Monday, November 23, 2009

America must join the civilized world on teen life sentences

Earl Ofari Hutchinson | Posted November 20, 2009 2:20 AM

In 2005 the U.S. Supreme Court took a huge step toward joining nearly all nations on the globe when it banned teen executions. But it was only a step. The U.S. still locks up more juveniles for life without the possibility of parole than all nations combined. The High Court will rule on two Florida cases where juvenile offenders got no-parole life sentences. In those cases as well as tens of others, the juvenile offenders received life without parole sentences for crimes that did not involve murder. The offenders ranged in age from 13 to 16 years old. There are about 100 juvenile offenders incarcerated for life in eight states with no chance for parole. Nineteen states in all still have no-parole sentences for juveniles on their books.

The 100 offenders who are serving the draconian no-parole sentences though are only the tip of a more terrifying iceberg. A year ago Human Rights Watch found that more than 2,000 juvenile offenders are serving life without possibility of parole sentences. A significant number of the juveniles sentenced to no-parole sentences did not actually commit murder but were participants in a robbery or were at the scene of the crime when the death occurred. The majority of the teens slapped with the sentence had no prior convictions, and a substantial number were age 15 or under.

The stock argument against a blanket ban on no-parole sentences is that violence is violence no matter the age of the perpetrator, and that punishment must be severe to deter crime. Prosecutors and courts in the states that convict and impose no-parole life sentences on juvenile offenders have vigorously rejected challenges that teen no-parole sentences are a violation of the constitutional prohibition against cruel and unusual punishment.

Hollywood movie sensationalism and media-driven myths about rampaging youth not to mention the very real horror stories of gang violence and young persons who do commit horrendous crimes also reinforce the popular notion that juveniles are violent predators. This has done much to damp down public sentiment that juvenile offenders can be helped with treatment and rehabilitation and deserve a second chance rather than a prison cell for life.

This is not to minimize the pain, suffering and trauma, juvenile offenders cause to their victims and their loved ones with their crimes. However, a society that slaps the irrevocable punishment of life without parole on juvenile offenders sends the terrible message that it has thrown in the towel on turning the lives of young offenders around. Supreme Court Justice Arthur Kennedy hinted at just that in his majority opinion that scrapped teen executions. Kennedy noted that, "the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person."

Kennedy acknowledged, as have legions of child violence experts, that juveniles don't have the same maturity, judgment, or emotional development as adults. Child experts agree that children are not natural-born predators and that if given proper treatment, counseling, skills training and education, most juvenile offenders can be turned into productive adults.

In a report on juveniles and the death penalty, Amnesty International found that a number of child offenders sentenced to death suffered severe physical or sexual abuse. Many others were alcohol or drug impaired, or suffered from acute mental illness or brain damage. Nearly all were below average intelligence. Some of the juvenile offenders were goaded, intimidated, or threatened with violence by adults who committed their violent crimes and forced them to be their accomplices.

Then there's the issue of race. The no-parole sentences are hardly race neutral. Black teens are 10 times more likely to receive a no-parole life sentence than white youths. They are even more likely to get those sentences when their victims are white. This was the case in the two Florida cases the Supreme Court will look at. They are often tried by all-white or mostly-white juries. Those same juries seldom consider their age as a mitigating factor. The racial gap between black and white juvenile offenders is vast and troubling. The rush to toss the key on black juveniles has had terrible consequences in black communities. It has increased poverty, fractured families, and further criminalized a generation of young black men.

The Supreme Court in its decision to ban juvenile executions recognized that a civilized nation can't call itself that if it executes its very young. The Supreme Court should recognize that a nation that locks up its very young and tosses the key away on them also can't be called a civilized nation. It should scrap the no-parole life sentences for juveniles.

Earl Ofari Hutchinson is an author and political analyst whose radio show, "The Hutchinson Report," can be heard weekly KTYM Radio and

Wednesday, November 11, 2009

Do young criminals deserve a second chance?

Not everyone can be saved. I believe that there are kids who, as a result of abuse and neglect, are so devoid of conscience and empathy that they will likely never become productive members of society. I say this with deep regret and anguish.

But how do we know who will mature, grow, learn and develop a conscience and who will stay stuck in their antisocial, violent and destructive ways? How can we make sure that we're not keeping the next Charles S. Dutton unnecessarily behind bars when he is ready and able to walk back into the world and give back something good, if not extraordinary?

When you push away all the legal mumbo jumbo, this was the question at the heart of yesterday's Supreme Court hearing over juveniles in the criminal justice system. Technically, the justices were asked to decide whether it is unconstitutional to sentence kids who have committed non-homicide crimes to life behind bars without the possibility of parole. In reality, the justices were weighing salvation. Is it okay to sentence a 13-year-old to a mandatory life term for raping a 72-year-old woman? How about throwing away the key for a 17-year-old involved in a series of burglaries? If it would be constitutional to hit an 18-year-old with a guaranteed life behind bars, why should someone just a month short of this landmark birthday be spared the same fate?
Some on the bench, including Justice Ruth Bader Ginsburg, seemed to be pushing for a bright line, an age below which no defendant could be sentenced to life without parole. Others, primarily Chief Justice John G. Roberts Jr., seemed intent on avoiding an artificial cutoff in favor of an approach that would call on judges to take into account the offender's age in determining whether the punishment was appropriate. Both approaches have merit.

Unless you draw a bright line, there will be kids who, depending on the state or county they're prosecuted in, will be thrown into prison for the rest of their lives with no opportunity to prove they deserve a second chance. In Florida, for example, kids as young as 10 or even 5 or 6 can in theory be sentenced to life without parole. It's never happened -- and such a sentence would be outrageous -- but it could. Statistics provided by lawyers for the two juveniles whose cases were argued yesterday point to the fact that 84 percent of kids sentenced to life without parole for non-homicides are African American. The numbers, in and of themselves, don't prove that black kids are unjustly targeted for such harsh sentences, but it certainly raises concerns about the possibility that they are.

The cleanest way to prevent an absurd result would be to declare that it is unconstitutional for anyone under the age of 18 to be hit with the mandatory life sentence. After all, 18 is used in a variety of circumstances to determine eligibility for privileges and responsibilities -- from voting to owning a gun to entering into a legally-binding contract. The age of 18 is -- importantly -- also the age the justices settled on in a 2005 case from Missouri to conclude that the death penalty was unconstitutional when applied to juveniles. And therein lies the problem -- and paves the way for the chief justice's approach.

The "kid" in the Missouri case, Christopher Simmons, was about nine months shy of his 18th birthday when he decided he wanted to murder someone. He recruited two other teens and planned to break into a home, tie up the victims with duct tape and throw them off a bridge. According to the court's decision, Simmons reassured his friends that "they'd get away with it" because they were minors. Simmons stuck to his plan: He broke into the home of Shirley Crook, whose husband was away on business, bound her hands, legs and face with duct tape, and threw her -- alive -- off a bridge; her body was discovered the next day by local fishermen. Simmons was convicted and sentenced to be executed, but because he was not 18 years old when he committed the crime a majority of the justices determined he could not be put to death. Because of the court’s 2005 decision no offender who murders as a teen -- even as a 17-year-, 364-day-old teen -- can be subject to capital punishment. I understand the misgivings of those who can't uncategorically embrace this decision.

But what about kids who don't kill but commit other crimes, including rape or violent assault? To deny a 13-year-old a second chance after serving a lengthy prison sentence seems grotesque to me. He will not be the same person at 23 that he was at 13; he is likely to be more different still when he is 33 or 43. Those who commit violent acts must face serious punishment, but all juvenile offenders locked up for non-homicide crimes should eventually be given a second chance to prove that they are worthy of being trusted to rejoin society. My hope is that most of these offenders will be mature and rehabilitated enough to earn release. My gut tells me some of them will never be.

By Eva Rodriguez | November 10, 2009; 1:08 PM ET

Saturday, October 10, 2009

Wednesday, October 7, 2009

Supreme Court Starts Term with First Amendment Cases

Wednesday, September 30, 2009 :: Staff infoZine

By Laura Misjak - The Supreme Court is back in session Monday with a docket of cases involving the First Amendment, criminal cases and business litigation.

Washington, D.C. - infoZine - Scripps Howard Foundation Wire - New Justice Sonia Sotomayor's actions will be examined to analyze her thought process in deciding cases. Most Supreme Court analysts said they can't predict her decisions but assume she will be a more active questioner than her predecessor, Justice David Souter.

The court has already heard one case, on Sept. 9, a re-argument of Citizens United v. FEC. The case examines whether corporate financing of a film attacking Hillary Clinton during election season violated federal campaign finance laws.

