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.