Children are Different: Constitutional Values and Juvenile Justice Policy

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:

7 Core Principles to Change the Course of Youth Justice

A new article from the New York Law School Law Review examines the problems with the juvenile justice system and offers solutions for a more productive youth justice system. “When the Cure Makes You Ill: Seven Core Principles to Change the Course of Youth Justice,” calls the extremity of youth justice to trial and shares statistics of the negative effects the system has on children.
Our current juvenile justice system is “iatrogenic,” says author Gabrielle Prisco. Being in the system worsens outcomes for troubled teens and more often than not, results in violence and recidivism -- the very same outcome it tries to remedy.
Prisco outlines seven core principles to change the course of youth justice:
Principle One: Treat Children as Children
Research shows children lack critical thinking skills and the ability to fully understand risk management. “The region of the brain that is the last to develop is the one that controls many of the abilities that govern goal-oriented, ‘rational’ decision-making, such as long-term planning, impulse control, insight, and judgment,” writes Prisco. Children who are incarcerated in an adult jail are thirty-six times more likely to commit suicide because they are not properly cared for in a youth facility, yet thirty-nine states in the United States presently allow juveniles to be tried in adult court and sentenced to life without the chance of parole (JLWOP). 

California Gives JLWOP Kids Second Chance

On Sunday, California Governor Jerry Brown signed the Fair Sentencing for Youth Act to give some kids sentenced to life without parole an opportunity to earn a second chance. California currently has 309 inmates who could be affected by this.
KPCC explains:

Under the new law, people who were convicted of murder or other serious crimes as juveniles can petition a judge for reconsideration of their sentences. They can only do that after they’ve served 15 years. An inmate must show remorse and be enrolled in rehabilitative programs.
If an inmate meets the criteria, a judge could decide to shorten his or her sentence to 25 years to life with a chance for parole. The inmate would then go through the same vetting process that all offenders undergo when they’re up for parole.

While the US Supreme Court recently struck down mandatory JLWOP sentences, California was not affected by the ruling, as the state's judges already have sentencing discretion.

Restoring Rehabilitation to the American Juvenile Justice System

Quantel Lotts was fourteen years old and not yet five feet tall when he was sentenced to life in prison without the possibility of parole. Like most children who are involved in a serious crime at a young age, Quantel's childhood [PDF] was bleak. Quantel spent the early years of his life in a blighted St. Louis neighborhood with his mother, who used and sold crack cocaine. When he was removed from her home and placed in foster care at age eight, child welfare workers observed that he "smelled of urine and had badly decayed molars as well as numerous scars on his arms, legs and forehead." Quantel lived in three different foster homes before he was eventually reunited with his father and younger brother. When Quantel was about ten, his father, Charlie Lotts, moved the boys to rural St. Francois County, Missouri and into the home of Tammy Summers and her two sons. Charlie and Tammy later married.
By all accounts, Quantel developed a close relationship with his new step-siblings, including Michael, who was three years older. On November 13, 1999, however, Quantel and Michael got into an argument. Michael hit Quantel with a blow dart, Quantel responded with a toy bow and arrow and a fight ensued. Michael was stabbed and later died. Quantel was charged with first-degree murder, tried and convicted as an adult. His sentence was mandatory: under Missouri law anyone convicted of first-degree murder must be sentenced to death or life in prison without the possibility of parole. Over the objections of his stepmother and Michael's biological mother, Tammy, fourteen-year-old Quantel was sentenced to die in prison.

CA Supreme Court Prohibits Lengthy Sentences for Teens Convicted of Non-Homicide Crimes

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

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

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.

Boston University Students Win AP Award for JLWOP Series

Most students entering Anne Donohue’s narrative radio class had no idea how to record and edit audio, nor did they have an ear for what makes a good story. But that didn’t stop the Boston University (BU) College of Communication (COM) associate professor from handing them a tough assignment: analyze all angles of juvenile life-without-parole sentences, and come back with a story.
The results were impressive—Donohue’s students produced a six-part series titled “Life Without Parole: Juvenile Justice?” which this spring won the Associated Press award for best college documentary. And the subject was timely, as the Supreme Court ruled last week that juvenile life-without-parole sentences violated the Eighth Amendment’s ban on cruel and unusual punishment.
“Teenagers should not be locked up for life, at great expense to the taxpayer, if there is a chance they can be rehabilitated or mature into productive members of society,” says Donohue (COM’88), an award-winning radio producer and editor. “If a teen who kills is psychologically damaged and is a truly dangerous sociopath, he belongs in a mental health facility, not a prison. And some of these kids who have been locked up for life were not even the killers, but accomplices who drove cars or were in the wrong place at the wrong time.”

The Ultimate Impact of Miller v. Alabama?

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

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.”

Significant Racial Discrepancies in Michigan’s Juvenile Life Without Parole Population, Report Finds

A number of racial discrepancies were found among Michigan’s juvenile life without parole (JLWOP) population in a new report released by the American Civil Liberties Union in conjunction with Second Chances 4 Youth. The state’s JLWOP population is the second highest in the nation trailing Pennsylvania.
The report, Basic Decency: An Examination of Natural Life Sentences for Michigan Youth, analyzes Michigan’s juvenile justice system and was overseen by lawyer Deborah LaBelle, director of the Juvenile Life Without Parole Initiative.
On average, juveniles charged with murder were 22 percent less likely to receive plea offers if the victim were white rather than African-American, the report states. Additionally, the researchers say the makeup of youths serving life sentences within Michigan are heavily skewed towards racial minorities, who constitute almost three- quarters of the state’s JLWOP population despite representing only 29 percent of the state’s total juvenile population.

SCOTUS Argument Recap: Compromise on Youth Sentences?

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?

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

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:

Throwaway Kids: Is It Time to Rethink Juvenile Life Without Parole Sentencing?

Next week the United States Supreme Court will hear arguments in two historic cases. Incredibly, the cases — from Alabama, Miller v. Alabama, and Arkansas, Jackson v. Hobbs — concern the practice, unique to the United States, of imprisoning teenagers for the rest of their natural lives for crimes committed while they were still developing into adulthood. The U.S. stands utterly alone on this one — no other country in the world locks up its children for crimes committed before they could legally drive, join the military, vote or sometimes even get married.
Miller and Jackson are next in a line of cases decided recently by the Court addressing appropriate constitutional protections and punishment of youth. In Roper v. Simmons in 2005, the Supreme Court found the death sentence for any minor convicted of murder unconstitutional; in Graham v. Florida, five years later, the Court barred a life-without-parole sentence for a minor who committed a crime other than murder. The fundamental reasoning of these decisions was that undeveloped youthful judgment and moral sense make severe punishment cruel and unusual — and thus a violation of the Eighth Amendment. Last year, in J.D.B. v. North Carolina, the Court recognized that there is a heightened risk of coercion when children are subject to police interrogation without their parents or a lawyer in the room.

