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

Published date01 July 2020
Date01 July 2020
Subject MatterArticles
Criminal Justice Policy Review
2020, Vol. 31(6) 886 –907
© The Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/0887403419871601
Decision-Making and
Holistic Public Defense Post-
Montgomery v. Louisiana
Jeanette Hussemann1 and Jonah Siegel2
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.
life without parole, decision-making, indigent defense, juveniles, reentry
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.
871601CJPXXX10.1177/0887403419871601Criminal Justice Policy ReviewHussemann and Siegel
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

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT