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  • Children are Different: Constitutional Values and Juvenile Justice Policy
    by GABRIELLE NYGAARD

    The emerging principle that “children are different” from adult offenders will direct the future course of juvenile justice says a new paper in the Ohio State Journal of Criminal Law. In the essay, Elizabeth S. Scott examines how three Supreme Court opinions have created a special status for juveniles under the Eighth Amendment, the science backing this, and the implications for juvenile crime regulation.

    Scott identifies the “children are different” approach in the cases Miller v. Alabama, Graham v. Florida and Roper v. Simmons, three instances in the last seven years of the Supreme Court holding that harsh criminal sentences―life without parole and the death penalty―on juvenile offenders violate the Eighth Amendment prohibition of cruel and unusual punishment. According to Scott, these opinions are a marked departure from hostile policies of the 90s ignoring the differences between juveniles and adults, and one which has been spurred by advances in developmental science.

    A growing body of research illustrates specific behavioral and neurobiological differences between adolescents and adults that also distinguish them as offenders. The Court focused on three factors: adolescents’ tendency for taking risks without considering future consequences, their vulnerability to external influences, particularly peers, and the transient nature of these and other developmental influences. These traits set juveniles apart from adults, and thereby warrant their differential treatment. They also speak to adolescents’ unique capacity for reform, pressing the case for developmentally based correctional programs over the costly and often less effective route of imprisonment.

    Scott lists four key lessons for lawmakers arising from this trend:


  • Illinois Supreme Court: Hybrids Don't Work in Juvenile Court
    by MARSHA LEVICK

    The Illinois Supreme Court issued a strongly worded endorsement this week for zealous lawyering for kids—the same kind of zealous lawyering that adults routinely expect for themselves. In In re Austin M., Austin M. successfully appealed his delinquency adjudication, convincing a majority of the Illinois Supreme Court that a lawyer cannot simultaneously assert and defend his juvenile client's innocence and also claim to be seeking the truth "the same as the court and the same as the prosecutor." Characterizing this dual mission as "hybrid representation," the Court held that a lawyer cannot serve as both defense counsel and a guardian ad litem on behalf of a child charged with delinquency.

    Since the time that Juvenile Law Center opened its doors, we have worked to prevent lawyers from betraying their young clients. While this is important for all defendants, it is particularly so for youth in whom we want to instill a belief in fairness and the rule of law. These kids must also know that they have an advocate that they can confide in—and that the lawyer won't breach confidentiality in the lawyer-client relationship. They must have a lawyer they can return to when they have complaints about the system—this won't happen if they perceive the lawyer as just another arm of the system. A society that has granted children constitutional rights should be concerned when lawyers themselves undermine those rights.


  • CA Supreme Court Prohibits Lengthy Sentences for Teens Convicted of Non-Homicide Crimes
    by MARSHA LEVICK

    The California Supreme Court issued a landmark ruling last week in People v. Caballero, holding that a term of years sentence that is effectively a defacto life without parole sentence for a juvenile in a non-homicide case violates the U.S. Supreme Court’s 2010 decision in Graham v. Florida. In Graham, the Supreme Court ruled that juveniles convicted of non- homicide offenses could not be sentenced to life without parole under the Eighth Amendment. In its unanimous decision, the California Court wrote: “We must determine here whether a 110-year-to- life sentence imposed on a juvenile convicted of nonhomicide offenses contravenes Graham’s mandate against cruel and unusual punishment under the Eighth Amendment. We conclude it does.”

    Rodrigo Caballero was represented by California attorney David Durchfort. Caballero was 16 years old when he opened fire on three teenage boys who were members of a rival gang, injuring one of the teens. Caballero was found guilty on three counts of attempted homicide and was sentenced to a term of 110 years, making him eligible for parole consideration in 2112 – a century from now. “For the first time, a state Supreme Court ruled that very lengthy prison terms for juveniles who did not kill are unconstitutional if the sentence does not afford a meaningful opportunity of release,” said Durchfort. “Rodrigo Caballero’s family is grateful that he will now have that opportunity.”


  • After SCOTUS Decisions, States Slowly Lightening Juvenile Sentences
    by MAGGIE LEE

    As Supreme Court arguments from two key juvenile sentencing decisions trickle down through courts and legislatures nationwide, the heaviest sentences for juveniles may be on the verge of shedding some weight.

    “Graham and Miller put a constitutional ceiling on what states can do to kids,” argues Los Angeles attorney David Durchfort, continuing, “the big question now is what’s the safe zone? How far can they [states] go in punishing kids without giving them a second chance?”

    Graham and Miller, decided by the U.S. Supreme Court in 2010 and 2012 respectively, bar state laws that mandate life without parole sentences for juveniles.

    In both cases, the court said children are immature from a brain chemistry point of view. Therefore they are more corrigible and less culpable than adults and cannot rightfully be sentenced to life without parole until a judge takes that youthfulness into consideration. Children, they argued, should have a meaningful chance at rehabilitation and release.


