LOS ANGELES — Kim McGill was only 12 years old when she was first arrested and incarcerated for grand larceny. As a young girl, she had taken order requests from individuals, stolen and sold the items. At 13, she was charged with a felony for the second time and imprisoned in a juvenile detention center for shoplifting more than $1,000 worth of merchandise. After that she was prosecuted for several misdemeanor cases, both as a youth and an adult.
As a former felon and now the lead organizer of the Youth Justice Coalition, McGill is against confinement.
“It's not about fixing the system so people re-enter with more resources,” she said. “It's about knowing that you can't get well in a cell, you can't grow in a cage.”
McGill’s memories still gnaw at her today. She described sleep deprivation due to extreme air conditioning, fluorescent lighting and lack of sufficiently warm clothing. She recalled the absence of any external stimulation: the lack of windows, the inability to see the sky and the deficiency of engaging activities.
The walls were all one color, usually beige or white. Steel cells, tables and beds were the only items in the lock-ups, unless a concrete slab protruded from the wall as a makeshift frame. Sleeping on the floor was not uncommon, nor was seeing the physically most vulnerable people being forced to sleep with their heads next to the toilet in an overcrowded cell. McGill remembered how inmates were talked at, not spoken to; and how the explicit use of her last name made her fail to feel like a human being, let alone like a child.
The United States leads the industrialized world in the number and percentage of children it locks up in juvenile detention facilities, according to Human Rights Watch.
In California, 71,923 juveniles were arrested in 2015 according to a report from the California Department of Justice. Slightly more than 58,000 were referred to probation, about 13,000 were counseled and released, and approximately 1,000 youth were turned over to another agency.
Meanwhile, improvements have been made. Lawmakers unveiled a list of bills in March 2017 in an attempt to divert youth from a school-to-prison pipeline and keep them out of the juvenile justice system.
“We have made really big progress, we just have to do a lot more,” said Dr. Bo Kyung (Elizabeth) Kim, assistant professor at the University of Southern California’s Suzanne Dworak-Peck School of Social Work. “We still incarcerate the most vulnerable population in this country. ... More than any other country in the world.”
Among her bad memories were the powerlessness: “As a young person you’re in cells usually with no bathrooms. So, you’re pounding on the door or a plexiglass window ... in the door, to try to get someone’s attention so you could pee. [You are] especially desperate in the middle of the night when you’re locked in, and having people either know that you’re pounding and ignore you, or pretend not to hear you, and having to pee into a towel or into a corner or hold it all night. That was particularly horrible.”
But the boredom was the worst.
Being in a place where pencils, pens, books and paper are all considered contraband, she said, inmates could spend hours, days and sometimes months without the ability to read or write, let alone do anything else to stimulate your mind.
“Once I had a nickel on me that wasn't caught during the search and I wrote with it into an entire cell wall,” she remarked. Although there would be dayroom time, it was rarely programmed to help you grow.
Contemplating whether she had found solace in anything or anyone during her most vulnerable moments, she said, “[I] can't think of any positive thoughts that got me through anytime.”
Young people who go into the system are particularly vulnerable, McGill said.
“Because of your age or because of your lack of experience, you’re introduced to people who have been much more involved in the streets,” she said. “So, prisons, jails [and] juvenile halls are also breeding grounds for violence.”
McGill pauses for a moment before saying strip searches were obviously another distinct memory. She would have to “strip down naked in front of total strangers, not only the people that you’re locked up with but the guards. In [the] case of the youth system, it’s probation officers. In [the] case of the adult system, it’s usually sheriffs, sometimes police officers.”
The stench of the facilities is another feature she vividly recalls as being unbearable. “I think that anyone who’s been locked up can smell … exactly how it smelled when we were there,” she said. “And you can differentiate between the facilities you’ve been based on the smells they had.
“Sounds at night are also something that never leaves you,” McGill said, “whether it’s the pounding of doors, crying, screaming, people mumbling to themselves, people rhyming … yelling, arguing with each other.”
But even so, McGill said she was better off than many other people who have been in solitary confinement and were sentenced to life in prison.
One of the most impactful things for her development was growing up in communities of color, she said.
“I think I had the benefit of seeing the obvious issues in the system from a very young age … When you’re white [like me], and you’re going through it, it’s really obvious to you that you’re getting preferential treatment.”
On the streets, McGill was treated as a victim while her friends were viewed as criminals. She recalled being taken aside by police twice and asked if she had been kidnapped. She was constantly queried about why she was in specific areas, if she knew they were dangerous and if she wanted a ride home.
The record also cited evidence of “rampant racial inequities … in the way youth of color are disciplined in school, policed and arrested, detained, sentenced, and incarcerated.”
