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In Oregon, a Hopeful Sign for Those Sentenced to Lengthy Prison Terms as Children

The state’s attorney general decided to support resentencing hearings in two high-profile cases, though she had fought appeals in the past.

Oregon Attorney General Ellen Rosenblum speaks in New York in 2018.(Photo by Drew Angerer/Getty Images)

On Jan. 12, 1995, Laycelle and Lydell White’s mother pleaded with the court for mercy. 

“I brought these kids into this world and they are not adults,” their mother, Sahara Lorraine White, told the judge. “Their thinking is not as an adult. The crime is an adult crime.” 

In 1993, when her twin sons Lydell and Laycelle were 15, they broke into an elderly couple’s home in Marion County, Oregon, killed them, and then stole their car. In the years before the murders, they had struggled with their father’s intermittent incarceration and abandonment. The brothers have since legally changed their last name to King, but they are still widely referred to as the Whites.

“My sons need help,” their mother told the same judge on Jan. 11, 1995. “I have been before the court on numerous occasions and asked for help, and I have gotten none. None. And now it has gone to this point.”

Circuit Court Judge Paul Lipscomb sentenced Lydell to life in prison with a minimum of about 69 years to serve, and Laycelle to life in prison with a minimum of about 66 years to serve. 

But now they have a chance to come home—and a change of heart from the Oregon attorney general could be a hopeful sign for others in the state who were sentenced to lengthy prison terms as children. On Feb. 26, Attorney General Ellen Rosenblum announced that she would support the state Supreme Court’s ruling, which grants the brothers resentencing hearings even though she had previously fought their appeals.

Bobbin Singh, executive director of the Oregon Justice Resource Center, called Rosenblum’s decision in the brothers’ cases “hugely significant.” 

“What this does is it allows us to continue to move along a path where we’re not sentencing any youth to die in prison, both prospectively and also retroactively,” he said. “We are moving in the direction where life without parole or these very disproportionate sentences for youth are going to be considered no longer valid in the state of Oregon.”

Over the course of the last decade, two landmark U.S. Supreme Court decisions—Miller v. Alabama in 2012, and Montgomery v. Louisiana in 2016—forced states to reconsider how they handle life without the possibility of parole sentences for people under the age of 18. In Miller, the court banned mandatory juvenile life without the possibility of parole sentences.  Montgomery made that decision apply retroactively, which meant that about 2,000 people who had been automatically sentenced to life without the possibility of parole could receive resentencing or parole hearings. 

But what has been less clear is what the Miller and Montgomery rulings mean for people like the White brothers: those who had already received sentencing hearings, are serving lengthy prison terms, and can—maybe in their 60s, 70s or 80s—be released one day. 

Last year, Rosenblum argued that the Supreme Court decisions should not affect the brothers because Miller and Montgomery only require new sentencing hearings for those serving mandatory life without the possibility of parole sentences. The state Supreme Court disagreed with her, finding that the rulings are relevant in cases, like the Whites’, where a person is serving a sentence that amounts to life in prison. 

The U.S. Supreme Court’s decisions have not banned life without the possibility of parole sentences for children. The justices ruled that before imposing such a sentence, however, a court must consider “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” Justice Elena Kagan wrote for the majority in Miller. A court must also distinguish between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption,” she wrote, quoting from an earlier decision banning the death penalty for children. 

This guidance has been interpreted differently by sentencing and appellate courts. This week, the U.S. Supreme Court agreed to hear the case Brett Jones v. State of Mississippi, which asks if Miller and Montgomery require a sentencing court to determine that a young person is “permanently incorrigible” before imposing a life without the possibility of parole sentence. 

The Oregon Supreme Court in its decision to grant the White brothers new sentencing hearings, found it was not apparent that the sentencing courts had determined whether the brothers were “irreparably depraved.”

In response to the state Supreme Court’s decision, Rosenblum’s office requested a stay in June while the U.S. Supreme Court considered the Virginia case Mathena v. Malvo, which involved a similar sentencing issue. The office also asked the U.S. Supreme Court to consider the White brothers’ cases along with Malvo. Lee Boyd Malvo was sentenced to multiple life sentences in Virginia for his role in the so-called D.C. sniper shootings. 

On Feb. 24, both parties in Malvo petitioned the U.S. Supreme Court to dismiss their case after Virginia abolished sentences of life without the possibility of parole for children

Two days later, Rosenblum announced she would withdraw the White brothers’ cases as well. “Since we are no longer waiting on the U.S. Supreme Court to give us guidance that might have conflicted with our state Supreme Court’s ruling, it makes good sense to now defer to the unanimous ruling of Oregon’s highest court,” Rosenblum said in a statement on Feb. 26.

The White brothers’ hearings have not yet been scheduled, according to their attorney Ryan O’Connor. At their hearings, he said, he hopes to offer evidence to show how they have changed over the last 25 years. 

“I’m really grateful that she reconsidered the state’s position,” said O’Connor. “I’m hopeful that this decision by the attorney general is a signal that the state is ready to accept the clear rule from Miller and Montgomery that people who are convicted of these crimes as kids are entitled to rehabilitation hearings.”

Rosenblum’s reversal is consistent with her support of Oregon’s Senate Bill 1008, according to the Whites’ supporters. The new law, which went into effect on Jan. 1, requires that those who were convicted of crimes that occurred when they were under 18 receive a hearing before the parole board after serving 15 years. SB 1008 also bans juvenile life without the possibility of parole and requires that a judiciary hearing be held before a minor is transferred to adult court. 

“I’ve learned that juveniles can be many things,” Rosenblum told legislators when she testified in favor of the bill last March. “But the one thing they can never be, even though technically the system treats them as such, is an adult.”

Many of the arguments in support of SB 1008 relied on research into adolescent brain development, which shows that human brains are not fully developed until a person reaches their early 20s and that young people tend to be more impulsive than adults and more susceptible to peer pressure. But SB 1008 only applies to those sentenced after it took effect, which means those like the White brothers and Sterling Cunio have a more uncertain path to freedom.  

At 17, Cunio was sentenced to two life sentences plus more than 20 years for his role in a 1994 kidnapping, robbery, and murder. During his more than two decades of incarceration, he has become a mentor, activist, and writer whose work has been published in the Marshall Project and recognized by PEN America. 

On Feb. 20, the United States District Court for the District of Oregon ruled that Cunio should receive a hearing before the state parole board to determine if he can be released early. The attorney general’s office says it has not yet decided if it will appeal the decision. 

The attorney general has opposed Cunio’s appeals in the past, claiming that the landmark Supreme Court decisions don’t apply to him because—as she argued in the Whites’ cases—his sentence was discretionary, not mandatory, an argument that Oregon’s federal district court rebuked.

The court also found that children must be provided, with few exceptions, a “‘meaningful opportunity’ [for release that] must come early enough in a person’s life to pursue education, employment, and reintegration into society.” That opportunity, the court ruled, has been denied to Cunio, who may not be released until he is 88. 

Rosenblum’s reversal in the White brothers’ cases, O’Connor hopes, indicates that her office will support hearings for people like Cunio, not just those who were convicted after SB 1008 took effect. The attorney general’s office told The Appeal it has not yet made a decision on Cunio’s case, and did not respond to a request for an interview.

“By dismissing the Whites’ case and allowing the Oregon Supreme Court decision to stand, she is taking a position that’s consistent with her position going forward and consistent with the brain science,” O’Connor said. The science doesn’t make a distinction between a person who committed a crime as a minor before SB 1008 took effect and one who did so after, he said. “Juvenile brain development’s the same.”