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Alice Marie Johnson is free. Now it’s time to free thousands more prisoners with unjustly long sentences.

Kim Kardashian's successful campaign to free a 63-year-old grandmother serving a life sentence in a drug case is a reminder that we need to go big on clemency. A 52-year-old grandfather named Euka Wadlington, also doing life in a drug case, would be a great place to start.

Euka Wadlington holds his grandson in his lap.

Alice Marie Johnson is free. Now it’s time to free thousands more prisoners with unjustly long sentences.

Kim Kardashian's successful campaign to free a 63-year-old grandmother serving a life sentence in a drug case is a reminder that we need to go big on clemency. A 52-year-old grandfather named Euka Wadlington, also doing life in a drug case, would be a great place to start.


I’m so glad that Alice Marie Johnson’s sentence was commuted and she was released from prison last week. No buts here. I’m just glad.

It’s fundamentally outrageous that any nonviolent first-time offender ever received a prison sentence of life without the possibility of parole. It’s gross. It’s excessive. It’s deeply inhumane.

It’s also very, very normal and very, very American.

Alice Marie Johnson is not an aberration or an exception. The United States became the incarceration nation—locking up more people than any country in the world—by doing some version of what it did to Johnson to hundreds of thousands people. Alice Marie Johnson happened to have fierce advocates and a viral video that caught the attention of Kim Kardashian, whose famous husband, Kanye West, just happened to profess his love for President Trump in the weeks before her sentence was commuted.  Most men and women who are languishing for far too long in one of America’s nearly 2,000 prisons don’t have the serendipity of those circumstances.

No other developed nation sentences nonviolent offenders to life without the possibility of parole. In fact, most nations have even removed such harsh sentences for violent offenders. Indeed, if we’re really going to come to grips with mass incarceration we need to address sentencing for violent offenders as well. “The distinction between violent and nonviolent crime is not always meaningful,” Kevin Ring of Families Against Mandatory Minimums wrote recently. “Our federal sentencing laws are punitive, especially in a system without parole; ‘career offender’ is a scary term that doesn’t always fit.”

Long sentences, especially life sentences, can be a de facto death sentence without the lethal injection. Instead of strapping someone to a gurney and injecting them with poison, our nation aims to incarcerate some people until they die of disease or old age, well after they age out of committing crime. That such a sentence is not deemed cruel or unusual should tell you everything you need to know with what this nation has normalized.

In April 2014, when President Barack Obama’s administration announced a comprehensive clemency initiative for federal inmates, Attorney General Eric Holder stated that he expected at least 10,000 men and women would qualify. In the three years they had to administer the program, it was a slow, under-resourced mess in which 7,881 of the applications were never reviewed, and 8,880 people never received an answer at all.

To be granted clemency under the Obama initiative, prisoners had to meet the following six criteria:

  • They are serving a federal sentence in prison and, by operation of law, most likely would have received a substantially lower sentence if convicted of the same offense(s) today.
  • They are nonviolent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels.
  • They have served at least 10 years of their sentence.
  • They do not have a significant criminal history.
  • They have demonstrated good conduct in prison.
  • They have no history of violence before or during their current term of imprisonment.

Alice Marie Johnson, of course, met all six of those criteria and for some unknown reason the Obama administration didn’t commute her sentence. The same is no doubt true for thousands and thousands of other men and women.

I think I know at least part of what is at play here. Obama and his team, particularly at the Department of Justice, perhaps thought they were going to be passing the baton to a Hillary Clinton administration that would be keeping much of Obama’s DOJ team in place. Several families impacted by police brutality, particularly that of Eric Garner, told me that they received promises from Holder, Loretta Lynch, and even Obama himself that their federal cases would be closed before the end of his term. The family of Alton Sterling in Baton Rouge told me the very same thing. At first, the administration had a year left, then six months, then three – and it became clearer that the Obama administration had no intention of finishing those cases. Before she died, Erica Garner told me that DOJ officials told her that if they didn’t get to it, they would make sure the new team did.

