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August 11, 2017

Lamenting the role of prosecutors in continued pursuit of juve LWOP sentences

This New York Times op-ed by Rashad Robinson zeroes in on the role of prosecutors in the continuance of juve LWOP sentences in the wake of Graham and Miller.  The piece is headlined "No Child Deserves a Life Sentence. But Try Telling Prosecutors That." Here are excerpts:

In 2012, the Supreme Court took a step toward righting a terrible wrong by banning mandatory life sentences without the possibility of parole for children. Last year, the court said that ban should apply retroactively: It told prosecutors to conduct resentencing hearings for the approximately 2,500 people who were serving life sentences for crimes they committed as adolescents. Many of them had been in prison for decades.

But if you walked into many courthouses today, you wouldn’t know that the Supreme Court had called for resentencing these juvenile offenders, the majority of them black. That’s because prosecutors are choosing to pursue life-without-parole sentences for these cases again.  Part of the problem is that the court kept the door open for overreach when it allowed prosecutors to impose a life sentence on the rare defendant who is “irreparably corrupt” and “permanently incorrigible.”

Consider Michigan, where prosecutors are denying parole or shorter sentences for 60 percent of juvenile lifers, even in cases where parole boards have recommended them. In Oakland County, northwest of Detroit, the share is a whopping 90 percent. While nearly half of all juvenile lifers are concentrated in Michigan, Pennsylvania and Louisiana, prosecutors elsewhere, like Scott Shellenberger in Baltimore County, Md., who has opposed ending such sentences for children, have also effectively thumbed their nose at the court’s ruling.

On top of this, many prosecutors are resentencing juvenile lifers to de facto life-without-parole sentences. The district attorney of Orleans Parish in Louisiana defended a “reduced” sentence for a juvenile lifer to a term that would have let him leave prison at age 101. (A Louisiana Supreme Court justice later reprimanded the district attorney for this “stunning” and “constitutionally untenable” position).

This is happening not because our prisons are full of unrepentant juvenile offenders who can never be rehabilitated, but because of a racist structure of perverse incentives that encourages prosecutors to pursue mass incarceration instead of justice.

For decades, prosecutors have sought high conviction rates and long sentences in the belief that appearing tough on crime would advance their careers. Indeed, prosecutors in any given local district or state attorney’s office, from the most junior rookie to the top elected official, tend to view their career prospects through the lens of average sentence length....

Black communities have borne the brunt of this overzealous approach, and racial disparities can be found anywhere prosecutors have control over sentences.  But in recent years, this racist incentive structure has begun to shift, as multiracial coalitions led by black Americans have elected prosecutors across the country who value safety and justice.  This is no liberal pipe dream, but it does require sustained activism and perseverance.  That’s what it took last November when voters in Chicago, Houston and other cities ousted prosecutors who were not serving their interests and elected reform-minded candidates. In those cities, community advocates and my organization, Color of Change, helped make criminal justice issues a key part of the debate.

But communities must work to hold all prosecutors accountable, even those who promise reforms.  Prosecutors are the most powerful actors in the criminal justice system; they aren’t going to start caring about the Supreme Court’s rulings on juvenile sentences and other vital reforms until voters give them a reason to.

Though there are evident racial skews in who gets subject to the most severe sentences in the US, I struggle to understand just how the political pressure and benefits that prosecutors experience from appearing tough on crime amounts to a "racist incentive structure."  Having prosecutors regularly subject to voter concerns through local elections creates what might be called a "politicized" or "majoritarian incentive structure," but I am not sure I see how the label "racist" is a sensible or helpful way to describe the traditional election process facing many local prosecutors.  I wonder if this author would likewise assert that mayors or local representatives (or other elected local officials who also can in various ways impact the operation of criminal justice systems) are subject to a "racist incentive structure" that impacts their governmental decision-making.

Because this op-ed ai part of a wave of important recent advocacy and scholarship emphasizing the importance of prosecutorial decision-making, I do not wish to make too much of my puzzlement over the assertion that local prosecutors are subject to a "racist structure of perverse incentives."  But I do wish to hear from anyone who might help me better understand what the author has in mind when referencing the "racist incentive structure" facing prosecutors.

