MONSTER UNDER THE BED: THE NIGHTMARE OF LEAVING JUVENILE LIFE SENTENCES UP TO THE PAROLE BOARD.

• Author: Ramstad, Erica L.

"It is true, we shall be monsters, cut off from all the world.... You accuse me of murder; and yet you would, with a satisfied conscience, destroy your own creature. Oh, praise the eternal justice of man!" -Mary Shelley, Frankenstein (1) I. INTRODUCTION

At bedtime, monsters invoke fear in children across the world. (2) These imagined creatures hide in closets and lurk under beds, baring fangs and claws, waiting for darkness to fall. (3) They survive on blood, flesh, and fear. (4) Monsters, according to some, are real--in fact, society often labels the worst juvenile delinquents as monsters; creatures void of innocence and purity. (5) The reality is that the child is not the monster. (6) Rather, the monster is a juvenile justice system that allows children to live a nightmare and remain in prison until they die. (7)

When sentencing juveniles convicted of serious crimes, courts often impose lengthy sentences with the possibility of parole. (8) The parole system has long been a discretionary tool available to sentencing courts for criminals who might have the capacity to reenter society at some point. (9) Ultimately, parole boards hold the authority to decide if release is appropriate and what conditions to impose, along with the power to revoke release with misbehavior. (10) Despite abolishment of the federal system in part due to its predisposal to pitfalls, state parole systems have survived." States use parole for several reasons: (1) parole allows relief from lengthy sentences mandated by law; (2) parole works as a "release mechanism" in crowded prisons; and (3) the prospect of parole serves as an incentive for current inmates to follow the rules. (12)

Throughout the past decade, United States Supreme Court decisions shifted to find that certain sentences for juvenile offenders, namely life sentences without parole, constitute "cruel and unusual punishment." (13) With such holdings, the Supreme Court has repeatedly emphasized the mitigating circumstances to be considered in sentencing youth and implemented certain constitutional constraints for states to follow. (14) Citing compelling research, the Court determined that juvenile offenders should be rehabilitated and eventually released. (15) Research also indicated that lack of maturity, impulsiveness, and susceptibility to external pressures lead to juvenile delinquency. (16) As delinquents progress into adulthood, most offenders indicate a low risk of recidivism; nevertheless, many of these individuals remain incarcerated, serving life sentences for the crimes they committed as youths. (17)

Two cases decided by the South Dakota Supreme Court in 2017, State v. Charles (18) and State v. Jensen, (19) show the Court's recent misapplication of the United States Supreme Court "trilogy" of juvenile sentencing decisions. (20) After Miller v. Alabama (21) found mandatory life sentences without parole for juveniles convicted of homicide unconstitutional, juveniles previously sentenced to mandatory life sentences had the opportunity to have their sentences corrected. (22) The recent Charles and Jensen decisions revisit the late-1990s homicide sentences of two boys, each of whom had been sentenced to mandatory life in prison without parole at age 14. (23) Although the 2017 decisions are the focus of this comment, the earlier decisions are referenced briefly for factual and procedural purposes. (24)

In 1999, 14-year-old Daniel Charles was found guilty of the murder of his stepfather. (25) After applying to have his sentence corrected, the trial court resentenced Charles to 92 years in prison. (26) Similarly, in 1996, Paul Jensen, a 14-year-old, received a life sentence without the possibility of parole after a jury convicted him of first-degree murder and kidnapping of a taxi driver. (27) After Montgomery v. Louisiana (28) held that Miller applied retroactively, Jensen filed a motion to correct his sentence, where the trial court resentenced him to two concurrent, 200-year sentences for the convictions. (29)

Both Charles and Jensen appealed separately to the South Dakota Supreme Court to argue the constitutionality of their corrected sentences. (30) Issuing the Charles decision in late-March and Jensen in mid-April of 2017, the Court affirmed both appellants' new sentences despite having release dates far beyond their natural lifespans. (31) Accordingly, Charles and Jensen, who are now ages 33 and 36 respectively, will potentially remain in prison until their deaths for the crimes they committed as young teenagers. (32) The sole chance they have at a life outside of prison walls lies in the hands of the South Dakota Parole Board. (33) Rather than complying with the Miller requirement that "a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles[,]" the South Dakota Supreme Court released the trial court from its judicial duty of sentencing by passing the power onto the parole board. (34) Equally problematic is that South Dakota courts have failed to comply with the United States Supreme Court's trilogy of juvenile cases that repeatedly emphasize that courts must consider juveniles differently in sentencing. (35) Consisting of three cases several years apart, each trilogy holding advanced juvenile sentencing: Roper v. Simmons (36) banned death sentences for juveniles; Graham v. Florida (31) deemed life sentences without the possibility of parole for juvenile offenders not convicted of homicide unconstitutional; and Miller v. Alabama found mandatory life sentences without the possibility of parole for juvenile offenders unconstitutional. (38) Rather than following the national trend, South Dakota has chosen a path that keeps former juvenile delinquents behind bars and allows parole boards to inherit the responsibility--and risk--of "returning dangerous offenders to the community[.]" (39)

