In 2012, the U.S. Supreme Court held that mandatory sentences of life without the possibility of parole for juvenile offenders violates the Eighth Amendment ban against cruel and unusual punishment, even when the conviction is for murder.

As a result, many states adopted measures that mandate reviews of sentences for juveniles serving life sentences or somewhat less severe, but still lengthy, prison terms. But Connecticut has remained a holdout, and despite lobbying by a former state Supreme Court justice, lawmakers once again in the just-completed session failed to pass a measure that would require parole hearings for juveniles serving long sentences.

As a result, some lawmakers and members of the legal community worry about a rising tide of court challenges being brought under the Supreme Court decision in Miller v. Alabama.

“This is a bill we’ve been working on for three years and it represents a consensus of the commission and every stakeholder involved in the criminal justice system,” said retired Justice David Borden, who is chairman of the nonpartisan state Sentencing Commission, whose membership includes judges, prosecutors and defense lawyers. “It’s a very thoughtful, well-balanced, well-drafted proposal. We were disappointed it didn’t get the consideration it deserved.”

The failure to act, Borden said, will lead to “wildly disparate results across the state” as judges hear legal challenges to long juvenile sentences. “It could take our Connecticut Supreme Court years to resolve all of these cases.”

Under the Connecticut proposal, inmates sentenced as juveniles would get the chance for a parole board hearing after serving 60 percent of the sentence, or 12 years, whichever is longer. For example, someone sentence to 50 years in prison would be eligible for a hearing after 30 years. Borden said the parole board would apply more stringent standards than in ordinary adult cases, and receive input from the victim, prosecutor, inmate, Department of Correction and experts.

The House of Representatives approved the measure. But the Senate did not vote on it as the session came to a close at midnight May 8. Republicans added a number of amendments that effectively killed the bill, including one that would have reinstated the death penalty in Connecticut.

State Rep. Gerald Fox III, who is cochairman of the legislative Judiciary Committee, expressed surprise there was no vote on the bill in the Senate. “I know many senators, including my cochair [Sen. Eric Coleman] wanted to see it get passed this year,” said Fox.

The U.S. Supreme Court decision affected close to 200 inmates in Connecticut who committed their crimes before they reached age 18. Officials say there are already 70 inmates seeking court hearings as a result of Miller. Without legislative guidance, Fox said, “people will have to take these cases to the Superior Court, where individual judges will have to decide how they can handle them.”

Some observers said the failure to pass the bill was more a political disagreement than the result of substantial differences on its merits. But state Rep. Arthur O’Neill, a Southbury Republican, said some senators felt the bill would allow juvenile offenders repeated shots at the parole board, and that such a provision went well beyond what the U.S. Supreme Court had required.

“The dispute that was never really resolved was the idea that the Sentencing Commission didn’t want to have just one review of a long sentence,” O’Neill said. “So if a person was sentenced to 40 years without parole, after 30 years, they wanted to have a person reviewed for parole every few years. That was not something that had been required by the courts. So there was a sense they were overreaching on how many reviews there should be.”

Borden took issue with that assessment. He said the proposed legislation guaranteed inmates only one crack at the parole board. Anything beyond that would be up to the board’s discretion. For example, Borden said, if a defendant was denied parole, but the board felt it was a close call, members could decide to revisit the case at a later date, but not for at least two years. “The whole idea that we’re going to have hearing after hearing is simply a misrepresentation of what the bill provides,” said Borden.

Michael Lawlor, Sentencing Commission vice chairman and a top criminal justice aide to Gov. Dannel Malloy, said the failure to pass legislation will also lead to multiple hearings—only these will take place in a courtroom.

“The goal was to avoid a situation where people are going in with specific cases in specific courts with specific judges and getting completely different outcomes,” said Lawlor. “That did not happen. So it’s going to play out over the next months and years and it’s going to create a lot of disruption in the criminal justice system. It’s going to tie up a lot of prosecutors, defense attorneys and judges. My guess is sooner or later it’ll end up in the [state] Supreme Court.”

Superior Court Judge Robert Devlin Jr., chief administrative judge for criminal matters, said he’s unsure of the impact the cases will have on the court system. But he wasn’t overly alarmed.

“This is what we do. We’re prepared to handle these cases in an appropriate way,” said Devlin, who is also a member of the Sentencing Commission. “Look, it’s a fair amount of work for the Judicial Branch, but we have the mechanisms to do it. In six months if you talk to me, maybe it’s that really we are flooded with cases. I just don’t know what’s going to happen.”

Devlin said the Judicial Branch has no plans to try to devise a policy to handle juvenile sentencing challenges in some uniform manner. He did predict that some defendant who loses his Superior Court challenges will likely appeal. At that point, he’s hopeful that state appellate courts will issue a decision that provides guidance for other cases.

O’Neill, the state legislator, said perhaps by the time an appeal is pending before the Appellate Court or Supreme Court, lawmakers could pass legislation. Andrew Clark, executive director of the Sentencing Commission, is hoping for faster action. He hope lawmakers convene in a special session to address this legislation.

Clark said even after the legislative session ended with no action on the juvenile sentencing bill, he’s heard acknowledgment from lawmakers that something needs to be done.•