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Listen: Lawyer Jean Strout '10 on Her Experience at the Supreme Court

Listen: Jean Strout '10 on Her Experience at the Supreme Court

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This spring, Jean Strout '10 discussed her experiences at the Supreme Court. In 2015, while working at the Juvenile Law Center, she was part of a seven-person team that briefed, argued, and won the Montgomery v. Louisiana case before the U.S. Supreme Court. This victory made retroactive the Court's previously ruling that children who commit murder while under the age of 18 cannot be subject to a mandatory sentence of life without parole. As a result, thousands of inmates who entered prison as juveniles are being resentenced or even released. In her talk, she discusses her firsthand experiences with the process, from drafting the petition and preparing a team member for oral argument to implementing the ruling in Pennsylvania.

Stout is an Equal Justice Works Fellow at the Support Center for Child Advocates in Philadelphia. She graduated from Swarthmore College with a B.A. in gender and sexuality studies and earned her law degree from Harvard University. 

Audio Transcript


Jean Strout:                         My name is Jean Strout. I graduated from here in 2010, so really not that long ago. It feels very strange to be in this room because I had a class in here [inaudible 00:00:11] philosophy. I majored in Gender and Sexuality Studies, so that goes ahead and tells you right away that you do not need to major in anything related to law in order to be a lawyer at all. So after law school, I went to Harvard and specialized in children's rights and I cam back to Philadelphia to work at Juvenile Law Center, working on foster care issues and juvenile criminal justice issues, which is how I ended up working on the Supreme Court case. So, before I begin, I would like to just go around and hear what year everybody graduated and maybe even what they do or why they're interested in coming today [inaudible 00:00:47].

Elanor:                                      I'm a Freshman. I'm [Elanor 00:00:50]. I just saw an email about this [inaudible 00:00:55].

Jean Strout:                         Thank you for spending your Friday night here with us.

Elan:                                           Hi, I'm Elan [inaudible 00:01:00] my religion department and [inaudible 00:01:01] studies. This is a great interest to me.

Cal:                                             My name's [Cal 00:01:06]. I'm a Junior. I'm interested because I'm interested in law school and I covered a bit of this stuff surrounding this case [inaudible 00:01:16] with juvenile lifers who are being re-sentenced a couple months ago for my journalism class.

Jean Strout:  Great. And this is embarrassing. This is just my mom. She just came [crosstalk 00:01:26].

Male:   Another thing she's responsible for Jane Stroud.

Jean Strout:   I made them come because I've never actually forced them to sit down for an hour before and listen to what I do at work. You can also share about yourself [inaudible 00:01:41].

Female:   Parent of Jean. Is that good enough?

Scott:  I'm Scott and I'm dating Jean [crosstalk 00:01:53] subject does sound interesting to me.

Jane Stroud:  I'm Jane's sister, Amy. I am a social worker so I deal with some of these issues.

Jim: I'm Jim [Oskowis 00:02:06], class of '88. I'm on the [inaudible 00:02:09] Philadelphia, so I organized this event. I should have apologized to you all for this sudden change. I got here 40 minutes ago to set up. I'm sure everyone discovered, "No. The whole building is taken over by various culture identity feasts and stuff." And I double checked and we did have the room reserved, but you're not going to [inaudible 00:02:27] that many people who need kitchen in that size space. So hopefully we'll all fit in here. We have 14 people RSVP'd, so given how many parents and [inaudible 00:02:37], I'm hoping that means that there's still another 8 people. I'm not sure where they're going to sit [crosstalk 00:02:43].

Jean Strout:  13 boyfriends.

Clint:  My name is Clint and I'm Jane's proud dad.

Lauren DeLuca:   My name's Lauren DeLuca. I graduated from here in 2010. And I'm an attorney in [Wilmington 00:02:59] and actually I practice [inaudible 00:03:02] law, but I'm involved in a grant in Delaware recently got in juvenile justice. I'm working with a [inaudible 00:03:10] and working with them, the school system. So I was really interested in [inaudible 00:03:17].

Eric Johnson:                        Eric Johnson. Lauren's husband. I didn't go to school here, but I did spend four years here with her.

Male:                                         [inaudible 00:03:28] at the time?

Male:                                         [inaudible 00:03:29].

Sheena Bell:                         [Sheena 00:03:31] Bell. I'm class of '61. I've followed this issue the paper over the years. I have followed it. It's very important.

Jean Strout:                         Great. Well, thank you to everyone for coming. So I was lucky enough that when I first came out of law school, my first job, this Supreme Court case came into our office and since I was the lowest on the totem pole, I got assigned to kind of doing all the research and working on it. So it was just kind of a luck of timing that I was able to work on this case. My office has actually been working on it for 40 years, around for 40 years, and they've been working specifically on juvenile sentencing and life without parole for 20 years. And have worked on three cases in the past, which I'm going to talk about today. And then for the first time, actually, we're representing the client in the Supreme Court in this case. So I came along at a really nice time where everyone had been working for many, many years, so that I was able to kind of step in and have this experience.

                                                      So I'm just going to start by talking about the juvenile justice system a little bit. So it started in Chicago in 1899. So over a hundred years ago is when we first started having juvenile courts in the US. And before that, kids were just viewed as mini adults, basically. They would go to the same courts as adults. They would get the same sentences. There was really no differentiation based on how old you were. So, in Chicago, in 1899 is when they started the model of saying, "Okay. If you're under 18, we can treat you differently from somebody whose over 18," which now we think of as kind of a common sense things, in terms of laws about smoking, or voting, and the military, other things. We all kind of recognize that 18 is the watershed age.

                                                      So in the past hundred years, every state started having its own juvenile court. So now it's in all 50 states, there's a separate court for kids under 18. And the focus is supposed to be, for kids, on rehabilitation instead of punishment. So, in the adult criminal justice system, there's really no secret that part of its purpose is actually to punish people for the crimes that they've done. In the juvenile system, that's not supposed to be the case. It's supposed to be based on rehabilitation. That broke down, pretty much, immediately, very quickly everywhere. That system pretty much went away from its original idealistic goal pretty quickly.

                                                      One way was that juvenile placements became like jails, basically. If any of you have ever visited a juvenile detention center, it's like a jail. There may be shackling. There's jumpsuits. There's cells. Kids can be kept just the way that you've seen in an adult prison. So it's really not very different.

                                                      The second way it broke down is that from the very beginning, they said, "Okay. Kids are different, but some kids are really, really bad, so we have to treat them as adults." So from the very beginning, they might say, "Okay. You're under 18, but you're 16 and that's old enough, so we're going to treat you as an adult." Or a different might say, "Well, anyone who commits a murder, is mature enough that we're going to treat them as an adult. Or anyone who's committed two or three offenses already, we're going to treat them as an adult." So from the very beginning, the kids who committed the most serious offenses were being funneled into the adult criminal justice system anyway. And that's what we're talking about today, is all kids who were tried as adults. They went right out of that juvenile system and into the adult system, so they're being sentenced and treated just along with everybody else ages 18 to 100, in the same system.

                                                      In some states, there's actually no age limit as to when you can be tried as an adult. So that's how you can get situations like this, where you have 11, 12, 13 year olds who are facing charges in the adult system, facing adult penalties like life without parole.

                                                      So this whole issue of how kids were being sentenced and treated got a lot worse, like everything else, in the 1990s with the crack epidemic. So the murder rates started going up and, as probably a lot of you have heard about in the last election, or you grew up and saw, sentencing laws got a lot stricter. So all of a sudden, if you committed three minor crimes, like drug crimes, you might end up in jail for life. If you're first offense and it's a serious crime, you're going to be in jail for life, or get the death penalty. All of the sentencing options got a lot more serious for everyone and especially for kids.

