Violent crime and its aftermath are difficult for any society to come to grips with, especially when the offenders are juveniles (legally speaking, children). In 2016, juveniles between the ages of 12-17 committed 182,000 violent crimes in the United States. A decade ago, it was common in virtually every state in the country to treat juveniles who committed serious violent crimes as adults and give them lengthy sentences to be served in adult prisons.

 

Seven years ago the U.S. Supreme Court in Miller v. Alabama set precedent by ruling that the imposition of a life sentence without the benefit of parole on a juvenile offender constitutes cruel and unusual punishment. The only exception to this constitutional rule is that if the juvenile offender is factually determined to be “the rare juvenile offender whose crime reflects irreparable corruption.”

 

In August 1993, twin 15-year-old brothers, Lydell and Laycelle White, broke into the Salem, Oregon home of an elderly couple, 82-year-old Richard Remy and his 80-year-old wife, Grace, whereupon they brutally beat and strangled the couple to death before fleeing in their vehicle. Juvenile court records at the time revealed that the brothers had a serious three-year criminal history that included crimes of robbery, burglary, carrying a concealed weapon, sex abuse, and harassment.

 

Brutal Murders Committed by Juveniles Tests Legal System

 

The brothers were convicted in 1995 and received sentences totally 800 months (nearly 67 years). Before imposing the sentences, the trial judge made these remarks to the brothers:

 

“You and your brother beat these people for a long, long time until they were dead. Human beings are tough. * ** It is very hard to kill a person with your fists and even with a club. It’s brutal, it is ugly, it is noisy and there is a lot of screaming, it is messy, you yourself got covered with their gore and it goes on for a long, long time and you can stop at any point during the process, but you weren’t overcome by the brutality or the gore or the horror of what you were engaged in.

 

“** * [M]ost of us cannot even imagine the scene as messy and as gruesome as you participated in and yet you didn’t stop, you kept on and on and after you found the car keys didn’t fit, you went back * ** and you continued to brutalize one of those individuals who wasn’t yet dead.”

 

Attorneys for the brothers filed exhaustive post-conviction appeals and pleadings seeking reversal of their convictions and sentences as the brothers grew up in the prison community.

 

In the wake of the Miller decision, attorneys for the brothers filed yet another post-conviction petition arguing that their 800 month prison term amounted to a virtual life sentence without parole because they would be 81 years of before becoming release eligible. The claim ended up before the Oregon Supreme Court.

 

The State responded to this claim by telling the Court that it should not consider “any term-of-years sentence, no matter how long” as the equivalent of a life sentence without parole. While the Supreme Court stated in its 2010 decision, Graham v. Florida, that although a juvenile offender is not entitled to a guarantee of eventual freedom, the State must provide some meaningful vehicle for freedom upon a showing by the juvenile offender that he is both adult mature and rehabilitated.

 

De Facto Life Sentence Reversed

 

In a May 31, 2019 decision, the Oregon Supreme Court rejected the State’s arguments. The Court reversed the brothers’ 800-month sentences violated Miller v. Alabama, finding that:

 

“ … The [State] does no more than to state, summarily, and without case citation, that, with good-time credit, petitioner’s sentence is not a sentence that offers ‘no hope or incentive for reformation.’ Second, even allowing for goodtime credit, petitioner will serve at least 54 years and will be released, at the earliest, when he is 68 years old. We know of no state high court that has held that a sentence in excess of 50 years for a single homicide provides a juvenile with a meaningful opportunity for release … Given those particular circumstances, we conclude that petitioner’s sentence is sufficiently lengthy that a Miller analysis is required. We do not mean to foreclose a future argument that a sentence in excess of 50 years would leave a particular juvenile offender with a meaningful opportunity for release. But in this case, that argument has not been developed …”

 

Brothers Have Opportunity for Release After 26 Years in Prison

 

The White brothers are now 41 years of age. They have been incarcerated in the Oregon prison system for twenty-six years. They have matured from children to adults in prison. Granted, as children, they committed horrific crimes, and there is no way to minimize the gravity of those crimes.

 

Under Oregon’s goodtime provisions, the brothers would have been eligible for release when they are 68 years of age, meaning they would have had to serve another 27 years in prison, before the Oregon Supreme Court ruling.

 

That ruling altered the life landscape for the brothers. The trial court must now fashion a sentence that allows for a meaningful opportunity for release upon a credible showing of maturation and rehabilitation. Although they are not eligible for any kind of mandatory release, the vehicle for release the trial court must fashion for the brothers has to provide meaningful consideration toward the prison release objective.

 

Cruel and Unusual Punishment

 

In October 2018, Josh Rovner with The Sentencing Project wrote that:

 

“Since 2012, 28 states and the District of Columbia have changed their laws for juvenile offenders convicted of homicide (including felony murder). All but four had previously required life without parole in these circumstances. These new laws provide mandatory minimums ranging from a chance of parole after 15 years (as in Nevada and West Virginia) to 40 years (as in Texas and Nebraska). Twenty-nine states still allow life without parole as a sentencing option for juveniles. In most states, the question of virtual life without parole has yet to be addressed.”

 

The Oregon Supreme Court became the first—or at least one of the first—court to address the “virtual life without parole” issue in the White brothers’ case. The court said that actual life without parole and virtual life without parole are equally unconstitutional.

 

We agree.

 

Keeping an adult who committed their crime as a child locked up in prison for the rest of his or her life, or even the vast majority of their lives, is patently cruel and unusual punishment.

