We know little about the discretionary release decisions of parole board decision-making, especially for juvenile offenders who have been sentenced as if they were adults to long terms of imprisonment, including life. The possibility of parole for juvenile lifers does not mean they will eventually be released. The formal and informal rules governing a juvenile offender’s eligibility for parole are either no different from adults or too vague.
First, we need to recognize that parole boards are at the tail end of the criminal justice system. Unlike criminal court they are an administrative body, often confidential in their deliberations. There is too often no requirement to be transparent. In this sense, parole boards would be considered a “black box” — one that can not only create a profound sense of injustice among offenders, making their rehabilitation less likely, but produce costly appeals.
Yet I believe that the administrative decision-making of parole boards can be improved upon in the case of juvenile offenders: first by recognizing the business of parole boards, which is not only to make judgments about the suitability of an offender’s release, but also to enable offenders to succeed by becoming law-abiding members of society. To enable appropriate assessments at the front and back end of the correctional process, it is important that parole boards recognize adolescence in all its complex developmental forms. I add the word complex, because a standard text on developmental adolescence is not appropriate for incarcerated adolescents subject to long-term adult imprisonment.
For instance, sensitivity to the adolescents who are juvenile offenders would modify state statutory requirements to consider the offender’s reoffending risk and offense seriousness. Offense seriousness and reoffending risk cannot easily be separated from one another, and often fall under the general rubric of offender dangerousness. Despite an offender’s excellent to good prison record (few infractions and having programmed well), offense seriousness (as indicative of offender dangerousness) is often presented as the defining reason for rejecting parole. But offense seriousness should be defined not only in terms of the harm committed, but also in terms of culpability. And in regards to culpability, the jurisprudence is clear: A youth’s culpability should be discounted based on the well-known facts of adolescence.
Still, before the parole board is not an adolescent but a middle-aged adult offender who looks no different from other middle-aged offenders who committed their offenses while adults. Parole boards need help in seeing beyond their cases of middle-aged offenders. They need to look beyond a series of U.S. Supreme Court decisions that has recognized the adolescence of juvenile lifers — at least in terms of those who were legislatively denied the possibility of parole.
Although the Supreme Court in its Graham (2010) and Miller (2012) decisions cited the developmental literature as reason for recognizing the jurisprudence of adolescence, it did not provide states with the standards for guiding parole board decisions, essentially leaving it to states to decide how they wish to implement the court’s decisions. Some states have created lengthy minimums, and others like California a specific part of their parole boards that explicitly acknowledges their juvenile lifers’ adolescence. Yet the acknowledgment where it exists appears vague and largely symbolic — an extension of merely stating for the record the juvenile’s age at time offense.
A step in the right direction would be to recognize the criminological reasons for juvenile violence, which include childhood trauma, neighborhood violence and familial abuse. The criminological reasons for gang membership as protection against neighborhood victimization would similarly explain why a juvenile or young inmate just entering prison would again join a gang , and again for protection. A capital offense and a life sentence are traumatic in themselves, and may lead to self-destructive behavior that produces a prison record that would not be looked upon kindly by parole boards many years later.
We should expect that over time the stated rules of engagement for parole boards have changed. This is the case in Massachusetts, where the state’s supreme judicial court not only recognized Miller, but also said that it is retroactive. The state’s supreme judicial court also indicated that parole-eligible juvenile lifers should have the benefit of legal representation — a right that is not provided to adults. Moreover, they recommended minimum periods that would provide adolescents with the possibility of returning to society as middle-aged adults.
Still, there is parole board resistance to dwelling on the adolescence of the offender at the time of the offense and to drawing on the developmental literature to explain early prison infractions. That resistance stems from alternative concerns that are raised by the victim, prosecutor and other members of the community, especially in serious cases of violence. The focus becomes on the offense; its sensational qualities, the victim(s) and then how the offense could be considered an indication that a “just” amount of time has not yet been served given the gravity of the crime.
My statements on parole are based on personally observing numerous parole board hearings and viewing nearly 300 videoed recordings, along with transcripts. I’ve not only observed hearings, but also examined in close detail records of decisions for juvenile lifers and compared them with young adult offenders. With Ed Mulvey (University of Pittsburgh) we found virtually no difference between adult lifers and juvenile lifers in their probability of parole, controlling for the severity of their offense and prison infractions. In fact, age was not a predictor of parole. Rather prison infractions, programming and offense seriousness were the only significant predictors after statistically controlling for a range of personal factors.
