By Barry Krisberg
The national media has widely reported the story of Brendan Dassey, whose murder and sexual assault convictions were reversed by a federal court in Milwaukee on Aug. 12; he had served nearly nine years in prison. He was ordered released unless prosecutors wanted to file a new charge.
Dassey, who was 16 at the time of his arrest, was a central figure in a very popular Netflix documentary — “Making a Murderer.” The court found that the youth was mentally unfit and was coerced into confessing his involvement in the crime by false promises by investigators. The court held that his confession was involuntary under the Fifth and Fourteenth amendments. His lawyer had not challenged the propriety of the confession.
This was not an isolated incident. Davontae Sanford, a developmentally challenged 14-year-old, was also released after more than nine years in a Michigan prison for allegedly murdering four people in a drug house. His confession to police was made after two days of intense questioning without the presence of his guardians or an attorney. A professional hit man subsequently admitted to the murders. It appeared that Sanford’s interrogators ignored or did not reveal gross inconsistencies in the original confession.
Most Innocence Projects have focused on exonerations of adult defendants. There have been hundreds of these cases over the past decade. Many of these cases involved utilizing forensic evidence, especially DNA. Most of the exonerations are also due to inadequate legal representation, false eyewitness identifications or coerced confessions.
There are several Innocence Projects that look for cases in which the defendant was under age 18 at the time of the arrest. It is estimated that 38% of juveniles are falsely convicted due to false confessions, compared to 11% of adults convicted due to false confessions. Some research suggests that minors are more likely to tell interrogators what they want to hear or to brag about their gang exploits. The other concern is that youth are not equipped to adequately participate in their own defense and may be victims of inadequate counsel. There is some very limited research suggesting that eyewitness identifications may be harder with younger people.
These innocence cases often involve plea bargains or jury trials that occur in criminal courts, but they are the tip of the iceberg of excessive punishment for juveniles. Different from the issue of actual innocence are situations in which minors are prosecuted as adults either via statutory mandates, direct filing by prosecutors or transfer hearings in juvenile courts.
There are many youth advocates pursuing the issue of handling youth as if they were adults, such as student clinics at the University of Southern California and Loyola Marymount Law School. These advocates are relying on recent Supreme Court decisions in Miller v. Alabama as well as some state laws that provide for sufficient due process for minors who receive life with possibility of parole or very long sentences known as “virtual life.” The Supreme Court very recently extended the scope of the Miller decision in Montgomery v. Alabama to all prisoners serving these harsh sentences who were arrested before age 18. Typically, remedies in Miller or Montgomery appeals seek petitions for resentencing or for reconsideration of parole decisions.