court overturned the first verdict.
Both attorneys were well-known for their civil rights work, defending activists in sit-ins and other protests and desegregating schools, parks and even amusement parks. In 1953, Jones was 15 days out of law school when he had agreed to defend those involved in the successful Baton Rouge bus boycott, which became a model for the Montgomery boycott three years later.
The two lawyers were devoted to the case even though they were unpaid; the court didn’t yet pay appointed lawyers, Jones said.
The Morning Advocate covered the first trial extensively. Right from the start, his lawyers entered a plea of innocent by reason of insanity and called attention to his developmental disabilities. They described his “low mentality” and “weak-mindedness” and implied that he was paranoid and easily provoked. They argued that press accounts using his Wolf Man nickname had prejudiced jurors into thinking that Montgomery was a “character with a vicious nature.”
Yet his attorneys never said he didn’t murder Hurt. From that perspective, prosecutors appeared to have an airtight case. The audio of his confession was played for the jury, who also visited the park and the shed where Montgomery said he hid the gun.
In arguments that mirror some of the defenses of vulnerable youth made four decades later in the Miller case, Jones argued that Montgomery’s intellectual deficits — “the mentality of a three-year-old” — made it difficult to prove intent to kill. In other words, Montgomery may have killed Hurt, but it was a rash act, a mistake.
Still, District Attorney Sargent Pitcher was resolute in his closing arguments in the first trial. “If you bring in anything but a capital verdict, you’ll be jeopardizing the life of every law enforcement officer in this parish,” he told the jurors. They ultimately agreed with him.
After a nine-day trial — unusually long for a black defendant during that era — 12 white male jurors deliberated for a day and a half. They came back with a guilty ruling and a death sentence.
Montgomery’s lawyers appealed the death sentence, citing a few dozen errors, including the lack of black jurors, a prosecutor who described the lawyers with racial epithets and other prejudicial factors outside the courtroom.
Two years later, the Louisiana Supreme Court ordered a new trial for Montgomery, partly based on Klan cross-burnings that had been threatened before the start of the trial and partly because the trial had begun on what the city had declared “Charles Hurt Day,” meant to raise money for the victim’s widow and his young children.
The atmosphere denied Montgomery a fair trial, the court wrote. “No one could reasonably say that the verdict and the sentence were lawfully obtained.”
The second trial received less publicity. By that time, five years after Montgomery had originally stepped into the courtroom, the mood seemed less heightened.
Montgomery’s lawyers fought, unsuccessfully, to bar his confession on the basis of the Miranda decision. The district attorney did not push the death penalty. The trial took only a day and a half; the jury deliberated for about 90 minutes and found Montgomery guilty of first-degree murder.
He was given a mandatory sentence of life without possibility of parole and sent to Angola.
Life sentences for youth aren’t uncommon in some counties
Even if the Supreme Court rules that Montgomery should have an opportunity for parole, the door will likely open slowly, if at all. A judge with jurisdiction over his case could change his sentence or set him free. Or the state legislature could grant parole hearings for prisoners like him after a certain amount of time served.
At each point, Montgomery could be released. Or not.
For youths convicted of murder since 2012, life sentences are still possible, though they can no longer be mandatory. As a result, the Supreme Court justices wrote in Miller, the sentences would likely be “uncommon.”
That’s true — in most jurisdictions. Recently, the Phillips Black Project, named for a nonprofit law firm, published a study showing that nine states are historically responsible for imposing 80 percent of juvenile life-without-parole sentences: California, Florida, Illinois, Louisiana, Michigan, Mississippi, Missouri, North Carolina and Pennsylvania.
That has continued despite the Miller decision. Over the past three years, the report found, a handful of counties — including Orleans and East Baton Rouge in Louisiana — have been responsible for a share of such sentences “widely disproportionate from their population.”
Moore, the district attorney for East Baton Rouge Parish, acknowledged that the Montgomery case was tried during a well-documented period of racial strife. "It was a completely different time for the entire community," he said.
Yet he stands behind the decision to pursue life-without-parole sentence for juveniles in his parish. Since the Miller decision, four juveniles convicted of murder have faced such sentences, he said. "In three of four cases, the court found that life was appropriate," Moore said.
He is a careful reader familiar with new findings on adolescent brain development, which show that the brain is still developing well into adulthood. "I'm all for keeping kids out of the system," Moore said, noting that he scrutinizes each case individually to decide whether juvenile defendants should be kept in juvenile court or tried as adults, where life without possibility of parole is still an option.
