OP-ED: Juveniles Change; They Deserve Bolder Reforms

Jody Kent Lavy pic square“I became an adult, for intents of the law, at the age of 14. In reality, I was anything but. To pay for my actions, I was sent to the state prison. … I live in a state of limbo, unable to fit into this ‘private society,’ unable to return to the society whose values I violated.”

The person who recently wrote those words was sentenced to die in prison before he was old enough to drive. In the two decades of his incarceration, we have learned a lot about children’s brain development and about what happens to children when they are sentenced as though they were adults. Yet he can expect to leave prison in a coffin, unless our justice system is reformed to adequately account for the fundamental differences between children and adults.

Our country can and must do better.

This week marks 10 years since the U.S. Supreme Court outlawed the juvenile death penalty in Roper v. Simmons. It relied on a body of research demonstrating that children’s brains — and not just their bodies — are still developing, and was the court’s first definitive declaration that children are different in the context of the Eighth Amendment’s prohibition on cruel and unusual punishment.

The ruling extended the court’s reasoning in the Atkins v. Virginia (2002) decision, which banned the death penalty for individuals with intellectual disabilities. The court said that because children do not have adult levels of judgment, they are inherently less culpable, and therefore less deserving of our country’s most severe punishment.

More recent research has reaffirmed that adolescence is the last stage when children’s brains are particularly malleable, making it an opportune time to help youth get on the right track, as they are especially amenable to rehabilitation. At the same time, we know that during this stage of brain development youth are more susceptible to harmful influences and environments that do not support their growth.

hub_arrow_2-01Further, we have learned about the ways in which exposure to trauma impacts children’s brain development by heightening their anxiety, creating an overactive survival instinct and even creating a form of post-traumatic stress syndrome. We also know more than ever about how we can effectively respond to the needs of children who have been exposed to violence. Youth respond when given trauma-informed programs and interventions that are created in accordance with their developmental maturity.

Ten years since the U.S. Supreme Court declared that kids are fundamentally different from adults, we know now that policies that fail to account for the unique needs and characteristics of children who come into conflict with the law are not only damaging to children but also do not improve public safety. In many cases they increase the likelihood that a child will reoffend.

For example, we know that housing children in adult jails and prisons significantly increases the likelihood that they will experience physical and sexual abuse and that children transferred to the adult criminal justice system are 34 percent more likely to reoffend than children who are adjudicated in the juvenile system.

We know that placing a child in solitary confinement, often done for their safety in adult facilities, can cause physical and psychological difficulties, including hallucinations, loss of control, exacerbation of existing mental health issues and other concerns, making it harder for them to succeed inside or outside prison. And we know that sentencing children to die in prison flies in the face of what science and common sense tell us about a child’s unique capacity for change, is extremely costly, fails to deter crime among children and judges them for the rest of their lives based on their greatest failures as children.

Armed with this knowledge, we have scaled back many of the laws that do not adequately reflect the unique status of children. In the case of life without parole, the most extreme punishment imposed upon children, we have helped facilitate a growing momentum for reform among policymakers, opinion leaders and national organizations. In less than three years, six states have abolished the practice, and five others have scaled back its use. In the last 10 years, 11 states have limited the practice of housing children in adult jails and prisons and five states have reformed their transfer policies, making it more possible for youth to remain in the juvenile justice system.

While some significant progress has been made, it is imperative that we demand bolder reforms that are focused on child well-being and informed by those who are directly impacted. We should use methods that are focused on children’s evolving developmental needs and are proven to capitalize on their inherent capacity for positive change, such as cognitive behavioral therapy.

It is equally important that we listen to the voices and unique insights of formerly incarcerated youth, victims of violence and the families of both in order to gain valuable information about best practices. Resources must also be made available to impoverished communities, which are disproportionately impacted by violence, to address the underlying causes of violence. We also must address the needs of children who are exposed to violence, failed support systems and other traumas. Incarceration should be the option of last resort for all children, not just white children or children who otherwise have the means to avoid it.

The person quoted above, deemed an adult at 14, is proof that kids change. While incarcerated, he has earned the respect of prison officials, studied for and received a college degree and become an amateur ornithologist. He also holds a job in the downtown area of the town where he is incarcerated and is part of a statewide wildfire fighting team.

“If returned to the community, I think the biggest asset I bring is a sense of appreciation,” he wrote in a letter to the CFSY. “I won’t take even the smallest things for granted. I can’t say for sure what my form of contribution would take, but I hope it involves being present for people in a meaningful way. The support of others has helped sustain me these years. I’ve come to value it and hope to pass it on to others.”

