Just Mercy: A Story of Justice and Redemption

  My grandparents had been separated for many years, and my grandfather had for some time lived alone in the South Philadelphia housing projects. It was there that he was attacked and stabbed to death by several teens who had broken into his apartment to steal his black-and-white television set. He was eighty-six years old.

  Our large family was devastated by his senseless murder. My grandmother, who had separated from my grandfather many years earlier, was especially unnerved by the crime and his death. I had older cousins who worked in law enforcement and sought information about the boys who committed the crime—I remember them being more astonished than vengeful about the immaturity and lack of judgment the juveniles had demonstrated. We all kept saying and thinking the same thing: They didn’t have to kill him. There was no way an eighty-six-year-old man could have stopped them from getting away with their paltry loot. My mother could never make sense of it. And neither could I. I knew kids at school who seemed out of control and violent, but still I wondered how someone could be so pointlessly destructive. My grandfather’s murder left us with so many questions.

  Now, decades later, I was starting to understand. In preparing litigation on behalf of the children we were representing, it was clear that these shocking and senseless crimes couldn’t be evaluated honestly without understanding the lives these children had been forced to endure. And, in banning the death penalty for juveniles, the Supreme Court had paid great attention to the emerging body of medical research about adolescent development and brain science and its relevance to juvenile crime and culpability.

  Contemporary neurological, psychological, and sociological evidence has established that children are impaired by immature judgment, an underdeveloped capacity for self-regulation and responsibility, vulnerability to negative influences and outside pressures, and a lack of control over their own impulses and their environment. Generally considered to encompass ages twelve to eighteen, adolescence is defined by radical transformation, including the obvious and often distressing physical changes associated with puberty (increases in height and weight and sex-related changes) as well as progressive gains in the capacity for reasoned and mature judgment, impulse control, and autonomy. As we later explained to the Court, experts had come to the following conclusion:

  “A rapid and dramatic increase in dopaminergic activity within the socioemotional system around the time of puberty” drives the young adolescent toward increased sensation-seeking and risk-taking; “this increase in reward seeking precedes the structural maturation of the cognitive control system and its connections to areas of the socioemotional system. A maturational process that is gradual, unfolds over the course of adolescence, and permits more advanced self-regulation and impulse control … The temporal gap between the arousal of the socioemotional system, which is an early adolescent development, and the full maturation of the cognitive control system, which occurs later, creates a period of heightened vulnerability to risk taking during middle adolescence.”

  These biological and psychosocial developments explain what is obvious to parents, teachers, and any adult who reflects on his or her own teenage years: Young teens lack the maturity, independence, and future orientation that adults have acquired. It seemed odd to have to explain in a court of law something so fundamental about childhood, but the commitment to harsh punishments for children was so intense and reactionary that we had to articulate these basic facts.

  We argued in court that, relative to that of adults, young teenage judgment is handicapped in nearly every conceivable way: Young adolescents lack life experience and background knowledge to inform their choices; they struggle to generate options and to imagine consequences; and, perhaps for good reason, they lack the necessary self-confidence to make reasoned judgments and stick by them. We argued that neuroscience and new information about brain chemistry help explain the impaired judgment that teens often display. When these basic deficits that burden all children are combined with the environments that some poor children experience—environments marked by abuse, violence, dysfunction, neglect, and the absence of loving caretakers—adolescence can leave kids vulnerable to the sort of extremely poor decision making that results in tragic violence.

  We were able to make persuasive arguments about the differences between children and adults, but that wasn’t the only obstacle to relief. The Supreme Court’s Eighth Amendment precedent requires not only that a particular sentence offend “evolving standards of decency” but also that it be “unusual.” In the cases where the Supreme Court had previously granted relief under the Eighth Amendment, the number of sentences challenged usually totaled fewer than a hundred or so nationwide. In 2002, there were about a hundred people with mental retardation facing execution when the Court banned the death penalty for people with intellectual disability. In 2005, there were fewer than seventy-five juvenile offenders on death row when the Court banned the death penalty for kids. Even smaller numbers accompanied the Court’s decisions banning the death penalty for non-homicide offenses.

  Our litigation strategy was complicated by the fact that more than 2,500 children in the United States had been sentenced to life imprisonment without parole. We decided to focus on two subsets of kids to help the Court grant relief if it wasn’t ready to ban all life sentences without parole for juveniles. We focused on the youngest kids, who were thirteen and fourteen. There were fewer than a hundred children under the age of fifteen who had been sentenced to life imprisonment without parole. We also focused on the children who, like Joe Sullivan, Ian Manuel, and Antonio Nuñez, had been convicted of non-homicide offenses. Most juveniles sentenced to life imprisonment without parole had been convicted of homicide crimes. We estimated there were fewer than two hundred juvenile offenders serving life without parole for non-homicide offenses.

