Caselaw update: Lengthy and 'de facto life' juvenile sentences

The first few months of 2018 have seen a number of cases from state appellate courts on issues surrounding juvenile sentencing, many of them addressing lengthy or de facto life without parole sentences. Here are a few highlights from these recent opinions:

On March 9th, the Iowa Supreme Court overturned a 25-life sentence for a teenager convicted of homicide, continuing a long line of cases recognizing that kids are fundamentally different from adults and that the justice system should take their youth into account. In State v. Zarate, the court reaffirmed its prior holding that the vast majority of children should never be parole ineligible. In this case, it found that the sentencing court “allowed the circumstances of the offense to overwhelm its analysis” and that the judge had an improper predisposition to sentence Zarate to a mandatory minimum.

In a concurring opinion, one of the justices argued that because scientists have found that “the character of a juvenile offender is still being formed until the offender ages into the mid-twenties,” minimum sentences without parole eligibility “may constitutionally extend only as necessary to ensure complete character formation.” If at that point an offender can demonstrate maturity and rehabilitation, keeping them in prison “for purposes of incapacitation beyond that period is a purposeless and needless imposition of pain and suffering.” The opinion went on to say that because predicting the future and rehabilitation prospects of a child is “not possible with any degree of accuracy,” the constitutional approach is to abolish all mandatory minimum sentences for children and instead “allow the parole board to make periodic judgments as to whether a child offender has demonstrated maturity and rehabilitation based on an observable track record.”

In People v. Contreras, the Supreme Court of California overturned a 50-life sentence for a teenager who committed a non-homicide offense, finding the sentence unconstitutional under Graham v. Florida. The court reasoned that while the sentence does not completely foreclose the possibility of release before the end of the average person’s expected lifespan,Graham contemplated more than a short time outside of prison prior to death, but rather “a sufficient period to achieve reintegration as a productive and respected member of the citizenry.” As a prison term allowing for no possibility of release until well after age 60 would not allow for this reintegration, the court found that the sentence violated the 8th Amendment and sent the case back to the lower court for resentencing.

Finally, in New Mexico, the state’s highest court recently cited to the work of the CFSY in holding that Graham v. Florida’s requirement that youth convicted of non-homicide crimes be afforded a “meaningful opportunity for release” applies to lengthy term-of-years sentences for multiple offenses. Citing the remarks of James Dold, CFSY Advocacy Director, during a hearing on behalf of legislation which later banned JLWOP in Nevada, the court called on the New Mexico legislature to adopt legislation providing a parole eligibility timeline for children.

From the Desk of the Director: Black History Month

Dear friends,

As Black History Month draws to a close, we are particularly mindful of the devastating impact of the “superpredator theory,” a racially biased, scientifically deficient idea suggesting that black teenagers are hyper-criminal. This reactionary premise has shaped a generation of youth sentencing laws and contributed to a climate in which it is socially, culturally, and politically acceptable to sentence children to die in prison. The theory has been debunked, but its legacy remains as black youth are sentenced to life in prison without the possibility of parole at a per capita rate that is 10 times that of white youth, and its residue informs the rhetoric and policies throughout our country.

At the Campaign for the Fair Sentencing of Youth, we are confronting these disparities as part of our commitment to bring forth greater racial justice through our work. We seek to change our country’s laws, the narrative about young people who go to prison for serious crimes, and the perception that black children are criminals as early as preschool. We want to ensure that no child is ever sentenced to die in prison and that every child has an opportunity for a second chance, regardless of their race, socio-economic background or the crime of which they have been accused.

This is a huge job. Throughout our country’s history, racial animus and bias deeply imbedded in the very foundation of our criminal justice have led to significantly harsher penalties for African Americans accused of crimes than for whites charged with the same offenses. Children have been given no reprieve, whether Emmett Till, bludgeoned and drowned in Money, Mississippi, after he was accused of whistling at a white woman; George Stinney, executed at 14 in by the state of South Carolina (and exonerated decades later); or black teens today who face far stricter punishment and more frequent out-of-school suspensions than their white peers. Sentencing children to life without parole stands as another example of this injustice and highlights the ways that bias can influence science—which we are taught is impartial—and lead to tragic results.

