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A chance at freedom, barely

Louisiana State Penitentiary, otherwise known as “Angola,” where Henry Montgomery resides

A chance at freedom, barely

71-year-old Henry Montgomery has been in prison for over 50 years for his role in the shooting death of East Baton Rouge sheriff’s deputy Charles Hurt. But he now has a chance to see the free world. The petitioner in the U.S. Supreme Court case Montgomery v. Louisiana, which gave hope to thousands of people who thought they had no chance at redemption, finally received a parole-eligible sentence in July. He plans to apply for parole this year.

In Montgomery v. Louisiana, the Supreme Court held that Miller v. Alabama — which made automatic life-without-parole sentences for juveniles illegal — was retroactive. As a result, thousands of people sentenced to die in prison now have the opportunity to demonstrate to a court that they are not, in fact, “irreparably corrupt” and are capable of redemption.

Montgomery’s early life is a textbook example of the people who are facing resentencing after decades in prison — sentences that exceed what most adults convicted of murder receive. According to filings by Montgomery’s attorney, Montgomery had a childhood filled with physical abuse and neglect. His IQ at the time of his 1969 trial was estimated to be in the 70s. Since his time in prison, Montgomery has been a model inmate. The judge presiding over his resentencing, citing the recent changes in the law, begrudgingly agreed that Montgomery was not “irreparably corrupt.”

Hillar Moore, the current elected District Attorney for East Baton Rouge Parish, did not take a position during the hearing, instead focusing on the impact on the victim’s family. At the time of the Montgomery v. Louisianadecision, Moore told a local news program, “Disappointed by the decision, respect the decision, will follow the decision obviously, there will be no appeal to this decision.” Moore than added his concern that 17-year-olds would somehow commit more murders and serve shorter sentences in juvenile facilities. (Notably, Moore’s stated concern is not the actual holding of Montgomery, which simply held that most juveniles should be eligible for parole, not released after a short juvenile sentence.)

Moore’s fear-mongering gobbledygook is hardly surprising. Both the court and the district attorney were forced to follow the law, but they did so as half-heartedly as possible. This resistance is shared by other prosecutors across the state. Earlier this year, the Louisiana District Attorney Association blocked a recommendation that would have given all juveniles a chance at parole after 30 years (along with other basic reforms) which would have saved the state money and complied with the Supreme Court’s rulings.

And the state has continued to sentence juvenile offenders to life-without-parole: out of 23 eligible cases, Louisiana DAs have obtained life-without-parole sentences for 18 of them, a high rate considering that the sentence is supposed to be reserved “for all but the rarest of juvenile offenders.” Adding to the many challenges for those seeking a shot at freedom, attorneys assigned to represent individuals like Montgomery have limited resources; no additional funds were allotted for these time-consuming and costly investigations.

All of which is a disturbing portent for the sentencing outcomes for the nearly 300 inmates who are serving life without parole sentences for crimes they committed as teenagers in Louisiana (a number which is the third highest in the nation after Pennsylvania and Michigan).

Twenty states have already decided that life-without-parole sentences for juveniles just don’t make sense and have eliminated them; another 14 have almost no one serving the sentence. As Louisiana and other states contend with the shifting legal landscape, people like Montgomery may finally have a chance to see the world without bars.

Thanks to Jake Sussman.

Special prosecutor requested in Indianapolis police shooting

Special prosecutor requested in Indianapolis police shooting

The family of an Aaron Bailey, an unarmed black man killed by police in Indianapolis, are asking for a special prosecutor to investigate the case.

Family members argue that Marion County Prosecutor Terry Curry has a conflict of interest and cannot fairly assess the culpability of Indianapolis Metropolitan Police Officers Michal P. Dinnsen and Carlton J. Howard.

“We felt that there was a close relationship between the prosecutor and IMPD, so we wanted someone who hasn’t worked as closely with IMPD to kind of take a look and give a fair analysis of the case,” said Bailey’s sister, Kimberly Brown, in an interview with

The officers pulled Bailey over for a traffic stop on June 29 and then engaged in a high speed chase with Bailey until his car crashed into a tree.

Police then got out of their vehicle and shot and killed Bailey.

The shooting of Bailey has frustrated the minority community in Indiana’s largest city, and Police Chief Bryan Roach has responded to Bailey’s death by promising transparency and change. The investigation is still ongoing and Curry’s office declined to comment on the family’s request that his office be recused.

Roach has asked the FBI to conduct an independent review of the shooting. Indianapolis Mayor Joe Hogsett has also announced police will go through implicit bias training and reevaluate their use of force policies.