New York Courts Revisit Juvenile Justice

NEW YORK, N.Y. — On a recent Thursday afternoon in the shadow of Yankee Stadium, in the South Bronx, five 16- and 17-year-old boys met outside the Bronx Criminal Court building to complete court-mandated community service. After appearing before a judge for nonviolent offenses such as shoplifting and graffiti, they’d been assigned to Bronx Community Solutions, an alternative sentencing organization attached to the criminal court, for an afternoon of cleaning up the sidewalks around a recreation center.
Under New York law, most offenders at this age share community service duties with seasoned adult criminals, because at 16, they are automatically charged as adults. These boys were different because they were part of a judicial pilot program that separates 16-and-17-year-old offenders from the rest of the adult criminal population, and also from younger teens. They have been given the chance to do their community service in a custom-designed rehabilitative environment.
In nine counties across New York State, these pilot programs, known as adolescent diversion parts, or ADPs, are the judiciary’s response to legislative inaction on raising the age of criminal responsibility from age 16 to the national standard of 18. Currently, New York and North Carolina are the only two states that automatically charge 16-year-olds as adults, despite the mounting body of clinical research showing that a 16-year-old’s brain capacity is not fully matured. In fact, when New York created its family court system in 1962, the age of adult responsibility was arbitrarily set at 16 with the understanding that the legislature would quickly revisit the issue.
Now, 50 years later, the state’s chief judge, Jonathan Lippman, is taking a two-pronged approach to changing the way New York handles the 50,000 16- and 17-year-olds arrested in the state each year. For the long term, Lippman is pushing a legislative proposal designed by the state’s sentencing commission to raise the age of criminal responsibility and set up adolescent courts to exclusively serve 16- and 17-year olds charged with nonviolent crimes. Most other states have juvenile courts, but none has a program specifically targeted at the 16- and 17-year-old population.

NYU Law School Dean Says Life Without Parole is Wrong for Kids

NYU's School of Law Dean Randy Hertz joins a growing list of legal scholars and youth advocates calling for an end to the practice of sentencing juveniles to life without the possibility of parole (JLWOP). 
Writing in The Nation, Hertz explains:

In Roper v. Simmons, which ruled out the death penalty for under-age offenders in 2005, the Court reasoned that “juvenile offenders cannot with reliability be classified among the worst offenders” because they are less mature and their sense of responsibility has not fully developed. They are more vulnerable to negative internal and external influences, including peer pressure. Unlike adults, they can’t control or escape dysfunctional homes and dangerous neighborhoods—two major contributing factors to youth crime. They also have a greater chance for rehabilitation. Thus, as the Court said, “from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult.”
In 2010, the Court applied the same guiding logic in its decision in Graham v. Florida, concluding that children convicted of non-homicide crimes cannot be sentenced to life imprisonment without parole. As Justice Kennedy wrote for the majority, “Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.”
The recognition that children are different is supported by recent neuroscience and psychosocial studies that have shown adolescence to be a period of intense change in the brain. We now know that the parts of the brain that drive emotional reactions, impulses and reactivity to peers develop before those that control impulses and imagine consequences, and which enable adults to resist pressures, delay gratification and weigh risk and reward. Scientists who study the teenage brain describe it as akin to a car with a fully functioning gas pedal but no brakes.

Bryan Stevenson at TED2012 on Injustice, Juvenile Justice System, Need for Reform

"How can a judge turn a child into an adult?" That's a question lawyer Bryan Stevenson has spent years asking. Stevenson is the founder and executive director of the Equal Justice Initiative, a nonprofit group providing legal representation to communities that have been marginalized by poverty and discouraged by unequal treatment. 
Stevenson was invited to speak at TED2012, an annual conference showcasing big thinkers and doers throughout the world. He spent his 20 minutes discussing the power of identity, the dire need to reduce inequalities (including disproportionate minority contact), the injustice of juvenile life without parole sentences and mass incarceration. In his own words:

Here's an excerpt from the TED Blog:

Looking at the Lives of Teens Serving Life Without Parole

In the United States, there are more than 2,500 people serving life sentences without the possibility of parole for crimes committed as children (known as JLWOP). A new report from The Sentencing Project analyzes the findings of a first-ever national survey of JWOPers inmates, some of whom were sentenced at 13 years old. 
“Most juveniles serving life without parole sentences experienced trauma and neglect long before they engaged in their crimes,” explained report author Ashley Nellis. “The findings from this survey do not excuse the crimes committed but they help explain them. With time, rehabilitation and maturity, some of these youth could one day safely re-enter society and contribute positively to their families and their communities.”
 Among the findings:

  • Teens sentenced to life without parole are 97% male and 60% African American.
  • 79% of JLWOPers were exposed to high levels of violence in their homes.
  • Nearly half experienced physical abuse.
  • More than a quarter had a parent in prison and 60% had close relatives in prison.