As we look to the future, we will better advance the ideals of our country when we extend the logic of Roper v. Simmons to abolish life-without-parole sentences for children. We must support and implement policies that deter violence while holding youth accountable for harm they cause in ways that focus not on unending vengeance, but on age-appropriate accountability that promotes public safety. They must also reflect what our experiences, science and the U.S. Supreme Court have made clear to us: Children can and do change.

Jody Kent Lavy is director and national coordinator at the Campaign for the Fair Sentencing of Youth.

OP-ED: Both Pope Francis, UN Call on Us to Do Better by Our Children

Jody Kent Lavy picAs we observe the 25th anniversary of the United Nations’ Convention on the Rights of the Child (CRC) Thursday, Pope Francis’ recent call for the elimination of life sentences and abolition of all criminal penalties for children is especially noteworthy.

The treaty, which was signed on Nov. 20, 1989, is rooted in our commonly shared values that as a society, we have a responsibility to protect and nurture our children and do all we can to help them succeed in life. It insists on a range of children’s rights, such as freedom of expression, health care and education and explicitly forbids sentencing children to life in prison without the possibility of release. Only three countries have failed to ratify it: Somalia, South Sudan and the United States.

The United States is the only country in the world that sentences our children to die in prison — a most extreme example of our disregard for the human rights of children who come in conflict with the law. Sentences of life without parole have been imposed upon approximately 2,500 American children. This practice says to our children that no matter how much they change, they will always be defined by the worst thing they have ever done.

The pope’s call for reform is in line with the CRC and comes a few months after the Campaign for the Fair Sentencing of Youth sent him hundreds of letters written by people serving life in prison without parole for crimes committed when they were children. In these letters, they expressed remorse for their crimes and described the ways they had changed in prison and the sense of hopelessness that comes from being told they would die there with no opportunity to prove themselves worthy of a second chance. In his response, the pope said he was "deeply moved" by the prisoners' words and called for "mercy, forgiveness and reconciliation."

In October, he responded again. In a conversation with representatives from the International Association of Penal Law, Pope Francis called for an end to life sentences and all criminal penalties for children. "Life imprisonment is a death sentence," he said.

Pope Francis joined a robust coalition of more than 100 national and international organizations, including the National PTA, the American Correctional Association and the National Association of Counties, that have come together to call for an end to the practice of sentencing children to life without parole. This coalition includes child welfare organizations, faith-based organizations, corrections and law enforcement groups, mental health professionals, survivors of youth violence and political leaders from both sides of the aisle. The common thread among this diverse group is the belief that all of our children are better than the worst things they have done, and are deserving of basic dignity and human rights.

This is precisely the reason the CRC was established 25 years ago. It “proclaimed that childhood is entitled to special care and assistance.” It also contends that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

As states and the federal government grapple with recent decisions by the U.S. Supreme Court that have dramatically limited the use of life sentences for children, policymakers would be well served to consider how we might hold our young people accountable for serious crimes, consistent with the CRC and our shared values, with a focus on their well-being as a “primary consideration.”

The debate would no longer be about the age at which it is most appropriate to give up on a child for life. Instead, our policymakers would examine what it means to truly prioritize the needs of children when holding them responsible for harm they have caused. We would seek the input of formerly incarcerated youth who are out and doing well, such as members of the Incarcerated Children’s Advocacy Network, so they can inform our decisions. We would look to ways children can pay their debt to society while focusing on their need for rehabilitation, an opportunity for reintegration into society and the chance to be productive, contributing members of their communities.

The 25th anniversary of the CRC and the pope’s recent call for reform remind us that our nation has gone too far in imposing extreme criminal penalties on our children, and provide motivation to take a step back and meaningfully revisit our policies that recklessly disregard the unique needs and rights of our children. As a society, we can and we must do better by our children.

Jody Kent Lavy is director and national coordinator at the Campaign for the Fair Sentencing of Youth.

Notion that “Kids are Different” Takes Hold in Youth Justice Policy Reform

2005 – Roper v. Simmons: U.S. Supreme court rules that it is cruel and unusual punishment to impose the death penalty on people for crimes committed when they were younger than 18.

“[F]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Roper v. Simmons, 543 U. S. 551, 570 (2005). 

2010 – Graham v. Florida: U.S. Supreme Court rules that life-without-parole sentences imposed on children for non-homicide offenses are unconstitutional.

“‘(J)uvenile offenders cannot with reliability be classified among the worst offenders.’ “ Graham v, Florida, 130 S. Ct. 2011, 2026 (2010), quoting Roper, 543 U.S., at 573.“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. Id. 

2011 -- J.D.B. v. North Carolina: U.S. Supreme Court establishes that youth status matters in areas of youth justice beyond the context of harsh sentencing policies when it imposed the requirement that law enforcement officials must consider the age of a suspect in determining whether Miranda warnings should be issued.