Roach has said he does not know what happened that led the two police officers to shoot, and he is also not aware if reports that Bailey reached down into his car at some point before being shot are correct.

The information on the investigation will likely go directly to Curry’s office, who will decide whether or not to file charges—unless he decides to recuse himself. The family is also considering filing a civil lawsuit against the police and the city.

According to the Indianapolis Star, “Many members of the city’s black community say they are cautiously hopeful, but they also remain skeptical. They have seen this before in the aftermath of police shootings of black men — the concern and condolences, promises of transparency, talk of systemic change.”

Police shootings, particularly of unarmed black men, have repeatedly made national news in the last few years. Most of the time prosecutors have declined to prosecute police, such as in the case of Darren Wilson, who was not indicted for the killing of Michael Brown in Ferguson, Missouri.

On the rare occasions that prosecutors do charge, convictions often don’t happen. There have been acquittals, like in the killing of Philando Castile in Minneapolisor juries deadlock like the case of Samuel Dubose, who was shot by Ray Tensing in Cincinnati.

In both instances the officers involved ended up going free.

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The next frontier of discriminatory sentencing

Photo by Flickr user MR

The next frontier of discriminatory sentencing

Implicit bias in the criminal justice system is a very hot topic these days, as it should be in a system where unjustified racial disparities persist. This past April, my co-authors and I published an article, Judging Implicit Bias: A National Empirical Study Of Judicial Stereotypes, which looks at implicit bias in sentencing by federal and state court judges. It was just the second published article about the role of implicit bias in sentencing by trial judges, and the first focusing on federal judges. Unlike much of the existing research on implicit bias in the criminal justice system, we decided not to study Black-White racial disparities, but instead that of so-called “privileged minorities”: Asians and Jews. We unearthed troubling findings of implicit bias in the length of sentencing in a white-collar fraud scenario. We also found that trial court judges had greater implicit bias than members of the public.

It is important for everyone who plays a role in the justice system, including judges, to read and understand the now substantial body of research on how implicit bias can infiltrate criminal law and procedure. There are also great subject specific articles on implicit bias in criminal law. For example: On jury selection, see Unraveling the Gordian Knot of Implicit Bias in Jury Selection; on prosecutors, see The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion; on defense lawyers, see Implicit Racial Bias in Public Defender Triage; on the evaluation of evidence, see Forgotten Racial Equality: Implicit Bias, Decision-Making and Misremembering; on theories of punishment, see Systemic Implicit Bias; and on policing, see Police Efficiency and the Fourth Amendment.

In the remainder of this post, I look beyond skin tone bias alone to implicit bias with respect to Afrocentric facial features and skin tone, which I recently wrote about in an essay called The Implicit Racial Bias in Sentencing: The Next Frontier. In that piece, I discussed several studies that indicate that with all sentencing factors equalized for sentencing purposes through regression analysis, offenders with greater Afrocentric facial features and darker skin tone receive longer sentences. In an upcoming article, Looking Criminal and the Presumption of Dangerousness: Afrocentric Features, Skin Tone, and Criminal Justice, 51 U.C. Davis L. Rev. (forthcoming February 2018) (soon to be added to my SSRN page), my co-author, Victoria Plaut, and I examine the origin and history of race bias in the United States based on Afrocentric facial features and skin tone. Here is the tentative abstract for this article:

Social psychologists have established that faces of Black males trigger thoughts of violence, crime, and dangerousness and thoughts of crime trigger thoughts and images of Black males. This presumption of dangerousness increases with darker skin tones (colorism) and greater Afrocentric facial features. We examine the history of the stereotype of Blacks and crime, violence, and dangerousness arising in the United States from the time of slavery. We focus on the historical development of this stereotype through a lens of history, literature, pseudo-science, emerging neuroscience, media distortion of crime reporting, and the development of the Negro-ape metaphor. We then look beyond the Black-White race dichotomy to explore the evolving social science between the increased length of criminal sentences and colorism and Afrocentric facial features. We further explore the social science supporting the presumption of dangerousness and conclude with recommendations to help ameliorate this problem that permeates the American criminal justice system.

In order to rectify the disparate sentencing that exists due to implicit biases, whether those biases are based on skin tone or facial features, lawyers and judges need to familiarize themselves with the research that currently exists — which, to be sure, is only the beginning. Biases against certain facial features and skin tones can and likely do affect the bail process, plea bargaining negotiations, and myriad other discretionary decisions in the criminal justice system.

Mark W. Bennett is in his 23rd year as a U.S. District Judge in the Northern District of Iowa and a frequent critic of unjust sentencing. The views and opinions expressed in this article are Judge Bennett’s and do not necessarily reflect the views of the Fair Punishment Project.

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