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Arizona, Other States Need Resentencing Guidelines for JLWOP Youth

The current law of the land prohibits the use of mandatory sentences of life without the possibility of parole (LWOP) for juvenile offenders due to Miller v. Alabama. That case’s standards also apply to offenders previously given natural life sentences for homicide offenses because of the Supreme Court’s ruling in Montgomery v. Louisiana. It is unclear, however, how these important changes in law will translate into actual practices.

Some of the practical challenges associated with these changes in law pertain to the interpretation of specific standards governing juvenile sentencing and release decision-making processes, e.g., transient immaturity, irreparable corruption and meaningful opportunities for release.

These standards address important principles identified by the Supreme Court in support of its reasoning as to why sentencing juveniles to life requires different considerations from adults: a) juveniles have diminished culpability because of their developmental and neurological immaturity; b) juveniles have more of a capacity for change than adults. Yet minimal attention has been devoted in Arizona toward providing decision-making authorities with guidelines for implementing these special juvenile considerations.

Twenty-nine states had life sentences for juveniles without the opportunity for parole when the Miller case was decided. Arizona was one of those states, so the 34 juveniles given LWOP sentences before the Miller decision need to be resentenced.

Arizona did not commute its juvenile natural life sentences to indeterminate-life terms of imprisonment as did 17 other jurisdictions. As a consequence, the courts in Arizona must implement the individualized sentencing process prescribed in Miller when the 34 become eligible for resentencing.

In the Miller decision, the court was not banning life sentence for juvenile offenders, but equated a life sentence with a death sentence, which means life sentences for juveniles now require the kinds of individualized determinations that are required for death sentences. However, a number of legal scholars have questioned whether Arizona and other states will implement the intent and spirit of the standards governing these individualized sentencing processes.

The legal officials who will participate in these resentencing and future sentencing procedures for juveniles convicted of homicide offenses are expected to take into account whether the offense reflected the offender’s transient immaturity or the juvenile’s irreparable corruption. While many expert witnesses and other consulting professionals are aware of the contributions of immaturity to various forms of behavior, there is a lack of credible evidence in the scientific literature on how to make valid recommendations about whether or not a juvenile is irreparably depraved or unlikely to change. As a consequence, lawyers in Arizona and other jurisdictions are struggling with how to develop effective strategies for presenting evidence to dispute claims of irreparable corruption.

The Miller decision also has implications for how parole boards and other releasing authorities insure that juveniles are afforded meaningful opportunities for release. In order to address this new legal requirement, some states have developed specialized criteria for guiding releasing authorities in the implementation of Miller requirements.

Thus far, Arizona has not followed the lead of California and other jurisdictions that modified their parole procedures and criteria for determining a juvenile lifer’s suitability for release. Arizona has 74 juveniles who were sentenced to 25 years to life. They will be eligible for release by the Arizona Board of Executive Clemency under Miller, but not all of them will have access to legal counsel to assist them in making a case of their suitability for release. The availability of legal counsel in these parole processes also will vary from state to state.

In Arizona, the Arizona Justice Project is a nonprofit group of lawyers and volunteers who are developing strategies in conjunction with the Sandra Day O’Connor Post-Conviction Law Clinic and faculty and students from the Office of Offender Diversion and Sentencing Solutions (OODSS) in the School of Social Work at Arizona State University to assist inmates seeking release pursuant to Miller requirements. The Arizona Justice Project “reviews and assists in cases of actual innocence or cases in which a manifest injustice has occurred.”

The pilot project with the OODSS was developed to assist lawyers working with the wrongly convicted in helping them address their reentry concerns. The student social workers in this pilot program not only provide supportive services to inmates experiencing reentry difficulties, but also assist inmates at their release hearings by presenting responsive release plans that address relevant risks and needs. This strategy, employed by the Arizona Justice Project for collaborating with faculty and students from the School of Social Work, is an interim solution to a pressing problem.

In 2018, the number of inmates in Arizona who will become eligible for consideration for release will begin to exceed the capacity of the pilot project. This project and other legal assistance programs serving these offenders will have to make difficult decisions in selecting cases for their assistance. This is unfortunate because the release planning provided by the reentry team has helped assuage a number of concerns from the defense community about releasing inmates who were disconnected from family and other relevant supports needed for a successful reintegration in society. Clearly, advocates in Arizona and other jurisdictions need to push for funding of this and other kinds of initiatives to work on the translation of Miller principles into meaningful opportunities for release of juvenile lifers.

The pilot project has already produced positive outcomes in addressing reentry and release planning issues. In addition, it is demonstrating the importance of promoting similar forms of interprofessional training with a focus on principles of holistic defense in sentencing juveniles from indigent backgrounds to a LWOP sentence. Indeed, similar interprofessional training programs are needed for preparing social workers and lawyers in the sentencing of juveniles in states that have maintained LWOP sentences for irreparably corrupt youth.

