As Supreme Court arguments from two key juvenile sentencing decisions trickle down through courts and legislatures nationwide, the heaviest sentences for juveniles may be on the verge of shedding some weight.
“Graham and Miller put a constitutional ceiling on what states can do to kids,” argues Los Angeles attorney David Durchfort, continuing, “the big question now is what’s the safe zone? How far can they [states] go in punishing kids without giving them a second chance?”
Graham and Miller, decided by the U.S. Supreme Court in 2010 and 2012 respectively, bar state laws that mandate life without parole sentences for juveniles.
In both cases, the court said children are immature from a brain chemistry point of view. Therefore they are more corrigible and less culpable than adults and cannot rightfully be sentenced to life without parole until a judge takes that youthfulness into consideration. Children, they argued, should have a meaningful chance at rehabilitation and release.
In some states, the rulings make little difference because the states have no mandatory sentencing laws.
But in others, it means a change of statute, vacated sentences and maybe a change of frame of mind.
Durchfort’s arguments for rehabilitating youthful criminals will be among the first with resonance past his own state’s borders. He’s appealing a 110-year sentence handed to Rodrigo Caballero for three counts of attempted murder for shooting at rival gang members in Los Angeles County in 2007.
Caballero was 16 years old at the time and has been diagnosed with schizophrenia.
Durchfort has appealed the sentence all the way up to the California high court, arguing that 110 years without parole is an illegal sentence under Graham, because it is the equivalent of a life sentence, never giving Caballero a meaningful chance at parole.
The court has yet to announce a date for its decision. A measure in the California Assembly, Senate Bill 9, would grant periodic review to all inmates who had been sentenced for serious crimes when they were juveniles. It’s been untouched since an amendment in July.
North Carolina, however, seems to have found a new limit to its juvenile sentences: 25 years. In July 2012, it abolished mandatory life without parole for juveniles. For felony murder, the mandatory punishment is now life, defined as a quarter-century, with the chance of parole.
“Overturning the mandatory life sentence and making it life with parole — they’re going to be able to slip under Miller,” said Raleigh criminal defense attorney M. Moseley Matheson. “I think it’s something that could be challenged, but since life with parole is 25 years [in N.C.], I think it would be a difficult argument,” he said. “I don’t think there’s going to be a problem with that.”
Nevada has tweaked laws into apparent constitutionality as well. In 2011, it erased the possibility of the death penalty for minor offenders. It also set the ceiling for juveniles convicted of non-homicide crimes to life with the possibility of parole.
In Nebraska, 26 people are serving life without parole for murders committed when they were juveniles, according to Sarah Forrest, policy coordinator for child welfare and juvenile justice at Voices for Children in Nebraska, an advocacy group.
Her organization and other advocates are reaching out to those inmates who need help filing their appeals under Miller, which, under state law, need to be filed by June, 2013.
And state code still carries now-unconstitutional mandatory sentences. “Attempts to change it have been unsuccessful,” Forrest related.
Voices for Children and other advocates are calling for a re-write that gives youth an “actual, meaningful opportunity for release,” said Forrest. Kids in adult court can get very long sentences, she said: “Sometimes its 50 years, sometimes it’s 100.”
She called that “extreme sentencing” and said her group does “not want to see juvenile life without parole replaced with virtual life.”
The Nebraska Legislature reconvenes in January, Forrest’s next chance to lobby for any rewrite. “I’d say it’s going to be an uphill battle,” she said.
And it’s not clear that any code changes in any state would be retroactive.
Most of the 100 Illinois juveniles sentenced to mandatory life without parole for murder are in his jurisdiction, said Jeff Howard, deputy assistant public defender, county operations in Cook County, the center of Chicago.
“We have some pending post-conviction cases that Miller impacts,” he said. In other words, after some defendants were convicted, but before they could be sentenced, Miller cut the state’s right to apply mandatory life without parole. Litigation will tell if those cases get the benefit of Miller or not.