The court usually hears about 80 cases each year. So far, it has selected 50. The court most likely won't begin issuing decisions until early next year. Here is a preview of some of this session's most-watched cases:

First Amendment

United States v. Stevens. Argument: Oct. 6.

This case challenges whether a federal law that prohibits the sale or ownership of animal cruelty materials violates the First Amendment's free speech clause.

Robert Stevens, 68, appealed his 2005 conviction for selling videos depicting animal cruelty. A federal appeals court sided with him.

Stevens argues that his films have societal merit - they teach the history and nature of pit bulls. But one video has a 3-minute clip of dogs fighting, which Stevens says shows the "difference between dog fighting and catching stock," wild boars in this instance.

"This case is really going to be a question of low value versus high value," said David Cole, a professor at Georgetown University Law Center.

The National Rifle Association and the Professional Outdoor Media Association, among others, have filed briefs in favor of Stevens, fearing that hunting materials could be outlawed. Five animal-rights groups filed briefs opposing Stevens' argument.

Buono v. Salazar, Secretary of the Interior. Argument: Oct. 7.

The "Cross in the Desert" case originated in the Mojave National Preserve, where a cross was erected in 1934 to honor World War I veterans.

Frank Buono, a National Park Service employee and a Roman Catholic, brought the case after park officials refused to allow a Buddhist statue on federal land.

He argued that allowing one religious symbol over another on federally owned land violates the First Amendment's establishment clause.

The district and appellate courts found in Buono's favor, and the government appealed.

During this process, Congress gave the cross national memorial status and traded an acre of land beneath the cross to a VFW chapter for some private land.

Paul M. Smith, a partner at Jenner & Block, said the court will look at two issues - whether Buono has standing to challenge the government because he is Catholic, and whether the land transfer has merit.


Sullivan v. Florida and Graham v. Florida. Argument: Nov. 9.

Terrance Graham and Joe Sullivan were both sentenced to life in prison with no possibility of parole for separate offences they committed as minors.

Graham pleaded guilty at age 16 to armed burglary and attempted armed robbery of a restaurant. Due to a probation violation, he was sentenced to the maximum penalty.

Sullivan was convicted in 1989 at age 13 of sexual battery involving a 72-year-old woman.

These cases come after the 2005 Ropert v. Florida ruling in which the court ruled 5-4 that sentencing minors to the death penalty violates Eighth Amendment protections against cruel and unusual punishment.

Graham and Sullivan argue that sentencing juveniles to life without parole also violates the Eighth Amendment because it eradicates hope.

Fourteen friend-of-the-court briefs side with Graham and Sullivan; six support the state.

Pottawattamie County, Iowa v. McGhee. Argument: Nov. 4.

Retired police officer John Schweer was shot and killed July 21, 1977, in Council Bluffs, Iowa. Two Pottawattamie County prosecutors were found to have planted evidence and withheld exculpatory evidence during the criminal trial. Suspects Terry Harrington and Curtis McGhee were convicted in 1978 and released 20 years later, after that discovery. The are seeking civil damages from the county and the prosecutors, who argue they are immune to a civil suit because they were acting on behalf of the government.

"In this case, the prosecutors were acting very, very, very badly," said Lisa Kung, of the Southern Center for Human Rights. "The question is how much immunity do we give a prosecutor?"

The ruling could give blanket immunity to anything a prosecutor does if the court sides with the prosecutors.


American Needle v. National Football League. Argument: Not yet scheduled

Illinois-based business American Needle sued the NFL and Reebok International Ltd., claiming their partnership violated the Sherman Antitrust Act.

All 32 NFL teams agreed in the 2000-01 season to market their logos solely through Reebok. American Needle, another sportswear business, argues that each NFL team is a separate business and, according to the Sherman Act, they cannot enter into "contract, combination ... or conspiracy" with each other.

"The reasoning of any opinion could apply to any joint venture," said Deanne Maynard, a partner at Morrison & Foerster. "This could have implications to many business cases."

Northwestern Law Launches Center on Wrongful Convictions of Youth

Northwestern University School of Law has launched a new joint project between the Center for Wrongful Convictions and the Children and Family Justice Center. The Center for Wrongful Conviction of Youth (CWCY) will address the specific concern of exonerating and advocating for children and adolescents who are wrongfully convicted. Children and adolescents are particularly susceptible to police coercion and false confession. A Miranda warning is often not enough for a child or adolescent to adequately understand the ramifications of their words and actions while in police custody.


Wednesday, September 30, 2009

Teen gets life in prison

By Kristin Chambers
Published: Wednesday, September 30, 2009 1:28 AM EDT

Emotions stirred as 16-year-old Morgan Amanda Leppert stood Tuesday before a brimming courtroom, awaiting her final sentence for the 2008 slaying of a handicapped Melrose man.

After hearing testimony from the family of 66-year-old James Stewart, who was murdered by Leppert and her boyfriend Toby Lowry in April 2008, Judge Edward Hedstrom sentenced Leppert to a life in prison without parole - the highest punishment her age allowed.

She additionally received two counts of life in prison concurrent with the murder charge for burglary with assault or battery and robbery with a deadly weapon.

Defense attorney Christopher Smith argued that life without parole was cruel and unusual punishment, and should not be an option for a child under 16.

"She was not the perpetrator of the homicide, she was a 15-year-old girl acting under the influence of a 22-year-old man," Smith said. "She basically is a protected person under the statutes of Florida as a child, and to place her in prison for life without any opportunities redeem herself, receive treatment, proof - that concerns me."

After a week-long trial in August, a six-member jury convicted Leppert of first-degree murder for the slaying of Stewart, who was found stabbed, beaten and suffocated in his home.

Lowry, who faces life in prison for the slaying, was 22 when the crime was committed and was Leppert's boyfriend, reportedly against her parents' will.

The two were living in the woods behind Stewart's home after Leppert, who was 15, ran away to be with Lowry.

According to police reports, she obtained entrance to Stewart's home after asking the man to use his phone to call her mother. After casing the area, the couple returned later that night to steal Stewart's truck.

Stewart, who had been born with no hands and was hearing impaired, was found more than a week later by sheriff's deputies after family members had reported they had not heard from him.

Just days after the slaying occurred, Leppert and Lowry were found panhandling on the side of an interstate highway in Texas while on their way to California.

Lowry pleaded guilty in January to escape the death penalty.

Emotional testimony was heard Tuesday from the victim's family, who spoke of the Stewart's determination to overcome his disability.

"Every night when I go to sleep I pray that when I wake up this will all be a bizarre nightmare," Mike Stewart, the victim's brother, said with tears in his eyes.

He affectionately picked up a tennis racquet that had been modified for his brother, complete with a wrist strap, which served to substitute for his hand.

"The most important things I learned from my brother were determination, patience and never to accept the words no and can't."

David Stewart, the victim's nephew, stood before the court to express his pain.

"He was an inspiration to me and everyone that met him, except for the people that murdered him," Stewart said. "He was stolen away from us by two animals with no regard for human life."

Sheriff Jeff Hardy and State Attorney R.J. Larizza were present during the sentencing.

"I've been following this case for months, and I wanted to see closure for the family, and they got it today," Hardy said. "I know this will never completely go away for them, but I just thought it was important to be here for the family. It's nice to see justice served."

Leppert was offered a chance to speak before the judge, but declined at the advice of her attorney.

Smith said he has filed an appeal in hope that she will receive a new trial or possible reversal of conviction.

"The main grounds have to do with her pretrial statements and the fact that he only allowed her to have six jurors for a capital case," Smith said. "There's some conflict in the case law on that, the Florida Supreme Court has not ruled on it yet."

Smith also is challenging the admission of Leppert's interview with detectives during the trial, which audibly portrayed her role in the murder.

Leppert is now the youngest female in the Florida Department of Corrections.

As a minor, she cannot receive the death penalty.

Wednesday, August 19, 2009

Supreme Court Considers Constitutionality of Juvenile Life Without Parole

This coming term, the Supreme Court will consider the important companion cases of Sullivan v. Florida and Graham v. Florida. Together, they raise the question whether a sentence of life imprisonment without parole for a non-homicide offense committed by a juvenile offender violates the Eighth Amendment prohibition against cruel and unusual punishments.

As a policy matter, I am sympathetic with the ultimate objective of reducing the severity of punishments in the U.S. However, as a legal matter, I will argue in this column that the Eighth Amendment case against juvenile life without parole is quite weak – given the Court's precedents as well as the nature of the flaws inherent in harsh sentencing more generally.

The Policy Case Against Long Prison Sentences

To avoid my being misunderstood as a proponent of long sentences, let me emphasize here that I am not. In 1998, I interviewed recidivist child-molester Leroy Hendricks at his civil confinement program for sexually violent predators. One of the things he said that struck me as very insightful was that once a person has spent ten years inside a prison, he is extremely unlikely to be able, successfully, to re-integrate himself into free society. Life, as he put it, will have already passed that person by, the world having changed too much for him to catch up. This statement, if true, provides a pragmatic argument against long sentences for people who will someday have to rejoin the outside world. And what about sentences of life-imprisonment?

