Is life without parole constitutional for 14-year-olds, like Adolfo?

April 10, 2012

By Linda Paul

Adolfo Davis' life sentence is similar to cases before the Supreme Court.
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Seventy-nine juveniles 14 or younger who've been convicted of murder, are serving sentences of life with no chance of parole. Adolfo Davis of Chicago is one of them.

In the next few months, the U.S. Supreme Court is expected to rule on this question:  Is life without parole a cruel and unusual punishment for 14-year-olds, even when they're convicted of murder?

This is the first of two stories on Adolfo's case, and a critical hearing this week on his state plea for clemency. 

First, a little context: In 2005, the U. S. Supreme Court ruled that it was cruel and unusual punishment to execute juveniles for their crimes.  

Then two years ago, in a case called Graham v. Florida, the court decided that if a juvenile was convicted of something less than murder, it was cruel and unusual to give a sentence of life without parole.

To Randolph Stone, a clinical professor of law at the University of Chicago, there’s a logical next step.

STONE:  And the logical conclusion for me, and for many of us, is that life without parole for children is a human rights violation.  It’s unconstitutional under the United States constitution.  It violates international norms -- and it’s just a practice that should be shelved.

Even, says Stone, if they are convicted of murder.

There’s something else that Randolph Stone especially wishes people could understand about parole hearings, or periodic review:

STONE:  We’re not saying that the kid should get out. There may be some cases where the kid should stay in for life.  All we’re saying is periodic review. Give the kid an opportunity to show after a period of time that he or she should be released … IF appropriate.

NEIMAN:  I think a lotta people who make that argument think that just as a pragmatic matter, well why not just allow the parole process to occur? And if the guy doesn’t deserve to get out, he won’t get out --and nobody will be harmed.. 

That’s John Nieman, State Solicitor General for the State of Alabama. He’s one of the attorneys who recently appeared before the U.S. Supreme Court arguing that life without parole for a 14 year old is indeed a constitutional sentence.

NEIMAN: When a victim’s family is subject to the parole process it basically re-traumatizes those victims. They go to the parole hearings trying to explain to the parole board about just how awful the crime was. It requires them to re-live that experience once again. So it’s not as if the parole process is costless.  

Besides, says Neiman, even if a youth convicted of a heinous murder does reform over time, there are other reasons for life without parole ..

NEIMAN:  One is this concept of retribution.. This notion that the system should impose certain punishments simply because they’re the appropriate responses in light of the, for example, moral harm that has been caused by a particular offense. When a defendant commits an egregious murder... it does not make sense to punish that person by a sentence of any less than life without parole because this person has taken another person off the face of the planet.

There are 79 people around the country who’ve received life without parole sentences for crimes committed when they were 14 or younger.

Adolfo is one of them. Today he’s meeting with his lawyers.

He’s 35 now and has been locked up since 2 months past his fourteenth birthday. That’s when he went to the police station for questioning with his mother, who later testified that at the time she was high from beer, gin, reefer and cocaine.

DAVIS:  My mom’s like… man, sign these papers so we can go home. And as soon as I signed it, I ain’t seen the street since.

Now here’s a factoid that may surprise you if you’re not a lawyer: It’s 100 percent legal in Illinois for police to question a 14 year old about a murder case without any defense counsel present.

All that’s required is that the police make a good faith effort to find a family member or legal guardian, plus a youth officer. And if they can’t find a family member? Then a youth officer will suffice. Mark Kusatsky was the public defender assigned to Adolfo’s case:

KUSATSKY:  It is a travesty. When you consider somebody who may not be of the most educated and has had the most advantages. The results that can flow from it, are tragic.

The police statement that Adolfo Davis signed that night was very damaging at trial. He claims he never understood what was in it. Tests given to him around that time showed a second grade reading level. Adolfo’s mother could also barely read or write. So, after questioning, an assistant state’s attorney wrote out a statement and read it to him asking for corrections. Adolfo was anxious to go home and says he didn’t know that he could be charged in adult court or that a conviction could land him in prison for life.

Back when we first reported on Adolfo’s case, I asked David O’Connor, the prosecutor at Adolfo’s trial:  Wouldn’t it have been sensible for the police to hold off questioning until an attorney could be present?

O’CONNOR:  I mean it depends on your objective, ok? Police are there to try to solve crime. They want the truth. They want the facts. They want individuals who will be forthcoming and tell them what happened. To wait for an attorney, for the attorney to tell them to invoke his constitutional rights, that’s not furthering the objectives of the police. So I guess it comes down to what your perspective is.

The facts of the case that landed Adolfo Davis in prison for life are in dispute.

Adolfo’s lawyers say that back in October of 1990, he was ordered by two older gang members to be a look-out for what he thought would be a robbery. It was part of a complicated turf battle over who would sell drugs where. Two people were killed that night and two were wounded.

But Cook County prosecutors insist that Adolfo Davis was not simply a look-out.

SPELLBERG:   He was an active participant in the planning, as well as in the shooting and killing.  

That’s Alan Spellberg, supervisor of the criminal appeals division for the Cook County State’s Attorney’s Office.

SPELLBERG:   We can’t determine for sure that he fired the gun that killed either of the victims, but we do know from the physical evidence that three different guns were fired at the time. 

SOUNG:  There’s just simply no proof. There’s simply no proof that Addolfo shot his gun in this case. 

Patricia Soung is the supervising attorney for Adolfo Davis’ defense team.  She points to ballistics experts who testified that the third bullet, the one found in a window sill … could have been lodged there for a while.

SOUNG:  So I think in an apartment building that was occupied by gang members who, during that period of time, were actually regularly shooting at each other.. the evidence wasn’t strong enough or reliable enough to implicate Adolfo as having shot his gun that day.

Ultimately, whether Adolfo Davis actually shot anyone that night, isn’t so crucial, according to Spellberg.

SPELLBERG: Under the law it didn’t matter who the shooter was because if Adolfo Davis was an active participant in the crime and in the planning, he was just as responsible for the murder whether or not he fired the fatal bullet or not. 

Probably the most damaging testimony against Adolfo Davis came from Lamont Baxter, a man held at gunpoint on the night of the crime.  At the trial he testified that all three defendants talked about who was to live and who was to die.

Today, about 20 years later, he says something different.

Tomorrow, more on that, plus Adolfo Davis’ bid to Governor Pat Quinn for clemency.