A new AP article takes a closer look at the ripple effects of recent U.S. Supreme Court decisions that prohibit mandatory life without parole sentences for juveniles — a subject that’s been the source of much debate in Arkansas in recent years.
At the end of the 2017 legislative session — in response to a series of Supreme Court cases that said juveniles should be treated differently than adults in sentencing — Arkansas passed Senate Bill 294 (Update: now called Act 539), which was hailed as the end of juvenile LWOP sentences.
Rather than resentencing juveniles to accommodate the new rulings, however,
SB 294 Act 539 simply offered them the ability to go before the state parole board, thereby avoiding the costly process of adjudicating the cases.
But, in June, Pulaski County Circuit Judge Wendell Griffen struck down the law because it “denies the right to a sentencing hearing protected by the Sixth Amendment to the U.S. Constitution.” Griffen pointed out that, “The issue of sentencing is not determined by the General Assembly. The General Assembly only determines the range of punishment for given sentences.”
The logic of the ruling, Griffen told me in an interview at the time, is that “you cannot cheat people out of the right to a trial because you want to save money.”
With that, Act 539
SB 294 was put on hold in Pulaski County Arkansas, meaning those sentenced as juveniles will not immediately have the ability to apply for parole. However, many of those who were sentenced to juvenile life without parole will eventually be resentenced, and possibly released from prison.
UPDATE (Aug. 4, 9:44 a.m.): On August 2, a judge in Crawford County resentenced Tony Ray, who at the age of 16 in 1997 committed murder, to life with parole after 30 years following the guidelines of Act 539, reported the Democrat-Gazette. In issuing this ruling, Circuit Judge Gary Cottrell, unlike Griffen, upheld the constitutionality of Act 539. Cottrell considered waiting for the Arkansas Supreme Court to rule but was “confident the act was constitutional,” said the article.
UPDATE (Aug. 4, 9:55 a.m.): But, because the Arkansas Supreme Court has not yet taken up the issue of Act 539 the tricky nature of resentencing can cause varying decisions. In a ruling on the resentencing of Albert Bell on August 3 the Arkansas Supreme Court did not offer Bell, who was convicted of 1st degree murder as a juvenile, the possibility of parole. In 1st degree murder cases in Arkansas you have a range of options — from 10 to 40 years to life. The ruling continued the precedent of the Arkansas Supreme Court in holding that the U.S. Supreme Court had outlawed mandatory life without parole for minors, but not all life without the possibility of parole sentences for juvenile cases.
“Because Bell was convicted of first-degree murder, a life sentence was not mandatory, and the mitigating factor of his youth was presented during the sentencing phase of his trial. Miller did not expressly hold that a life sentence for a juvenile offender was unconstitutional but that the mitigating factor of youth must be considered,” said the ruling.
Jeff Rosenzweig, a defense attorney in Little Rock, said that Act 539 would have “taken care of [1st degree murder] parole cases legislatively” — giving someone convicted of 1st degree murder as a juvenile the possibility of parole after 20 years. But, Act 539 has not been taken up the Arkansas Supreme Court yet. If deemed constitutional, as it was in Crawford County, Bell would be allowed to go before the parole board after serving 20 years.
“The most recent available data indicates that thirty-six (36) inmates are serving a sentence of life [without] parole imposed when they were 17 or younger. Of those sixteen (16) have been re-sentenced to a term of years,” according to a spokesperson from the Arkansas Department of Correction as of early June.
However, the AP reports there are more complications as the wider logic of the U.S. Supreme Court rulings — that juveniles should not be sentenced by the same standards as adults — is adopted. We wrote about one such issue when SB 294 passed: de facto life without parole.
De facto LWOP, “refers to sentences that are technically not life or life without parole but they are virtually impossible to survive,” Ashley Nellis, from The Sentencing Project, told me at the time. She puts de facto LWOP sentences at 50 years or above. “The ability to outlive a 50-year sentence is very small even for a juvenile,” she said, adding that, “the incarceration experience is bad for your health.”
But, while Nellis has a definition for de facto life without parole, the Supreme Court did not provide one in its rulings.
“Is [a] sentence of 99 years ‘life without parole’? The Court did not address that, but will eventually have to,” Joshua Rovner, also of The Sentencing Project, told us when SB 294 was first passed.
The AP points out that some state courts, including those in Iowa and New Jersey, have begun to define de facto life without parole:
Iowa’s highest court in 2013 found that the governor didn’t comply with the U.S. Supreme Court when he commuted the life-without-parole sentences of 38 juveniles to life with the possibility of parole after 60 years.
The Supreme Court has not ruled on these other circumstances, but some state courts have. In January, New Jersey’s Supreme Court ordered new sentences for two former teen offenders with de facto life terms. One was serving 110 years, with parole eligibility after 55 years; the other had 75 years, with parole eligibility after serving 68. The court noted both defendants would “likely serve more time in jail than an adult sentenced to actual life without parole.”
Another problem is that even if laws are changed, those sentenced as juveniles still have to actually be granted parole from the state’s parole board. This can be a tricky process. The AP offers the example of Robert Boyd, in Maryland:
In prison, Boyd earned degrees, stayed out of trouble, coached boxing. For years he unsuccessfully applied for parole. But in April 2016, he was released on probation after Johnston convinced a judge to reopen the case, arguing that Maryland’s system didn’t afford Boyd a meaningful chance at parole and was therefore unconstitutional.
Some former juveniles do win release, however.
In Arkansas, Kuntrell Jackson, whose case was among those the Supreme Court considered in changing sentencing laws for juveniles, was resentenced and then, on February 21, 2017, released on parole, according to the Arkansas Department of Correction.