So where do we go from here? First, we need to understand parole board decision-making in cases of juveniles sentenced in criminal court to long terms of imprisonment—not just life. Many more thousands of juveniles beside those serving life are coming up for parole each year after serving long-term minimums. They are in the adult system from start to finish, and although a considerable amount of research on juvenile offenders has been conducted at the front end of the criminal justice system, there is little that is known about back-end decision-making, as exemplified by discretionary release decisions.
Secondly, states can do more to prepare their juvenile offenders for discretionary release by taking into account the facts of adolescence. They should not assume that just because the juvenile has been sentenced as an adult, they can be treated as an adult offender. A juvenile lifer’s problematic adolescence should not only be recognized first in a juvenile facility (usually the first stop for a juvenile lifer), but also in their subsequent adult prisons. Recognizing their problematic adolescence requires correctional officials to also recognize that the experiences of juvenile lifers are limited to prison life.
At the tail end of the correctional system is the parole board, and here the facts of a juvenile lifer’s adolescence must be explicitly recognized. The facts at this stage of discretionary release should not only acknowledge the adolescent’s limited socialization to life outside their prison. Those facts should also enable a set of treatments, reentry plans that specifically enables a juvenile lifer to succeed while on parole. In this way the upstream as well as downstream considerations that go into making parole decisions can do a better job in fulfilling the Supreme Court’s mandate for a meaningful review — one that takes into account the adolescence of juveniles, especially when imposing long-term maximum adult sentences.
To ignore the black box of parole board decision-making invites costly appeals, extending the cost of incarceration beyond the jurisprudential logic of a modern-day criminal justice system. Eventually states will do well by explicitly recognizing the adolescence of their juveniles and by developing the research tools, programs, procedures and administrative processes that can produce the meaningful review called for by the Supreme Court. My colleague Ed Mulvey and I have been working in this direction. However, we need more states than the few that have been willing to collaborate with us. If you would like to assist us in our research, please do not hesitate to contact me.
Simon I. Singer is a professor of criminology and criminal justice at Northeastern University. His current book project is titled “Adolescence Denied: Juvenile Lifers in America.” He has received awards from the American Sociological Association (Albert Reiss Book Award, 1999, for “Recriminalizing Delinquency: Violent Juvenile Crime and Juvenile Justice Reform”), and from the American Society of Criminology (Hindelang Book Award, 2014, for “America’s Safest City: Delinquency and Modernity in Suburbia”). He can be emailed at email@example.com.
This is part of The Long Wait, a series exploring the Illinois Prisoner Review Board’s process for deciding on parole for a group of inmates who remain in prison for serious crimes committed before 1978.
The crime would send shockwaves through the Chicago police department for decades.
On a summer day in 1970, two Chicago Police officers assigned to the “walk and talk” team, meant to improve relations between police and the community at the Cabrini-Green public housing projects, were walking across a field when gunfire erupted. Surrounded by the high-rise buildings, snipers fired on the men, killing them both.
Police quickly built a case against two young men, who they said were members of street gangs. Johnnie Veal, then 17, and George Knights, then 23, were both charged with two counts of murder and tried together. While there was physical evidence presented against Knights, none directly tied Veal to the crime. Both insisted they were not guilty.
Both were convicted and sentenced to terms of 100 to 199 years in prison with the opportunity for parole. That has left them among the 121 men and one woman at the mercy of the Illinois Prisoner Review Board, which has consistently rejected their efforts to seek parole.
The board’s decisions, an Injustice Watch examination found, are often inconsistent and arbitrary. Veal is among a number of the prisoners who, finding the door to parole shut year after year, have turned to the courts in a desperate effort to win freedom.
Veal filed a petition last year in Cook County Circuit Court contending that because the parole board is not meaningfully considering his release, he has been illegally sentenced to life without parole — a sentence that the U.S. Supreme Court said cannot be automatically imposed under the Constitution on 17-year-olds. Earlier this year, as the board again turned away a parole request from Knights, board chairman Craig Findley commented, “I just don’t see how George Knights or Johnnie Veal could ever be released.”
Veal’s plea was rejected by Cook County Circuit Judge Rickey Jones in July 2016. He is appealing.
The Illinois Supreme Court ruled in 1996 that the board has “complete discretion” in deciding parole, and that unlike other states such as Wisconsin and Michigan, its decisions are not generally reviewable. The court noted that parole board decisions are “often based on subjective factors and predictions rather than objective factors.”
Prisoners in Illinois can only turn to the courts if the board fails to hold required parole hearings — whatever the outcome — or if the board acts in an unconstitutional way, such as denying parole based on a defendant’s race.
While evidence of a defendant’s innocence is critical in court, it tends to work against prisoners seeking parole. Prisoners’ refusal to acknowledge responsibility for the crime — even if they insist they are innocent — is often held against them in board deliberations.
In Veal’s case, a fingerprint of his co-defendant, Knights, was discovered on a box of bullets in a high-rise’s incinerator room after the shooting. Police traced the bullets to a store in Indiana, where Knights signed the purchase slip for the ammunition, according to court records.
But there was no physical evidence against Veal, according to court records, and no witnesses said they saw Veal commit the crime. The case against him was built on the word of several witnesses who testified that Veal made statements before and after the murders indicating he was involved.
Three boys, also gang members, were among the key witnesses against him. They each recanted after the trial.
When Veal’s last parole request came before the board in 2014, one factor board members considered was his lack of remorse for the crimes, board minutes show. His supporters tried to justify Veal’s response, saying, “You cannot ask a man to admit guilt for something he did not do,” the minutes show.
The board’s repeated rejection of his parole spurred Veal to try the courthouse. “Time is of the essence,” he said in an interview from Hill Correctional Center. “Tomorrow’s not promised to me, so I’m trying to get the best I can get, to try to get to where I’m supposed to be with family and loved ones.”
In another police killing case, Ronnie Carrasquillo, who was sentenced in 1978 for shooting Chicago police officer Terrence Loftus, also filed a petition in the Cook County Circuit Court stating that he has no real chance at parole because the victim in his case was a policeman. Like Veal, Carrasquillo, who had turned 18 months before the crime, contends that the board’s routine denials have resulted in an automatic life sentence without parole.
Carrasquillo also argues in a separate petition that his hefty sentence was unfairly imposed by a corrupt judge to deflect the sharp public criticism he received months earlier after acquitting mob hitman Harry Aleman in a nonjury trial. At a September hearing on that petition, Carrasquillo’s trial attorney, Glenn Seiden, testified that an FBI agent later made comments to him suggesting a link between those cases.
More than a decade after Carrasquillo was convicted, Wilson committed suicide after the FBI confronted him about evidence that he had taken a $10,000 bribe to acquit the mob hitman. “Only a corrupt judge would have sentenced a teen-aged boy under these circumstances to a draconian sentence of 200-600 years,” Carrasquillo’s petition states.
While Carrasquillo and Veal, among other prisoners, try to overturn their verdicts arguing they were unjustly convicted or sentenced, such evidence carries little weight in their separate proceedings before the Prisoner Review Board.
Legally, the board is required to focus solely on whether an inmate is an acceptable risk for release, said the board’s legal counsel, Jason Sweat. Because inmates have already gone through trial and sentencing, speculating on the quality of trial evidence, Sweat said, is not up for consideration.
Claims of innocence have not always been an obstacle to parole.
In late 2005, the board paroled Duffie Clark, who was convicted in 1971 of slaying two youth on Chicago’s South Side. Clark’s attorney, Dana Orr Williams, said in prior years Clark had not received any votes in favor of his parole. He only was released once she presented information sowing doubt in the evidence of his guilt.
Williams said she thinks her argument and the questions she raised about Clark’s guilt resonated with the board members who voted in his favor. Parole was granted despite his refusal to be contrite, she said, which “did not go over well” with all members of the board. Williams said Clark “wasn’t going to cop to something he didn’t do.”
In other cases, board members cite that lack of contrition as they deny parole. Carrasquillo has long contended he did not intend to shoot the police officer, who was in plainclothes at the time, causing then-board member Angela Blackman-Donovan to comment that Carrasquillo “won’t own up to it,” according to meeting minutes from 2013. She then voted against his parole.
Sitting in a visiting room recently in Dixon Correctional Center, Carrasquillo discussed his plans for a life outside prison. If he is ever released, he would be starting a life when most others his age would be nearing retirement.
He recognizes the struggle to win over the board members.
He has more faith, he said, in being released through the courts than the parole board. “They see me as a lifer,” he said of the board members. “It’s that simple.”
Injustice Watch co-director Rob Warden, who co-authored the book “Greylord,” is being called as an expert to testify about me=dia coverage of Judge Frank Wilson, on behalf of Carrasquillo’s petition. As a result Warden played no role in reporting or editing this series.
This article was written by and originally ran in Injustice Watch.
“[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.
The Nebraska Pardons Board cancelled this week’s hearings following the granting of an injunction request by more than a dozen prisoners, who said that the meetings, following the U.S. Supreme Court’s ruling in Miller v. Alabama, may result in them receiving prison sentences of at least 50 years.
