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Pennsylvania Case Challenges ‘Death by Incarceration’ for 18-year-olds

Recent Supreme Court rulings have led to a review of life-without-parole sentences for crimes committed at age 17 and younger, but attorneys for Avis Lee say there’s no reason to stop there.

A painting of Avis Lee by Mary DeWitt
With permission from the artist

Pennsylvania Case Challenges ‘Death by Incarceration’ for 18-year-olds

Recent Supreme Court rulings have led to a review of life-without-parole sentences for crimes committed at age 17 and younger, but attorneys for Avis Lee say there’s no reason to stop there.


The facts of Avis Lee’s case are not in dispute. On Nov. 2, 1979, in Pittsburgh, Pennsylvania, Lee acted as a lookout while her brother, Dale Madden, tried to rob a stranger named Robert Walker. After a brief struggle, Madden shot Walker in the head. Lee, then 18 years old, boarded a bus and told the driver that a man was injured, which the driver reported to police.

Lee, Madden, and a third accomplice, Arthur Jeffries, were later arrested. All three were tried together in Allegheny County. Jeffries was convicted of involuntary manslaughter. Madden and Lee were convicted of second-degree murder, which carried a mandatory sentence of life without parole. Lee was 20 years old.

“I didn’t understand what it meant,” she wrote to The Appeal of her reaction to her sentence. “When I found out, I was stunned.”

Lee, now 57, is one of more than 5,000 people in Pennsylvania who are serving sentences that advocates call death by incarceration. Like Lee, many of those condemned to die in prison in Pennsylvania are Black—65 percent—and about half were under 25 at the times their crimes occurred, according to a report published by the Abolitionist Law Center, A Way Out: Abolishing Death By Incarceration in Pennsylvania.  

But after spending almost 40 years in prison, Lee may have the chance to be released.  

Avis Lee as a teenager

People sentenced to life without parole as juveniles won new consideration under two recent U.S. Supreme Court decisions—Miller v. Alabama (2012) and Montgomery v. Louisiana (2016). Miller and Montgomery declared it unconstitutional, in future cases and retroactively, to subject those age 17 or younger at the times of their offenses to mandatory sentences of life without parole. In previous rulings, the Supreme Court had abolished the death penalty for juveniles (Roper v. Simmons) and death by incarceration sentences for juveniles who commit offenses other than homicide (Graham v. Florida.)

At the time of her crime, Lee was 18, but her attorneys with the Abolitionist Law Center argue that Miller and Montgomery should still apply to her, particularly given what is now known about adolescent brain development. In an oral argument held last month before an en banc panel of the Superior Court of Pennsylvania, they asked for an evidentiary hearing to show why Lee’s sentence is unconstitutional.

“We are arguing for the right to make an argument on the merits,” said Bret Grote, the legal director of Abolitionist Law Center and one of Lee’s attorneys, who said a decision from the court could come any time within the next year.

‘Assembly-line justice’

The Supreme Court’s decisions in Miller and Montgomery have meant that about 2,000 people nationwide have become eligible to have sentencing hearings where, often for the first time, they can present evidence regarding why they should not die in prison for offenses that occurred when they were underage. As of October, Pennsylvania had released 155 people out of an eligible 519, according to the state Department of Corrections.

Robert Saleem Holbrook was one of those released and now works as a community organizer with the Abolitionist Law Center. At 18, he was sentenced to a mandatory sentence of life in prison without the possibility of parole for murder.

I understood that this is real. These people are sentencing me to die in here.Robert Saleem Holbrook, Abolitionist Law Center

“I really didn’t understand the totality of my sentence until I was in my mid-20s, when I realized that I had 10 years in prison and I was no closer to going home than the first day I entered prison,” Holbrook told The Appeal. “I understood that this is real. These people are sentencing me to die in here.”

Like Lee, Holbrook was the lookout in a homicide, but because he was only 16 at the time—the crime occurred on his birthday—he was resentenced under Miller and Montgomery. Holbrook was released this year after serving 27 years.

“Mandatory sentences are assembly-line justice that feed mass incarceration because it strips judges, it strips the criminal justice system, of the ability to individually look at a case and determine an appropriate sentence,” Holbrook told The Appeal. “It prevents those transient characteristics of youth to be considered for someone like Avis, and for legions of others who are serving a death-by-incarceration sentence.”

Underpinning the Supreme Court’s decisions are the characteristics of youth, what Justice Elena Kagan described for the majority in Miller as “transient rashness, proclivity for risk, and inability to assess consequences.”  Those traits, she argued, not only make a juvenile less culpable but a sentence of life without the possibility of parole is “at odds with a child’s capacity  for change.”

“Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it,” Kagan wrote.

In Miller, the Court relied on research on adolescent brain development, quoting from an amicus brief filed by the American Psychological Association: “It is increasingly clear that adolescent brains are not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance.”

The adolescent brain

Lee’s attorneys argue that the traits of adolescence recognized by the Supreme Court for a 17-year-old are also evident in Lee’s case. Similar pleas have been made in courtrooms across the country, with varying results.

In 2016 and 2017, Pennsylvania courts rejected arguments to extend Miller to a 19-year-old and a 22-year-old, respectively, stating, “The Miller decision applies only to those ‘who were under the age of 18 at the time of their crimes.’”

It's hardly a revelation to say that people still have a lot of growing to do after they've turned 18.Laurence Steinberg, Temple University

However, in 2017, a Kentucky trial court found that it was unconstitutional to sentence to death those who were younger than 21 at the times of their offenses, concluding that research had shown, “under feelings of stress, anger, fear, threat, etc., the brain of a 20-year-old functions similarly to a 16- or 17-year-old.”

And earlier this year, a federal court in Connecticut ruled that Luis Noel Cruz, who had been sentenced to die in prison for murders he committed at 18, should be resentenced, finding that “the hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds.”

“It may be groundbreaking for the law, but it’s hardly a revelation to say that people still have a lot of growing to do after they’ve turned 18,” Laurence Steinberg, an expert on adolescence and brain development, told The Appeal. A professor of psychology at Temple University, his work was cited by the U.S. Supreme Court in its Roper v. Simmons opinion.

“Most developmental psychologists and neuroscientists would say the maturation in ages that are relevant to these discussions of criminal responsibility is still ongoing when people are beyond 18,” said Steinberg, noting that the “developmental immaturity” that the Supreme Court referenced in its rulings are also characteristic of people who are 18,19, and 20 years old.

The plasticity of the adolescent brain means it is “malleable and can change in response to experience,” he added.

“It makes a pretty compelling argument for continuing to try to rehabilitate people at that age because we know that people still change a lot,” Steinberg said. “It also adds power to the argument that we shouldn’t make decisions about the rest of somebody’s life on the basis of what he’s done when he’s 18 years old.”

Lee’s early life

Attorneys with the Allegheny County district attorney’s office have not been swayed by the almost four decades of research and evolving jurisprudence that have occurred since Lee’s conviction. The sentence she received in 1981 should stand, they argue.

In their brief opposing Lee’s petition, District Attorney Stephen A. Zappala, Jr., Deputy District Attorney Michael W. Streily, and Assistant District Attorney Margaret Ivory wrote: “Appellant admits that she was over 18 years of age when she committed murder … As a result, appellant simply is excluded from Miller‘s holding and her appeal is meritless.”

In an email to The Appeal, a spokesperson for the DA’s office wrote, “[O]ur comments on that case would be limited to the brief that we filed ahead of the arguments.”

Avis Lee (center) with Blak Rap Medusa and Etta Cetera, who worked on her theater piece, Chin to the Sky

Opposition to Lee’s petition and ones like it are “tautological,” Grote said. “No matter how much ink is spilled, it ends up: The line is where the line is because that’s where the line has been.”

Holding that line means closing off the possibility of Lee telling the story of the first 18 years of her life, information that wasn’t considered in her original trial because the sentence was mandatory.

The brief filed on her behalf details a litany of allegations she made about abuses and traumas she suffered as a child. She told attorneys that her father and then stepfather regularly beat her mother, which left blood on the walls and floors of their home. Her family was homeless at times. When they did have housing, it was often rodent- and roach-infested and lacked heat in winter. At age 5 or 6, she was molested by an older cousin. At 8, she began drinking alcohol. At 16, she was raped at knifepoint while walking home.  

Lee and her attorneys also hope to describe in court who Lee is today. She works as a substance abuse counselor, helping women with drug and alcohol issues, Grote said. While incarcerated, Lee learned and transcribed Braille and co-wrote a play about her life, her attorneys said. For more than 20 years, she has “not received a misconduct [citation]” the Pennsylvania Department of Corrections wrote in an email to The Appeal.

Lee wrote to The Appeal that if she is released, she hopes to pursue a career in the “helping professions.” She wrote that her passion was “righting injustices.”

“I tried to save Mr. Walker’s life,” Lee wrote, recalling her decision to alert the bus driver after Walker was shot. “I’m praying someone tries to save mine.”