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Lack of guidelines may leave juvenile offenders up in the air

By Johanna Somers

Publication: The Day

Published July 01. 2013 4:00AM
General Assembly offers no help after high court rulings

Hartford - The 171 state prison inmates who committed serious crimes before they were 18 years old, including the teen who killed Matthew Chew, could now fall into a "legal limbo" after the General Assembly this spring failed to offer guidelines to state courts in light of recent Supreme Court rulings that limit the sentences for such inmates, according to Susan Storey, the state's chief public defender.

"It's going to create a lot of confusion," said Mike Lawlor, undersecretary for the criminal justice division of the Office of Policy and Management and a member of the Sentencing Commission, which proposed legislation for the state to enact. "It's extremely unfair to the victims."

The case of Idris Elahi, who received a 35-year prison sentence and was 17 when he fatally stabbed Chew in New London in 2010, is one of the cases that could be reconsidered under the Supreme Court's decisions.

Others on the Department of Correction list of inmates who were sentenced to 20 years or more for serious crimes committed when they were under 18 include Vincent Green, who took part in the murder of 29-year-old Kyle Sheets in 2008 aboard a boat at a Mystic marina; Bennie Gray, who killed DeJohn Strong at a Michael Road apartment complex in New London in 1997; Gary Jones, who shot New London police officer James Suarez in 1991; and Michael Bernier, who killed Elaine Cluny and her 14-year-old son, David Cluny, in 1993.

Victims and relatives of victims are likely going to have to see the perpetrators of crimes in court because of three U.S. Supreme Court decisions. It is unclear how the sentences of these inmates might now change.

In 2012, the court decided in Miller v. Alabama that even in the case of homicide, child offenders couldn't be given a mandatory sentence of life without parole. This followed the 2010 Graham v. Florida decision, which said it was unconstitutional to sentence juvenile offenders to life in prison without parole for a non-homicide crime.

A juvenile offender must be given a "meaningful opportunity" to obtain release before the maximum term of his or her sentence "based on demonstrated maturity and rehabilitation," according to the Graham decision. The Supreme Court had already decided in 2005 in Roper v. Simmons that offenders under the age of 18 could not be executed for crimes they committed.

The three cases are requiring states to change the way they sentence juvenile offenders.

The Connecticut Sentencing Commission had proposed House Bill 6581, which passed, 137-4, in the House but was not called up in the Senate. Some provisions of the bill would have retroactively eliminated life sentences for capital felony or murder with special circumstances, such as murdering a police officer or committing two murders; required a criminal court to consider certain factors such as maturity when sentencing someone convicted of a class A, B or C felony committed between the ages of 14 and 18; and established different parole eligibility rules for juvenile offenders sentenced to more than 10 years in prison.

House Speaker Brendan Sharkey, D-Hamden, said the day after the 2013 legislative session ended that the General Assembly would have to revisit the bill in the next session because the state could face challenges.

Last week, Gov. Dannel P. Malloy said he hoped the legislature would take up this issue in a timely fashion but doesn't foresee a special session this year.

Defense lawyers have already been appointed in some of the 171 cases but had been waiting for the guidelines from the state, Storey said.

Now, she said, she expects defense lawyers representing convicted juvenile offenders to move to go to court through various legal options.

Some of the legal options could be filing a writ of habeas corpus, claiming unlawful detention; filing a motion to correct an illegal sentence or filing a motion for a new trial, she said.

She added she would expect the defense lawyers to hire experts to help determine whether some factors, such as whether the defendant had an underdeveloped sense of maturity, were considered at the time of sentencing.

"I think there is an opportunity for some very creative 'lawyering' that could result in a lot of different decisions," Storey said.

Chief State's Attorney Kevin Kane said in a phone interview this week that he would have preferred that a law had been passed but that the legislature could reach a decision next session without a major problem for the courts.

Both Storey and Kane agreed that the Supreme Court decisions make it clear that any case of someone sentenced to life in prison for their natural lifetime or life without the possibility of release - which is true in about five or six of the 171 cases - would have to be dealt with.

Kane said there are some "remedies" to slow down the release of someone convicted of a capital felony.

For example, when someone is convicted of a capital felony, which includes another crime besides a single murder - or a second murder - the court might decide to vacate the natural life sentence from the capital felony conviction but keep the sentencing for one or both of the murders, Kane said. It is likely there would be other sentences attached to the murders, he added.

The lack of a law "doesn't mean people are going to have sentences vacated and walk out the door. It depends on the circumstances of each case," Kane said.

Cases in which defendants were given life in prison, which in Connecticut means 60 years, would be more difficult, they each said.

"The Supreme Court hasn't ruled what a 'life sentence' means," Kane said. He added that the Supreme Court's Graham decision regarding "life" sentences "will ultimately be held to mean 'lengthy.'"

The question is "What is a lengthy sentence?" Kane said.

The Sentencing Commission had determined for the purposes of its proposed bill that the Graham decision referred to "lengthy" sentences and provided guidelines to allow the inmate to be eligible for parole earlier - that is, after a portion of the sentence had been served.

The Supreme Court's three decisions were not as clear on how courts should handle "lengthy" sentences for juveniles as they were on how courts should handle natural life sentences, Storey said. However, if factors such as maturity were not brought forward during the trial, she said, she thought defense attorneys could ask for the sentence to be reconsidered.

The Sentencing Commission's proposal also would have provided the courts with options and balanced the needs for public safety, Kane said. For example, if a defendant were released, he or she would have been on parole and could be re-incarcerated by the parole board.

Now "that safety net is not there, really," he said.

But even if the sentencing commission's proposal had become law, Kane said, the victim still would have been subjected to the re-opening the case.

"Having the possibility of, or having the sentence reduced, which victims thought would not be reduced, sure, that is something that is unfortunate to put victims through," Kane said.

j.somers@theday.com

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