The Omaha World Herald reports that Douglas County Judge Thomas Otepka granted the request late last Friday, with the Pardons Board subsequently postponing several hearings scheduled for Monday and Wednesday.
“Defendants are enjoined from commencing the commutation hearings scheduled for December 3 and 5, 2012, until such time as the Nebraska Supreme Court and the Nebraska Legislature addresses the constitutional mandates of Miller v. Alabama,” Otepka wrote.
Two weeks earlier, Nebraska Attorney General Jon Bruning - a member of the state’s Pardons Board - said that he would likely give the prisoners, all currently serving life sentences for crimes they committed as juveniles, minimum 50-year sentences in hearings originally scheduled for this week.
“We respectfully disagree with the court’s decision,” Bruning said. “This is an unnecessary delay to Nebraska’s compliance with the Miller v. Alabama decision that risks untold state financial resources.”
Earlier this year, the U.S. Supreme Court ruled that mandatory life sentences for juveniles without the possibility of parole were unconstitutional, although the Miller v. Alabama ruling still does not forbid judges from sentencing to life sentences young offenders found guilty of murder.
Prior to the Pardons Board’s decision to cancel the week’s hearings, several state prosecutors asked them to wait until the Nebraska Legislature and other courts formalized a plan to deal with the state’s juvenile offenders.
Tuesday morning, Bruning announced plans to petition the Nebraska Supreme Court to withdraw Otepka’s injunction so that the commutation hearings could be rescheduled.
A Michigan state court case says some 350 people given mandatory no-parole sentences for murders committed as juveniles must serve their full sentences. But in the coming days, a federal court is expected to opine on a similar question.
A federal court in Michigan will soon rule on the constitutionality of automatic, no-appeal life sentences given to 13 people over the last few decades. The offenders in Hill et. al. v. Granholm all committed murder aged between 14 and 17.
“The court will decide in light of the admitted unconstitutionality of [Michigan] statute, which doesn’t give parole to juveniles convicted of first degree murder, what is the mechanism that will provide meaningful opportunity for release,” said Deborah LaBelle, an independent attorney on the team arguing for Henry Hill and the others in front of the U.S. District Court for the Eastern District of Michigan.
The case started in 2010 with nine original plaintiffs who argued that holding them for life with no meaningful opportunity for release was unconstitutional.
Since then, the U.S. Supreme Court has agreed with a similar argument in a separate Alabama case. In Miller v. Alabama, the justices found that juveniles are less mature, and therefore less culpable than adults when it comes to the crime of murder. They said lower courts must consider the mitigating factor of age and immaturity when sentencing juveniles for murder. That rules out one-size-fits-all sentences.
The Michigan state legislature has not yet had time to write a new sentencing guideline that fixes their statute, though some proposals may yet come up for a vote this year.
But as the Hill plantiffs wait for their federal ruling, a state court has said new sentencing rules will not apply to those already serving time.
Raymond Carp, 21, must serve life in prison without the chance of parole for stabbing a woman to death in 2006, the state of Michigan Court of Appeals ruled last week. Carp asked for a new sentencing hearing in light of Miller v. Alabama. The panel of judges said no.
“We hold that in Michigan a sentencing court must consider, at the time of sentencing, characteristics associated with youth as identified in Miller when determining whether to sentence a juvenile convicted of a homicide offense to life in prison with or without the eligibility for parole,” the judges wrote.
But the new U.S. Supreme Court guarantee of such a hearing is a “procedural” change, not a “substantive” change, they continue. Thus by precedent and Michigan law, it only applies going forward, not to offenders like Carp who have already exhausted direct appeals.
Yet Carp’s case will be appealed to the state Supreme Court, LaBelle predicted.
State Attorney General Bill Schuette has fought resentencing for juvenile lifers, both by public statement and in court filings. "Fortunately, the Court of Appeals agreed to follow long-standing precedent that says U.S. Supreme Court rulings addressing criminal justice processes are not retroactive,” he said in a written statement. “I pray that the families of those murdered can find some comfort in the knowledge that their days in court are over.”
Michigan holds more of the estimated 2,500 juvenile lifers nationwide than any other state.
I did “something stupid,” said Kentucky high school student N.C., admitting to his assistant principal and the school’s sheriff’s deputy that he gave two of his prescription pain pills to another student. He was not read his rights, and the officer subsequently charged him with illegally dispensing a controlled substance. N.C.’s attorney is arguing that the student should have been informed of his rights to leave, stay quiet or call an attorney.
