When judges make provocative rulings, they're labeled "activists" by peeved politicians. But when those same politicians execute controversial decisions, they purport to be mere protectors of the public interest.

In Iowa, Governor Terry Branstad has pitted himself as the noble servant battling the justices of the U.S. Supreme Court, who ruled 5-4 on Miller v. Alabama in June 2012 that mandatory life-without­ parole (LWOP) sentences for kids convicted of murder violate the Constitution's Eighth Amendment barring cruel and unusual punishment. Branstad announced just a few weeks after the court's decision that he would commute LWOP sentences for 38 juvenile lifers only to make them ineligible for parole until they've each served at least 60 years in prison.

"Justice," Branstad said when announcing his order, "is a balance, and these commutations ensure that justice is balanced with punishment for those vicious crimes and taking into account public safety."

However, Branstad's action is possibly illegal, according to Stephen Bright, the director of the Southern Center for Human Rights in Atlanta and an instructor at Yale Law School, who also called Branstad's move "bad public policy."

"The main point of the Miller decision—and the main concern of any sentencing—should be individualized sentencing based on factors about each human being," Bright said. "Obviously, nothing about any of the 38 individuals was taken into account, just as it was not when they were sentenced to life imprisonment without parole."

One of the Iowa lifers to have their sentences commuted is David Epps, who was convicted of a burglary-murder when he was 16. Epps is now 48 and, if Branstad's commutation-with-a-catch holds, won't be eligible for parole until he's in his mid-70s.

"I was thinking he was going to get some kind of release because he served 32 years on a life sentence," said David's brother, Dennis Epps. "(Branstad) might as well have left them serving a life sentence, because that's pretty much what that is."

Juvenile lifers in other states-26 have LWOP statutes for kids—might be facing similar situations, according to Drexel University law professor Dan Filler, who said the Supreme Court left murky whether its ruling is to be applied retroactively to minors already sentenced.

"When you look at the decision closely, it implicitly leaves room for exactly what the governor of Iowa did," Filler said. "It doesn't give us any guidance. You have to see this decision as entirely cloudy. Different states are going to do different things."

Florida has done effectively the same as Branstad in response to Miller. In some cases, judges there have resentenced juvenile lifers to 70- to 90-year sentences. And Alabama, the defendant in the Miller decision, remains defiant in defeat.

"It is the (Alabama) attorney general's position that this rule does not apply retoractively," said John C. Neiman Jr., the state's solicitor general. "Ultimately, whether it will apply retroactively is going to be a question that will be litigated in, and decided by, the courts."

Some states, however, have taken legislative action in the spirit of the court's decision. In North Carolina, juvenile lifers are now granted parole review after serving 25 years, thanks to a statutory amendment that also requires judges to consider factors such as age, immaturity, intellectual capacity, mental health history, and the influence of familial or peer pressure when imposing sentences.

A state senate judiciary committee in Pennsylvania, where 444 juvenile offenders are serving LWOP sentences—the most in the country—recently solicited testimony from several interested parties to decide the issue of retroactivity. And criminal defense attorneys in Michigan, which has the second-highest population in the U.S. of juvenile lifers, have begun mobilizing their legal assistance.

Source: Mother Jones Magazine

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