SCOTUS Offers Hope for Lifers Without Parole Sentenced When They Were Juveniles

In 1963, Henry Montgomery killed a police officer. His murder conviction in Louisiana, for “guilty without capital punishment”, carried a mandatory life without parole sentence. That is, under Louisiana law, Montgomery could not present mitigating evidence–he was automatically sentenced to life without parole. At the time the crime was committed, Montgomery was 17 years old. Today he is 70 years old, and he’s been in prison ever since.

In 2009, decades after Montgomery’s sentence, the Supreme Court decided Miller v. Alabama, which rendered mandatory life without parole statutes unconstitutional insofar as they apply to juveniles. The decision was one of several decisions, starting with Roper v. Simmons, which incorporated insights from developmental psychology into criminal justice. We now know that the brain continues developing well into our mid-twenties, and that impulse control, resistance to peer pressure, and the ability to consider long-term goals  are not quite there yet for juveniles. So, sentencing them to a lengthy period of time, without option to reconsider, now seems unjust in light of what we know of their cognitive capabilities.

But what about people who were sentenced to automatic life without parole before Miller v. Alabama? Thousands of these folks, who were teenagers when they were sentenced, are now middle-aged or even elderly (certainly by prison standards.) Many of them have spent most of their life in jail. Should their sentences be reconsidered? In other words, does Miller apply retroactively? This morning, the Supreme Court ruled that it does–and that states who used to apply these schemes to juveniles should now award them remedial parole hearings to reconsider their possible release.

The technical question at the heart of Montgomery has to do with the retroactivity rules. Imagine a situation in which a criminal justice rule is changed in a way that could benefit defendants.

Under constitutional doctrine in a case called Teague v. Lane, defendant no. 1, whose case hasn’t even started yet, will of course benefit from the new rule, which applies prospectively. Defendant no. 2’s case is still alive–that is, it’s undergoing an appellate process or the time to appeal hasn’t run out yet–and because the case is not “final” yet, she will also benefit from the rule change. But Defendant no. 3, whose case has already become final–which is to say, she exhausted her direct appeals, or the time to appeal has run out–will not be able to benefit from the rule change. There are two exceptions to this doctrine: the new rule will apply retroactively if it is either a “substantive rule of Constitutional Law”, which includes  “rules forbidding criminal punishment of certain primary conduct,” as well as “rules prohibiting a certain category of punishment for a class of defendants because of their status or offense” or a “watershed rule of criminal procedure”, which is to say, a very momentous change (most rules are not that important; when SCOTUS thinks of such a rule, they think about things like the right to counsel and somesuch.)

According to the today’s ruling, Teague v. Lane applies not only to federal defendants on habeas, but also to defendants like Montgomery, who have been using their state’s collateral proceedings. Or, as Justice Kennedy stated for the majority,

The Court now holds that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. Teague’s conclusion establishing the retroactivity of new substantive rules is best understood as resting upon constitutional premises. That constitutional command is, like all federal law, binding on state courts.

The rule in Miller is, according to the majority, a “substantive rule of Constitutional Law”, as it doesn’t merely address process–it addresses the question whether a certain category of punishment (in this case, mandatory life without parole) is applicable to a certain category of people (in this case, juveniles.) It stems from the string of cases that recognized that children are different from adults in their “diminished culpability and greater prospects for reform.” These differences mean that imposing automatic LWOP on children “poses too great a risk of disproportionate punishment.” While the decision has a procedural component–the need to hold a hearing before imposing LWOP on juveniles–it is, in essence, a substantive statements that juveniles should simply not be subject to that category of punishment. The Court is not concerned about the extent to which this hinders finality–in this case, the state really can no longer exercise its punitive power by sending juveniles to prison for the rest of their lives without discretion, and once there is a social agreement there, finality arguments really do not apply.

The Court also gives states that used to have mandatory LWOP schemes for juveniles a corrective path: they should award people who are currently serving time under these schemes for crimes committed when they were juveniles an appropriate opportunity to be heard and to provide evidence for their rehabilitation, in which their young age at the time they committed the crime (and all we know about the implications of age to development) shall be taken into account.

