July 23, 2017

After spending a half-century serving life without parole for a murder committed as a teenager, Henry Montgomery is now preparing for a parole hearing, a shot at freedom capping years of litigation over a case that stretched from a Baton Rouge district courtroom to the U.S. Supreme Court, which declared his automatic life without parole sentence unconstitutional.

But courts have yet to reckon with scores of other Louisiana inmates who, like Montgomery, were convicted of murders committed as juveniles and automatically given no-parole life prison terms. Those sentences, the Supreme Court ruled, should be doled out only to the rarest and worst young killers.

A freshly signed state law, the product of two years of contentious haggling in the Legislature, is expected to turn the trickle of inmates seeking new sentences into a stream this fall as cases left on hold while lawmakers negotiated a compromise begin churning back through the criminal justice system.

Going forward, almost all convicted killers under the age of 18 will be sentenced to life with parole — only those found guilty of first-degree murder can be blocked from eventually asking to be released from prison.

But the law created less certainty for the hundreds of inmates found guilty in prior decades. In those cases, district attorneys can request court hearings to determine whether any of the already convicted prisoners should be given a chance at parole after at least 25 years behind bars. There are nearly 300 such inmates, though it's unclear how many have, like Montgomery, already received new sentences.

As prosecutors dust off scores of old case files as a November deadline to request resentencing hearings looms, public defenders in many parishes — already staring down budget crises — are fretting over the potential costs. The hearings before a judge, designed to determine if inmates are truly "the worst of the worst" juvenile murderers, can require extensive (and expensive) research into an inmate's childhood, including school and mental-health records.

Just who will pay for that work — and just how much work is constitutionally required to sort out the rare, hopelessly corrupt killers from the redeemable defendants — remains unaddressed by the law. Some public defenders and juvenile justice advocates warn that court battles could drag on for years.

"There are a lot of questions about these hearings that will now need to be resolved through long and messy litigation," said Aaron Clark-Rizzio, executive director of the Louisiana Center for Children's Rights, a New Orleans-based nonprofit that's lobbied to abolish juvenile life without parole sentences.

Compromise legislation

Clark-Rizzio and other juvenile justice advocates had hoped to abolish such sentences, arguing the high rate at which prosecutors in recent years have successfully pursued life without parole leaves the state in flagrant violation of the Supreme Court rulings on this subject. For the older cases of already sentenced prisoners, they wanted only the state Parole Board to pick up the job of determining who should be released.

The state Senate endorsed a version of the bill that would've done just that. But the proposal faced fierce resistance in the House — where lawmakers hewed more closely to policies favored by the influential Louisiana District Attorneys Association — forcing the bill's original author, Baton Rouge Republican Sen. Dan Claitor, to hammer out a compromise.

Claitor, an attorney and former Orleans Parish prosecutor, said many of the gripes about the law are signs of a good compromise leaving both sides unhappy. Though some details may require additional legislation in coming years, Claitor said, the law represents "a huge step in the right direction."

"I think the vast majority of reasonable people in the middle are satisfied," said Claitor. "On the baseline question of whether we've followed the Supreme Court's direction, I'd still say we have."

But some advocates were less charitable in their assessment. Chris Murrell, director of the Promise of Justice Initiative in New Orleans, said he feared the state's district attorneys would continue aggressively pushing no-parole sentences for teenage killers, a sentence Murrell said is rooted largely in the "outdated, racist notion of super-predatory young men." This could be done by charging more defendants with first-degree murder, he said.

Louisiana and other states began holding sentencing hearings for juveniles convicted of murder following the U.S. Supreme Court's 2012 decision in Miller vs. Alabama that judges needed to consider a range of factors — including a child's maturity, capacity to change and any history of mental illness or abuse — before ruling out the possibility of parole.

Since that decision, Louisiana judges have held hearings for dozens of juveniles who've pleaded guilty or been convicted by juries of murder. A review of Louisiana Department of Corrections data and media reports by The Advocate identified at least 38 cases sentenced since the Miller decision, with more than half of the defendants receiving life without parole.