 

 

 

 

 

 

 

Violent crime and its aftermath are difficult for any society to come to grips with, especially when the offenders are juveniles (legally speaking, children). In 2016, juveniles between the ages of 12-17 committed 182,000 violent crimes in the United States. A decade ago, it was common in virtually every state in the country to treat juveniles who committed serious violent crimes as adults and give them lengthy sentences to be served in adult prisons.

 

Seven years ago the U.S. Supreme Court in Miller v. Alabama set precedent by ruling that the imposition of a life sentence without the benefit of parole on a juvenile offender constitutes cruel and unusual punishment. The only exception to this constitutional rule is that if the juvenile offender is factually determined to be “the rare juvenile offender whose crime reflects irreparable corruption.”

 

In August 1993, twin 15-year-old brothers, Lydell and Laycelle White, broke into the Salem, Oregon home of an elderly couple, 82-year-old Richard Remy and his 80-year-old wife, Grace, whereupon they brutally beat and strangled the couple to death before fleeing in their vehicle. Juvenile court records at the time revealed that the brothers had a serious three-year criminal history that included crimes of robbery, burglary, carrying a concealed weapon, sex abuse, and harassment.

 

Brutal Murders Committed by Juveniles Tests Legal System

 

The brothers were convicted in 1995 and received sentences totally 800 months (nearly 67 years). Before imposing the sentences, the trial judge made these remarks to the brothers:

 

“You and your brother beat these people for a long, long time until they were dead. Human beings are tough. * ** It is very hard to kill a person with your fists and even with a club. It’s brutal, it is ugly, it is noisy and there is a lot of screaming, it is messy, you yourself got covered with their gore and it goes on for a long, long time and you can stop at any point during the process, but you weren’t overcome by the brutality or the gore or the horror of what you were engaged in.

 

“** * [M]ost of us cannot even imagine the scene as messy and as gruesome as you participated in and yet you didn’t stop, you kept on and on and after you found the car keys didn’t fit, you went back * ** and you continued to brutalize one of those individuals who wasn’t yet dead.”

 

Attorneys for the brothers filed exhaustive post-conviction appeals and pleadings seeking reversal of their convictions and sentences as the brothers grew up in the prison community.

 

In the wake of the Miller decision, attorneys for the brothers filed yet another post-conviction petition arguing that their 800 month prison term amounted to a virtual life sentence without parole because they would be 81 years of before becoming release eligible. The claim ended up before the Oregon Supreme Court.

 

The State responded to this claim by telling the Court that it should not consider “any term-of-years sentence, no matter how long” as the equivalent of a life sentence without parole. While the Supreme Court stated in its 2010 decision, Graham v. Florida, that although a juvenile offender is not entitled to a guarantee of eventual freedom, the State must provide some meaningful vehicle for freedom upon a showing by the juvenile offender that he is both adult mature and rehabilitated.

 

De Facto Life Sentence Reversed

 

In a May 31, 2019 decision, the Oregon Supreme Court rejected the State’s arguments. The Court reversed the brothers’ 800-month sentences violated Miller v. Alabama, finding that:

 

“ … The [State] does no more than to state, summarily, and without case citation, that, with good-time credit, petitioner’s sentence is not a sentence that offers ‘no hope or incentive for reformation.’ Second, even allowing for goodtime credit, petitioner will serve at least 54 years and will be released, at the earliest, when he is 68 years old. We know of no state high court that has held that a sentence in excess of 50 years for a single homicide provides a juvenile with a meaningful opportunity for release … Given those particular circumstances, we conclude that petitioner’s sentence is sufficiently lengthy that a Miller analysis is required. We do not mean to foreclose a future argument that a sentence in excess of 50 years would leave a particular juvenile offender with a meaningful opportunity for release. But in this case, that argument has not been developed …”

 

Brothers Have Opportunity for Release After 26 Years in Prison

 

The White brothers are now 41 years of age. They have been incarcerated in the Oregon prison system for twenty-six years. They have matured from children to adults in prison. Granted, as children, they committed horrific crimes, and there is no way to minimize the gravity of those crimes.

 

Under Oregon’s goodtime provisions, the brothers would have been eligible for release when they are 68 years of age, meaning they would have had to serve another 27 years in prison, before the Oregon Supreme Court ruling.

 

That ruling altered the life landscape for the brothers. The trial court must now fashion a sentence that allows for a meaningful opportunity for release upon a credible showing of maturation and rehabilitation. Although they are not eligible for any kind of mandatory release, the vehicle for release the trial court must fashion for the brothers has to provide meaningful consideration toward the prison release objective.

 

Cruel and Unusual Punishment

 

In October 2018, Josh Rovner with The Sentencing Project wrote that:

 

“Since 2012, 28 states and the District of Columbia have changed their laws for juvenile offenders convicted of homicide (including felony murder). All but four had previously required life without parole in these circumstances. These new laws provide mandatory minimums ranging from a chance of parole after 15 years (as in Nevada and West Virginia) to 40 years (as in Texas and Nebraska). Twenty-nine states still allow life without parole as a sentencing option for juveniles. In most states, the question of virtual life without parole has yet to be addressed.”

 

The Oregon Supreme Court became the first—or at least one of the first—court to address the “virtual life without parole” issue in the White brothers’ case. The court said that actual life without parole and virtual life without parole are equally unconstitutional.

 

We agree.

 

Keeping an adult who committed their crime as a child locked up in prison for the rest of his or her life, or even the vast majority of their lives, is patently cruel and unusual punishment.