By: Sabrina Davis

Imagine: you are sixteen years old and committed a crime. You are sentenced as an adult, and are mandatorily sentenced to life in prison. You reform yourself throughout your years of imprisonment, by completing your GED, taking college classes when offered, taking classes on behavior management and addiction. You volunteer to help other incarcerated individuals and you receive outstanding work evaluation reports from your superiors, and excellent case reports. However, parole hearing after parole hearing, you are denied parole because of your life sentence. You are serving a de facto life without parole sentence.

This situation is the reality for thousands of juvenile lifers across the United States. Fortunately, a line of Supreme Court cases held that children could not be punished in the same way as adults under the Eighth Amendment.[1]Empirical research supports this assertion by showing that children have lesser culpability than adults, and they often “age out” of crime.[2] In 2012, Miller v. Alabama held that a mandatory sentence of life without parole for a juvenile offender violates the Eighth Amendment.[3] Four years later, in Montgomery v. Louisiana, the Supreme Court held that Miller was retroactive.[4]  This meant that states must remedy the unconstitutionality of sentencing a juvenile to mandatory life without parole, either through resentencing or opportunity for parole.[5] The Miller and Montgomery rulings triggered many states to pass legislation allowing for juvenile lifers with mandatory life without parole (LWOP) sentences to be resentenced or paroled. Since 2012, thirty-two states and the District of Columbia have changed their laws involving juveniles sentenced to LWOP, with DC and twenty-five states outlawing the practice.[6]

This past spring, Maryland passed legislation allowing resentencing for certain juvenile offenders.[7] Colloquially known as the Juvenile Restoration Act (“JRA”), the statute provides for the resentencing of certain individuals if 1) they were convicted and sentenced as an adult to a crime committed when they were a minor, 2) have served at least twenty years, and 3) were sentenced before October 1, 2021.[8] An individual does not need to have been sentenced to life or life without parole to be eligible for resentencing under the JRA. For the court to consider resentencing the individual, they must pose no danger to society and must show that “the interests of justice would be better served by a reduced sentence.” [9] The JRA provides a list of mitigating factors that a court should consider, including the individual’s age at the time of the offense, the nature of the offense, the role of adults in the offense, and the individual’s history and characteristics.[10]Notorious for denying juvenile lifers parole, Governor Hogan vetoed the bill, but the Maryland State Legislature passed it over his veto.[11] The first day for submitting motions under the JRA was this past fall, on October 1, 2021. Although the statute is in place, and motions are being submitted and considered under it, the text provides no parameters to ensure that Maryland fully implements it.[12]

Unlike Maryland, Michigan has had resentencing legislation in place for quite some time.[13] Michigan’s resentencing act passed in 2017, one year after the Supreme Court decided Montgomery. Michigan’s statute gives prosecutors the power to handle resentencing matters, requiring them to issue names of those eligible to be resentenced.[14] The statute additionally requires prosecutors to submit motions requesting that individuals seeking resentencing be given maximum punishment for their original crime or be sentenced for a period of time between twenty-five to sixty years.[15] The breadth of Michigan’s statute is far broader than Maryland’s; it allows for the resentencing of any individual who 1) committed a crime, 2) was under the age of eighteen when that crime was committed, and 3) was sentenced to either life or life without parole.[16] Michigan had 363 juvenile offenders sentenced to LWOP when Michigan passed its resentencing bill.[17] Three years later, 163 juvenile LWOP were still awaiting resentencing.[18] The statute’s lack of an established timeline caused a delay in resentencing, which allowed prosecutors to exert their bias and resist resentencing eligible individuals.[19] Due to the statute’s silence on any timeframe for resentencing, Michigan is now a national outlier in the resentencing of juvenile offenders sentenced to LWOP.[20]

Unlike Michigan, Maryland should have no problems with prosecutorial delays, as Maryland prosecutors have no special role in the resentencing process.[21] Although prosecutorial delay will not be an issue, there are still several concerns with the JRA’s effectiveness. For example, the JRA, like the Michigan law, poses no timeline for the cases.[22]In fact, the JRA does not contain any logistics that would help Maryland rehear cases and fails to include who should hear resentencing cases.[23] As another example, there remains confusion about whether individuals should be resentenced by the original trial judge, the appellate judge, or a specially appointed judge for JRA resentencing matters.

As of December 2020, Maryland had fifty juvenile lifers.[24] Although Maryland has fewer juvenile lifers than many states, the JRA extends beyond juvenile lifers. It is applicable to  anyone convicted as an adult for a crime committed when they were a child and who has served at least twenty years.[25] Because of the statute’s framework, more than 300 people who are not juvenile lifers or sentenced to juvenile LWOP will be eligible for resentencing.[26]Resentencing all of these individuals is a massive undertaking: not only for the state of Maryland but for the Office of the Public Defender, both state and non-state appointed attorneys, prosecutors, and the incarcerated individuals themselves. Certain counties in Maryland have more cases than others, and Baltimore City is likely to have a backlog of cases to work through over the next year.[27] While the amount of work was expected, in the wake of COVID-19 delays, the difficulty in consulting with clients due to COVID-19 restrictions, and understaffed departments make resentencing efforts more difficult than anticipated.

Even with the challenges that may arise as incarcerated individuals file their motions; it is important that Maryland reflect and learn from states like Michigan who have struggled in their resentencing efforts. Such a reflection could result in Maryland adopting amendments to the JRA the specify a timeline for resentencing efforts, and on who should hear the resentencing cases. It could also result in changes on the county level, with each county taking a different approach to implement the statute in the way they feel is best. Whichever way the reflection takes place, Maryland should be sure to learn from the mistakes of Michigan. Maryland should certainly not have half of its eligible resentencing individuals still awaiting their day in court after three years.[28]  Everyone deserves their fair chance in court, and it is up to Maryland to provide that opportunity for those who were unjustly punished.

