Juvenile life without parole: Massachusetts moves cautiously toward reform

Introduction

Massachusetts juveniles incarcerated for life without parole will likely wait well into 2013 or beyond for a chance at reduced prison time as lawyers, prosecutors, legislators and advocates carefully craft a strategy to bring the state into compliance with new federal law outlawing the mandatory sentence.

Massachusetts has not been as quick to act as states like North Carolina and Iowa, which have implemented new laws since the U.S. Supreme Court in June banned mandatory juvenile life without parole for murder. While change is expected in Massachusetts, either through the courts or legislation, no clear answers have yet emerged on how to handle new cases and review past convictions involving killers under 18.

Governor Deval Patrick’s point person on the issue wants life without parole banned entirely for juveniles, whether mandatory or not. Middlesex County District Attorney Gerald T. Leone Jr. wants teenage killers to serve a minimum of 35 years before becoming eligible for parole, while the Massachusetts District Attorneys Association has reached no consensus on a solution. Meanwhile, the state’s public defender’s office has mobilized and trained dozens of defense lawyers to potentially work with as many as 80 inmates and accused teen killers in Massachusetts who could be affected by the high court ruling.

The 5-4 Supreme Court decision in Miller v. Alabama banned the mandatory sentence, imposed in 29 states, as “cruel and unusual punishment,” but still gives judges’ discretion to impose life without parole for teen killers.

Last week, a Middlesex Superior Court judge wrote the first decision in the state discussing the consequences of the high court ruling, arguing that the only option available to judges now is to sentence teen killers to life in prison with the possibility of parole. Legislation would be required, wrote Judge Kathe M. Tuttman, only if the state determines it wants the option to sentence juveniles to life without parole, a process that she said would require legislative guidelines.

The ruling tore open a door victim’s families thought was locked forever. Across the country, more than 2,100 individuals are serving mandatory life without parole sentences for murders committed while they were under 18, said Marsha Levick, deputy director and chief counsel of Philadelphia’s Juvenile Law Center.

Jennifer Bishop Jenkins, the Illinois-based head of the National Organization of Victims of Juvenile Lifers, said states shouldn’t change law in response to the decision without talking to victim’s families.

“Of course the uncertainty of these months after Miller is painful for these families. Swift can be good for victims if it is thorough and properly done, but the state of Massachusetts cannot act until they talk to every family of a Massachusetts victim,” said Bishop-Jenkins, whose sister, brother-in-law and unborn child were murdered by a teen now serving three life sentences. “Most of these families have had to wait for justice in any case.”

The high court gave states no specific guidance on how to apply the decision, nor indicated whether it should be applied retroactively to those already sentenced.

But the decision mandated that at least going forward, if prosecutors want juveniles to serve life without parole, the defendants are entitled to individualized sentencing hearings that consider factors like their home life, intellect and emotional capacity at the time of the slaying. According to the Massachusetts Committee for Public Counsel Services, at least 80 people could be affected by the high court decision: the 62 inmates imprisoned for murders committed as juveniles, some of whom appealed their sentences before the court ruling, 17 who are facing pending charges and another juvenile who was convicted before June but not yet sentenced.

A bill to allow juveniles serving life without parole a chance at release after serving 15 years, which was proposed long before the high court decision, died in the last legislative session and no new proposals have been submitted, said Massachusetts Child Advocate Gail Garinger, Patrick’s top liaison on the issue.

In Massachusetts, unlike in other states, no teen killers have to date filed motions for resentencing in the wake of the decision but legal developments are unfolding in other ways.

Leone’s office is considering whether to appeal Tuttman’s decision in the case of Ben Peirce, now 17, who is charged in the 2010 slaying of 29-year-old Adam Coveney. Peirce’s lawyer, John Salsberg, had asked Tuttman to clarify what the Supreme Court ruling meant in Peirce’s case.

It is a question being asked by many defense lawyers, who have said they can’t advise juveniles without knowing the potential punishment.

“I think that is a quandary for the states,” Levick said. “You have to know what sentence you are exposed to when you enter into plea negotiations.”

Kevin Keo of Lynn, serving life without parole for a murder committed when he was 16, is appealing his conviction to the Supreme Judicial Court based partly on the high court decision that the punishment is unconstitutional.