Crissel Rodriguez, the Southern California regional coordinator at the California Immigrant Youth Justice Alliance, agreed.
“We see that the zero tolerance policy has actually really affected communities of color,” Rodriguez said.
Kim said youth of color are much more likely to be in touch with police negatively at every single point of contact in the system, and they are more likely to be taken further into the system than out of it.
“The justification for that for the judges themselves, is that ... it’s dangerous, so we are going to detain them,” Kim said. “It’s a way to protect them. But under the purview of protecting them, they’ve further introduced them to a system that brings them back over and over again.”
In 2012 Gov. Jerry Brown signed Senate Bill 9, which supported judges reconsidering the sentences of juveniles punished to life in prison. After that, most of the state’s juvenile life-sentenced prisoners are being resentenced, according to The Sentencing Project.
Brown signed SB 394 in October, legislation that now outlaws the state from sentencing youth offenders to life in prison without possibility for parole.
Today McGill, 36, leads the Youth Justice Coalition, an organization that challenges the U.S. “addiction” to incarceration and race, gender and class discrimination in the juvenile “injustice” systems. To her, and most people in the coalition, this crusade is personal.
“The greatest feeling that myself, and I think other people, have got has come through our organizing and fighting back to change the system,” she said. “It’s healed us more than any other single thing has.”
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Decades of research from the fields of criminology and adolescent brain science find that the decisions made in youth — even very unwise decisions — do not crystallize criminality. Instead, as young people age and mature they develop the capacity to make different choices.
Fortunately, more informed policies have begun to replace the punishments that proliferated during the 1990s when fear of “superpredators” and calls for “adult time, adult crime” dominated youth crime policy. The incarceration rate for youth in juvenile and adult systems soared then. Today, youth incarceration in juvenile facilities is now half its level of 20 years ago. Driven by the work of advocates, legislators, researchers and judges, many now readily acknowledge that the juvenile justice system should be used sparingly and only for those who truly need confinement.
Based mostly on the adolescent brain science discoveries that concluded that executive functioning is not fully developed until adulthood, in 2005 the Supreme Court ruled in Roper v. Simmons that the death penalty for juveniles violated the 8th Amendment. The Supreme Court has taken up the issue of severe sanctions for juveniles three more times since then, and as a result there are restrictions in the use of life without the possibility of parole (LWOP) for juveniles.
Changing public sentiment regarding the wisdom of sending young people to adult prisons has led policymakers in many states to revise misguided policies in this area. Many juveniles who would otherwise be languishing in adult prisons are now either in juvenile confinement facilities that are better designed for their needs or have been diverted from confinement altogether. In 2015, the number of juveniles held in adult prisons declined to less than 1,000, an 82 percent drop from the peak year in 1997.
These reforms have not resulted in any adverse public safety outcomes. Crime continues to be at historic lows.
Despite these advances, more than 9,000 people who were convicted as youth still do not stand to benefit from reforms either in the juvenile system or of the restrictions on punishments in the adult system. The Sentencing Project recently released a national study on the prevalence of life sentences nationwide, disaggregated by crime of conviction, race and ethnicity, gender and juvenile status. We obtained data from the states and federal Bureau of Prisons on the number of people serving three categories of life sentences: life with the possibility of parole (LWP), LWOP and virtual or de facto life sentences that amount to terms of 50 years or more. We learned that 1 in 7 prisoners is serving one of these sentences and that nearly 6 percent of the lifer population was under 18 at the time of the crime.
Aside from the roughly 2,300 individuals serving JLWOP there are approximately 7,000 juveniles who are serving parole-eligible life sentences around the country. For them, a statutory mandate or judicial decision has determined that spending the rest of their life in prison is reasonable if parole is not granted sooner. In New York, Georgia and Texas, more than 600 people sentenced for crimes in their youth have parolable life sentences. In California, which leads the nation in the category of life sentences, a notable 2,700 individuals are serving parole-eligible life for a crime committed under age 18.
In addition to the 7,000 juveniles serving life with parole, nationwide 2,000 individuals are serving de facto life sentences of 50 years or more for crimes committed when they were less than 18 years old. Louisiana reports 600 virtual lifers who were juveniles when their crime occurred and Texas reports nearly 450 such individuals.
The crimes committed by these juveniles were typically serious: 82 percent of lifers with the possibility of parole have been convicted of a homicide, and for half of these the crime was a first-degree murder. Among those serving de facto life for crimes committed as juveniles, 56 percent were convicted of a homicide and 94 percent were convicted of violent crime, including 22 percent for aggravated assault.
As with all life sentences, racial disproportionality is evident. African-American youth comprise more than half (53 percent) of the parolable and virtual life sentences, slightly less than their composition among the JLWOP population (63 percent). Overall, youth of color make up 81 percent of those serving life and virtual life sentences.