                                                      So some criminologists started talking about the rise of super predators, which you maybe heard some criticism for Hillary Clinton for calling children super predators in 1996. This was basically the idea that that generation of kids that were going up were going to have no conscious and all be in gangs and all be killing people with no remorse. And they were going to just be this totally different, much worse, much more dangerous generation than every before. And that's something that some criminologists and psychologist were saying that they thought was coming in the 90s. That these kids were never going to be rehabilitated. They're going to keep doing crimes and keep killing people, so we have to put them away now. Obviously, we all now know that that didn't turn out to be true, but you can still see it in the sentencing numbers. So this is kids who were sentenced to life without parole, overtime you can see that there's a huge spike right in the 90s around that time.

Male:                                         Can I ask while the chart's up there?

Jean Strout:                         Yup. Mm-hmm (affirmative).

Male:                                         What caused the big drop around 2000?

Jean Strout:                         Nobody actually, I think, really knows why the crime rate went down so precipitously.

Male:                                         So it was the crime rate, not the sentencing rate.

Jean Strout:                         Yeah. So obviously, the crime rate and the sentencing rate are tied. I don't have another graph that puts them side by side, but it would be like kind of a shorter graph. The incline would be less steep. The murder rate went down, but not so much that it justifies a difference in sentencing. And nobody really knows why the crime rate went down. I mean, different politicians have taken credit for it through their different policies, like stop and frisk and things like that [inaudible 00:09:28], but nobody really knows why kind of things calmed down so much, but they did.

                                                      So the sentence that we're talking today about is life without parole. So life without parole is just what it sounds like. It means you're sentenced to die in prison. Go to prison, you can't every get out. It doesn't matter how long you're there. It doesn't matter how good you are when you're there. Nothing matters. You're going to die there. That's it. So the term that we're using today is juvenile lifer and that's someone who is sentenced to die for a crime that they committed when they were under 18. So that could be something they did when they were 10, or it could be something when they were 17 and 364 days. A juvenile lifer is anyone who is sentenced life without parole for something they did before they turned 18.

                                                      So as of 2016, which is when the Supreme Court took up the case that we're going to be talking about today, there are about 2,500 people across the country serving this sentence, people who are sentenced to life without parole as kids. And some of them had just been in for two years, five years, ten years, since the 90s, others went in jail in the 1950s or 1960s. So these are people that went to jail when they were 16 and now they're 80. So they've been in for a really long time and never had any hope of release.

                                                      The part that's particularly relevant for us is that there's 2,500 juvenile lifers across the country and more than 10% of them were sentenced just in Philadelphia. Philadelphia has the most juvenile lifers of any place. It has 300, just Philadelphia. So 2,500 in the country, 300 in Philadelphia. And the rest of Pennsylvania is not much better. 20% of all juvenile lifers are from Pennsylvania. So we're the worst state, and within Pennsylvania, Philadelphia is by far the worst city.

                                                      So there's a lot of reasons why the fight for life without parole is particularly powerful for children. One issue is the racial disparity. So black youth are about 10 times more likely to get life without parole than white youth. That's something that you've probably heard reflected also in the death penalty, that adult black men are more likely than adult white men to get the death penalty.

Male:                                         And that's even for the same crime. Right?

Jean Strout:                         Yes. For the same crime. Yup.

                                                      And another issue is that juveniles are actually put into adult facilities when they're not yet 18. They're kept in, supposedly, a separate area. There's a rule that says the adults and the youth aren't supposed to be able to see each other, but it's unclear how well that's enforced in different places. And then, of course, once they're 18, they're immediately moved in with the adults. So they're in there with people of all different ages who have been in prison possibly for a very long time for various violent crimes. So they're just extremely likely to experience violence in prison.

                                                      Obviously suicide is a huge factor. These are people who are 14, 15, 16, 17, which is already a huge risk for suicide, who are then being told you're going to be in prison until you die. You have no hope ever of getting out.

                                                      And they also don't have access to any rehabilitation programs in many prisons. So prisons will prioritize people who are eligible for parole for their programs, like their therapy programs, or if you want to get a degree in school, or you want to do that cool program where you rehab a dog, or something like that. All of those programs are prioritized for people who are eventually going to get out on parole. So if you have life without parole, you're kind of the last one on the list to get any services. So many people just don't really get any. They're basically saying, "Well, you're not going to get out anyway, so there's no point in us giving you these rehabilitative services, or these services that are going to prepare you to live on the outside."

                                                      Of course, another thing is that most of the people never start their own families. Some of them do get married, they have romances through letters and things like that, but most of them don't get married. They never have children. And they kind of just watch their own families grow older and eventually die without having started their own families. So it's just a very overwhelming and depressing experience.

                                                      And partly for that reason, there are a bunch of different human rights norms that say that life without parole for juveniles is cruel and unusual and is essentially like torture, you can't do it. And the United States is the only place that still does life without parole for juveniles in the whole world. I mean, officially. I'm sure there's some places that are doing it under the table. But in terms of the laws that we can look at that are on the books, the United States is the only place that's doing it. The UN Convention on the Rights of the Child has been signed by everyone in the world, all the countries except for the United States and Somalia. One reason is that the Convention of the Rights of the Child says that you can't give life without parole to juveniles. So we're really the outlaw here in the whole world.

                                                      So to move on from the depressing part, now I'm going to talk about how things have gotten better over the past 15 years or so and the kind of strides that different advocates have been taking that have been successful in the Supreme Court. So the case we're eventually going to get to is Montgomery versus Louisiana, which is what I worked on when that was decided last year. But there are a few cases before that really led up to it. You can't really understand Montgomery without looking at those.

                                                      So the first positive thing is that we no longer have the juvenile death penalty. So, that's good. We had it until 2005, which is probably much later than you would have expected. If you've ever thought about it, you wouldn't think that we were still killing children in 2005.

Male:                                         Depends on which states you lived in.

Jean Strout:                         Yeah. That's true. There were only a few states that were still doing it as of 2005, but it was still legal until the Supreme Court ruled against the juvenile death penalty in 2005. So that was the beginning of a big sea change about how the Supreme Court thinks about kids and how kids have to be sentenced differently than adults.

                                                      So up until Roper, which is the name of the case, Roper V Simmons, again kids were being thought of as little adults. They said, "Okay. The kids that are in the juvenile court, those are kids and we can rehabilitate them maybe, but the ones who go to adult court for really serious offenses, we're just going to treat them just like adults. They're going to get the same procedures. They're going to get the same sentences." In Roper, they finally acknowledged that even when a kid is being tried in adult court, they're still are differences that you have to look at when you're thinking about how to sentence that child.

                                                      So the three main differences that they pointed out between children and adults are probably super obvious to all of us, but it was the first sign that had been really articulated by any court. So the first one is lack of maturity. Duh. It's actually the definition of being an adolescent is you're not mature yet. Peer pressure, susceptibility to peer pressure. And the third is likelihood of rehabilitation. So that one came out of a lot of studies showing that just because you committed crimes, whether serious or minor, when you were under 18, by the time that you were 25 or 30, most people desist, they don't do it again, even if it was a very serious crime. It just seems like the kind of peak time for law-breaking activity is when you're a teenager and then it goes down and down and down over time. So when we sentence youth, we have to be thinking about the fact that the youth that they are today, is not the adults that they are going to be in 10 or 20 years.

