Two U.S. Supreme Court decisions forced Pennsylvania to rethink sentences imposed on hundreds of prisoners who received life behind bars after committing crimes before they turned 18. Now, Pittsburgh-based attorneys are pushing to go a step further: To re-sentence those convicted for crimes under the age of 21.

Two U.S. Supreme Court decisions forced Pennsylvania to rethink sentences imposed on hundreds of prisoners who received life behind bars after committing crimes before they turned 18. Now, Pittsburgh-based attorneys are pushing to go a step further: To re-sentence those convicted for crimes under the age of 21.

Two U.S. Supreme Court decisions forced Pennsylvania to rethink sentences imposed on hundreds of prisoners who received sentences of life without parole after committing crimes before they turned 18. Now, Pittsburgh-based attorneys are pushing to go a step further: To re-sentence those convicted of crimes committed when they were under the age of 21.

April 7, 2019

Defining attributes
of youth

Lawyers for three Pennsylvanians serving life sentences for crimes committed at 18 argue recent neuroscience findings prove they should be punished as juveniles, not adults

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BY Carley Bonk // Illustration BY Olson mcintyre

Avis Lee was 18 years old when she was sentenced to life in prison without the possibility of parole for acting as a lookout on an armed robbery that went wrong.

Charmaine Pfender was 18 years old when she claims she acted in self-defense against a man who attempted to rape her at knifepoint. She shot and killed him and has served more than 30 years of a life-without-parole sentence for first-degree homicide.

Arthur Johnson has served 47 years (37 of those in unlawful solitary confinement) for a homicide. He has continued to profess his innocence since he was 18 years old.

But Bret Grote, an attorney representing the three, argues that in light of recent neuroscience developments, young adults who commit crimes between the ages of 18-21 should be eligible for the same treatment juveniles receive in sentencing based on landmark case Miller v. Alabama, which would bar life sentences without parole for those defendants.

“Our claim is that the same attributes of youth that diminishes their culpability and lessens their blameworthiness, according to the U.S. Supreme Court, [mean] that a life-without-parole sentence is excessive, as it is unconstitutional, as it is cruel and unusual punishment to inflict that on a child,” Grote said.

In the 2012 Miller v. Alabama case, the Supreme Court ruled in a 5-4 decision that sentencing minors to life sentences without the possibility of parole constituted  “cruel and unusual punishment,” therefore violating the defendant’s Eighth Amendment rights.

In 2016, the Supreme Court held in the 6-3 decision of Montgomery v. Louisiana that Miller v. Alabama could be applied retroactively. When a decision is declared retroactive, it means that ruling must be held to apply to cases that are already final. If a defendant has exhausted their appeals and received a final decision, a retroactive court ruling gives them another chance. They have 60 days to file a petition — which is what Grote and his team at the Abolitionist Law Center did.

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“It’s great injustice what so many are facing because there’s this line drawn at 18.”

Postindustrial Bret Grote

Bret Grote, an attorney with the Abolitionist Law Center in Pittsburgh, argues that it is cruel and unusual punishment to inflict a life sentence 18- to 21-year-olds.

Grote argues that if those who committed crimes in their young adult years displayed “transient immaturity of youth,” their sentences should be subject to holdings in Miller v. Alabama and Montgomery v. Louisiana. Grote’s team of lawyers, including Jules Lobel of the University of Pittsburgh School of Law and Tiffany Sizemore of Duquesne University School of Law, based their argument on an established legal principle: When applying precedent from higher courts, lower courts are not just bound by the narrow results of the case, but the established rationale, underlying reasoning, and guiding legal principles, as well.

“We argued that if you look at all of the bases for Miller v. Alabama and look at all the ways the court has identified young people being more prone to reckless and irresponsible decisions and more vulnerable to abusive and traumatic situations, and more susceptible to change, etc. — they’re all present in this case,” Grote said of Lee’s case. “Avis was of an age that is within the scientific consensus that is within the period of ongoing adolescent development.”

The lawyers claim that by denying Lee resentencing, they are denying her constitutional right — one that could also be applied to Johnson and Pfender.

Grote presented his case in front of nine judges of the Pennsylvania Superior Court on October 23. The Philadelphia courtroom was so packed that the crowd spilled into the hallway on the 17th floor. The elevators were stopped due to the number of people, many of whom were loved ones of those serving life sentences.

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Incarcerating a 16-year-old for life could carry costs of more than $2 million over the lifetime of just one prisoner.

“The court definitely took notice,” Grote said. “They addressed the crowd, explaining what the court does beforehand and even suggested that lobbying the legislature may be the best way to bring about the change they want. I’ve never seen a court tell people in its audience what might be the more appropriate or effective way to influence social change.”