Now Trump and Attorney General Jeff Sessions are at the helm of that new team.

While it’s a beautiful thing that Alice Marie Johnson’s sentence was commuted, Obama did so for 1,696 people. At his current pace, Trump might commute 10 sentences before his term is up. According to “The Mercy Lottery,” a new report from the Center on the Administration of Criminal Law at NYU Law School, approximately 36,000 people sentenced to federal prison sought clemency from Obama.

If Trump really wants to outdo Obama, this is his big chance. Recently Trump said he wants NFL players who took a knee in protest of racial injustice to submit names of the men and women they would like to see pardoned or get their sentences commuted.

Frankly, I don’t think we’re talking about a short list of names that needs to be submitted but instead perhaps tens of thousands of names. All the names can be submitted, of course, but Trump must fund and form a credible task force to work through each case much more efficiently than the Obama administration. While the task force can certainly lean on the criteria that Obama used, instead of requiring all six criteria be met for a sentence to be commuted, the group should consider requiring just some of them.

But even if the administration does stick to requiring all six guidelines, thousands and thousands men and women meet them and are simply waiting to receive clemency.

Emotionally, it’s easier for people in power to ignore numbers than it is for them to ignore names and stories. So when we say thousands of people deserve clemency, it has nowhere near the impact of saying their names, showing their photos, sharing videos, and making them completely human.

Alice Marie Johnson became human for millions of Americans when we saw a video of her telling her story behind bars. That story eventually gripped Kim Kardashian and she just so happened to have enough influence and access to share the story with Donald Trump. Just in case this is how we’re going to be forced to get commutations, I must tell you about a brilliant man named Euka Wadlington who should have been freed from prison many years ago.

It’s genuinely one of the most despicable stories of injustice I’ve ever heard. In 1998, unbeknownst to Wadlington, a former friend was working undercover for the Drug Enforcement Administration. For months, this man hounded Wadlington, a Chicago-area resident, asking him to sell drugs with him. For months, Wadlington told him no and that he had left that lifestyle behind. He had gotten a job in construction and had started a family.

Let me pause right there.

It’s gross that our government is in the business of sending former friends to vulnerable people to beg them to sell drugs. This is not real. It’s a fabricated scenario playing on the emotions and financial needs of a person. Eventually, Wadlington relented. He owed the man money from a previous car wash venture and decided he could potentially use the deal to repay the debt.

When Wadlington showed up at a hotel near Chicago’s Midway Airport for the drug deal, it was all a ruse set up by the federal government. He didn’t even have any drugs or guns when he was arrested. All he had was $1 in his wallet. But because he showed up for the fake deal, he committed a federal offense.

Wadlington’s trial in federal court during the spring of 1999 was equally unjust. Because he was never caught with any drugs, federal prosecutors relied entirely on the testimony of his alleged co-conspirators as well as others involved in the local drug scene to establish his guilt. Relying on such witnesses instead of concrete evidence like seized drugs seemed risky at first. One prosecution witness was so dishonest that Wadlington’s attorney asked him, in open court, “Do you make this up as you go along?” Another witness admitted on the stand that she lied when she told federal investigators that she had seen Wadlington package cocaine into resealable plastic bags.

But, I kid you not, when it was all over, a jury convicted Wadlington and a federal judge handed down two sentences of life without the possibility of parole.

Euka Wadlington with his GED students.

For nearly 20 years, our federal government has spent millions of dollars keeping Wadlington, who is now 52, behind bars. He’s not had an incident report in his entire sentence in the federal Bureau of Prisons. Family members have died. Like Alice Marie Johnson, his kids have now had kids. And somehow, maintaining hope, Wadlington has used the time to better himself, accumulating dozens of awards and training certificates, including GED instructor and re-entry mentor.

Here we are with a man who was sentenced to life in federal prison in a drug case for not actually selling drugs, but for trying to.

The Obama administration should have granted Euka Wadlington clemency and set him free. But it did not. Here’s hoping that the Trump administration can right this wrong and, strange as it sounds, perhaps do for thousands of others what should have already been done.

