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To free or not to free: Giving juvenile murderers a second chance

States debate retroactive application of ruling against mandatory life sentences without parole for minors

Frederick Christian at a hearing before the state's parole board in Natick, Massachusetts, on May 29. Christian, who has been in prison 20 years for a premeditated robbery committed when he was 17 that resulted in two dead and one injured, appealed for release after Massachusetts' highest court struck down mandatory life sentences for juveniles in December. He was granted parole.
Elise Amendola/AP

Two weeks ago, Linda White drove 90 miles east from her home in Houston to break bread with a convicted murderer at a Sunday evening buffet in Beaumont, Texas.

The dinner discussion over spicy Cajun cuisine was not just with any ex-convict, but with Gary Brown, the man released in 2010 after serving 23 years of a 54-year sentence for killing White's 26-year-old daughter Cathy when he was just 15.

It was their first social meeting since coming together as part of a Texas state mediation program emphasizing criminal redemption over retribution. White has become an outspoken advocate for restorative justice, believing that, even after experiencing the most heinous acts, family members of murder victims can forgive and move on.

“Gary keeps himself straight as an arrow, and I’m proud of what he’s done with himself. I don’t think we should lose out on the possibility of anyone’s chance to be a productive citizen,” said White, who has served as director on the national board of Murder Victims’ Families for Reconciliation. “We go overboard and way far in the wrong direction, costing ourselves lives that could be redeemed and benefit us in the future.”

The retired psychology lecturer — who also teaches college courses to prisoners — argues for more flexible and compassionate treatment of teenagers convicted of murder, citing her ordeal as a model case in which the perpetrator of a brutal 1986 homicide-rape has been rehabilitated.

“I don’t think him staying in prison any longer would have been more satisfying to me personally, [or that] citizens of our state would have been any safer,” White said.

Gary keeps himself straight as an arrow, and I’m proud of what he’s done with himself. I don’t think we should lose out on the possibility of anyone’s chance to be a productive citizen.

Linda White

Mother of murder victim

The ghastly encounter that devastated her family involved two Houston boys, both 15, who took turns sexually violating her pregnant daughter at gunpoint before pulling the trigger.

“[Gary] was not the shooter. Other than that, he was equally guilty [with co-defendant Marion Berry] and sentenced that way. From Gary’s perspective, he considers himself 100 percent responsible. He never even mentions that he was not the one who fired the gun,” White said.

Now, as mandatory minimum sentences come under criticism across the board, the practice of sending juveniles to prison for life with no chance of being freed — ever — has increasingly been the target of reformers.

“All of this ‘life without parole’ occurred with racially hinged laws about morally irredeemable kids that couldn’t be fixed,” said Deborah LaBelle, director of the Juvenile Life Without Parole Initiative.

Around 2,570 juveniles are currently serving such life sentences, including over 450 in Pennsylvania, the most of any state.

Four-fifths of these sentences were decided by judges who had no ability to use their individual discretion, and Human Rights Watch says the U.S. is the only country in the world to apply this harsh sentence to people under the age of 18.

Meanwhile, 12 states and the District of Columbia have banned juvenile life sentences without parole (JLWOP), and another seven have no JLWOP prisoners.

Exercising discretion

With three landmark Supreme Court decisions, the laws on the books about sentencing young people have been slowly changing. In 2005, Roper v. Simmons held that the death penalty for minors constituted cruel and unusual punishment. Then, in 2010, Graham v. Florida established that a life sentence without parole was unconstitutionally harsh in non-homicide cases, and affirmed the principle that youth were less blameworthy than adults for their conduct.

On June 25, 2012, Miller v. Alabama banned mandatory life without parole for all juvenile offenders. Justice Elena Kagan, writing for the majority, said judges should take into consideration the family life of the defendant and the potential for future rehabilitation. The ruling trumps legislation in 28 states that requires all murderers to be automatically sentenced to life without the possibility of parole, even for juveniles as young as 13.

States that have outlawed juvenile life sentences without parole, with red shading, and those that no longer have any JLWOP prisoners, in blue.
The Sentencing Project

Now, judges in every state are obliged to exercise their discretion in looking at mitigating circumstances, with the guidance that JLWOP should be an “uncommon” sentence. However, with many state courts debating the implications, there is no national agreement on whether the ruling includes those prisoners previously convicted and sentenced.

