The 17-year-old Scotlandville High School student who shot and killed East Baton Rouge Parish Sheriff’s Office Deputy Charles Hurt in 1963 is long gone, having aged into a 69-year-old Angola inmate who is rehabilitated and deserves a chance to show he should not die behind bars, attorneys for Henry Montgomery will argue Tuesday at the U.S. Supreme Court.
The high court is using Montgomery’s case, much to the chagrin of Hurt’s family, to decide whether to apply retroactively its June 2012 decision banning the automatic imposition of life sentences for juveniles convicted of murder.
Montgomery’s attorneys, as well as the national American Civil Liberties Union, the Louisiana ACLU, the American Bar Association and a group of family members of victims killed by youths, are urging the justices to give their Miller v. Alabama ruling retroactive application.
Opposing that view are the Louisiana Attorney General’s Office and the East Baton Rouge Parish District Attorney’s Office, together with the National District Attorneys Association, the Louisiana District Attorneys Association, the National Association of Victims of Juvenile Murderers — and Becky Wilson, one of Hurt’s three surviving children.
“When does it ever end?” Wilson, 61, asked in an interview Thursday.
She was just 9 when the 17-year-old Montgomery fatally shot her 41-year-old father on Nov. 13, 1963.
Montgomery was found guilty and sentenced to death in 1964, then tried again in 1969 and convicted and sentenced to life in prison without parole.
The Supreme Court’s 5-4 decision in Miller did not bar life terms for juveniles, just the automatic imposition of such sentences upon conviction. The court said a sentencing hearing must be held to consider the defendant’s youth, upbringing, circumstances of the crime and other factors.
The justices did not say whether the ruling applied retroactively to inmates nationwide serving life terms for murders committed when they were under 18.
The Louisiana Supreme Court decided in 2013 that the U.S. Supreme Court ruling was procedural, not substantive, and therefore does not apply to cases before the 2012 ruling.
Lawyers for Montgomery, including lead attorney Mark Plaisance, vehemently disagree in written arguments filed at the nation’s top court in advance of Tuesday’s hearing. They contend Miller created a substantive new rule that must apply retroactively.
“Assuming (for the sake of argument that) the rule is procedural, Miller is a watershed rule of criminal procedure that applies retroactively as it marks a foundational shift in our understanding of appropriate, proportionate and constitutional sentencing for juvenile homicide offenders,” Montgomery’s attorneys argue.
Montgomery, they say, remains incarcerated at the Louisiana State Penitentiary at Angola “based upon a constitutionally disproportionate sentence that could not be imposed today.”
“He does not deserve to die in prison without consideration of the unique attributes of youth prior to sentencing simply because he was convicted more than 50 years ago,” his lawyers argue.
Montgomery, they say, “has indeed been rehabilitated” and strives to be a positive role model and counselor for other inmates. He also has served as a coach and trainer for a boxing team he helped create at Angola, and has worked in the prison’s silk-screen department.
Wilson, who said she prays for Montgomery and does not think of him in hateful or negative ways, nevertheless said the sentence he received was appropriate and that the high court’s 2012 ruling should not be applied to older cases such as his.
“I hate that he made a decision that changed the rest of his life,” she said of her father’s killer. “(But) there are consequences to the things we do in life. He received a just sentence.”
Documents filed at the high court indicate state prisons hold more than 2,000 inmates who committed murder while teenagers, and federal prisons house another 37 such prisoners.
The Louisiana Attorney General’s Office and the East Baton Rouge Parish District Attorney’s Office maintain the Miller decision fails to qualify as a substantive rule because it does not deny the government the power to impose a category of punishment but only requires a sentencing procedure.
The two offices say that retroactive application of Miller would require “burdensome relitigation of facts buried in the past or irretrievably lost.”
In Montgomery’s case, for example, the state and parish prosecutors note that virtually everyone involved in his 1969 trial is dead.
“One must also consider the effect of the resentencing process on Deputy Hurt’s surviving children, who would be forced to publicly relive the anguish of having been deprived of a father for the better part of their lives,” the Attorney General’s and District Attorney’s offices argue in documents filed at the U.S. Supreme Court.
Wilson and the National Association of Victims of Juvenile Murderers also sent written arguments to the high court. The association has 337 members from 235 families in 21 states.
Wilson and the association say applying Miller retroactively would retraumatize surviving family members who “deserve no less respect than the juvenile murderers.”
The Supreme Court also has heard from a group of family members of victims killed by youths — a group that advocates applying Miller retroactively.
“While their experiences differ, (they) are united in their belief that the lives of their loved ones are not honored by a criminal sentence that forecloses redemption and imposes endless punishment by failing to provide any opportunity for review to children sentenced to mandatory life without parole,” attorneys for the group wrote.
Wilson said she respects that opinion.
A group of former juvenile court judges from New York, Massachusetts, Colorado, Florida and Texas also filed written arguments citing the “significant differences between juvenile offenders, including those who commit homicide, and adult offenders.”
“Those distinguishing features make the sentence of mandatory life without parole categorically inappropriate for juvenile offenders,” the ex-judges contend.
Former Louisiana Supreme Court Chief Justice Pascal Calogero Jr. joined ex-Angola Warden John Whitley, former University of Louisiana at Lafayette associate criminal justice professor Burk Foster and the Louisiana Center for Children’s Rights in asking the nation’s top court to reverse the state Supreme Court’s finding that Miller does not apply to old cases.
Juvenile offenders “can and do find the spark of rehabilitation” and “can and do grow and develop to the point where they could be welcomed back into society under any standard governing parole,” they maintain.
But Michigan and 15 other states that filed arguments in support of Louisiana’s position argue that requiring states to resentence hundreds of offenders, many of whose crimes were committed decades ago, would “undermine the community’s safety” and “offend principles of finality.”
The other states are Alabama, Nebraska, Montana, Arkansas, Connecticut, Nevada, New Hampshire, Indiana, Kansas, Rhode Island, South Carolina, South Dakota, Texas, Utah and Wyoming.
The Louisiana Legislature, in direct response to the Miller v. Alabama ruling, approved a measure during the 2013 regular session requiring a sentencing judge to hold a hearing to determine whether the sentence should be imposed with or without parole eligibility. If a sentence is imposed with eligibility for parole, the legislation gives incarcerated offenders a chance at freedom after serving 35 years for first- or second-degree murder.
The Louisiana Supreme Court concluded in its 2013 decision that state lawmakers never intended the law to be read to apply to those already sentenced.
A Louisiana Department of Public Safety and Corrections spokeswoman said earlier this year that as of April 2013, there were 332 inmates in state custody who were sentenced to life without parole as juveniles for various crimes, including first- and second-degree murder and aggravated rape. The majority of them were sentenced before the U.S. Supreme Court ruling.