If someone will spend the rest of his life behind bars, we do not need to worry about re-entry difficulties. But we do, then, need to ask ourselves what the purpose of that confinement is. It is plainly retributive – a person who has committed a serious offense will, by design, suffer greatly by being deprived of both freedom and most contact with the outside world for the rest of his life. But is the desire to make the person suffer for his actions a sufficient basis for removing him from society for his entire life?

The answer would depend, it seems, on whether we believe that people change over time. If we think that a person who commits a murder at Time 1 remains precisely the same murderer-deserving-of-serious-punishment ten, twenty, and thirty years later, then it is sensible to have his punishment last for the entirety of his life. But if, on the other hand, we believe that people change over time – into different, perhaps more passive, reflective, or gentle people – then ruling out re-entry into society for them could be a mistake. It could prevent them from doing what it takes to redeem themselves after the injuries they previously inflicted and from growing into different sorts of people. It rules out the possibility of rehabilitation.

In addition to rejecting the rehabilitative role of punishment, a sentence of life imprisonment also imposes great costs on society generally, and on specific communities and families in particular. I still recall from when I lived in Manhattan that once a week, a few blocks from my apartment building, women and children – mostly members of minority groups – would line up for a long bus ride that had as its destination the penitentiary. These faithful family members of prisoners never gave up on their loved ones and though they themselves were innocent, they too suffered along with the people sentenced to serve time. An individual is not an island, and it is rarely possible to take one person out of commission without generating spillover effects on innocent others.

One answer to these concerns is to note that violent criminals may require incapacitation. That is, prison serves not only to punish and (in theory) to rehabilitate offenders, but also to prevent them from harming others. This objective of imprisonment is an important one. To the extent that we can predict future antisocial conduct, one important indicator is past behavior. A person who commits a violent crime has thus evidenced that he cannot be trusted with freedom.

This answer, however, ignores the fact that people do change over time. A man who is violent at the age of 25 is likely to slow down by the time he reaches 40. And it is difficult to imagine that, unless he belongs to the world of organized crime, he will continue to pose a threat to those around him when he reaches 60 or 65. One might even note that with the decline in testosterone over the male lifespan, the odds that such a man will behave violently diminish substantially, even when he begins in a very bad place. To rest sentences of life imprisonment on an incapacitation theory is therefore, in most cases, to ignore the realities of the human life cycle.

Life Imprisonment for Youthful Offenders

Though I have made clear above that I oppose long sentences in general and life imprisonment in particular, as a policy matter, I am nevertheless left strangely unconvinced by the arguments that have been marshaled to support the claim that juvenile life imprisonment violates the Eighth Amendment.

A principal argument, and perhaps the most powerful, made in fascinating detail in an amicus brief filed in the Sullivan and Graham cases by the AMA (American Medical Association) and the American Academy of Child and Adolescent Psychiatry, has to do with brain development. As most of us probably suspected all along, adolescent brains are different from adult brains, and the result is that adolescents have a more difficult time controlling their impulses and regulating their own emotional states. They are also more vulnerable to the temptations of risk-taking behavior, the rewards of peer approval, and other potential triggers of anti-social conduct. As a result, the argument goes, adolescents who commit violent crimes are generally not as culpable (because they are not as capable of restraining themselves under a given set of circumstances) as adults who commit serious crimes. They are, moreover, more likely to evolve into better people later and therefore need not be incapacitated indefinitely.

One problem with this argument is that it proves too much. If the adolescent brain is functionally "impaired," in an important sense, compared with the adult brain, then the Eighth Amendment should ban far more than life imprisonment for non-homicide offenses for juveniles: It should ban that punishment for all offenses committed by juveniles.

The distinction between homicide and non-homicide offenses becomes immaterial if the problem with sentencing juveniles to life imprisonment is their diminished capacity. A homicidal adolescent is no more able to control his impulses than a raping adolescent is to control his; the distinction between one crime and the other will likely have more to do with opportunity and surrounding circumstance than with capacity and thus culpability.

Thus, an argument against life imprisonment for juvenile non-homicide offenders is no less convincing as an argument against life imprisonment for juvenile murderers. Accordingly, it is unsurprising that the movement against life imprisonment of juveniles generally opposes both.

The specific selection of non-homicide offenses to limit the argument thus seems more of a marketing tool than a principled decision – and if the Eighth Amendment argument prevails in these cases, the next step would seem almost inevitable: advocates will claim that the Eighth Amendment necessarily bars life without parole for all juvenile offenders.

In addition, if juvenile offenders suffer from a diminished capacity to control their behavior, then sentences that fall far short of life imprisonment, too, could qualify as unduly harsh and unconstitutionally disproportionate under the Eighth Amendment. For example, any prison sentence for any offense by an adolescent that approaches the sentence for a parallel adult offender might appear to be disproportionate, given the likely disparity in relative capacity. Once again, the argument about juvenile capacity has no obvious stopping point at either non-homicide offenses or at life imprisonment itself.

A second problem with the argument about juvenile capacity is that it fails to capture what we know about adult offenders: Though youth is a corollary of crime, the adults who do commit anti-social acts appear to have much in common with adolescents. To put the point differently, though adults in general are different from adolescents, the adults who commit violent crimes may share far more with violent adolescents than they do with mature, well-adjusted adults. Violent crime frequently reflects a failure of impulse control, combined with an overly optimistic assessment of the likelihood of escaping ill consequences – traits that define adolescence. The sort of incapacity that plagues many youthful offenders is, for that reason, not likely to be unique to such offenders in the prison population.

To underline this second problem, we learn from a study published this year in the American Journal of Public Health that a quarter of prison inmates have a history of chronic mental illness that preceded their arrest. Adults who suffer from chronic mental illness presumably lack the capacity to exercise the self-control of a healthy and normal adult. The same may be true for the mentally retarded, though their prevalence in the prison population is lower. It is accordingly misleading to suggest that actual, incarcerated adult offenders could have readily exercised self-control in a manner unavailable to youthful offenders. Many people convicted of serious crimes could make a persuasive argument that their capacity to regulate their own behavior and to assess costs and benefits accurately is impaired. Yet such people routinely receive long and unforgiving prison sentences.

A third problem for the argument about minors' diminished capacity is evident in noting the nature of the incapacity: According to the amicus brief referenced above (filed by the AMA and the American Academy of Child and Adolescent Psychiatry), "[t]he difference between adolescent and adult behavior … is not a function of adolescents' inability to distinguish right from wrong … but rather from psychosocial limitations in their ability to consistently and reliably control their behavior." (emphasis added).

Since Congress passed the Insanity Defense Reform Act of 1984, however, the prevailing approach to incapacity has centered on cognition – the ability to distinguish between right and wrong – and not on control. This is in part because it is difficult to distinguish in a reliable way between a person who could not control herself and a person who simply did not control herself. The diminished capacity of juveniles, then, is of the sort that has fallen out of favor as a basis for mitigating and excusing anti-social conduct (at least outside the death penalty context).

A fourth problem with the argument might seem, at first glance, to recommend it. By contrast to other sorts of offenders, minors who commit crimes may not, since Roper v. Simmons, be sentenced to death. This categorical exclusion of minors, like the categorical exclusion of the mentally retarded in Atkins v. Virginia, represents an acceptance of the idea that there are categories of people who simply cannot be sufficiently culpable to deserve the ultimate penalty of death. The Court's embrace of this idea might appear to open the way for similar arguments about life imprisonment.

What makes this appearance deceptive, however, is that the Court's ruling in Atkins rests firmly on the "death is different" idea, which treats life imprisonment as not simply distinct in degree from execution, but different in kind. Therefore, if youths and mentally retarded people fall short – even to a minor degree – of the capacities that adults of normal intelligence have, this is reason enough to rule out execution, in particular, for them. But one of the things that has allowed the Court to rule out execution for such people is the very availability of life imprisonment without the possibility of parole.

That is, to the extent that execution is meant to serve the function of incapacitating irredeemably violent people forever, the availability of life imprisonment without the possibility of parole provides a roughly equivalent substitute for that. Without this substitute, the inability to execute youthful offenders – in at least some cases – might appear far more threatening.

Death is Different

One possible response to the last point is that execution has long been unavailable for non-homicide crimes (with the possible exception of treason), and this helps account for why this case focuses on life for non-homicides (where one cannot claim the need for a functional substitute for execution).

Or, to make this argument more affirmatively, one could argue that because the most severe penalty available for offenses committed by a juvenile is life imprisonment without the possibility of parole, this penalty should be reserved for homicide, just as – in the case of adults – the death penalty is reserved for homicide.

