Not all children will see the light of day outside of the prison walls

http://libguides.umhb.edu/content.php?pid=149001&sid=2708708

From Erik Eckholm at the New York Times:

In decisions widely hailed as milestones, the United States Supreme Court in 2010 and 2012 acted to curtail the use of mandatory life sentences for juveniles, accepting the argument that children, even those who are convicted of murder, are less culpable than adults and usually deserve a chance at redemption.

But most states have taken half measures, at best, to carry out the rulings, which could affect more than 2,000 current inmates and countless more in years to come, according to many youth advocates and legal experts.

“States are going through the motions of compliance,” said Cara H. Drinan, an associate professor of law at the Catholic University of America, “but in an anemic or hyper-technical way that flouts the spirit of the decisions.”

Lawsuits now before Florida’s highest court are among many across the country that demand more robust changes in juvenile justice. One of the Florida suits accuses the state of skirting the ban on life without parole in nonhomicide cases by meting out sentences so staggering that they amount to the same thing.

Other suits, such as one argued last week before the Illinois Supreme Court, ask for new sentencing hearings, at least, for inmates who received automatic life terms for murder before 2012 — a retroactive application that several states have resisted.

The plaintiff in one of the Florida lawsuits, Shimeek Gridine, was 14 when he and a 12-year-old partner made a clumsy attempt to rob a man in 2009 here in Jacksonville. As the disbelieving victim turned away, Shimeek fired a shotgun, pelting the side of the man’s head and shoulder.

The man was not seriously wounded, but Shimeek was prosecuted as an adult. He pleaded guilty to attempted murder and robbery, hoping for leniency as a young offender with no record of violence. The judge called his conduct “heinous” and sentenced him to 70 years without parole.

Under Florida law, he cannot be released until he turns 77, at least, several years beyond the life expectancy for a black man his age, noted his public defender, who called the sentence “de facto life without parole” in an appeal to Florida’s high court.

“They sentenced him to death, that’s how I see it,” Shimeek’s grandmother Wonona Graham said.

The Supreme Court decisions built on a 2005 ruling that banned the death penalty for juvenile offenders as cruel and unusual punishment, stating that offenders younger than 18 must be treated differently from adults.

The 2010 decision, Graham v. Florida, forbade sentences of life without parole for juveniles not convicted of murder and said offenders must be offered a “meaningful opportunity for release based on demonstrated maturity and rehabilitation.” The ruling applied to those who had been previously sentenced.

Cases like Shimeek’s aim to show that sentences of 70 years, 90 years or more violate that decision. Florida’s defense was that Shimeek’s sentence was not literally “life without parole” and that the life span of a young inmate could not be predicted.

Probably no more than 200 prisoners were affected nationally by the 2010 decision, and they were concentrated in Florida. So far, of 115 inmates in the state who had been sentenced to life for nonhomicide convictions, 75 have had new hearings, according to the Youth Defense Institute at the Barry University School of Law in Orlando. In 30 cases, the new sentences have been for 50 years or more. One inmate who had been convicted of gun robbery and rape has received consecutive sentences totaling 170 years.

In its 2012 decision, Miller v. Alabama, the Supreme Court declared that juveniles convicted of murder may not automatically be given life sentences. Life terms remain a possibility, but judges and juries must tailor the punishment to individual circumstances and consider mitigating factors.

The Supreme Court did not make it clear whether the 2012 ruling applied retroactively, and state courts have been divided, suggesting that this issue, as well as the question of de facto life sentences, may eventually return to the Supreme Court.

Advocates for victims have argued strongly against revisiting pre-2012 murder sentences or holding parole hearings for the convicts, saying it would inflict new suffering on the victims’ families.

Pennsylvania has the most inmates serving automatic life sentences for murders committed when they were juveniles: more than 450, according to the Juvenile Law Center in Philadelphia. In October, the State Supreme Court found that the Miller ruling did not apply to these prior murder convictions, creating what the law center, a private advocacy group, called an “appallingly unjust situation” with radically different punishments depending on the timing of the trial.

Likewise, courts in Louisiana, with about 230 inmates serving mandatory life sentences for juvenile murders, refused to make the law retroactive. In Florida, with 198 such inmates, the issue is under consideration by the State Supreme Court, and on Wednesday it was argued before the top court of Illinois, where 100 inmates could be affected.

Misgivings about the federal Supreme Court decisions and efforts to restrict their application have come from some victim groups and legal scholars around the country.

