PW special report: Two recent state Supreme Court decisions could alter NC’s juvenile justice landscape

By: - July 22, 2022 6:00 am

Image: AdobeStock

Image: AdobeStock

After growing up behind bars, many who committed serious crimes when they were children now have a chance at parole 

James Ryan Kelliher first tried to kill himself when he was 10 years old. A high school dropout who had been abused by his father, Kelliher spent all his time getting or staying high by the time he was 17, robbing people to support his addiction.

The trauma, pain and drug use all intersected one violent summer night in August 2001, when a 17-year-old Kelliher and a friend robbed another teenager they knew who sold drugs. Kelliher heard his accomplice execute the 19-year-old and his girlfriend with a gun Kelliher provided while he pilfered their apartment of cocaine and marijuana.

But because of two recent decisions by the North Carolina Supreme Court, Kelliher could be among the first of the imprisoned whose cases are reviewed for parole after receiving a “de facto life sentence” for crimes they committed when they were kids.

Though Kelliher is white, the decision’s impact could be perhaps most profoundly felt among incarcerated people of color, as they make up almost two-thirds of those sentenced to 40 years in prison for crimes they committed as children.

“When a child commits a murder, the crime is a searing tragedy and profound societal failure. Even a child has agency, of course; we do not absolve a child of all culpability for his or her criminal conduct,” Justice Anita Earls wrote in State v. Kelliher. “What a child’s actions do not reflect, in the vast majority of cases, is that child’s permanent and fundamental depravity.”

In the second case, State v. Conner, state Supreme Court Justice Michael R. Morgan wrote that those children who were given life sentences with the possibility of parole, “while not guaranteed parole at any point during their respective terms of incarceration, nonetheless must have the opportunity to seek an early release afforded by the prospect of parole after serving no more than forty years of incarceration.”

In 2012 the U.S. Supreme Court ruled that it is unconstitutional to sentence a child to mandatory life imprisonment. Shortly afterward, North Carolina legislators passed a law that made some minors who had been sentenced to life without the possibility of parole eligible for release after they served 25 years. But there were many people whose sentences hinted at the possibility of parole, but only after they served consecutive life sentences. The recent state Supreme Court rulings deal with these de facto life sentences.

Unless a judge deems an individual “irredeemable” or “incorrigible,” the opinions set a 40-year ceiling on the amount of time someone convicted of a crime when they were a child must spend imprisoned before they are eligible for parole. The rulings do not guarantee a person’s release from prison; they merely provide a way for people to go free.

State Juvenile Defender Eric Zogry

Dawn Blagrove, director of Emancipate NC

“It’s not that the automatically people will get released after 40 years. It’s that they will get the opportunity to make their case before the parole board,” said Eric Zogry, the state’s Juvenile Defender.

These recent court decisions set a precedent that attorneys can cite when petitioning to get their clients out of prison. The justices set a 40-year threshold on parole eligibility, but not a minimum.

“You’re fighting for 40 years. That’s what you’re fighting for, at a maximum. I mean, so why couldn’t you get 30? Why couldn’t you get 20?” Zogry said.

“Now, we start getting people free,” said Dawn Blagrove, executive director of Emancipate NC, a group that works to dismantle institutional racism within the criminal justice system and end children’s confinement in youth jails and prisons.

The decisions — written over the dissent of Chief Justice Paul Newby — come a year after a failed attempt at the legislature to end life-without-parole sentences for people convicted of crimes when they were children. Co-sponsored by four Republicans, the bill never made it out of committee.

“Sometimes I wish I wouldn’t have left the court,” said Rep. Marcia Morey, a Durham Democrat who served as a district court judge for 18 years.

Morey reflected on her past legislative efforts to end life imprisonment for those with severe mental illnesses and for people who committed crimes when they were minors. She offered a succinct explanation for why the bills failed to pass: “They go nowhere, because politicians are afraid it looks like ‘soft on crime.’”

A lot of kids came through Morey’s courtroom when she was on the bench. Each child’s story was a confluence of tragedy, trauma and pain, situations from which the troubled young people could not extricate themselves.

“Some of the conditions that these kids have lived in, survived in, are just brutal,” Morey said. “They’ve never had a chance.”

Chaotic paths lead to violent ends

The 15 years of Riley Dawson Conner’s life before he committed an unspeakable act of violence were, as state Supreme Court Justice Morgan described in his opinion, “challenging, chaotic, and marked by tremendous instability.”

Morgan recounted Conner’s life in his 61-page opinion. Born to young parents who were addicted to cocaine, Conner showed signs of epilepsy when he was a toddler. He moved in with his grandparents when he was 5; his mother testified that she was “strung out” on crack cocaine at the time, turning over parenting responsibilities to her own parents. Conner’s father was in prison.

Conner had other family who lived nearby, but his aunt described the place where they all lived as “the pits of hell.” Conner’s mother said it was “nowhere for a child to be” because of all the drugs and prostitution there.

Conner’s classmates made fun of him because his parents were addicted to drugs. His mother and father were incarcerated by the time he was 8 years old, a common fate for those who struggle with drug abuse. It was about this time that a doctor said Conner showed signs of PTSD.

