A Second Chance For Juvenile Offenders?

11.07.17

For more than a decade, the U.S. has been struggling to decide on the “right way” to punish minors who commit serious crimes.

In the past, judges have sentenced those juveniles to life without parole, offenders given the designation “JLWOP.” But that’s changing.

In the 2012 case Miller v. Alabama, the Supreme Court ruled that it was a violation of the Constitution to enforce mandatory life without parole sentences for juvenile offenders. In the 2016 case Montgomery v. Louisiana, the Supreme Court went even further, ruling that state courts must resentence juvenile offenders, granting these offenders the possibility of parole and freedom.

Since the Montgomery ruling, states have been struggling as they contemplate how to resentence juvenile offenders.

What does all this mean for the young people affected?

Youth Radio’s Sierra Fang-Horvath spoke with Marsha Levick, Deputy Director and Chief Counsel at Philadelphia’s Juvenile Law Center and co-counsel to the Montgomery v. Alabama case.The following conversation has been lightly edited for length and clarity.  


Sierra Fang-Horvath, Youth Radio: The Montgomery ruling made it possible for inmates sentenced as juveniles to retroactively challenge life without parole rulings. But does that mean states have to automatically undertake the resentencing? Or do inmates have to actively pursue that option themselves?

Marsha Levick: Even if technically the inmate has to pursue the option, I think it’s fair to assume that in the states that are specifically required under both Miller v. Alabama and Montgomery v. Louisiana to resentence the roughly 2,000 individuals around the country who are serving mandatory life without parole sentences, they’re all going to get resentenced.

 

SFH: Is anything impeding that process?

ML: It is a slow process and unfortunately there are a number of factors that have actually contributed to that. Because it wasn’t until 2016 that the Supreme Court required that the Miller decision be applied retroactively, that meant that some of the largest states like Pennsylvania, Michigan, and Louisiana that house probably about 60 percent of all of the juvenile lifers in the country were essentially four years behind many of the other states that began implementing Miller.

 

SFH: Do all inmates up for resentencing have the right to be represented by a lawyer?

ML: It’s not so much about whether or not they have a right to counsel. It has been challenging, in a number of states, to make sure that everyone has a lawyer to represent them. But once they are actually scheduled for a resentencing hearing, they do have a right to counsel.

 

SFH: In Miller, the Supreme Court ruled that a juvenile offender must be “permanently incorrigible,” or completely incapable of change, to be sentenced to life without parole. That’s a pretty severe accusation. How would a prosecutor prove that?

ML: Actually determining that someone is permanently incorrigible is an extremely high bar. As I think the U.S. Supreme Court said in Miller and in Montgomery, it’s going to be the very rare and uncommon situation where the prosecutor can actually prove that.

 

SFH: When you, as an appellate attorney, are arguing that your defendant has changed since committing a crime, what do judges want to see?

ML: The challenge that we face… is that different judges will view that question and that answer differently. We know that there are still many judges across the country who really are very focused on the crime itself…. But judges need to be able to see beyond that as they’re really instructed to do so by the U.S. Supreme Court, and look at who this individual is. The question that the Supreme Court is requiring [judges] to answer — this notion of who’s permanently incorrigible… that’s separate and apart from the crime that they committed.

 

SFH: Do you think some states and counties aren’t taking the Montgomery ruling — which says that only permanently incorrigible individuals can be resentenced to life without parole — seriously enough?

ML: Yes very much so, I do…. Just look at the language that the U.S. Supreme Court used in both Miller and Montgomery. The Court said that a decision of life without parole for a juvenile offender, even convicted of homicide, should be “rare and uncommon”… If you have a prosecutor in a particular county in Michigan who is seeking life without parole again in all or 90 percent of the cases in that county, it can’t be that 90 percent of those individuals are the rare and uncommon juvenile. That’s not a logical determination…. I hate to use the phrase “we’ll see them in court,” but… if life without parole ends up being re-imposed in a substantial percentage of cases, then I think that’s open to legal challenges. That would certainly seem to be contrary to this idea of a rare and uncommon sentence.

 

SFH: When someone commits a very serious crime like murder, even if they are under 18, isn’t life without parole a suitable punishment for that sort of crime?

ML: I would say no for a couple of reasons. When the U.S. Supreme Court banned the death penalty in 2005 for juveniles who committed murder, [it] said that kids who were under 18 were less culpable and blameworthy for their crimes. That was based on the psychological attributes that the court identified at that time based on research [about]… the susceptibility to negative peer influences, and this capacity, of course, for change and growth and rehabilitation. But importantly, the Court said the death penalty has to be reserved for the worst of the worst, and juvenile offenders are categorically not that person because of their status as adolescents…. We have to ask ourselves, “Are they the worst of the worst?” And in most of the cases, again but for the rare and uncommon juvenile, they’re simply not. It doesn’t mean they shouldn’t be held accountable. It’s not about excusing. It’s about mitigating responsibility and figuring out a way to punish, to hold these individuals accountable, but in ways that also reflect their developmental status.

 

SFH: Have you ever met someone who was “permanently incorrigible”?  

ML: I haven’t, no. I think a lot of researchers would say that it’s difficult to paint a picture of who that individual would be, particularly individuals under the age of 18. I think that there may well be experts who would talk about someone who has a mental health diagnosis of psychopathy who might fit that profile. But few experts would diagnose psychopathy in someone under the age of 18 because it’s an extreme and very challenging diagnosis to make. So no, I haven’t. And I don’t know I ever will.

 

SFH: What future issues do you foresee for the implementation of Miller and Montgomery?

ML: What I often say to colleagues is that in this work, every time you think you’ve solved a problem, another one pops up and that’s what’s going to happen here. Even if all… 2000 adults serving juvenile life without parole sentences, are resentenced within the next three to five years, many of them will be resentenced to very long terms: 50 to life, 60 to life, 70 to life, even 40 to life…. Is that effectively also a life without parole sentence? The average life expectancy for many of these individuals is actually kind of in their mid 50s…. So it’s less about will it actually get implemented as it is, to me, about the next series of legal issues that we’re going to be litigating as we see Miller and Montgomery being implemented.

 

SFH: How do victims and their families feel about these resentencing mandates handed down by the Supreme Court?  

ML: Victims don’t all have the same view about the perpetrators and their crimes. And there are many… cases where the victim’s family members have stepped forward and supported release, have supported the opportunity for a second chance. They may have had the opportunity to meet with them… [or] to observe their growth, to hear their remorse and their sorrow that they have experienced for what they did. And there are also victims’ family members who will never forgive, for whom the notion that the person who killed their loved ones should ever get out of prison is really an unacceptable scenario…. At the end of the day, the law has set limits for judges engaged in resentencing, even in the face of the most painful, really sorrowful testimony…. At the end of the sentencing hearing, the judge has to set that aside to some degree to enforce the law that the Supreme Court set down in Miller and Montgomery.

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