Henry Montgomery has lived behind prison walls for 53 years now, but even so he is a “little bit antsy” according to his lawyer while waiting to learn when he will get a chance at freedom under a new Supreme Court decision.
Montgomery is one of 300 or so Louisiana inmates serving time under life-without-parole sentences imposed for murders they committed as juveniles — sentences ruled unconstitutional by the Supreme Court four years ago. The court followed with a 6-3 ruling in January that the earlier decision applies retroactively to prisoners even if their regular appeals had already ended.
Four months later, Douglas Berman, a professor at Ohio State University’s Moritz College of Law and leading expert on sentencing policy, says he knows of no prisoner yet who has been released as a result of the Supreme Court decision. In Louisiana itself, Montgomery’s lawyer is waiting for the Louisiana Supreme Court to act on his motion to remand the case to a trial court for further proceedings.
The state justices may be awaiting developments in the state legislature. The Louisiana Senate voted 25-8 on Thursday [May 12] to approve giving so-called “juvenile lifers” a chance for parole after 35 years in prison if they had no disciplinary offenses for the previous year and had participated in education and skills training programs. A House committee approved a similar bill the day before.
The hang-up in Louisiana and in several other states stems not only from the customarily slow pace of judicial proceedings but from uncertainty about how to comply with the high court’s ruling. The 6-3 decision in Montgomery v. Louisiana appeared to prescribe parole hearings as the remedy rather than court resentencings for inmates now seeking release.
The court’s earlier decision, Miller v. Alabama (2012), prohibited states from automatically sentencing juvenile murderers to life-without-parole but left open the possibility of such sentences in some murder cases. In the new opinion, Justice Anthony M. Kennedy said that prisoners “who have shown an inability to reform will continue to serve life sentences.” Citing Montgomery’s record as a model prisoner, however, Kennedy said that inmates like him “must be given the opportunity to show their crime did not reflect irreparable corruption.”
Kennedy appeared to be letting states off easy by negating any need to resentence the juvenile lifers in court, much less to review their convictions. But leaders of a juvenile justice advocacy group working to abolish life-without-parole sentences view courts as a more receptive forum than state parole boards for inmates to gain their freedom.
Heather Renwick, legal counsel for the Washington-based Campaign for the Fair Sentencing of Youth, says courts are a more favorable forum than politically appointed parole boards. But Berman, who publishes the comprehensive blog Sentencing Law and Policy, notes that parole boards still give an inmate a “second bite at the apple” if a judge does not grant the inmate freedom.
One Louisiana case suggests that Renwick may be overestimating judges’ receptivity to lowering sentences for juvenile lifers. In March, Criminal District Court Judge Byron Williams in New Orleans imposed the same life-without-parole sentence that Jeremy Burse had received three years earlier after being convicted in a 2010 robbery-murder committed when he was 15.
Williams presided over a so-called Miller hearing that lasted more than five hours and then concluded that Burse’s offense still qualified for the most severe penalty possible. “[T]his court believes that when anyone picks up a gun, they should assume the consequences of that action,” Williams said, according to the Times-Picayune’s March 13 story on the case.
Berman notes that one unsettled issue is whether judges or juries will decide new sentences for juvenile lifers. He says that the court in its earlier decision, Miller, appeared to favor judicial discretion, but that the new decision may require juries.
In a line of cases beginning with Apprendi v. New Jersey (2000), the Supreme Court has generally required juries rather than judges to make any factual findings needed to raise a defendant’s sentence above the minimum prescribed by law. Berman sees Kennedy’s opinion in Montgomery as requiring proof of “irreparable corruption” before a life-without-parole sentence. “Montgomery seems to indicate that it’s not a procedure that’s important,” Berman says. “It’s actually a substantive conclusion.”
Nationwide, there are an estimated 1,300 prisoners serving life-without-parole sentences for offenses committed as juveniles. Louisiana and two other states, Michigan and Pennsylvania, account for the lion’s share. In Louisiana, Montgomery’s lawyer is impatient for the state’s high court to act. “It’s in limbo right now,” says Mark Plaisance, a private lawyer representing Montgomery on contract with the East Baton Rouge Parish public defender’s office.
Montgomery, who turns 70 in November, was sentenced for killing a school truancy officer in 1963 when he was 17. Plaisance says Montgomery shares his impatience with the delayed follow-up. “Not only him but several of the defendants are antsy about how quick can we get back into court,” Plaisance says.
For its part, the juvenile sentencing group acknowledges the slow pace but takes encouragement from recent moves by Utah and South Dakota to become the 15th and 16th states to abolish life-without-parole for juvenile offenders altogether. “There is broad bipartisan support for alternatives to death-in-prison sentences for children,” says Jody Kent Levy, the group’s director and national coordinator. “Still, there is work to be done to ensure reforms are implemented meaningfully.”
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