Thus far, the federal government and most states have not identified special funding for the purposes of training releasing authorities, lawyers, judges and other professionals in how to develop effective strategies for responding to Miller requirements. An equally important concern is in the future sentencing of juveniles convicted of homicide offenses. For these youth, they deserve to have their judges have clear guidelines for interpreting Miller standards. These youth also should have public defenders and mitigation specialists who have access to the kinds of training and supports currently available to mitigation professionals in capital cases.

The U.S. Supreme Court is requiring that given the seriousness of LWOP sentences that practitioners must connect the seriousness of a youth’s offense to special circumstances of youth. In order to avoid claims of ineffective assistance of counsel in these matters, the juvenile justice community must take affirmative steps to make sure that lawyers and mitigation specialists are prepared to develop and present evidence of “transient immaturity” in making a case for leniency when youth are convicted of heinous offenses.

José B. Ashford is a professor of social work and doctoral program in sociology. He is also the director of the Office of Offender Diversion and Sentencing Solutions and of the graduate certificate on criminal sentencing and sentencing advocacy. He is an affiliate faculty member in the schools of Criminology and Criminal Justice, Program on Law and Behavioral Science, and School of Justice and Social Inquiry.

Report: Does Transferring Kids to Adult Court Deter Future Offenses?

Tuesday, the Office of Juvenile Justice and Delinquency Prevention (OJJDP) released “Transfer of Juveniles to Adult Court: Effects of a Broad Policy in One Court,” a new bulletin culling data from the Pathways to Desistance Study.

The longitudinal report examined outcomes for juveniles transferred to adult courts in Maricopa County, Ariz., with the authors concluding that 77 percent of young people that returned to their community after being sent to adult facilities reengaged in at least some level of “antisocial activity,” with approximately two-thirds eventually arrested or placed in an “institutional setting.”

“Adolescents in the adult system may be at risk for disruptions in their personal development, identity formation, relationships, learning, growth in skills and competencies and positive movement into adult status,” the report’s authors wrote.

Researchers said transferring young people to adult courts might have a “differential” effect, with some juveniles becoming likelier to offend again, depending on the young person’s presenting offense and previous offense history. Researchers state that adolescent offenders transferred to adult courts, without any prior petitions, were much likelier to be re-arrested than young people that remained in the juvenile justice system.

“Most of the youth in the study who were sent to adult facilities returned to the community within a few years, varying widely in their levels of adjustment,” the report says. “Youth were more likely to successfully adjust when they were not influenced by antisocial peers.”

Additionally, researchers say that adolescents are also at an elevated risk of being physically or sexually attacked while housed at adult facilities. Despite representing a meager proportion of total inmates in the nation’s adult prison system, analysts estimate that 21 percent of all victims of substantiated incidents of inmate-on-inmate sexual violence in 2005 were under the age of 18.

While transferring juveniles with serious violent offenses to adult courts “seemed to have its intended effect,” the report noted that adult court transfers had a detrimental effect regarding juveniles with serious property offenses.

“These analyses provide clear evidence that certain case characteristics, most notably type of offense and prior history, are differentially related to outcomes among transferred adolescents,” the researchers concluded.

Photo from the OJJDP's “Transfer of Juveniles to Adult Court: Effects of a Broad Policy in One Court.”

Immigrant Voices: Young, Ambitious, Proud of the Nation and Illegal

Israel silhoutte Gabriela silhouette

Immigration is an explosive topic in this nation. It has deep implications for the economy and the social and cultural landscape of the country. It has and will continue to have a huge impact on politics, especially for the presidential election.

We know all that, of course. Anyone who follows the news the least bit, knows that. What a lot of people don’t know too much about, however, is the impact growing anti-immigration sentiment and the passage of severe, some would say, draconian anti-immigration laws have on families, especially their children.

News outlets have told these stories before, gotten below the surface of the debates, to show the struggle of good, law-abiding, hard-working families faced with deportation and an end to a life they have know for many years.

Today, JJIE goes a step further by giving you the voices of three Georgia college students who, though they have lived in the country many years and are ambitious, stellar students, have a hint of a Georgia twang, root for the Georgia Bulldogs, or the Atlanta Falcons, are subject to deportation because they entered this country illegally, as children.

In the interviews that follow you will hear from Jessica Colotl, a recent graduate who was arrested and sent to a detention center for more than a month to await deportation. The other interviews are with two students, Israel and Gabriela, who asked that only their first names be used. They are still in college but since they are illegal, they fear arrest and deportation.

The nation needs a reasonable debate over immigration policy; that much should be clear, even to the casual observer. But it is also clear that voices such as these should be included in that discourse.

Show Me Your Papers, It’s Not Kids Play, It’s UnAmerican

Martin Castro, chairman of the United States Commission on Civil Rights, while giving a talk recently in Lawrenceville, Ga., made a little joke. He said one in six Americans is a Latino -- he paused and then added that the other five out of six Americans soon will be related to that one. He is correct. Your neighbors and co-workers today will likely become your in-laws tomorrow. Hence, I, and lots of others folks, would argue that any political group that angers the Latino community does so at its own peril.

Castro also told a story about his 10-year-old son. The story has the power of a Biblical parable illustrating the intrinsic dangers of state laws passed to hunt down illegal Latino immigrants in states such as Georgia, Alabama and Arizona. His son just started middle school when a group of kids came up to him and demanded to know if he was a legal or illegal alien. When he refused to answer that question, they wanted to know his national origin. When he refused to answer that question, they asked him to put his arms up against the wall because they were going to frisk him. That act, Castro reminds us, “Happens to individuals every day.”

Cops and robbers has always been among the games kids play. With the expanded power of our police to check your papers, that too becomes part of the game.

The United States of America I grew up in not long after World War II, shunned any attempt at having us show our papers because our young men and women had just ended fighting and dying to rid the world of needing to carry papers. Needing to show your papers was tantamount to being subjugated to a police state that preyed on minorities and dissidents. If you are Latino in the United States today, legal or not, the possibility of a nation where first the police, then your employers, then your neighbors, then the kids in the school yard, want proof you are as American as they are, is very real -- and very dangerous because it never stops with just one group of people.

If we really want to demonstrate how American we are, let’s do so by demanding that the show-me-your papers laws in Georgia, Alabama and Arizona and everywhere else are rescinded, ripped up and thrown into the legislative trash barrel, where they belong.

Watch JJIE's interview with Martin Castro below.

Part One

Part Two

Conference Explores Adolescent Brain Development

banner-notextPHOENIX -- Science and legal experts from across the nation gathered at a Phoenix courtroom on Thursday to present research on neuroscience that could help decide future juvenile-committed crimes on Thursday.

Arizona State University’s school of law hosted the “Adolescent Brains and Juvenile Justice” national conference, a biennial event, which brought an array of people together from policy-makers to judges. The aim of the event, held at the Sandra Day O’Connor U.S. Courthouse, was to explore research into adolescents’ brain development and the constitutionality of trying minors as adults.

“This is an opportunity to explore the facts,” said Andrew Askland, a director at the law school.

Currently, states such as Georgia can try minors as adults in serious crimes. However, this can create a problem because the brains of adolescents are still developing, in some cases, into their 20s, said Jay Giedd, chief of the Unit on Brain Imaging in the Child Psychiatry Branch at the National Institute of Mental Health, a panelist at the event.

Crimes committed by minors aren’t always done with malice because they can’t fully distinguish right from wrong, said Gina Vincent, an assistant professor at the University of Massachusetts Medical School, another panelist.

In 2010, the U.S. Supreme Court ruled in Graham v. Florida that it is unconstitutional to sentence a minor to life imprisonment without parole for non-homicide offenses. Such a sentence, the court ruled, is a violation of the Eight Amendment which prohibits cruel and unusual punishment.

Askland said the courts are finally using science to explain crimes committed by minors. This, he said, could allow judges to hand down sentences different than those given adults.

“I’m not saying they should go unpunished,” he said. “But maybe punish them differently.”

According to a 2010 ABA Journal article a minor’s intellectual maturity doesn’t fully develop until age 16, but their psychosocial development doesn’t fully mature until they are at least 22.  Adolescents, therefore, could make less thoughtful decisions in social settings and are much more vulnerable to peer pressure.

Giedd said the “adolescent’s brain is not broken,” but it is very different from a fully-matured adult brain.

Vincent, the University of Massachusetts professor, said that dealing with minors who have committed crimes is a sensitive issue, because minors’ behavioral habits might change as they grow up.

She said most adult psychopaths would tend to get in trouble when they were children and into their teenage years, but that doesn’t mean children should be diagnosed as psychopaths if the symptoms are there at a young age.

One major symptom of a psychopath is that they lack sympathy and are usually callous, especially when they cause harm to their victim.

“We can be wrong more often than right,” she said, about predicting adolescents’ behavioral patterns as they grow into adulthood. Because “they’re attracted to risk-taking behavior,” but over time their brain can fully mature, she said.

Vincent said that even though psychopath traits can be detected in juveniles, it shouldn’t be a major factor in sentencing the minor.

“The decision is up to the judge, we’re only here to give you the information,” she said.

This story was reported by Uriel Garcia. Reach him at urieljgarcia@gmail.com