August 11, 2017 at 05:13 PM | Permalink


Nothing unusual here. The USSC made same mistake they made when they allowed the plea bargain that was to only be used in the worst cases the hardest cases. No the Skywalker.

Now they are 99% of all cases

Posted by: rodsmith3510 | Aug 11, 2017 10:47:25 PM

An incentive structure is racist if similar crimes are treated differently by the race of the defendant. That is what is should mean.

What it means in the NY Times, is that more blacks are sentenced, and more harshly. Rashad forgot. Blacks commit 4 times as many murders, mostly of black murder victims. They also kill many times as many whites as whites kill blacks. There are tens of thousands of rapes of white women by blacks. There is no rape of black women by white men, not one. If you subtract most black law abiding citizens, what remains is adult black males, around 3% of the total population. They commit 90% of the murders by blacks. It is therefore not 4 times the rate expected for their fraction of the population. These black thugs commit ten times the expected number of murders.

What Rashad is also not disclosing? A higher proportion of whites were killed by the police than their fraction of the murders would indicate. The police kills white criminals out of proportion to the number of crimes and murders that whites commit.

Then, the black organized crime and serial killers of competitors in the drug trade hire underage organized crime assassins knowing they have to be coddled by pro-criminal judges. These judges are truly racist, markedly undervaluing the lives of black murder victims.

Rashad is a race whore. He makes an excellent living calling other people racist. He is, of course, the most heartless, biggest racist of all, the biggest danger to black crime victims. Why on earth would he want to hurt already suffering black crime victims? To generate government make work jobs for registered Democrats.

"No child deserves a life sentence without parole." OK. This child is 17. Makes $million a year, tax free, of course. He has fathered a half dozen children by as many hussies. What were you doing when you were 17, Prof. Berman?

I would support the families of black murder victims' finding Rashad. Just beat his ass. Deniers like him do not argue in good faith. Facts and data will not influence someone driven by the rent.

Posted by: David Behar | Aug 12, 2017 12:04:12 AM

I got banned from Facebook, again. I said, most feminists are not attractive women. I have been banned for posting a picture of a hipster haircut and a Nazi Army field haircut. They are identical. Not allowed.

Here is something relevant to sentencing. A post was about a movie on the high rates of rape among Native American women. I commented, you are at the zoo. You climb a high fence. You cross a moat. You are in the lion's den. You get scratched and bitten. Whose fault is that?

That meant, Native American males have triple the alcoholism rate. Women can reduce the risk of rape by reducing their exposure to high risk situations, such as the vicinity of criminals and intoxicated males. You do not get into Mike Tyson's limo at 3 AM. You do not go to his hotel room. You jump out at the light, and call a cab company.

I got hundreds of accusations of being a rapist and a pedophile. Those feminist accusations were against someone they never met, and who did nothing wrong to them. Those allegations had a rate of being false of 100%. What if I were someone the feminist knew, who had offended her by rejecting her stalking because she made me feel terrible instead of making me feel good? What could the rate of false allegation then be?

All sex allegations should be screened with a polygraph examination. All false allegations should get the Martha Stewart sentence for making a false statement to an FBI official, in her living room, not under oath, about not getting a phone call. 5 months in prison, 5 months house arrest, 2 years probation. To deter.

This is also a request for the next edition of Prof. Berman's book. False allegations to a government official. All falsely accused males should get a writ of mandamus on the prosecutor to arrest the false accuser, try her, and imprison her.

Posted by: David Behar | Aug 12, 2017 9:53:10 AM

I don't necessarily see going for LWOP sentences for the majority of such offenders being outlandish. Mostly I don't see that the group that finally end up with LWOP sentences should be judged from within the cohort that received LWOP before Montgomery and Grahm, but instead against the universe of all juvenile offenders. It may well be that the correct sorting was already performed.

Posted by: Soronel Haetir | Aug 12, 2017 1:53:57 PM

Accusers are judgement proof. They do not work that hard. Nothing short of prison is acceptable here.


Posted by: David Behar | Aug 12, 2017 3:13:00 PM

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