Bail Reform: Explained

Illustration by Hisashi Okawa

Bail Reform: Explained


In our Explainer series, The Justice Collaborative lawyers help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines — like bail, civil asset forfeiture, or the Brady doctrine — so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.

In San Francisco, 64-year-old Kenneth Humphrey spent a year in jail, held on a $350,000 bond he could not pay, after being accused of entering a man’s home and stealing $7 and a bottle of cologne. In setting Humphrey’s bail amount, the trial court made no inquiry into his ability to pay or any alternatives to cash bail, but instead relied on California’s preset bail schedules.

In January, he experienced hope after the California Court of Appeals granted him a new bail hearing and ordered the judge must consider Humphrey’s ability to pay. In powerful language, the court wrote: “[T]he problem this case presents does not result from the sudden application of a new and unexpected judicial duty. … [I]t stems instead from the enduring unwillingness of our society, including the courts . . . to correct a deformity in our criminal justice system that close observers have long considered a blight on the system.”

The California attorney general promised not to appeal the ruling, but the San Francisco district attorney’s office at first delayed Mr. Humphrey’s bail hearing, arguing that the lower court lacked jurisdiction until the higher court certified the opinion. “Just because the attorney general is not seeking review doesn’t mean that the Supreme Court won’t decide to review on its own.” And in fact, it decided to do just that in Mayjust weeks after a judge finally agreed to Humphrey’s release.

As many as 500,000 people are held around the country in local jails because of their inability to pay bail, mostly for low-level offenses. People held on bail have been accused, but not yet convicted, of crimes. They often are locked up only for inability to pay the amount determined by a judge, frequently based on a preset bail schedule, and not because of an individual assessment based on risk or threat to public safety. If someone is unable to pay bail, he or she remains locked up until his or her case resolves through a plea, until trial is over, or until bail is paid. This can range from days to years.

1. What we know about bail

Nationwide, more than 60 percent of jail inmates are jailed pretrial; over 30 percent cannot afford to post bail. Black and Hispanic defendants are much more likely to be held on bail than white defendants. [Criminal Justice Policy Program / Harvard Law School]

Often, those being held on bail have simply been accused of low-level offenses. Seventy-five percent of pretrial detainees have been charged with only drug or property crimes. [Criminal Justice Policy Program / Harvard Law School]

Being jailed pretrial has collateral consequences: It leads to people losing their jobs, not being able to care for their children, and losing contact with loved ones. Holding people in jail who do not pose a significant safety risk also exacerbates overcrowding, creates unsafe conditions, and places a huge financial burden on taxpayers. [The Price of Freedom / Human Rights Watch]

A study out of Kentucky found that people who are held because they cannot afford bail are 40 percent more likely to commit another low-level offense. In other words, jailing people who cannot pay bail is criminogenic. [The Hidden Costs of Pretrial Detention]

We also know that people are more likely to be acquitted if they pay bail, in part because they are less likely to take plea deals just to get out of jail. Being released before trial closely correlates with a not-guilty verdict, suggesting that the system is not punishing the most guilty, but rather the people who cannot afford to pay for their release. [The Atlantic / Bouree Lam] [Pretrial Justice Institute]

One study suggests that those people are “over three times more likely to be sentenced to prison” and “over four times more likely to be sentenced to jail” than those who are not detained pretrial. [Criminal Justice Policy Program / Harvard Law School]

Similarly, a study out of Columbia Law School found “significant evidence of a correlation between pretrial detention and both conviction and recidivism.” [The Heavy Costs of High Bail / Arpit Gupta et al.]

Meanwhile, there are costs to taxpayers as well. Incarcerating individuals awaiting trial costs taxpayers $13.6 billion each year. [Prison Policy Initiative] There are effective, low-cost ways of ensuring that defendants appear at trial, including a simple notification system that reminds people of their court dates. [Court Appearance Notification System: Evaluation Highlights / Multnomah County]

2. The Role of the Bail Industry

In states and cities that want to reform their use of bail, the biggest obstacle remains the bail bond industry. For-profit bail bonds are legal in almost every state.

Money bail has been taken over by private companies that make profits from those who cannot afford it. Bail bond costs are often covered by family members, which puts an additional financial strain on the already-struggling children of the jailed. [Ella Baker Center / Who Pays?] Many people spent years paying off their bail amounts to private insurers. [Report / Color of Change and ACLU]

There’s some evidence that the bail bonds industry is intentionally intimidating decision-makers to urge them to oppose bail reform. Duane Chapman, star of the reality television series “Dog the Bounty Hunter,” has sat in the front row staring down lawmakers contemplating striking down monetary bail. [Jazmine Ullola / L0s Angeles Times]

Bail bond companies regularly give campaign contributions to prosecutors. Eric Gonzalez, the Brooklyn DA often thought of as a progressive, accepted such contributions. After the media found out about it, he gave the money back. [Carimah Townes / The Appeal] Dallas District Attorney Faith Johnson similarly received $5,385 from 13 bail bond companies and the Texas Bail PAC.

3. A Growing Consensus That America’s Bail System is Broken

A wide range of elected officials, cultural luminaries, criminal justice advocates, fiscal conservatives, and law enforcement organizations agree that the current bail system is broken. Bail reform is possible through legislative and judicial change, and also through policy changes that local prosecutors can make.

The public wants to see change. In Arizona, a poll conducted by the state’s Supreme Court found that two-thirds of those surveyed thought that only those who are a safety risk or unlikely to appear in court should be held for failure to pay bail. [Andrea Kelly / Arizona Public Media]

Eliminating cash bail also has wide support among law enforcement, like Cook County Sheriff Tom Dart and victims’-rights groups like Marsy’s Law for Illinois. [Reuters / Fiona Ortiz]

And it has bipartisan support. Conservative groups are demanding change to the cash bail system. In Ohio, for example, the conservative Buckeye Institute released a report calling the state’s cash bail system an “inefficient, expensive, unfair means of protecting communities that has proven no guarantee to stopping repeat offenders.” [Peter Krouse / Cleveland.com]

Judges are also calling for reform to the bail system, including California’s Chief Justice Tani Cantil-Sakauye and former New York Chief Judge Jonathan Lippman. [Jonathan Lippman / Washington Post]

And celebrities are spreading the word. Athletes like Malcolm Jenkins and Anquan Boldin are advocating against money bail. [Malcolm Jenkins & Anquan Boldin / The Appeal]

And so are musicians like Common and Jay Z. [Shawn Carter / Time]

Two video clips, one from John Oliver’s show, and the other one a mini-documentary from Brave New Films, discuss the problems with the cash bail system.

[Last Week Tonight With John Oliver]

[Debunking Common Bail Myths / Brave New Films]

4. The Role of Prosecutors

Prosecutors have the ability to reduce the use of cash bail. While judges are the ultimate gatekeepers, prosecutors play an important role in the process and can advocate for bail reform, screen cases early, and establish a presumption of recommending release. [Casey Tolan / Slate]

Fair and Just Prosecution (FJP), a group that brings together newly elected local prosecutors to promote “a justice system grounded in fairness, equity, compassion, and fiscal responsibility,” urges all prosecutors to “publicly support the elimination of money bail. DAs should use their bully pulpit to communicate the harms of the money bail system and the need for reform.” [Issues at a Glance: Bail Reform / Fair and Just Prosecution] Miriam Krinsky, executive director of FJP, says: “Common sense dictates that people should not be held in jail simply because they cannot afford a monetary payment.” [Miriam Krinsky / USA Today]

In June 2017, Kim Foxx, the lead prosecutor for Chicago, announced that her office will no longer seek money bail for defendants accused of low level offenses. According to Foxx, “Routinely detaining people accused of low-level offenses who have not yet been convicted of anything, simply because they are poor is not only unjust — it undermines the public’s confidence in the fairness of the system.” [Chicago Tribune / Steve Schmadeke]

