Tag Archives: sentencing

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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The Dangerous Class

Not long ago I was meeting with a young man at Riker’s, New York City’s infamous island of jails, when an alarm started sounding. “That sounds like my block” he told me, intrigued, as a number of correctional officers (“COs”) started flooding into the corridor outside our glassed-in meeting room. To my surprise, without saying a word to either of us (or the other man whose lawyer had just left and who was sitting nearby in the same enclosure), a CO came over and locked us in. Then I watched as five, ten, twenty COs suited up in what looked like a cross between football pads and hazmat suits. They drew long wooden clubs out of a bin next to their gear cubbies, and several of them clipped massive spray cans to their belts. “Pepper spray?” I asked my client. “Worse,” he responded. “This is way worse than pepper spray. It’s made for bears.”

He told me that he’s been nearby when it’s been sprayed before, and even just being close is terrible. “I coughed so hard blood came up,” he said. Hearing this description, and watching guard after guard show up to get in gear, I wonder how much of the extreme level of security we’re seeing can be attributed to real risk faced by officers. Certainly there is some risk – anyone incarcerated at Riker’s will tell you it’s a dangerous place for prisoners – but to send in twenty or more guards, with clubs and bear spray, I would think they ought to have a good reason. So I looked for some numbers.

In a ten-year period between 1999 – 2007, 113 COs were killed on the job. In a smaller timeframe, from 2001 – 2007, 356 prisoners were victims of homicide (and, side note, 1,386 prisoners committed suicide). By comparison, from 1999 – 2007, 1,529 police officers in the U.S. were killed, and, just to throw in another dangerous job, 335 coal miners died at work. Deaths are, obviously, just one piece of the puzzle, but it’s also an important marker of how dangerous a job really is. And although any number of deaths is too many, 113 in ten years sounds relatively low to me. Note that there are about 470,000 people currently employed as correctional officers in the U.S. today, so over ten years a generous estimate would be that 0.003% of COs are killed per year.

So what’s with the riot gear, the clubs, the bear spray? What’s with the regular complaints of egregious violence at Riker’s and elsewhere?

It’s my view – and I’m not alone here – that this comes from the idea that prisoners are part of a “dangerous class” who, regardless of the offense that landed them in prison and regardless of their conduct while incarcerated are perceived as violent animals who are liable to strike out in any way possible at any time. And it’s easy to see the connection between the level of security and surveillance in prisons and jails to the treatment of people who are perceived as part of this “dangerous class” on the outside. For example, black men between the ages of 15-19 are 21 times more likely to be killed by police than their white counterparts are, and the average sentence for murder grew 238% in the 80’s and 90’s. These are all manifestations of an idea of dangerous, bad people whose sentence and even whose offense are secondary to a general inhumanity.

The really low rate of death among correctional officers is probably due in part to the extremely high level of security employed, but it comes at the price of a widespread dismissal of the humanity of the people who are incarcerated (literally using products designed to keep vicious animals at bay). This is not the product of individual failings among COs, nor is the policing statistic a reflection of individual assholes in police departments, nor is the sentencing statistic a product of bad prosecutors personally bent on creating more punitive systems. These are symptoms of a fundamental shift in the way that we understand people involved with the criminal justice system, and more generally people of color and poor people in our society. This is the new face of prejudice that Michelle Alexander was describing in her blockbuster critique of our criminal justice system, The New Jim Crow. It’s what protesters in Ferguson, New York City, Madison, Charlottesville, etc. are calling out when they insist that #blacklivesmatter. It’s the message that Right on Crime and other conservatives are reinforcing when they call for justice only for non-violent, low-level offenders and fail to call our system into question more broadly. And, in my humble opinion, it’s why we need to fundamentally rethink not only how prisons operate, but also whether we should have them at all.

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