  • Appeals Accepted in First Miller Cases: Juvenile Life Without Parole Sentence Challenged
    by MAGGIE LEE

    Less than three weeks after a Supreme Court ruling mandated it, an Iowa court gives two inmates the right to appeal the life without parole sentences they were given years ago when they were 17 years old.

    “We’re thrilled to see these concrete steps being made,” said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth. “They are obviously required to do so,” she added.

    The Iowa cases may be the first nationwide re-opened under Miller v. Alabama.

    The Supreme Court said in Miller that sentencing judges must consider mitigating factors in dealing with juvenile homicide cases. That invalidates about 2,400 sentences nationwide in federal courts and the 28 states where juveniles have been sent to life without parole under mandatory sentencing schemes. Mandatory sentencing laws ignore age, youth brain development, life history and all other factors.


  • Discussion of Supreme Court Ban of Life Without Parole for Juveniles and more; news roundup
    by LORI HOWELL

    Juvenile Justice Reform

    • High court ruling on juvenile life sentences means a chance at freedom (Orlando Sentenial)
      In more than two-dozen states, lawyers can now ask for new sentences. And judges will have discretion to look beyond the crime at other factors such as a prisoner's age at the time of the offense, the person's background and perhaps evidence that an inmate has changed while incarcerated.
    • RExO Grants: Reduce Recidivism and Build Lives (Huffington Post)
      This month, the Department of Labor announced grants of nearly $50 million to 25 organizations under two different grant programs that serve juveniles under our Re-Integration of Ex-Offenders initiative.
    • Juvenile Justice: A Move Away From Detention For Some (NorthEscambia.com)
      Florida law enforcement and criminal justice officials say the use of civil citations for troubled youth, rather than a lock-up, is slashing costs, and giving kids a better chance of a turn-around, and they want the practice to become more widespread.
    • L.A. School Police, District Agree to Rethink Court Citations of Students (Juvenile Justice Information Exchange)
      In the wake of critical news reports, Los Angeles school police and administrators have agreed to rethink enforcement tactics that have led to thousands of court citations yearly for young students in low-income, mostly minority neighborhoods.
    • Officials: Mentally ill children who don't get help can end up in criminal justice system (CrownPointCommunity.com)
      To child welfare advocates, the plights of families with mentally ill children demonstrate the state's failure to protect its most vulnerable children. Parents, judges, prosecutors, and other officials in Indiana say there is a multi-agency failure to provide mental health services to the children who need it most.
    • Juvenile justice changes cutting costs (Herald Tribune Politics)
      Florida law enforcement and criminal justice officials say the use of civil citations for troubled youth, rather than a lock-up, is slashing costs, and giving kids a better chance of a turn-around, and they want the practice to become more widespread.

  • The Ultimate Impact of Miller v. Alabama?
    by TAMAR BIRCKHEAD

    As Professor Dan Filler (Drexel) points out so well in a recent post on Miller v. Alabama on the Faculty Lounge, the decision’s direct effect on those currently serving juvenile life-without-parole (JLWOP) may be less dramatic than first imagined. Sentencing rehearings during which mitigating evidence is considered could lead merely to a reimposition of LWOP or a lengthy term of years sentence (40, 50, 60 years) that is the practical equivalent of LWOP. This is not to diminish the value of giving these 2100 prisoners an opportunity for review, reduction of their sentences, and the possibility of eventual release., although as Professor Filler also observed, much will depend there on the quality of defense counsel.

    Instead, as I wrote two years ago in regard to Graham v. Florida, which struck down the practice of JLWOP for non-homicides, the ultimate impact of Miller will be seen in its precedential effect:


  • Supreme Court Rules Mandatory Life Without Parole Unconstitutional for Juveniles
    by LIZ WU

    In a 5-4 decision, the United States Supreme Court (SCOTUS) today ruled that mandatory life-without-parole sentences for juveniles convicted of murder are unconstitutional. Justice Elena Kegan wrote the majority opinion, which focused on the Eighth Amendment's ban on cruel and unusual punishment.

    Writing at the SCOTUSblog, Tejinder Singh elaborates on the decision:

    The Court’s opinion brings together two strands of precedent to hold that a mandatory life-without-parole sentence for juveniles violates the Eighth Amendment. The first strand holds that the Eighth Amendment categorically prohibits punishments that enact a mismatch between the culpability of a class of offenders and the severity of the penalty. Citing, among cases, Roper and Graham, the Court explains that juveniles have always been regarded as less culpable because the distinctive attributes of youth diminish the penological justifications for imposing the harshest penalties on juvenile offenders, even when they commit severe crimes. The second line of precedent holds that life without parole shares key characteristics with the death penalty, and thus raises similar Eighth Amendment concerns, most notably that defendants are entitled to individualized consideration when facing such a severe sanction.