In the early 1990s, academics, politicians, and the media responded with hysteria to upward blips in crimes committed by youth. They warned the country to brace for the rise of a new type of criminal: the superpredator. These “fatherless, godless” monsters would be primarily black teens, and they would kill and create terror with no thought of the consequences.

The predictions never came true, and the country saw historically low levels of crimes committed by youth. The superpredator theory was debunked, and its originator acknowledged he was wrong. But by then, the damage had been done. Responding to the crack epidemic, many states were already enacting harsh mandatory minimum sentences as part of what we now know as the failed “war on drugs.” Following the cry of pundits, they also made it easier to try and convict children as if they were adults. The result was that crimes that had previously been adequately handled in juvenile court now led to long sentences in adult prisons. The numbers of children serving life without parole increased exponentially, with the sentence ultimately imposed upon more than 2,500 children. Overall, approximately 70 percent of people serving JLWOP are people of color. African Americans comprise 60 percent of people with the sentence.

In recent years, court rulings and legislative reforms have created review opportunities for many of these individuals, some of whom have now spent decades in prisons for crimes committed before they could vote or enlist in the military. Throughout the country, many people told as children that they would die in prison are now going home and beginning new lives in free society. Yet, trends suggest that racial disparities persist in the resentencing phase.

This is a reminder that changing laws, while important, isn’t enough. We have to change the hearts and minds of elected officials and Americans. This is what we seek to do by centering the experiences and expertise of members of the Incarcerated Children’s Advocacy Network (ICAN) in our work.

We also are committed to telling the truth about race and racism, and we will do everything we can to eradicate it from the criminal and juvenile justice systems. We understand this is a huge task, but we also know that we are laboring alongside committed partners like you. The status quo simply isn’t good enough. The denial of Henry Montgomery’s parole last week, after serving 54 years in prison for killing a white law enforcement officer as a child, and being held up as a “model prisoner” by the United States Supreme Court, is just the? most recent—and devastatingly egregious—example of all the work left to be done.

So, as we look back during this Black History Month, we are also looking forward, redoubling our efforts to ensure that the value we place on our children’s lives, and the potential we see in them to grow and change, are not dependent on their race, but on their innate characteristics as children. There is no such thing as a throwaway child, and we are all better than the worst thing we’ve ever done. Thank you for standing with us to ensure our policies and practices reflect this truth.

Does your state still use life-without-parole sentences for kids?

The JLWOP population in the United States has dropped by roughly half since the U.S. Supreme Court decision in Montgomery v. Louisiana.

The JLWOP population in the United States has dropped by roughly half since the U.S. Supreme Court decision in Montgomery v. Louisiana.


26 states still have life-without-parole sentences for kids on the books and are using these extreme sentences in defiance of the U.S. Supreme Court directives in Miller v. Alabama and Montgomery v. Louisiana. Of the remaining 25 states and the District of Columbia, 20 and DC have banned the sentence, while four have no one serving.

States that ban life without parole as a sentencing option for children:

District of Columbia
New Jersey
North Dakota
South Dakota
West Virginia

Additional states that do not use the sentence:
New Mexico
New York
Rhode Island

Two years after Montgomery, progress and work to be done

On January 25, 2016 – two years ago today – the United States Supreme Court decided Montgomery v. Louisiana, giving hope and a chance for life outside of prison to individuals sentenced to life without parole for offenses committed as children.

When the Supreme Court decided Montgomery, over 2,600 individuals in the U.S. were serving juvenile life without parole (JLWOP), a sentence only imposed in the United States. In the two years since, seven states and the District of Columbia have banned JLWOP, and the number of individuals serving JLWOP has been cut in half, both through resentencing hearings and state legislative reform. Hundreds are coming home, and in fact, it was announced this week that former juvenile lifer Kempis Songster is going to the Super Bowl as a guest of Philadelphia Eagle Malcolm Jenkins.

