In Jones v. Mississippi, 141 S. Ct. 1307 (2021), the Court declined to make a finding that a finding of permanent incorrigibility at the time of sentencing was a prerequisite to a sentence of juvenile life without parole. In abolishing mandatory juvenile life without parole in capital cases, Miller had noted that juvenile life without parole determinations should be uncommon because of the great difficulty noted in Roper and Graham of the great difficulty of distinguishing at an early age between the juvenile offender whose crime reflects unfortunate yet transient immaturity and the rare juvenile whose crime reflects irreparable corruption. Miller did not foreclose a sentencer’s ability to make that judgment in homicide cases but did require that sentencing decisions take into account how children are different and how those differences counsel against irrevocable sentencing to a lifetime in prison. Miller also identified five factors to be considered in determining whether to impose a sentence of life without parole on a juvenile: the youth’s age and immaturity, family home environment, circumstances of the offense including the role the juvenile had in the offence, and the influence of others (including older co-defendants). Montgomery, which made Miller retroactive, had held that it is impermissible to impose a juvenile life without parole sentence on a child unless that child is the rare individual who exhibits such irretrievable depravity that rehabilitation is not possible.
Advocates were hoping that this language would resonate in the Jones decision. But the court declined that option, perhaps believing that requiring a finding of permanent incorrigibility would effectively be the death knell of juvenile life without parole. The holding in Jones means that justice by geography will be the model; states will consider age as one factor in their juvenile life without parole calculus, and the design of their sentencing regimes will vary on issues such as parole eligibility. For example, Nevada has set a 15-year period prior to parole eligibility, while Nebraska has determined that 40 years be served before parole eligibility in juvenile life without parole cases. Josh Rovner, Juvenile Life Without Parole: An Overview, Sentencing Project Pol’y Brief (May 24, 2021). Experience has also shown that broad discretion without concrete guidelines contributes to an increased likelihood of exacerbating racial and ethnic disparities in all contexts.
However, while the Supreme Court sets the ground floor, each state can set its own ceiling in interpreting what constitutes cruel and unusual punishment through case law and legislation. As Justice Kavanaugh wrote, “our holding . . . does not preclude the States from imposing additional limits. … States may categorically prohibit life without parole for all offenders under 18.” Jones v. Mississippi, 141 S. Ct. at 1323. The opinion does not reverse Miller or Montgomery, which permits each state to consider youth as a mitigating factor in discretionary sentencing and to adhere to the precepts that juvenile life without parole should be rare or uncommon. Each state designs the contours of its juvenile system in all contexts. This includes the issue of juvenile life without parole as well as key issues, which include the minimum and maximum age of juvenile court jurisdiction.
The Center for Law, Brain and Behavior at the Massachusetts General Hospital is dedicated to applying behavioral research and science to the law. Their 2022 white paper on the science of late adolescence exemplifies the “let’s follow the science” movement. Catherine Insel et al., Ctr. for Law, Brain & Behav., Mass. Gen. Hosp., White Paper on the Science of Late Adolescence: A Guide for Judges, Attorneys, and Policy Makers (Jan. 27, 2022) [hereinafter CLBB White Paper]. The white paper’s goal was to produce a document that summarizes the latest research in order to inform practice and assist in the development of policy. The study also offers guidance in applying science to practice. The white paper suggests that the Jones v. Mississippi decision almost certainly signals the end of further expansion at this time of SCOTUS Eighth Amendment cruel and unusual protections to juveniles. Id., Exec. Summary at 1. However, the legal framework established in the Roper-Graham-Miller-Montgomery line of cases has been incorporated to varying degrees into state statutes and case law and offers the possibility for a more robust application of Miller.