Harris County, Texas, District Attorney Kim Ogg supported the elimination of bail for people accused of misdemeanors and wrote a brief from her office supporting the use of pretrial assessments for those accused of low level crimes. [Brief / Kim Ogg’s Office] More than 60 prosecutors from around the country, including Kim Foxx, George Gascon, and Mark Gonzalez signed an amicus brief in support of the plaintiffs in the Harris County litigation. [Brief Amici]

The California attorney general also wrote a brief supporting the elimination of the cash bail system in California. [Brief]

In February 2018, newly elected Philadelphia District Attorney Larry Krasner announced that his office would stop seeking bail on 25 criminal charges, which include retail burglary, prostitution, unauthorized use of a motor vehicle, resisting arrest, providing false identification to law enforcement, and many drug offenses. [Alec Ward / Reason]

During the primary in Bexar County, Texas,  Democratic candidate Joe Gonzales stressed the need to reform cash bail and “even the scales of justice” “so that people who commit minor offenses don’t stay in jail because they don’t have enough money to post bond.” He handily beat incumbent Nico LaHood in the primary. [Elizabeth Zavala / My San Antonio] Interim Contra Costa District Attorney Diana Becton has also expressed support for bail reform. [Sukey Lewis / KQED]

5. Bail Funds Make a Difference

While not a long-term solution, bail funds provide a short-term are helping to alleviate the burden of excessive bail on the poor. They are nonprofit organizations that front bond payments for those who cannot afford them. [Alysia Santo / The Marshall Project]

On Mother’s Day 2017 and 2018, several organizations partnered to create a Mama’s Bail Out Day campaign to pay bail for women to see their children. [Human Rights Watch] [No More Money Bail] Similar bailouts are happening around the country. [Bryce Covert/The Appeal]

The Bronx Freedom Fund grew out of the local public defender’s office and has bailed out more than 600 people charged with misdemeanors since 2007. Other similar funds have been established in major cities around the country. [Bronx Freedom Fund] [Chicago Community Bond Fund]

Some places, like Memphis, Tennessee, automatically charge bail funds fines and fees, making bail fund efforts difficult to sustain. [Alysia Santo / The Marshall Project] The Massachusetts bail fund was struggling financially until activists recently pitched in to help revive it. [Sept. 20, 2017 Edition / The Appeal Newsletter]

6. Courts are Taking Action

Courts are striking down existing bail systems as unconstitutional. Challenges to existing systems are pending in local courts around the country, in both red and blue states. State attorneys general and other members of law enforcement are also recognizing that cash bail hurts the poor.

On Jan. 21, 2018, civil rights groups sued Dallas County, alleging state and U.S. constitutional violations in its cash bail system. According to the complaint, Dallas County operates a two-tiered system in which poor defendants are detained indefinitely while wealthy defendants purchase their freedom pretrial. [Jolie McCullough / Texas Tribune] One of the plaintiffs is Shannon Daves, a 47-year-old homeless woman who the county held in solitary confinement because she could not afford the $500 bail set on her misdemeanor case. [C.J. Ciaramella / Reason]

In Dutchess County, New York, one judge became impatient with the protracted bail reform process and issued a scathing opinion attacking the money bail system. Police had arrested Christopher Kunkeli for shoplifting a vacuum cleaner from Target, a misdemeanor. A lower court judge ordered his bail set at $5,000, nearly half his annual income. Kunkeli remained in jail for nearly five months until he agreed to a plea deal. After Kunkeli’s release, the New York Civil Liberties Union filed a lawsuit on his behalf, contesting the court’s practice of setting bail without considering a defendant’s ability to pay. On Jan. 31, 2018, Justice Maria Rosa ruled that this system violates the Constitution’s due process and equal protection clauses. In her ruling, she noted that in New York, 60 percent of individuals are held in jail without a conviction, before their cases go trial; in New York City, that number is as high as 75 percent. [Alan Feuer / New York Times]