Some states stand out in the proportion of life and virtual life sentences being served by those who were young at the time of the crime. In Wisconsin, for instance, more than 11 percent of the life-sentenced population was a juvenile at the time of the crime. And while a first opportunity for parole comes after “only” 20 years in Wisconsin, we know from mounting research in parole politics and practices that rates of granting parole have fallen, particularly for those convicted of serious crimes and serving lengthy sentences. In Georgia, which in 2016 reported 600 people serving parole-eligible life sentences for crimes committed in their youth, the first opportunity for parole does not occur for 25 to 30 years. In Tennessee, the first parole hearing occurs only after a minimum of 51 years.
The requirement set forth in Graham v. Florida of a “meaningful opportunity for release based on demonstrated maturity and rehabilitation” has shined a bright light on parole systems’ capacity and willingness to afford a second look, and when this should occur. In June, the Supreme Court ruled in Virginia et al. v. Dennis LeBlanc (582 US ___) that Virginia’s “geriatric release” mechanism provided a sufficiently meaningful opportunity for release. Geriatric release allows review for those 60 years old and older; this means that LeBLanc and other people in his position will wait more than 40 years before being considered for release.
This and other lengthy terms of imprisonment stand to violate the spirit if not the letter of the recent court rulings. They also conflict with recent recommendations of the American Law Institute, a respected body of legal scholars and law practitioners that proposes a review after 10 years for any juveniles sentenced to terms longer than this.
Revised state laws for sentencing juveniles are being developed in the aftermath of the Supreme Court rulings. It is important to include in these considerations all youth with life and lengthy terms; their potential for reform and maturation is just as likely as for those sentenced to life without parole.
Ashley Nellis, Ph.D., is a senior research analyst at The Sentencing Project and the author of numerous research reports on life sentences, most recently “Still Life: America’s Increasing Use of Life and Long-Term Sentences.”
A study funded by the National Institute of Justice (NIJ) found that alternatives to handling drug cases, such as specialized courts that usher more people into rehab, can sharply drop recidivism rates, scale back on overall crime and produce deep cost cuts in an overwhelmed criminal justice system.
The report comes as the nation is in somewhat of a split over how best to handle many criminal cases, including drug offenses.
As Massachusetts considers a crackdown on repeat violent offenders, the position by many lawmakers has been to ease drug penalties.
In Missouri, legislators passed a bill to create more parity in sentencing for powdered and crack cocaine offenses. In the push to cap violent and drug crime in the 1980s and 1990s, many states passed tough laws that skewed penalties for different types of cocaine, with the result being more minorities - and especially blacks − were locked up for longer periods of time.
Many states, and even Congress late last year, have revisited those laws, pulling back in hopes of reducing prison populations and the high costs of policing, the courts and incarceration.
“The easing of penalties for drug crimes in some states has gone hand in hand with the expansion of drug courts,” said Nicole Porter, director of advocacy for the Washington-based Sentencing Project.
She pointed to a 2010 study by her group that found increased use of sentencing alternatives had, specifically in New York, “resulted in diverting prison-bound defendants into treatment programs to reduce the use of prison.”
Still, drug courts, which are mostly specialized forums that stress rehabilitative justice over punitive, might not be an automatic fix for a troubled system: “The outcomes will vary from court to court, and region to region, and state to state,” Porter said.
There were, for example, some discouraging findings in the report – such as drug courts appearing to have little impact on homelessness, depression and family emotional support.
Tracy Siska, head of the Chicago Justice Project, said drug courts do work “for a very selective audience,” where the offenders have bottomed out, or are in dire need of treatment. “If that marriage of circumstances exists, they can be very beneficial in cutting down on all the negatives.”
He cautions against too wide of an expansion of drug court that pushes intense treatment on the casual user who might rebel against the rehab, especially at a young age, and get caught in a cycle of offending.
“They can fail, and miserably,” he said.
And this can prove especially troubling for children entering system. Studies show a huge percentage of suspects charged with crimes test positive for some use of drugs. There have also been studies showing an increase in marijuana use, while cocaine use has dipped. But if a suspect like a minor delinquent is arrested after a first-time or casual use, they risk dropping to a low in a system so heavy with drug use and violence.
However, the NIJ-funded report, while giving a nod to such drawbacks as not substantially boosting income or employment status, stressed positives for the nation’s 2,600 drug courts – more than 450 of them at the juvenile level. The upside of drug courts include a decrease in drug relapse, a drop in reoffending and lower overall criminal justice costs as offenders were eased back into society, something that is expected to help steady state budgets that were so wrecked by the down economy.
Among other findings, the research released by the NIJ found:
- About 40 percent of drug court participants reported less criminal activity, compared with 53 percent of offenders who went through traditional courts.
- Fewer rearrests were reported for drug-court participants than offenders of similar crimes who were processed through criminal court. The difference was 52 percent to 62 percent.
But the number of drug courts for juveniles has actually slid. Exactly why was not clear but a trend towards more drug courts overall could also benefit younger offenders, according to some experts.
“In many instances defendants with no priors who are considered low level may be juveniles or youthful offenders,” Porter said. “An expansion of sentencing alternatives that provides additional options and can result in individualized sentencing that takes into account a defendant's background – including age, and other factors – would help to rethink and reduce the nation's current reliance on incarceration.”
Last month, Deputy U.S. Attorney General James Cole noted that some $74 billion is spent on corrections at the state and federal level every year, and stressed that a way out of the spiraling costs – which are matched by huge jumps in incarceration levels – is to spread the use of drug courts.
Cole, addressing a gathering of court and justice experts in New York, said the federal prison budget had almost doubled since 2000, to $6.6 billion with more than 218,000 federal offenders behind bars and 105,500 on supervised release.
“We face real criminal justice challenges,” he said. “Few would dispute that public safety requires incarceration – and that imprisonment is, at least partially, responsible for the dramatic drop in crime rates... It is in our interests to find alternative ways of dealing with offenders.”
Eric Ferkenhoff is the editor of The Chicago Bureau.
Photo by DeKalb County, Illinois Drug Court
With the Supreme Court set to hear oral arguments in a case that could determine the constitutionality of life sentences without parole for juveniles, a new report looks at the lives of the more than 2,300 people currently serving life sentences for crimes they committed before they turned 18.
The new report, “The Lives of Juvenile Lifers,” analyzes the findings of a first-ever national survey of this unique prison population.
“The goal was to find out more about who these people are, their community and background,” Marc Mauer, executive director of the Sentencing Project, which produced the report, said during a conference call Wednesday.
Ashley Nellis, the report’s author and a research analyst at the Sentencing Project, said the intention was to highlight the individual stories of those serving sentences of life without parole.
“A lot of times we hear solely about the offense for which they are serving,” she said. “They are more than just their crime.”
Many came from troubled homes. According to the survey, nearly 80 percent of those serving juvenile life without parole sentences (JLWOP) experienced high levels of exposure to violence in their homes. More than half witnessed weekly violence in their neighborhoods.
“More than a quarter of those surveyed had a parent in prison,” Nellis said.
JLWOP sentences are fraught with controversy. Mark Osler, a professor of law at the University of St. Thomas in Minnesota and former federal prosecutor, points to research showing juveniles’ brains do not fully develop until they are in their 20s.
“The science we see emerging is propelling us to think of youth brains as different from adult brains,” Osler said. “We’re not looking at the same brain that is going to emerge later.”
The history of juvenile courts bears that out, Nellis said.
“We used to account for the important differences between youth and adults,” she said. “As a society we felt strongly that kids were different from adults and that’s why we developed a separate juvenile justice system. Now the system has shifted and we are quick to throw these kids’ lives away.”
The U.S. Supreme Court ruled in 2010 that JLWOP sentences were unconstitutional for all crimes except murder. But according to Nellis, the United States is no longer handling juvenile crime the best way possible.
“Overall,” she said, “our findings show that our society is off track in the way that we punish youth for their misdeeds.”
The system began to change in the 80s and 90s following an upswing in juvenile violent crime, Nellis said. Politicians warned of teenage “superpredators” and pushed for tougher sentences. But the statistics never caught up with the perception and the so-called superpredators “never arrived,” Nellis wrote in the report.
“We now know through this experiment that ‘tough on crime’ does not work,” she said during the conference call. “It doesn't work on young lives that are not done maturing.”
Juvenile life sentences also show “a disturbing racial disparity,” Nellis said. According to the report, the racial dynamics of victims and offenders may play a large role in determining if an offender receives a life sentence.
“The proportion of African Americans serving JLWOP sentences for the killing of a white person (43.4 percent),” Nellis writes in the report, “is nearly twice the rate at which African American juveniles are arrested for taking a white person’s life.”
Osler is concerned the sentence is given out too easily.
“When we think about a sentence we have to worry that it’s being used arbitrarily and that there are things such as race that are bubbling up,” he said.
Currently 33 state allow JLWOP sentences.
Also on the conference call was Linda White of Houston, whose daughter was murdered by two juveniles. Life sentences without parole were not an option when the offenders were sentenced. Over time, she said, one of the offenders showed significant growth and she now has a “caring relationship” with him.
“At the time [of sentencing] I probably would have been happy with a life without parole option had it been available,” she said. “I have a completely different opinion today. Today I believe that it is not only unscientific but inherently cruel to sentence juveniles to life sentences without the hope of parole or release.”