Leone wants Marquise Brown to serve life without parole for the 2009 Framingham slaying of Tyriffe Lewis. Brown, then 17, was convicted in August but sentencing is delayed as prosecutors seek clarification on the high court’s ruling in Brown’s case.

So far, Leone is the only state prosecutor to publicly advocate for a particular position on juvenile killers, arguing that they should serve decades in prison before parole eligibility. Other prosecutors “have not come to a consensus” on what to do, said a spokesman for Worcester County District Attorney Joseph D. Early Jr., president of the Massachusetts District Attorney’s Association.

But Massachusetts officials are carefully eyeing other developments in other states for clues on how to move ahead. Iowa Governor Terry F. Branstad in July commuted 38 juvenile lifer sentences, requiring inmates to serve a minimum of 60 years after their original sentencing before applying for parole. An Iowa judge later rebuked him for ignoring the Supreme Court by not providing offenders any meaningful opportunity to obtain release.

“A blanket sentence for 38 juvenile offenders that provides no eligibility for parole for sixty years is not the sort of individualized sentencing envisioned under Miller v. Alabama,” Iowa District Court Judge Timothy O’Grady wrote.

North Carolina and California have passed laws since June applying the decision retroactively, allowing hundreds of juvenile killers a chance at parole once they have served 25 years in prison, a sentence Garinger opposes.

“Any state that imposed a substantially longer sentence, one over 15 years without a chance for parole for individuals under 18 – it would not be something I would support,” Garinger said.

Garinger wants Massachusetts to go further than the nation’s high court, banning juvenile life without parole completely, and is briefing Patrick on reform discussions.

“The governor is very well informed on this issue and very concerned about it,” Garinger said.

Josh Dohan, director of the state public defender’s Youth Advocacy Division, said dozens of attorneys are being trained to represent the at least 80 individuals potentially impacted by the high court’s ruling, most of whom are indigent.

It is likely that any proposals that require teenage killers to spend decades in prison before they have a chance at freedom will be challenged in the courts. The Supreme Court decision said juveniles deserve a “meaningful opportunity to obtain release,” based on demonstrated maturity and possible rehabilitation.

“Huge sentences that span the majority of a normal youth’s life expectancy are in fact life sentences,” Dohan said.

Some parents of murder victims agree.

Sonia Booker, 79, whose son Jeffrey was murdered by a 16-year-old in 1988, said teens that kill shouldn’t be punished forever.

“Don’t take their whole lifetime away. Vengeance is not mine,” she said.

Milton Jones, whose son Elijah Pace was killed by two youths, said juveniles deserve a chance at redemption.

“Prison has its purpose, but it can wear out if it is too long,” Jones said.

Juvenile killers in other states are challenging their punishment. A New Hampshire judge has given Stephen Spader, the convicted killer of a Mont Vernon woman in 2009, until January to file an expert witness report in his request for resentencing. Robert Tulloch, 17 when he helped kill two Dartmouth College professors in 2001, has also requested resentencing.

The Pennsylvania Supreme Court is the first state high court to test the applicability of retroactivity, hearing oral arguments this summer on how to handle the roughly 470 juvenile murderers serving mandatory life without parole. Pennsylvania has also passed legislation granting future convicted juvenile killers the chance for release after serving between 20 and 35 years, depending on the age of the killer at the time of the crime.

At least two state appellate decisions in Florida, which has a mandatory sentence, have ruled the high court’s ruling is not retroactive. In another case, lawyers for a 12-year-old boy who was charged as an adult last year claim he can’t be tried for murdering his two-year-old brother without clarity on his eventual punishment. Courtroom or legislative activity on the issue is also unfolding in Wyoming, Nebraska and Michigan.

Back in Massachusetts, modifying juvenile sentences could burden a state budget already reeling from millions in unexpected costs generated by the crime lab scandal, juvenile lawyers acknowledge. Reviewing past cases involving juvenile killers could involve lengthy resentencing and parole hearings. But keeping prisoners for decades into old age could cost states even more, said National Juvenile Justice Network Director Sarah Bryer.

“You are looking at 80 years in prison for teenagers. By the time they are in their 90’s you have enormous medical bills,” Bryer said.

The protection of a juvenile’s rights, not cost, should be the priority for states, she said.

“If states want to take away someone’s liberty, expense shouldn’t be the most important question,” Bryer said.