Conner first used marijuana when he was 9. He started living with an older cousin he grew to idolize, who sometimes gave his Conner some of the drugs he sold.

By age 11, Conner was drinking every day and blacking out on Xanax. He went to live with his father but was sent back to live with his mother and stepfather after his dad got arrested for robbing a bank.

Kicked out of school in South Carolina for possessing marijuana, Conner’s last school records are from sixth grade. A middle school dropout, he spent most of his time in an abandoned trailer doing drugs with his cousin. He graduated from Xanax to opiates. He started doing heroin when he was 14.

He kept having seizures — as many as 10 a night — as he bounced between living with his father, his father’s ex-wife and his stepsister. In February 2016, his aunt took him to a doctor, who thought the seizures might be the result of PTSD.

Within weeks of the doctor’s visit, on March 2, 2016, Conner broke into a supermarket to steal cigarettes. Later that day, his aunt called the cops to tell them about a fight Conner had gotten into. Distressed, she told police her nephew “needs to get locked up,” according to court documents.

Conner had an appointment with a juvenile court counselor stemming from those incidents on March 11, 2016. That morning, Conner knocked on his aunt’s door and persuaded her to step outside her home. Then he sexually assaulted her and killed her with a shovel, breaking her arm and almost every bone in her face. He buried her a football field’s length away from her home.

Police interviewed Conner the next day, after finding her body. He lied to them, claiming he saw a suspicious car earlier that morning around where his aunt lived.

Five days after the murder, Conner’s mother took him to the hospital because he was having 15 seizures a night. Later that month he went to UNC Memorial Hospital after having such a bad seizure that he lost control of his bladder and foamed at the mouth. At one point he had 30 seizures in a single night.

After Conner was released from the hospital, he told the cops he assaulted his aunt, but falsely blamed his cousin for the murder. He changed his story three times in a single day, gradually admitting more responsibility in each story he told police. The cops arrested and charged him with rape and murder the next day. He pled guilty three years later, to first-degree murder with premeditation and deliberation, and first-degree rape. He was given two stacked sentences, which he would serve one after the other; it would be 45 years before he could seek parole. By then, Conner would be 60 years old.

‘The resume of many’

Kelliher’s childhood was similar. His father abused him. He, too, started using marijuana and alcohol when he was young. He tried to kill himself by overdosing on drugs at age 10.

He dropped out of high school after his freshman year. By the time he turned 17, he was high or drunk “all day,” stealing from and robbing people to support his drug use.

On Aug. 7, 2001, a 17-year-old Kelliher and his friend Joshua Ballard went to Eric Carpenter’s apartment to buy drugs. Kelliher testified in court that Ballard ordered Carpenter and Kelsea Helton, who at the time was about six months pregnant, to get on their knees and face the wall. As Kelliher searched the place for drugs, he heard two shots and saw flashes. Ballard had shot them in the back of the head. Kelliher and Ballard fled the scene and used the drugs they had stolen.

Kelliher received two consecutive life sentences of life without parole for the first-degree murder convictions. After the 2012 U.S. Supreme Court decision, the sentences were eventually changed to two consecutive life sentences with the possibility of parole

Each conviction required Kelliher to serve 25 years before he would be eligible for parole. But he would have to serve the second 25 years after the first, effectively giving him 50 years before he could even be considered.

In her opinion, Justice Earls wrote that, The crimes Kelliher committed and the pain he caused are irrevocable. He can never replace what he took from Carpenter, Helton, their friends and families, and the entire community of this state. He will spend decades of his life, and perhaps the remainder of his life, in prison for his actions.”

But the state constitution, Earls wrote, “does not permit us to ignore his potential for change. He cannot be deprived the opportunity to demonstrate that he has become someone different than the person he was when he was seventeen years old and at his worst.”

The tragic biographies of Kelliher and Conner are familiar to Morey, the former district court judge-turned-legislator.

“That’s much more typical than not,” Morey said. “Physical abuse, there’s alcohol [and] drug abuse, absent parents, attempts at suicide; unfortunately, that’s the resume of many of the youth that come into the juvenile system.”

The decisionspotential impact on racial disparities

But if Kelliher and Conner have similar childhoods and propensities for violence, one thing makes them very different from many others who wind up in prison at a young age: their white skin.

Ben Finholt, director of the Just Sentencing Project

Research published last year determined that more than nine of 10 kids who have been sentenced to life without parole in North Carolina are Black. That means North Carolina has the worst record in the country for racial disparities in life without parole sentences, said Ben Finholt, director of the Just Sentencing Project at Duke Law’s Wilson Center for Science and Justice and one of the authors of the paper.

Finholt said about half of those in state prisons are Black, compared to about 20% of state residents.

“The harsher the penalty, the more likely it is being given out to a Black or brown person,” he said.

The data are unsurprising to advocates pushing for criminal justice reform. Blagrove, from Emancipate NC, said systemic and institutional racism run so deep in the criminal legal system “that it is virtually impossible for a Black child who was sentenced to an adult crime in North Carolina to get a sentence that is not riddled with disparities.”