The main problem with this argument has less to do with logic than with Court precedent. In carving out special rules for the death penalty, including the rule establishing its unconstitutionality with respect to crimes less serious than murder, the Court has consistently relied on the idea that death is qualitatively different from any term of imprisonment. When litigants have attempted to move the Eighth Amendment proportionality principle from the death penalty context to that of incarceration, the Court has generally rejected the move in application.

In Rummel v. Estelle, for example, the Court in 1980 upheld a life sentence in a recidivist statute for a defendant convicted of three nonviolent property crimes (netting less than $300 total). The Court did strike down a life-without-parole sentence (for a recidivist offender convicted of writing a bad check) in Solem v. Helm a few years later, giving some hope that the Eighth Amendment could become a vehicle for invalidating long sentences. However, in 1991, in Harmelin v. Michigan, the Court upheld a mandatory sentence of life without parole for the possession of over 650 grams of cocaine, even as three Justices in the majority agreed with the dissent that some sentences might be so long relative to the seriousness of a crime that they would violate the Eighth Amendment. Finally, in Ewing v. California., the Court upheld the California "three strikes" law under which the petitioner was sentenced to 25-years-to-life for stealing three golf clubs worth $399 each.

None of these cases rules out the possibility that life imprisonment for a juvenile offender's non-homicide crime violates the Eighth Amendment. Nonetheless, it seems counterintuitive for the Court to maintain that life imprisonment is constitutionally excessive punishment for a juvenile rapist, but constitutionally unobjectionable for an adult nonviolent property or drug possession offender. On the other hand, of course, the Supreme Court did grant certiorari in two cases of juvenile life-without-parole sentences in which the government won below, so it may – not for the first time – decide to take a counterintuitive approach in this instance.

My Hope

Despite what I have said here, I hope that the Supreme Court says that life imprisonment without the possibility of parole is unconstitutional for non-homicide offenses committed by juvenile offenders. The reason for my hope is several-fold. First, it is high time that the Court actively embraced the principle that a prison sentence can be disproportionately lengthy, whether the measure of disproportion is capacity or whether it is the seriousness of an offense.

Second, life imprisonment without the possibility for parole is almost always a mistake, given the fact that people – both children and adults – change over time; the impact of such sentences on society, communities, and families; and the possibility of redemption. If the Court does strike down the sentences of the two offenders who brought their appeals, moreover, I predict that the Court will soon be willing to reconsider harsh sentences across the board. This is precisely because the arguments for distinguishing juvenile non-homicides as a special case are, indeed, as unpersuasive as I have argued that they are in this column.


Friday, August 14, 2009

ABA amicus to USSC in Graham and Sullivan f.pdf

Source ( )

Amicus JLC to USSC in LWOP for juveniles

Source ( )

Life in prison for criminal teens? Supreme Court to decide.

Two Florida teens were given life sentences without parole for nonlethal crimes. The top court will consider if the punishments are constitutional.

The US Supreme Court announced Monday that it would take up two cases involving juvenile offenders in Florida who claim their life prison sentences for rape and robbery are cruel and unusual punishment.

One of the defendants was 13 at the time he allegedly raped a 72-year-old woman in Pensacola. The other was 17 when he was charged with participating in a series of robberies.

At issue in these cases is whether the fundamental principles supporting a 2005 Supreme Court decision that declared the death penalty unconstitutional for juveniles should also be applied to life imprisonment sentences meted out to juveniles convicted of nonlethal crimes.

The two cases, Joe Harris Sullivan v. Florida and Terrance Jamar Graham v. Florida, will be heard during the court's 2009-2010 term, which begins in October.

The cases are potential landmarks if the high court decides to use them to extend Eighth Amendment protections beyond the area of capital punishment to juvenile offenders who have been convicted and punished as adults.

"This court has recognized that the Eighth Amendment requires the states to treat juveniles differently than adults, at least in the context of the death penalty," Jacksonville lawyer John Mills said in his brief to the court in the Graham case. "This is so because, given the difference between juveniles and adults, juveniles have a greater claim to be forgiven for their criminal misbehavior."

Mr. Mills' client, Mr. Graham, was 17 when he allegedly violated his probation on an attempted armed robbery charge by taking part in a series of robberies, including an armed home invasion. The trial judge concluded that Graham had decided on a life of crime and sentenced him to life in prison.

In Mr. Sullivan's case he was 13 when he burglarized an elderly woman's home with two older teens. She wasn't home at the time. But someone returned to her house later that day and beat and raped her.

The two older teens admitted to the earlier burglary but said Sullivan committed the rape. He was convicted in a one-day trial in which the victim testified that she'd been blindfolded during the assault but that she could recognize her attacker's voice.

During questioning outside the presence of the jury, Sullivan was required to repeat certain words used by the attacker. The victim was then asked if she recognized Sullivan's voice.

Prosecutor: "You are saying the person who just spoke to you is the person who said that to you that day?"

Victim: "It sounds like the voice."

Prosecutor: "Alright."

Victim: "It's been six months. It's hard, but it does sound similar. But it's said in a different way. See, the tone – it was said to me very belligerent in a loud voice."

Police collected biological evidence at the crime scene but it was destroyed before it could be subjected to DNA testing, according to a brief filed by Sullivan's lawyer, Bryan Stevenson of the Equal Justice Initiative.

"Joe's claim is truly and extremely unusual, and becoming more so every year," Mr. Stevenson wrote in his brief. "Only two thirteen-year-olds currently are sentenced to die in prison for non-homicides in the United States, and Joe is one of only eight thirteen-year-olds sentenced to die in prison for any crime."

By "die in prison," the lawyer is not referring to an execution. Rather he means a sentence of life without parole will result in his client eventually dying in prison.

"Condemning a thirteen-year-old child to life imprisonment with no chance of parole for a non-homicide is precisely the kind of exceptionally rare and extreme sentence that requires review by this court to assess whether the Eighth Amendment's cruel-and-unusual prohibition applies," Stevenson wrote.

Edward Hill of the Florida Attorney General's Office urged the Supreme Court to reject Sullivan's appeal. He said there was no compelling reason for the Supreme Court to hear the case, and that the appeal should have been filed much earlier.

"Given the procedural posture of this case, [Sullivan's] request is extraordinary," Mr. Hill wrote. "What Sullivan is asking this court to do is to treat his petition as if this court was conducting a direct review of his conviction. However, this is not a direct review case."

Florida's brief says that one of the first police officers at the scene of the rape identified Sullivan as the person she saw running from the victim's house. Sullivan received the life sentence under state sentencing guidelines that took account of earlier crimes.

The state's brief says Sullivan's "score" under these guidelines was 846 points – far beyond the 583 points needed to impose a life sentence under Florida law.

The crime at issue was committed 20 years ago. Sullivan is now 33.

"Florida courts did not conduct an appropriate analysis of this Eighth Amendment claim, because the trial court incorrectly concluded that Joe Sullivan had not even stated a 'constitutional claim,' " Stevenson wrote.

In addition to Florida, five other states have prisoners sentenced to life without parole for crimes committed when they were 13, according to Stevenson's brief. All six cases involved homicides. The five states are Illinois, Nebraska, North Carolina, Pennsylvania, and Washington.


Putnam girl, 16, convicted of 1st-degree murder

Morgan Leppert will be sentenced to life in prison.

BUNNELL — As reality set in, Morgan Leppert’s sobs echoed through a Flagler County courtroom Thursday afternoon.

The Putnam County teenager will receive an automatic and mandatory life prison sentence after a jury’s first-degree murder verdict. The self-described “redneck cowgirl” will be the youngest girl in Florida’s prison system. She also was convicted of robbery and burglary.

The jury of five men and one woman apparently didn’t buy her childlike appearance and claims that her adult boyfriend, Toby Lowry, directed the robbery and murder of a disabled Melrose man last year. At the time, Leppert was 15 and a runaway from her San Mateo home; Lowry was 22.

“The level of violence that she and Toby Lowry reached, that trumped her age,” Assistant State Attorney Chris France said after the verdict, reached in about 90 minutes.

James Thomas Stewart, 66, was beaten, stabbed, stomped and suffocated in his home after Leppert and Lowry showed up to steal his pickup truck so they could leave Florida. They were caught about a week later in Texas after an alert motorist recognized Leppert from a nationwide Amber Alert.

Circuit Judge Ed Hedstrom scheduled sentencing Sept. 29 in Palatka. The trial was held in Bunnell because of publicity in Putnam County.

Lowry already is serving a life sentence after pleading guilty to first-degree murder. He agreed to testify against Leppert, but neither side called him during her four-day trial.