“The Supreme Court has seriously overgeneralized about under-18 offenders,” said Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation, a conservative group in Sacramento, Calif. “There are some under 18 who are thoroughly incorrigible criminals.”

Some legal experts who are otherwise sympathetic have suggested that the Supreme Court overreached, with decisions that “represent a dramatic judicial challenge to legislative authority,” according to a new article in the Missouri Law Review by Frank O. Bowman III of the University of Missouri School of Law.

Among the handful of states with large numbers of juvenile offenders serving life terms, California is singled out by advocates for acting in the spirit of the Supreme Court rules.

“California has led the way in scaling back some of the extreme sentencing policies it imposed on children,” said Jody Kent Lavy, the director of the Campaign for the Fair Sentencing of Youth, which has campaigned against juvenile life sentences and called on states to reconsider mandatory terms dispensed before the Miller ruling. Too many states, she said, are “reacting with knee-jerk, narrow efforts at compliance.”

California is allowing juvenile offenders who were condemned to life without parole to seek a resentencing hearing. The State Supreme Court also addressed the issue of de facto life sentences, voiding a 110-year sentence that had been imposed for attempted murder.

Whether they alter past sentences or not, some states have adapted by imposing minimum mandatory terms for juvenile murderers of 25 or 35 years before parole can even be considered — far more flexible than mandatory life, but an approach that some experts say still fails to consider individual circumstances.

As Ms. Drinan of Catholic University wrote in a coming article in the Washington University Law Review, largely ignored is the mandate to offer young inmates a chance to “demonstrate growth and maturity,” raising their chances of eventual release.

To give young offenders a real chance to mature and prepare for life outside prison, Ms. Drinan said, “states must overhaul juvenile incarceration altogether,” rather than letting them languish for decades in adult prisons.

Shimeek Gridine, meanwhile, is pursuing a high school equivalency diploma in prison while awaiting a decision by the Florida Supreme Court that could alter his bleak prospects.

He has a supportive family: A dozen relatives, including his mother and grandparents and several aunts and uncles, testified at his sentencing in 2010, urging clemency for a child who played Pop Warner football and talked of becoming a merchant seaman, like his grandfather.

But the judge said the fact that Shimeek had a good family, and decent grades, only underscored that the boy knew right from wrong, and he issued a sentence 30 years longer than even the prosecution had asked for.

Now Florida’s top court is pondering whether his sentence violates the federal Constitution.

“A 70-year sentence imposed upon a 14-year-old is just as cruel and unusual as a sentence of life without parole,” Shimeek’s public defender, Gail Anderson, argued before the Florida court in September. “Mr. Gridine will most likely die in prison.”

The recent cases about juvenile law handed down by the United States Supreme Court were meant to help convicted juveniles. While those cases certainly have, they have not helped all convicted juveniles. The decisions mandating that juveniles cannot be sentenced to life in prison without parole were not deemed retroactive. In fact, the states are split on this issue. This means that not all convicted juveniles will see the light of day outside prison walls again. What was the intent of the Supreme Court? Will all convicted juveniles be treated equally under those cases? These questions and many more are what we are left with and are what the lower courts must decide. It is our hope that when they do make these decisions, they keep in mind that children are different.

Bryan ISD Investigated for School-Based Ticketing Due To Disparate Impact on African-American Students

From NAACP Legal Defense and Educational Fund:

In a letter sent to LDF, the U.S. Department of Education has confirmed it will investigate a complaint  that we and Texas Appleseed filed which challenges the “disparate impact” that Bryan school district’s practice of issuing criminal citations for minor misbehavior has on African-American students, who are ticketed at four times the rate of their peers.

“This investigation sends a strong message to school districts around the country that the government takes seriously allegations that police are criminalizing children in school instead of keeping them safe,” said Rachel Kleinman, Assistant Counsel with the NAACP Legal Defense and Educational Fund, Inc.

“We are pleased that OCR is pursuing this important issue and look forward to working with the Department of Education and the Bryan school district to find more positive approaches to improving student behavior and keeping more children in class and out of the court system,” said Texas Appleseed Deputy Director Deborah Fowler.

Ann Boney, President of the Brazos County NAACP, said, “We are pleased that we will move forward with this issue and begin developing a positive approach that will benefit all concerned parties.”

African-American students comprised only 21% of the Bryan district’s student population in 2011-12, but received 53% of all tickets issued last year for Disruption of Class and 51% for Disorderly Conduct-Language (profanity). While the Texas lawmakers passed legislation this spring ending school-based ticketing in most cases, school districts can still file formal complaints and send students to court for the same types of minor misbehavior.