Justices Scalia, Alito, and Thomas dissented, on the grounds that the Court had no jurisdiction to decide the case and that its classification of the Miller rule as a substantive rule was overbroad beyond the original intent in Teague.

Children on the Outside

This week, Justice Strategies rolled out their excellent new report, “Children on the Outside: Voicing the Pain and Human Costs of Parental Incarceration,” by Patricia Allard and Judith Greene. Read it here.

We knew that the USA’s enormous prison population has high monetary costs and even higher human costs, but this paper documents the particular costs of separating families. Parental incarceration triples the odds that children will engage in violence or drug abuse, and doubles their odds of developing serious mental health issues. There are more children of incarcerated parents than there are total incarcerated persons; nearly 25% of the 1.7 million children with incarcerated parents are under age four, and over 33% will become adults while their parents are locked up.

The Fight Over Preston Youth Correctional Facility

On occasion, we have covered the abysmal state of juvenile prisons in California. Since our juvenile prison population has been declining, Some of them, like the juvenile institution in Chino, have been closed and repurposed into adult incarceration facilities. The Books Not Bars project at the Ella Baker Center for Human Rights lists some of the atrocious occurrences in these institutions:

  • Young people locked in 20- to 23-hour-a-day solitary confinement for days, weeks and months on end;
  • Young people locked in 4’x4′ cages for temporary detention;
  • Guard and staff abuse, neglect, manipulation, and humiliation of the young people in their care;
  • Rampant sexual assault;
  • Guard/staff abuse of chemical weapons against the young people;
  • Virtually non-existent care for young people with mental health or substance abuse needs;
  • Shocking negligence in medical care, especially emergency care;
  • Woefully inadequate educational programming;
  • A culture and atmosphere of constant intimidation, isolation, fear and violence;
  • Five deaths of young people in less than three years.
Their report states,

Stark and Preston youth prisons are the most severe examples of the DJJ’s continuing failures, where daily chaos prevents most youth from participating in programs. Even where programs are administered with regularity, almost no programming proven to reduce recidivism is available, and at many prisons, only a small minority of youth participates. The DJJ has so dramatically failed to comply with court-ordered remedial plans that in 2008, plaintiffs sought a receiver to take over the reforms.

Today’s Chron article is about one of these most notorious juvenile facilities, Preston Youth Correctional Facility. And, it appears that the hurdle in the path of doing the right thing and closing Preston is a lawmaker concerned about job losses among her constituents.

Preston, located an hour northeast of Stockton, houses just 224 youths and, as one of the state’s oldest correctional facilities, is in terrible condition. Most of the youths serving time there are hours away from their families.

The facility employs about 450 people in a county with just 38,000 residents and a 12.4 percent unemployment rate. Closing it would save the state $30 million this fiscal year and more in future years, officials estimate.

“It’s like closing a military base,” said Don Specter, director of the Prison Law Office. “People want to keep it just for jobs, but that shouldn’t be the reason that the state or government implements a program.”

Huber’s arguments against the closure are as follows:

Huber said the closure of Preston would “kill an entire county,” because it is one of the largest employers in the area.

“This is going to turn the city of Ione into Flint, Mich.,” Huber said, referring to the depressing impacts the closure of General Motors facilities had on that company town 20 years ago. “I’m not disagreeing with the fact that a facility needs to be closed … the question is how do we decide which is the best facility to close.”

Huber contends that Preston has higher graduation rates than other youth facilities; is best complying with the settlement that came out of the 2003 lawsuit; and, because of its dorm settings, offers a better setting for youths.

“The five facilities we have are like a school district,” she said. “I think Preston is the best school – if you have to save $30 million, do you close the best-performing school?”

I recommend reading the entire article – it provides more information on Preston, quoting references to it as a “dungeon”.

LA Times favors parole for youth LWOPs

Today’s LA Times carries this piece:,0,2931752.story subtitled, “Sara Kruzan’s case shows why juveniles should not sentenced to life without parole.”

