Category Archives: Reform

Supreme Court Decision Will Affect Thousands Serving Life Without Parole Sentences

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The incomparable Bryan Stevenson, arguing Miller v. Alabama. Credit: Art Lien, Supreme Court artist.

The Supreme Court agreed on Monday to consider retroactive application of Miller v. Alabama, a crucially important case about justice for youth in America. Although the 2012 Miller decision made mandatory life without parole sentences for minors unconstitutional (in violation of the eighth amendment ban on cruel and unusual punishment), the court has yet to rule on retroactively applying the decision.

Granting certoriari for this case (lawyer-speak for agreeing to hear it) is a huge step forward for the thousands of people who were given mandatory life without parole sentences as children, and who are incarcerated in states that have refused to retroactively apply the law. The plaintiff in the current case, Henry Montgomery, has been in prison since 1963, when he was seventeen years old. The law that imposed the mandatory life without parole sentence for Mr. Montgomery has been invalidated by the Miller decision, but Louisiana has thus far resisted reconsidering pre-2012 mandatory sentences.

Life without parole sentences for children are applied with frightening frequency. In 2013, roughly 2,500 people were serving life without parole sentences that they were given as minors. This is a population we don’t trust with drinking alcohol, smoking cigarettes, or voting. Yet somehow we’re prepared to give up on them completely as a society? Here’s a gem from the Miller opinion, written by Justice Kagan:

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. It prevents taking into account the family and home environment that surrounds him–and from which he cannot usually extricate himself–no matter how brutal or dysfunctional. It neglects the … extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores … his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.

Should this ruling in Miller be applied to those sentenced before 2012? From a moral standpoint, of course it should (none of Kagan’s points magically sprang into being in 2012). The legal argument will hinge on whether the new rule is substantive (those are retroactive) or procedural (those aren’t). Basically, Montgomery’s team is arguing that since Miller applies to the type of punishment that can be applied to a class of people, it’s substantive. Louisiana will argue that the change was procedural – in Louisiana specifically, the procedural change was a new hearing where minors can present evidence to reduce their sentence – and therefore should not be retroactive. The substantive nature of Miller strongly speaks to the substantive nature of Montgomery’s claim as well – how can a finding of cruel and unusual punishment be categorized as “procedural”?  

So – good for the Court for granting cert on the retroactivity issue. And shame on Louisiana (and Minnesota, Michigan, and Pennsylvania) for requiring Supreme Court intervention. Best wishes to Mr. Montgomery and his team for another step toward thoughtful, humane criminal justice.

Photographs of young people sentenced to life without parole (all taken within a year of conviction). Courtesy of Human Rights Watch, available here: http://www.hrw.org/news/2009/10/02/state-distribution-juvenile-offenders-serving-juvenile-life-without-parole

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Ferguson: Police State

Ferguson has been getting a lot of attention lately, and for good reason. Much has appropriately been made of the ridiculously racist emails the DOJ investigation turned up, as well as the preferential treatment meted out to friends and family while those who lacked connections were slapped with harsh sanctions and huge fines, ironically financing the very system that was sucking them dry.

But the story that the DOJ report tells is not only one of an egregiously racist system. It is also a story of an alarming scope of policing. I’ve never been a proponent of “small government,” but the sheer volume of outstanding charges, well described in this Huff Post Blog post, tells a dystopian story of an entire town under the thumb of a police force and prosecutor’s office – 16,000 of Ferguson’s 21,000 residents have outstanding charges against them; there were nearly 33,000 different warrants in 2013. Had the timing been different, the movement less well-organized, the inciting event less powerful, this kind of approach to “law and order” wouldn’t have come to light in Ferguson. In fact, even now it’s hardly receiving honorable mention as the media divides into two predictable camps and argues about whether the Ferguson PD is really all that racist, or whether they’re just indiscriminately terrible.

One thing that all police departments and prosecutors’ offices have in common when they engage in this kind of draconian law enforcement is this: they are acting entirely within the legal bounds of their discretion, and we are virtually powerless to stop them. In this case a social movement, the eyes of sympathetic media, and the influence of the Department of Justice may be enough to rein in Ferguson – at least for now. But as long as we exist in a society riddled with racism and classism, the kind of discretion and power afforded to police officers and prosecutors will permit problems to prosper silently. While we work on communicating the message that #blacklivesmatter, we should also be imposing reasonable limits and meaningful accountability on our police officers and prosecutors so that the kind of police state the DOJ found in Ferguson isn’t permitted to flourish unseen everywhere else.

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