“Children generally are less mature and responsible than adults; they often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them; and they are more vulnerable or susceptible to . . . outside pressures than adults.  J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403 (2011) (internal quotation marks omitted).

2012 – Miller v. Alabama: U.S. Supreme Court rules that the imposition of a mandatory life without parole sentence on someone convicted of a crime as a child violates the 8th Amendment ban on cruel and unusual punishment.

“Youth is more than a chronological fact. It is a time of immaturity, irresponsibility, impetuousness[,] and recklessness. It is a moment and condition of life when a person may be most susceptible to influence and to psychological damage.  And its signature qualities are all transient.” Miller v. Alabama, 132 S. Ct. 2455, 2467 (2012) (internal quotation marks omitted).    

If there was uncertainty seven years ago when the U.S. Supreme Court abolished the death penalty for children, or in 2010 when it ruled that life-without-parole sentences imposed on youth for non-homicide crimes are unconstitutional, it should be clear by now that this is a new day for youth justice reform.

Our nation’s highest court has held three times in the last three years that child status is relevant to matters of justice and the law. The message that “kids are different” has been established by the Court, scientific research and, increasingly, among liberal and conservative policymakers alike. As a result, the parameters for how we treat children in the U.S. justice system are forever changed.

Just as we consider the unique characteristics of young people when making decisions about when they are allowed to volunteer for military for service, drive, serve on juries or register to vote, we also must consider these differences in the context of youth justice policies. Laws that treat children like adults and ignore relevant factors related to their status as children — their lessened culpability, their unique vulnerability to peer pressure, their lack of understanding of the consequences of their actions and impulse control, and their particular capacity for rehabilitation— can no longer be justified.

The Court has scaled back some of the misguided policymaking of the 1980s and 1990s, when upticks in crime among youth led criminologists and other opinion leaders to predict a major wave of violent crime by “juvenile superpredators.” Policymakers reacted with fear-based “tough on crime” policy reforms making it easier to try children as adults and making more extreme sentences available to them.

These juvenile crime waves never materialized, and the superpredator theory has been debunked and acknowledged as inaccurate by the same criminologists who brought credibility to it. In addition, many of those criminologists have since emphasized the need for rehabilitation rather than harsh penalties to appropriately hold youth accountable and improve public safety.  This is the direction in which the pendulum is now swinging.

Policymakers and opinion leaders across the political spectrum have recently called for age-appropriate reforms to laws that ignore the differences between children and adults. These have included the New York Times, President Jimmy Carter, and conservative former lawmakers Newt Gingrich and Pat Nolan. Earlier this month, the Attorney General’s Task Force on Children Exposed to Violence, which is co-chaired by Joe Torre, Major League Baseball Executive Vice President of Baseball Operations, recommended in its report that the United States “stop treating juvenile offenders as if they were adults, prosecuting them as adults in adult courts, incarcerating them as adults, and sentencing them to harsh punishments that ignore their capacity to grow.” (See Recommendation 6.9, page 124).

As we look to the New Year, I am heartened that the notion that “kids are different” is taking hold. Policymakers who have been reticent to do so are realizing now that it is time to rethink policies that require youth to be tried and sentenced as adults and those that allow children to be incarcerated in adult jails and prisons, without consideration of their unique characteristics as children. Such policies are no longer tolerable. I am hopeful we can learn from the advances of the last decade and that this new day, and the new year, will bring about meaningful practices and policies that hold youth accountable for the harm they have caused in age-appropriate ways that help to rehabilitate them and prepare them for reintegration into society.

California’s Passage of Fair Sentencing Act Sets Stage for Rest of Country

Last month, California Gov. Jerry Brown signed the Fair Sentencing for Youth Act, state Senate Bill 9. This law creates a process to periodically review the progress of individuals sentenced to life without parole for crimes committed as youth, with the possibility of resentencing.  It declares to Californians that their children — even those who have committed serious crimes — are better than their worst acts and, therefore, deserve a second chance at life. This is a value I know many Americans share, and it should be a common characteristic of our state laws.

We demonstrated our belief in the inherent redeemability of children when we established a juvenile justice system: a system we made the error of bypassing when a now-disproven theory from the 1980s about juvenile “superpredators” caused us to start throwing away our children. But, as California and the U.S. Supreme Court earlier this year in Miller v. Alabama have shown, the tide is turning.

Enactment of the Fair Sentencing for Youth Act is a landmark victory for California and for our nation —the only country in the world that condemns children to die in prison. It is a modest but important reform that had the support of a diverse array of stakeholders, including victims’ families, prosecutors, child welfare groups and medical professionals. Leaders from across the political spectrum, including former Speaker of the U.S. House of Representatives, Newt Gingrich, and former Speaker and current Minority Leader of the House Nancy Pelosi, called on Gov. Brown to enact this legislation. It brings a message of hope to those who were told as young people they were only worthy of certain death in prison.

Extreme sentences, such as life without parole, disproportionately affect low-income youth and youth of color. These sentences contribute to an already-existing sense of hopelessness among many of our children, particularly those who grow up in communities where they are offered few opportunities for quality education and fulfillment of their potential. This deficit of hope, although not an excuse, can contribute to tragic choices. Moreover, sentencing youth to die in prison disregards what every parent knows, and what science has proven: young people, including those convicted of serious crimes, have a unique capacity to change if given the opportunity.

I was inspired to do this work when I witnessed the despair of young people who feel everyone has abandoned them when I volunteered in the juvenile halls in Los Angeles County. I led prayer groups for children facing criminal charges in adult court and in many cases, decades-long sentences in adult prisons. Over time, several of the young people I worked with shared their stories with me. These stories often included incarcerated siblings, parents suffering from drug addiction, homelessness and teachers who had given up on them. I will never forget when a 15-year-old boy looked me in the eyes and told me he had no hope for his life.

The United States of America exists as a beacon of hope to the world, and a leader in upholding individual human rights. But as long as we condemn children to die in prison, we grossly undermine that role. A broad-based movement comprised of people from various backgrounds and perspectives has united to ensure that we live up to our principles by legislating according to our shared value that children should never be sentenced to die in prison. This coalescence is in line with our American history of coming together around shared values, regardless of our differences.

As a nation, we have the moral obligation to ensure that youth are held accountable for harm they have caused in an age-appropriate way that gives them hope of a second chance to demonstrate their value and ability to become productive members of our society.


In the Wake of Miller v. Alabama, States Should Rethink How to Hold Youthful Offenders Accountable

Many states are scrambling to figure out how to comply with the recent U.S. Supreme Court ruling in Miller v. Alabama that mandatory life-without-parole sentences for children are cruel and unusual punishments.

The best advice is simple: slow down and take advantage of this opportunity to rethink how you should hold youth accountable for serious crimes.

The June ruling struck down all statutes that require a child to be sentenced to die in prison. In doing so, the Court reaffirmed its recent holdings that require children to be treated differently in the justice system. People now serving mandatory life sentences without parole for crimes committed as youth are due resentencing hearings, which must take into account mitigating factors such as their age at the time of the crime, family history, role in the crime, and other relevant factors.

In many ways, the Court’s ruling was another reaction against the wrongheaded policymaking of the 1980s and 1990s, when upticks in crime among youth led academic researchers and other opinion leaders to predict a major wave of violent crime by “juvenile superpredators.” Policymakers reacted with fear-based policy reforms making it easier to try children as adults and making more extreme sentences available to them.

These juvenile crime waves never materialized, and the superpredator theory has been debunked and acknowledged as inaccurate by originators. The Miller ruling has provided an opportunity for states to revisit the decisions that ignore the unique capacity of children to mature and change their behavior, and have caused prison budgets to balloon while having little discernible effect on public safety.

The ruling does not require swift action by either the legislative or the executive branches of government. The worst approach would be to repeat past mistakes of making politically-motivated policy changes that fail to appropriately reflect the unique characteristics of children. The Supreme Court precedent is clear: the states need to take a long, hard look at how they hold young people accountable for serious crimes, with a consideration of their age and capacity to change.

Already, Iowa Gov. Terry Branstad has demonstrated what not to do. Earlier this summer, he “commuted” the mandatory life without parole sentence of 38 youth offenders eligible for relief under Miller to mandatory 60-year terms. Newspaper editorial pages and Iowa’s U.S. Senator, Tom Harkin, have already spoken out against the move, noting that it conflicts with the Court’s requirement for individualized sentencing that considers mitigating factors.

Policymakers should look to existing models for holding children accountable, such as from Missouri and countries like Germany and New Zealand, which focus on rehabilitation and reintegration into society. These models not only balance retribution and rehabilitation, but are also cost-effective.

Research has proven that the vast majority of children age out of criminal behavior over time. Meanwhile, the average cost of a life sentence that begins in one’s late teens is $2 million, once the increased medical costs of old-age are considered. Keeping aging people locked up forever serves no public safety purpose and wastes taxpayer dollars. If we check in on children later in life to see if they have been rehabilitated and release those who have, states can use the taxpayer dollars that would otherwise be spent on prisoner medical care and housing for crime prevention programs and supportive services for victims, which are sorely underfunded.

The Supreme Court has granted states with an unprecedented opportunity to think holistically about how we want to address the needs of both victims and youthful offenders. States ought to think seriously about the message that the Supreme Court is sending: your old approach to punishing children is unconstitutional. Quick fixes are not sufficient.


Jody  Kent Lavy is Director of the Campaign for the Fair Sentencing of Youth.