One major concern is whether the ruling is retroactive. Another is what kinds of sentences and crimes will be affected by any changes to the law, and how those sentences will be determined. The law forbids sentencing schemes that mandate life without parole, but from there it is left up to each state.
West Virginia’s law, which went into effect March 28, calls for a maximum parole eligibility for all children of 15 years. If denied, prisoners are reviewed every year unless they have a life sentence, when they will be reviewed every three years.
Most of the press coverage and a lot of the debate about Miller has focused on brain research and accountability, but as Mike Males has pointed out, both in JJIE and elsewhere, there a lot of other factors with a better evidence base that played into the ruling. West Virginia legislators sought to address these by setting up a scheme that looks at a youth before sentencing and upon parole consideration.
Beforehand the court must consider age, impetuosity, family and community environment, intellectual capacity, mental health, peer or family pressure, level of participation in the crime, capacity for rehabilitation, trauma, involvement in the child welfare system and several others. Once the child is eligible for parole officials must consider his participation in rehabilitative and educational programs, immaturity, age, evidence of remorse and home and community environment at the time of the offense.
The law in Washington totally removes life without parole for kids under 16, and makes it a discretionary sentence for older teens. One of the options for 16- and 17-year-olds is a sentence of 25 years-to-life for aggravated first degree murder, with a minimum 20 year sentence for first degree murder. The law also lays out sentencing minimums for a variety of violent crimes. Regular reviews for parole consideration are scheduled as well, with a maximum of five years between reviews.
In sentencing, the court “must take into account mitigating factors that account for diminished culpability of youth as provided in Miller v. Alabama .. .including ... the age of the individual, the youth’s childhood and life experience, the degree of responsibility the youth was capable of exercising, and the youth’s chances of becoming rehabilitated.”
The laws provide an interesting contrast in that they each approach the goals of reform advocates differently. The Washington law is retroactive to all prisoners, but leaves life without parole on the table for some youth and doesn’t delve as deeply into the mechanics of what courts are obliged to do. The West Virginia law, while comprehensive in regards to current sentencing and parole and extending to youth of 17, is not retroactive, according to an attorney in the office of Senator Corey Palumbo, Chair of the Judiciary Committee. However, it doesn’t specifically exclude retroactivity either. This ambiguity, while regrettable when compared to Washington’s law, leaves the door open for other legislation as well as legal challenges.
The trend towards less severe sentences is continuing, but the relatively weak ruling in Miller and the decision’s vagueness in regard to substantiveness and retroactivity mean the folks at CFSY unfortunately still have a lot of work to do for the foreseeable future. In Washington they can work to expand the law’s reach to older teens, and in West Virginia they can focus on getting a more specific answer for kids suffering under the old law.