“A distinction without a difference:” Bostic v. Dunbar

Winter, 1995. A 16 year-old teenager named Bobby Bostic had committed a series of armed robberies in his neighborhood in St. Louis, Missouri. Bostic and his friend, Donald Hutson (18 at the time), held victims at gunpoint during a neighborhood Christmas donations drive. They took violent advantage of their community’s kindheartedness…all for what would probably be only a few wads of cash. Two men were shot during the robberies. Several were assaulted at gunpoint, including a woman cornered alone in her car. (Continued summary based on report from The Intercept).

Bostic was arrested after the woman called the police. He refused a plea deal that would give him a less severe penalty for his crimes. Instead of admitting guilt, Bostic insisted on pleading not-guilty, and a jury convicted him of 18 charges totaling 241 years. Donald Hutson accepted the plea deal, was sentenced to 30 years in prison, and is eligible for parole this year. In contrast, Bostic faced a sentence of 18 charges imposed consecutively, meaning he would serve a term of 241 years in prison. Missouri Circuit Judge Evelyn Baker gave Bostic a sentence that equated to a life term in prison: “You write me these letters. It’s the victim’s fault. It’s the police’s fault. It’s your mother’s fault,” Judge Baker said. “It is your fault. You put yourself in the position to be standing in front of me facing 241 years in the Department of Corrections. You did it to yourself.”

Judge Baker was furious, yet in February of this year she informed the St. Louis Post-Dispatch that she regretted punishing Bostic. Bostic’s family pleaded and wrote letters on his behalf during the case proceedings, yet at 16, Bostic had shown no remorse (via Intercept, 3rd para.). Since his 1997 sentencing, Bostic completed a number of courses and certificates in prison through Missouri State University. He wrote books, poetry, and essays, including one which Plough Publishing House published online.

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Plough Publishing: One of Bostic’s articles is titled, “In the Garden.” It also appeared in Farming Magazine.

Bostic rehabilitated himself in prison, and is arguably a very changed person. But his story does not end with his term of 241 years in prison, and eventual rehabilitation through writing and education. In 2012 (as Bostic continued his sentence), the Supreme Court held in Miller v. Alabama that it is unconstitutional to sentence juvenile defendants to life in prison without parole. Four years later, the Supreme Court applied its decision retroactively to crimes committed before the decision in Miller, in Montgomery v. Louisiana. States responded to the Supreme Court’s ruling with new hearings and changes in the law, but Bobby Bostic remained behind bars with little prospect of release. Perhaps unique for his situation, Bostic’s final sentence was a term of years. It was not  a life sentence. Even if Bostic had received 300 years in prison, the rulings in Miller and Montgomery prohibiting life sentences without parole for juveniles would probably not apply to him.

The journey to the rulings in Miller and Montgomery was marked by several pivotal Supreme Court decisions. In 2002, the Supreme Court held in Atkins v. Virginia that it was unconstitutional for people with mental disabilities to be sentenced to death. The Court then completely abolished the death penalty for juvenile defendants in 2005 in the landmark decision, Roper v. Simmons. The American Psychological Association filed an amicus brief in support of 17-year-old Christopher Simmons, arguing that adolescent brains continue to develop into adulthood and that 16 and 17 year-olds should be excluded from the death penalty. The Court agreed. Jump five years to 2010 and the Court again considered the constitutionality of juvenile sentences in Graham v. Florida. The Court decided that it is a violation of the Eighth Amendment to sentence juveniles convicted of non-homicide crimes to life in prison without parole. Finally in 2012 as noted above, the Supreme Court ruled in Miller that life sentence without parole for juveniles is unconstitutional. Period.

From Atkins to Roper, and Graham to Montgomery – Is Bostic’s 241 term of years sentence really so different from a life sentence without parole? Judge Baker did not hide the reasons behind her decision when she gave Bostic a consecutive sentence based on his conviction: “Bobby Bostic,” she said. “[Y]ou will die in the Department of Corrections…Nobody in this room is going to be alive in the year 2201.” 2201 is when Bostic’s parole hearing would occur. What makes Bostic’s case particularly remarkable is that he lived in prison through a landmark series of Supreme Court decisions all relating to the sentencing of juveniles and the type of crime that Bostic committed. The Court’s design was to ensure fair sentencing and avoid cruel and unusual punishment of juveniles, yet the rulings offer no clear constitutional defense in support of Bostic’s case.

The American Civil Liberties Union (ACLU) filed a petition for writ of certiorari to the Supreme Court, requesting that the Court hear Bostic’s case and find his sentence unconstitutional in violation of the Eighth Amendment. 26 former judges and prosecutors also filed an amicus brief to support Bostic, and now Judge Evelyn Baker has added her name to the list of supporting judges. A response to the filing is required by March 15th, 2018.

The question remains – how is Bostic’s sentence any different from life without parole, when Bostic will not be eligible for parole until he is 112 years old? Can he miraculously reach that age in 2201? Or is the law the law – that a term of years, even if 241 years, is simply not a life sentence without parole…Is a 241 years term and a life sentence without parole a “distinction without a difference?”

A picture of Bobby Bostic and his petition at Change.org

A Supreme Court decision to hear Bostic’s case could mean that a wave of new defendants with a term of 80-100 years, for example, would now demand that their sentences be reheard and reconsidered. Is this the intention of the law? Would not hearing Bostic’s case mean that the essence of Graham v. Florida – no life without parole for juveniles convicted of non-homicide crimes – is lost?

No one was killed that night in 1995, and this alone will never remove the seriousness of Bostic’s crimes or the way that he carried them out with Hutson. Nevertheless, something is missing from Bostic’s case. He was convicted for a series of non-homicide crimes, and he has a term of years sentence that is effectively a life sentence in prison. We need an understanding of what happens when a term of years merges into a life sentence. What happens when the two are really not different penalties at all? The Supreme Court will decide whether to hear Bobby Bostic’s petition in the next few months. If the Court hears the petition and Bobby’s case, it will help to clarify the more than 10 years of legal history that rely on determining sentencing for juveniles in the United States.

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2 Comments Add yours

  1. UPDATE The brief for the Amici (friends of the Court, supporting Bobby Bostic) is posted on SCOTUSblog. Same for the Respondent (opposition). Case is now Bostic v. Dunbar (formerly Bostic v. Pash) as Billy Dunbar, Acting Warden, is the new Respondent for the case.

    Amici Curiae Brief: https://www.supremecourt.gov/DocketPDF/17/17-912/39036/20180315144736868_Amicus%20Brief%20-%20Bostic%20v%20Pash%2017-912.pdf

    Respondent Brief: https://www.supremecourt.gov/DocketPDF/17/17-912/39046/20180315154705736_20180315BosticBrief_FINAL.pdf

    SCOTUSblog Coverage Page: http://www.scotusblog.com/case-files/cases/bostic-v-dunbar/

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