                                                      So this was drawn, obviously, from common sense, just knowing what children are like. But it was also drawn from brain science. So the American Medical Association and a bunch of other scientist submitted all these briefs to the Supreme Court showing new research that they had done showing that, literally, the brain is not fully developed. So this is just one very simple scan, but the blue cells show a mature cell and the red is an immature cell. So you can see that, even by age 20, not everything is mature yet. They actually think that is around age 25 that you actually really become an adult. So there were lots of jokes in the office about that, about how all of our interns had underdeveloped brains because they were under 25. But the brain science was a huge, huge factor because it gave something concrete for the Supreme Court to hang its hat on and say, "Okay. Kids are different. I know it doesn't say anywhere in the constitution that kids are different, but we see this now. We have evidence."

                                                      So the specific constitutional grounds for striking down the death penalty was cruel and unusual punishment, which you probably all heard before. It's a very common challenge. People challenge different methods of execution, like challenge to the electric chair, or lethal injection, or other things on cruel and unusual grounds, that it causes them too much pain, that there are better ways to do it. This one was a proportionality analysis. So that's basically, does the punishment fit the crime? If you're looking at death and you want the death penalty, it's the worst thing you have to offer, it's the worst penalty, then you obviously want it only for the worst of the worst, if you're going to use it. What the Supreme Court basically says is, children are, by definition, not the worst of the worst because they're children. They're less culpable because they're immature, because they're susceptible to peer pressure, because they're likely to be rehabilitated. So you just can't use, ever, the very worst punishment on them because you know that they are not the worst. That's basically what they said.

                                                      Justice Scalia was very unhappy with this. He greatly disagreed. He basically said, "There's nothing in the text of the constitution saying that you can't kill kids and I like the text and therefore, I disagree."

Male:                                         Except for what cruel and unusual meant. I mean, that's [inaudible 00:19:18]

Jean Strout:                         Yes. He says that you should go by what cruel and unusual meant at the time, which maybe meant you can't burn people at the stake anymore. Maybe that's what they thought, or [inaudible 00:19:29] someone. They thought that was too far, but pretty much everything else was fine. If you're going by what they meant when they wrote the constitution, cruel and unusual that wouldn't mean very much because they were pretty barbaric at the time.

                                                      So the side of the court that went out was the court that said, "We have to look at the context. We have to look at what these words mean over time. We have to look at how society views decency and appropriate punishment now." So they looked at how things have changed across the country over the past 30 years since the last time that they considered this issue, and they said, "Okay. 30 states don't execute kids anyway, so if the 30 states obviously think that this is wrong. We're the only country in the world that still executes kids. The UN Convention of the Rights of the Child says you can't execute kids. And we think that public opinion is that you shouldn't execute kids. So the society has evolved to the point where we all can kind of agree that's not a decent thing to do and that makes it cruel and unusual punishment." So for a brief moment, everyone was very excited that the Supreme Court would start caring about human rights, but then they didn't. It was just that one time.

                                                      So this was part of a pattern of the Supreme Court going into the new millennium where they were just making sentencing less harsh. They seemed to be more on the side of the defendant. And maybe that's just because the composition of the court changed after the new nominees in the Clinton era. So, for instance, in 2002, there was an earlier case saying you can't execute a mentally retarded person. And so this case kind of followed, naturally, from that. If you can't execute a mentally retarded person because they're less culpable because of their incapacity, then you also can't execute a child because they have a similar incapacity. So they've kind of just been traveling down this road of ruling terrible things unconstitutional a little bit at a time.

                                                      The next case that they did was three years later, and that was Graham versus Florida. That was a kid who committed a burglary. Before that he had a robbery and went in front of the judge and the judge said, "I want to give you a really tough sentence." And the kid basically cried and was like, "I'll never do it again and I found God and I'm going to be good now." And the judge said, "Okay. I'll give you probation," and then six months later, he did a burglary. He went back in front of the same judge and the judge was like, "I gave you your chance and you swore to me you weren't going to do it again. And I don't believe you can ever change, so I'm giving you life without parole." He didn't kill anyone. There was no attempted murder. There was no murder. There was no killing of any kind.

Male:                                         In what state is life without parole permitted for burglary?

Jean Strout:                         It was Florida.

                                                      So, that went up to the Supreme Court. And again, the Supreme Court put another limit on sentencing for juveniles. They said, "Okay. We already got rid of the death penalty. That means life without parole is now the worst sentence for juveniles, so only the worst juveniles can get it. And this youth did not kill anyone, so how can you give him the worst sentence? The worst sentence should only be reserved for people who kill."

                                                      So they said in order to get life without parole, you have to have committed a homicide crime. Again, it was kind of punishment fits the crime kind of thing. If your crime is less serious, you should get a less serious punishment so you can't get the worst one. And again, this is in line with previous cases that they recently decided in a death penalty case, that adults can only get the death penalty for murder. So it used to be that adults could get the death penalty for rape, also. But the Supreme Court decided, in kind of a similar [inaudible 00:23:01], they basically decided murder is worse than rape, therefore you can only get the death penalty for murder. They're kind of making a hierarchy of crimes, which you can agree with or disagree with as you would like.

                                                      The court also noted that life without parole is a worse sentence for kid than it is for an adult. It's different to get life without parole when you're 40, then it is to get it when you're 14. Because, when you're 14, you've never lived on your own, you haven't been to school, you haven't started a family. You really haven't lived at all. Whereas, when you're 40, hopefully you've had more of those experiences. And also, if you're 14, you're just going to be there longer. If you're 40, you're maybe looking at 40 years in prison. If you're 14, you're looking at closer to 65 years on prison. So it's a more serious sentence. It's a harsher sentence. You're going to be in prison for longer. So, that was another reason that they gave extra scrutiny. So it's important to note that, in this case, they didn't say that kids can't get life without parole. They're still saying life without parole is okay for kids, but only when they kill people. That's kind of where they are at this point.

                                                      So, third case, Miller versus Alabama. Another life without parole case. That's when they decided that you can't give kids automatic life without parole. So in a lot of states, if you were committed of first degree or second degree murder, you didn't have a sentencing hearing where they were like, "Well, what kind of guy are you and what was your childhood like and what's your IQ," things like that. They just had the hearing where they said, "Did you kill the guy? Guilty. Okay. Life without parole. There's no way to reduce it, that's just what you're going to get." So they didn't have any individualized consideration at all. It was just like, "You're convicted, life without parole. You're done. You're going to die in prison."

                                                      So what the court decided with that one is that kids need to have individualized consideration and that comes in two forms. One is individualized consideration of the kid. What was their childhood like? What is their IQ? What's their educational background? Was there peer pressure involved in the crime? Were they planning to do the crime? What was their role in the crime? Things like that. And also, that every court has to consider youth. So they have to think, "Okay. How does this kids youth play into this? How does the fact that they are immature, that they can't foresee consequences, things like that, how does that play into the sentence?

                                                      Based on that, the court that life without parole should be rare. So they're narrowing it down. Before they said life without parole is okay if the kid killed someone. Now they're saying life without parole is okay if you killed someone, but only if you're the worst kid. The worst kid killed people. You have the worst. You got to look really bad. So they're saying it has to be rare.

                                                      So you would think that would solve some kind of problem, hopefully. There would be new laws. You would have to have individualized sentencing and, hopefully, life without parole would now be rare. Hopefully you would say, "Okay. Maybe the triple murder over here will get it, but maybe the drive-by shooter won't." That's the kind of calculations that they have made.

