Two full years have passed since the US Supreme Court issued an opinion in Miller v. Alabama, striking down all state statutes that impose mandatory life-without-parole sentences for minors.
And still, 48 Colorado inmates convicted of first-degree felonies as minors in the adult court system are caught in a legal purgatory, bookended by the years 1991 and 2006 and spanning the existence of a law that gave judges no discretion in their sentences.
On October 6, the High Court refused to hear an appeal to a February Nebraska Supreme Court ruling that made Miller retroactive, and ordered new sentences for three men with life sentences for crimes committed when they were younger than 18. Nebraska is one of eight states, joined by Wyoming this month, that have done the same.
In stark contrast, four other state supreme courts have left past life-without-parole sentences intact.
Oral arguments commenced on June 3 in front of the Colorado Supreme Court in three Miller challenges involving defendants Tenarro Banks, Erik Jensen and Michael Quinn Tate.
And while Miller’s Gordian Knot grows more tangled, Colorado’s 48 are staring at two morbid possibilities: a guaranteed death behind bars or a bundle of legal questions that, at the moment, have no answer at all.
And justice for some?
Since 2005, the Supreme Court has issued forceful words for the rights of children in the adult court system; and yet, it has not clarified the rights as absolute.
The Miller ruling, issued on June 25, 2012, invalidated such sentences as a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment. In the 5-4 majority opinion, Justice Elena Kagan wrote that “a state’s most severe penalties on juvenile offenders cannot proceed as though they were not children.”
It extended the logic from previous opinions that placed emphasis on the nature of youth itself in criminal procedure. In 2005, Justice Anthony Kennedy wrote in Roper v. Simmons, which found imposing death penalties on minors to be a constitutional violation:
“When a juvenile offender commits a heinous crime, the state can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”
In 2010, the court ruled in Graham v. Florida that sentencing a minor to life without parole was unconstitutional in non-homicide offenses. But since Miller, despite what seemed to be a pendulum swing toward universal second chances, the Supreme Court has failed to bridge a growing judicial divide by clarifying the ruling as substantive or procedural, which is important in its retroactivity.
The Miller court called for individualized sentencing, and based its finding on the fact that “children are constitutionally different from adults for purposes of sentencing,” citing impulsivity and a decreased capacity for moral responsibility.
The court ruled that such a sentence “disregards the possibility of rehabilitation even when the circumstances most suggest it.”
While the court struck down state statutes prescribing those mandatory life sentences for juveniles convicted of felonies, the result is an inconsistent application of the ruling across state lines, different punishments for the same crimes based on geography.
Outside of the issue of retroactivity, Robin Walker Sterling, a juvenile justice expert and criminal law professor at DU’s Sturm College of Law said there is a question of what a “meaningful review” looks like for youthful offenders resentenced under Miller.
“I wouldn’t be surprised if this issue wound up before the Court sooner rather than later,” Sterling said.
Jody Kent Lavy, director of the national Campaign for the Fair Sentencing of Youth, also focused on what she said was the ability of juveniles to age out of criminal behavior, typically by their 20s.
“We don’t know what they’re going to be like decades later,” Lavy said. “Because of their unique capacity for change, a 40-year sentence in Colorado is the equivalent of a life sentence. It doesn’t allow a young person to demonstrate their [sic] ability to grow.”…
When Miller first came out, there were about 50 juvenile life-without-parole cases in Colorado at various stages in the court system, and there are still 48 in the system, according to criminal defense lawyer Ashley Ratliff, who runs her own firm and volunteers with the Colorado Juvenile Defender Coalition.
“Many haven’t filed anything,” Ratliff said. “They’re still all over the place. A third are in the trial courts in some fashion, based on different issues. Each case is just so unique.”
The fate of 48?
The geographic proximity of Nebraska and Wyoming may be encouraging, in some ways, but Ratliff and others don’t know what Colorado’s Supreme Court will eventually rule as they await opinions after the June 3 oral arguments. The U.S. Department of Justice has also taken the view that Miller is substantive and federal prisoners convicted before the age of 18 are getting second looks at life sentences.
Lisa Polansky, a criminal defense attorney who founded Boulder’s Center for Juvenile Justice and now practices in California, did not seem optimistic about the possible outcomes for the state.
When asked what the Colorado Supreme Court may say once a ruling is issued, Polansky said although she believes Miller very specifically calls for emphasis on the individual, she was not hopeful the justices would come to the same conclusion.
“I think that what they’re going to do is either say that, one, Miller doesn’t apply retroactively and leave it at that; or, two, they’re going to say it does apply retroactively and they can have a resentencing, but the choice is 40 to life,” Polansky said, referring to state statute.
Forty years comes close to an effective life sentence for many inmates, which begs the question of how the court can differentiate between a juvenile offender who will definitely die in prison and one who most likely will, according to Polansky.
She pointed to the Graham court, which ruled that juveniles sentenced to life must be provided “a meaningful opportunity for release.”
“They still die in prison, it’s just a matter of how,” Polansky said.
Hannah Garcia, a reporter for Law Week Colorado, is a 2014-2015 John Jay/Tow Juvenile Justice Reporting Fellow. This is an abridged version of the first in a series of articles where Garcia will explore the cases of 48 juveniles whose life-in-prison sentences violate a US Supreme Court opinion.
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