On the other hand, many other juvenile lifers, including Mr. Montgomery himself, remain incarcerated and have not been given the meaningful opportunity for release that this decision promised. To illuminate some of this, we’ve created a snapshot that highlights both the progress we’ve made and the challenges that remain. It includes information about resentencings and state legislative accomplishments, portraits of juvenile lifers returning home, details about the uneven implementation of Montgomery, and recommendations for future reform. Read it in full here:


We could not have come so far in two years without your support. Thank you! We must continue the fight to ensure that no child is sentenced to die in prison and that those who have been see the relief they are due.

CFSY Honors Eric Holder, Lucy Lee Helm, Anita Colon, and Eric Alexander at Healing & Hope

THANK YOU, to all who made last night such a great success. We were so proud to host former U.S. Attorney General Eric H. Holder, Jr., Starbucks Chief Partner Officer Lucy Lee Helm and advocate Anita Colon as our honorees at last night’s Healing & Hope. They joined 300 of our supporters, youth advocates and formerly incarcerated individuals and their families at our sold out event.

Throughout the evening we had the opportunity to celebrate our successes and re-energize ourselves for the work still ahead in ending life without parole sentences for children.

We ended the evening with a little surprise, honoring our own staff member Eric Alexander in recognition of his years of hard work as a co-founder of the Incarcerated Children’s Advocacy Network (ICAN).  Eric was overwhelmed by the recognition, and by our secretly flying his wife and family into Washington DC for the evening.

With dozens of ICAN members in the room, we challenged our guests to raise an additional $25,000 to facilitate our hiring another ICAN member to our team in 2018.  We are thrilled to report that the crowd met our challenge!  We are grateful for the support and look forward to deploying these additional funds next year.

Healing & Hope is our opportunity to recognize the hard work and commitment that takes place year round. We could not do this work without you and your support. We can’t wait to see you at next year’s Healing & Hope!

About the Honorees

Former Attorney General Eric Holder has played an instrumental role in the justice system. In 2013 as part of the Obama administration, Mr. Holder spearheaded the Smart on Crime Initiative which began a comprehensive review of the criminal justice system. His dedication to criminal justice reform is further exemplified in his leadership of the Task Force On Children Exposed to Violence. Mr. Holder is now a partner at Covington & Burling, LLP.

Lucy Lee Helm currently acts as Starbucks’ Chief Partner Officer and has been instrumental in Starbucks’ work to ensure second chances for all kids. Ms. Helm and Starbucks are part of the 100,000 Opportunities Initiative, which aims to bridge the opportunity divide for the 4.9 million Americans, aged 16 – 24, who are out of school and not working. Starbucks’ commitment to working with underrepresented communities has been instrumental to our mission, especially as more men and women are leaving prison and in search of first jobs.

Anita Colon has been fighting and advocating for juvenile justice reform for over 27 years after her brother Robert was sentenced to life without parole at the young age of 16. Just two weeks ago, our staff was in attendance in Philadelphia as Robert was resentenced and made immediately eligible for parole. Anita has worked tirelessly every day of her brother’s incarceration on reforms that will not only impact his life, but the lives of so many others.

Eric Alexander is the co-founder of ICAN, Eric was incarcerated for ten years before being granted parole, and has been on our staff since April. Eric’s personal history and passion for youth justice reform has made him an indispensable voice in our movement to end this country’s most extreme sentences for children.

Featured photo and event photography generously provided by DCEventPhoto



California becomes 20th state to abolish life-without-parole sentences for children

Yesterday, Governor Jerry Brown (D) signed into law a bill that bans sentencing children to life without parole in the state of California. The sentence of life without parole for children is one that is only imposed in the United States. California joins 19 other states and the District of Columbia that have already abolished this draconian punishment, and five that do not use it. In 2012, just five states banned life without parole for youth – the addition of California quadruples that number and shows momentum toward an emerging national consensus against sentencing children to die in prison.

Senate Bill 394, which was sponsored by Senator Ricardo Lara, not only bans life-without-parole sentencing for youth but stipulates that those sentenced as youth are parole-eligible in the 25th year of their sentence.

“We are thrilled that the state of California continues to reform its laws to ensure that our children are treated with mercy by the criminal justice system, and that their unique potential for positive change is recognized,” says Elizabeth Calvin, Senior Advocate of the Children’s Rights Division at Human Rights Watch, who spearheaded efforts in support of this legislation. “We’ve taken the logical next step in terms of compliance with recent decisions of both the state and U.S. Supreme Courts, and have finally put into law what many states had previously embraced, that life without parole is excessive for adolescents.”

Influenced by recent U.S. Supreme Court decisions grounded in adolescent development research that held that children are “constitutionally different” from adults and should not be subject to the country’s harshest penalties, the nation has increasingly moved away from life-without-parole sentences for children. California was an early leader in its passage of SB 9 in 2012, which allowed children sentenced to life without parole to have their sentences revisited by a judge. This year, the California Supreme Court found that U.S. Supreme Court decision Miller v. Alabama (2012) required more protections than SB 9 provided.

SB 394 now ensures those those sentenced to life without parole as children have meaningful review like all other California youth. This is a crucial reform since California has the fourth largest population of youth sentenced to life without any possibility of parole or release.

“By banning life without parole for children, California policymakers affirmed that we are all more than the worst thing we have ever done,” says Jody Kent Lavy, executive director at the Campaign for the Fair Sentencing of Youth. “Adolescent development research affirms that children – even those who commit serious crimes – possess a unique capacity for change and rehabilitation. Rather than sentencing them to die in prison, we should hold children who commit serious crimes accountable in ways that account for their age at the time of the crime, relevant childhood experiences, and their capacity for change.”

Research has also shown that many children who commit serious crimes have experienced severe trauma in their own lives, and often do not have systems of support in place to help them process it. “Like many of the people serving these sentences, I experienced severe abuse and neglect as a child and joined a gang for a sense of family,” says Xavier McElrath-Bey, a formerly incarcerated youth and now Senior Advisor and National  Advocate at the CFSY.  “At age 13, I was responsible for the tragic death of another child.  I spent 13 years in prison.  I learned my lesson and grew into a remorseful adult. Today, at age 41, I am living proof that no child is beyond redemption, which is why youth should never be sentenced to die in prison.”

Major Associated Press series on life without parole for youth

The Associated Press published a major series on sentencing children to life without parole. Read some of the coverage below.

AP Investigation: A patchwork of justice for juvenile lifers

AP: Juvenile life ruling affects some with parole option

After Life Without Parole, Two Held for Decades Savor Freedom

A Victim, a Lawmaker, a Judge: Voices in Juvie Reform Debate

A victim turns reformer

The soon-to-be parolee

No life without parole in Hawaii for those younger than 18

Ruling on minors’ life sentences has little Kansas impact

North Carolina
Dozens in North Carolina await review of no-parole sentences

5 former teen offenders free in Nevada after changes in law

Pennsylvania grapples with new sentences for juvenile lifers

Vermont law already prohibits juvenile life without parole

New Washington D.C. law provides review opportunities!

Legislation recently passed by the D.C. Council will provide review opportunities to hundreds of people sentenced as children in Washington, D.C. to extreme prison terms. The Campaign for the Fair Sentencing of Youth worked closely with the Council and a coalition of local organizations to pass this legislation.

Because the District of Columbia does not maintain a prison system, these individuals are serving in federal facilities throughout the country. Incarcerated individuals must undertake specific actions in order to take advantage of this review opportunity.

Overview of and eligibility information for the Comprehensive Youth Justice Amendment Act of 2016 (“the Act”)
Request an attorney for representation during resentencing
Read the full text of the bill

CFSY attends 100,000 Opportunities Initiative Opportunity Fair in Dallas

CFSY staff members Xavier McElrath-Bey (left), Eric Alexander (second from right) and Jody Kent Lavy (right) pose with former US Attorney General Eric Holder and panelist Kimberly Pham (more about her here) at the Dallas Opportunity Fair in May 2017. Put on by the 100,000 Opportunities Initiative and sponsored by Starbucks, FedEx and JC Penney, the fair resulted in 700 job offers being made to opportunity youth (ages 16-24) on the spot. This initiative will travel to Washington, DC in the fall.