Leppert’s attorney, Christopher Smith, vowed to appeal on several grounds, including the admission of her taped statements to police and the jury having six instead of 12 members. He told Hedstrom he also plans to challenge whether a mandatory life sentence is constitutional for a juvenile, an effort to preserve that issue for appeal.

“I was hoping that they would look at her age and circumstances and realize that Mr. Lowry was totally in control of this situation,” Smith said afterward.

Smith called no witnesses but argued throughout the trial that Lowry ordered Leppert to case the house then return with him to rob Stewart and never let her out of his sight during their cross-country trip. He said Leppert’s immaturity and infatuation with Lowry left her vulnerable to the wiles of a man who already had spent time in prison for burglary.

Leppert’s the best example of why the law protects 15-year-old girls from adult men, Smith said.

“It is sad and tragic that Morgan hitched her star to him, and this was the man she thought she loved. But 15-year-old girls, I’m sorry to say, don’t really know what love is,” Smith told jurors.
“It’s not reasonable to expect a child of her age, her immaturity, her level of education ... to witness something like that and make the choice, 'I’m just going to walk away.’ ”

Jurors had the option to convict her of lesser homicides such as second- or third-degree murder or manslaughter. Smith said prosecutors proved third-degree murder, nothing more. He said Leppert had no intent to kill Stewart and inflicted no serious injuries when she hit him with an aluminum curtain rod.

But France told jurors even if that were true, she would still be guilty of felony first-degree murder because she was a principal participant in the burglary and robbery that led to Stewart’s murder. In fact, France contended, Leppert is guilty of premeditated murder because the plan revolved around her desire to run away and she did nothing to walk away or stop the attack.

“ 'I’d do anything to get out of Florida’ is what she said,” France argued, comparing the couple to Bonnie and Clyde. “Her desires, in her mind, have no consequence. ... She controlled everything.”

The prosecutor pointed out that Leppert convinced her mother to let Lowry move in and share her bed when she was 14. She dropped out of school after eighth grade. And when her mother found out Lowry’s age and record and threw him out, Leppert ran away with him.
“When did she ever do what she was told?” France wondered.

He said her waifish appearance and childlike behavior were an act she put on to get what she wanted.

Both Leppert’s family and Stewart’s family wept as the verdict was announced. Stewart’s relatives turned and thanked investigators. Both families declined interviews after court.

Florida Department of Corrections spokeswoman Gretl Plessinger said the state’s youngest female inmate was born in November 1992. Leppert was born two months later.

The department houses young females declared youthful offenders in a special dorm at Lowell Correctional Institution in Ocala, where they are segregated from the general population. Either the judge or the department can make the youthful offender determination, Plessinger said.

Wednesday, August 12, 2009

Youngest Dunbar Village rape defendant pleads guilty, will testify against others

The youngest of four men charged in the bone-chilling rape of a 35-year-old Dunbar Village woman and her 12-year-old son pleaded guilty this morning.

Avion Lawson, who was 14 when the woman and her son were gang raped in her West Palm Beach apartment in 2007, wants to accept responsibility for his actions, his attorney told Palm Beach Circuit Judge Krista Marx.

"He's very sorry for what he did," attorney Bert Winkler said.

Lawson's fingerprints were on a wall and his DNA was in a condom left at the woman's apartment.

The 16-year-old has agreed to testify against the three others charged in the rape - two of whom are to go to trial on Tuesday.

However, while his cooperation may win him some points with Marx, there are no guarantees, Winkler admitted.

Lawson, 16, faces a maximum 11 life sentences plus 50 years, according to sentencing guidelines. While Marx has broad discretion when she sentences him on Oct. 13, he faces a minimum of 49 years in prison.

Marx repeatedly warned Lawson that she could sentence him to life in prison.

"Yes, ma'am," Lawson answered softly each time Marx asked him whether he understood the consequences of pleading guilty to 14 charges in connection with the rape that shocked the community in both its brutality and the tender ages of those charged.

Lawson's mother, Kathy, stood by him as he admitted his guilt. While stoic in front of the judge, she collapsed in tears outside the courtroom after her son was led back to jail by sheriff's deputies.

According to police, as many as 10 young men entered the apartment of a woman identified in court papers only as M.D. and her son, identified as C.J. They raped her repeatedly, making her son watch, police said. They then forced the two to engage in sexual activity. Finally, they dumped chemicals on the two and fled, after stealing the woman's cell phone and car, and ripping their home phone out of the wall.

The two walked to Good Samaritan Medical Center in the middle of the night to seek treatment, prosecutors said.

Two others accused of the rape who are to be tried beginning Tuesday are: Tommy Poindexter, 20, and Nathan Walker, 18. While they will be tried together, they will have separate juries.

Jakaris Taylor, 17, who was to be tried with Lawson, is to face a jury in September.

Prosecutors acknowledged that all involved are not in custody.


Friday, August 7, 2009

National groups weigh in on Jacksonville case in U.S. Supreme Court

Joe Sullivan

An array of national and international organizations have lined up behind a Jacksonville inmate whose challenge to life prison sentences for juveniles will be heard by the U.S. Supreme Court this fall.

Groups ranging from the Amnesty International to Mothers Against Murderers have filed a dozen briefs with the court supporting an appeal by Terrance Jamar Graham, now 22 and serving life for an armed burglary committed when he was 16. His lawyers argue that life without parole for juveniles in non-homicides is an unconstitutional punishment.
Briefs agreeing with that position are signed by 46 medical, legal, social and faith organizations and individuals. Among them: the American Psychiatric Association, Prison Fellowship, Council of Juvenile Correctional Administrators, United Methodist Church and former U.S. Sen. Alan Simpson, R-Wyo.

Many of the same groups took a similar approach in 2005 when the Supreme Court struck down the death penalty for juveniles convicted as adults.

We were very happy to have such a diverse group of people and organizations,” said Bryan Gowdy, Graham’s attorney. “There are a number of people who recognize this is cruel and unusual.”

The Florida Attorney General’s Office, which will argue against Graham’s appeal, declined comment because the case is pending.

Graham was arrested for the armed burglary of a friend’s father’s restaurant in 2003, charged as an adult and sentenced to probation.

A year later, Jacksonville police arrested Graham in a home-invasion robbery in which prosecutors said he held the victim at gunpoint. Prosecutors said he also admitted to several other robberies. They asked Circuit Judge Lance Day to revoke his probation.

Day did and sentenced him to life, finding that he was a danger to the community, had squandered an opportunity to turn his life around and nothing could deter him from future crimes. Prosecutors dropped the home-invasion charge.

A Florida appellate court denied his appeal, but the Supreme Court in May agreed to hear the case to decide the life sentence issue in cases other than homicides. They also are hearing a companion appeal from inmate Joe Sullivan, convicted of raping an elderly woman in Pensacola 20 years ago when he was 13. The two cases will be argued the same day but decided separately.

The friend of court, or amicus briefs, argue that life sentences for juveniles are disproportionate, contradict international law and remove any possibility of rehabilitation. Several cite scientific evidence that adolescents are less able than adults to control impulses, appreciate long-term consequences or understand the ramifications of their actions.

The American Medical Association filed a brief it said was simply to inform justices of that research. The association said it takes no side on the legal issues.

Among the most compelling filings is one that includes Simpson, describing serious crimes he committed as a juvenile. They included arson, fatally shooting a cow during a vandalism spree and assaulting a police officer who tried to arrest him after a bar fight.

“I was a monster,” Simpson said.

He and six other former juvenile offenders cite the court’s 2005 decision, which acknowledged that teens are less susceptible to deterrence, less deserving of retribution and more capable of rehabilitation. For the same reasons, they argue life sentences for juveniles without any parole possibility are improper.

Gowdy said the inclusion of Simpson and victim and faith groups show the issue isn’t liberal or conservative. And he said there have been past cases where an amicus brief contained the thinking the justices adapted as the basis for an opinion.

“I think they’ll have a significant impact with the Supreme Court,” Gowdy said.

State Rep. Michael Weinstein, R-Jacksonville, said the issue is timely for the Supreme Court to consider. Weinstein, also a prosecutor, said some of the same organizations weighed in last session when he sponsored an unsuccessful bill that would have made some juveniles serving life sentences eligible for parole.

“The trend to prosecute juveniles as adults is growing across the country, and the actions that some juveniles are taking make it appropriate to consider lengthy sentences,” Weinstein said.

“Many of them are lost, but if we can’t save a percentage of them, we can’t save anybody.”

Weinstein predicted regardless of the outcome, the Supreme Court cases will increase debate about the issue.


Monday, August 3, 2009

South Broward congressional race gets another candidate

It's rare that a prize like a seat in Congress opens up with no incumbent running, and when it does, candidates turn out in droves.

Another candidate is announcing his intention to seek the seat being vacated by U.S. Rep. Kendrick Meek, D-Miami, who is running for the U.S. Senate.

The 17th Congressional District includes part of Southeastern Broward.

Here's the press release from the latest, Roderick D. Vereen:

Prominent attorney Roderick D. Vereen has announced his candidacy for the U.S. House of Representatives Florida District 17 seat that U.S. Rep. Kendrick Meek (D-17) is vacating to run for the U.S. Senate in 2010. District 17 includes numerous communities throughout Broward and Miami-Dade Counties: Pembroke Pines, Pembroke Park, Hollywood, Miramar, Hallandale, Miami Gardens, North Miami, North Miami Beach, Opa-Locka, Miami Shores, Biscayne Park, El Portal, and Downtown Miami.

“Although I am proud to say that I have lived in District 17 most of my life, I am exhausted with watching the people in my community getting the ugly end of the stick,” said Vereen to the crowd of influential community leaders, long-time friends, and family members who gathered at the official campaign kickoff reception in Coconut Grove, Fla.

The Democrat said his platform will focus on using his legal experience to bring social change, fight political corruption, and creating government accountability. “My district is severely infected with crime, unemployment, poverty, as well as high property taxes.
It’s an atrocity. I foresee change in my form of new politics. The current economic climate has left the region depressed and residents are in dire need of support and hope. The people deserve better than business as usual,” said Vereen.

“What saddens me the most is millions of dollars from government programs dedicated to improve the impoverished areas across our great cities haven’t been used properly. The money has either disappeared or gone into the pockets of companies outside the empowerment zone. These corrupt practices have gone unchallenged for decades. My intent is to make a powerful impact within the political arena to influence change,” said Vereen.

Vereen first announced his intent to run during the Haitian Lawyers Association banquet in February. A skilled lawyer who handled numerous corruption cases, Vereen said his campaign will focus on following the money trail and making strives to ensure that those who need it will get it. “Most importantly, the people have a right to know what’s going on and how their money is being spent. I have never backed down from a fight and I will fight for District 17,” he said.

During his distinguished legal career, the Democratic party candidate focused on federal and state criminal law, Vereen has handled dozens of high-profile cases in the region including:

• State v. Alexander Bedford - A Miami juvenile charged with the
murder of his mother.

• State v. Lionel Tate – Juvenile charged with armed robbery and
the violation of probation in murder case.

• U.S. v. Stanley Phanor – The Liberty City Seven and Liberty
City Six, a federal terrorism case.

Vereen was an Assistant State Attorney for the Second Judicial Circuit and later became the first African-American Assistant Federal Public Defender for the Northern District of Florida, in Pensacola, Fla. He was also an adjunct professor at Florida State University’s School of Criminology and Florida A & M University’s School of Criminal Justice.
In 1989, he was voted “Professor of the Year” at Florida State University’s Panama City campus.

Vereen serves on the Federal Criminal Justice Act Committee and the Committee on Admissions, Grievances and Peer Review. He is a past president of the Wilkie D. Ferguson, Jr. Bar Association (formerly known as the Black Lawyers Association) and is a member of the Fellows of the American Bar Foundation; the Fellows of the Dade County Bar Association; the Federal Bar Association; the Dade County Bar Association; Phi Alpha Delta Law Fraternity, International; At-Large Member of the American Civil Liberties Union (ACLU); a Silver Life Member of the NAACP; a Life Member of Omega Psi Phi Fraternity, Incorporated; Alpha Phi Omega National Service Fraternity, Inc.; 100 Black Men of South Florida; Seminole Lodge # 291, Prince Hall Masons and Kazah Temple #149 (A.E.A.O.N.M.S) Prince Hall Shriners.

Vereen earned a law degree from The Southern University Law Center and received a bachelor of science degree in Criminology from Florida State University. He is a member of the Antioch Missionary Baptist Church in Carol City, Fla.


Sunday, August 2, 2009

Video of Josh Phillips in Times Union

Here is the url to the video of Josh Phillips` interview with Paul Pinkham of the Times Union:

Saturday, August 1, 2009

THE MADDIE CLIFTON SAGA: Her killer fights back tears when asked about Maddie and her family

Few homicides have dominated Northeast Florida's consciousness like the murder 10 years ago Monday of Maddie Clifton.

Just 8 years old, she disappeared on Election Day from her family's Lakewood home. For a week she was simply gone. Hundreds of people searched Dumpsters and woods around the secluded Southside neighborhood. Police sealed off the area and interviewed neighbors. Yellow ribbons sprung up everywhere as people hoped and prayed Maddie would be found.

A week later, Jacksonville Sheriff Nat Glover made a grim and emotional announcement. Maddie's body had been found, stuffed under the water bed of her 14-year-old neighbor and playmate, Josh Phillips. Josh's mother made the discovery and alerted police. Thousands lined San Jose Boulevard for Maddie's funeral procession.

Phillips was indicted as an adult and convicted of first-degree murder by a jury in Polk County, where his trial was moved because of publicity in Jacksonville. He was sentenced to a mandatory life term in prison, where he remains today.

Phillips' story:

BOWLING GREEN - Josh Phillips remembers the exact moment he wrapped his teenaged mind around his life prison sentence.

At 16, he'd already been locked up two years for murdering his 8-year-old Jacksonville neighbor, Maddie Clifton.

He left the prison chow hall to see a line of gray-haired inmates with walkers and canes. The pill line.

"I was like, 'Wow, that's going to be me,' and that's when it really hit me," Phillips told the Times-Union in an exclusive interview at Hardee Correctional Institution. "I got real depressed when that happened. Then I realized ... it's going to be 60 years before I look like them."

Monday marks 10 years since Maddie vanished from her Lakewood home.

Her disappearance gripped Jacksonville like no other. Hundreds of volunteers combed through her secluded Southside neighborhood. Maddie's Kool-Aid smile graced billboards and T-shirts throughout the city. Images of her agonized parents dominated the news.

A week later, her body was found across the street by Phillips' mother, entombed under her son's water bed. The 14-year-old with no history of violence told police he panicked after accidentally hitting Maddie with a ball while playing because he was afraid of his dad's reaction. He said he beat her with a bat and stabbed her to keep her from crying. Authorities believe he killed her in his bedroom.

He was charged as an adult, convicted of first-degree murder and sentenced to a mandatory life prison term, with no hope of parole. The judge called him "monstrous."

Now 24, the boy who killed Maddie has grown up in prison. Oddly, the experience doesn't seem to have hardened him. But it has changed him.

Gone is the gangly, expressionless teenager who looked on flatly as his fate was sealed. In its place is a seasoned lifer who speaks of empathy and morality and fights back tears when asked about Maddie and her family.

"I have this little apology litany that I go through to make certain that she knows that I'm sorry and also that I'm trying to make her life worth something. I'm trying because I'm still here," he said. "I want to be someone who can relieve suffering."

A week in denial

Phillips said he thinks about Maddie all the time. It usually happens when he starts feeling sorry for himself.

"I start thinking, 'Man, it really sucks I missed out on this and that.' And as soon as I get there, I think, 'What did she miss out on?' " he said.

Those thoughts are far deeper than what was in his mind the week Maddie was missing.

He wouldn't discuss the murder with the Times-Union but said that week, as cops and strangers swarmed his neighborhood, he was in denial. He had Maddie's missing-child flier on his night stand and even helped hand out fliers.

He said it never occurred to him to run.

"Through the entire time, I was putting myself in a fantasy world that nothing had happened. That was my defense mechanism for everything when I was a kid," he said. "I never made the decision ... to ignore it. I just did."

State Attorney Harry Shorstein used that against him at trial, arguing that Phillips' ability to carry on with his victim under his bed was a sign of coldness.

Once in jail, he wouldn't talk about the case, not even with his lawyer, Richard D. Nichols. And Nichols did little to coax him, Phillips said. Nichols has since died.

"He didn't even really try to find out what happened," Phillips said. "I didn't help him."

He said their infrequent jail visits consisted of chess matches on a homemade board Phillips fashioned in his cell. Neither he nor his parents knew anything about the law, so when Nichols decided at trial not to call witnesses, they assumed he knew what he was doing, Phillips said. He said his mother questioned the strategy, but his father, now deceased, told them to trust the lawyer.

Had Nichols mounted a defense, jurors could have convicted Phillips of a lesser charge like second-degree murder or manslaughter, which would have meant a shorter sentence, said Phillips' new attorney, Thomas Fallis. Nichols' defense strategy is the subject of an appeal Fallis is preparing.

As one of Florida's youngest inmates, Phillips was an anomaly to the prison system. When he looks back now, he realizes he was lucky.

