Inside the county jail, Sterling Cunio, then 17, asked his lawyer if he would be home by next summer. He had just left the courtroom where the judge sentenced him to two consecutive life sentences plus more than 20 years for his role in a 1994 kidnapping, robbery, and murder.
“I just didn’t grasp it,” Cunio, now 42, told The Appeal in a phone call from the Oregon State Penitentiary. “I came to prison focused on how to survive as a whiskerless kid.”
A few months later, in November 1994, Oregon voters approved Measure 11, which mandated the transfer of 15-, 16-, and 17-year-olds to adult court for numerous offenses, and also imposed mandatory minimum prison sentences. Over the next almost 25 years, thousands of young people would, like Cunio, be transferred to adult court. A disproportionate number of them were, like Cunio, young people of color.
This year, on July 22, Oregon began to reverse course. Governor Kate Brown signed into law Senate Bill 1008, which includes a number of reforms, including a requirement that after serving 15 years, young people receive hearings with the state’s Board of Parole and Post-Prison Supervision to determine if they can be released early. SB 1008 also bans juvenile life without parole and requires that a judiciary hearing is held before a minor is transferred to adult court.
But Cunio is unlikely to benefit from SB 1008. It only applies to those sentenced after it takes effect on Jan. 1, 2020. And despite publicly supporting the new law, Attorney General Ellen Rosenblum’s office has sought to block resentencing hearings for Cunio and others condemned to long sentences or life in prison for crimes that occurred when they were adolescents.
It really leaves you feeling helpless.
Sterling Cunio sentenced at 17
That rankles advocates, who see her position as hypocritical. “We have admitted to ourselves and to the community as a state, that we need to treat youth differently,” said Bobbin Singh, executive director of the Oregon Justice Resource Center. “If we’re going to look at a truth prospectively, we have to apply that truth retroactively as well.”
Cunio agrees. “If you look at 1008, it’s really progressive. … And then on the other hand, it’s frustrating because the current juvenile lifers, particularly the juvenile lifers who have been locked up the longest, see no benefit,” he said. “It really leaves you feeling helpless when you hear these people taking different positions.”
As Oregon legislators and advocates worked to pass SB 1008, they invoked many of the same arguments made by the U.S. Supreme Court in their landmark decisions in Miller v. Alabama in 2012 and Montgomery v. Louisiana in 2016.
In Miller, the U.S. Supreme Court banned mandatory life without parole sentences for juveniles. Before imposing life without parole, the Supreme Court ruled, a court must consider the unique characteristics of children.
“Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” wrote Justice Elena Kagan for the majority.
In the Montgomery case, the Court ruled that Miller applied retroactively, opening the door for thousands of people to receive what have come to be known as Miller hearings—opportunities to show evidence of their rehabilitation and receive a lesser sentence. In their decisions, the Court relied on the distinguishing traits between children and adults, including research on adolescent brain development.
“I’ve learned that juveniles can be many things,” Rosenblum told legislators when she testified in favor of SB 1008 in March. “But the one thing they can never be, even though technically the system treats them as such, is an adult.”
State Senator Floyd Prozanski, who championed SB 1008, told The Appeal he wanted the bill to be retroactive, but it was not politically viable at the time. “I support allowing for this second look to go across the board,” said Prozanski, who lost a sister to homicide.
If SB 1008 were retroactive, Cunio would automatically be entitled to a hearing because he has served more than 15 years. But under the current law, Rosenblum’s office can’t extend it to him, according to Kristina Edmunson, communications director for the Oregon Department of Justice. “The Appellate Division of the Oregon Department of Justice has as one of its important responsibilities defending the legality of sentences that were previously imposed and that comply with current law,” she wrote in an email.
Rosenblum’s office also opposes Cunio’s efforts to receive a Miller hearing, on the grounds that the Supreme Court rulings don’t apply to people like him who received lengthy or life sentences that were discretionary rather than mandatory.
Sterling is without question not the same person he was as a teenager.