Only six of the defendants in cases reviewed by The Advocate were convicted of first-degree murder. Three were sentenced to life without parole while three others received the possibility of parole eligibility.

The high clip at which juveniles have received life without parole in Louisiana comes despite Supreme Court mandates that life without parole sentences, even for those convicted of murder, should be reserved only for juveniles who show "such irretrievable depravity that rehabilitation is impossible."

Earlier Supreme Court rulings had already declared life without parole unconstitutional for juveniles convicted of any crime besides murder.

Difficult old cases

The surge of decades-old cases, though, poses a host of new challenges for the courts and attorneys on both sides. Evidence has likely been destroyed while witnesses and relatives have moved on or died. For some, the case files themselves have been misplaced and police reports — banged out on typewriters and never entered into computer systems — have proven elusive.

Hillar Moore III, the East Baton Rouge district attorney, said his office is working to contact relatives of victims in the killings but faces serious challenges in older cases. Moore's prosecutors have turned to old newspaper obituaries and online databases to track them down. When they do find them, Moore said, most are shocked that the cases have suddenly been reopened.

Moore said his entire office will review the roughly 30 pre-Miller juvenile life without parole cases in the coming weeks, using a pair of recent resentencing decisions by Baton Rouge Judge Richard Anderson as guideposts.

"I believe we're going to be able to handle these fairly expeditiously and I think you'll probably see a minimal number of hearings," Moore said. If prosecutors waive court hearings, inmates will be able to take their requests for relief directly to the state Parole Board.

Anderson granted Montgomery, who was described by prison officials from Angola as a model inmate, the chance at parole. But the judge again sentenced Anthony Johnson, convicted of killing Daniel Magee a decade ago when he was 17, to life without parole.

"It doesn't appear the defendant has changed a whole lot," Anderson told Johnson at the hearing, referring to a prison record littered with disciplinary write-ups.

The dozens of sentencing hearings already carried out in Louisiana have varied widely, with some stretching for hours and others consisting of little more than a parent's tearful testimony.

That inconsistency, according to defense attorneys, suggests a fundamental problem with the proceedings. Properly preparing for the hearings can be very expensive — Jay Dixon, the state public defender, has estimated the bills can run $50,000 to $75,000 per case — and nearly all the defendants are impoverished clients of the state's already stretched public defenders.

In south Louisiana, where destructive hurricanes have washed away documents and scattered families, chasing down foster care records or former neighbors can be a daunting and time-consuming enterprise.

But unlike in death penalty cases, where public defenders can access special funds to pay for investigators and expert witnesses for similar sentencing hearings, there's currently no funding mechanism to cover the significant costs of digging up mitigating evidence in juvenile murder cases.

"There's just not funding for it," said Carol Kolinchak, a longtime public defender who now tracks the cases for the Louisiana Public Defender Board.

With district attorneys still mulling how many older cases to bring back for resentencing, Murrell said he fears prosecutors in at least some parishes will at least file for hearings in nearly all of them — triggering expensive background investigations by defense attorneys to prepare for possible hearings.

Jerome Matthews, a private criminal defense attorney, repeatedly begged for funding from the courts while representing Dexter Allen, who was convicted earlier this year for the 2015 double-murder of a Metairie father and son.

Allen, who was 17 years old at the time of the killings, had attended schools in several states after his family was displaced by Hurricane Katrina, Matthews said. There was no money to pay for mental health experts, Matthews said, and an investigator who volunteered to work for free couldn't track down all of the school records.

After a brief hearing, a Jefferson Parish judge sentenced Allen to life without parole. Matthews said a number of key questions about his client's childhood, mental health and other factors brought up by the Supreme Court went unanswered before sentencing.

"He didn't have a fair hearing and he didn't have fair representation, either," Matthews said. "The DA spent hundreds of thousands of dollars prosecuting him, the court spent tens of thousands of dollars for the trial. You think they could find some money somewhere for a proper hearing before saying you have to go away for the rest of your life and there is no possibility to be released."