[1] See generally Roper v. Simmons, 543 U.S. 551 (2005) (holding that imposing the death penalty to an individual under the age of 18 at the time of the crime was cruel and unusual punishment under the Eight Amendment); Graham v. Florida, 560 U.S. 48 (2010) (holding the Eighth Amendment categorically prohibits life without parole sentences for children who commit nonhomicide crimes); Miller v. Alabama, 567 U.S. 460 (2012) (holding mandatory life without parole sentences violate the Eighth Amendment when imposed on juveniles); Montgomery v. Louisiana, 577 U.S. 190 (2016) (holding that Miller applies retroactively to “final convictions” on collateral review).

[2] See Montgomery, 577 U.S. at 195 (articulating the lesser culpability of juvenile defendants). See e.g., Jenny E. Carroll, Brain Science and the Theory of Juvenile Mens Rea, 94 N.C. L. Rev. 539, 575-76 (2016) (arguing that scientific developments showing cognitive differences in juveniles and adults demands a different consideration of mens rea); Laurence Steinberg & Elizabeth Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility and the Juvenile Death Penalty, 58 American Psychologist 1009, 1014-15 (2003) (examining existing scientific research finding that juveniles are less culpable than adults); B.J. Casey, Rebecca M. Jones & Todd A. Hare, The Adolescent Brain, 1124 Annals N.Y. Acad. Sci. 111 (2008) (examining how the juvenile brain differs from a fully formed adult brain).

[3] See Miller, 567 U.S. at 474-75 (noting the defendant was only fourteen at the time of the alleged crime).

[4] See Montgomery, 577 U.S. at 212 (expanding the impact of Miller to be retroactive).

[5] Id.

[6] See Josh Rovner, Juvenile Life without Parole: An Overview, The Sentencing proj., (May 24, 2021) (examining the United States’ usage of juvenile life without parole); see also Juvenile Restoration Act 2021, Maryland Alliance for Justice Reform, (highlighting that Maryland is one of the few states to not have banned juvenile LWOP completely). Despite resentencing efforts being underway, Maryland still allows for the sentencing of juveniles to LWOP, if it is not a mandatory sentence by statute. However, as evidenced by the juvenile lifers currently in Maryland, many are given de facto LWOP when they are not approved for parole despite unanimous recommendations by the parole board).

[7] Md. Code Ann., Crim. Proc. § 8-110 (2021).

[8] Id. at (b)(1).

[9] Id. at (c).

[10] Id. at (d) (including a catch all provision allowing the court to consider any factor the court may deem relevant).

[11] See e.g. Pamela Wood & Bryn Stole, Maryland Gov. Hogan vetoes bill eliminating life-without-parole sentences for juveniles, The Baltimore Sun (April 08, 2021) (stating Governor Hogan vetoed the JRA); Baltimore Sun Editorial Board, Kudos to Maryland’s Gov. Hogan for Paroling three ‘juvenile lifers,’ but we wish he weren’t involved at all, The Baltimore Sun (Nov. 25, 2019) (demonstrating Governor Hogan has a history of denying parole to juvenile lifers).

[12] See Md. Code Ann., Crim. Proc. § 8-110 (containing no timeline provisions and nothing providing the State make a good faith effort to resentence everyone eligible under the statute).

[13] Mich. Comp. Laws §769.25a (2017) (noting Michigan’s law was already in effect for four years before Maryland’s JRA went into effect).

[14] Id.

[15] Id.

[16] Compare id.; with § 8-110 (noting Maryland’s statute only concerns individuals who were under eighteen when convicted and were sentenced as adults).

[17] Kimberly A. Thomas, Juvenile Lifers and Juveniles in Michigan Prisons: A Population of Special Concern, 96 Mich. B.J. 24, 25 (2017) (examining the impact Miller has on juvenile LWOP in Michigan).

[18] See Kate Wells, Settlement Reached for Michigan’s juvenile lifers, schedules “prompt” resentencing, Michigan Radio (Sept. 30, 2020) (noting the timeline currently provides to resentence these individuals “as expeditiously as possible”).

[19] See id. (identifying why so many individuals have yet to be resentenced).

[20] See Eli Hager, Juvenile Lifers were mean to get a second chance. COVID-19 could get them first, The Marshall Project (June 3, 2020) (acknowledging the state is defying an order from the nation’s highest court).

[21] Md. Code Ann., Crim. Proc. § 8-110 (2021).

[22] See id.; see also Mich. Comp. Laws §769.25a (2017).

[23] See § 8-110 (providing no guidance on who should hear individual’s resentencing cases).

[24] Elizabeth Weill-Greenberg, Maryland Bans Sentencing Children to Life without Parole, The Appeal (Apr. 13, 2021), (explaining who is affected by the JRA).

[25] § 8-110(a).

[26] See Weill-Greenberg, supra note 23 (emphasizing the life-changing impact the JRA will have).

[27] See Maryland Counties by Population, (showing that population-wise, Baltimore City ranks the 5th largest county of the state); Race and Ethnicity in Maryland, Statistical Atlas, (Baltimore City has the highest population of Black or African-Americans in the state, comprising of 63.5% of the population); Maryland Profile, Prison Policy Initiative,  (showing research that shows that Maryland prisons exceed the national trends of disproportionality in prison populations based on race); see Juvenile Restoration Act, Note on Race and Equity (explaining that this trend is extremely present in the sentencing of juveniles as adults.

[28] See Wells, supra note 18, (demonstrating the backlog of cases, and the number of individuals waiting after three years).

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