Aliza Kaplan Lewis & Clark Law School
Cunio’s supporters find that particularly galling considering all that he has accomplished in prison. During his incarceration, he has become a mentor, activist and writer, whose work has been published in the Marshall Project and recognized by PEN America. Cunio is an undergraduate student at the University of Oregon and hopes to pursue a master’s degree in water conservation and renewable energy. “Personal guilt drove me toward different pursuits for redemption,” said Cunio, who also volunteers in the prison hospice. “But then [I] miraculously discovered that altruism is personally fulfilling.”
For Aliza Kaplan, director of the criminal justice reform clinic at Lewis & Clark Law School in Portland, Cunio’s story shows why second chances are so essential for people sentenced as minors. “Sterling is without question not the same person he was as a teenager,” Kaplan told The Appeal in an email. “He is a model of how youth and young adults are capable of true reformation.”
Cunio, of course, isn’t the only Oregonian unable to benefit from the new law. In 1995, twin brothers Lydell and Laycelle White were sentenced to life plus almost 67 years for murders they committed when they were 15. Their earliest possible release date is in 2047, when they will be 68 years old, according to the State’s brief. They are now 41.
Shortly before the crime, their father, who was incarcerated, told them he would soon be released. The Whites decided to steal a car from an elderly couple, Richard and Grace Remy, so they could drive to visit him and “take some girls for a joy ride,” according to the report prepared by a psychologist who evaluated the twins before sentencing. Once inside the victims’ home, the brothers beat them to death, stealing $23 along with the car.
Their mother implored the judge to help them rather than simply “warehouse” them.
At the sentencing hearing, Laycelle’s own attorney said that Laycelle did not have a conscience. But the hearing revealed otherwise. Laycelle told the court, “If I could go back in time and change what I have done, the first thing I would do is give them their lives back.” Lydell also expressed remorse at his sentencing hearing. “I find myself waking up every single day thinking why should I be alive,” he said.
Their mother implored the judge to help them rather than simply “warehouse” them. “I brought these kids into this world and they are not adults,” she said during Lydell’s hearing. “Their thinking is not as an adult. The crime is an adult crime.”
More than 20 years after that hearing, on May 31, the Oregon Supreme Court ruled the Whites were entitled to a Miller hearing. The sentencing court failed to establish, as required by the Miller ruling, that the crime did not reflect the Whites’ “transient immaturity of youth,” wrote Chief Justice Martha Walters.
But the court stayed its decision at the request of the attorney general’s office. The attorney general argued that the hearing should not be held while the U.S. Supreme Court is considering a separate case that may help decide the scope of the Miller and Montgomery decisions, and if those decisions apply to people serving non-mandatory life sentences. Last week, the office asked the Supreme Court to consider the Whites’ case as part of that case, known as Mathena v. Malvo. (Lee Malvo was sentenced to life in prison for his role in the so-called D.C. sniper shootings when he was 17.)
“The petitions my office has filed ask the Supreme Court to apply whatever ruling it reaches in Malvo to the Whites as well,” said Rosenblum in a statement. “This will mean that the White brothers are treated the same as other juvenile offenders sentenced long ago and still serving their sentences.”
But Ryan O’Connor, who represents both the White brothers and Cunio, says the attorney general need not wait for that decision. He says Rosenblum has the discretion to permit the hearing to proceed for the White brothers, as ordered by the state Supreme Court.
Kaplan, of Lewis & Clark Law School, agreed. Asking the U.S. Supreme Court to weigh in on the Whites’ case, Kaplan said, “just delays their opportunity to have a hearing that our highest court has said that they deserve.” Her clinic filed an amicus brief to the Oregon Supreme Court in support of the White brothers.
Governor Brown could also help, said Singh and Kaplan, by using her clemency powers to ensure that people who have served more than 15 years receive the parole hearings prescribed in SB 1008. There are approximately 100 people incarcerated in Oregon who would qualify for these hearings if SB 1008 were retroactive, according to Singh. Brown’s office did not respond to emailed questions regarding whether she would consider such an action.
For now, Cunio, the Whites, and others are left to fight in the courtrooms while they wait for the legislature to take up the issue again. “The contradictions are so clear and so frustrating,” said O’Connor. “There’s a real prospect that these guys will die in prison for things they did as kids.”