“The Miller approach also remains viable for pursuing expansion of those categorical protections to 18 and beyond, and perhaps for raising the age of full criminal culpability.” Id. Miller relied in large part on the concept of the “transient immaturity,” which is a hallmark of adolescence. As noted above, in Roper, the Supreme Court had opined that it is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity and the rare offender whose crime reflects irreparable corruption. Characteristics of transient immaturity include impulsivity, lack of appreciation of consequences, and cognitive capacity that has not been fully developed. Roper et seq., including Miller, recognized that the impulsive, reckless, and impetuous nature of foolish adolescent conduct and even seriously heinous misconduct cannot be relied upon to predict who that young person will become in adulthood. Decades of development research demonstrate that even most persistent and aggressive young persons will self-desist from serious misconduct with neurological and social maturity as they enter their 20s. This well-established science supports shifting the focus from having a court find “permanent incorrigibility” in individual cases (which simply cannot be established scientifically in a reliable manner) to a focus on “transient immaturity.” This focus is already established by robust developmental research and neuroscience and “may provide opportunities for counsel and courts at trial/sentencing phases and upon appellate review.” Id.
On July 28, 2022, the Michigan Supreme Court abolished mandatory life without parole for 18-year-old youths (People v. Parks, Docket No. 162086, 2022 Mich. LEXIS 1483) and on July 20, 2022, Massachusetts, based on analysis of what constitutes cruel and unusual punishment under article 26 of its Declaration of Rights, extended the scope of Miller hearings to include persons who were 18–20 years old at the time of their crimes. Commonwealth v. Robinson; Commonwealth v. Mattis, Super. Ct. Crim. Action No. 0084CR, CR 10975, SJC-09265; No. 1184CR11291, SJC-11693. The Massachusetts cases had been sent to the Superior Court for fact finding by the Massachusetts Supreme Judicial Court. If, as appears likely, the decisions are affirmed, this means that Massachusetts has now joined Washington. In March of 2021, the Washington State Supreme Court extended Miller analysis to 18–20-year-olds in companion cases that held that there are no meaningful developmental differences between 17-year-olds and many 18-year-olds. In re Personal Restraint of Kurtis William Monschke, No. 96772-5 (Wash.), consolidated with Dwayne Earl Bartholomew, No. 9677-33; filed Mar. 11, 2021. In a context other than life without parole, in 2014 the Iowa Supreme Court held that mandatory sentence for juveniles who had been transferred to criminal court violated their interpretation of cruel and unusual punishment. State v. Lyle, 854 N.W.2d 378 (Iowa 2014). However, the variability of how states may respond in the post-Jones world is reflected in a very recent decision by the Iowa Supreme Court in declining to extend Miller hearings to youths who have reached the age of 18. Dorsey v. Iowa, No. 19-1917, 2022 WL 2080221 (Iowa June 10, 2022). This decision raises the question of how state appellate courts might react to the Supreme Court’s “messaging” in Jones v. Mississippi.
The explicit reliance in the Supreme Court cases on developmental neuroscience and behavioral research offer models to apply science to advance evidence-based policy reform for juveniles throughout the early twenties. CLBB White Paper, supra, Exec. Summary at 2 (citing Leah Somerville, Searching for Signatures of Brain Maturity: What Ae We Searching For?, 92 Neuron 1164 (2016)). New neuroscience research demonstrates that during emotionally charged “hot cognition” circumstances, late adolescents (18–21) respond more like younger adolescents (ages 13–17) than like young adults (ages 22–25) due to brain maturation. Id. (citing Alexandra O. Cohen et al., When Is an Adolescent an Adult?, 27 Psych. Sci. 549 (2016)). Compared to young adults above 21, adolescents aged 18–21 take more risks and engage in more sensation-seeking behaviors. Id. (citing Laurence Steinberg, Adolescent Brain Science and Juvenile Justice Policy Making, 23 Psych., Pub. Pol’y. & L. 410 (2017)). Late teens are more likely to delay immediate gratification and are more responsive to peer involvement than are young adults. Late adolescents are also more easily swayed by adult influence and psychological coercion than the 21–25 age group. These developmental differences have direct implications in legal decision-making, including Miranda waiver, increased susceptibility of false confessions, and making trial versus plea decisions.
The science does not support a bright line drawn at age 18 for imposing accountability in the criminal justice system. Id. at 42. In addition, researchers stress the importance of the what is characterized as the age-crime curve. The age of peak offending occurs at ages 19–20 and then through the natural process of maturation declines dramatically thereafter. While it might seem counterintuitive, even violent offending at age 19 or 20 is not indicative of a trajectory or propensity towards a criminal career. Id. at 43; see also Edward Mulvey, Carol Schubert & Alex Piquero, Pathways to Desistance (Off. of Juv. Just. Delinq. Prevention 2014). “From a public policy perspective, this means that young offenders highly likely to desist with maturation—especially if provided with meaningful non-criminal opportunities—will instead accrue the collateral consequences of criminal justice involvement (e.g., criminal records, social labeling, forced affiliation with adult criminals if in prolonged detention or incarcerated). These collateral consequences over time . . . increase risk of criminal recidivism. …” (CLBB White Paper, supra, at 43.
