Arizona can put juveniles in prison for life, state Supreme Court rules

Arizona judges are free to sentence juveniles to what amount to de facto life sentences despite U.S. Supreme Court rulings that appear to prohibit that, the state Supreme Court ruled Friday.

In a unanimous decision, the justices insisted they were not ignoring what the nation’s high court has repeatedly ruled.

Instead, they said, those legal precedents involved juveniles who were sentenced to life behind bars without possibility of parole for a single crime. The Arizona cases, the justices here wrote, all involved juveniles sentenced to consecutive sentences for multiple crimes.

And that, wrote Justice John Lopez, means judges here handling juvenile cases are not bound by the U.S. Supreme Court precedent even though their consecutive terms amounted to the same thing.

But Lopez did not stop there. He and his colleagues took a slap at the justices on the nation’s high court for issuing their original rulings barring life sentences for juveniles in the first place, saying they were based on “judgments of other nations and the international community.”

“Relying on a single study about the sentencing practices of other nations, the (U.S. Supreme) Court observed that the United States stood alone in subjecting juveniles to parole-ineligible sentences,” Lopez said.

That conclusion clearly did not sit well with the Arizona justices.

“We pause here to express our concern with the Court’s reliance on international laws and judgments to resolve an issue raised under the United States Constitution, particularly when they are invoked by the court to disregard the most reliable evidence of national consensus: the will of the American people as expressed through their state laws,” Lopez wrote. “Such implicit deference to foreign decisions runs the risk of ceding to foreign government what our laws and our Constitution mean, and what our policies in America should be.”

Friday’s decision involves three cases:

– Martin Raul Soto-Fong, sentenced to three consecutive life terms for the 1992 robbery and triple murder at a Tucson El Grande Market, who will not be eligible for release until he has served 109 years behind bars;

– Wade Nolan Clay convicted of murder and attempted murder in a case out of Mohave County and sentenced to life with the possibility of parole after 25 years, and 12 years after that;

– Mark Noriki Kasic Jr. sentenced to consecutive prison sentencing totaling nearly 140 years after being convicted of six counts of arson and other charges stemming from a series of fires in Tucson garages and homes between 2007 and 2010.

Lawyers for all three petitioned for reduction of sentence based on U.S. Supreme Court rulings in the last decade which concluded there was a “national consensus” against imposing parole-ineligible life sentences on juveniles. The attorneys said that the consecutive sentences, while allow for parole, effectively became life terms which they said the nation’s high court has precluded.

Lopez acknowledged that the most recent U.S. Supreme Court ruling states that sentences of life without parole are barred “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”

But Lopez said he and his colleagues are interpreting that as not a categorical ban.

“It merely mandated that trial courts follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty,” he wrote.

Lopez also said nothing in those rulings say juveniles “must have a chance for reconciliation with society.”

And then there’s the big difference on which the Arizona Supreme Court is hanging its legal hat.

In each of the cases decided by the justices in Washington, the juveniles were sentenced to life without parole for a single crime. What happened here, Lopez said, is “very different.”

“Each received multiple sentences for multiple crimes which, in the aggregate, resulted in terms of incarceration that will or may exceed their life expectancy,” he wrote. And that difference, Lopez said, is what allows him and his colleagues to uphold the sentences at issue.

Then there’s the issue that the Arizona Legislature has never said that juveniles cannot be locked up for life.
Lopez said courts elsewhere which have held de facto life terms unconstitutional “have invariably usurped the legislative prerogative to devise a novel sentence scheme or otherwise delegated the task to trial courts to do so.”

“Here, petitioners invite us to invade the province of the legislature,” he said. Lopez, however, said the court has to act out of “our respect for the separation of powers, the will of our citizens, and the principles of judicial restraint.”



Court: Legal precedent doesn’t apply to juvenile’s life sentence


There’s nothing unconstitutional about sending a juvenile to prison for the rest of his life for a series of arson fires in Tucson, the Arizona Court of Appeals has ruled.

Judge Karl Eppich, writing for a divided panel, acknowledged that the U.S. Supreme Court has ruled that it is unconstitutional to impose a life sentence on juvenile offenders who do not commit homicide. And a separate ruling from the nation’s high court found that prison without possibility of parole is a violation of the Eighth Amendment against cruel and unusual punishment unless the juvenile’s crimes “reflect irreparable corruption” rather than “transient immaturity.”

Karl Eppich
Karl Eppich

But Eppich said that Arizona courts are not bound by those rulings, at least not in this case. He said nothing in those precedents address consecutive sentences, like the 140-year term imposed on Mark Kasic Jr. for setting the fires, a sentence which effectively becomes a life term.

That reasoning by Eppich and appellate Judge Philip Espinosa drew a stinging dissent from appellate Judge Peter Eckerstrom.

“They have embraced a regime in which juveniles who commit a lone murder are entitled to potential sentencing relief while those who, like Kasic, commit a sequence of crimes – where no person is killed – are not,” Eckerstrom wrote, a system he said is hardly proportional.

“This result should give the majority pause,” he said.

In 2009 a jury found Kasic guilty of 32 felonies arising from six arsons and one attempted arson committed over a one-year period beginning when he was 17, though some occurred after he became an adult.

According to court records, most of the arsons on the east side of Tucson involved occupied residences.

All of the fires were set in the same manner, with Kasic entering a carport or storage unit between midnight and daybreak – while the residents were asleep – gather flammable materials and set them on fire, often with an accelerant like gasoline.

A city fire investigator called Kasic “the most prolific I’ve seen.”

“He seems like he knew exactly what he was doing,” said Thomas Quesnel. “We’re lucky someone didn’t get killed.”

Mark Kasic
Mark Kasic

Kasic, who has been in prison since being sentenced, sought relief from his sentences based on the most recent Supreme Court rulings about life terms for juveniles.

But Eppich said none of those cases setting out new precedents involved consecutive sentences.

“We do not consider the aggregate of multiple sentences when evaluating a claim under the Eighth Amendment,” he wrote.

Eckerstrom said that ignores the essence of what the Supreme Court has ruled.

“The Eighth Amendment forbids imprisoning a juvenile offender for life without hope of release,” he said. “This rule applies even to those juveniles who have committed premeditated, first-degree murder.”

And Eckerstrom said he can find “no logical or jurisprudential basis” for excluding someone who was sentenced by a judge for several offenses from this same constitutional protection.

The judge also said there was evidence of the kind of immaturity in this case that the Supreme Court concluded in the other rulings that should not allow life sentences of juveniles.

Peter Eckerstrom
Peter Eckerstrom

“Kasic committed the offenses with the assistance and encouragement of his peers and no apparent motivation other than to impress his peers with a display of rebellion and risk-taking,” Eckerstrom wrote. And he said Kasic disclosed his crimes to other peers who were not involved, “an action that suggested he lacked any mature understanding of the gravity of his legal actions or the legal risks he faced in committing the arsons.”

He also noted that Kasic had been abandoned by his mother and was raised by a single father and who was sexually abused by another enlisted man his father had trusted as a caregiver.

“Thus, Kasic’s life situation and actions exhibited the very features of immaturity the (Supreme) Court has identified as its basis for exempting those juveniles, not irrevocably corrupt, from life imprisonment without hope of release,” Eckerstrom said.

Juvenile crime plummets — experts at a loss to explain

Before its closure in 2015, Apache County’s juvenile detention center would sit a month, six weeks, maybe more without housing a single kid.

The fully staffed facility was left waiting for the occasional drop-off. According to the Associated Press, the operation cost $800,000 a year, yet it averaged only 1.7 children in its custody at any given time.

The detention center was shut down, and a partnership was formed with Navajo County to house Apache’s juvenile offenders.

But on June 30, Navajo County closed its detention center, too. So did Gila County. And Graham County’s numbers are so low, its leadership is considering using just one detention area, leaving three more vacant and another open for a community program growing in popularity.

Arizona’s juvenile detention centers are closing because juvenile offender populations are plummeting, and juvenile offender populations are plummeting because kids these days are committing crimes at a rate far below generations before them.

According to the Office of Juvenile Justice and Delinquency Prevention, in the past two decades, the juvenile arrest rate for all offenses nationwide reached its peak in 1996 when nearly 8,500 arrests were made per 100,000 kids between 10 and 17. By 2015, that arrest rate had fallen 68 percent.

Property Crimes
Source: Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention

Between 1980 and 2012, property crime arrests among juveniles between the ages of 15 and 17 fell 57 percent, and violent crime arrest rates in that group dropped 68 percent.

Those trends are representative of what is happening in Arizona, going well beyond juvenile arrests and detention.

According to data from the Arizona Department of Juvenile Corrections, from 2007 to 2014, the number of juvenile offenders referred to the courts dropped by about 45 percent, and the number of juvenile offenders who were ultimately committed to corrections fell 49 percent.

It’s not a bad problem to have – too few kids getting into trouble with the law – but it has left Arizona to rethink its approach to juvenile detention.

Joseph Kelroy, director of Arizona’s Juvenile Justice Services Division, said all counties in the state are using risk and needs assessments to determine whether a juvenile offender belongs in detention and what the child needs to move forward. Eight counties are actively engaged in the rollout of the Juvenile Detention Alternatives Initiative, an effort to develop statewide detention screening guidelines, and all counties have received training from Kids at Hope, a program that turns away from the concept of “bad kids.”

Kelroy said communities have more programs available to keep young people out of trouble and identify those who are struggling early on, leaving detention as a last resort.

“If we can keep them out on the front end and deal with it from a preventative standpoint, I think we’re going to have better results,” he said. “If we can work with people in their communities, in their homes with the families engaged, we’re going to have better opportunities to be successful more often.”

But while services geared toward working out a juvenile’s past traumas, substance abuse or family challenges may help prevent a history of crime, Kelroy said a percentage of young offenders will still require detention for their own safety and that of the public.

As detention populations remain low, the state is looking to the Detention Center Regionalization Task Force to develop solutions by this fall.