The Superior Court decided on March 1 that they could not take Lee’s case because the judges were bound by precedent. They did, however, suggest the Supreme Court take the case in an appeal. “We would urge our Supreme Court to review this issue in light of the research available,” the Superior Court judges wrote. The Abolitionist Law Center team is hopeful but remains realistic about the path ahead.

“We told our clients all along … that we expect to lose these cases, but one of the objectives is to try to educate the courts, other members of the defense bar, and public opinion around the merit that there is to this argument,” Grote said. “It’s great injustice what so many are facing because there’s this line drawn at 18. You have to look at the underlying basis for the holding. You have to look at the characteristics of youth the court recognized as key features.

“Young people are more likely to engage in impulsive behavior, risk-taking, and to be more motivated by seeking rewards or pleasure,” Grote said. “There’s data and neuroscience to support that. Young people are less able to extricate themselves from traumatic, abusive, and criminogenic environments. They’re also more amenable to change and rehabilitation.”

Postindustrial Avis Lee

Avis Lee was sentenced to life without parole on July 13, 1981.

Avis Lee

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Avis Lee grew up in a troubled home, stricken by poverty, drug abuse, and violence. She dropped out of school at 17. On the evening of November 1, 1979, her life changed forever. After having a few drinks, Lee’s brother and his friend decided to rob someone outside of the Pittsburgh Athletic Association in the city’s Oakland neighborhood. They asked Lee if she would be a lookout on the other side of the street, and signal them with a whistle if anyone approached.

Lee agreed, not anticipating anyone would get hurt. When the victim, Robert Walker, fought against his attacker, Lee’s brother fired once, killing Walker. Lee, frozen in shock, eventually alerted a bus driver about the wounded man, but it was too late.

When Lee was brought in for questioning, she didn’t know what to expect and had been struggling with personal issues.

“I was brought in … for failure to pay a fine and ultimately questioned for murder,” Lee said. “I was depressed. I had been on a 31-month drug and alcohol binge that had spiraled out of control since my mother’s death on January 20, 1978.”

Lee was arrested on July 20, 1980. Due to the mandatory sentencing scheme in Pennsylvania, Lee was not permitted to present mitigating factors for sentencing, according to the Abolitionist Law Center. A trial decision was handed down on January 20, 1981. Her lawyer, Nicholas Radoycis, filed a motion for a new trial in arrest of judgment on January 29, but the motion was denied.

Lee was sentenced to life without parole on July 13, 1981, under the Felony Murder Rule as a participant in an armed robbery. She had to quickly adapt to a prison environment. She’s been serving her sentence at the State Correctional Institution at Cambridge Springs.

“It has been challenging,” Lee said. “Prison is a highly structured yet unpredictable world.”

Despite the circumstances, Lee has tried to see the positive aspects of her situation.

“It has allowed me to coexist in extreme close proximity with people from their early teens to their early 80s,” Lee said. “I’m able to adapt to change rapidly and resolve conflict. I’m tolerant of others’ religions, politics, gender identification, and differing points of view.”

Lee is an ideal prisoner for the Abolitionist Law Center to highlight for this case. She has served 38 years of her life sentence and has turned her attitude around significantly, despite her troubled upbringing.

“She has an extraordinary record of programmatic completion, volunteer and community service, has been working as a braille instructor; she’s currently a drug and alcohol counselor for other women at the prison,” Grote said. “She’s worked with many advocates here in Pittsburgh; she hasn’t had a write-up in more than 25 years. She hasn’t had a write-up for violence during her entire time in prison.”

Grote believes Lee could immediately be paroled if she were to win resentencing, as her time served already is in excess of what a 17-year-old would face for first-degree homicide in Pennsylvania.

“It is totally cruel and obviously insane that she is still incarcerated,” he said.

Postindustrial Charmaine Pfender

Charmaine Pfender was sentenced to life without parole for killing a man who allegedly attempted to rape her at knifepoint.

Charmaine Pfender

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Charmaine Pfender suffered a childhood of abuse at the hands of her father, who frequently raped and assaulted her. She began drinking at a young age to forget the tragedies she experienced and dropped out of high school before she could graduate and pursue dreams of becoming a police officer.

On August 5, 1984, she and her friend, Sara Richardson, met two men for a double date — Engin Aydin and Suat Erdogan. The group was headed to a Downtown bar called Tramp’s. Pfender shrugged off Aydin’s advances, but when he allegedly pulled a knife and attempted to rape her in the backseat of Richardson’s car, she reacted quickly. Richardson, who grew up with a familiarity of firearms, was teaching Pfender to shoot. The gun was still in the vehicle, and Pfender allegedly fired a warning shot first. When Aydin continued to advance, she shot him fatally.

