Lawyers and Parents Should Know”
Sunday, Aug. 10, 10:30 a.m. – noon
Room 202, Hynes Convention Center
Parents know instinctively, and psychologists and criminal defense attorneys have long argued, that the adolescent brain is different from the brain of a child or an adult.
“A 14-year-old is not a 40-year-old,” said Massachusetts Juvenile Court Judge Jay Blitzman, moderator of the ABA Commission on Youth at Risk’s panel, “The Adolescent Brain: What Lawyers and Parents Should Know” Sunday, Aug. 10, 10:30 a.m. – noon at Hynes Convention Center, Level 2, Room 202.
The Massachusetts state Supreme Judicial Court made a ruling last year in Diatchenko v. District Attorney that may allow 50-year-old Gregory Diatchenko, who at 17 years old stabbed a man to death, the opportunity for parole and freedom. The state high court ruled that sentences of life without parole failed to consider a young defendant’s likelihood of rehabilitation. At the heart of the decision is the recognition that it is unjust to mandate a life sentence for youth convicted of homicide without considering mitigating factors, including an immature brain.
An explosion of brain research has shown that the less-formed brains of the young make them morally less responsible (although they become more responsible morally as they mature). So condemning them to prison, advocates contend, overlooks major advances in science. Indeed, studies show that the immature brain may make adolescents more likely to engage in reckless behavior than when they are older. Such brain research has already had an impact on law and policy, reversing the trend of treating juveniles like adults. In the 1990s, there was a prediction of rising youth violence as a result of this, which has now been discounted.
Over the past seven years, the principle of treating juveniles separately has influenced Supreme Court decisions, including a 2005 ruling that banned the death penalty for juveniles; a 2010 ruling that barred life imprisonment for juveniles convicted of crimes other than homicide; and in 2012, the high court struck down mandatory life sentences for juveniles convicted of first-degree murder as “cruel and unusual punishment” under the Constitution.
These decisions may lead to resentencing hearings for about 2,000 inmates — some of them now well into middle age — in more than two dozen states serving life-without-parole sentences for homicide committed when they were under age 18. A majority of the states have not yet passed any statutory reform. Those that have often impose decades-long minimum sentences and few have made the high court’s rulings retroactive.
“Mandatory processing in an adult court meant mandatory adult sentences,” said Naoka Carey, executive director of Citizens for Juvenile Justice, a nonprofit, statewide organization working to improve the juvenile justice system in Massachusetts. “A number of progressive states are moving to hold juveniles appropriately age accountable. But not everywhere; it’s a process, it’s not linear.”
Despite the high court ruling, many minors may still stay in prison for life. North Carolina enacted a pro-eligibility statute of 65 years. And Iowa’s Gov. Terry Branstad commuted the life-without-parole sentences of some 40 juvenile offenders, but permits them eligibility for parole only after 60 years in prison.
“All of the recent Supreme Court cases have a recurring mantra —youth are different,’’ said Blitzman. “The spirit of the cases is that there should be an opportunity for meaningful and individualized review. That’s not to say that kids are not culpable, but they are culpable in different ways than adults. What lawyers are trying to do now is transfer or connect the research to practice. These efforts obviously affect homicide cases. But they also affect issues of proportionality and employing more of a developmental lens in other contexts, including school disciplinary regimes, mandatory sentencing and child welfare programming.”
Massachusetts families of homicide victims decried the state’s juvenile parole legislation. Bltizman acknowledged that homicide cases are particularly challenging.
“That’s part of the debate,” he said. “Every time there is a parole hearing, aggrieved families are arguably being aggrieved again. That’s always an issue.”
Other speakers on the panel include: The Hon. Roderick Ireland, chief justice, Massachusetts Supreme Court; Marsha Levick, co-founder, deputy director and chief counsel of Juvenile Law Center, Philadelphia; David Fassler, M.D., child psychiatrist, University of Vermont College of Medicine; Adriana Galvan, Ph.D., adolescent psychologist, University of California at Los Angeles; Xavier McElrath-Bey, M.A., youth justice advocate, Campaign for the Fair Sentencing of Youth, Washington, D.C.