Too naive to know who meant him harm, he said he was fortunate to fall in with a group of older inmates who taught him how to survive and stay out of trouble. And he said he realizes that prison officials were protecting him by limiting his time in the yard and housing him in open barracks instead of a cell.

A chance at redemption

Two of the Jacksonville officials most responsible for Phillips' sentence now have second thoughts.

"It was a draconian sentence," Shorstein said. "If there were a case for executive clemency or parole, I would support it. Not for it to be done today, but for reconsideration of the life sentence."

Shorstein said he has no qualms about charging Phillips as an adult or with first-degree murder, which carried a mandatory life sentence. Those were the right decisions at the time because the crime was so shocking, he said.

But Shorstein said he regrets not offering a second-degree murder plea, which would have given the judge discretion, particularly because Phillips appeared to be a shy, normal teen who liked computers.

He said the law needs to take into account psychiatric research since 1999 that shows teens Phillips' age are less culpable than adults because their brains aren't developed enough to grasp long-term consequences or completely control impulses.

Former Sheriff Nat Glover agreed there needs to be accountability, but also hope for redemption.

"I know some people thought that sentence was appropriate, but that was a tough sentence for someone that young," Glover said. "I never got the feeling that it was a malicious, mean-spirited, calculated murder. It was kind of an impulsive act that, given a different set of circumstances, would never have happened."

Nationally there is a slow trend away from the tough juvenile sanctions wrought by a spike in violent crime in the '90s, said Northwestern University law professor Steven Drizin. Some states have eliminated life without parole in youth murder cases, and the U.S. Supreme Court struck down death sentences for juveniles in 2005 based on the new research.

Florida Sen. Steven Geller, D-Hallandale Beach, tried unsuccessfully for years to pass legislation that would allow parole for juvenile felons younger than 16. Even mass murderer Charles Manson comes up for parole, Geller said.

One of those who blocked the legislation was state Sen. Stephen Wise, R-Jacksonville, former chairman of the criminal justice committee. Wise doubts lawmakers will ever undo the '90s legislation because they don't want to be responsible for releasing someone from prison who then commits a heinous crime.

"At what point do you become rehabilitated?" Wise said. "You can't know the future."

Maddie's mother said Phillips' sentence is appropriate.

"Josh did get a life sentence, but Maddie got the death sentence. She was only 8 years old," Sheila Clifton Delongis said. "He should not be cut a deal just because he was 14."

Delongis said she knew Phillips as a neighbor and has no doubt he knew right from wrong.

The need for hope

Phillips has dreams of freedom, but admits they might not be realistic.

"My sense is I'm going to get out one day. Whether I really believe it or not is not really the point," he said. "I just kind of superficially believe it enough to keep me going.

"I really don't know if I deserve it or not, but I know I want ... a second chance. Maybe I deserve to die in prison ... but I can't look at it like that. Doing that is just a cop-out. ... Why would I try to learn anything? Why would I try to improve myself? Why would I try to help anybody if I'm just going to lay down and die in here?"

Part of him is thankful he was prosecuted as an adult. It's a paradox. If he'd been tried in juvenile court, he'd be free now. But he doesn't think he'd be as rehabilitated or mature if he hadn't had to come to terms with dying in prison. He also said he would have been more easily manipulated in a juvenile facility, where peer pressure is stronger.

"It might have gone worse for me in some respects," he said.

Except for his mother, who visits faithfully, and the occasional letter from one of his brothers, Phillips has had no contact with anyone from his past.

He's also had no contact with Maddie's family. People have suggested he write them an apology letter, an idea he rejects as "cheesy."

"They deserve to hear it from me personally ... so they can see the sincerity," he said. "They won't be able to see it in a letter. They won't be able to see it in a phone call or ... on TV."

Delongis said she has no interest in talking to her daughter's killer, but Maddie's sister does. Now 21, Jessie Clifton said she wants to meet with him to get some answers.

"He changed my life," she said. "I'm not going there to be mean. I'm not going there to be rude. I just want to talk to him."

Maddie would be 18 today, probably in college. She'd likely be driving, working, dating - all the rites of youth.

Despite his incarceration, Phillips has been able to do some of those things. He got his GED, though initially prison officials told him he was too young. He's taken some correspondence college classes, and he works as a paralegal helping other inmates with their appeals.

He also plays guitar in a prison band and participates in a Christian prison ministry, Zen meditation and yoga. He can't imagine hurting anyone now.

"I've grown a lot," he said. "This has taught me to understand just about anybody's pain. I've learned to ... almost completely put myself in someone else's shoes and really feel whatever they're feeling.


"It's taught me to be a better person."

Wednesday, July 29, 2009

From Michele Deitch Michele is the lead author of From Time Out to Hard Time: Young Children in the Adult Criminal Justice System.

The report provides the first-ever comprehensive look at how the nation treats pre-adolescent children (primarily those age 12 and under) who commit serious crimes. The report analyzes the available data with regard to the transfer of young children to adult criminal court, documents the extremely harsh and tragic consequences that follow when young children go into the adult criminal justice system, profiles practices in states with particularly severe outcomes for these young children, looks at international practices, and offers policy recommendations.

The report, which I co-authored with three of my students, finds that more than half the states permit children age 12 and under to be treated as adults for criminal justice purposes. In 22 states, plus the District of Columbia, children as young as 7 can be prosecuted and tried in adult court where they would be subject to harsh adult sanctions, including long prison terms, mandatory sentences, and placement in adult prisons.

This issue, of course, has gained national attention recently with the cases of the 8-year old in Arizona and the 11-year old in Pennsylvania, both charged with murder, and in the case of Christopher Pittman, who was unsuccessful in his efforts last year to get the United States Supreme Court to hear his challenge to his mandatory sentence of 30-years without possibility of parole for the killing of his grandparents when he was 12 years old.

The report shows that the practice of trying young children in adult court contradicts the consensus of the most up-to-date scientific research, and details the many ways in which the adult criminal justice system is a poor and dangerous fit for these young children.

Other key findings include:

· Every year, nearly 80 children age 13 and younger are judicially transferred to adult court. Between 1985 and 2004, 703 children age 12 and under, and 961 children age 13 were judicially transferred to adult court. The total number of young children in adult criminal court actually is much higher than this, as the data does not include the number of children sent to the adult system through automatic transfer laws or laws allowing prosecutors to file cases directly in adult court.

· Many of these young children are being treated as adults for relatively minor offenses. There are almost as many youth treated as adults for property crimes as for crimes against persons. Determinations about when and whether a young child will be treated as an adult are marked by extreme arbitrariness, unpredictability and racial disparities.

· Four states—Florida, Michigan, Pennsylvania, and South Carolina—stand out as providing the worst possible outcomes for pre-adolescent offenders, given the combination of transfer policies and adult sentencing laws and practices in those states.

· On a single day in 2008, 7,703 children under age 18 were held in adult local jails and 3,650 in adult state prisons. In these adult facilities, the youth face vastly higher risks of physical and sexual assault and suicide than they would face in juvenile facilities. The youngest children are at particular risk.

· The United States is severely out of step with international law and practice. Most countries—including those Western nations most similar to the United States, countries in the developing world, Islamic nations, and even countries often considered to be human rights violators—repudiate the practice of trying young children as adults and giving them long sentences.

The report calls on national and state policymakers to keep young children in the juvenile justice system, to disallow mandatory sentencing of young children in adult court, and to always provide parole opportunities for young children transferred to adult court. We also urge that young children in the adult criminal justice system be housed in juvenile facilities, both while awaiting trial and after conviction.

Today's New York Times editorial, praising the report, is noted here.


Tuesday, July 7, 2009

Should Minors Ever Face Life Without Parole?

By: Lewis Beale Print

The Supreme Court's 2005 decision in Roper v. Simmons struck down the death penalty for juveniles, citing the Eighth Amendment's prohibition against cruel and unusual punishment. But that left another possible Eighth Amendment issue on the table: whether sentences of life without parole for juveniles are constitutional.

That question is now being considered on both the judicial and legislative levels. In the term beginning this October, the Supremes will hear two cases — one involving a 13-year-old sex offender, the other a 17-year-old probation violator present when a felony murder occurred — both aiming to challenge life-without-parole sentences for juveniles (known by the unwieldy acronym JLWOP). Concurrently, the House Subcommittee on Crime, Terrorism and Homeland Security has been gathering testimony on a bill that would mandate parole hearings for JLWOP prisoners. The bill covers federal cases and gives states a financial incentive to comply with its terms.

"There is so much attention on this issue right now," says Baylor Law School professor Mark Osler, who has testified in favor of the proposed House bill, H.R. 2289. "I think in part it's because you have groups doing a good job advocating on it, and the idea is becoming more and more prevalent — that instead of wholesale change, we are smoothing off the rougher edges of the justice system, and that includes a focus on children."

