Louisiana Moves One Step Closer to Creating A New Unconstitutional Sentence for Children Who Were Sentenced to Life Without Parole
The Louisiana legislature is currently contemplating how to deal with the inconvenience of the U.S. Supreme Court throwing out death sentences of 300 people who committed crimes as children. Historically, Louisiana only had two sentences for murder convictions: Death by lethal injection or death by any other cause while confined to a prison cage. The latter applied even to second-degree murder, as there was no parole statute, and life without parole (known as “the other death penalty”) was mandatory, even on children.
Various bills have gone through committees on both the House and the Senate to create a Life with parole sentence, one that might apply to the 300 “Miller Kids” incarcerated in Louisiana. None of the proposals have a term of years, and the only debate is over how long until a child is eligible for an initial evaluation by the parole board. Unfortunately, the majority of legislators appear far from grasping the U.S. Supreme Court’s straightforward decisions in Graham v. Florida and Miller v. Alabama, pointing out the obvious: children’s minds are not fully developed, this is a mitigating factor, thus it becomes cruel and unusual punishment to sentence them to the harshest penalties.
Even before the infamous (and now debunked) 1990s “Super-Predator” theory of Northeastern criminologist John Fox and Princeton professor John DiIulio, America’s punitive nature trailed behind the standards of other nations. Whether born of the Puritans, slave ownership, Native American eradication and land theft, somehow America has ridden the type of cruel streak that could lynch Emmet Till, at age 14. By the time the Clinton Administration sought to one-up the Reagan/Bush Administrations, putting police officers in schools and hashing out school discipline in courts and child prisons (rather than the Vice Principal’s office), they completed the bipartisan incarceration nation. A generation later, Fox and DiIulio wrote an amicus brief in Miller v. Alabama, saying they were wrong. But too little, too late.
Louisiana was content to allow their 300 Miller Kids, now 294 men and six women ranging in age from 23 to 75, to die in prison despite these cruel and unusual sentences. A third of them have been incarcerated for twice as long as they lived before prison. One man, Henry Montgomery, who has been in Angola State Penitentiary since the time President Kennedy was assassinated, challenged this decision. In 2015, the U.S. Supreme Court ruled that their previous decision applied retroactively, these unconstitutional sentences need to be thrown out, and these children need sentences with a “meaningful opportunity for release.”
Louisiana, America’s prison capital, has so many people languishing in prison, the spiraling medical costs will likely bankrupt the state. Various instruments have been created and face constant amendment to migrate older people, often past the point of self-reliance, onto some other care provider. Medical parole (Over 60 years old, with over 10 years confined) and the current parole law for Lifers (“20/45”) exclude people with crimes of violence.
Louisiana has little experience with parole releases and parole-eligible sentences. Hardly any criminal attorneys (defense and prosecution) have experience dealing with a range of sentencing for a capital crime. If the state pursued lethal injection, those attorneys had two options: death by the needle or death in the cage. The Miller Kids’ sentences, once the death penalty was outlawed for children, became an automatic Other Death Penalty. Only 3% of people released from prison are from parole. [“Good Time Parole” is different, by merely converting credits earned from good behavior into a parole term rather than an actual sentence reduction, as in many other states.]
To illustrate the relevant nature of state-by-state standards, consider the advocacy of Louisiana Center for Children’s Rights (LCCR), the children’s public defender in New Orleans, where 69 of the Miller Kids were convicted and sentenced (while 26 are in nearby Jefferson Parish). LCCR supported a bill (SB 127) that would allow a child’s first parole board review after 35 years, a term far beyond any reasonable number across America and across the world.
VOTE testified against SB 127, pointing out the obvious: Seeing a parole board at 50 is not a “meaningful opportunity for release.” This one-size-fits-all approach, even harsher than the adult “20/45” law, would likely eliminate any opportunity for someone to be self-sustaining after release. And considering the forced diet and paltry health care of prison, such a sentence would practically serve as another Medical Parole option.
A reasonable sentence would be to first review children’s cases when their minds are fully developed. As the experts who weighed in on Miller v. Alabama pointed out, this is generally about 25 years old. An initial parole hearing after 10 years would arrive at that point (with practically all such people entering the prison system at 15-17 years old.) Regardless of whether any judge, prosecutor, or legislator wishes these people to have hope or to live a hopeless existence, it is strategically intelligent to review someone after 10 years.