In April 2017, a federal judge put a pause on Houston’s use of its bail system, which it considered probably unconstitutional. [ODonnell v. Harris County] Prior to the 2016 filing, Harris County routinely jailed people for failure to pay bail on misdemeanors like driving without a license. [Federal Judge Strikes Down Houston-Area Bail System / Courthouse News Service] [New York Times / Michael Hardy] The Fifth Circuit largely upheld this decision, recognizing the two-tiered system of justice in Houston, although it allowed the county to take up to 48 hours after the arrest to provide the defendants with a hearing. [Jollie McCullough / Texas Tribune]

In June 2017, a Cook County judge issued an order requiring Chicago judges to consider a defendant’s ability to pay before setting bail. [Richard Oppel / New York Times] [Circuit Court of Cook County]

Last fall, a federal judge struck down the monetary bail system used against misdemeanor defendants in Calhoun, Georgia, as unconstitutional. [Jon Schuppe / NBC] The Department of Justice under President Barack Obama filed a brief in the case supporting the elimination of money bail. [Pete Williams / NBC] A similar lawsuit is pending in Alabama. [Amy Yurkanin / AL.com] And lawsuits have also been filed in Tennessee, Florida, and New York.

Officials in Nashville are contemplating significant changes after the nonprofit law firm Civil Rights Corps threatened to sue over its bail system. A group of judges, public defenders, and district attorneys is putting together a proposed plan to minimize cash bail, with the aim of starting reforms in March. [Adam Tamburin / The Tennessean]

In Massachusetts last August, the Supreme Judicial Court ruled that judges must consider a defendant’s inability to pay when setting bail. And when the judge sets an unaffordable cash bail that will result in extended pretrial detention, he must issue written or orally recorded findings of fact. [Bob Oaks / WBUR]

7. The Future of Bail Reform

State and federal lawmakers are debating legislation to eliminate or reduce the use of cash bail.

Alaska, a largely Republican “tough on crime” state, drastically curtailed cash bail. The new law, which took effect on Jan. 1, 2018, sought to stave off the rapid increase in the state’s incarcerated population, which grew by 27 percent between 2005 and 2014. The law created a pretrial enforcement division to determine, on a case-by-case basis, the likelihood that a defendant will show up in court or commit crimes if released. The judge reviews the risk assessment score, but prosecutors and defense attorneys can argue for harsher or lighter restrictions before the judge makes a decision. The judge can impose secured bail bonds only for individuals charged with violent offenses and with high risk scores, while those charged with nonviolent misdemeanors must be released. For all others, there is a presumption of release. [Bryce Covert / The Appeal]

With the backing of Atlanta Mayor Keisha Bottoms (who was pushed by civil rights groups and grassroots advocates), the City Council approved an ordinance in February 2018 to eliminate the cash bail requirement in municipal court for nonviolent misdemeanor charges or city ordinance violations. [Rhonda Cook / Atlanta Journal-Constitution]

On Feb. 1, 2018, the Philadelphia City Council unanimously passed a nonbinding resolution urging the DA, the state legislature, and state Supreme Court to reduce their reliance on cash bail. In a city where one-third of all defendants are incarcerated because they cannot afford bail,  these reforms could have far-reaching implications for Philadelphia’s criminal justice system. The city’s DA, Larry Krasner, has already articulated plans to cease requesting cash bail for certain offenses. [Teresa Mathew / CityLab]

In 2017, bail reform legislation also passed in Connecticut [Huffington Post / Nick Wing] and New Orleans. [The New Orleans Advocate / Jessica Williams] New Jersey ended its cash bail system in 2014. [Reason / Scott Shackford]

Washington, D.C. largely eliminated cash bail in 1992, and now holds only those defendants deemed too dangerous to release. About 90 percent appear for their court dates. The Washington Post’s editorial board explained that although revamping pretrial release systems that rely on cash bail may involve upfront costs, it is a worthwhile and necessary investment. “In the longer term,” the editorial stated, “bail reform will produce substantial savings by reducing incarcerated populations, cutting corrections staffing and eliminating the need to build more jails to house pretrial detainees. Even if the balance sheet tilts toward an additional burden for states and localities, bail reform needs to happen because it’s the right thing to do. It is a disgrace for a civilized society to lock people up for no reason other than they lack the means to go free.” [Editorial Board / Washington Post]

