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Mass. seeks new policy on life sentences

Youths must get chance of parole

Middlesex District Attorney Gerard T. Leone Jr. is considering whether to appeal Judge Kathe M. Tuttman’s decision in the case of Ben Peirce, now 17, who is charged in the 2010 slaying of 29-year-old Adam Coveney.

Aram Boghosian for The Boston Globe

Middlesex District Attorney Gerard T. Leone Jr. is considering whether to appeal Judge Kathe M. Tuttman’s decision in the case of Ben Peirce, now 17, who is charged in the 2010 slaying of 29-year-old Adam Coveney.

Massachusetts juveniles ­incarcerated for life without ­parole will probably wait well into 2013 or beyond for a chance at reduced prison time, as lawyers, prosecutors, legislators, and advocates carefully craft a strategy to bring the state into compliance with new federal law outlawing the mandatory sentence.

Massachusetts has not been as quick to act as states such as North Carolina and Iowa, which have implemented new laws since June, when the US Supreme Court banned mandatory life without parole for ­juveniles convicted of murder. While change is expected in Massachusetts, either through the courts or legislation, no clear answers have emerged on how to handle new cases and review past convictions involving killers under 18.

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Governor Deval Patrick’s point person on the issue wants life without parole banned entire­ly for juveniles, whether mandatory or not. Middlesex District Attorney ­Gerard T. Leone Jr. wants teenage killers to serve a minimum of 35 years before becoming eligible for parole, while the Massachusetts District Attorneys Association has reached no consensus on a solution.

Meanwhile, the state’s public defenders office has mobilized and trained dozens of ­defense lawyers to work with as many as 80 inmates and ­accused teenage killers in Massa­chusetts who could be ­affected by the ruling.

The 5-4 Supreme Court decision in Miller v. Alabama banned the mandatory sentence, imposed in 29 states, as “cruel and unusual punishment,” but still gives judges discretion to impose life without parole for teenage killers.

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Last week, a Middlesex ­Superior Court judge wrote the first decision in the state discussing the consequences of the high court ruling, arguing that the only option available to judges now is to sentence teenage killers to life in prison with the possibility of parole. Legislation would be required, wrote Judge Kathe M. Tuttman, only if the state determines it wants the option to sentence juveniles to life without parole, a process that she said would require legislative guidelines.

The ruling tore open a door victim’s families thought was locked forever. Across the country, more than 2,100 individuals are serving mandatory sentences of life without parole for murders committed while they were under 18, said Marsha Levick, deputy director and chief counsel of Philadelphia’s Juvenile Law Center.

Middlesex District Attorney Gerard T. Leone Jr. is considering whether to appeal Judge Kathe M. Tuttman’s decision in the case of Ben Peirce, now 17, who is charged in the 2010 slaying of 29-year-old Adam Coveney.

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Jennifer Bishop Jenkins of Illinois, head of the National Organization of Victims of ­Juvenile Lifers, said states should not change law in ­response to the decision without talking to victim’s families.

“Of course, the uncertainty of these months after [the Miller case] is painful for these families,” said Bishop Jenkins, whose sister, brother-in-law, and unborn child were killed by a teenager now serving three life sentences. “Swift [action on the issue] can be good for victims, if it is thorough and properly done, but the state of Massa­chusetts cannot act until they talk to ­every family of a Massachusetts victim. Most of these families have had to wait for justice in any case.”

The high court gave states no specific guidance on how to apply the decision, nor indicated whether it should be applied retroactively to those already sentenced.

But the decision mandated that at least going forward, if prosecutors want juveniles to serve life without parole, the defendants are entitled to individualized sentencing hearings that consider factors such as their home life, intellect, and emotional capacity at the time of the slaying.

According to the Massachusetts Committee for Public Counsel Services, at least 80 people could be affected by the high court decision: Of those, 62 are serving a sentence of mandatory life without parole, one is awaiting sentencing, and the remainder face pending charges.

A bill to allow juveniles serving life without parole a chance at release after serving 15 years, which was proposed long ­before the high court decision, died in the last legislative session, and no new proposals have been submitted, said Gail Garinger, Massachusetts child advocate and Patrick’s top liaison on the issue.

In Massachusetts, unlike in other states, no teenage killers have filed motions for resentencing following the decision, but legal developments are ­unfolding in other ways.

Leone’s office is considering whether to appeal Tuttman’s decision in the case of Ben Peirce, now 17, who is charged in the 2010 slaying of 29-year-old Adam Coveney. Peirce’s lawyer, John Salsberg, had asked Tuttman to clarify what the ­Supreme Court ruling meant in Peirce’s case.

It is a question being asked by many defense lawyers, who have said they cannot advise ­juveniles without knowing the potential punishment.

“I think that is a quandary for the states,” Levick said. “You have to know what sentence you are exposed to when you enter into plea negotiations.”

Kevin Keo of Lynn, serving life without parole for a murder committed when he was 16, is appealing his conviction to the Supreme Judicial Court based partly on the high court decision that the punishment is ­unconstitutional.

