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Archive for October, 2015

Supreme Court Hears Case on Why Juveniles Should Not Die in Jail

Tuesday, October 13th, 2015

supcourt_buildingAs a trial lawyer and former prosecutor, I always seek justice and fairness during sentencing hearings.  When defending an individual, I argue the merits of a sentence based on the specifics that relate to that person.  Everyone is unique in what brings them before the criminal justice system and how the court should sentence them.  On Tuesday, the U. S. Supreme Court will hear  oral arguments in the case of Henry Montgomery, a Louisiana man with a low IQ of 70, who was convicted as a juvenile for killing a police officer and sentenced to the death penalty almost 50 years ago.  His death penalty sentence was overturned in 1969. And he was given a life sentence without the possibility of parole.

 

Montgomery’s case comes before the U.S. Supreme Court following a 2012 Supreme Court case ruling that those who were juveniles at the time  of their offense must be given a sentencing hearing to determine if life without parole is appropriate  under their specific circumstances.   They must be allowed to present mitigating circumstances to rebut a life without parole sentence and not face a mandatory sentence to die in prison.

 

Mr. Montgomery’s case occurred many years before the new law in 2012 took effect. His lawyers will argue to the court on behalf of Montgomery but possibly affecting perhaps 2,000 other youth lifers that the 2012 law should be applied retroactively.  If so, then Montgomery would have the opportunity to present mitigating factors  at a new sentencing hearing on why his life without parole sentence should be changed.

 

 

It is a legal debate of major proportions on whether the law should be considered retroactively. Most laws do not apply retroactively.  It depends on whether the court views the change in law as substantive or procedural.  If  the Supreme Court rules the  2012 ruling should be considered substantive, then Montgomery will be entitled to his new day in court for another sentencing hearing.

 

 

Many states prohibit minors from drinking alcohol until the age of 21.  Most states now have restrictive driving licenses until an individual reaches the age of 21.  Persons cannot vote until they reach the age of 18.  The reasons why state laws limit driving licenses and drinking alcohol is due to a realization that juveniles and teenagers are not often sufficiently able to reach sound decisions that will affect their lives.

 

The U. S. criminal justice system is one that is presumably  based on justice and fairness.  Many prosecutors ask for sentences that are just and fair.  While many sentences handed out by judges seem neither just or fair when it comes to mandatory sentencing, this is an opportunity for the Supreme Court to do what is just and fair.

 

If teenagers cannot be relied upon to drink alcohol or drive responsibility until reaching a certain age, it is difficult to see how they can be relied upon to make appropriate judgments when it comes to more gruesome issues like taking someone’s life.  That is not to suggest that in either of these situations that no punishment should be given.  The punishment for any particular crime should take into account any mitigating circumstances such as age, mental ability, IQ and any other relevant  factors.

 

It is never too late for the criminal justice system to be fair and just.  Justice has no time limits.  While many victims may object on the grounds of opening old wounds. I beg to disagree as that being a valid  reason for the Supreme Court to  do what is fair and just.

 

Those who are exonerated years later are given freedom. There is no statute of limitations on the court reversing any wrongs and doing what justice and fairness demand.  It’s never too late  for the  Supreme Court and our criminal justice system to be just and fair.

 

 

Debbie Hines is a trial lawyer and former prosecutor.  She often appears on air on Al Jazeera, MSNBC, CBS News, C-Span, BET, Fox 5, PBS News Hour and others.

 

 

Tamar Rice Never Stood a Chance with Police

Monday, October 12th, 2015

police-chase_mediumJustice is often elusive when it comes to blacks killed or injured by police whether 12 years old or 112. So it should come as no surprise when two reports issued over the weekend indicate the same will likely be true for 12 year old Tamir Rice. Tamir was shot and killed on November 22, 2014 by police officer Loehmann while he was playing with a toy gun in a Cleveland Park. A 911 call alerted that someone probably a “juvenile” with a “fake gun” was in the park. Tamir was holding a toy gun and killed within seconds of the officer arriving on the scene to investigate. And like so many before him, these reports indicate the officer was acting reasonably when Tamir was shot. The reports and passage of time since Tamir’s death leads one to almost conclude that once again justice will be denied without an indictment, arrest or trial.

Two reports, both commissioned by the Cleveland prosecutor’s office came to the same result—that the officer acted reasonable in shooting and killing Tamir Rice within a matter of seconds. One report was conducted by a Colorado prosecutor and another by a retired FBI expert. A decision on a whether to seek an indictment has not been announced.

I have friends and clients who ask what should they tell their teenage sons to protect them when confronted by the police. Unfortunately, there is not much that can be said. What do you tell a 12 year old—not yet a teenager old, going out to play on a playground? Do you tell him to be careful because otherwise he may be killed by the police? How would you prevent this incident from happening? Most encounters of a deadly nature or serious injury with police have little to do with sagging pants, Afrocentric hair styles, manner of speech, college degree or anything else that would make sense.

 

The standard on review seems to bend in favor of the police and not the innocent victim—who was otherwise doing nothing to provoke the police. The standard appears based on what the police officer  believes is reasonable fear for one’s life. And that statement alone will likely justify a 12 year old being killed playing in a park. Did Tamir look scary to the police while playing on the playground? How does a child playing instill fear in a trained police officer? Is it that all black men and boys look threatening to police?

 

Attorney General Loretta Lynch recently stated there was a need for local police departments to keep better tracking of killings done by police. There is no way to know the magnitude of a problem without understanding the underlying statistics and facts. And there should be federal database—not echoed by Lynch. We need to know how many Tamirs, Freddie Gray’s, Michael Browns and Walter Scotts were killed by police.   We need to know the circumstances surrounding these incident. That is the only way we can begin to recommend effective policy, protocols and procedures to change the present police culture.

 

It is the police who need to change. Police policies must be implemented to combat against the racial stereotypical thinking among many police—both black and white. Until the police change, more Tamir Rice’s will be singled out and die at the hands of police.

 

 

America’s compass for justice is lost anytime a 12 year old black child cannot play on a playground or in a park without being shot and killed by a police officer.  It is as if blacks once again have no rights that the police should and will respect.

 

Debbie Hines is a trial lawyer and former prosecutor. She often appears on air on Al Jazeera America, MSNBC, PBS, CBS News, C-Span, BET, Fox 5 News and others addressing legal and political issues on race, gender and class.