Attorneys, prosecutors weigh how to act on decision allowing young murder defendants hope for parole _lowres

 

When an Ascension Parish jury found 17-year-old Jeffrey Lively guilty of second-degree murder, President Ronald Reagan was still in his first term.

Lively, now 48, was convicted in August 1983 for his role in a brutal attempted rape and beating of a 92-year-old Darrow woman who died 10 days later in the hospital.

He would spend the next 33 years in prison, his appeals of the 11-1 jury conviction going nowhere. But in the past couple of years, Lively’s quest for a second chance took a different tack: asking a court to reconsider his mandatory life sentence because of his youth at the time of the crime.

The U.S. Supreme Court gave new hope to that push last month, not just for Lively but for about 300 other Louisiana prisoners serving life for crimes they committed while juveniles.

The nation’s high court made retroactive its 2012 decision that declared automatic life sentences for juveniles unconstitutional, saying that a life in prison for young defendants should be rare and they need to be given the opportunity to show they are capable of reform.

As the ruling has been digested over the past two weeks, prosecutors, public defenders, juvenile justice advocates and others say they are grappling not only with how to apply the court’s ruling and pay for it, but even with getting a handle on who the eligible defendants are.

The Louisiana Public Defender Board has a list of 300 defendants put together by the Louisiana Youth Justice Coalition, the Louisiana Center for Children’s Rights and others.

Joshua Perry, executive director of the Center for Children’s Rights, said researchers started several years ago with a list from the state Department of Corrections and Public Safety. They then went through available records and interviewed defendants in state prisons to expand on that accounting.

“We believe that our numbers are as close to accurate as any numbers out there,” Perry said.

The state Corrections Department has identified 271 defendants, but Pam Laborde, an agency spokeswoman, said a definitive tally still is being developed.

The U.S. Supreme Court’s decision that lifers convicted as juveniles should get fresh consideration stems from the Baton Rouge case of Henry Montgomery, now 69, who was convicted in the 1963 shooting of East Baton Rouge Parish Sheriff’s Deputy Charles Hurt. Montgomery, 17 at the time of the slaying, argued that he is a changed man, becoming a productive member of his community at the Louisiana State Penitentiary at Angola.

The state Supreme Court declined to take up Montgomery’s case, having earlier ruled that Louisiana would not make retroactive the 2012 federal high court decision in Miller v. Alabama banning mandatory life without parole for juveniles.

In considering Montgomery’s appeal, the U.S. Supreme Court majority continued its reasoning in recent decisions that juveniles — defendants under the age of 18 — convicted of serious crimes are “constitutionally different from adults for the purposes of sentencing.” These rulings lean heavily on the developing science about teenagers’ brains, finding that young people are defined by impulsiveness, lack of maturity and an underdeveloped sense of responsibility.

“Those prisoners who have shown an inability to reform will continue to serve life sentences,” Justice Anthony Kennedy wrote in the 6-3 majority opinion. “The opportunity for release will be afforded to those who demonstrate the truth of Miller’s central intuition — that children who commit even heinous crimes are capable of change.”

Prosecutors and defense attorneys said the Supreme Court has essentially left them with two options to deal with these former juvenile defendants in Louisiana prisons.

One would be full-blown hearings before a district court judge that would require expert testimony and examine whether a defendant’s crime was so severe and his post-conviction rehabilitation so limited that he should remain in prison for life.

The other option anticipates allowing a defendant to seek parole after enough time in prison has passed, but it’s not clear what that time limit should be and whether the Legislature will have to get involved.

“I think that is the biggest question at the moment — whether legislation is needed or not to set parameters (for parole),” Laborde said.

Public defenders and juvenile advocates like 23rd Judicial District Defender Susan Jones, who is defending Lively, see the sentencing hearings as something similar to the second phase of a capital case, when jurors hear from experts and weigh a variety of factors before determining whether to give someone a life sentence or the death penalty.

Jones, Perry and others point out these hearings will be difficult and expensive for prosecutors and already cash-strapped public defender offices. Prosecutors add they are likely to have a hard time reconstructing the oldest cases, with many witnesses hard to find or dead.

“We might just not have the records after 30 or 40 years. Your records just tend to disappear. They’re just not as good as they used to be,” said Samuel D’Aquilla, district attorney for East and West Feliciana parishes.

Offering a parole route may be a less expensive and fraught option.

In response to the Miller decision, the Legislature in 2013 gave judges handling murder cases with juvenile defendants the option to make them parole-eligible after serving 35 years in prison.

East Baton Rouge Parish District Attorney Hillar Moore said he sees parole hearings as the likely option for defendants sentenced to life before the 2012 Miller ruling. The debate at the Legislature will likely center on the number of years these already incarcerated defendants need to serve before they are eligible for consideration, he said.

“That’s where I think you’ll see the fight,” Moore said.

District Attorney Ricky Babin, whose 23rd Judicial District encompasses Ascension, Assumption and St. James parishes, said he would prefer not to have these decisions made by a parole board. By Babin’s count, he has six defendants eligible for a sentence review under the Montgomery ruling, including the Lively case.

He said these defendants received mandatory life sentences for some of his area’s most heinous crimes.

Babin said he doesn’t believe the parole board always gets enough information about an inmate’s risk to the community and does not always conduct a true adversarial hearing to flesh out those questions.

“I just don’t trust that process when it comes to public safety,” Babin said.

But if parole eligibility isn’t available until a defendant comes closer to serving a life sentence, say 40 to 50 years, Babin said he would have less of a problem with the option.

Carol Kolinchak, a trial-level compliance officer for the Louisiana Public Defender Board, noted, though, that such a long period in prison would run counter to the Supreme Court’s insistence in recent decisions that defendants must have a “meaningful opportunity” to have their sentences reconsidered and that only in the rarest instances should young defendants serve life.

She said the data show a 50-year sentence would exceed the average life expectancy of prisoners. Federal sentencing guidelines consider anything beyond 30 years tantamount to life because of prisoners’ life expectancy trends, Kolinchak said.

“And so I think that (length of sentence) would just fly in the face of what the court says about a ‘meaningful opportunity.’ It’s not meaningful if you can’t live long enough to take advantage of it,” she said.

State Rep. Sherman Mack, R-Albany, and state Sen. Rick Ward III, R-Port Allen, chairmen of the committees likely to handle legislation related to the Montgomery ruling, could not be reached.

But state Rep. Joseph Lopinto III, R-Metairie, a member and former chairman of the House Criminal Justice Committee, said his fellow legislators are not that interested in seeing these hearings happen.

They know, he said, that many of their constituents would rather let defendants convicted of murder sit in prison for life. But he acknowledged the Supreme Court made its ruling and the Legislature would have to follow it.

Lopinto, whose committee handled the 2013 legislation in response to Miller, said it’s hard to know how long juvenile defendants should remain in prison before having a parole option.

“What’s the right number? I don’t know. What’s the right number if I’ve got an 18-year-old punk in front of me? He’s not going to be the same guy when he’s 35 or 40,” Lopinto said.

Public defenders in Ascension Parish had Lively’s petition for review under the Supreme Court’s Miller ruling held in abeyance while the Montgomery case was pending.

Lively is set for an April hearing, but 23rd Judicial District Public Defender Alan Robert said it likely will be some time before he or other defendants have their day in court.

“I think it’s more important that we go at it methodically and try to get all the evidence that we need before we try to request a hearing,” said Robert. “It’s not a sprint. It’s more like a marathon.”

Follow David J. Mitchell on Twitter, @NewsieDave.