Despite that, it is the cases of two white men that led to the Supreme Court’s rulings and the establishment of the 40-year threshold — opinions that could open the door for dozens of people of color who are locked away for violent crimes they committed when they were children.

Those serving de facto life sentences for crimes they committed as minors can now file motions in Superior Court asking for sentencing relief, potentially getting them out of prison decades early.

Finholt said the pair of decisions could start to address racial disparities among the imprisoned population. There are approximately 54 people currently in state prisons who are serving 40 or more years in prison for crimes they committed as kids, Finholt said. Almost two-thirds of them are Black.

“I think that this is a good first step in trying to address the really horrific racial imbalances we have when it comes to mass incarceration, not just generally, but of Black and brown people,” he said.

Earls’s opinion mentions race and the tough-on-crime policies passed in the 1990s in response to crimes committed by children. She references “superpredators,” a racist trope that propagated the myth that some minors were mindless criminals who committed violent crimes without any remorse. Earls’ opinion stated that the court no longer subscribes to the superpredator theory, acknowledging scientific advancements that show children’s brains are not fully developed until adulthood.

“We now recognize that our practice of describing children as ‘predators’ fundamentally misapprehended the nature of childhood and, frequently, reflected racialized notions of some children’s supposedly inherent proclivity to commit crimes,” Earls wrote.

Judicial activism or acting when others wont?

The state Supreme Court rulings weren’t unanimous. Chief Justice Paul Newby wrote the dissent in the Kelliher decision, claiming the opinion devalued human life.

Chief Justice Paul Newby

“The majority’s holding today sets dangerous criminal policy,” Newby wrote. “Under the majority’s reasoning, time served before parole eligibility seems to be capped at the same forty-year limitation no matter how many murders were committed and no matter how much time elapsed between the murders.”

He accused his colleagues of “judicial activism” by usurping the legislature’s role in crafting policy, claiming that it was up to the General Assembly to decide how to punish those convicted of a crime.

The legislature has tried to take on this subject before. Just last year, Republicans and Democrats raised a bipartisan bill that would have eliminated life without parole sentences for children. It would have also changed parole eligibility for minors sentenced to more than 15 years in prison. Most young people would have been parole eligible after 15 years, except for those convicted of first-degree murder, who would not be eligible until serving 25 years.

Lawmakers were ready to vote the bill out of committee, Morey said, but then the North Carolina Conference of District Attorneys gave their public testimony.

Chuck Spahos, who lobbies on behalf of the Conference of District Attorneys, reminded legislators of the 1998 abduction, rape and murder of 10-year-old Tiffany Long. He also mentioned the murder of Eve Carson, in which two men abducted, robbed and murdered a University of North Carolina student, the student body president.

“I ask you today, on behalf of the families, Tiffany Long and Eve Carson, how are you going to tell them now that those defendants should be eligible for parole [after] only 25 years?” Spahos asked in the 2021 hearing.

The bill never made it out of committee.

They threw cold water on it and got some others concerned about it,” Morey told Policy Watch in a recent interview. “And some of the Republican leadership came in as floaters in the committee and tried to make sure there would not be a vote.”

All the defendants in the cases Spahos mentioned were Black. The victims were both white, a young woman and a young girl.

It is not uncommon for legislators and lobbyists to invoke race when trying to block criminal justice reforms, said Blagrove.

“I think that what we’ve seen from conservatives in North Carolina is they have moved from a silent dog whistle into a full out, full-throated public displays of gross racism. I think there are strong parallels between what we saw during that debate and what we see during many debates that involve criminal justice advocacy,” Blagrove said. “North Carolina has a history of being aggressively, aggressively anti-black and exploiting deep-seated racial myths and mythologies about Black men, to rile up its base.”

While the Kelliher and Conner decisions don’t directly condemn racial inequities in the justice system, Blagrove said, they could be a way for attorneys and the incarcerated to get the courts to reckon with the ways racism has affected the criminal legal system and the long sentences disproportionately given to Black defendants.

“I think that this opinion will go a very long way, in helping us to force the courts and force state actors to acknowledge and deal with that systemic and institutional racism that creates such grossly disparate outcomes for Black children,” said Blagrove. “The next horizon in this fight is going to be making sure that as many of these folks as possible, at least get that opportunity to be heard, and to go before the parole commission.”

The two decisions are monumental for North Carolina’s juvenile justice landscape, but there are still other issues that need to be sorted out, like how judges can manage mandatory-minimums and sentencing ranges to arrive at the 40-year threshold.

“I don’t believe that Kelliher and Conner are the last word on juvenile sentencing in North Carolina,” Finholt said.

The federal judiciary has not issued any guidance to states on how to pare back mass incarceration by reducing long sentences given out in the more punitive, tough-on-crime times, said Finholt.

“There’s no meaningful guidance from federal courts on what is a pretty essential question in criminal justice, which is ‘How long is too long?” he said. “And so, we have to look to our own constitution and have to look to our own history to start thinking about, ‘How long is too long?’”

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Kelan Lyons
Kelan Lyons

Investigative Reporter Kelan Lyons writes about criminal and civil justice, including high-profile litigation, prison and jail conditions, housing, and the challenges people face when they leave prison.