The Supreme Court Ruled That Sentences Like Hers Are Unconstitutional. Prosecutors Are Fighting To Keep Her Incarcerated. – The Appeal

In the spring of 1990, when Barbara Hernndez was 16, her boyfriend, then 20, came up with a plan, according to court documents: She would bring a man to an abandoned house on the pretense of prostitution, and her boyfriend would rob him.

Hernndez had met her boyfriend, James Hyde, when she was in junior high school. Over the course of their relationship, she said Hyde coerced her into sex work, routinely beat her, and repeatedly raped her, according to court documents.

When she brought 28-year-old James Cotaling to the house in Pontiac, Michigan, where she and Hyde had been staying, Hyde stabbed him about two dozen times. Hyde and Hernndez were both convicted of murder and sentenced to life without the possibility of parole.

In 2012, in Miller v. Alabama, the Supreme Court decided that mandatory life without the possibility of parole sentences for juveniles, like the one Hernndez received, were unconstitutional. In 2016, in Montgomery v. Louisiana, it ruled that the decision applied retroactively. Hernndez was one of about 2,000 people nationally who would be eligible for a new sentence.

But some prosecutors appear to be resisting the Courts decision. So far, Oakland County Prosecutor Jessica Cooper has requested that the courts reimpose life without the possibility of parole in 43 out of 48 of the countys juvenile lifer cases, according to an investigation by the Detroit Free Press. By asking for life without the possibility of parole in the majority of cases, youth advocates say Cooper has repeatedly ignored her obligations under Miller and Montgomery.

At the request of Coopers office, a circuit court judge sentenced Hernndez, now 45, to life without the possibility of parole on Aug. 8.

Not only are these policies and practices that shes pursuing inhumane and cruel, but they also dont follow what is in our view clear Supreme Court guidance, said Udi Ofer, director of the ACLUs Campaign for Smart Justice. And that is, a sentence of life without parole for a crime committed by a child should be reserved for only the rarest of the rare circumstances.

Cooper did not respond to The Appeals requests for comment, although she has previously spoken publicly about juvenile life without the possibility of parole. We are talking about victims who were stabbed, drowned, bludgeoned and decapitated, Cooper told Bridge, a local news outlet, in 2016. Many of these crimes were totally random. They walked up to a car and decided to shoot in it. On and on and on and on. We are really talking about awful cases.

The United States remains the only country that sentences children to life without the possibility of parole, say advocates. The Supreme Court has not yet found juvenile life without the possibility of parole unconstitutional, although 22 states and Washington, D.C. have banned the practice. Rather, the justices ruled that courts must attempt to distinguish between, the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.

In August, prosecutor Tricia Dare invoked this language when she asked Judge Nanci Grant to sentence Hernndez to life without the possibility of parole. The crime, Dare said, was not an act involving transient immaturity, according to a transcript of the proceeding.

Hernndezs supporters contest the prosecutors view and the judges ruling, pointing to her traumatic childhood, as well as Hydes alleged abuse. According to court filings, a 1991 psychological report said Hernndez stayed with Hyde because she was afraid of him and had no place to go. In a psychiatric report detailed in the filings, Hernndez was described as essentially a slave to Hyde.

I didnt want him to kill me and now I wish that he did, said Hernndez, according to the 1991 psychiatric report. Id be dead somewhere and I would be free from him. He wouldnt hurt me no more. I didnt want that man to die (crying).

Hyde did not respond to a request for comment.

Hyde and Hernndez were tried together, but with separate juries. Detective Ralph Monday testified that Hernndez may have held down the victim, a statement he has since disavowed. According to his investigation, only Hyde attacked the victim, Monday wrote in an affidavit.

Barbara Hernndez, right, in an undated photo. Courtesy of Deborah LaBelle's office

My memory right now is that she had no role in even touching the guy, Monday told the Associated Press in 2013. Why I testified to that, who knows? he said.