This comment first presents detailed facts and procedural history of State v. Charles and State v. Jensen. (40) Next, this comment discusses parole boards, their purpose, and their pitfalls. (41) Third, this comment surveys United States Supreme Court trends in juvenile sentencing and the Supreme Court trilogy. (42) An overview of South Dakota cases from the past several years follows. (43) Thereafter, this comment addresses policy issues in South Dakota regarding juvenile sentencing and the major revamp of the juvenile justice system in the State. (44) The following Parts analyze sentencing as a judicial question (45) and the mitigating factors of youth required in juvenile sentencing. (46) Finally, this comment concludes by summarizing the issue of leaving juvenile sentences to the parole board. (47)

2. BACKGROUND

   1. MAKING A MURDERER: THE EVENTS TEADING UP TO TEENAGERS SERVING LIFELONG PRISON SENTENCES.

      By committing heinous crimes as teenagers, Charles and Jensen destroyed their futures before they began. The following facts derive from the initial appeals the boys made to the South Dakota Supreme Court. (48)

      1. Daniel Charles: The Battered Boy

         In the summer of 1999, 14-year-old Daniel Charles lived with his stepfather on a ranch by Opal, South Dakota. (49) Charles's mother and stepfather were divorced, but he continued to live with his stepfather due to his mother's frequent travel for work. (50) Charles alleged physical and verbal abuse by his stepfather. (51) On July 23, following an incident where his stepfather hit him in the head, Charles pointed a rifle at his stepfather's head and pulled the trigger, instantly killing him. (52) He then dragged the body to the garage, cleaned blood off the sidewalk, and called his mother, telling her that his stepfather had not come home. (53) His mother called 911, and police recovered the body. (54) Charles initially told police that the rifle accidentally fired while he was fox hunting, but he later changed his story. (55) Charles also purported to officers that he thought the rifle was unloaded. (56)

         Upon transfer to adult court, a jury convicted Charles of first-degree murder, and he was sentenced to life in prison. (57) In 2001, Charles appealed to the South Dakota Supreme Court, where his conviction was upheld. (58) Following Miller, Charles applied to have his sentence corrected. (59) During a three-day hearing in October of 2015, the same judge from Charles's initial trial presided over the resentencing hearing. (60) The court resentenced Charles to 92 years in prison. (61)

         Charles argued five issues on appeal from the Fourth Judicial Circuit in Meade County, South Dakota, four contesting the constitutionality of his sentence. (62) In its opinion filed March 29, 2017, written by Justice Wilbur, the South Dakota Supreme Court affirmed on all issues. (63) Charles is parole eligible at age 60 in 2045, but he could remain in prison until his death. (64)

      2. Paul Jensen: The Taxi Tyrant

         On January 26, 1996, around midnight, 14-year-old Paul Dean Jensen, Jr. and a friend, 16-year-old Shawn Springer, requested a taxi ride from a hotel. (65) The boys asked that the driver, Michael Hare, take them to Fort Pierre on gravel roads. (66) The dispatcher attempted to call Hare's cellphone, but Hare did not respond directly to the call. (67) The dispatcher instead overheard the boys demanding that Hare give them money. (68) Jensen instructed Hare to exit the cab at gunpoint. (69) He then shot Hare once in the chest and twice more in the head to kill him. (70)

         While driving back to town in the cab, the boys crossed paths with a police officer who had been alerted about the robbery. (71) A chase ensued, and the snowy roads ultimately caused the cab to crash into a snow bank. (72) Officers approached and arrested the boys. (73) Later, at a Juvenile Corrections Center in Rapid City, Jensen boasted to other inmates that he had shot a taxi driver three times and that the robbery and murder were planned. (74)

         The trial court granted the State's motion to transfer...