    Weaving these two lines of precedent together, the Court held that mandatory life without parole violates the Eighth Amendment. Such sentencing regimes, the court explained, “preclude a sentence from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it,” including “immaturity, impetuosity, and failure to appreciate risks and consequences,” as well as the juvenile’s “family and home environment,” and the circumstances of the offense, including “the extent of his participation in the conduct and the way familial and peer pressures may have affected him.” By eliding these key factors, mandatory life without parole “poses too great a risk of disproportionate punishment.”


  • Harvard Law School Colloquium Explores How Recent US Supreme Court Decisions Have Affected Youths’ Rights in the Justice System
    by ROBERT SCHWARTZ ESQ.

    Harvard Colloquium

    On March 26, 2012, Harvard Law School’s Civil Rights-Civil Liberties Law Review, with Juvenile Law Center and the Milbank Foundation, sponsored a colloquium on constitutional law in the wake of three recent U.S. Supreme Court decisions involving the rights of youth involved in the justice system. All three cases suggest that the country has turned a constitutional corner—that youth matters in the interpretation of the Bill of Rights and the Fourteenth Amendment’s Due Process Clause.

    Roper v. Simmons (2005) held that the death penalty was unconstitutional for youth who were under age 18 at the time of their crimes. Graham v. Florida (2010) held that a sentence of life without parole was also unconstitutional for youth under 18 who were convicted of non-homicide crimes. J.D.B. v. North Carolina (2011) held that a “reasonable child” standard should be used to determine whether a youth would have believed he was “in custody,” a requirement that triggers Miranda warnings.

    Panelists—who wrote or co-wrote articles that will appear later this year in Volume 47 of the CR-CL Law Review—predicted what lay around the bend.


  • SCOTUS Argument Recap: Compromise on Youth Sentences?
    by LYLE DENNISTON

    Moving further along the constitutional line between adults and children in the criminal courts, the Supreme Court on Tuesday turned to life-without-parole sentences for youths who commit murder, and appeared to be reaching for a compromise. If the indications from the hearing hold, the Court might allow such sentences to be imposed on youths, but not as a mandatory matter for younger teenagers. And it could choose to forbid that penalty at all for some, but where that line might be drawn was far from clear – although it might wind up at 12 or younger. In more than 90 minutes of argument in two cases, there was no sign that a majority would come together on a flat ban for such a sentence for anyone under age 18 — the preferred outcome sought by two youths’ lawyer.

    For decades, the Court has been drawing lines on criminal punishment for the young, and it has not been an easy process. Although the Court has regularly accepted the notion that children are less responsible for their conduct than adults, and that the Constitution must account for that, it has divided deeply as it applied that to the severity of the punishment it will allow. So far, it has barred the death penalty for any youth under age 18 for any crime, and it has similarly nullified life-without-parole for any minor whose crime did not result in someone’s death. It turned Tuesday to life-without-parole as a sentence for murder in cases involving 14-year-olds convicted under mandatory sentencing laws in Alabama and Arkansas.

    In the cases of Miller v. Alabama (10-9646) and Jackson v. Hobbs (10-9647), most of the Justices appeared to share the sentiment expressed early by Justice Anthony M. Kennedy that the Court did not want to be forced to choose between two opposite choices: no life-without-parole sentences for any minor, or no limit on the sentence for anyone no matter how young. And there also seemed to be considerable support for Kennedy’s apparent willingness to focus mainly on the question of whether such a sentence should be mandatory and, if so, whether that should be keyed to a specific age. Kennedy’s views may be crucial, since he has been the author of the Court’s key rulings on youths’ sentencing.


  • ACLU Podcast: Irredeemable at 14?
    by DAN KOROBKIN

    Matthew Bentley was 14 years old in 1997 when he broke into a house he thought was unoccupied. While rummaging for valuables, he was confronted by the owner. Matthew shot and killed her with a gun he found in the house. At the time of his crime, Matthew couldn't legally smoke, drive or join the military, but he would receive a mandatory adult sentence — life without the possibility of parole. In a new podcast, you can listen to Matthew tell his own story. (Bentley is pictured above before he was sentenced to life in prison without parole (left), and today.)

    During Matthew's trial, the judge, according to Michigan law, was not allowed to consider his age, capacity for rehabilitation or his tough home life — Matthew's father and older brother were both in jail for molesting his siblings.

    Matthew has been in an adult prison since his sentence and will likely die there, unless the courts or our legislature act to put an end to sentencing schemes that ignore the capacity for change and rehabilitation in children and throw away the key. The question of whether it's constitutional to imprison teenagers for the rest of their l lives for murders committed when they were children will be argued before the Supreme Court this week in two cases from Alabama and Arkansas.


  • Juvenile Life Without Parole Infographic and Round-up
    by LIZ WU

    Next week, the Supreme Court will hear arguments in two separate cases regarding juvenile life without parole (JLWOP) sentences. The internet's been ablaze with legal briefs, searing critiques, compelling videos and strongly worded opinions.

    Here's a few you may have missed: