This article by Jennifer Brookland was published in the Detroit Free Press on May 22, 2023
Nobody argued that Jose Burgos shouldn’t pay for what he had done. The 16-year-old from southwest Detroit had killed another teen and critically wounded his twin brother in a bungled drug exchange.
But nobody argued over what Burgos’s sentence should be, either. In 1992, the law was clear. For children older than 14, any homicide-related offenses meant trial as an adult and an automatic punishment: life in prison, without the possibility of parole.
The Honorable Clarice Jobes did not have the discretion to consider Burgos’ circumstances — the fact that he’d never shot a gun before the night he tried to pass off a bunch of old rags as a bag of marijuana, or the self-destructive ways he was processing the grief of losing his mother to a bottle full of heart medication.
Jobes couldn’t weigh the fact that for many other matters, the state deemed Burgos too young to make important decisions: about buying cigarettes or alcohol or voting in an election. Her hands were tied.
“I find the limitations of this statute to be totally unfair to everyone concerned,” Jobes said to those gathered in the courtroom. “However, I have to live with them and deal with them. … I think I must sentence him as an adult, and I am going to impose a life sentence. … I have no choice.”
Michigan now has the most juvenile lifers of any state
Then, ripples of change. The U.S. Supreme Court declared the death penalty unconstitutional when applied to juveniles. It decided that children who committed non-homicide crimes could not be sent away for life. And in 2012, it ruled in the landmark Miller v. Alabama case that minors could not automatically be sentenced to life without parole as Burgos had been. Children are constitutionally different from adults, the justices opined.
Four years later, another ruling made the Miller decision retroactive: Juvenile lifers could get a second look, and another chance. Today, more than half of states have entirely banned the sentencing of children to life without parole.
Burgos, who spent 27 years in prison before receiving a resentencing hearing and an opportunity to prove that he had transformed himself into a man worthy of rejoining society, is trying to change that.
He’s one of several former juvenile lifers advocating for legislation currently before Michigan lawmakers that would end the state’s practice of sentencing children to a lifetime of incarceration without the possibility of parole.
“Children change, children grow out of crime,” said Burgos, who works as a reentry specialist with the State Appellate Defender’s Office. “I think children are worthy of redemption.”
Cruel and unusual punishment
By 2012, when the Supreme Court ruled 5-4 that sending children to die in jail without any hope of release constituted cruel and unusual punishment — unconstitutional under the Eighth Amendment — Michigan had at least 358 of them locked up for life. And state courts continued to hand down the sentence after Miller was decided.
The state also has been slow to resentence juvenile lifers, with 294 inmates still incarcerated in Michigan for crimes they committed when they were younger than 18. Another 274 remain imprisoned for offenses they committed when they were 18, a population the Michigan Supreme Court ruled eligible for resentencing last summer.
This puts Michigan increasingly out of step with other states.
States as politically divergent as Massachusetts and Texas have passed legislation removing the sentence of life without parole as an option for juveniles. When Minnesota passed a public safety bill this week that stopped juvenile life without parole, that state became the 28th to ban it. Five other states have not banned the practice but have no one serving life without parole for crimes committed as juveniles.
Juvenile lifers have a 1% recidivism rate
Albert Garrett got lost on the bus the other day. After 44 years of incarceration, he’s in a city he no longer recognizes at the very beginning of a life he hadn’t dared to hope for. Garrett became a juvenile lifer when he was 17 and was released in April, at age 60.
Burgos and another former juvenile lifer, Ronnie Waters, are helping Garrett find his way. They’ve helped him get a few sets of clothing and a cellphone.
“I probably won’t need to do that,” Garrett told Burgos when he tried to explain how to send a text message. Burgos just chuckled.
As Garrett trails Burgos and Waters to the front desk of the Detroit Public Library, he hangs back. It’s been so long since he’s spoken to someone on the outside. He hasn’t found his voice yet.
So Waters and Burgos speak for him. Inquiring about a technology class so Garrett can learn to use a computer. Explaining to the woman at the front desk that he doesn’t have a state-issued ID, just a prison one. Could he still get a library card?
Advocates to ban juvenile life without parole argue that allowing juvenile lifers a chance at reentry allows them to positively influence young people in the communities they were once a part of.
“I’ve told legislators in the past, we’re citizens too, we pay taxes, and we have families, we want society to be safe,” said Burgos. “Our contribution is to make sure that those coming home have what they need so that they don’t reoffend and go back.”
Indeed, recidivism rates for juvenile lifers are extremely low. One study puts them at a hair over 1%.
“Life without parole, man, it’s ridiculous, ‘cause there’s so many transformed human beings in there,” said Waters. “If you look at the record then you’ve got to come with a different argument than we are … going to reoffend and we’re going to be a detriment to society. Because, almost to the letter, each one person out here is out here doing something to make this world better.”
Waters was a high school junior when he fired a gun at a car window parked at a drive-in movie, trying to impress the other guys he was with and scare the driver. He had fired the gun earlier that evening — into glass he hadn’t known was shatterproof. He pulled the trigger this time and waited for the spiderweb of stressed glass and laughter. Instead, the scene was the incomprehensible sight of a young woman’s blood sliding out of the bullet hole in her neck.
He was called a sociopath. A superpredator. Because he was never supposed to be released, Waters was denied education and vocational training in prison. What was the point?
“After decades and decades, I started to grasp that these people aren’t playing,” Waters said. “Regardless of what I do, regardless of what achievements I have, nothing’s changing.”
Nevertheless, Waters felt he had good in him. He refused to give up on himself. Instead, he started working on himself, and then others. He helped other inmates navigate the prison system and get their grievances addressed. Waters says when he got out after 40 years behind bars, advocacy was a natural progression. Today, he’s a registered lobbyist who has advocated for a host of criminal justice reforms, and a reentry specialist with Safe & Just Michigan.
“We do advocate for laws and policies to be changed, but we don’t need a title to do this work,” he said. “We do this work because it’s what’s in our heart.”
Failing youths, then punishing them
Waters and other advocates working to end the sentencing of youths to life without the possibility of parole make several arguments. One is that judges aren’t always considering the child’s background.
“Most of them came from situations that were so difficult, and no one intervened and no one helped,” said civil rights attorney Deborah LaBelle, who settled an $80 million class-action lawsuit against the state for failing to protect juveniles during their incarceration in adult prisons. “They’re from areas and communities in which the schools were failing, in which there’s deep economic problems and racial inequities — that we would fail them and then punish them?”
Not just punish but freeze these children forever into molds of themselves at their very worst moment. “That we would then deny them any opportunity to change and contribute seems an epitome of injustice and disregard for youth,” LaBelle said.
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