Parole boards are consistently conservative creations of elected governors. They live in trepidation that someone released will be on the six o’clock news for doing something terrible. They spend a matter of minutes in the presence of the person they are to re-judge. They (hopefully) read discipline reports, victim impact statements, and possibly letters of support from family, educators, and clergy. They want to know, ‘if we let you out next year, where will you live? How will you support yourself? What does your future look like?’ Only a strong sense of security will provide the basis for voting yes- and serious convictions require a unanimous vote. Hopefully they know that people with the longer sentences for more serious convictions have the lowest recidivism rates, yet it will never be “zero.”
After ten years, the parole board can first put a person on their radar. Enough time has passed where they have settled into roles within the incarcerated community. Considering as they came in as children, there is a chance they have been robbed, beaten up, raped, or stabbed. They may have spent excessive time in solitary confinement, dating back to when they were teenagers- even where the prison officials are trying to protect them. They have been getting steady advice to bulk up and keep a look out.
After ten years, the parole board can learn if any physical or psychiatric medical conditions are present, and if they are being treated. The board can understand what, if any, support they have on the Outside- including grandparents who may not have long to live or children now entering middle school with an incarcerated parent. The board can learn about someone’s skill development, vocational and academic learning, and what job they may be holding down in the prison.
After ten years, the board can provide some guidance as to what it might take for this person to get out someday. And they may see them in another year, another five years, or make up their mind that this sadistic person has behaved in a violent manner that is truly disturbing. When they see the person again, they can check in again.
SB 127 passed out of committee to the Senate floor, without any amendments or reductions that some advocates quietly sought, and passed the full chamber, 25-8. It is now in the House Committee on the Administration of Criminal Justice. A week later (in that House Committee), LCCR came out against HB 264, a mirror bill to SB 127 that called for the same 35 years. LCCR supported HB 554, a bill ultimately amended to 25 years before eligibility for murder, 20 years for crimes other than murder, and 15 years for sentences other than Life. VOTE opposed them both.
Yesterday, both House bills came to the full chamber for debate. When Rep. Mack was asked where he got the 35 years as a basis for review, he responded: “from me.” An attempt to amend that bill down to 25 years failed. HB 264 passed 75-19, so now each chamber has passed a 35 years till parole bill. When the 25 years bill came up (HB 554), it promptly failed, with only 33 people voting for it.
VOTE opposes 35 years to review, 20 years to review, and anything resembling the “20/45” law for adults. There is no bill that allows for a numerical sentence, and none of these proposals actually reflect that youth is a mitigating factor, and a “meaningful opportunity for release” cannot be satisfied by a rare release in one’s senior years. The nonpartisan American Law Institute’s Model Penal Code calls for a ten-year review for juveniles on Life sentences. Nationally, adults sentenced to Life in 1991 were expected to serve an average of 21 years before release. That average spiked to 29 years by 1997. For adults.
Furthermore, these bills call for an expert evaluation by someone who has expertise in adolescent brain development. When do they propose this happen? At age 50? It is difficult to conceive of what this evaluation will reveal, other than that this person, approaching “senior” status, has been formatively developing in a prison environment. They have spent over two-thirds of their existence in a cage, cell block, or work field. They may have early-stage Alzheimer’s and any number of other adult ailments that have little to do with their adolescent development. Any expert that comes in to evaluate a 50 year old will have no child or young adult to compare to, so have little evidence to comment on development.
The other day I spoke with G.T., a man who killed someone at sixteen (not in Louisiana). His first parole date was at 22, and he was released at 28. Now at 32, after finishing a dual degree in college, getting married and having his first child- he struggles to find work and stave off depression. The discrimination he faces will not go anywhere, regardless of his disposition and work ethic. He is still serving his sentence, and will be until death.
Many people who, if they were convicted in Louisiana, would have been one of these Miller Kids. Yet in a legal system that requires plea bargains to stay afloat, with underfunded indigent defense, backlogged prosecutors, and clogged courtrooms handing down ultra punishment, something reasonable must be on the table to plead guilty. Giving someone an option of 20, 30, or 60 years to serve (along with a set parole eligibility and final release date), gives someone an option to not contest the conviction.
If Louisiana adopts the likely proposal, many of the Miller Kids will contest their sentences. Replacing one unconstitutionally excessive mandatory sentence for murder convictions with another excessive mandatory sentence (regardless of the facts or level of involvement). This will result in additional litigation. If these sentences are imposed without proper experts and the right to address the court, it will result in litigation. Those who plead guilty to life without parole because they were threatened with the (now unconstitutional) death penalty should probably be considering a motion to withdraw plea and vacate their convictions. Furthermore, some defendants will seek judges to reduce their sentence down to the Manslaughter range. State v. Craig (LA 1976) allows that when a sentence is no longer available, a reduction to the next most serious crime is appropriate.