In Ohio, two Republican state legislators introduced a bail reform bill in December of 2017. The bill would require judges to use validated risk-assessment tools when setting bail — a practice that occurs already in some but not all parts of the state. The bill is supported by the conservative Buckeye Institute’s Legal Center. [Peter Krouse / Cleveland.com] The ACLU has described the bill as an important first step, but has warned that more robust change is necessary to deprioritize cash bail and ensure that defendants have due process protections and the assistance of counsel at bail hearings. [Caitlin Hill / Cleveland.com]

Also in 2017, New Mexico voters approved a constitutional amendment that limited the use of cash bail. While the language is limited, advocates are hopeful that it will provide guidance for judges making determinations on pretrial detention. [Nick Wing / Huffington Post]

In July 2017, Senators Kamala Harris and Rand Paul introduced legislation to encourage states to reform cash bail systems. [Kamala Harris & Rand Paul / New York Times] [Text of Proposed Bill] [Larry Hannan / The Appeal]

In August 2017, the policy-making body of the American Bar Association approved a resolution that “urges governments to adopt policies and procedures that favor release on personal recognizance bonds or unsecured bonds, that permit cash bonds or secured bonds only upon a determination by the court that such financial conditions and no other conditions will assure appearance, and that pretrial detention should never occur due solely to an inability to pay.” [American Bar Association]

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Louisiana's Love Affair With Locking Up Kids For Life

Years after two landmark Supreme Court rulings, prosecutors in Louisiana are still overwhelmingly seeking life sentences for children.

Louisiana's Love Affair With Locking Up Kids For Life

Years after two landmark Supreme Court rulings, prosecutors in Louisiana are still overwhelmingly seeking life sentences for children.


The Supreme Court may have declared life without parole, or LWOP, unconstitutional for juveniles, but Louisiana continues the practice of sentencing children to die in prison.

In its 2012 Miller v. Alabama decision, the Supreme Court ruled that mandatory life without parole sentences for juveniles (or teenagers who were younger than 18) constituted cruel and unusual punishment. Its decision did not specify whether states should retroactively apply the ruling, leaving each state to decide on its own. In four states, courts ruled that the decision only applied to present and future cases. Louisiana was one of those states.

This meant that Henry Montgomery, who had been sentenced to LWOP for the 1963 shooting of a sheriff’s deputy when he was 17, would spend the rest of his life in prison. After his first trial, he was sentenced to death, which was overturned by the state Supreme Court. At his retrial, he was convicted of first-degree murder, which in Louisiana carries an automatic sentence of life without parole.   

After the Miller decision, Montgomery challenged the state’s refusal to retroactively resentence juveniles given LWOP. His case made its way to the U.S. Supreme Court which, in January 2016, ruled that Miller was retroactive and that defendants who had automatically been sentenced to LWOP as juveniles must be resentenced or considered for parole. At that time, Montgomery was among 2,585 people nationwide serving life without parole sentences for crimes they committed when they were children. In Louisiana, 282 people were serving juvenile LWOP sentences.

The Louisiana legislature amended its laws to comply with Montgomery. The initial bill would have prohibited LWOP for all juveniles, including those convicted of first-degree murder. But under pressure from the state’s district attorney association, the version that passed prohibits future LWOP sentences for juveniles who are convicted of second-degree murder. It also guarantees a sentencing hearing for youth who have been convicted of first- or second-degree murder. However, the amendment still allows children to be sentenced to LWOP if they were indicted before Aug. 1, 2017, and later convicted of first- or second-degree murder. The amended article gave district attorneys until Oct. 1, 2017, to give notice of their intent to seek LWOP.

“What this shows is the incredible role of prosecutors in shaping the legislation,” John Pfaff, a professor at Fordham Law School and author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, told The Appeal. Under the amended law, he notes, “prosecutors still have tremendous authority.” And they are using it: Prosecutors filed notices about their intentions to seek new LWOP sentences in 92 of the 258 eligible cases (or 32 percent).

