Decision-Making and Holistic Public Defense Post-Montgomery v. Louisiana

• Published date: 01 July 2020
• Date: 01 July 2020
• DOI: http://doi.org/10.1177/0887403419871601
• Subject Matter: Articles

https://doi.org/10.1177/0887403419871601

Criminal Justice Policy Review

2020, Vol. 31(6) 886 –907

© The Author(s) 2019

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DOI: 10.1177/0887403419871601

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Article

Decision-Making and

Holistic Public Defense Post-

Montgomery v. Louisiana

Jeanette Hussemann1 and Jonah Siegel2

Abstract

In 2012, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory sentences of

life without the possibility of parole (LWOP) for youth are unconstitutional. In 2016,

the Court held in Montgomery v. Louisiana that the ruling in Miller should be applied

retroactively. Drawing from qualitative interviews with justice actors, and individuals

who were sentenced to LWOP as juveniles and paroled, this article examines the

implementation of Miller-Montgomery in Michigan, the factors that influence decisions

to release juvenile lifers, and their reentry process. In doing so, we focus specific

attention to the role of publicly appointed defense attorneys and the application of

holistic defense practices to support Montgomery case mitigation and juvenile lifer

reentry. Findings indicate that institutional disciplinary and programming records,

emotional wellness, statements by victims’ family members, political considerations,

and reentry plans are key considerations when deciding whether a juvenile lifer should

be eligible for parole.

Keywords

life without parole, decision-making, indigent defense, juveniles, reentry

Introduction

Concerns about increasing violent crime rates, including those committed by youth, in

the 1980s and 1990s, dramatically altered the administration of juvenile justice and the

sentencing outcomes for youth across the country. Between 1986 and 1994, the num-

ber of homicides committed with guns by youth increased from approximately 950 to

1Urban Institute, Washington, DC, USA

2Michigan Indigent Defense Commission, Lansing, USA

Corresponding Author:

Jeanette Hussemann, 2100 M St. NW, Washington, DC 20037, USA.

Email: jhussemann@urban.org

871601CJPXXX10.1177/0887403419871601Criminal Justice Policy ReviewHussemann and Siegel

research-article2019

Hussemann and Siegel 887

more than 3,000 per year (Fox, 2003). During this time, the public was consumed with

panic over the increasing number of so-called juvenile “super-predators” and predic-

tions that the super-predator population was going to significantly increase by 2010

(Dilulio, 1996, p. 1).1 In response, “tough on crime” legislation that increased the

length of prison sentences and the types of individuals who faced longer sentences was

introduced by politicians and embraced by states across the United States as a viable

mechanism by which to deter juveniles from committing violent crime (Tonry, 1996).

For youth, this meant that the age at which they were eligible to be sentenced as an

adult was lowered in many states (Bishop & Frazier, 1990; Feld, 2017; Human Rights

Watch/Amnesty International, 2005; Merlo & Benekos, 2017; Snyder & Sickmund,

1999). At the same time, authorizations for youth to be automatically transferred from

juvenile to adult court, and to receive an adult prison sentence, including the sentence

of life without parole (LWOP), became increasingly common.2

Although LWOP sentences were rarely imposed on youth prior to 1980, sweeping

changes to the historical rehabilitative goal of juvenile justice stemming from “adult

time for adult crime” rhetoric curbed debate about the culpability of youth and paved

the way for a stark increase in the number of youth sentenced as adults and to life in

prison (Feld, 2017). In more than half of LWOP-eligible cases, youth received LWOP

sentences for their first-ever criminal conviction; in more than a quarter of cases,

youth received an LWOP sentence for aiding and abetting a homicide (Human Rights

Watch/Amnesty International, 2005). In at least 70% of cases, youth who received

LWOP sentences were of a racial minority, with some research suggesting that Black

youth were 10 times more likely to receive an LWOP sentence than were their White

peers (Human Rights Watch/Amnesty International, 2005).

Beginning in 2005, the U.S. Supreme Court began to evaluate and limit the use of

adult sentences such as LWOP for youth, based on evidence indicating that youths’

judgments, impulse control, and decision-making processes are, in fact, different than

adults (Blakemore & Choudhury, 2006; Romer, 2010; Scott & Steinberg, 2009).

Subsequently, the Court ruled in Roper v. Simmons, 543 U.S. 551 (2005) that youth

cannot be sentenced to death, a decision that saved the lives of 72 juveniles who were

on death row but not the 22 individuals who had already been executed for crimes

committed as a youth (see Death Penalty Information Center, n.d.). In 2010, the Court

banned the use of LWOP for juveniles not convicted of a homicide in its ruling in

Graham v. Florida, 560 U.S. 48 (2010), stating that youth “have lessened culpability”

and are “less deserving of the most severe punishments” such as LWOP, which is “an

especially harsh punishment for juveniles,” given that youth will serve more time on

average than adults sentenced to LWOP. The Graham ruling applied to more than 120

individuals but did not guarantee that individuals serving juvenile LWOP sentences

would be resentenced or released. In 2012, deciding Miller v. Alabama, 567 U.S. 460

(2012), the Court held that the use of mandatory LWOP sentencing laws for juveniles

was unconstitutional and violated the Eighth Amendment3—this ruling affected 28

states and the federal government, which relied on the use of LWOP in juvenile cases,

but also left an open question as to whether the ruling should be applied retroactively

(The Sentencing Project, 2017). The Supreme Court resolved this confusion in 2016 in