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The Boston Globe

Metro

Convict calls for life sentence ban

In a challenge to the way the state sentences juveniles convicted of murder, a prisoner is asking the state’s highest court to prohibit sentences of life without parole for juveniles as cruel and unusual punishment.

The appeal follows a landmark Supreme Court decision last year that held that automatic life sentences without parole for juvenile offenders are unconstitutional, citing developmental differences between juveniles and adults.

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But the lawyer for Kevin Keo, a Lynn man found guilty of a murder committed when he was 16, is asking the Supreme Judicial Court to go a step further and ban life without parole sentences for all juveniles. The state’s ban on cruel or unusual punishment “prohibits not just the mandatory imposition of a life sentence without parole for juveniles, but the imposition of such a sentence even where it is not mandatory,” Keo’s lawyer, Leslie O’Brien, wrote in a brief.

The SJC is scheduled to hear arguments in the case Tuesday.

In what is known as the Miller decision, the Supreme Court ruled in June 2012 that juvenile offenders have “diminished culpability and greater prospects for reform,” and that judges should be able to consider the “mitigating qualities of youth” in sentencing.

The decision has given prisoners who were convicted of murder as juveniles and sentenced to life without parole a new path to challenge their sentences, and appeals have begun to reach the courts.

According to a brief filed in Keo’s case, prosecutors said juveniles convicted of murder are entitled to a hearing to determine their eligibility for parole; court administrators could not say Monday whether any such hearings have been held.

Prosecutors urged the court not to bar the sentences completely, calling the defense’s assertion a “clear intrusion on the legislative prerogative, unwarranted by any notion of proportional punishment.”

“This court should decline, however, the defendant’s invitation to go beyond the Miller ruling and categorically ban all nonparolable life sentences for juvenile first degree murderers,” the Essex district attorney’s office, which prosecuted Keo, stated in a brief.

Jody Kent Lavy, director of The Campaign for the Fair Sentencing of Youth, said prisoners across the country have challenged their sentences since the Supreme Court decision. Nationally, some 2,000 are serving mandatory life without parole sentences for crimes committed as juveniles, she said.

Kent Lavy said Massachusetts has one of the strictest sentencing guidelines because the state immediately transfers juvenile murder suspects to adult court. Under a state law enacted in 1996, those convicted of first-degree murder after age 14 are sentenced as adults.

In a brief submitted in opposition to Keo’s challenge, prosecutors in Plymouth County said that the Legislature passed the law amid growing concern about violent crimes committed by minors and that overriding life without parole sentences would do “great violence” to lawmakers’ intent.

“There is no reason to believe that the Legislature would intend to prohibit all sentences of life without parole for juveniles . . . simply because mandatory sentencing of life without parole is no longer permissible,” the brief stated.

In 2009, Keo was found guilty of shooting rival gang member Christian Martinez outside a Lynn restaurant. In sentencing Keo, the judge remarked upon the “senselessness and the horror of this crime,” said the government’s brief.

O’Brien said that Keo is challenging his conviction and that the motion for a new trial involves other issues: O’Brien contends that Keo’s trial lawyer failed to obtain the entire transcript of testimony from a key witness and that the judge erred by admitting a statement into evidence. The overall evidence that Keo premeditated or intended the killing was “extremely weak,” she wrote.

“Keo, who had a serious injury to his dominant hand, did not even leave the restaurant with the other three young men when the three went outside and initiated the attack on Martinez,” she wrote.

Peter Schworm can be reached at schworm@globe.com.

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