                                                      So going forward, that's happened now. Every state had to write some new legislations saying these are the factors we have to consider before we do life without parole. Here's the special sentencing hearing we're going to do. Things like that. But the court didn't specify that that applies backwards. So like I said before, there were about 2,500 kids serving life without parole in 2016. The court has now said, "Okay. You can't give automatic life without parole going forward," but what about those 2,500 kids, most of which got automatic life without parole already and the court's saying that only a couple of them really should have gotten it because it should be a rare sentence. So, to me, it seemed pretty obvious that it should have been applied retroactively because how can you say, "That's unconstitutional sentence. We can't do it anymore." And then say, "But if you were sentenced before 2012, then too bad. You're going to die in prison and that's just how it is."

                                                      But every state disagreed. Things got really crazy. Some states agreed and they were like, "We're going to make a new law. We're going to make it retroactive. We're going to re-sentence everyone. It's going to be fair and everyone's going to be treated the same." But most states said, "That sounds like a lot of work, we're just going to let those people die in prison and grow old and die and we're not going to do anything for them. We're not going to give them any kind of repeal.

                                                      So advocates in different states, including Juvenile Law Center in Pennsylvania, started bringing challenges and saying, "Hey. This new case came out. You need to re-sentence these people who got automatic or mandatory life without parole before." And, in 12 states, the Supreme Court said, "You know what? You're right. We do need to do that. Okay. We're going to re-sentence all those people." And eight states, the state Supreme Court said, "Nope. We're still going to leave them. We don't want to do it. The Supreme Court says we have to do it, so we're not doing anything." And the two states at the center of our story, which are Pennsylvania and Louisiana, both said no. So it went up to Pennsylvania's Supreme Court and they were like, "No. I know we have new sentencing statute, but that doesn't apply to that 500 juvenile lifers who are already serving. They're going to serve out their sentences and they're going to die."

                                                      So every time that one of the juvenile lifers lost, they all had their lawyers bringing up appeal to the individual state Supreme Court. State Supreme Court says, "Nope. You're staying in jail." They would all apply for [inaudible 00:28:25] to the Supreme Court. So a bunch of people applied in Pennsylvania, Louisiana, Michigan, California, other states that had decided we're not going to do anything for these people.

                                                      So they all applied to the Supreme Court. And we were all hoping that the Supreme Court would take this case, but we didn't know because they get about 8,000 petitions per year, and they only hear 80 of them. They hear 80 cases per year out of 8,000 people who write a petition saying, "Dear Supreme Court. Please hear my case." So we didn't have any guarantee that they were ever going to hear it, let alone hear it in a year. In order to pick which cases they hear, at least four justices have to agree that they want to hear. So you write your petition, submit it to the Supreme Court. The Supreme Court's clerks, which are all students from fancy law school's that have recently graduated, will write summaries of all of them. And the justices will go, "Oh, I think I want to decide that one. Oh, I want to decide that one." If it gets four votes, then it will actually be heard.

Male:                                         Do you know which four?

Jean Strout:                         No. I don't know. It's secret. Like much of the Supreme Court, it is secret.

                                                      So in December 2014, the Supreme Court accepted a juvenile life without parole case to decide if it was retroactive or not about what was going to happen to these 2,500 kids. And the case was called Toca versus Louisiana. My office, Juvenile Law Center, was very involved. They were coordinating the amicus briefs. Amicus brief is a very strange appeals court animal, which is where people who are not involved with the case at all, just get to write something and get it to the court to read. So it's very strange. You can just kind of say, "I care about how this case comes out. It vaguely affects me or my interest in some way or the other." And if the court wants, it'll say, "Okay. Give us a brief." So in the Supreme Court, a lot of amicus briefs get filed.

Male:                                         The court gets to say yay or ney to who it can-

Jean Strout:                         Yes. Yup. You have to apply for permission.

Male:                                         Only four justices have to agree that it's okay?

Jean Strout:                         I'm not sure about that actually. I don't know.

                                                      So one group the files a lot is law professors. They all have opinions about how the case should come out. So groups of law professors will get together and write. If it's a criminal law case, the victim's families will often write and then defendants families will often write. And then they kind of cancel each other out, so it's kind of irrelevant. Doctors will write. Scientist will write. States that agree will write. And the recent cases where, like Trump's travel ban was being challenges, the states write amicus briefs saying, "We think that it should be struck down," or, "We think that it should be upheld." So we were coordinating an amicus brief that was different legal advocacy groups that work on juvenile sentencing, so that's what we were coordinating.

                                                      But today we're here talking about Montgomery case and not the Toca case because things took a very weird turn. So Toca was someone who had been convicted of shooting and killing his best friends, I think in the 80s. But there was a lot of evidence forever that he was innocent. The victim's family never thought that he did it. He didn't match the victim description. There wasn't an eye witness. Throughout his entire trial, there was a lot of evidence that they had the wrong person.

                                                      And after the Supreme Court took the case, the state of Louisiana actually offered George Toca a deal and said, "Would you like to get out of prison right now, which will make you're Supreme Court case moot?" And so George Toca actually struggled with this a lot because he had been a juvenile lifer. And him and all the other juvenile lifers were waiting for this case to go up to the Supreme Court. Every year that they're waiting, more of them are dying and they're waiting for this to be decided. And he knew that by taking the plea, what if the Supreme Court didn't accept another case on this this year? Or what if they didn't ever accept another one and George Toca was the only one that got out and everybody else was stuck forever and died. But he had already spent 30 years in prison and in the end, he decided to take the plea and got out.

                                                      So this is very suspicious and one of our opinions about this is that the state of Louisiana knew that when it up to the Supreme Court, they were going to look really bad because there was going to be a lot of research into the background of the case and all of these innocence claims. And they basally, we think, didn't want to look bad on the national stage, so they just let George Toca out. And obviously they didn't really think he was that dangerous if they just decided in two weeks that they were going let him out. They just let him right out and he's out not. So he got out in 2016.

                                                      So we were all very happy, for George, that had happened because it seemed like he was innocent, which is completed unrelated to juvenile life without parole anyway. There's a lot of juvenile lifers that are probably innocent because kids are so likely to do false confessions, which is a whole other topic entirely. But they're just much more likely to bend under pressure and say, "Yes. I did it," and take the facts that are given to them by the police and sign confessions. Just because they don't really understand what's going on and some of them have disabilities, and just a lot of different factors.

                                                      So we were very afraid, because when the Supreme Court dismissed the case because it was moot because he was out, so he was no longer being imprisoned in violation of the constitution. But luckily they accepted another one right away. We don't know how they choose it all, but it seems like they really wanted to get Louisiana because they accepted another Louisiana case right away, even though there are a bunch of other states that they could've chosen.

                                                      So Henry Montgomery is who they chose, and this is another really interesting case in terms of the facts. So he was 17 when he killed a white police officer in Louisiana in 1963. So 1963, not an awesome time to be a young black man in Louisiana, obviously. So this is Henry during one of his trials. I can't remember if they say it in here. Yeah. They call him negro, obviously, because it's 1963 and they called him the Wolf Man. So Wolf Man was a nickname that he had gotten from his friends because he had kind of pointy teeth in high school. And then when he was arrested, the press kind of took it up and were like. "Wolf Man," he's very murdery and scary. He even had this murdery nickname, when really it had nothing to do with that at all. So in all of the press he was referred to as the Wolf Man.

                                                      So he was actually sentenced to death, which you could do back then because it was 1963. So at his first trial, he's sentenced to death and he appealed and went up to Louisiana Supreme Court. And even the 1963 Louisiana Supreme Court said that this trial had not been fair. There had been Klu Klux Klan activity all around his trial. They had reactivated in the area based on his trial. And the first day of his trial was actually named Charles Hurt Memorial Day and Charles Hurt is the person that he killed. So his trial began on Charles Hurt Memorial Day, which was now a holiday. So the Supreme Court of Louisiana was like, "Okay. Even for us, this was not fair. Send him back. Do it again." So he got retried and this time he got life without parole instead of the death penalty. And then Henry went on to live in Angola prison, which you've probably heard of as pretty much the worst prison in the country, especially at this period of time when it was a farm labor camp and one of the most violent prisons in the country.

                                                      Here's another photo of him being arrested and there's actually the sheriffs son. So he killed a sheriff, Charles Hurt, and Charles Hurt's son was a police officer also, and that's him in the middle. So you can see the son of the victim being involved in the arrest and the investigation of this case, which obviously is not something that we would allow to happen these days. So he is now, I believe, 79. So this is Henry Montgomery today, still in prison.

                                                      So how did we get involved in this case at a juvenile law center, and me? Because obviously we were not representing Henry Montgomery in 1960s Louisiana. We were not there. We were not his attorneys. He has been represented by the public defenders. And the most recent public defender had filed petition to the Supreme Court that had been accepted. And basically, when that petition was accepted, that public defender was like, "Holy crap." Everyone files tons. You never really think that it's going to get through. He's a Parrish public defender in rural Louisiana and he's like, "Oh my god." His name was Mark Plaisance and he was obviously thrilled that they took the case and that his client was going to be heard, but he also knew that he definitely needed some help because he had, I believe, never argued in a federal court before, let alone the Supreme Court.

Male:                                         [inaudible 00:37:28].

Jean Strout:                         Yes. So had heard of us in the news before about other work that we'd done with juvenile lifers. So he basically just called us and was like, "Can you work on this case? I need co-counsel. I need some help." And so that's how Marsha Levick, who's the director of Juvenile Law Center and myself and another attorney, along with some public defenders and a law professor became his team.

                                                      So we had gone from coordinating that amicus brief on George Toca to, within a couple months later, now we are representing Henry Montgomery in front of the Supreme Court. We were like, "Okay," so just a switch of perspective a little bit. What do I have next?

                                                      So we had the whole team and the first thing that we had to do was write the briefs. So this is the whole legal argument that you want to present to the court, although you also want to put in some of the emotional side, some of the story, to see if you can pull at the heart strings a little bit. So this is just the front of the brief. And briefs are incredibly annoying to write because they have to be absolutely perfect. The way that things are bolded and italicized and parenthesis and spaces and fonts and everything has to be exactly a perfect way for the Supreme Court. And if you don't do it right, they'll reject it and be like, "Write it again." And it's very, very annoying. And then on top of that, you have to have a very specific legal argument. You have to lay out every single point by point by point. You have to site every precedent that the Supreme Court has that you want to rely on, that you say, "Look. This fits in with what you did before. This is why you need to follow it." So part of my job was to write the brief.

                                                      Luckily we were not starting from scratch because my office had written lots of amicus briefs before. So we'd really been over all of this topic before. Why is life without parole bad? Why are kids different? Why should this be pled? We've written on that a million times and we directly represented some youth in petitions to Supreme Court and in proceedings in Pennsylvania, so we already knew what we wanted to say. This is cruel and unusual punishment. You need to go back and re-sentence all of the people who are experiencing it. But sadly, just like this isn't fair is not a strong legal argument, which continues to be very sad for me, the Supreme Court has its own set of rules about which decisions that they do apply backwards and which one's only apply forwards. And the reason they have that is a good read. Because they don't want to, every time that they make a decision, say, "Oh, every case that was decided in the previous way, you have to go back and redo it," because that just disturbs the state courts. It makes a lot of issues. And if it's something minor that they changed, then there's really no reason to go back and revisit every single one. So they make a differentiation between procedural rules, which only have to be applied going forward, and substantive rules.

                                                      So, for instance, if the Supreme Court says, "You need to submit this appeal within 60 days on a pink piece of paper." And the previous rule was you have to submit it in 30 days on white piece of paper, they're not going to go back and make everyone who appealed on the white paper, do it again. That just doesn't make any sense. It's obviously a procedural rule. They might have made it for a reason, but it's not enough to go back and make everybody do everything all over again.

                                                      On the other side, if the Supreme Court it's unconstitutional to execute a mentally retarded person, you can't just keep doing it just because the people were sentenced before that law came down. You can't just be like, "Well, he was sentenced in 2010, so we're just going to kill him." The law has said that's unconstitutional, so you have to apply it backwards. So, that would be a substantive rule.

                                                      The problem is that almost no rules are clearly procedural or substantive. And the way that the court has defined them is really weird and unclear basically. They have a whole bunch of cases. They have three different standards that they set forth at different times when different judges were on the court. So one court might say, "A substantive rule means that we're changing the range of sentences that a person can get." And then another person might say something totally different about what a substantive rule is 10 years later. They're like, "Let's change the standard." So you have a whole bunch of different standards stacking up over time that have all been applied very unevenly. So it's just a very confusing area of law.

                                                      And the decision that we were applying, very clearly had a procedural part because part of it is you have to do an individualized sentencing hearing. That's procedural. You have to look at this and this and this and check this box and this box and this has to be presented. That's very clearly a procedural rule. And the other half of the ruling was, you just can't give mandatory life without parole anymore. That sentence is gone. The sentencing range has to be increased. Before it was just life without parole, that was all you could get. You have to bring it down. So now the lowest sentence you can get is 30 years, and the max is life without parole. The max has stayed the same, but the minimum sentence is going to go down. It has to go down. So, that would be a good argument that it was a substantive one.

                                                      And another definition of what substantive means is kind of like an effect argument. How big of an effect would this have? If you went back and retried all these cases, how many of them would come out differently? If you put in this new rule and went back and retried all of them, and you would get all the same results again, then there's really no point in having it applied retroactively. But in a case like this, where you say, "Okay. You can't have mandatory life without parole anymore, it should be rare," when you go back, most of those cases should no longer be life without parole because it should be rare. So our argument was this would change a lot. This is a significant risk, that the sentence would change a lot. But it wasn't clear which way the court was going to come down on that. We made a bunch of different arguments about why it was substantive and procedural, and we really had no idea which one they would agree with, or if they would agree with us at all, and they would just say, "No. Mandatory, that mean it's procedural. The sentence is still there, you just can't make it mandatory. That's procedure." We really didn't know where they were going to go.

                                                      We also had to deal with a horrible jurisdictional issue. The state of Louisiana and us both agreed that the Supreme Court could hear our case, but at least four people on the Supreme Court thought that maybe they couldn't hear out case. So they actually appointed a third person to argue that the Supreme Court could not decide the case, which was very, very strange because we're all like, "You can decide it." And they were like, "We're not sure. We're going to appoint a whole nother person to argue it."

Male:                                         Was that done as a separate trial before you got to present your own case [crosstalk 00:44:21] at the same time?

Jean Strout:                         We actually ended having four people arguing with them to get to an [inaudible 00:44:26].

Female:                                   I'm sorry. I'm confused about that.

Jean Strout:                         Yeah. So the way that the case came to the Supreme Court was from an appeal from the Louisiana Supreme Court. So it's more complicated than this, but basically they said, "The way that this case came to use, we don't have jurisdiction because it came straight from the Louisiana Supreme Court," through he appealed to the State Appeals Court and then he appealed to the State Supreme Court and then that went straight to us. And the argument was, "No. He needed to go to federal court first."

Female:                                   Like the circuit courts? Is that what you're talking about?

Jean Strout:                         Yes. I still don't understand it entirely. I did not write the jurisdiction section. We had the law professor write that one. But basically they were saying, "It's not that we can't ever decide whether this has to be applied retroactively because that's clearly a federal constitutional issue." It's cruel and unusual punishment. Everyone agrees that's under the constitution. The only question was, "Well this case came to us this way, do we have to not decide this one and wait for another one?" We were like, "Oh. Are you kidding? You already want to wait for another one?"

Male:                                         So it seems pretty clear. You said four of them were arguing that shouldn't be and you know four of them had to say, "We want to take the case." [crosstalk 00:45:45]

Jean Strout:                         Yes. So were very upset about the jurisdiction issue because it draws attention away from the actual thing at hand, which is the fates of kids who have life without parole and whether they will be re-sentenced or not. And we had use half of our brief and half of our argument time and all these other things to devote just to a jurisdiction issue that doesn't really matter in the sense that they knew they could decide this issue that's on point.

Male:                                         Was the Louisiana side also having to argue? Or were they, "Great. Fine. If you guys win, it's a win for us."

Jean Strout:                         No. They thought they were going to win in Supreme Court, so they actually said, "Yes. Supreme Court, you do have jurisdiction. Please decide."

Male:                                         And spent time. Spent have of their-

Jean Strout:                         Yes. So it was a really weird situation where us and Louisiana were both like, "You obviously have jurisdiction to hear this." And five members of the Supreme Court were up there being like, "Yeah. Why are we arguing about this?" And then they appointed a law professor to argue against it. And Scalia was all like, "No. We don't have jurisdiction."

Female:                                   Sorry. Who appointed the law professor to argue against it?

Jean Strout:                         The Supreme Court did. So they just unilaterally were like, "We're not sure we have jurisdiction. We're going to appoint this guy to argue against all parties on the case who already agree."

Female:                                   At what point in the briefing process did they order that?

Jean Strout:                         It was before we started briefing. Thank God. It was when they first accepted the case. But we didn't expect that issue because we were kind of clearly the Supreme Court, you're allowed to determine your own jurisdiction. That's one of the new rules of the Supreme Court is they determine their own jurisdiction in a lot of ways.

Male:                                         Is it more, "We don't want to hear this case right now."

Jean Strout:                         Yeah. Probably. It probably was. Because it wasn't that this issue would never be decided, it could be decided that very same year with a case that had come up through the federal courts.

Male:                                         [crosstalk 00:47:37] there wouldn't be anybody left [crosstalk 00:47:40].

Jean Strout:                         So the jurisdictional issue was horrible. It was horrible and everyone who talked about it never agreed on what the basis was for jurisdiction. There were five people on our team discussing it, and we all were like, "No. They have jurisdiction because of this." And then someone else would be like, "No. It's because of this." Nobody ever agreed. We left it to the law professor who had studied this his whole life to write that sections and kind of hope for the best.

                                                      So finished up the brief and that's when we started preparing for oral argument. So that's kind of the main event that you think of when you think of Supreme Court, is when they're all lined up there. All nine of them. And they're high up looking down at you and then you have the two lawyers doing the questions.

                                                      So the way it typically works is that each lawyer has 30 minutes to make their argument. So it's actually much shorter than you might imagine.

Male:                                         You couldn't have said everything you said in that time.

Jean Strout:                         Yeah. I know. And so, as I mentioned before, Mark Plaisance, the public defender, he decided that he wanted to do the oral argument. It was his case. And so now he's in the big, big, big leagues of oral argument, never having argued in federal court before. So we did a lot of preparation. The scary thing about oral argument is that most of the time you don't even get through your initial summary before they just interrupt you and they're like, "But what about this." And they can go off in any direction. You don't know where they're going to go. You don't know if it's going to be something that you even prepared for because they have the entire cannon of Supreme Court history in their mind basically and every circuit court decision. So they could really go anywhere.

                                                      So Mark read a lot of cases. He did [inaudible 00:49:22], which are fun, where he stands up and we all get to pretend to be different Supreme Court justices. This justice would ask a friendly question probably and this justice would ask a really hard question and this ones not going to let you talk, but this one's going to try to help you. We had former Supreme Court clerks help out. And we just tried to imagine the hardest questions that they could possibly ask, of which there were many.

                                                      And then, so now I'm going to bring in lawyer number four. So we've already got Mark, who represents Henry Montgomery. He's on our side. And then we have the lawyer for the state of Louisiana, who is opposing us. We have the law professor appointed by the court, just arguing jurisdiction, that's it. And then we actually got a huge break because the Solicitors Generals Office of the United States said, "We agree with you. We want to come in and argue this with you." So when the feds are on your side, then that is very exciting thing. You can definitely take advantage of it.

Male:                                         Does the Supreme Court have to agree to let them in [inaudible 00:50:20] refuse?

Jean Strout:                         No. I think they do sometimes refuse. They don't have to agree to let them in, I don't think. So the federal government, so it was Obama's administration at the time, said, "We agree with you that there's jurisdiction and we agree with you that all these kids are going to be re-sentenced and so we're going to help you." And so they submitted a brief also and we split our time with them since we were on the same side. So we took 15 minutes and they took 15 minutes. And we had the Deputy Solicitor General, Michael Dreeben, argue the case. It was amazing because those people have done the most arguing in the Supreme Court of anyone. They're there several times a year arguing different cases. So they have a lot experiences. They know the justices. They're used to the pressure. So it's really amazing to have them on your side.

Male:                                         Did Mark get to go first or did he have to follow him?

Jean Strout:                         Mark went first. Yeah. So we also got to go to the Department of Justice and watch Michael Dreeben do his [inaudible 00:51:13] with all the Department of Justice trainees who were terrifiably prepared and very serious.

                                                      So all of this preparation ends with a proceeding that is really only an hour long. There were 15 extra minutes because of the jurisdiction guy who had been appointed, but it's just an hour and 15 minutes. And people were waiting all night in line to get in. There were people lining up at two A.M. or three in the morning, mostly family members of juvenile lifers wanting to know what's going to happen with their family. So luckily for me, I got to sleep in because I was part of the team, so I got a ticket. I didn't have to go in at two in the morning. But I was sitting out in the audience watching, and Mark Plaisance from Louisiana and my boss, Marsha Levick, sat up front.

                                                      so the oral argument was not what we wanted to happen. So it's only an hour long. Right? The first 30 minutes, they just talked about jurisdiction and we were all like, "No." And Mark Plaisance, who had written his original plea to the Supreme Court to take this case, that plea wasn't about jurisdiction, it was only about life without parole and re-sentencing. That's what he knew. That was his real house of knowledge, but he had his 15 minutes and the justices spent the entire 15 minutes asking him about jurisdiction, which is an extremely different topic for anyone to argue, let alone someone who hasn't spent their entire life studying it. So we were like, "Oh my gosh. We haven't even gotten to whether this sentence will be applied retroactively." And all of the judges, except for Justice Thomas, who never speaks, were leaping on him and being like, "Well what about this jurisdiction? Why do we have jurisdiction and no we don't." And just asking really difficult questions.

                                                      So luckily, when the Solicitor General went up, he went up second. He spent about, maybe, five or ten minutes on jurisdiction, and then Chief Justice Roberts was like, "Okay. We may actually have jurisdiction, so then we need to go to the next step. Can we just hear something about the merits?" And we were like, "Oh, thank God." And so the Deputy Solicitor General did a great job explaining the merit side of the case. Why is should be retroactive. Why they should decide that. And Justices Breyer, Kagan, and Sotomayor seemed very friendly. They were kind of asking him some friendly question and helping him along. And Scalia was, obviously, against. And everyone else was kind of unclear.