If a prosecutor is seeking juvenile LWOP, a separate hearing is required under Miller in which a judge must determine if the person is, in fact, the “worst of the worst” and incapable of rehabilitation. But public defenders have said that they lack the money for resources to mount an adequate defense for Miller hearings, including intensive investigations into the histories of their clients, which includes interviewing family members and former teachers and obtaining education, medical, and incarceration records as well as hiring experts.  Juvenile defendants eligible for re-sentencing under Montgomery, meanwhile, are required to have a similarly resources-intensive hearing. Montgomery hearings are also very expensive—New Orleans’s chief public defender estimates that they cost $56,000 per case—so defendants often receive subpar representation for them or even no hearing at all, especially in states in poor fiscal health like Louisiana.

Louisiana’s amended law did not include a reporting requirement, but the New Orleans-based Louisiana Center for Children’s Rights has been tracking outcomes by checking court dockets and calling the offices of judicial district clerks. The center found that at least 85 defendants still have open resentencing cases under Montgomery. In Orleans Parish, which includes New Orleans, the prosecutor has filed notices intending to seek LWOP in at least 26 of his Montgomery 67 cases (or 39 percent). The prosecutor in neighboring Jefferson Parish has filed notices in 10 of his such 23 cases (or 43 percent). A Louisiana defense attorney recently told The Appeal that the district attorney in Calcasieu Parish files a notice of intent to seek LWOP for all of the juvenile offenders in his parish who are eligible for resentencing under Montgomery.

“It seems like we’re on a carousel repeating the mistakes of the past,”  Jill Pasquarella, supervising attorney of the Louisiana Center for Children’s Rights Campaign to End Extreme Sentencing for Youth, told The Appeal. “The post-Miller data tells us this pattern is likely to persist. Even with instructions from the Supreme Court, kids [convicted of murder] were still sentenced to LWOP at a rate of 62 percent. That’s a far cry from ‘rare’ and ‘uncommon.’”

As with everything related to prosecution and prisons, race remains a key factor in prosecutorial decisions. “This is, without question, disproportionately punishing African-American kids,” Pasquarella noted. In the 23rd Judicial District which encompasses Ascension (22 percent Black), Assumption (30 percent Black) and St. James (50 percent Black), there are five people who are eligible for  Montgomery resentencings. Four of these five people are African-American. The district attorney is seeking LWOP against all four African-American defendants, but not the single white defendant in the jurisdiction.

The 23rd Judicial District is not an anomaly. “Race plays a role in the same way that it plays out throughout the criminal justice system,” reflected Pasquarella. African-Americans comprise slightly less than one-third (or 32 percent) of Louisiana’s overall population but they comprise 74 percent of the people sentenced to life without parole. The children’s rights center found that African-Americans comprise 75 percent of Montgomery-eligible cases in which the state is seeking a new life without parole sentence. In addition, only two of the 39 Miller defendants are white.

These numbers are a far cry from “rare and uncommon,” noted Pasquarella, referencing “the rare juvenile offender whose crime reflects irreparable corruption” that the Supreme Court acknowledged might still be sentenced to life without parole. At the same time, prosecutors retain the discretion to seek sentences long enough to guarantee that a person will die in prison.

But even those who do become eligible for parole may not necessarily walk out the prison gates. Though he was responsible for the change in law, 71-year-old Henry Montgomery remains in prison. Following the Supreme Court decision, Montgomery was resentenced and became eligible for parole. In February 2018, Montgomery appeared before the Louisiana parole board. In a 2-to-1 decision, the board denied him parole, in part because he had not been able to participate in prison programs that are off limits to people serving life sentences. Montgomery is in the Louisiana State Penitentiary, also known as Angola.   

“Even with the Miller and Montgomery opinions, we put very few restrictions on what district attorneys can do,” said Pfaff, the Fordham law professor. “They retain tremendous discretion to be punitive and we see that in their embrace of juvenile life without parole.”

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