Pfender faced severe criticism in the press and in the courtroom. She was attacked as a “man-hater” in the Pittsburgh Press. Jury members admitted reading coverage of the case before trial, yet motions to remove these jurors were denied. Pfender’s lawyer didn’t call any witnesses in her defense. As a survivor of prior sexual assault and abuse, her claims of self-defense have repeatedly been rejected by the courts in her appeals.

Pfender could have one last opportunity at freedom in light of the neurological research developments that suggest impulsivity and traumatic response as factors of a juvenile mental state. She could not be reached for comment, and Grote said the Pennsylvania Supreme Court won’t hear the case.

Postindustrial Arthur Johnson

Arthur Johnson was sentenced to life without parole for a crime he committed just two months after he turned 18.

Arthur Johnson

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Arthur “Cetewayo” Johnson grew up in North Philadelphia. He remembers his neighborhood — despite poverty and the presence of low-level street gangs — as a nice place with community support. Johnson lost his mother at the age of 2, but cites his father, who provided him with a stable home life, as a role model. He was diagnosed with an intellectual disability in childhood. He admits his youth was fueled by a sense of rebellion, but he promised his father he would change.

I lived basically a double life one in the streets, and another life, when I’m with my family,” Johnson said. “As we got older, 16 and 17, the fights got more serious and deadly. I had promised my father I would get out of the gangs before I turned 18.”

Johnson said he lived up to that promise because he wanted to fulfill a dream he and his father shared for him to enlist in the military.

“Since I was a little boy I have wanted to go into the military; that was my biggest dream in life,” Johnson said. “Me and my father used to watch military movies together; we use to talk about the military all the time, he served in the military.”

But Johnson never had the chance to follow in his father’s footsteps. Just two months after his 18th birthday, Johnson was arrested on October 6, 1970, for a gang fight killing. He maintains his innocence.

“I had already gotten out of the gang I was a member of,” Johnson said. “I was at home the whole evening. One of the guys who said he was involved in the killing pled guilty and was given seven to 20 years. He said I was not there, I had no involvement at all.” Arthur was convicted of homicide and sentenced to life without parole in 1971.

According to the Sentencing Project, a nonprofit organization that advocates for a fair criminal justice system, incarcerating a 16-year-old for life could carry costs of more than $2 million over the lifetime of just one prisoner.

Pennsylvania was a leader in life sentences for juveniles, with more than 500 incarcerated lifers who could be affected by the Miller and Montgomery rulings, according to Stephanie Singer, a student in the law-psychology program at Drexel University’s School of Law.

In her research, she recognized Pennsylvania had more of a responsibility than other states due to higher rates of incarceration of young offenders.

“Consequently, juvenile lifers in Pennsylvania should — after serving their current mandatory minimums — automatically be eligible for parole,” she wrote. “This solution addresses the unfairness that juvenile lifers are likely to face at resentencing without compromising public safety, promotes efficient use of resources, and remains consistent with the rehabilitative purpose of the juvenile justice system.”

This case could have a substantial effect on incarcerated Pennsylvanians. If the age of “juvenile” could include those up to 21, as neuroscience suggests, more than 1,000 people could be affected. More than 70 percent of the people serving these sentences in Pennsylvania are 40 or older.

“What that means is that you have aging and often rehabilitated men and women serving sentences for mistakes they made in their youth,” Grote said.

But only the Pennsylvania Supreme Court can bring about the change they seek. On April 1, Lee’s lawyers filed a petition for allowance of appeal with the court.

“If we win, we are seeking a remand through to the lower courts so that we can develop an evidentiary record and get a ruling in the first instance of whether Avis’ sentence is unconstitutional pursuant to the application of Miller v. Alabama,” Grote said.

If they were to win, they anticipate Allegheny County District Attorney Stephen Zappala would seek review before the U.S. Supreme Court. The District Attorney’s Office did not respond to a request for comment.

Despite the lengthy legal process, Grote remains engaged in trying to help prisoners like Lee, Pfender, and Johnson.

Before arriving in prison, Lee had dreams that many girls her age would find familiar.

“I wanted a boyfriend, to go to college, to have a career, and to not be poor,” she said.

After nearly four decades behind bars, dreams have faded into a single goal.  

“The end goal is freedom, getting out of prison,” Grote said.

Postindustrial Carley Bonk

Carley Bonk is a senior journalism major at Point Park University. She moved to Pittsburgh from Johnstown, Pennsylvania, in 2016 to pursue her dream of working as a journalist. Upon graduation, she hopes to find a job as an editor at a community newspaper or magazine.

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