N.C. was “in custody” when he sat in an office with Nelson County High School Assistant Principal Mike Glass and School Resource Officer Deputy Steve Campbell, talking about his empty prescription medicine bottle, argued Robert Strong, assistant public advocate. So the adults erred by failing the familiar Miranda warning: “You have the right to remain silent …”
“Given that the officer testified that the assistant principal was aware that N.C. had given some pills away before they interrogated him, the interrogation was a criminal investigation,” Strong wrote in his brief to the Kentucky Supreme Court. N.C. was not read his rights, so, Strong argued, the student’s statements to the two men should have been inadmissible in the criminal case against him.
N.C., whose age is not given, was sentenced to 45 days in adult jail, on hold pending the outcome of his appeal.
According to N.C.’s testimony in court records, he was recovering from tooth surgery and carried three prescription pain pills to school in the pharmacy bottle with his name on it. He gave two to another student and took one himself.
The empty bottle was found on the bathroom floor. But school rules say students must turn in prescriptions to the school nurse. Glass and Campbell brought N.C. into an office.
Glass did not know he was getting into criminal territory, his defense argues. “Glass was simply inquiring about the prescription bottle when N.C. spontaneously admitted that he had done something wrong by giving his last two pills to another student,” reads the brief by John Kelley, special prosecutor for the attorney general.
N.C. was not in custody, Kelly wrote in his brief: “[T]he case at hand was simply a school administrator looking into the possible violation of a school policy and not an investigation of criminal activity.”
The Kentucky circuit court agreed with that reasoning, triggering NC’s appeal to the state Supreme Court. There’s no date set yet on an opinion.
Other states have tackled similar questions. One case made it to the U.S. Supreme Court in 2011.
J.D.B., a 13-year-old North Carolina student, was seen at school in possession of a camera recently reported stolen from an area home.
He was brought into a room with school administrators, the school’s police officer and a police investigator. The student first denied involvement, but then confessed on the officials’ urging and warning about the prospect of juvenile hall. J.D.B. had not been given his Miranda warning. The youth’s attorney thus argued that the boy’s statement should have been thrown out of the subsequent criminal proceeding.
The U.S. Supreme Court did not rule on the question of whether J.D.B. was in custody, instead sending it back to North Carolina courts and directing them to answer it “this time taking account of all of the relevant circumstances of the interrogation, including J.D.B.’s age at the time.”
It is a “commonsense reality,” wrote Justice Sonia Sotomayor, “that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave.”
In other words, police should consider a person’s age, and perhaps childish view of the world, when deciding when to read Miranda rights.
Wyoming looks set to require more deliberative sentencing hearings for juveniles convicted of murder, taking into account factors such as the defendant’s mental health. Like most under-18 defendants in the state, however, they will continue to go through adult court, advocates predict.
Wyatt Bear Cloud’s sentence to life in prison for a 2008 murder committed in Sheridan when he was 16 wasn’t fair, the U.S. Supreme Court ruled on Oct. 1, citing an earlier ruling that demands thoughtful sentencing hearings for youth on murder convictions. They told the state Supreme Court to do something else with him.
Nearly a month later, Wyoming’s Joint Judiciary Interim Committee approved a proposal to set the minimum juvenile sentence for first-degree murder at 25 years and to end cursory sentencing. The U.S. Supreme Court, in a string of decisions over the last few years, has told sentencing courts to consider juvenile offenders’ lack of maturity, mental health and other factors that may make them less culpable.
Bear Cloud was tried as an adult, as are most Wyoming minors, advocates suspect.
“Because our system is so fragmented, nobody is collecting the information that can paint the whole picture,” said Donna Sheen, director of the Wyoming Children’s Law Center, a nonprofit.
Some juvenile courts exist in the state, Sheen said, but “it is our belief for example, that there is a lot of over-prosecution in the municipal and circuit courts,” the same courts that try adult defendants.
That’s for offenses as slight as possession of alcohol by a minor, a crime in Wyoming.
“There are so many kids that go to detention, go to jail in Wyoming … for things they should not be in jail for: minor in possession of tobacco, minor possession of alcohol, skipping school,” said Linda Burt, director of the state’s ACLU chapter. Her office wants minors kept out of adult court.
According to federal statistics, in 2009, Wyoming courts reported hearing 738 juvenile cases of delinquency, that is, crimes; and 269 on status offenses, that is, offenses like school truancy that don’t apply to adults. In all of Wyoming, the population aged 10 to 17 numbered 56,100, suggesting as much as 1.8 percent of the whole age group met with the law in some way.
“We see some due process issues,” said Burt, such as “en masse” advisements of the right to trial by jury or to counsel. “Some of the children are not old enough to understand that,” she said, and they forego their rights.