Opponents to a change suggest that a focus on the prisoners as children, and not offenders, is wrong-headed and ahistorical. In its brief before the Supreme Court in the 13-year-old sex offender case, the State of Florida Attorney General's Office wrote, "Outside the context of the death penalty, this Court has always examined whether a sentence is grossly disproportionate under the Eighth Amendment by examining the sentence in relation to the offender's instant offense and prior offenses, not the individual characteristics of offender, such as age or mental capacity."

But the historical precedence is under assault.

"Juvenile crime has been going down, so people are starting to use that as political cover to raise the issue of why we have these overly punitive juvenile justice policies in place," said Ashley Nellis of the Sentencing Project. "And it's just a good time to be re-examining policies fiscally because incarceration is expensive, and life sentences are the most expensive."

The United States is one of the few countries that hand out JLWOP sentences. A 2005 Amnesty International study found that life without parole for juveniles is theoretically available in a dozen countries, but besides the U.S., only three others actually had teens serving such sentences — Israel with seven, South Africa with four and Tanzania with one.

In contrast, Sentencing Project Executive Director Mark Maurer noted in his testimony before the House subcommittee that 2,500 U.S. teenagers are incarcerated with no hope of release, most of them people of color. A majority of these — as many as 60 percent — are first-time offenders, and more than one quarter were convicted of felony murder, meaning they were participating in a crime when a murder occurred, but didn't do the actual killing.

"That's typical in a juvenile case where they are hanging out with older kids," Nellis says. "They don't realize they will do something bad, someone dies, and they wind up with life without parole."

An example of this is the case of Rebecca Falcon, a Florida 15-year-old who in 1997 hailed a cab with a gun-toting 18-year-old friend. The driver was shot in the head and died. Although it was never established in court who pulled the trigger — the teens accused each other — because Falcon was on the scene, she was sentenced to life without parole.

JLWOP sentences contravene several international treaties, including the Convention on the Rights of the Child (which has been ratified by every country except the U.S. and Somalia), the International Covenant on Civil and Political Rights (which the U.S. has signed) and a 2007 U.N. General Assembly resolution calling on all nations to abolish the juvenile death penalty and JLWOP (the vote was 176-1, the U.S. dissenting).

Despite the international momentum, the U.S. is just beginning to discuss the issue. One reason, says Nellis, is the ongoing fear the public has about so-called "bad seed" children in their midst.

"There was this tough-on-crime perspective that dominated in the '90s," she says, "and you can see this in laws that moved juveniles into the adult system. There was also this public outcry promoted by politicians that there was this super predator, that laws needed to be toughened to deal with this kind of juvenile."

Professor Osler adds that because many of these JLWOP sentences are "concentrated in a few states — California, Pennsylvania, Michigan — and they're not the states you'd expect [meaning places like Texas, with its high adult execution rate] ... my suspicion is that there was a political moment where that seemed like the answer to a problem, whether it was youth violence or gangs."

The trouble here is that these sentences send a message that the juvenile, no matter how young, is irredeemable, and that, Osler says, "is the argument you hear over and over, that there's no hope for change based on what we saw them do."

Yet this kind of thinking is contradicted by research, which has found that adolescent brains are undeveloped in areas associated with impulse control, emotional response, risk assessment and moral reasoning. Which means, says Bryan A. Stevenson of the Equal Justice Initiative, who testified on hearings about H.R. 2289, that "young teens experience widely fluctuating emotions and vulnerability to stress and peer pressure without the adult ability to resist impulses and risk-taking behavior or the adult capacity to control their emotions."

In fact, some social scientists believe full emotional and moral maturity doesn't occur until people are in their 20s, which means an incarcerated teenager, given the proper counseling and rehabilitation (a big if), could conceivably mature into a responsible adult.

This is what H.R. 2289 is trying to take into account. The bill would mandate that every JLWOP prisoner "receives, not less than once during the first 15 years of incarceration, and not less than every three years thereafter, a meaningful opportunity for parole or other form of supervised release." States in noncompliance of this mandate would be penalized by a 10 percent cut in the anticrime funding they would normally receive under the Omnibus Crime Control and Safe Streets Act of 1968.

While a number of high-profile organizations, such as Human Rights Watch and The Center for Law and Global Justice at the University of San Francisco School of Law have produced reports castigating the U.S. for its policies on JLWOP, and PBS's Frontline documentary series produced a 2007 piece, "When Kids Get Life," widely viewed as sympathetic to the cause, opponents of loosening sentences have stood their ground. Critics of the act, which include the National District Attorneys Association, claim it is yet another example of the federal government butting into state issues and lumps all JLWOP offenders into the same eligible-for-parole category no matter how heinous the offense.

"That [last argument] would make a lot more sense if you required a mandatory release date," Osler says. "This bill is just about parole, and a lot of people up for parole never get parole. If you have a kid in for 15 years, and he still has a lot of problems, that kid will not be released."

But as Santa Mateo County, Calif., District Attorney James P. Fox noted in his testimony, the mere fact that a juvenile was prosecuted as an adult suggests he or she already has a lot of problems.

"The unwritten but clear implication of this proposed legislation is that too many juvenile offenders are prosecuted and sentenced as adults in our country," he testified. "The reality is, in fact, quite the opposite. Very few juveniles are prosecuted and sentenced as adults in America, contrary to the unwritten implication of this proposed legislation and a public misperception driven in large part by sensationalistic media coverage of certain high-profile cases. Few jurisdictions in America prosecute more than 1 to 2 percent of juvenile criminal offenders as adults, and in some jurisdictions, this percentage is even lower. In those cases where adult-court prosecution does occur, the simple fact of the matter is that adult-court prosecution is clearly warranted in these instances."

No one knows if H.R. 2289 will become law (it has yet to be voted out of committee), but with the Democratic majority in Congress, it probably has a decent shot. In the meantime, the two cases coming before the Supreme Court will go a long way toward determining how this country deals with its juvenile criminals. Yet because of the significant differences between them, people like Nellis are predicting a split decision.

"My expectation is that they will answer two different questions," she says. "They may talk about juvenile life for very young ages in the Sullivan case [the 13-year-old sex offender], and they might deal with probation violations in the second case. We're hopeful that at the very least life without parole cannot be used in non-homicide cases."

Monday, May 18, 2009

Teen Charged With Attempted Murder

JACKSONVILLE, Fla. -- A 14-year-old boy is in the Duval County Jail, facing murder charges.

The teen is charged with several different crimes, including premeditated murder and aggravated battery with a fire arm. He is being held at the jail with no bond.

He has been in jail since May 15 and does not have a pending court date, according to the Jacksonville Sheriff's Office Web site.

(Source : )

Saturday, May 16, 2009

Stimulus help for juvenile jail?

By Dale White

Published: Saturday, May 16, 2009 at 1:00 a.m.
County Commissioner Ron Getman and an advisory board on public safety issues are exploring whether federal dollars may be available to cover rising expenses at the juvenile jail.

Since 2006, the state has required counties to cover the costs of detention centers run by the Florida Department of Juvenile Justice.

The County Commission has grudgingly paid that state-mandated tab by dipping into a fund of property taxes that is supposed to go toward locally run programs designed to keep children out of trouble and out of jail.

In the past three years, $7.3 million that could have otherwise gone toward after-school care for latchkey children, mental health or substance abuse counseling, and a myriad of other services to help children have instead been spent on incarcerating them.

Getman is hopeful that he and a committee representing judges, prosecutors, public defenders and law enforcement can come up with an alternative when they meet next week.

"County taxpayer dollars are evaporating," Getman said.

So, the best -- and perhaps only -- hope may be federal stimulus funds or other dollars for which the county or public safety agencies may be eligible.

"It all depends," Getman said. "There are always strings attached."

For the next fiscal year, the Department of Juvenile Justice is expected to hand the county a bill for $2.66 million, up from this year's $2.59 million.

The juvenile jail is the biggest single expense in the county children's services budget, consuming a 27 percent slice of the total. And it keeps getting bigger.

Yet, faced with $25 million in cuts it expects to make elsewhere in the budget that takes effect Oct. 1, the commission will be hard pressed to find another funding source if federal dollars cannot be found.

In 1990, voters countywide narrowly approved the property tax for children's services. The county promised to spend the proceeds on new programs for youth from low-income households or those at risk of neglect, delinquency, pregnancy, physical abuse or substance abuse.

Property owners pay 33 cents on every $1,000 in taxable value into the children's services fund.

Yet the amount of dollars available for more than 100 programs at schools, clinics, community centers and counseling agencies continues to shrink.

The juvenile jail is one reason. The county's declining property tax base is another.

This year, the county is spending $9.4 million in children's services taxes. Next year, according to one projection, the tax may bring in $9.1 million or less.

This story appeared in print on page BN1