Should Murderers Convicted as Juveniles Have a Shot at Parole?

In 2012, the US Supreme Court ruled that mandatory sentences of life without parole for homicide amounted to "cruel and unusual punishment" when slapped on juveniles, or offenders under age 18. Now, in Montgomery v. Louisiana, the Court is weighing whether that decision should apply retroactively to people who are serving life sentences for crimes they committed when they were young.

The lawyer for 69-year-old plaintiff Henry Montgomery, who has been locked-up since age 17 after he murdered a sheriff's deputy in Louisiana, argues that his client "remains incarcerated based upon a constitutionally disproportionate sentence that could not be imposed today." But in opening arguments Tuesday, the Court expressed skepticism as to whether it should determine what Justice Antonin Scalia, at least, seems to believe is a state issue. Since the 2012 ruling, 15 states and DC have applied the ruling retroactively, but holdouts like Louisiana, Michigan and Pennsylvania aren't having it.

For advocates working on juvenile justice reform, that the case is in front of the Supreme Court at all is heartening and long overdue. The only question is whether the justices will address the issue head-on, or leave it to states to keep kids locked up for life.

"It's really critical as a matter of basic fairness to ensure that anybody serving this now unconstitutional sentence has the opportunity to come up for re-sentencing and the possibility of returning home," said Jody Kent Lavy, director and national coordinator of the advocacy group Fair Sentencing of Youth.

She points to a "growing body of evidence that shows that young people are fundamentally different than adults and that children's brains—not just their bodies—aren't fully developed, and as result, are more susceptible to peer pressure."

"They're not as capable as adults of thinking through the consequences of their actions," she added. "They don't have adult levels of judgement, and they are more capable of rehabilitation."

In her 2012 majority opinion, Justice Elena Kagan echoed that sentiment, writing that "mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences."

Children are not only undeveloped but, as Xavier McElrath-Bey—a 39-year-old youth justice advocate and coordinator at ICAN (Incarcerated Children Advocacy Project)—can attest, they are also capable of improving themselves and their communities. Many people age-out of criminal behavior, and reintegration may not be dangerous, but helpful, he argues.

McElrath-Bey, now a successful advocate for at-risk youths, told me he was first arrested at age nine for stealing a candy bar. By 13, he had a lengthy rap sheet, including aggravated battery, assault, and multiple weapons charges. That year, he committed a gang-related first-degree murder for which he was handed down a 25-year sentence. (He served 13 years and got released in 2002.)

"As much as [prosecutors] knew about my deviant behavior, what was not addressed was the fact that I was living in a very abusive and neglectful environment, exacerbated by poverty and family psychiatric problems," McElrath-Bey told VICE, adding that his mother and brother are schizophrenic, and that he was routinely abused by his mother's partners. At 11, he ran away from the abuse because he "felt safer on the streets" and started running with a gang.

Two years later, he was headed to a prison sentence nearly double the number of years he'd spent on the planet so far.

But in prison, McElrath-Bey—who was tried as an adult and served time in an adult prison after he turned 17—was able to turn his life around. He earned a degree, and upon release, spent five years as a researcher for a Northwestern University study on the mental health needs of the formerly incarcerated. He became an active member in the South Side of Chicago community where he grew up, reaching out to kids like him to keep them "out of the grave and out of prison."

"I just wanted to live a normal life," he said, "I live my life as an eternal apology because that's the way I deal with my own pain and recognize the pain that I caused others. From [my release] forward, I can live my life in service of others."

Like other criminal justice advocates, McElrath-Bey believes long sentences for kids "ignores young peoples' capacity for change," and the "particularly important perspective they have to share."

For their part, victims of juvenile killers are frustrated at the case even making it to the Supreme Court. As the National Association of Victims of Juvenile Murderers wrote in a brief filed on behalf of the daughter of Montgomery's victim, "When a juvenile murderer killed their loved one, the surviving members were traumatized. Reopening these cases for re-sentencing will re-traumatize them, forcing them to relive the events that traumatized them in the first instance."

But reformers cite evidence that kids react violently to violent environments, and the fact that juvenile murders have been declining for decades. "Life without parole is the most extreme punishment you can give to a child," Lavy said. "Just as a matter of context, Charles Manson has come up for parole 12 times and yet these children have been sentenced to life without parole never will."

According to Lavy, the extremely punitive measures for kids "have arisen as a result of the "superpredator" theory that came about in 1990s, which basically predicted a violent juvenile crime wave…and this racially-charged notion that there were these godless, fatherless monsters that were coming to a community near you."

Lavy and McElrath-Bey are hopeful the Supreme Court will actually address the substance of the case, and force states to pave the way for the re-sentencing of offenders who were never given a chance at freedom as adults.

"I just feel like they deserve the same chances I got, and in my heart I believe that given the same opportunities, they will be just as effective and just as much as an advocate as me in their own communities," McElrath-Bey said.

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