One tale (of thousands) of a juve LWOPer now with a glimmer of hope

Former federal judge and law professor Nancy Gertner authored this notable Boston Globe commentary concerning a former client of hers who might now benefit from how Massachusetts courts are responding to the Supreme Court's new Eighth Amendment jurisprudence.  The piece is headlined "Locking up kids for life?  A new court decision takes a step toward juvenile justice reform," and here are excerpts:

Three decades ago, Edward Palmariello, 17, and his 21-year-old friend Bruce Chambers were arrested in the murder of Edward’s mother, Marion.  Then a defense attorney, I represented Edward at trial. The jury found both men guilty and the sentence was mandatory  —  life in prison without any possibility of parole....

The Commonwealth’s story in court was simple: Edward and his mother fought all the time. He had said things to her like “Shut up or I’m going to cut you up and put you into the toilet bowl,” and he once waved an open switchblade at her....

There was another narrative about Edward and his mother, one the jury never heard. The mother had abused Edward’s sisters and brother.  The abuses were reflected in Department of Social Services records. In fact, each one had moved out  —  “escaped,” as one sister put it — as soon as he or she could.  Edward, the youngest, had no place to go. His mother abused him physically, but when he grew stronger than she was, her abuse became psychological.  Still, as a defense lawyer, I was reluctant to offer the complete DSS records (even if they were admissible).  While they explained the family’s dysfunction, there was a risk that a prosecutor, bent on conviction, would spin them as a motive for murder.

With the first-degree murder conviction, there would be no opportunity for testimony from the social workers who knew the family or even the family members themselves who had “escaped.”  Only one sentence was possible: life without parole. On appeal, the Supreme Judicial Court affirmed Edward’s conviction (one judge dissented).  All other appeals failed.

In most countries, Edward’s sentence would have been impossible.  Juvenile life without parole is prohibited by the UN Convention on the Rights of the Child, a measure that has been ratified by every UN nation except the United States and Somalia (Somalia announced in November that it will ratify).  Edward has spent the past 32 years in jail.  He had no hope, no future.  Perhaps, until now.

In 2012, in Miller v. Alabama, the US Supreme Court held that a mandatory sentence of life in prison without parole on any offender under 18 is contrary to the constitutional prohibition on “cruel and unusual punishments.”  While the decision’s implications were momentous, it focused only on the mandatory nature of the punishment.

But on December 24, 2013, the Supreme Judicial Court of Massachusetts went further.  In Diatchenko v. District Attorney for the Suffolk District, the court held that the state constitution barred the imposition of life without parole altogether for defendants under age 18 at the time they committed murder....

In language that resonates for Edward, the US Supreme Court criticized sentencing that “prevents taking into account the family and the home environment that surrounds [the offender] — from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.” It “disregards the possibility of rehabilitation even when the circumstances most suggest it.”

Edwards’s case, along with some 60 others, will now go before the Massachusetts Parole Board. Will this be a real review or just a Kabuki ritual? Governor Deval Patrick dismissed five of the seven board members after a parolee killed a Woburn police officer in 2010. Parole rates have dropped dramatically. Perhaps that was why three SJC justices wrote a special commentary urging a “real meaningful opportunity to obtain release” for the juveniles affected by the decision. Parole Board, take heed.

At the very least, for Edward Palmariello, the board will finally hear the whole story.

Meanwhile, as this new front-page New York Times article highlights, the stories of hope for juve LWOPers in Massachusetts may be more of an exception than the rule in the wake of Miller.  That article, which is headlined "Juveniles Facing Lifelong Terms Despite Rulings" spotlights that "most states have taken half measures, at best, to carry out the rulings [in Graham and Miller], which could affect more than 2,000 current inmates and countless more in years to come, according to many youth advocates and legal experts."