  We argued that the ban on the death penalty had implications because a death-in-prison sentence is also a terminal, unchangeable, once-and-for-all judgment on the whole life of a human being that declares him or her forever unfit to be part of civil society. We asked courts to recognize that such a judgment cannot rationally be passed on children below a certain age because they are unfinished products, human works in progress. They stand at a peculiarly vulnerable moment in their lives. Their potential for growth and change is enormous. Almost all of them will outgrow criminal behavior, and it is practically impossible to detect the few who will not. They are “the products of an environment over which they have no real control—passengers through narrow pathways in a world they never made,” as we wrote in our brief.

  We emphasized the incongruity of not allowing children to smoke, drink, vote, drive without restrictions, give blood, buy guns, and a range of other behaviors because of their well-recognized lack of maturity and judgment while simultaneously treating some of the most at-risk, neglected, and impaired children exactly the same as full-grown adults in the criminal justice system.

  Initially, we had little success with these arguments. Joe Sullivan’s judge ruled that our claims were “meritless.” In other states, we were met with similar skepticism and resistance. Eventually we exhausted options provided by the state of Florida in Joe Sullivan’s case and filed an appeal in the U.S. Supreme Court. In May 2009, the Supreme Court agreed to review the case. It felt like a miracle. Review in the Supreme Court is rare enough, but the possibility that the Court might create constitutional relief for children sentenced to die in prison made this opportunity even more thrilling. It was a chance to change the rules across the country.

  The Court granted review in Joe’s case and in another Florida case that involved a sixteen-year-old teen convicted of a non-homicide and sentenced to life with no parole. Terrance Graham was from Jacksonville, Florida, and had been on probation when he was accused of trying to rob a store. As a result of his new arrest, the judge revoked Terrance’s probation and sentenced him to die in prison. Because both Joe’s case and the Graham case involved non-homicides, it was likely that if we won a favorable ruling from the
Court, it would only apply to life-without-parole sentences imposed on juveniles convicted of non-homicides, but that was an exciting possibility.

  The cases generated a lot of national media attention. When we filed our brief in the U.S. Supreme Court, national organizations joined us and filed amicus briefs urging the Court to rule in our favor. We received support from the American Psychological Association, the American Psychiatric Association, the American Bar Association, the American Medical Association, former judges, former prosecutors, social workers, civil rights groups, human rights groups, even some victims’ rights groups. Former juvenile offenders who had later become well-known public figures filed supporting documents, including very conservative politicians like former U.S. senator Alan Simpson from Wyoming. Simpson had spent eighteen years in the Senate, including ten as the Republican whip, the second-ranking senator in his party. He had also been a former juvenile felon. He had been adjudicated as a juvenile delinquent when he was seventeen, for multiple convictions for arson, theft, aggravated assault, gun violence, and, finally, assaulting a police officer. He later confessed: “I was a monster.” His life didn’t begin to change until he found himself imprisoned in “a sea of puke and urine” following another arrest. Senator Simpson knew firsthand that you cannot judge a person’s full potential by his juvenile misconduct. Another brief was filed on behalf of former child soldiers whose terrifying behavior after being forced into violent African militias made the crimes of our clients seem much less aggravated by comparison. Yet these former child soldiers, rescued from their armies, had mostly recovered and been widely embraced at American colleges and universities, where many of them had thrived.

  In November 2009, after the briefs were filed in Joe’s case and the Graham case, I went to Washington for my third U.S. Supreme Court oral argument. There was a lot more media attention and national news coverage than in any of my earlier cases. The Court was packed. There were hundreds of people outside the Court as well. A wide assortment of children’s rights advocates, lawyers, and mental health experts were watching closely when we asked the Court to declare life-without-parole sentences imposed on children unconstitutional.

  During the argument, the Court was feisty, and it was impossible to predict what the justices were going to do. I told the Court that the United States is the only country in the world that imposes life imprisonment without parole sentences on children. I explained that condemning children violates international law, which bans these sentences for children. We showed the Court that these sentences are disproportionately imposed on children of color. We argued that the phenomenon of life sentences imposed on children is largely a result of harsh punishments that were created for career adult criminals and were never intended for children—which made the imposition of such a sentence on juveniles like Terrance Graham and Joe Sullivan unusual. I also told the Court that to say to any child of thirteen that he is fit only to die in prison is cruel. I had no way of knowing if the Court had been persuaded.

  I had promised Joe, whose name and case were constantly being discussed on television, that I would visit him after the argument in the Supreme Court. At first Joe was very excited by all the attention his case was generating, but then the guards and other prisoners started making fun of him and treating him more harshly than usual. They seemed to resent the attention he was getting. I told him that now that the argument was over, things would calm down.

  For weeks he’d been working on memorizing a poem he said he’d written. When I asked if he had really written it, he acknowledged that another inmate had helped him, but his excitement about the poem was undiminished. He had repeatedly promised that he would recite it for me when I visited him after the argument. When I arrived at the prison, Joe was wheeled into the visitation area without any difficulty. I talked to him about the argument in Washington, but he was much more interested in preparing me to hear his poem. I could tell he was nervous about whether he’d be able to do it. I cut short my report about his case so I could hear his poem. He closed his eyes to concentrate and then began to recite the lines:

  Roses are red, violets are blue.