Minimum and Maximum Ages of Juvenile Court Jurisdiction
Elizabeth Scott and Thomas Grisso have analyzed what they characterize as “the changing accounts” of legal policies affecting children and youth through a “developmental lens.” Elizabeth Scott & Thomas Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. Crim. L. & Criminology 137, 138 (1997). Narratives regarding adolescence have historically been informed by perception, which has included the pernicious and false stereotyping of certain youth as super predators. We now have the science that establishes the realities of childhood and adolescent development. In assessing the landscape of policy reform, it is important to consider the degree to which developmental research and science are actually applied to practice. As regards issues of late teens and young adults and the legal and policy questions that are implicated, it is important to consider recidivism rates in the juvenile and criminal systems. Simply stated, what works and what doesn’t work, and shouldn’t we use data to inform decisions regarding which models best protect public safety? If, as the research indicates and crime data reflect, the risk of offending peaks at age 20, doesn’t it make sense to consider questions such as whether to raise the age of juvenile court or to, perhaps, consider youth offender jurisdiction in the criminal system through an appropriate developmental lens? There is reason for cautious optimism that in spite of the holding in Jones policies are moving in the direction of looking at youth through a more appropriate developmental lens.
In 2018, Vermont became the first state to raise the age of juvenile court to 22, by phasing in over a three-year period. Vt. Stat. Ann. tit. 33, § 5102 (West 2020). A number of states have filed legislation to raise the age, but to date only Vermont has done so. Interestingly over half of the states have set no minimum age for juvenile court jurisdiction. The states of California, Delaware, Massachusetts, New York, and Utah have set the minimum age at 12. Raising the Minimum Age for Prosecuting Children, Nat’l Juv. Just. Network; see also Nat’l Juv. Def. Ctr. (now the Gault Center), Minimum Age for Delinquency Adjudication—Multi-jurisdiction Survey (data as of January 22, 2020). New Hampshire sets the minimum age at 13, Nebraska at 11 for all offenses, and 15 states set the age at 10. Id. Massachusetts’s minimum age of 12 is for all offenses.
Raising the minimum age of jurisdiction in some states reflects the realities of maturational competency—most youth below the age of 14 from this perspective are not competent to stand trial. The approaches to maturational competency in the United States are contrasted by international models that more closely align with the UN Convention on the Rights of the Child, which has recommended that a minimum age of criminal responsibility no lower than 14 should be the norm. Jay Blitzman, The State of Juvenile Justice, in The State of Criminal Justice 155 (Mark E. Wojcik ed., 2021). Countries that set the minimum age at 14 or higher include Argentina, China, Congo, Germany, Italy, Poland, Russia, Somalia, Spain, Sweden, and Ukraine. Id.. The American Bar Association has recommended that the minimum age of juvenile court jurisdiction be raised to 14. ABA Resolution 505 (Aug. 10, 2021).
Most states now set the maximum age of juvenile court jurisdiction at 18. As Marcy Mistrett has noted, “A decade ago raising the age was considered a high cost and risky investment. Today, research and outcomes have demonstrated that not only did the sky not fall, but proponents underestimated the successes to come.” Marcy Mistrett, Bringing More Teens Home: Raising the Age Without Expanding Secure Confinement in the Youth Justice System, The Sentencing Project (June 25, 2021). Eleven states have successfully raised the age to 18 since 2007 with very minimal and often temporary increases in the use of secure facilities. Id at 1. Long-terms declines in youth offending and arrests have been factors in the decline of secure juvenile confinement. Indeed, secure facilities continue to be closed or have excess capacity in many jurisdictions. Id.
There is also a correlation between reducing detention and reducing recidivism. See, e.g., Dana Shoenberg, How State Reform Efforts Are Transforming Juvenile Justice, Pew Charitable Trusts (Nov. 2019); Re-examining Juvenile Incarceration, Pew Charitable Trusts (Apr. 2015). Supporting positive youth development and the connective tissue of community and educational continuity are factors in this process. Reported increases of violence in some cities may well be related to the social disconnections of the pandemic. An important 2013 Office of Juvenile Delinquency and Prevention publication recommends that because of these reasons, secure detention and commitment should be reserved for palpable public safety circumstances. Richard J. Bonnie et al., Reforming Juvenile Justice: A Developmental Approach (2013). Youth are accountable, but consistent with their not being treated as little adults, principles of proportional accountability are important. State reforms that attempt to connect youth to community that have shown great promise include New York City’s Close to Home Initiative, which features closing New York’s upstate juvenile prisons, which contributed towards reducing secure and residential placement by 71% between 2013 and 2018. Allison Dikanovic, New York and Milwaukee Vary in Approach to Juvenile Justice, Observer-Dispatch (Sept. 14, 2019).
New York’s model included opening 29 semi-secure group homes in residential neighborhoods. In addition to decreasing the reliance on secure detention, the program has dramatically reduced recidivism by fostering educational and community connections; 91% of youth in the program engaged in community-based programming, passing all their classes, and 67% have successfully engaged in after-care. Id. The initiative has decreased systemic racial and ethnic disparities by decreasing entry into the detention process.
Another exciting model to watch has been launched in Los Angeles, which is engaged in a five-year overhaul of its juvenile justice system. Working with the W. Haywood Burns Institute, the initiative is moving to align policies with looking at issues involving youth through a developmental and community-based lens that includes renaming probation officers as youth development workers and incorporating principles of restorative justice. W. Haywood Burns Inst., Youth Justice Reimagined: Recommendations of the Los Angeles County Youth Working Group (Oct. 2020).
The question of how to address issues regarding late teens and early adults continues to be debated. Some commentators and experts suggest adapting European models, such as Germany’s, which provide for youthful offender treatment for the 18–24 age group, are less retributive, and result in lower rates of recidivism. Id. at 155. Some states have developed systems that focus on youthful offender models or programs in criminal sessions. The Young Adult Court (YAC) in San Francisco for this group was launched in 2015. Tim Requarth, A California Court for Young Adults Calls on Science, N.Y. Times, Apr. 17, 2017. The Columbia Justice Lab has studied key elements of specialized courts for emerging adults focusing on 18–24-year-old youth. Columbia Just. Lab, A Roadmap to Reform: Key Elements of Specialized Courts for Emerging Adults (Apr. 2021). Their report includes discussion of the San Franciso model, the Brooklyn Young Adult Court, and the Chicago Restorative Justice Community Court. The efficacy of these models is being studied. Id. at 24. Issues to address concerning such programs include the degree to which trade-offs are made with procedural justice–due process issues and the need not to look at court issues in isolation but to connect youth to community-based services and consider reform in all contexts.
Consideration of the age–crime curve discussed previously, referenced in the CLBB White Paper regarding the 18–21-year-old cohort, appears to be more aligned with raising the age of juvenile court jurisdiction. In a 2016 New York Times opinion piece, an impressive array of experts, including Laurence Steinberg, Thomas Grisso, Elizabeth Scott, and Richard J. Bonnie, observed that while it was clear that brain maturation continues past 18, the science was ambiguous as to whether the maturation level of a 14-year-old is similar to that of a 20-year-old and whether they should be treated in the same system. Laurence Steinberg et al., Don’t Treat Young Adults as Teenagers, N.Y. Times (Apr. 29, 2016). But consideration of this requires assessing not only issues of adolescent development but also the realities and nature of each state’s juvenile and criminal system. A jurisdiction such as Massachusetts, which affords the same due process protections for juveniles and adults (see, e.g., Mass R. Crim. Pro 1(b)), while featuring dramatically lower recidivism rates in its juvenile system than in criminal sessions, provides a compelling argument to raise the age of juvenile court involvement. Following the science as well as the data clearly supports raising the age for late teens in their peak years of offending in a system that is more rehabilitative and has half the rate of recidivism as the criminal system. Other factors to consider include the high rate of recidivism for people leaving jails and prisons and the capacity in most states, given declining juvenile detention numbers, to handle late teens in the age 18–21-year-old group.
The Massachusetts Department of Youth Services (DYS) has had a recidivism rate of approximately 25 percent over the past five years. Interviews with former DYS Comm’r Peter Forbes (Mar. 21, 2020), & Deputy Comm’r of Field Operations & Support Serv. Ruth Rovezzi (Jan. 25, 2021); see also Mass. Dep’t of Youth Serv., Juvenile Recidivism Reports for Discharged Youth, 2016–2017. These rates are contrasted by recidivism rates over 50 percent in the criminal system and the fact that 76 percent of people discharged from Massachusetts jails and prisons are re-arraigned within three years. Nat’l Ctr. for State Cts., Citizens for Juv. Just., CfJJ Fact Sheet (2022). The Massachusetts juvenile court system currently has jurisdiction of youth in delinquency proceedings until the age of 18–21 in youthful offender proceedings. In addition to having a specialized juvenile court and clinic system, with specialized training for judges and probation, subject matter jurisdiction includes child welfare jurisdiction until the age of 22. This enables juvenile sessions to consider issues involving youth, many of whom are dually involved in juvenile justice and child welfare matters through status offense or abuse and neglect cases in a contextual way. Issues concerning mixing young children and late teens are obviated if not eliminated by the reality that, compared to many states, very few youths are in DYS custody and very few are younger than 15. Id. This also means that the system could readily absorb treating 18–21-year-old youth. As noted, the state already does so as regards their youthful offender jurisdiction. Sixty percent of youth being discharged from DYS voluntarily continue to participate in the agency’s Youth Engaged in Services (YES) program, which reflects a commitment to positive youth development, educational continuity, and supporting the important social tissue of community connection and involvement. Treating 18- to 21-year-olds in juvenile court would also allow for more robust opportunities for diversion, including judicial diversion, which does not exist in the Massachusetts criminal system, and which reduces the effects of the collateral consequence of court involvement. Given the limited scope of expungement of court records in Massachusetts, this issue is quite significant. Another factor to consider in raising the age is that when a youth is discharged from court or DYS supervision at age 18 or age 21, they are no longer subject to court supervision. This contrasts with the criminal model, in which the majority of persons being discharged from jails and prisons are on probation, parole, or a combination of both. Probation violations, very frequently for violating conditions unrelated to re-offending, are key factors in detention and commitments. Yet another compelling argument for raising the age, or at least phasing in raising the age, to 19 is the fact that many 18-year-old youth are still in high school. When Massachusetts raised the age to 18 in 2013, the sky didn’t fall, and it is likely phasing in raising the age would work as well. The capacity is there—delinquency filings had decreased by over 40 percent prior to the pandemic. Early Impacts of the Criminal Justice Reform Act of 2018, Mass. Juv. Just. Pol’y Data Dashboard, JPPAD (Nov. 2019). The infrastructure to raise the age in Massachusetts already exists. Youthful offender treatment in the criminal sessions of the district court without similar supports and jurisdiction would result in nothing more than a “youth discount” in sentencing while not addressing issues affecting youth contextually.
Conclusions
The weight of the evidence from a developmental and public safety perspective supports raising the age of juvenile court jurisdiction for late teens (18–21). As discussed previously, the neuroscience and social-behavioral science summarized in the CLBB White Paper reveal no solid scientific basis for a line drawn at 18 to end juvenile court jurisdiction. CLBB White Paper, supra, at 42, 43. Drawing a line at 18 “will lead most late adolescents who offend (and most will not offend with serious crimes against persons) to penetrate the criminal justice system just before the time when the significant majority of middle and late adolescent youth will self-desist (the age crime-curve occurring at ages 19–20) even if they have been violent and persistent offenders when younger.” Id. at 43. Vermont has begun phasing in their raising the age of juveniles in court in one-year increments, and so far the results in terms of decreasing recidivism have been promising. Deborah Becker, Why Vermont Raised Its Juvenile Court Age Above 18—and Why Mass. Might Too, WBUR-NPR (Oct. 3, 2019); Kate Dodds, Why All States Should Embrace Vermont’s Raise the Age Initiative, Coal. for Juv. Just. (CJJ) (July 2020), https://www.juvjustice.org. It’s time to join Vermont.