"None of these cases are easy," Moore said. "But some wave their hands and say, 'You must try me as an adult.'" And in those cases, he said, he will continue to pursue life sentences, if that's the outcome that best serves the interest of public safety.
Because of Miller, sentencing is now a two-step process: Juveniles who face life-without-parole sentences must have a sentencing hearing that puts their youth into context by examining brain development, history of hardships and home life. Similar hearings have been commonplace in death penalty cases since the 1970s.
Nothing like that existed in 1964 when Montgomery first faced trial. Yet, in their closing arguments, his lawyers presented similar justifications to explain, for instance, their client’s confession.
“What else could you expect that child to say, with the type of mind he has?” Jones asked. “From his very birth, this child has been ‘off.’”
Sure, Montgomery was 6 feet tall and — as press accounts had noted — he had even worn a “slight mustache” at times, Jones said.
“He looked like a man,” Jones told jurors, but his intellectual capacity didn’t match his physical maturity. “The size doesn’t make the man. The mind makes the man.”
Then Bell began his final arguments. He, too, foreshadowed the Miller decision as he described how his client lacked an intent to kill. Instead, Montgomery’s reaction was impulsive, Bell argued. “He merely panicked. He was scared and he had a gun in his hand, so he fired.”
This story is the product of a collaboration between the Juvenile Justice Information Exchange; The Lens, a nonprofit newsroom serving New Orleans; and the Center for Public Integrity, a nonprofit, independent investigative news outlet. This story was also funded directly by more than 90 readers on Beacon.
WASHINGTON — The Supreme Court’s landmark juvenile sentencing rulings establishing that youth should be treated differently than adults have had effects beyond the death penalty and juvenile life without parole (JLWOP) sentences, says a recent report.
The court’s sentencing framework, based on adolescent development, also has affected how states think about issues such as mandatory minimums, parole regulations, record expungement, enhanced sentencing, transfer laws and the correctional environment adolescents are placed in, according to the new Models for Change report.
Elizabeth Scott, a law professor at Columbia University and co-author of the report, said the court’s opinions have caused a shift in juvenile justice unlike any she has seen in recent decades. The change is particularly interesting because the opinions have resonated beyond the sentences the Supreme Court considered, she said.
“It became clear that the Supreme Court opinions were having a broader impact and there was quite a bit of reform going on, some of it directly based on the opinions and some of it influenced by them,” she said.
In the report, the authors examine three key opinions since 2005 in which the Supreme Court prohibited the death penalty for juveniles (Roper v. Simmons), barred LWOP sentences for juveniles convicted of crimes other than homicide (Graham v. Florida) and banned the use of mandatory juvenile LWOP sentences, including for homicide (Miller v. Alabama).
Those opinions are grounded in behavioral and brain science that finds adolescents are still developing and therefore less culpable than adults and primed for rehabilitation.
Because of that framework, states are thinking about other juvenile issues differently as well, the report said.
For example, the Iowa Supreme Court rejected giving lengthy sentences if they would function as life without parole and found all mandatory minimum adult sentences to be unconstitutional for juveniles. Other courts have rejected lifetime parole or lifetime registration on sex offender registries for juveniles, and some states have limited their use of automatic transfer laws, which move juveniles to adult criminal courts.
Although the opinions have transformed the constitutional landscape for juvenile justice, the authors cautioned that acceptance and implementation of a developmental framework are not inevitable.
Some prosecutors and courts likely will resist the framework, as could the public and lawmakers, the report said. More broadly, should crime rates rise, public attitudes may favor punitive approaches and influence policy. Or, if states find themselves with fewer fiscal restraints, they may not look as carefully at less expensive, developmentally-based reforms.
“Thus, adhering to the Court’s developmental framework and limiting the impact of punitive impulses toward juvenile offenders generally poses an ongoing challenge. But as the framework becomes more firmly entrenched over time, courts and legislatures may be less inclined to abandon policies that are sound on both social welfare and constitutional grounds,” the report said.
Models for Change is a multistate initiative for reform of the juvenile justice system funded by the John D. and Catherine T. MacArthur Foundation.
Thomas Grisso, Marsha Levick, Laurence Steinberg and Scott wrote the report, “The Supreme Court and the Transformation of Juvenile Sentencing.” Three accompanying briefs offer an overview of the report, a discussion of the role of the courts in a developmental framework and a guide for practitioners.
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.
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.
"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.