Should Your Birthday Determine Whether You Are Sentenced to Die in Prison?

Tuesday, October 23, might have been a routine day in prison for Avis Lee. “I got up at 5 am, took a shower, drank decaf coffee, prayed, ate breakfast and went to work at 8 am,” she recalled. Lee, who has been incarcerated for over 30 years, works as a peer assistant at the inpatient drug and alcohol therapeutic community at SCI Cambridge Springs, the Pennsylvania women’s prison. The routine was normal, but the day was not. In Philadelphia, nearly 350 miles away, the state’s superior court was hearing oral arguments about her prison sentence. “This hearing may very well determine what’s going to happen to me for the rest of my life,” Lee recalled thinking.

In 1979, Lee’s older brother and his friend committed a robbery. Lee, then age 18, was the lookout. During the robbery, her brother fatally shot the man they were robbing. The two men fled; Lee flagged down a bus driver and attempted to get help. All three were later arrested; lacking an attorney, Lee and her brother were convicted of murder, which in Pennsylvania mandates a sentence of life without parole (or LWOP). Lee, now age 57, is among over 2,700 people sentenced to life for crimes committed between the ages of 18 and 25.

In 2012, in Miller v. Alabama, the Supreme Court ruled that mandatory life without parole for juveniles constituted cruel and unusual punishment. Four years later, in Montgomery v. Louisiana, the Court ruled that its earlier decision was retroactive, giving the nation’s 2,300 juvenile lifers a chance at resentencing.

In Pennsylvania, which has the nation’s largest number of “juvenile lifers,” Montgomery’s impact has been tremendous. By September 2018, 337 of its 521 “juvenile lifers” had been resentenced and 151 have been released. Shavonne Robbins, for instance, was sentenced to life without parole for a 1992 shooting in Philadelphia. Robbins, who was 16 at the time, was not the shooter, but was nonetheless convicted of second degree murder, which carries a sentence of life without parole. But the Supreme Court decisions brought her a second chance and, in May 2017, she was resentenced to 27 years to life, making her eligible for parole. The 41-year-old was released shortly after.

Because of her birthday, however, Lee is excluded from that second chance. She’s not alone. In Pennsylvania, nearly 51 percent (2,723 people) of those serving LWOP entered prison between the ages of 18 and 25. A report by the Abolitionist Law Center found that one in 10 people serving life without parole (or death by incarceration, as advocates are calling it) are incarcerated in Pennsylvania and that the state has more than twice the national rate.

But Lee has not resigned herself to living — and dying — in prison. After the Montgomery ruling, she filed a petition with Pennsylvania’s superior court arguing that the same lack of maturity and impulsivity that make younger teens less culpable should also apply to 18-year-olds.

Neuroscience backs her claim — studies have shown that brain areas involved in reasoning and impulse control are not fully developed until the mid-twenties. That Tuesday in October, a nine–judge panel heard oral arguments. If the majority agree with Lee’s argument, they can remand the case for an evidentiary hearing as to whether her life without parole sentence is unconstitutional. Lee’s attorney, Bret Grote of the Abolitionist Law Center, explained Lee and her legal team would use that hearing to present testimony not only from Lee and those who know her, but also expert testimony about adolescent development to show that, at 18, Lee had the same developmental elements of youth that the Supreme Court noted in Miller v. Alabama.

That October morning, supporters packed both the courtroom and the adjoining hallway. “I was happy to see all the support Avis had,” said Lynda Thomas, Lee’s older sister, who traveled from her home in Maryland to Philadelphia for the hearing. Though Lee had often spoken about that support, this was the first time that Thomas witnessed it. Some of the people who crowded into the courtroom were family members whose loved ones were also serving LWOP for acts they committed after their 18^th birthday. Others were formerly incarcerated people, including women who had done time with Lee. Ronna Davis, who attended the hearing, credits her post-release success to Lee.

“In prison, she was my rock,” she told Truthout. Davis was 22 years old with two young children when she entered prison on a 4 ½-to-10-year sentence. “I thought I was tough,” she recalled. “She let me know that tough, is getting back out; that strong, is coming home.” Lee, who by then had been imprisoned for 17 years, encouraged the younger woman to start planning for life after prison, an opportunity that she herself wasn’t sure she would ever have. “She was instrumental in helping me build my life and [make] a plan to support myself and my children,” Davis recalled.

The last time that the two women saw each other was in 2001, shortly before Davis was paroled from prison. “I told her I loved her,” Davis remembered. “She told me to go out and do something with my life.” Davis heeded the older woman’s admonition, obtaining her associate’s degree, then her bachelor’s and master’s degrees. She will soon be opening Za’kiyah House, an eight-person sober living residency in Pittsburgh for men returning home from rehab or prison.

“Over 70 percent of people serving Death by Incarceration in Pennsylvania are 40 years or older,” Grote noted. “Increasingly, Pennsylvania prisons are turning into geriatric centers for people who pose no threat to public safety and who are being punished for the acts committed in their youth.”

Davis agrees. “I’m 46,” she reflected. “I was 22 when I got in trouble. I definitely wouldn’t make the same decisions [now]. And people should be given a chance to right their wrongs.”

Sheena King is another woman whose birthday excludes her from resentencing. When she was 18 years old, King’s boyfriend coerced her into fatally shooting another woman, threatening to kill King and her family if she did not comply. “It seems ridiculous that I believed him,” King recalled in a recent letter, “but I did. I should have called the police, but at 18, I didn’t think anyone could or would help me.” King’s past experiences with calling the police to stop her abusive stepfather had been futile, so rather than risk her family’s lives, she agreed. She was later arrested and convicted of first-degree murder, a conviction that, in Pennsylvania, mandates a sentence of life without parole.

Now King, age 45, is the president of the Inmate Organization at SCI Muncy, the women’s prison closer to Philadelphia. Though she and Lee are in different prisons, she knew about Lee’s upcoming hearing and its potential impact on her and the other women serving LWOP. Two weeks before, she wrote in an e-message to Truthout, “Please send some prayers up on the 23rd for Avis Lee’s hearing. If ruled favorably, this will affect me too.”

When she learned that she would get a second chance last year, Shavonne Robbins was ecstatic. Her excitement, however, was tempered by the knowledge that many of the women that she grew up with and who mentored her don’t have that same opportunity. “The brain science say 18 to 25,” she reflected shortly before leaving prison in 2017. “I be around these lifers all the time. They are beautiful people who feel bad and remorseful that desperately want a second chance. Let me tell you, I hope the other lifers get out.”

Despite decades in prison, Lee also remains hopeful. What would she do if she were out of prison? “Share my story,” she said. “Speak to at-risk youth. Visit my mother’s grave; something I haven’t been able to do in almost four decades. Spend time with family and friends. Start a career. Date. Marry. Become a home owner. Volunteer. Vote. Learn to drive, use a cell phone, surf the internet.”