Length of life sen­tence com­pli­cated ques­tion for court

Centre Daily Times - - Front Page - BY SA­MAN­THA ME­LAMED

PHILADEL­PHIA What’s the mean­ing of “life?” That’s a ques­tion Penn­syl­va­nia’s high­est court will pon­der Wed­nes­day, as it fol­lows other courts around the coun­try in grap­pling with the ques­tion of how many years in prison con­sti­tute a life sen­tence.

And how could such a thing even be cal­cu­lated? By con­sult­ing ac­tu­ar­ial ta­bles to as­sess life expectancy? By ref­er­enc­ing the na­tional age of re­tire­ment? Or by gaug­ing the chances of com­ing home with some qual­ity of life re­main­ing?

More specif­i­cally, the ques­tion be­fore the court is: Is 50 years a life term?

That’s the min­i­mum sen­tence a Philadel­phia court im­posed on Michael Felder, whose ap­peal is now be­fore the Penn­syl­va­nia Supreme Court. Felder was 17 years in old in 2009 when he re­acted to a dis­pute dur­ing a two-on-two bas­ket­ball game by re­triev­ing a semi­au­to­matic hand­gun and us­ing it to strike one of his op­po­nents and fa­tally shoot the other, teenager Jar­rett Green.

The U.S. Supreme Court in 2012 ruled that au­to­matic life­with­out-pa­role terms for mi­nors are un­con­sti­tu­tional, ef­fec­tively over­turn­ing the sen­tences of more than 500 in­di­vid­u­als across Penn­syl­va­nia and about 300 in Philadel­phia, which was home to more ju­ve­nile lif­ers than any other ju­ris­dic­tion. In re­sponse, state law­mak­ers set new manda­tory min­i­mums for ju­ve­niles con­victed of mur­der, rang­ing from 20 years to 35 years


de­pend­ing on the age and clas­si­fi­ca­tion of the of­fense. And the state Supreme Court, in re­sponse to the hun­dreds of post­con­vic­tion pe­ti­tions flood­ing in, set new rules: to re-im­pose life with­out pa­role for a ju­ve­nile, pros­e­cu­tors would have to show that the of­fender was ir­re­deemable, in­cor­ri­gi­ble and “ir­repara­bly cor­rupt.”

For Felder to be sen­tenced to de facto life with­out such a find­ing — that would be an il­le­gal sen­tence, ac­cord­ing to his lawyers.

In fact, all sides in the case seem to agree that 50 years is in­dis­tin­guish­able from life with­out pa­role. But Felder’s ad­vo­cates, from the De­fender As­so­ci­a­tion of Philadel­phia and Ju­ve­nile Law Cen­ter, ar­gue that it would have to be rolled back to 20 to 25 years to con­sti­tute a non­life sen­tence. The Philadel­phia Dis­trict At­tor­ney’s Of­fice puts for­ward 40 years as a more ap­pro­pri­ate bench­mark.

“Life in prison with­out the pos­si­bil­ity of pa­role gives no chance for ful­fill­ment out­side prison walls, no chance for rec­on­cil­i­a­tion with so­ci­ety, no hope,” the U.S. Supreme Court wrote in the land­mark case Gra­ham v. Florida.

So, ju­ve­niles who are re-sen­tenced, Philadel­phia pub­lic de­fender Bradley Bridge ar­gues, “need to be re­leased in time to achieve those goals.”

That, he said, is why he re­jects the idea of re­leas­ing peo­ple at the age of re­tire­ment, in their 60s.

“When you or I re­tire at our age of re­tire­ment, we have al­ready had a lifetime to get to that point. We’ve had an op­por­tu­nity for rais­ing a fam­ily, for ca­reer, for ed­u­ca­tion — so when we re­tire at age 65, there is a lot that pre­ceded that 65. Th­ese peo­ple get­ting out of prison at 65 have not had th­ese op­por­tu­ni­ties at all,” he said.