                                                      So, for those of you who aren't familiar with the Supreme Court, prior to Scalia's death, this was before he died, it was split between the four liberals justices and the four conservative justice. And then Justice Kennedy is kind of the middle. So if the liberals want to win, they have to swing him over to their side. So he wrote things like the gay marriage decision, the liberals got him over onto their side. So when you're thinking about whether you're going to win a case [inaudible 00:54:00].

                                                      So here is the group. Henry Montgomery's side at the Supreme Court. I think [inaudible 00:54:15].

Female:                                   Which one is Mark?

Jean Strout:                         So Mark is the man holding the briefcase. So he's the one who argued. And then the three women on the left are from Juvenile Law Center. The four on the right are from Louisiana Public Defender's office and then the guy peaking over the back is the law professor who wrote the jurisdiction section.

                                                      So once the oral argument is done, you're kind of like, "Okay. We spent six months on the brief. We spent all this time preparing for oral argument. And now there's nothing that you can do but wait." There's no deadline in the Supreme Court for when decisions are going to come down. They don't tell you. They don't say, March first, your decision will come down. It's just whenever the justices all agree and it can take a really long time.

                                                      So the way that it works is right after the oral argument, they go in back and they all sit around in a circle like this, and they all go around and say how they think they're going to vote. And then based on that, someone is assigned to write the opinion. So the side that has more votes is assigned to write the majority opinion and the side that has less votes is assigned to write a descending opinion. But that's not the end at all. Once the opinions are written, people are still changing their votes. They'll be saying, "Oh, I'll go over to your side if you add this or if you subtract this." There's horse training going on to try to get to a majority. And so that can take a really long time. Many, many, many drafts could keep going back and forth. You could have a majority and then you lose someone, then you're in the minority. It can go on for a really long time.

                                                      In our case, it took about three months until we got the decision. So we argued in October, we got it in January. And happily, we actually won by more votes than we even needed. We actually won six to three and most kind of controversial decisions are five to four. So these are the justices we love. Thanks guys. Justice Kennedy wrote the opinion. So, as usual, he was kind of the swing vote. So they agreed with us, both on jurisdiction, so they disposed of that, "Yes. We have jurisdiction to decide this." And they agreed with us on retroactivity. So they said, "Yes. We agree with this. It's retroactive. You either have to re-sentence kids or you have to give them a chance at parole after a certain number of years." So you can either go back and do a whole re-sentencing, where you do the individualized thing and you look at the crime and everything like that, or you can pass a statute for the whole state saying, "Okay. After 25 years, everyone's eligible for parole, instead of going back and doing those re-sentencing hearings." That's what they decided.

                                                      I put them in red. So the descent was written by Scalia and it was joined by Thomas and Alito. And they disagreed on both counts. So they said, "No. We don't have jurisdiction to decide this. And even if we did have jurisdiction to decide this, that's wrong. You did it wrong." Some of the words that Scalia used to describe the majority opinions were devious, silly, distorted, sorry, and declension. So he [crosstalk 00:57:24]. Sometimes he says stupid.

Male:                                         Or some word that nobody has used in the last century.

Jean Strout:                         Or some word that doesn't make any sense. Yeah.

                                                      And it's really unsurprising that Scalia felt this way because one of his famous quotes is: 'Mere innocence is no reason not to carry out the death sentence properly reached.'

Female:                                   Wow.

Jean Strout:                         So Scalia doesn't really care if you did it or not, he just cares was the court processed. Did it follow all the rules that he was supposed to follow? If you went and you were like, "Justice Scalia, nobody broke any constitutional rules. It's just that they jury decided wrong. I'm innocent. Don't kill me." He'd be like, "Too bad. The court process did what it was supposed to do, so you can die." So it's really not very surprising that was his opinion.

Female:                                   RIP. Rest in peace Justice Scalia.

Jean Strout:                         Yeah. And Justice Thomas also wrote his own descent, just on jurisdiction, which nobody joined, which is very common for Thomas, [inaudible 00:58:26] writes descents by himself that nobody agrees with, I guess, or doesn't what to join him.

                                                      So again, I would love to say that we solved the problem with this because we won. And now [inaudible 00:58:40] 2,500 kids spread across the country, 500 of them are in Pennsylvania, they need to be re-sentenced or get an opportunity for parole. We're going to do it. But it's been over a year now, since this was decided. It was decided January 25th, 2016. It's been a year and most of the states have not really figured out what they're going to do yet. So the vast majority, probably over 2,000 of those 2,500 kids, are still in prison and have not received a re-sentencing.

                                                      So what's going on in Pennsylvania is that they did pass a new statute with a new range. I think it's 25 years if you're under 15, and 40 years if you're over 15 is the minimum.

Female:                                   [crosstalk 00:59:24] how many years?

Jean Strout:                         I think it's 25 if you're 15 or under, and if you're over 15, I think it's 40 years to life are the new sentences going forward. But they decided, "No. We're not going to use that retroactively." So the 500 people in Pennsylvania, we do have a new statute, but the courts and legislature said, "No. We're not going to use that for you." So there's really no guidance on what to use for those kids to re-sentence them. There's no guidance at all.

Male:                                         Are there cases pending by some of those people to say, "Well I've still got life without parole and it's illegal."

Jean Strout:                         Yes. So now we have another case going up to Pennsylvania Supreme Court, brought by Juvenile Law Center, that's saying, "Hey. You need to figure out how you're going to do this. How are you going to do the re-sentencing? What are the guidelines going to be? What's the sentence that people can get? You need to clarify this." So the good thing about it is that it's going up to the Pennsylvania Supreme Court and it's going to be clarified exactly what needs to happen. The bad thing is that while that court process goes up, everyone in Pennsylvania is still waiting. Well not everyone, it depends on the county. Some counties said, "We want to wait for what happens with the Pennsylvania Supreme Courts. What if we do something wrong again and we have to go back and fix it again. We don't want to do that." Some counties just said, "Okay. Well, okay. Everyone gets parole now. Parole today for everyone." A couple of counties have done that.

                                                      In Philadelphia, it's been a little while. Our troubled DA, here in Philadelphia, promised last year that he was not going to seek life without parole for any re-sentencing. So if you do a re-sentencing, again, the prosecutor has to, again, say, "I recommend such and such sentence for this person." He said at the time, "I'm not going to ask for life without parole for anyone." Now it's a year later and he is life without parole for a couple of different defendants in Philadelphia. So he kind of promised he wouldn't, and then changed his mind.

                                                      It's estimated that in Philadelphia it's going to take about three years to re-sentence everyone. It started in June. Let's try to imagine being a juvenile lifer and January 25th, 2016 you said, "Oh my God. I'm going to get out." And then it's March 2017 and they're like, "We're going to get to your re-sentencing in two years. And then when we get to you, you might get life without parole again." It's not solved.

Female:                                   Are they getting any kind of help in prison now?

Jean Strout:                         Yes. They're now eligible for the services that they weren't able to get before.

                                                      The DAs office also has made some offers to juvenile lifers, the oldest ones who have been in for 40 or 50 years, saying, "Take this offer and you'll be eligible for parole immediately." And some of them have accepted those deals and a couple have gotten out on parole already. So they were accepted for parole at their first parole hearing.

Female:                                   What kind of deal?

Jean Strout:                         So it would be a time served to life sentence. So you would sign something saying, "My new sentence is not life without parole. I accept the sentence of time served to life without parole." So that would mean that very first day, they're eligible for parole, but it would not mean that they would ever get out. It just means they get to have a parole hearing. I forget how often, I think it may be every three years or something like that, you have a parole hearing. So it could be that every three years, you go and every three years they say, "No. Not you. You don't get to get out," and you still die in prison.