  Soon I’ll come home to live with you.

  My life will be better, happy I’ll be,

  You’ll be like my Dad and my family.

  We’ll have fun with our friends and others will see,

  I’m a good person … uh … I’m a good person … I’m … a … good … person … uh …

  He couldn’t remember the last line. He looked up at the ceiling, then at the floor straining to remember. He squeezed his eyes, trying to force the last words to mind, but they wouldn’t come. I was tempted to supply him a line just to help him get through it—“so be happy for me” or “now people will see.” But I realized that creating a line for him wasn’t the right thing to do, so I just sat there.

  Finally, he seemed to accept that he wouldn’t remember the line. I thought he’d be upset, but when it was clear that he wouldn’t remember the last line, he just started laughing. I smiled at him, relieved. For some reason it became funnier and funnier to him that he couldn’t think of the last line—until he abruptly stopped laughing and looked at me.

  “Oh, wait. I think the last line … actually, uh, I think the last line is just what I said. The last line is just ‘I’m a good person.’ ”

  He paused, and I looked at him skeptically for several seconds. I said it before I thought about it. “Really?”

  I should have stopped, but I continued, “We’ll have fun with our friends and others will see, I’m a good person?”

  He looked at me for an instant with a serious expression, and then we both broke out simultaneously in wild laughter. I wasn’t sure I should be laughing, but Joe was laughing, which made me think it was okay. Honestly, I couldn’t help it. In a few seconds we were both in hysterics. He was rocking in his wheelchair from side to side with laughter, clapping his hands. I couldn’t stop laughing, either; I was trying hard to stop but failing. We looked at each other as we laughed. I watched Joe, who laughed like a little boy, but I saw the lines in his face and even the emergence of a few prematurely gray hairs on his head. I realized even while I laughed that his unhappy childhood had been followed by unhappy, imprisoned teenage years followed by unhappy incarceration through young adulthood. All of a sudden it occurred to me what a miracle it was that he could still laugh. I thought about how wrong the world is about Joe Sullivan and how much I wanted to win his case.

  We both finally calmed down. I tried to speak as sincerely as I could manage. “Joe, it’s a very, very nice poem.” I paused. “I think it’s beautiful.”

  He beamed at me and clapped his hands.

  Chapter Fifteen

  Broken

  Walter’s decline came quickly. The moments of confusion got longer and longer. He started forgetting things he had done just a few hours earlier. The details of his business slipped away from him, and managing work became complicated in ways he couldn’t understand, which depressed him. At some point I went over his records with him, and he’d been selling things at a fraction of their worth and losing a lot of money.

  A film crew from Ireland came to Alabama to make a short documentary about the death penalty that would feature Walter’s case and the cases of two other Alabama death row prisoners. James “Bo” Cochran had been released after spending nearly twenty years on Alabama’s death row; a new trial was awarded after federal courts reversed his conviction because of racial bias during jury selection. At his new trial, a racially diverse jury found him not guilty of murder, and he was freed. The third man featured in the film, Robert Tarver, also adamantly maintained his innocence. The prosecutor later admitted that his jury had been illegally selected in a racially discriminatory manner, but courts refused to review the claim because the defense lawyer failed to make an adequate objection, so Tarver was executed.

  We hosted a premiere of the film at our office, and I invited Walter and Bo to address the audience. About seven
ty-five people from the community gathered in EJI’s meeting room, where we screened the film. Walter struggled. He was more terse than usual and looked at me frantically whenever someone asked him a question. I told him that he wouldn’t have to do any more presentations. His sister told me that he’d started wandering in the evenings and getting lost. He began drinking heavily, something he’d never done before. He told me that he was anxious all the time and that the alcohol calmed his nerves. Then one day he collapsed. He was at a hospital in Mobile when they reached me in Montgomery. I drove down to speak with his doctor, who told me that Walter had advancing dementia, likely trauma-induced, and that he would need constant care. The doctor also said the dementia would progress and that Walter would likely become incapacitated.

  We met with Walter’s family at our office and agreed that he should move to Huntsville to live with a relative who could provide consistent care. It worked for a while, but Walter became agitated there, and he was out of money, so he moved back to Monroeville, where his sister Katie Lee agreed to watch him. For a while, he did much better in Monroeville, but then his condition began to deteriorate again.

  Soon, Walter needed to be moved into the sort of facility that provided care for the elderly and infirm. Most places wouldn’t take him because he had been convicted of a felony. Even when we explained that he was wrongfully convicted and later proved innocent, we couldn’t get anyone to admit him. EJI now had a social worker on staff, Maria Morrison, who began working with Walter and his family to find a suitable placement for him. It was an extremely frustrating and maddening process. Maria eventually found a place in Montgomery that agreed to take Walter for a short stay—no longer than ninety days. He went there while we figured out what to do next.