Kelroy said developing regional detention centers is an option, though the locations of such facilities raises questions for juveniles coming from more remote parts of the state. The juvenile detention center in Pinal County has already taken on the kids coming from Apache, Gila and Navajo counties.

The task force will also make recommendations for repurposing entire facilities or vacant sections, creating youth centers in their place where kids can move freely as they cool down after a fight with parents or await screening in more severe cases.

Ultimately, Kelroy said the system shouldn’t hurt people. Detention should be a short-term solution, if it is necessary at all. And when a kid does come into contact with the justice system, he said that’s an opportunity to help.

Unfortunately, while the state can restructure detention, no one knows exactly what is behind the drop in juvenile crime.

Dave Byers, director of the Administrative Office of the Courts, said people started joking that kids today are spending far more time on social media than they are out on the streets, but he’s not so sure that’s entirely far-fetched anymore.

Melissa Sickmund, director of the National Center for Juvenile Justice, said there might be something to that theory.

Take violent crimes, for example. Causing physical harm to someone is awfully difficult if you are not face to face, Sickmund pointed out.

She said most violent crimes committed by juveniles fall under assault, the elevated pushing and shoving that may be found in school brawls. It could be that kids are simply taking that violence and projecting it online, something Sickmund said is not being measured well, but it is disappearing from the streets even if communities are not entirely aware of the shift.

Violent Crimes
Source: Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention

Sickmund said young people are also self-correcting – they may not be great decision-makers, but it doesn’t take much to scare them back in line. And the justice system today is more cognizant of how best to do that.

They start thinking about college, about their career goals, about the places they want to go and things they want to do. And they know those things won’t happen if they continuously get into trouble.

They “outgrow that risk-taking behavior” and “grow into being able to see the consequences of our actions,” Sickmund said.

“It’s kind of their job to rebel,”she said. “We don’t want to make that a crime. We just want to train them away from that.”


Juveniles in Maricopa County adult jail don’t receive accredited education

Maricopa County Jail (Photo by Rachel Leingang/Arizona Capitol Times)
Maricopa County Jail (Photo by Rachel Leingang/Arizona Capitol Times)

The Maricopa County Sheriff’s Office is not providing accredited educational services to the juveniles held in its adult jail.

During last week’s meeting of the ad hoc committee on juvenile justice, MCSO Deputy Chief of Custody Brian Lee said 27 civilian Sheriff’s Office employees oversee the program. MCSO has considered outsourcing the job to the Maricopa County Educational Service Agency, which provides educational services at the Durango Juvenile Detention Facility, but ultimately, chose not to use the accredited program.

“I can’t speak to exactly what that means in the education world,” Lee told the committee.

But Rep. Heather Carter, R-Cave Creek, could.

“That’s a problem,” she told Lee.

Carter told the Arizona Capitol Times it means the credits juveniles earn while in MCSO’s custody at the adult facility will not necessarily be transferable upon returning to an accredited institution. Accommodations could be made to do so, but there is no guarantee.

And Carter said that’s obviously problematic when the state is trying to help those kids get back on track.

Glenn Young, MCSO’s Custody Support Division commander, said the program is not accredited because it is not a diploma-granting institution but rather offers only a GED. The curriculum is provided by Edmentum, a computer program that assesses the juveniles’ education levels.

He could not speak to why the program was not transferred to an accredited provider, whether that was because of cost or logistical issues.

While Young said he wouldn’t say this does not pose a disadvantage to the students the program serves, he noted the short periods of time juveniles typically spend at the facility.

Most are awaiting trial, he said, and the time it would take to progress to the GED level is much the same it would be on the outside – students would still need years to achieve a GED, which is “extremely uncommon” when the average jail sentence is 28 days, he said.

And after the juveniles are sentenced, the facilities they might go to for longer periods are geared toward meeting long-term educational needs.

The adult facility is currently housing 92 juveniles, most of whom have been charged with violent crimes as adults. Lee said five juveniles are being held for federal authorities because the nature of their alleged crimes prevented other juvenile facilities from accepting them.

Young said MCSO’s civilian staff in charge of their education includes:

  • 14 teachers, all of whom are qualified, and all but one have classroom experience outside of MCSO’s jail
  • Five teacher assistants, who are selected using the county’s human resource department and most of whom hold advanced degrees
  • Two education supervisors, including the principal, who has 30 years of public school experience
  • A behavioral specialist
  • A social worker
  • An administrative assistant
  • Three detention officers

Lee told the committee that educating the young inmates has been a challenge for the staff, and he noted significant differences between that program and the one at Durango.

At the Durango facility, Lee said the kids are provided a more open, “learning-focused environment.

But at the adult facility, he described a far more bleak “security-focused environment” where the juvenile inmates are handcuffed to their desks in tight, dimly lit quarters.  

Young said some students are handcuffed by their non-writing hands to prevent fights among the sometimes volatile group, and there is an “open classroom” they can work toward with good behavior.

Still, at the committee hearing, Lee was concerned by the conditions.

“Obviously, we have to be mindful of security,” he said, “but I think a lot gets lost in that.”