“In a very real sense, districts like Bryan are using law enforcement as a disciplinary tool, leading students into the school-to-prison pipeline,” said Senior Attorney Michael Harris, with the National Center for Youth Law. “But research shows these matters are far better handled by educators and parents.”

We are asking OCR to require Bryan ISD to provide additional training for school police officers in adolescent behavior, conflict resolution and de-escalation techniques. We are strongly encouraging implementation of nationally-tested programs shown to reduce disciplinary problems and boost academics—such as School-Wide Positive Behavior Interventions and Supports. Our complaint also proposes:

  • Revisions to the Bryan Student Code of Conduct to establish graduated consequences for misbehavior that minimize missed class time and reserve suspension, expulsion, and police responses to student misbehavior to only those incidents that pose a safety risk;
  • Required campus-based quarterly reporting of data on ticketing and school-related arrests, by type of incident disaggregated by race; and
  • Intervention services for students who receive multiple Class C citations and/or disciplinary referrals and who are at risk of educational failure.

It is a common practice in Texas for school districts to bring in the criminal system to handle issues with students that many people should be dealt with internally. The school-to-prison pipeline in Texas is used way too often and it is about time the Department of Education notices. Hopefully this investigation will lead to the elimination of this disparate impact practice.

The Future of Mandatory Life Sentences for Juveniles

photo courtesy of: http://www.familylawyerva.com/images/PA_Juvenile_Landing_Page_Picture.jpg

From the Editorial Board at The New York Times:

Young people are different. The Supreme Court has delivered that message repeatedly over the last decade in limiting or flatly prohibiting the most severe criminal punishments for those under 18 at the time of their crime.

In 2005, the court banned the death penalty for juveniles. In 2010, it outlawed sentences of life without parole for juveniles convicted of crimes other than homicide. And, in a 2012 case, Miller v. Alabama, it said juveniles may never receive a mandatory sentence of life without parole, which prisoners refer to as “the other death penalty.”

Each ruling, relying on the Eighth Amendment’s ban on cruel and unusual punishment, has found that young people are “constitutionally different” from adults, and, therefore, must be punished differently.

In each case, the court was silent on the question of whether its ruling applied retroactively to inmates who had already been convicted. The just answer would surely be yes, and courts have largely agreed, making those first two juvenile justice rulings retroactive. But some states insist that the ban on mandatory life without parole does not apply to offenders who have already been sentenced.

In the Miller case, the court required lower courts to make “individualized sentencing decisions” for juvenile defendants because juveniles are not as morally culpable as adults, and they are more capable of changing over time. If the ban on mandatory life without parole is retroactive, more than 2,000 prisoners would be eligible for a new sentencing hearing. So far, whether these individuals can get a new hearing depends on where they live.

Courts in Michigan, Iowa and Mississippi have ruled that the ban applies to previously sentenced juveniles. The Department of Justice takes that position as well. Yet the Minnesota Supreme Court and one federal appeals court have taken the opposite view.

On Sept. 4, the Louisiana Supreme Court took on this question in the case of Darryl Tate, who was 17 when he held up two men and killed one of them in 1981. Mr. Tate’s lawyers argue that he is entitled to a new sentencing hearing under the Miller rule, because the United States Supreme Court allowed such a rehearing in another juvenile life-without-parole case decided at the same time as Miller.

Critics fear that allowing resentencing would increase violent crime. But courts may still impose life without parole, provided that the judge first gives proper consideration to the mitigating effects of youth. The Alabama Supreme Court set out guidelines last week that require a court to consider 14 factors, including a defendant’s age, emotional maturity, family environment and potential for rehabilitation before issuing such a sentence.

Ideally, life without parole would never be a sentencing option for juveniles. The Supreme Court’s own logic suggests this, even if it was not willing to go that far. After the Miller case, three states entirely eliminated juvenile life without parole, joining six other states that had already banned the sentence, and lawsuits on the retroactivity issue are pending in several states. As lawmakers and courts deal with this issue, they should remember — as the Supreme Court has declared — that adolescents are not adults, and that principle should apply regardless of the date of a conviction.

This editorial hits the nail on the head. Children are different; it is common sense. They continue to mature and can change in ways that adults may not be able to. Hopefully many of the lawsuits currently pending will result in states opening up their courts to retroactive sentencing hearings for prisoners sentenced to mandatory life without parole as juveniles.