Sentencing Law and Policy

A closing thanks to Prof Drinan ... and an open invitation

As readers know, I was fortunate to have Professor Cara Drinan guest-blogging on her book, titled "The War on Kids: How American Juvenile Justice Lost Its Way," while I was on the road this past week. In addition to here expressing my thanks for her great work keeping this space warm while I was away, I also wanted to link all her postings here:

On Prof Drinan's book:

• The War on Kids Post #1
• The War on Kids Post #2
• The War on Kids Post #3 
• The War on Kids Post #4 
• The War on Kids Post #5

 Other postings:

• Virginia Asks Supreme Court for Delay in Resentencing Malvo
• Prison Nurseries? 
• The Modern Eighth Amendment 

In addition to closing out Prof Drinan's guest-blogging, I figured I would also use this post to note my general eagerness to help all sorts of folks utilize this soap-box in all sorts of ways.  As regular readers know, I can and often will do a single guest-post when someone sends me new information or thoughtful commentaries on sentencing topics.  And I am ever interested in having an array of authors guest-post about recent articles, reports or books.  I also welcome comments with suggestions on ways to get other voices in this space.

The War on Kids Post #5

In my last substantive guest post on Sentencing, Law & Policy, I’d like to address some of the juvenile justice reform measures that I think are achievable and worth pursuing in the post-Miller era. In the book, I devote a whole chapter to the reform frontier, and I refer to these measures as part of a war for kids.

Put kids back in juvenile court

For most of the 20th century, it was difficult and rare to move a child into adult court; juvenile court was the default for juveniles. We only moved away from that model because of fear-based and now-debunked theories about juvenile super-predators. As I mentioned in my first guest post, transfer laws have exposed juveniles to sentences that were drafted with adults in mind, including mandatory minimums and decades-long terms. Given what we know about adolescent brain development, and given that the Supreme Court has held that children are different for constitutional purposes, we should return to the default of keeping kids in juvenile court. Even in such a regime, a judge could still determine that extraordinary circumstances warranted transfer to adult court. But those rare, outlier cases should not dictate the norm for juveniles. Today, in the wake of the Miller trilogy, there is newfound traction to the claim that transfer laws (especially direct file laws) are unconstitutional and nonsensical.

Provide age-appropriate sentencing for juveniles

While children continue to be charged in adult criminal court, advocates should insist upon age-appropriate sentencing for them. At a minimum, this means seeking the abolition of juvenile life without parole, and that goal is on the horizon and achievable. Regardless of whether the Supreme Court declares a categorical ban, states are moving in this direction. Beyond this measure, advocates should insist that youth always be a relevant, mitigating variable at sentencing. In particular, consistent with the science of the Miller trilogy, it means that mandatory minimums should never apply to juveniles. I have made this argument before here, and I do in THE WAR ON KIDS, as well. Two states, Washington and Iowa, have already come to this conclusion, as I mentioned earlier this week.

Argue against incarceration for kids as a general matter

In my mind, a key component of a war for kids is the concept that incarceration is fundamentally damaging for juveniles and that we should avoid it whenever possible. This is perhaps one of the most controversial aspects of my agenda for juvenile justice reform, and I know it is the one that draws the most attention. I regularly hear from people who point to the unspeakable cruelty and violence of adolescents in the news, and I certainly do not claim that no juvenile requires secure detention. What I do claim is that we use correctional institutions in too many instances when we need not and that we do damage to juveniles in the process. As the Annie E. Casey Foundation’s recent report on probation makes clear, there are diversion and probation alternatives that are designed to develop youth and keep them out of the cycle of the correctional system.

Create periodic, youth-informed panels for juvenile sentencing review

Neuroscience tells us that the juvenile brain is developing well into the mid-20’s. This means that, even when youth commit serious crimes, if given the right opportunities at rehabilitation, they can mature and outgrow that criminal behavior. Two things follow from this reality. First, even youth who are sentenced to lengthy term-of-year sentences should be eligible for educational and other rehabilitative programs. How else will they embark on a path to demonstrating maturity and rehabilitation, an opportunity the Supreme Court requires? Second, juvenile sentences – especially lengthy ones – should be reviewed periodically for their ongoing legitimacy. Given that the Supreme Court has elevated youth to be a mitigating quality of constitutional significance, the punishment rationale for juvenile sentences cannot be what it is for similarly situated adults. Ongoing, periodic review for youth offenders can serve as a check against the Court’s concern that states not make a judgment at the outset that juvenile “offenders never will be fit to reenter society.”

It’s worth noting that, in order to secure any of these juvenile-specific measures, we must continue to push for criminal justice reform more broadly. This is harder than ever in some ways. We must vigilantly counter the growing rhetoric that says we are a crime-ridden nation and that urges prosecutors to seek the maximum sentence in all cases. And we must insist upon equality in our criminal justice system – a goal our system has espoused but never achieved.

Thank you, Doug and the Sentencing, Law & