When you represent someone young charged with a crime often times you have to give “the speech.”
Take a kid, usually between 13 and 19 who has never been charged with a serious crime. You are in the courthouse holding pens overwhelmed by the patchouli-lysol scent that masks decades of filth, unwashed bodies and the overflowing toilet stench. You would think that is enough to knock some sense into your young client. You’d be surprised.
You give “the speech”:
"You are at a crossroads in your life, go left and you will end up in prison. No. Not maybe, this is not a possibility. I am not wrong. You will end up in prison and from there you will never recover, you will never be the same. If you go ‘right’ you will have to finish school and get a job. Yes working can suck. Life is hard. But you will never have to worry about being that 40 year-old guy behind you who’s been here 10 times in the last year."
I can’t imagine what kind of speech an attorney gives a 14 year-old facing life without parole. That was precisely addressed in the 2012 case of Miller v. Alabama. The US Supreme Court ruled that mandatory sentences of life without parole, for juveniles, violates the Eighth Amendment (cruel and unusual punishment). This ruling left many who were already sentenced to life without parole to ask, ‘well, what about me?’
One of those asking that question is Adolfo Davis who was sentenced to life without parole for a robbery he took part in when he was 14 years old that resulted in two deaths. Although Davis did not fire the weapon, when you sign up for a robbery (or burglary, or rape, or a laundry list of other felonies) and someone gets killed, it’s equally on you – in for a penny, in for a pound. (It’s called the “felony murder” rule.)
Davis, who is now 37, commited crimes when at 14 years of age simply to feed himself. No father, mother on drugs and a grandmother who was incapable of taking proper care of him.
Now, despite the cliché, he is a changed man, the model prisoner, and even an author.
Davis’ question is one of retroactivity that plagues lawyers every day. Truly. My officemate just brought this up three days ago. You see, every time a law is changed in our clients’ favor, we want to run out and get all them resentenced under it.
So when my officemate asked whether I thought a certain case applied retroactively my answer was instinctual – “not if it doesn’t say so.” Miller v. Alabama didn’t say so. Which leaves Mr. Davis’ question the one I’m sure 2,500 other prisoners serving similar sentences in this country want an answer to.
This is so infuriating! Why doesn’t the Supreme Court just tell us if a law should be applied retroactively or under what conditions it could be eligible for sentence?
Take for instance the U.S Sentencing Commission. In April, they approved a reduction in federal sentencing guidelines for certain non-violent drug offenders. Then in July the issue of retroactivity was addressed by amendment. Although it’s in the Judge’s discretion to retroactively resentence, 46,000 prisoners now have a chance at a reduced prison stay.
Whether the law of Miller v. Alabama should be applied retroactively is the issue in Illinois v. Davis, a pending petition in the Supreme Court. In Miller, Justice Kagan wrote for the majority essentially saying that with mandatory sentences discretion is removed from the equation: “ life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot extricate himself—no matter how brutal or dysfunctional.”
In resentencing non-violent drug offenders the Judge will weigh various factors, then make the ultimate decision. Miller gives the Judge the ability to do the same with respect to juvenile offenders. The entire analysis of Miller focuses on the judge examining every facet of the juvenile’s life and of the crime itself. It flows from such language that retroactivity was the intention of the decision.
Enough of the ‘does it or doesn’t it’ ‘will they or won’t they’. Here’s what needs to happen: the US Supreme Court should rule that Miller applies retroactively AND that the Court is ordered to always include in their rulings whether a rule applies retroactively. What? The Supreme Court can order themselves around.
It is so rare in this business to be presented with someone who has the capacity to change. A person who has yet to fully develop can be shaped. I don’t really like young people in general but I love young clients – those are the ones you have a shot at changing – those are the lives that can be saved. I hope the US Supreme Court takes a second look at the 2,500 lives that were ignored at first glance.
Follow The Dean's Report on Twitter