Philadel­phia Dis­trict At­tor­ney Larry Kras­ner changed course from the pre­vi­ous ad­min­is­tra­tion, which op­posed Felder’s pe­ti­tion for re­view by the Supreme Court, in agree­ing with Bridge that some prison terms do clearly con­sti­tute de facto life sen­tences, also known as vir­tual life sen­tences. (“Peo­ple die, and they die in less than 100 years,” he said.)

But Kras­ner, who be­came a prose­cu­tor in his mid 50s af­ter a life­long ca­reer as a de­fense at­tor­ney, ar­gues that any sen­tence un­der 40 years still af­fords the op­por­tu­nity to start over and have a mean­ing­ful life out­side prison. “I’m 58. I don’t think my life was over when I was 42.”

He notes that 25 years — far from be­ing an unusual or ex­treme sen­tence — is a com­monly ne­go­ti­ated num­ber for first-de­gree mur­der in Penn­syl­va­nia. Many of the city’s re­sen­tenced ju­ve­nile lif­ers agreed to terms be­tween 20 and 30 years in prison.

“Our pri­mary fo­cus is what does any mean­ing­ful life out­side prison walls mean? As much as any bright line can, we think 40 is a de­cent, fair bright line,” he said.

Else­where in the coun­try, courts and leg­is­la­tors that have ad­dressed the ques­tion have come up with a range of num­bers (and some have al­to­gether re­jected the idea that de facto life sen­tences for ju­ve­niles are il­le­gal). Law­mak­ers in Cal­i­for­nia, Louisiana, Florida and else­where have drawn the line at 25 years; Ne­vada, North Dakota and Wash­ing­ton, D.C., put it at 20 years; and Delaware set the cut­off at 30 years.

Felder’s ad­vo­cates, in­clud­ing Mar­sha Le­vick of Ju­ve­nile Law Cen­ter, ar­gue that those laws re­flect an emerg­ing stan­dard around the coun­try that the court should take into con­sid­er­a­tion.

Le­vick her­self is reluc­tant to state a num­ber. “It’s not about quan­tity of years; it’s about qual­ity of life,” she said.

Yet, it’s hard to imag­ine set­tling the ques­tion with­out one. And un­til that num­ber is iden­ti­fied, it re­mains un­clear how wide­spread the im­pact of the court’s de­ci­sion will be. Just a hand­ful of ju­ve­nile lif­ers have been re­sen­tenced to terms longer than 50 years, but many more will be af­fected if the court finds terms over 25 years to be de facto life sen­tences. Not only could such a rul­ing re­quire dozens of in­di­vid­u­als to be re-sen­tenced for a sec­ond or third time, but it would also over­turn the cur­rent sen­tenc­ing statute for ju­ve­niles con­victed of mur­der, forc­ing a new de­bate in the leg­is­la­ture.

Ad­di­tion­ally, a num­ber of cases have been placed on hold pend­ing the out­come of Com­mon­wealth v. Felder.

One is that of Michael Foust, who shot and killed two peo­ple in a drive-by shoot­ing in Oil City, Pa., in 1993, when he was 17 years old. Foust was re­sen­tenced to two terms of 30 years to life, run­ning con­sec­u­tively — a notable de­par­ture from sim­i­lar cases in Philadel­phia where ju­ve­niles who killed two or even three peo­ple were sen­tenced to con­cur­rent prison terms, mak­ing them eligible for pa­role in half the time. Le­vick is ar­gu­ing that the cu­mu­la­tive 60-to-life sen­tence is also a de facto life term.

Le­vick ac­knowl­edges there’s a need for ac­count­abil­ity, for pay­ing a debt to so­ci­ety. But she ar­gues that, in wait­ing to re­lease peo­ple un­til they’re el­derly, it’s so­ci­ety that ends up pay­ing: “I think there is a very real so­cial and eco­nomic cost to re­leas­ing this co­hort later in life, be­cause they have no skills or re­sources to fall back on.”

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