The juvenile justice movement has achieved notable successes in recent years both at the judicial and legislative branches of government. There is still much more work to be done. The recognition that kids are different has animated much of this positive change. Still, too many juveniles remain in prison, confined to life without the possibility of parole (LWOP) sentences, languish in solitary confinement, face transfer too easily to adult court, and suffer punishment disproportionately based on race or ethnicity.
First, let’s examine the positive developments. The United States Supreme Court has recognized what groups like the American Psychological Association [see excerpt from the APA brief in Graham v. Florida (2010) in the accompanying sidebar on page xx] and the American Academy of Child Adolescent Psychiatry and the have been saying for years – juveniles are different than adults. Their brains are not as fully developed; they do not appreciate the gravity of their actions; they are more prone to make impulsive and risky decisions; they are not as culpable as adults; and most importantly they are more amenable to rehabilitative efforts.
Positive Supreme Court Trend
The Court recognized these differences in Roper v. Simmons (2005), ruling that it violated the Eighth Amendment’s prohibition on cruel and unusual punishment to execute an individual who committed murder as a juvenile. “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character,” wrote Justice Anthony Kennedy for the majority. “From 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.”
Five years later the Supreme Court ruled in Graham v. Florida (2010) that it violates the Eighth Amendment to sentence a juvenile to life without the possibility of parole for a non-homicide offense. The juvenile in question – Terrance Jamar Graham – had committed robberies but did not kill anyone. His parents were addicted to crack cocaine when he was born and he suffered from severe attention deficit disorder as a youngster. Sadly, he made bad and costly choices to engage in criminal behavior.
However, Justice Kennedy once again emphasized the differences between juveniles and adults. “Roper established that because juveniles have lessened culpability they are less deserving of the most severe punishments,” he wrote. “A juvenile is not absolved of responsibility for his actions, but his transgression is not as morally reprehensible as that of an adult.”
The Court followed this opinion with its decision in the consolidated cases of Miller v. Alabama and Jackson v. Hobbs (2012). The Court ruled that juveniles convicted of homicide offenses cannot automatically receive a mandatory life without the possibility of parole sentence. In other words, the juvenile defendant must have the opportunity and[KH1] the court must consider other possible sentences.
Once again, the Court built upon its previous decisions. “Roper and Graham establish that children are constitutionally different from adults for purposes of sentencing,” wrote Justice Elena Kagan for the majority. “Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.”
Finally, in Montgomery v. Louisiana (2016), the Court ruled that its landmark decision in Miller v. Alabama (2012) was retroactive, meaning that it could be applied to individuals convicted as juveniles even decades earlier – such as 68-year-old Henry Montgomery who killed a deputy sheriff when he was only 17 years old. Once again writing for the majority, Justice Kennedy wrote that “Miller announced a substantive rule of constitutional law.”
These series of Supreme Court victories for the juvenile justice movement in Roper, Graham, Miller, and Montgomery signaled a sea change. The Court fundamentally recognized that kids are different and should be treated differently by the criminal justice system.
In a 2012 Iowa Law Review article, The Miller Revolution, Cara H. Drinan referred to the above mentioned Supreme Court decisions as a “juvenile justice revolution.” The Court’s decisions have caused many states to pass laws that eliminate some of the more, tough-on-crime, overly punitive approaches to juvenile offenders.
According to The Sentencing Project, 28 states and the District of Columbia have changed their laws concerning juveniles sentenced to life without parole. “Policy Brief: Juvenile Life Without Parole: An Overview.” Many states have eliminated the sentence of life without the possibility of parole for juvenile offenders. Others have amended their codes to specifically provide for the possibility of such offenders being paroled after a period of time, such as fifteen (15), twenty-five (25), or forty (40) years. Still other state laws mandate individualized sentencing hearings and prohibit the mandatory imposition of LWOP, as Miller instructed.
Thus, state laws enacted after the Supreme Court decisions generally give judges more discretion in sentencing – deciding each case on an individual basis, rather than issuing an automatic or mandatory punishment.
Need for More Changes
While there has been a juvenile justice revolution, problems persist and more work needs to be done. Too many juveniles with mandatory life sentences remain languishing in prison years after their crimes. Thirty (30) states still allow for mandatory life without the possibility of parole sentences.
Perhaps most tellingly, Henry Montgomery, now in his 70s, was denied parole by the Louisiana Board of Pardons and Committee on Parole. See Grace Toohey, “Board denies parole to man who served more than 50 years after killing deputy when he was juvenile,” The Advocate, Feb. 19, 2018. The Board’s decision was 2-1. The dissenting vote was cast by Alvin Roche, Jr. In my opinion, Henry Montgomery will become a productive member of society, if allowed a second chance," Roche said. Sadly, he didn’t get the chance.
But, the problems in the system extend far beyond the sad tale of Henry Montgomery. Too many juveniles are subject to sexual abuse, physical abuse, and other brutal conditions of confinement, such as solitary confinement. Solitary confinement causes extreme psychological harm and can lead incarcerated juveniles to commit suicide. A bill introduced in Tennessee cites a study by the Department of Justice that “sixty percent of young people who committed suicide in custody had a history of being held in isolation.” Bills in several states have been introduced to eliminate this practice.
Too many children are transferred to the adult sentence under the mantra of adult crime, adult time. The problem is that once a juvenile is transferred to the adult system, chances of rehabilitation decrease and the likelihood of recidivism increases. Furthermore, it runs counter to the original ideal behind creating juvenile courts.
Finally, the pernicious problem of racial disparities continues to plague the juvenile justice system. African-American and Latino youth continue to receive more juvenile life without the possibility of parole sentences, the disproportionate share of transfers to adult courts, stiffer sentences, and ostensibly harsher treatment in general. As the California Alliance Youth & Community Justice writes in their study “Treat Kids as Kids”: “African-American and Latino youth are overrepresented at every stage of the juvenile justice system.” As long as that continues, it is hard to say that justice has been achieved.
David Hudson is a First Amendment and juvenile justice expert and law professor. He is a regular contributor to Preview of United States Supreme Court Cases.
Research in developmental psychology and neuroscience—including the research presented to the Court in Simmons and additional research conducted since Simmons was decided—confirms and strengthens the conclusion that juveniles, as a group, differ from adults in salient ways the Court identified. Juveniles—including older adolescents—are less able to restrain their impulses and exercise self-control; less capable than adults of considering alternative courses of action and maturely weighing risks and rewards; and less oriented to the future and thus less capable of apprehending the consequences of their often-impulsive actions. For all those reasons, even once their general cognitive abilities approximate those of adults, juveniles are less capable than adults of mature judgment, and more likely to engage in risky, even criminal behavior as a result of their immaturity. Research also demonstrates that “juveniles are vulnerable or susceptible to negative influences and outside pressures, including peer pressure, while at the same time they lack the freedom and autonomy that adults possess to escape such pressures. Simmons, 543 U.S. at 569. Finally, because juveniles are still in the process of forming a coherent identity, adolescent crime often reflects the “signature”—and transient—“qualities of youth” itself…rather than an entrenched bad character. Research has documented that the vast majority of youthful offenders will desist from criminal behavior in adulthood. And the malleability of adolescence means that there is no reliable way to identify the minority who will not.
Consistently with these recognized developmental characteristics of adolescents, recent neuroscience research shows that adolescent brains are not yet fully developed in regions related to higher-order executive functions such as impulse control, planning ahead, and risk evaluation. That anatomical immaturity is consonant with juveniles’ demonstrated psychosocial (that is, social and emotional) immaturity.
Graham v. Florida (2010) Brief for the American Psychological Association, American Psychiatric Association, National Association of Social Workers, and Mental Health America as Amici Curiae Supporting Petitioners
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