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February 17, 2013

Lengthy discussion of Miller in Michigan through lens of one female murderer

This lengthy new AP article, headlined "Sentenced to life at 16, woman hopes for freedom," provides a details account of the implications and application of the Supreme Court's Miller ruling in Michigan (and elsewhere). As the headline suggests, the bulk of the piece is focused on one female offender, but these excerpts highlight some broader part of the story:

There are more than 2,000 Barbara Hernandezes in this country -- men and women sentenced to live and die in prison for murders committed when they were teens.  Last June, the U.S. Supreme Court delivered a long-awaited ruling, wrestling with questions that have confounded the justice system for years: Should teens convicted of the most brutal crimes be punished just like adults? Or should their youth matter?

The ruling was dense with legal references and focuses on faraway cases. But in its 64 pages, the court offered new hope to inmates in 28 states.  "Imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children," Justice Elena Kagan wrote for the court's majority.

Despite the justices' strong words, they declined to settle the many complex questions inherent in resolving these cases. Instead, they left it to people in statehouses and courthouses, in living rooms and law offices and prison cells.  In Michigan and many other states, the challenge now is to decide whether, and how, this new standard of fairness is supposed to confront the stern justice of the past.

That won't be easy. In the closing hours of Hernandez's trial, the prosecutor urged jurors to focus solely on her role in killing James Cotaling, a 28-year-old auto mechanic who, on a Saturday night in May 1990, told his fiancee he was going out to buy a Mother's Day card at Kmart, but never came home. "This would be the type of case where it would be easy to feel sorry for Barbara Hernandez, but you all promised me at jury selection that sympathy would play no role in your deliberations," said the prosecutor, Donna Pendergast. "You can't look at who this defendant is. You have to look at what she did."

Now, more than two decades later, the Supreme Court says that is not enough. But to comply with the court's words will take more than just a change in legal process.  It could well force the system to revisit the distant past and appraise its meaning, to again confront the details of terrible crimes and to take measure of childhoods left behind long, long ago....

More than two decades later, the Supreme Court says juvenile defendants' lives must be weighed when they are sentenced. Critics and supporters of the ruling agree it will change sentencing of juveniles in the future. But what should judges do with those already serving life? If the new ruling applies to them, too, what should happen next?

Lawyers for prisoners want resentencing hearings to consider factors set out by the court, including lack of maturity at the time of the crime, family background, vulnerability to negative influences and the role the teen played in the killing.  But officials in state after state have taken widely varying paths to resolution.

California Gov. Jerry Brown signed a bill allowing judges to reduce sentences to 25 years to life if an inmate shows remorse and is working toward rehabilitation.  In Iowa, Gov. Terry Branstad commuted all juvenile life sentences to 60 years, a decision widely seen as flouting the Supreme Court's directive.  Pennsylvania lawmakers set minimum sentences of 25 years for defendants 14 or younger convicted of first-degree murder, while those 15 to 17 would have to serve at least 35 years.

In Michigan, the issue is being hashed out on three fronts. In the legislature, state Rep. Joe Haveman introduced bills late last year allowing for possible parole of juvenile lifers after 15 or 20 years, depending on their age at the time of the crime.  But Michigan's parole board has a reputation for releasing very few lifers and Haveman said he's not sure how to address that. He chose not to pursue passage and is meeting with a group, including prosecutors and defenders, to propose new bills for this year.   "I think the public is ready to look at alternative thinking and alternative sentences, than to just say let's throw people in prison and not think about them again," Haveman said.

A federal judge ruled in January that Michigan laws mandating life sentences for teens convicted of first-degree murder are unconstitutional.  But state Attorney General Bill Schuette contends the ruling applies only to five inmates who brought the case. Without a new law, the issue has also landed in state courts.

When a bailiff calls the Michigan Court of Appeals to order on a Tuesday morning in mid-October, so many people rise from the often empty gallery, Presiding Judge Michael J. Talbot's eyebrows dart up in surprise.  Technically, today's only case is that of Raymond Curtis Carp, 22, convicted with his older half-brother of a 2006 armed robbery that led to the killing of a St. Clair County woman. Carp was 15; his lawyer is contesting Carp's life sentence, citing the Supreme Court's Miller ruling.

But the courtroom is full because all acknowledge Carp is a proxy for more than 360 other Michigan inmates sentenced to life as teens.  After nearly four hours of arguments, the judges sound stumped. "I can't ignore the fact that there's a crisis pending that requires action," Talbot, the judge, says.  "What are we going to tell them (inmates), that we'll see you in a year or two and maybe something will happen?"

When he adjourns, the room buzzes with talk about what the court will do.  A month later, Talbot's panel ruled that the Supreme Court decision does not apply retroactively and rejected Carp's request; the state Supreme Court is expected to weigh an appeal later this year.

"Whether it be the state court or the federal court or the legislature ... the clear injustice of someone being held under a cruel and unusual sentence won't continue in the state," said Deborah LaBelle, an Ann Arbor attorney leading challenges to Michigan's juvenile sentencing laws. "I think it's too bad we're not there. But I'm still hopeful."

February 17, 2013 at 12:16 PM | Permalink


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The main reason to keep the death penalty is that it's the only fitting punishment for some grotesque crimes. Another reason is illustrated by this story.

The abolition of the DP is the first step in the Movement, but hardly the last. We are solemnly promised that the DP will be replaced with ironclad LWOP, but, as this case shows, there will be exceptions to LWOP, too. The first exception will be youth, but it won't be the last. Then will come old age (indeed, that one's already here in the form of alleged "sickness"-related parole)(and "old age" will gradually be re-defined down to 50 or so), diminished capacity, exceptional rehabilitation success, and on and on.

Then there will be the push to eliminate LWOP for anyone, building on the (by then numerous) exceptions, and arguing the LWOP is just a slow motion DP, which we've already banned.

Then will come the push to limit sentences to 20 or 30 years (as is the case in Norway, see, e.g., mass killer Anders Breivik). This is because, it will be said, anything more is to give up on redemption and is, moveover, an affront to human dignity and human rights.

Then will come the push to eliminate punishment altogether, because criminals are not really to blame at all, they're merely the victims of adverse social forces, incuding (and especially) the inequities of capitalism, racism, a militarist culture, poor or non-existent parental training etc., et al. Besides that, we can't afford it.

As usual, the Movement will start with what it views as a sympathetic case (usually, as here, a female in the thrall of a sadistic boyfriend). The sympathetic case will be very atypical, but the more usual thuggy types will remain hidden from view or passed over lightly.

That's how the Movement works. It's patient, not very honest about either what it says or what it's really up to, and shrewdly selective in its test cases.

And if you don't much care for the peace and safety of ordinary people, you have to take your hat off to it.

Posted by: Bill Otis | Feb 17, 2013 1:42:56 PM

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