She also calls Wyoming’s juvenile justice services a “hodgepodge” varying from county to county.
“If you have a very rich county like Campbell County that has a lot of oil money, you may have a very good system,” Burt said, noting the northeast Wyoming county jail’s juvenile pod, education and recreation programs. But in other places, juvenile hall consists of solitary confinement within an adult jail.
All that variation from county to county is one of her center’s biggest concerns, said Sheen. In addition to the variation and the over-prosecution that she suspects, she also said there’s an overall lack of guidance from the state.
“Diversion programs, non-court processes would be much more appropriate,” she said.
But both Burt and Sheen see little legislative appetite for a major overhaul of juvenile justice services.
Yet, at least one more tweak is expected next year: the Joint Judiciary Interim Committee has approved a bill making it easier for counties to win some state juvenile justice grants.
The Children’s Law Center plans to advocate an amendment requiring collection of statistics on courts and juveniles: what kind of cases come up, which court hears them, what’s the sanction and what’s the rate of reoffending?
“We want to build up a framework for measuring all that,” Sheen explained.
The next legislative session begins in January.
WASHINGTON, D.C. – Thirteen advocates and professionals from around the country who serve as advisors to the federal office for juvenile justice met for two days last week in Washington, D.C., to share information on reforms and funding at the state and federal levels.
The Federal Advisory Committee on Juvenile Justice, which normally meets online every few months, gathered face-to-face for the first time in a year. Its last online meeting occurred Aug. 10.
Some of the reforms the committee discussed lie within the federal Office of Juvenile Justice and Delinquency Prevention itself. Melodee Hanes, the acting office administrator, told committee members on the opening day of the meeting that a structural reorganization of her office, which has been in the works for months, would be announced soon. The office is also close to releasing its program plan for next year, she said.
The associate administrator for budget and planning, Janet Chiancone, described to the committee a “mixed” outlook for federal funding for juvenile justice in the 2013 fiscal year. Federal money for programs administered by the federal juvenile justice office has steadily fallen from $461.5 million in fiscal year 2009 to $277 million in fiscal year 2012, a 41 percent decline, she said.
Although the 2013 fiscal year began Oct. 1, a gridlocked Congress has yet to reach a budget deal. The proposed House budget for 2013 further slashes funds for OJJDP programs to $214 million, while the Senate version increases funding from last year’s level for the OJJDP to $299.5 million, she said. Both chambers are in recess until after the presidential election.
On Friday, committee members were briefed on changes in federal and state legislation on juvenile justice in recent years, trends that speakers said were driven by falling rates of juvenile crime, declining youth incarceration rates, the availability of better research and a shift away from treating children like adults under the law.
Friday’s speakers included Nancy Gannon Hornberger, executive director of the Washington-D.C.-
based Coalition for Juvenile Justice – a network of citizens, advocates and professionals from every state who advise their local governments on juvenile justice issues and monitor their adherence to federal guidelines -- and Bart Lubow, director of the juvenile justice strategy group for the Annie E. Casey Foundation, a Baltimore-based nonprofit that has played a key role in funding reform initiatives around the country.
Sarah Brown, a senior researcher at the National Conference of State Legislatures, a bipartisan group of state legislators and their staff, described her recent report on trends in state legislation on juvenile justice in the last 10 years.
Speaking from Colorado via videoconference, Brown pointed to three separate rulings since 2005 by the U.S. Supreme Court that have adjusted federal standards for juvenile sentencing by abolishing the death penalty, life sentences without parole for non-homicides, and mandatory life sentences without parole for juveniles. These rulings reflect the impact of new research on adolescent development and highlight how many states are shifting toward treating juvenile offenders differently than adults, she said.
Between 2001 and 2011, 20 states passed laws to expand the jurisdiction of juvenile courts, such as by raising the age limit for juvenile offenses, she said. Other state trends include the passage of legislation improving young people’s access to sound legal defense, reallocating funds from correctional facilities to community-based alternatives, and focusing on young people’s mental health needs.
At least 10 states have passed laws to address racial disparities in the detention and incarceration of youth in the last 10 years, Brown said. And more than half of all states have passed laws aimed at supporting young people once they are released from detention or confinement.
Hornberger, who has lobbied Congress for system reform for 25 years, provided historical perspective on the trends affecting federal policy changes and provided recommendations for future legislation, including the long-overdue reauthorization of a sweeping federal bill on juvenile justice that was first passed by Congress in 1974.
“Generally, Congress has regarded juvenile justice and delinquency prevention to be a limited role,” Hornberger said. However, the 1970s brought a significant shift in the way people thought about the detention and incarceration of youth, their treatment as status offenders, their placement in adult jails, and their separation from adult offenders by sight and sound, she said.