The Michigan Supreme Court is set to decide soon on the issue, with the reform stance backed by dozens of retired judges and prosecutors.

The Supreme Court declined earlier this month to hear an appeal of a Pennsylvania case on retroactive application of the ban on JLWOP. Although the high court may eventually take up the case to settle the issue, state supreme courts continue to offer divergent and contradictory rulings.

The evolution of sentencing through the Miller decision highlights a key issue for the criminal justice system: whether juvenile offenders who commit “adult crimes” should be charged as adults or be treated “like kids.” Reformers say minors should be held accountable in an age-appropriate way, taking stock of childhood trauma and developmental differences in their brains.

A U.N. Human Rights Committee report released March 27 added international pressure to the campaign in support of “juvenile lifers.”

The U.N. body recommended the U.S. should “ensure that all juveniles are separated from adults during pretrial detention and after sentencing and that juveniles are not transferred to adult courts.” The report also said “states that automatically exclude 16- and 17-year-olds from juvenile court jurisdictions should be encouraged to change their laws.”

The ‘most violent offenders’

Without taking a specific legal position, the National Organization of Victims of Juvenile Murderers says it supports the widest possible range of sentencing options, including life without parole.

The group’s website says that “punishment for such serious crimes should be based on the culpability of the offender — their knowledge, premeditation, their intent, their disregard for human life, their individual circumstances, their consent, their choices, their actions, and the harm that they cause. Exterior factors such as their chronological age should not be the sole consideration.”

“JLWOP is a rare and serious sentence reserved for some of the nation’s most violent offenders,” says the organization. “Most JLWOP offenders have been incarcerated for committing unimaginably horrific and aggravated murders or multiple murders.”

“We recognize that throughout the criminal justice system there are some that are unjustly and inappropriately sentenced. The system provides means such as defense, appeals, clemency, etc., to try to prevent this from happening, and to correct it when it does.”

David Leyton, a prosecutor in Genesee County, Michigan, a state with 364 people serving life sentences without the possibility of parole, summarized the punitive challenge of meting out fairness. “We need to do a whole lot better job of educating our children … It’s societal issues that we’re not addressing. That’s where the system is broken. The criminal justice system works just fine.”

Most JLWOP offenders have been incarcerated for committing unimaginably horrific and aggravated murders or multiple murders.

National Org. of Victims of Juvenile Murderers

“None of us want violent people in our community,” said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth, adding that children who “put communities at risk should remain in prison.”

“But the vast majority of these young people were exposed to trauma and violence as children and have the capacity to change,” she said. “The declaration that these kids will never be fit to walk among us again is problematic. There’s growing support for reform, whether from Newt Gingrich or Jimmy Carter. And there are victims’ families who come from the communities most impacted by violence who have joined the call.”

Xavier McElrath-Bey was released from an Illinois prison in 2002, after serving 13 years of a 25-year sentence for a gang-related first-degree murder he committed at the age of 13. He now works as a youth counselor and an advocate for sentencing reform.

“I can’t help but think about the victim of my case and the harm that I caused,” McElrath-Bey said. “I’m doing something that allows that tragedy not to go in vain. Ultimately it led me to a place where I can give back to the community. His life was lost, but sent my life in the direction that I’m in now.”

Having done research on thousands of Chicago youth, McElrath-Bey argues that “restorative justice is not soft on crime” but aims “to heal all parties involved.”

He frames his own life story in a frank way.

“I had a rough upbringing in an abusive environment," he said. "Being placed in foster care, I was more susceptible to making poor decisions. By the time I was 13, I’d had 19 arrests and seven convictions. It blows my mind to think that I had no sense of consequence, and being locked up felt normal to me.”

Researcher Ashley Nellis at the Sentencing Project conducted a comprehensive study in 2012 called “The Lives of Juvenile Lifers.” The report found that 61 percent of JLWOP prisoners are African-American, and on average, they are in their 30s and have been in prison for 16 years.

“Not all of them are tear-jerking stories on how they’ve changed their lives,” Nellis said.

However, upcoming high court rulings about Miller being retroactive could render existing jail terms unconstitutional. Judges would be empowered to hand down new sentences, if desirable, and send each case to the parole board.

Even so, Nellis said, the judge may decide on life without parole as the new sentence, leaving the prisoner in the same boat as before.

But in the event the juvenile lifer gets a break, Nellis said, "he needs a plan in place for where he would live, what he would do." 

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