Even before she met Hyde, Hernndez had been sexually and physically abused, according to court documents. Starting when she was 4 years old, her biological father molested her. The abuse stopped in 1982 when she was 8 and he was arrested for raping her mentally disabled aunt. Shortly thereafter, her mothers boyfriend moved in, and he raped Hernndez from the ages of about 9 to 12 years old, according to a mitigation report.

Hernndez and her siblings were often beaten, neglected, and without food, according to court documents. When she met Hyde, she and her family were living in a trailer without electricity, water, heat, or a toilet, according to the mitigation report. After school, Hyde took her to his home where she would shower, according to the report.

This was a travesty, her attorney Deborah LaBelle told The Appeal of Hernndezs sentence. She is like a Miller poster child. Last month, her attorneys filed an appeal with the Michigan Court of Appeals.

During her incarceration, her supporters note, Hernndez earned her GED and took college courses. Since 2011, she has worked as a tutor and mentor at the Womens Huron Valley Correctional Facility, according to the Department of Corrections.

I would be more than happy to have her as a neighbor myself, Pamela Odum, who retired from the Department of Corrections, told Judge Grants court. Rehabilitation comes from within. You have to want it and Ive watched her grab it with both hands.

On the whole, Michigans prosecutors have taken a slower and more punitive approach than most other states, advocates say. In Michigan, as of July 1, 55 percent of the states juvenile lifersjust under 200were awaiting resentencing, according to the Detroit Free Press. In Pennsylvania, however, 221 juvenile lifers have already been released, according to the Department of Corrections. Sixty-seven remain to be resentenced.

Peoples lives, their fate is determined more based on where they live than their crime, said Jody Lavy, executive director of the Campaign for the Fair Sentencing of Youth, which advocates for the abolition of juvenile life without the possibility of parole. Michigan has steadily been an outlier.

In Michigan, even in cases where a prosecutor has sought life without the possibility of parole, judges have chosen to impose a term of years. As of July 1, 86 juvenile lifers had been released, according to the Detroit Free Press. One of those was Sheldry Topp, who left prison this year at the age of 74. Coopers office had asked the court to sentence him to life without the possibility of parole.

In 1962, Topp was convicted of a murder he committed when he was 17. As a child, his father frequently beat him with an extension cord, according to his attorneys sentencing memorandum. On one occasion, a sibling recalled, his father hit Topp with a baseball bat after he swung and missed the ball, according to the memo. Beginning at the age of 12, he was placed in three mental institutions. As a teenager, he was subjected to electric shock therapy 20 times, according to the memo.

There is variability from state to state, as well as from county to county, said Lavy. The top prosecutor in Ingham County, Michigan, Carol Siemon, told The Appeal in an email, We have not and will never seek JLWOP [juvenile life without the possibility of parole] under my administration.

The countys two juvenile lifers were resentenced to a term of years, with Siemons support; one was released and the other is up for parole in 2021, according to the prosecutors office.

I believe that each defendant should be afforded an opportunity to change and be rehabilitated, Siemon wrote to The Appeal. It may never happen, but I believe everyone should be provided that possibility and incentive.

In next years Democratic primary, Cooper, who has been in office since 2009, will face a challenger, former family court judge and prosecutor Karen McDonald. McDonald told The Appeal that she was not sure if she supported a ban on life without the possibility of parole for juveniles. When asked if her office would ever seek the sentence for youth, she said, I wouldnt say never. I agree with the Supreme Courts decision that it should be an extremely rare case.

However, McDonald said, she disagrees with Coopers approach to these cases, in particular her handling of Hernndezs case. If elected, she told The Appeal, she plans to advocate for Hernndez to be resentenced.

She should be released, McDonald said of Hernndez. Its not keeping the community safe to keep Barbara Hernndez in prison.

The Campaign for the Fair Sentencing of Youth is a sponsor of Elizabeth Weill-Greenbergs documentary play on young people sentenced to life in prison.