Up until 1976, the state of Louisiana would either execute someone or, if they had a Life sentence, let them out after 10 years of good behavior. And then the prison boom began, finding us now in a state where over 10% of the people in prison are likely to die behind bars; 73% of them are Black. If Louisiana were not so behind the common American standards, they would know dozens of people who, when given an opportunity, were able to grow into positive and productive people. In other states, despite all the challenges that accompany life with a serious conviction, many of such grown men and women are mentors to troubled youth who need advice from those who have been through similar trials and tribulations. They are parents and hard workers, giving back to the community rather than being a drain on resources in prison until shuffled into an elderly home.
Considering it is increasingly rare to find a politician without a family member struggling with addiction, we know that criminal justice issues and challenging situations strike at us all. What we the people, and our media, need to ask our public leaders is how they responded to their own impacted families. Did they call the police on their daughter when they found the drugs? Did they urge the prosecutor to seek a maximum sentence on their stole something? If not, explain why not?
It is understandable to want to throw away the key, especially when the defendant is someone else’s kid. But ultimately, we are one large family, one community, and need to find the delicate balance between accountability, punishment, rehabilitation, forgiveness, and grace. Some mothers visit two sons, one in a prison and another in a graveyard, and embody this seeming (yet fabricated) distinction between perpetrators and victims. If, and when, we see our responses to violence as addressing the problems within our own family, we will find it easier to address situations the Louisiana Legislature is struggling to resolve on our behalf.
Recap of Reentry Week: Major updates in housing, employment, voting rights, and a political prisoner comes home.
Over 100,000 people were released from prison during the first annual Reentry Week. While much of the focus was on government agencies improving their awareness of challenges we face, a few directly impacted people and organizations were given an opportunity to talk about solutions. From New Orleans to Los Angeles to the White House, formerly incarcerated people are living testimonies to the maxim: People closest to the problem are closest to the solution.
New Orleans’ new housing policy gets national recognition
Reentry Week Monday: Voice of the Ex-Offender (VOTE) joined our allies Stand With Dignity, the Vera Institute of Justice, Greater New Orleans Fair Housing Action Center, and Southeast Louisiana Legal Services to educate HUD’s Deputy Secretary, Lourdes Castro Ramirez, about the importance of our revolutionary public housing policy that allows people to reunite with families despite having a past criminal conviction. VOTE's Norris Henderson and Bruce Reilly, along with members of Stand With Dignity, expressed the historical implications of HUD's current exclusion policies, the comprehensive oppressive impact, and how we came together to make our proposal happen.
It is important for top government officials to understand the typical genesis of social justice reforms. Some know from their experiences, and some also forget. First, impacted people complain amongst each other and start to vocalize and submit their requests and petitions for policy change. They are ignored. They start to organize, understanding that they are not the only one, focus on the government official or agency as a target, and amass their data, their stories, their coalitions and their strategies. After several years, the agency starts to understand that the status quo they had been enforcing is hurting, not helping, the community. Then a reform begins to take shape, at times whittled down from the directly impacted people’s original needs.
When the reform is announced and embraced, all too often the impacted people are either left behind or relegated to props for a politician or policy makers. The work by impacted people in the criminal justice sphere is beginning to be seen as irreplaceable by allies who fight for our cause. This strange schism would likely not exist except for the dearth of convicted people working at many organizations that fight for the rights of convicted people. Ultimately, we need to forge those bonds more tightly, and the most effective way would be for their staffs, particularly senior leadership, to be at least 50% people with conviction histories.
The current tone, exemplified by Deputy Castro Rodriguez, is positive. It is important to remain in this space of collaboration, and continue forward in tackling deeply rooted dilemmas constructed through mass incarceration. 17,000 people were released on Monday.
Voting Rights: A 150 Year Struggle Continues
Reentry Week Wednesday: the Louisiana House of Representatives contradicted their actions from just a day before, and went against the principles of rehabilitation, reentry, and assimilation by maintaining disenfranchisement for 70,000 people on probation and parole in our communities. “Nay” votes included nineteen people from the Orleans Parish, Jefferson Parish, and Capital Region of Louisiana, i.e. the most impacted areas of the state, including Orleans representatives Raymond Garofalo, Stephanie Hilferty, and Christopher Leopold. Had fourteen of those people voted in favor, the state would have sent another positive message: People who want to be part of civil society are welcome to do so.
