Today, the Campaign for the Fair Sentencing of Youth (CFSY) promulgated its Trial Defense Guidelines: Representing a Child Client Facing a Possible Life Sentence, which is an exciting and much-needed publication detailing what is expected of attorneys who are representing children charged with the most serious offenses. These guidelines are a result of collaboration across a spectrum of stakeholders and represent the consensus that these cases, frequently called Miller cases, are similar to capital cases in terms of the required resources, expected skill-level, emphasis on mitigation advocacy and importance of representation. Prior to promulgation, CFSY sought and received endorsement of these guidelines from a broad range of organizations that are interested in civil rights, public defense, or child welfare, including NAPD.
In 2012, the United States Supreme Court reviewed two cases of people who were sentenced to life in prison without the possibility of parole for crimes committed when they were children. The children were 13-years-old and 14-years-old at the time of their offenses. 13-year-old Kuntrell Jackson was lookout for a robbery in which a store clerk was killed. 14-year-old Evan Miller allegedly participated in an arson death of a drug dealer. Both were given automatic life sentences without the possibility of parole with the trial courts having no discretion under state law to impose a lesser sentence. The Supreme Court found in Miller v. Alabama, 132 S.Ct. 2455, 183 L. Ed. 2d 407 (2012), that this sentencing scheme is cruel and unusual punishment and vacated their sentences. The court did not outright ban death-in-prison sentences, but found that the child must have an opportunity to present evidence and argument in favor of a lesser sentence and have a judge make the final decision and, significantly, that death-in-prison sentences should be rare, reserved for only the most serious of cases and considering the unique characteristics of the youth charged with the offense.

The decision in Miller was the latest of a string of cases from the United States Supreme Court that applied modern thinking about adolescent development to inform its ruling that it is inappropriate for children to be treated like adults in the criminal justice system. The Supreme Court has found that children are less culpable than adults for serious criminal activity because they are naturally more impulsive, have decreased appreciation of risk, and greater vulnerability to peer pressure; not because they are irredeemable criminals, but simply because they are children. These cases have direct application to the small subset of children in the criminal justice system, and have important implications for the hundreds of thousands who get caught up in the juvenile justice system nationwide every year.

Today, however, we focus on the few who face the greatest punishment the state can mete out on a child, the declaration that he will go to prison and stay there until the day he dies, even if that death is 80 years in the future, for an offense he may have committed before he reached puberty.|STAR| In Louisiana, we have approximately 300 people currently serving life-without-parole sentences for offenses committed when they were under 18 years of age. It was actually difficult to determine this, because no one in the state kept data on cases like this is an easily accessible form. To find out how many of our prisoners were there for life for offenses committed as children, someone needed to review the file of each person individually to find the offense date and the prisoner’s date of birth and do the arithmetic. I mention this to illustrate just how unprepared Louisiana was for Miller.

CFSY’s goal is to ensure that children receive effective and zealous representation. This is signaled from its Introduction to its document and is plainly laid out in the first sentence of Guideline 1.1, “The defense team must include a minimum of two qualified attorneys (‘defense counsel’), an investigator, a mitigation specialist, and, when appropriate, an interpreter.” To people familiar with criminal representation, this means that a Miller defense team bears a striking resemblance to a capital defense team. This is not an accident. Indeed, in Guideline 1.5 CFSY says, “The time and resources required in a juvenile life case are comparable to those of a capital case.” Indeed the Supreme Court itself likened these cases to death penalty cases:

·       “In part because we viewed this ultimate penalty for juveniles as akin to the death penalty, we treated it similarly to that most severe punishment.”
·       “And Graham [v. Florida] makes plain these mandatory schemes’ defects in another way: by likening life-without-parole sentences imposed on juveniles to the death penalty itself.”
·       “That correspondence – Graham’s treatment of juvenile life sentences as analogous to capital punishment – makes relevant here a second line of our precedents, demanding individualized sentencing when imposing the death penalty.” [internal quotes and citations omitted].

The Court sees the penalty as similar to the death penalty, and likened the individualized sentencing to that involved in death penalty cases as well. If the individualized sentencing is similar, then the process of getting to that individualized sentencing should be similar as well. Therefore proper representation of a juvenile faced with life in prison is very similar to death penalty representation. That means legal representation must be heavily resourced and mitigation must be vigorously pursued. The Guidelines acknowledge and embrace these principles.

While on one level representation of juveniles facing possible life imprisonment looks like capital representation, on another level it looks distinctly like zealous juvenile delinquency representation. Guideline 1.3 acknowledges that the legal team’s duty of loyalty is to the client and not the client’s caretakers. Guideline 2.1 calls for at least one attorney to have specialized training and experience representing children and “communicating with them in a trauma-informed and developmentally and age-appropriate manner.” These are typical standards for representation of children, which typically explicitly reject engaging in “best interest” representation against the expressed interest of the client and emphasize that communicating with an adolescent is a specialized skill.

The Guidelines blend the two forms of representation most intimately in the particulars of the mitigation investigation, detailed in Guideline 4.2, where they call for the investigation into the child’s life and history to include such factors as age, immaturity, impetuosity, ability to appreciate risks and consequences, and existence of and susceptibility to peer and/or familial pressure, among many others. These are watchwords for juvenile defenders, and mirror the language of Miller and its forerunners.

These Guidelines signal to courts and to practitioners that death-in-prison cases for juvenile clients involve substantially more than making the client’s mother cry on the witness stand and presenting a 90-second argument for a paroleable sentence. This representation is specialized, highly involved, resource intensive, and most importantly it is of overriding importance to the client and to the client’s loved ones requiring the utmost in skill and professionalism. It is also a wake-up call for those jurisdictions with a large number of these cases awaiting a final decision on retroactivity, which we know is coming. Right now, we in Louisiana have little idea of where we would find enough qualified defense teams to represent 300 people currently serving death-in-prison sentences for offenses committed as children in the event that the Supreme Court finds that the rule of Miller is to be applied retroactively to these cases, not to mention the added costs of providing this representation from within an already beleaguered public defender system in Louisiana. CFSY has issued a challenge for juvnile public defenders and juvenile public defense teams, and provided guidance to seize the opportunity to acknowledge the great importance of effective representation to the most vulnerable of our clients. These standards are a challenge which we must meet.  

·    Note: The use of the masculine pronoun is intentional. The overwhelming majority of “Miller” kids are boys.

NAPD proudly endorsed these Guidelines. You can read the Guidelines and related materials via the links below:
PDF of guidelines
PDF of executive summary
Page of endorsements
PDF of endorsements