Young and incarcerated: Part 2

Santana Serrano was convicted of murder, accused of helping her boyfriend kill another teenager when she was 17 years old. At trial, it was disputed whether she shared an intent to kill, and whether she handed him the gun or he grabbed it from her.

Unless something changes, she won’t see outside the Grant’s women’s prison until she’s 50. And even that’s only a maybe. That’s just when she’ll first be eligible for parole.

An attorney has taken up her case, arguing a previous lawyer bungled her defense. But both the state and federal courts have denied her petitions arguing that her imprisonment is unlawful. She’s pretty much exhausted her legal options. 

“Her case is so unfortunate, because she didn’t kill anybody,” said Stephen Taylor, an assistant federal defender helping with the case.

Young and incarcerated: Part 1

Serrano’s sentencing hearing on March 30, 2015 lasted just 19 minutes. The court sentenced her to life in prison with eligibility for parole after 30 years. According to Serrano’s petition, her trial lawyer presented no evidence or legal arguments in the hearing.

During the hearing, the judge assigned her blame for the killing: “Although you didn’t actually fire the shot and pull the trigger you were in control of the whole situation. You had the gun. You had the, you alone had the ability to keep this from happening, and you didn’t.”

When Taylor first heard that quote, he said if he didn’t know any context about what happened, he would assume that Santana Serrano was the shooter’s parent, not the shooter’s teenage girlfriend.

He said the notion that Serrano had that kind of control over the situation is absurd.

Taylor submitted an affidavit, or a statement sworn under penalty of perjury, to lend his expertise on juvenile sentencing to the petition. In it, Taylor drew comparisons between Serrano’s case and others where young people committed far worse offenses, and caused much more harm and were more culpable received an equivalent sentence.

“If you look at those cases, and then you look at Santana’s culpability, it’s really a tragedy that she’s serving the kind of extreme sentence she is, because it really doesn’t give her a chance for her to demonstrate to anybody that she’s been really rehabilitated and deserves an opportunity to be released before the conclusion of her sentence.”

Speculative questions

The U.S. Supreme Court in Miller v. Alabama in 2011 made it unconstitutional to impose mandatory life without parole sentences for juveniles. Justices didn’t outright ban life without parole sentences but said a judge must look at the role of the young person in the offense. A later Supreme Court decision in Montgomery v. Louisiana allows those same factors to apply retroactively to cases that happened before Miller was decided.

“Her role was extremely limited to retrieving a firearm and handing it to her boyfriend who, at the time, had a lot of power and control over her,” Taylor said.

He wrote in the affidavit that it’s essential for a defense attorney to collect their client’s social, medical and educational history and hire an expert to report that information and how it relates to the factors under Miller. Serrano’s new attorney Jason Wheeless said in an interview that Serrano’s father was abusive, and that should have played a role in her defense.

Miller also teaches us that young people are vulnerable to peer influences, he said, which is supposed to be a mitigating factor. But in Serrano’s case it was flipped on its head and seen as an aggravating factor.

“Almost like, ‘But for you handing this gun to the actual shooter, this person would not have died,’ which I think is wrong,” Taylor said. “There’s no way to know that, first of all. And second, what is it that she actually did wrong? How is she, a young person, under the power of this violent boyfriend, supposed to say no to him in a moment of what social scientists refer to as ‘hot cognition’?”

Hot cognition is the idea that someone’s ability to make decisions is affected by their emotional state.

He asked if Serrano refused to hand over the gun, what would have happened to her? Would it have actually spared Garcia’s life?

“Those are all very speculative questions, but there needs to be more certainty when it comes to looking at these factors under Miller,” Taylor said. “And in this case, I felt like there wasn’t any attention paid to the factors that should have been considered.”

Running out of options

Serrano could petition Gov. Michelle Lujan Grisham for clemency, but the odds of that working for her are pretty low, Taylor said. Clemency is a power given to a public official to lessen the punishment of a crime, similar to a presidential pardon.

“I think except for directly petitioning the governor, I think she has exhausted all possible relief or remedies,” Taylor said.

The broader legal context around juvenile justice is also not reassuring for Serrano’s chances of regaining her freedom.

The U.S. Supreme Court in April weakened some protections for juveniles in its decision in Jones v. Mississippi, which says juveniles can be held in prison until their death, even if the state hasn’t proved that they are incapable of reform.

In dissent, Justice Sonia Sotomayor wrote that the majority’s decision functionally throws out the court’s precedent while pretending to adhere to it. The court used to see it this way:  Life without parole for people under 18 should be limited to “those rare children whose crimes reflect irreparable corruption.” 

Wheeless filed the petition in Serrano’s case. He said there are two issues with sentencing young people as adults to life with or without parole. One is the actual sentence itself, the length of the sentence, and whether it amounts to cruel and unusual punishment. 

And two: previous court rulings addressed what kind of parole hearing juveniles get and whether it should be meaningful to a parole board that they were a child when the offense happened, that their brains were not fully formed, and that they have spent some of their most formative years in a cage.

But Wheeless has zero hope that the conservative-leaning U.S. Supreme Court would take those factors into consideration.

“My guess is if they get their way, though, they’ll be OK with the death penalty for juveniles,” he said.

Sexism in sentencing

The Philadelphia-based Juvenile Law Center, founded in 1975, is the oldest children’s rights public interest law firm in the U.S. They provide counseling assistance, consulting, technical assistance, and weigh in on cases across the country involving children in the child welfare and justice systems.

Marsha Levick, the top lawyer there, said the judge’s characterization of Serrano being in control “seems ludicrous.” She said Serrano’s case feels like an echo of a time she would like to think we have moved beyond.

“Historically, our paternalistic views toward women, that they actually require more protection, that they’re more vulnerable or more fragile, physically or emotionally, has had a weird opposite effect in criminal cases,” she said. 

When a woman or girl comes before the court charged with criminal activity — certainly charged with homicide — there is an overreaction. The feeling is, “If a woman would do this, they must be really bad,” Levick said. “And so there is a kind of over-sentencing to their conduct that was not unusual in some places, probably still not that unusual in the way that courts respond to behavior by young girls and women.”

In the juvenile justice system, there used to often be girls who would run away from foster placements being viewed much more harshly than boys who might run away, Levick said.

Young and incarcerated: Part 3

“Perhaps this partial view that if girls run away, they place themselves at greater risk,” she said. “They become more vulnerable, and so we’re going to reach out and keep them in custody longer. It’s an almost counter-intuitive response to what is also a prevailing view, certainly historically, in this country, about how we have viewed girls and women.”

She said these kinds of cases are very hard to win because there is an inertia that sets in — once something is done, no one wants to go back and start over.

“That is a very weighty spirit that hangs in the air in both these post-conviction habeas-type proceedings,” where people are trying to get a do-over, Levick said. “There is a natural resistance to starting it all again. It’s a very high hurdle for defendants.” 

The system bears down on criminal defendants, she said. 

“It does resist do-overs,” she said, “even when everything about the case cries out for precisely that.”