Male:                                         And that agreement is saying, "I get to apply to parole every three years instead of a re-sentencing hearing."

Jean Strout:                         Yes. That's right. So then other youth have, "No. I'm holding out for my re-sentencing hearing-

Male:                                         Because that could get you out instantly.

Jean Strout:                         -because then I might get 25 to 40 and I've served 40 and I get out today and I don't have to worry about going in front of a parole board." So different inmates have made different decisions about what they want to do and how long they want to wait and what kind of risk there is.

                                                      There's an interesting story of Joe Ligon, who's the longest serving Pennsylvania lifer. He was sentenced in 1953 when he was 15 and he's now 80 years old. And he was actually offered a deal which was immediate release with probation and he said no. He was like, "I've been in prison long enough and I don't want probation. You just let me out and let me go on my way." And they said no. So he just kind of took a stand and was like, "No. I'm not doing probation. You've had me in jail for 60 years. I'm not doing it."

                                                      Some counties, as I said, made their lifers eligible for immediate parole. Everyone knows there's a ton of counties in Pennsylvania. A lot of them just have one or two juvenile lifers. So they're just kind of going by whatever the local prosecutor wants to do. In some counties they're saying, "I'm going to retry everyone for life without parole. I think all these people are the worst of the worst and I want them all to get life without parole, again." Which is clearly against the spirit of the decision saying it should be rare.

                                                      It's really very said. On one machinist brief I worked on, the juvenile lifer actually died before his case was ever even considered. So for a lot of these inmates, it's very urgent. They're getting older. Their age related health problems.

                                                      So all that inconsistency I just talked about, that's just Pennsylvania. That's just the counties in Pennsylvania. Then you have 20 other states that are all deciding what to do. So in Michigan, I think only two people have been paroled so far, out of the 300 they have. A lot of people have been re-sentenced to 60 years before eligibility for parole. So they're 77, 78.

Male:                                         That is essentially life.

Jean Strout:                         Yeah. Exactly. Two thirds of the lifers in Michigan, the prosecutor is seeking life without parole again.

Female:                                   Two thirds?

Jean Strout:                         Yeah. In Iowa, all lifers were commuted to a sentence of 60 to life. But again, that means they're not even eligible for parole until their late 70s. Yeah. Based on their life expectancies, which are much lower for prisoners and much lower for people of color and much lower even for prisoners and people of color for people who went into prison as kids, that's the lowest life expectancy, most of the people are not expected to live past 65 or 70 based on their health conditions.

                                                      That's one of the legal questions going forward is, does it really count as an opportunity for parole if you're going to be eligible for parole at 85? The Supreme Court said you can't do life without parole. Isn't parole at 85 really, pretty much, the same thing as life without parole? So that's the questions that's going to come up.

                                                      Another one is, giving a chance at parole doesn't mean that you're going to be released. In some states, less than one percent of people are released on parole. So if you say that you get a chance at release, you get a parole hearing, but literally no one gets released there. Is that meaningful? Isn't that against the spirit of the law?

                                                      Something that Juvenile Law Center's litigating now is that youth can still get life without parole for a homicide where they didn't actually do the killing. So it's called felony murder. That would be if you were the getaway car driver, or if you were robbing somewhere with your friend and your friend shot someone. Sometimes you can even get it if you're robbing somewhere with your friend and your friend gets shot by the police. That's homicide on you because you should have foreseen that could occur during the crime.

                                                      so there's a whole category of kids who are in jail and they never actually, personally killed someone. And in many cases, it's admitted that they didn't intend to kill anyone. The court just decided that they should have foreseen that someone might die in the commission of the crime.

                                                      Yeah. So there's still a lot of questions going forward. Another thing is that if every kid's getting re-sentenced to life without parole, do we have to go and appeal those again? The Supreme Court said that it should be rare. If 80% of kids are getting re-sentenced to it, or whatever, it may be like, "That's not rare." So how can we bring that again?

                                                      So our hope, obviously, is that eventually life without parole for juveniles is just going to be abolished. Just like we hope that the death penalty will be abolished. Basically, our hope is that the Supreme Court will recognize that there's just not really a constitutional way to do it. No matter what you do, the states will kind of go around. And it's understandable in a way because if you think about many of these states, they don't get a lot of murders and they don't get a lot of juvenile murders. If you were in the middle of rural Oklahoma somewhere and you're a judge, you might get one murder case in your life. And if you're a juror, you obviously, probably, be on one murder jury in your life. And they say, "Oh. Is this person the worst of the worst? Should they get life without parole?" And everyone there says, "Yes." Because they're not seeing murders all the time. They're not saying, "Oh. Well, he didn't rape her before he killed her like that other murder case that we had." They don't have anything to compare to. So everyone thinks that the murder that is in their community is the worst of the worst and that's the one that should get life without parole and they have an emotional attachment to it.

                                                      So that just makes it very different. It's maybe easier in Philadelphia, where you have 300 and you can clearly be like, "Okay. Well this one didn't intend to and this one was second degree and this one killed a bunch of people." You can kind of array them. It's a little bit easier to understand. But in the cast majority of states where they don't have a lot of juveniles who are committing murder, every single one seems like, "Oh my God. This kid is the worst. They can never be rehabilitated. They're a monster."

                                                      So I'm going to end with some nonlegal, but some human issues that have come up in the wake of this case. One is what does a juvenile lifer do when they get out of prison? So you went in at 16, you're out at 60, 70. They've never had a job outside of prison. You probably don't have a wife or kids. All of your education that you got was in prison.

Male:                                         Never learned to drive.

Jean Strout:                         You never learned to drive. You've never used a computer or a cell phone in many cases. Joe Ligon went in in 1953. What is 80 year old Joe Ligon going to do in this world? And where is the funding going to come from to help these people? Who's going to help them reintegrate? Are we going to have half way houses? Are we going to have support homes? Most of the people's parents are dead, so they don't necessarily have a family to care for them. So that's one thing is just because they're released, it doesn't really mean that the issue is over. They need something to do with their lives and something to make their lives meaningful and something that they're not going to end up back in prison for stealing something to eat or something like that.

                                                      The other part I wanted to bring up is they don't want to forget about the victim. When these victim's families did this case, they were told, "This guy's going away forever. He's going to die in prison. You don't have to come to a parole hearing. You don't have to worry about it. He's never going to be out. Case closed." And now, 10, 20, 30, 40 years later, someone's getting a call saying, "Oh, actually the person who killed your daughter or husband or family member, is actually getting re-sentenced and we need you to come testify again. And if they have a parole hearing, you need to come to the parole hearing. And they might be getting out." So there's a need for victim services as well, because it is reopening old wounds for a lot of families.

                                                      So I hope that this has been encouraging than depressing for you guys. And I hope that I made clear that there's kind of a positive trajectory going forward. In the new millennium, the Supreme Court seems to have taken a different approach on this. And every couple years, they decide something that's better and better and better for kids. So we're hoping maybe the next one or the next one after that will be, "You know what? We just can't have life without parole for kids anymore. Every kid needs a chance for release." That's our hope.

Female:                                   The Supreme Court may be very different.

Jean Strout:                         It may be. Yes.

Male:                                         What happened to Mr. Montgomery?

Jean Strout:                         He has not been re-sentenced yet. So a year later he is still waiting for Louisiana to work it out. He's still in.

Male:                                         A couple of things. We're giving a question/answer period now, but I wanted to have a round of applause first because that was [inaudible 01:12:37].

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