Louisiana, for now, leaves in place the structural legacy of slavery, at a time when there is a legal and legislative battle to tear down the monuments of Rebel leaders, led by a grassroots coalition #TakeEmDownNOLA. Whereas slavery was not entirely abolished after the Civil War (instead requiring a conviction to enslave someone under the 13th Amendment), directly impacted people were without real voting rights for a century. None of this had even a hope of changing- until now. Of all the dastardly tactics to deny voting rights (Literacy test, Understanding obscure clauses of the Constitution test, poll taxes, whether your Grandfather could vote, or plain old violence and intimidation), disenfranchisement based on convictions is the last overt barrier to protecting citizenship for all. We are fourteen votes away.
Our work to extend voting rights to everyone in the community extends beyond Louisiana. On Friday, Virginia’s governor decided to stop creating a civic death sentence in their state, and restore voting rights to 200,000 people who have completed all prison, probation and parole. Today, the GOP lawmakers in Virginia publicly announced they are hiring a lawyer to challenge this determination in court. This illustrates the problem of when the fundamental element of a democracy, voting rights, has turned into a partisan battle.
Virginia’s governor, as former Democratic Party chairman, and friend of the Clintons, likely expected this outcome. Fortunately, the Governor will need to defend his decision on non-partisan legal grounds; although if there is a chance to rule on the issue simply based on his authority to act (without getting into the merits of the action), the court would likely take such an easy out. Similarly, because civic death sentence is so out of line with modern American values, the GOP lawyer is likely to focus on the Governor’s authority rather than the merits of his decision.
Our people speaking truth to power in the White House
Reentry Week Wednesday: the White House announced its Champions of Change, ten people on the ground who are paving the way with hard work in different arenas. Among this group of leaders is Dorsey Nunn, a true leader among leaders. Dorsey is the only formerly incarcerated person serving as the executive director of a law firm (Legal Services for Prisoners with Children), and he has so much credibility he needs no law degree. He is a co-founder of All of Us or None (the group who started the Ban the Box movement), and president of the Formerly Incarcerated, Convicted People and Families Movement (FICPFM), which began when directly impacted leaders began to consolidate their efforts from around the nation.
Dorsey dropped the proverbial mic in the White House days before President Obama literally did. Drawing strength from his “Homies,” he kept it real, particularly pointing out the misguided trend of reserving reentry and rehabilitation only for the so-called “first time non-violent offenders.” His inspirational message included the power of informal education gained in prison from elders, writers such as Fanon, Orwell, Ellison, and in the Black Panther Party newspapers.
Dorsey also let Congress know that their proposed Fair Chance Act (for employment) should include Banning the Box for contractors doing business with the federal government. Especially as FICPFM and allies already pushed the President to sign an executive order banning the box in federal government, this is the natural next step. It would serve as a legitimate blow to structural discrimination and structural racism. In Dorsey Nunn’s parting words:
“If you can see me as an asset instead of a liability or a disabled person, then maybe you will invest in me in a different way. I don’t think y’all see me for who I am, I think y’all see me for what you need to do with me, instead of thinking about what you might do with me.”
See the entire panel below, with Dorsey Nunn beginning at 1:55.
The Federal government makes moves on housing policy
Reentry Week Wednesday: Congresswoman Maxine Waters of California unveiled the Fair Chance at Housing Act of 2016. This addresses the discrimination people face with entry to public housing programs and the quickness for which they are evicted. This is legislation FICPFM has been calling for since releasing the 2013 report, “Communities, Evictions, and Criminal Convictions.” Rather than addressing these problems one by one, as VOTE has done in New Orleans, a federal program should be reformed at the source.
“The current harsh policies for housing assistance are a direct result of the harmful and ineffective legacies of the War on Drugs and the War on Crime,” Waters said. “Far too many Americans now carry a criminal record that limits their opportunities throughout life, despite the fact that they have successfully rehabilitated or taken great strides to change their lives. In particular, it has restricted access to housing assistance, which is a critical part of the rehabilitation and reentry process.”
This is a bill that every reformer in Congress needs to embrace, as HUD’s mission is to address the housing dilemmas of low-income communities. The Fair Chance at Housing Act directly builds upon the agency’s growing awareness that the stratification of families due to convictions was a failure. By pushing people from low-income communities, people became widgets for corrections budgets rather than employment, housing, or education budgets. After prison, we were placed in limbo for decades- and society may finally be prepared to turn the corner, turn us from ‘widgets’ into people, from problems into assets, and whittle away at the structural disparities created during the past five decades of a militarized Drug War.