Leone wants Marquise Brown to serve life without ­parole for the 2009 slaying of Tyriffe Lewis in Framingham. Brown, then 17, was convicted in August, but sentencing has been delayed as prosecutors seek clarification of the high court’s ruling in Brown’s case.

So far, Leone is the only state prosecutor to publicly advocate for a particular position on ­juvenile killers, arguing that they should serve decades in prison before parole eligibility. Other prosecutors “have not come to a consensus” on what to do, said a spokesman for Worcester District Attorney ­Joseph D. Early Jr., president of the Massachusetts District ­Attorneys Association.

But Massachusetts officials are carefully eyeing other developments in other states for clues on how to move ahead. In July, Governor Terry E. ­Branstad of Iowa commuted 38 juvenile life sentences, requiring inmates to serve a minimum of 60 years after their original sentencing before apply­ing for parole.

An Iowa judge later rebuked him for ignor­ing the Supreme Court by not providing offenders any meaningful opportunity to ­obtain release.

“A blanket sentence for 38 juvenile offenders that provides no eligibility for parole for 60 years is not the sort of individualized sentencing envisioned under Miller v. Alabama,” Iowa District Court Judge Timothy O’Grady wrote.

North Carolina and California have passed laws since June applying the decision retro­actively, allowing hundreds of juvenile killers a chance at ­parole once they have served 25 years in prison, a sentence that Garinger opposes.

“Any state that imposed a substantially longer sentence, one over 15 years without a chance for parole for individuals under 18 — it would not be something I would support,” Garinger said.

Garinger wants Massachusetts to go further than the ­nation’s high court, banning ­juvenile life without parole completely, and she is briefing Patrick on reform discussions.

“The governor is very well informed on this issue and very concerned about it,” Garinger said.

Josh Dohan, director of the state public defender’s Youth Advocacy Division, said dozens of lawyers are being trained to represent the individuals ­potentially affected by the high court’s ruling, at least 80 of them, most of whom are in­digent.

It is likely that any proposals that require teenage killers to spend decades in prison before they have a chance at freedom will be challenged in the courts. The Supreme Court decision said juveniles deserve a “meaningful opportunity to obtain ­release,” based on demonstrated maturity and possible rehabilitation.

“Huge sentences that span the majority of a normal youth’s life expectancy are in fact life sentences,” Dohan said.

Some parents of murder victims agree.

Sonia Booker, 79, whose son Jeffrey was killed by a 16-year-old in 1988, said teenagers who kill should not be punished forever. “Don’t take their whole lifetime away,” she said. “Vengeance is not mine.”

Milton Jones, whose son ­Elijah Pace was killed by two youths, said juveniles deserve a chance at redemption. “Prison has its purpose, but it can wear out if it is too long,” Jones said.

Juvenile killers in other states are challenging their punishment. A New Hampshire judge has given Stephen ­Spader, the convicted killer of a Mont Vernon woman in 2009, until January to file an expert witness report in his request for resentencing. Robert Tulloch, 17 when he helped kill two Dartmouth College professors in 2001, has also requested ­resentencing.

The Pennsylvania Supreme Court is the first state high court to test the applicability of retroactivity, hearing oral arguments this summer on how to handle the roughly 470 juvenile murderers serving mandatory life sentences without parole. Pennsylvania has also passed legislation granting future convicted juvenile killers the chance for release after serving between 20 and 35 years, depend­ing on the age of the killer at the time of the crime.

At least two state appellate decisions in Florida, which has a mandatory sentence, have ruled the high court’s ruling is not retroactive. In another case, lawyers for a 12-year-old boy charged as an adult last year argue that he cannot be tried in the slaying of his 2-year-old brother without clarity on his eventual punishment. Courtroom or legislative activity on the issue is also unfolding in Wyoming, Nebraska, and Michigan.

Back in Massachusetts, modifying juvenile sentences could burden a state budget ­already reeling from millions in unexpected costs generated by the crime lab scandal, juvenile lawyers acknowledge. Reviewing past cases involving juvenile killers could involve lengthy ­resentencing and parole hearings.

But keeping prisoners for decades into old age could cost states even more, said Sarah Bryer, director of the National Juvenile Justice Network.

“You are looking at 80 years in prison for teenagers,” Bryer said. “By the time they are in their 90s, you have enormous medical bills.”

The protection of a juvenile’s rights, not the cost, should be the priority for states, she said.

“If states want to take away someone’s liberty, expense shouldn’t be the most important question,” Bryer said.

The New England Center for ­Investigative Reporting is a nonprofit investigative newsroom based at Boston University.

Clarification: An earlier version of this story may have given the wrong impression about the number of juveniles convicted since June for crimes that resulted in a life sentence. Of the roughly 80 individuals affected by the court ruling, 62 are serving a sentence of mandatory life without parole, one is awaiting sentencing, and the remainder face pending charges.

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