The resulting federal legislation, the sweeping Juvenile Justice and Delinquency Prevention Act of 1974, marked “a sea change” that forced states to meet federal standards on how to treat youth within the justice system, Hornberger said. Subsequent reauthorizations of the Act in the 1980s and 1990s added more requirements for states, including new rules asking states to explore racial disparities in their confinement of youth.
Last reauthorized 10 years ago, the Juvenile Justice and Delinquency Prevention Act was due for reauthorization again in 2007 but has languished in Congress. Although a U.S. Senate committee has twice approved the reauthorization in recent years, the bills did not make it to the Senate floor. The House of Representatives has not acted on a reauthorization bill nor any legislation to do with juvenile justice in the last six years, Hornberger said.
Hornberger remains stoic. The 2002 reauthorization took six years to push through, she said. “It’s always been a long haul to get this Act reauthorized.”
In general, federal policy on juvenile justice has traditionally swung like a pendulum, with equilibrium rarely in the middle, she said. “Members of Congress are consistently going back and forth between punitive and rehabilitative approaches.”
Policy swings are frequently affected by changes in leadership, whether in the White House, on congressional committees, or within the Office of Juvenile Justice and Delinquency Prevention itself, she said.
Congressional legislation still demonstrates a trend toward criminalizing normal adolescent behavior, such as underage drinking or sexting, Hornberger said. And federal legislators are still wrestling with the choices of institutionalized care versus family and community-based solutions, she said.
“There have been trends in time where national policy has really spurred state reforms,” like in the 1970s, Hornberger said. But these days, national policy is playing catch-up with reforms initiated by national foundations and some states, she added.
While federal trends in legislation and policy so far appear promising, the legislative progress is fragile, she warned -- especially in critical areas like the consideration of adolescent development and racial and ethnic disparities.
Speaking after Hornberger, Lubow gave a spirited presentation that made clear he too thought there was lots of room for improvement.
For every 100,000 young people in the United States, 336 are locked up, the highest rate in the developed world, he said. South Africa is in second place, at nearly one-fifth the rate of the United States. This could not be explained by disparities in juvenile crime, he said.
“We lock kids up in this country for a lot of minor stuff. In fact, we lock them up for things that we do not lock adults up for,” Lubow said. “We do that, frankly, because adults are bullies. When we get frustrated with kids who do not follow our rules, we throw them into detention centers.”
What would happen, he asked, if judges and law enforcement could not fall back upon incarcerating kids when they were angered and frustrated by their behavior? “What positions, what creativity, what alternatives would we come up with?” he asked.
Necessary innovations include limiting the types of young offenders who get incarcerated, increasing non-residential community alternatives to incarceration, and changing the financial incentives for local governments to keep their children within their own system and not the state’s, Lubow said.
Sometimes reforms only happen after someone takes off a shoe and bangs it on the table, Lubow told the committee.
Photos by Kaukab Jhumra Smith
Pennsylvania’s General Assembly last week, on the last day of its session, voted to end the automatic life without parole for teens convicted of first- or second-degree murder. But some advocates say the new scheme misses the point of real reform.
Senate Bill 850 sets the minimum sentence for first-degree murders committed by 15- to 17-year-olds at 35 years. For younger teens, it’s 25 years.
New second-degree murder minimum sentences would be broken up in the same tiers: 30 years for older teens; 20 for younger ones.
The bill is now on the desk of Pennsylvania Gov. Tom Corbett. According to AP reports, he is likely to sign.
That replaces a mandatory sentencing scheme that sent such teen offenders to life without parole or even death. Pennsylvania is among the first of about 25 states that still need to change those mandatory sentences for young people after the U.S. Supreme Court declared them unconstitutional earlier this year.
But the new bill is “harsher than it needed to be, it left a lot of what the U.S. Supreme Court told us on the table,” said Marsha Levick, deputy director and chief counsel of the Philadelphia-based Juvenile Law Center.
The U.S. Supreme Court ruling in Miller v. Alabama this June said that young people are more impulsive, more capable of change and less mature and less able to make good judgments than adults. Thus, the court argued, juveniles convicted of murder must be given a sentencing hearing and judges must take into account mitigating factors such as age, past experience with the courts, family history, or mental illness. That rules out mandatory sentences.
Levick said she believes the U.S. Supreme Court is advising “a different paradigm” that’s more flexible, individualized and sensitive to research on adolescent brain development.