17,000 people were released on Wednesday.
Reentry Week Thursday: HUD held a massive webinar attended by people all over the nation; so many people logged on, even this writer could not log on. They discussed the need to focus on reentry problems, and highlighted the work in New Orleans as an important step. This is huge. It validates the work of so many people who were formerly dismissed as disgruntled activists. People who never received a penny for all the writing, the testimony, the organizing, even the all-night vigil we held to reinforce the reality that we are going to sleep somewhere, regardless of where we are allowed. It also highlights the sad reality that the jails do not turn people away, we also make room for more cages, and society has been using cages as a costly method of dealing with homelessness, joblessness, mental illness, and addiction. Costly both in dollars and in lives.
17,000 people were released on Thursday.
One Man’s Reentry: Gary Tyler leaves Death Row far behind
Reentry Week Friday: Gary Tyler became one of roughly 17,000 people released on that day. Gary was sentenced to death after, at age 16, his all-black school bus came under attack by an all-white mob opposing forced integration in 1974. Gary’s legal case is extraordinarily typical in explaining the too long, and too narrow, path to release from a wrongful conviction. A path that most wrongfully convicted people can never complete.
Gary was sentenced to life without parole after his death sentence was considered unconstitutional. When his mandatory life without parole sentence was also recently considered unconstitutional, a new opportunity arose to resentence Gary, and at this point he had amassed international support as a political prisoner. The evidence didn’t actually add up in his case, but first we had to decide killing children was cruel and unusual. Then we had to decide mandatory sentences to die in prison, for children, did not take into account our children’s underdeveloped brains and that youth should be a mitigating factor in sentencing. Instead, this concept of the “Super Predator” has arisen with a false belief that young people who do wrong prove that evil is in their hearts, that we are born this way.
Louisiana is in the process of creating a new sentence for the 299 other people, like Gary Tyler, who need a new sentence. Last week at the legislature, VOTE testified in opposition to a bill that would set parole eligibility, for those sentenced to a Life sentence, at 35 years. This is far too high, out of step with the rest of the nation, and does not create the “meaningful opportunity for release” mandated by Miller v. Alabama.
Meanwhile, in another room, VOTE testified in support of closing the loophole on adult Life parole eligibility. The current law known as 20/45, requires people to be 45 years old with 20 years behind bars to be eligible for parole. This is a law first drafted by the Angola Special Civics Project, the precursor to VOTE. The loophole, however, is that people younger than 25 would end up serving more than 20 years prior to eligibility. It only makes the case that 35 years, for children, is far too much. If 35 years becomes the law of Louisiana, there will certainly be further litigation claiming this is unconstitutional. All this to say only 3% of people leave prison on parole.
Like many wrongfully convicted people before him, Gary pled guilty to manslaughter and a sentence he has long since completed. People seeking to contact Gary Tyler can reach out to VOTE through our website or P.O. Box, and we will forward correspondence.
Reentry Week continues every week, until everyone comes home
There are 100 million people with convictions, and most were sentenced to probation rather than prison. Today, another 17,000 sons and daughters were released from incarceration while many thousands more were convicted. We represent all ethnicities, religions, neighborhoods, and a range of political beliefs. All of us are struggling with a lifetime of discrimination and exclusion, regardless of what we did in the past and who we are today.
If law enforcement ever focuses on, for example, the prevalence of ‘white-on-white crime,’ along with the concentrated use of drugs in college dorms by people age 18-25 (i.e. the dominant age group of people entering the criminal justice system), then we can have a genuine conversation about the criminal justice system in a way that avoids the nation’s historic struggle with racism. Until that time however, convictions are a proxy for race, and discrimination resembles the same things fought for over the past century. This is true whether people are aware of it or not.
It is not only people with convictions who need education. We must educate the disconnected public, including policy makers, about our abilities, our families, our hurdles, achievements, and dreams. We don’t have the big microphones, and as Dorsey said: he may not be back in the White House again. So he, FICPFM, VOTE and others travel to these spaces and do what we can to provide this education.
Mass incarceration is gutting our nation from the inside, bankrupting us morally, politically, and financially; and history will likely place the American gulag and corresponding Drug War into a space of errors and evils, sitting alongside slavery, Jim Crow, female disenfranchisement, Native American genocide, and Japanese-American internment camps.
In the words of Franz Fanon, “the peasant doesn’t have to talk about the truth, the peasant is the truth.” And we are trying to educate others through our words, deeds, and mere presence. Reentry.