North Dakota bans life-without-parole prison sentences for children

Bismarck, North Dakota, April 20, 2017 – North Dakota Governor Burgum, (R), has signed into law HB 1195, making North Dakota the 19th state to ban these death-in-prison sentences for children. The sentences also are not allowed in the District of Columbia.


HB 1195 ensures that no child in North Dakota will be sentenced to die in prison without hope of a second chance. The bill provides individuals who were convicted of serious crimes as children the opportunity to petition the court for judicial sentencing review to demonstrate they are deserving of a second chance after they have served 20 years.  Staff from the Campaign for the Fair Sentencing of Youth (CFSY) worked closely with State Representative Klemin (R), the bill’s sponsor, and other legislators to ensure HB1195 passed the North Dakota state legislature unanimously with broad bi-partisan support.


“HB 1195 is about hope, redemption, and holding our children accountable for serious crimes they commit in more fair and age-appropriate ways, while protecting public safety,” said Representative Lawrence R. Klemin, (R-Bismarck).  “This bill reflects our understanding that even children who commit serious crimes are capable of change.  I introduced this bill to give hope to those children who do change, so that they may have the opportunity to demonstrate to a judge that they are deserving of a second chance.”


Influenced by recent U.S. Supreme Court decisions grounded in adolescent development research holding that children are “constitutionally different” from adults and should not be subject to the country’s harshest penalties, the nation has increasingly moved away from life-without-parole sentences for children. In five years, the number of states that ban sentences of life in prison without the possibility of release for children has nearly quadrupled to a total of 19 plus the District of Columbia. This includes North Dakota’s neighboring states of Montana and Wyoming. An additional four states ban life-without-parole sentences for children in most cases. North Dakota and Arkansas both passed legislation on the issue this year.


“This victory in North Dakota reflects the recent groundswell of support for abolishing death-in-prison sentences for children,” said Jody Kent Lavy, executive director at the Campaign for the Fair Sentencing of Youth. “Most importantly, it brings hope to those told as children they were worth nothing more than dying in prison.”


Research by the Sentencing Project has shown that most children sentenced to life without parole have suffered extreme trauma and abuse. More than 80 percent of these youth witnessed violence in their homes and neighborhoods on a regular basis. More than 50 percent of boys and 80 percent of girls were physically abused; More than 20 percent of boys and 77 percent of girls were sexually abused.


“Like many of the people serving these sentences, I experienced severe abuse and neglect as a child, and I eventually joined a gang for a sense of family,” said Xavier McElrath-Bey, who was incarcerated as a child and now serves as senior advisor and national advocate at CFSY.  “At age 13, I was responsible for the tragic death of another child.  I spent 13 years in prison.  I learned my lesson and grew into a remorseful adult. Today, at age 41, I am living proof that no child is beyond redemption, which is why youth should never be sentenced to die in prison.”


“Every day within the Department of Corrections and Rehabilitation we see people who turn their lives around in prison, in spite of the obstacle of incarceration,” said Leann Bertsch, director of the North Dakota Department of Corrections and Rehabilitation. “Kids can and do grow up; and as they develop, they change. None of us are the same at 50 as we were at 16. Providing the possibility for judicial sentencing review decreases the likelihood of continued violent behavior behind bars and provides incentives to engage in meaningful rehabilitative programs so as to be considered more favorably by the sentencing court.”


In addition to giving people sentenced to life without parole the ability to have their sentences reviewed, the North Dakota bill will allow any child sentenced to more than 20 years the opportunity for a possible sentence reduction. As a result, all North Dakota children who commit crimes will now have the opportunity to prove their capacity for change and that they are deserving to re-enter and live in free society.