The Times had previously written in favor of Sen. Yee’s narrowly-defeated SB 399 to change this policy statewide; today’s Times asks Governor Schwarzenegger to offer clemency, if only in this one extreme case.

My favorite quotes: “She has volunteered for dozens of rehabilitation programs and won awards for her participation and attitude. … The CYA felt that she should have been prosecuted as a juvenile rather than as an adult, which would have put her into a rehabilitation program from which she could have been freed by age 25 — seven years ago.”

Sentenced a minor to life behind bars with no chance of parole is a ghastly, inhumane, cruel practice.

Close the CA Division of Juvenile Justice

Daniel Macallair has made an outstanding argument in the LA Times for closing the Division of Juvenile Justice and its five state-run youth correctional facilities. “The system is broken everywhere you look.” Allowing counties, instead of the state, to house juvenile offenders (currently about 1,400 of them) would save the state government $322.7 million (yes, a third of a billion dollars). County probation systems already handle 99% of juvenile cases.

Progressive Lawyering Day 2009

Following up on this week’s posts on minors in California’s criminal justice system, this Saturday there will be a panel on the San Francisco police’s interrogation of immigrant youth, featuring Supervisor David Campos. The panel is part of Progressive Lawyering Day 2009, hosted by the San Francisco Bay Area Chapter of the National Lawyers Guild. The day also features a keynote lecture from civil rights attorney John Burris.

Here’s the full schedule for the event, 10a-6p Sat 10/3 at UC-Hastings, 198 McAllister St., SF:
10:00am Registration/Free Breakfast
10:30-12:00 2 Panels: Transgender Advocacy & SF Police Interrogation of Immigrant Youth feat. SF Supervisor David Campos
12:00-1:00 Free Lunch
1:00-2:30 2 Panels: Alien Tort Claims Act & Everything You Wanted to Know About Fellowships
3:00-4:30 Key Note Speaker John Burris (attorney for the family of Oscar Grant)
4:30-6:00 Reception with free food/drinks

Facebook invite here. Note that CLE credits are available for both afternoon panels.

More on Minors: Failing Report Cards for Juvenile Institutions

(Preston Juvenile Facility images courtesy Center of Juvenile and Criminal Justice, at

As Jesse pointed out in a recent blog post, our general concerns about the California correctional crisis are warranted especially with regard to our treatment of minors. Much of the recent attention to the crisis concerned adult institutions exclusively; however, given the connection between age and crime, and the difficulties in rehabilitating adults, juvenile institutions have an enormous potential as centers of rehabilitation, and could provide a turning point away from criminal career.
What are our juvenile institutions like? A recent report by Books Not Bars paints a rather grim picture. The organization examined six California juvenile institutions to the Missouri Model and issued report cards for them. Sadly, all institutions miserably failed to prove adequate; the report finds conditions to be abysmal, and not conducive in the least to rehabilitation. Dated building standards, remoteness from family, chaotic and violent environments, and a paucity of rehabilitative programs, do not bode well for the future of juvenile corrections, or for a decline in adult criminal careers. Books Not Bars should be commended for bringing these invisible problems to light and raising awareness to this sad state of affairs.

Is Incarcerating Minors an Even More Wasteful Crisis?

WireTap Magazine has a great interview with Liz Ryan of the Campaign for Youth Justice. CYFJ argues that incarcerating minors does not work (does not reduce recidivism, does not deter crime), is very unsafe, and is unfair.

According to the California Attorney General’s Criminal Justice Statistics Center, in 2005 the state of California incarcerated juveniles at a rate of 23.8 per 100,000 at-risk population, compared to 131.9 for adults. In particular, in 2005 California arrested juveniles for drugs at a rate of 486.9 per 100,000 at-risk population, versus 1173.5 adults.

Minors are arguably the most vulnerable members of our prison population. In a recent post, California Corrections Crisis points out that Zimbabwe has just decided to release all minors from all prisons to reduce overcrowding. Since California is having trouble finding 40,000 inmates to release, perhaps we should consider releasing all inmates under 18 years age.