Decarcerate Pennsylvania, a grassroots group fighting to end and reverse prison expansion, also argued against the bill. Their official statement argues that new sentencing rules should make “meaningful and substantive” change.
“The bill does not honor the spirit of the U.S. Supreme Court decision which asserts that children should be sentenced in a way that holds them accountable for their mistakes while also recognizing their youthfulness and their potential for change,” reads a statement the group released.
The new sentencing rules were amended onto an existing bill in September, the first chance Pennsylvania had to make a change after the Miller ruling.
Decarcerate Pennsylvania’s statement argued that the process was too fast, lacking public debate and discussion, and closing an opportunity for “substantive, thoughtful” legislation.
Levick thinks the door is closed on a redo, predicting the General Assembly will have no “appetite” to revisit juvenile murder sentencing.
The bill is not retroactive either, so does not apply to Pennsylvania’s 500 or so lifers, though Levick is arguing a case at the state Supreme Court that could make them eligible to apply for resentencing.
Oral arguments have already been made, but the state supreme court has yet to announce a date for its opinion.
Massachusetts looks likely to raise the age of criminal jurisdiction to 18 next year, and may make more changes as nearly simultaneous new rules from the federal government, a U.S. Supreme Court decision and a report from the state’s Child Advocate nudge Boston lawmakers toward more reforms.
“I think there’s a lot of support” to raise the age, said state Rep. Kay Khan (D-Newton), chair of the Joint Committee on Children, Families and Persons with Disabilities, as well as House sponsor of an age-raising bill that passed House and Senate committees this year.
Right now, Massachusetts reserves juvenile proceedings for those under 17. Khan’s House Bill 450 simply replaced the word “seventeen” with “eighteen.”
“I’ll be working on that pretty steadily and heavily. It just doesn’t make any sense not to do that,” said Khan.
That work comes as the U.S. Supreme Court and judges in state courts are more often echoing advocates for more flexibility in youth sentencing, on an argument that youths are still developing mentally and more capable of reformation than adults.
Lael Chester, executive director of Citizens for Juvenile Justice, a Boston nonprofit, supports raising the age, pointing out to start with that it is inconsistent. “Seventeen-year-old kids are considered adults for criminal purposes and basically nothing else. They can’t sign a contract, can’t vote, can’t serve on a jury,” she said.
“You throw PREA in the mix and it’s going to be interesting,” she commented, referring to the new federal Prison Rape Elimination Act regulations. Those regulations require under-18s to be detained separately from adults without resorting to separate isolation in grown-up lockups.
“One of the easiest ways for us to fix it is just to include 17-year-olds in our juvenile justice system,” argued Chester.
Raising the age is one of the recommendations that came out of Massachusetts state Child Advocate Gail Garinger’s annual report, published earlier this month.
Garinger also recommended a statute to limit the indefinite detention of youths found incompetent to stand trial, writing that it “is needed to satisfy constitutional due process requirements.”
Additionally, the report recommends different oversight of whether and when a child in state custody should take psychotropic medications, such as antidepressants. Right now, judges decide on a child’s treatment plan. Writes Garinger, “this practice has been in place for almost 25 years and has not been evaluated to determine its efficacy.”
Khan said next year, she thinks she will resubmit her House Bill 1421, part of which directs the Department of Youth Services and the Department of Public Health to better identify and meet mental health needs of youth in custody.
“I feel it’s very important, I don’t think we’re really addressing mental health issues of juveniles who come into the system, who come into the courts. I think there’s more that we could be doing,” Khan explained.
Grainger made one more key juvenile justice point: Massachusetts must also change a law that mandates life without the chance of parole for people as young as 14 who commit murder I. Earlier this year, the U.S. Supreme Court declared such mandatory, one-size-fits-all sentences unconstitutional. About half of the states, such as Massachusetts, need to set some other minimum sentence.
“I think there needs to be (sentencing) discretion at both ends,” said Chester, both at a youth’s first sentencing hearing, and at a review after serving some time.
She’s not the only one uncomfortable with juvenile life without parole. At the high-profile 2010 murder trial of John Odgren, a young man who had mental health issues and was 16 at the time he murdered James Alenson, Middlesex Superior Court Judge S. Jane Haggerty handed down the only sentence she could: life without a chance of parole.
But the judge also said, “I have some concern with the statute that mandates that the defendant and other juveniles 14 or older be sentenced as adults for first-degree murder.”
She said Odgren’s guilty verdict was just, but the sentence had tragedy in it.
There are about 60 Massachusetts individuals serving time like Odgren, for murders committed when they weren’t yet 18 years old.
The Massachusetts state legislature begins its next formal session in January.