Editorial counterpoint: What's missing from sentencing talk: redemption

In "Go slow on review of life terms for teens" (editorial, Feb. 1) the Star Tribune Editorial Board discussed the U.S. Supreme Court's recent decision in Montgomery vs. Louisiana, which made eligible for relief more than 2,100 individuals across the country who were sentenced to life in prison without parole as juveniles. The editorial was right about several things. The Editorial Board correctly concluded that this ruling gives eight Minnesotans sentenced as children to die in prison a future chance at release. It is also true that the Supreme Court based its conclusion on two decades of advances in neuroscience that have confirmed what every parent knows — that adolescents are far more impulsive, more likely to engage in risky behavior and more susceptible to peer pressure than adults.

The Editorial Board is also correct that the offenses committed by nearly every offender who stands to benefit from the Supreme Court's decision are extremely serious. It bears emphasizing that those who have never lost a loved one to homicide cannot begin to fathom the pain that victims' families have endured, and no one on any side of this issue should attempt to minimize the gravity of their loss.

But the Editorial Board is simply wrong when it says that Minnesota has reserved life without parole for "the most heinous juvenile crimes." The law under which these eight juveniles were sentenced was enacted in the 1990s, during an era when every state in this country was vying to be "tough on crime" and adolescent brain science was still in its infancy. Far from allowing judges to weed out the "worst of the worst," this law removed from our courts every shred of sentencing discretion.

If a juvenile was tried as an adult — which was automatic for anyone 16 and over if the underlying offense was homicide — and convicted of first-degree murder, the sentence of life without parole was mandatory. A judge was not allowed to take into account the juvenile's age, his role in the offense or the likelihood that he could one day be rehabilitated.

Had these factors been considered, the sentences of some of the juveniles identified in the editorial might have been different. Take, for example, Brian Flowers, whose case was highlighted by the Editorial Board. It is true that Flowers has never acknowledged a direct role in the murders. What the editorial did not say, however, is that the physical evidence tends to support Flowers' claim — so much so that the Minnesota Supreme Court noted on appeal that "there is much less evidence that Flowers participated in the overt acts of murdering [the victims]," and, as a result, the case is "one of the more difficult sufficiency of the evidence cases we have faced."

Minnesota is in a better position than most states to revamp its unconstitutional sentencing provision and review these infirm sentences. While states such as Pennsylvania, Michigan and Florida have hundreds of cases to consider, Minnesota has just eight. Yet, in each of the last three years, bipartisan legislation proposed by the Minnesota Juvenile Justice Advisory Committee, which would fix state law, has failed to make significant progress.

In the interim, 23 other states have revised their laws to comply with the Supreme Court's mandates. Nine states have abolished juvenile life without parole altogether, and several have devised new schemes that allow juvenile lifers a meaningful chance at release. West Virginia, for example, now makes every child sentenced in adult court eligible for parole after 15 years, and Nevada grants periodic review after 20 years. These time frames were likely informed by a startling statistic uncovered in a recent Michigan study — the average life expectancy of a juvenile lifer is 50.1 years.

Finally, the Editorial Board did not discuss what politicians as diverse as Pat Nolan, Newt Gingrich and President Obama have called one of the strongest arguments for review — the possibility of redemption. In a series of commentaries, Nolan and Gingrich emphasize that "research shows juvenile offenders are particularly malleable and capable of transformation. … Having entered as directionless kids, many are now redeemed men and women ready to contribute to the community — rather than be a draw upon it."

What is at stake here is not automatic release, but whether these juveniles should be provided with the possibility of release after serving lengthy sentences. Refusing to review their sentences is tantamount to concluding that there is no conceivable piece of information between their sentencing and death that could bear on the punishment they deserve — no matter how much they have been transformed behind bars, and no matter how unrecognizable they are from their former selves.

In our view, this is simply not a conclusion we can ever make about a child — no matter what he has done.

Bradford Colbert is director of Legal Assistance to Minnesota Prisoners at the Mitchell Hamline School of Law. Perry Moriearty is an associate professor at the University of Minnesota Law School. John Stuart is a former Minnesota state public defender. William M. Ward is Minnesota state public defender.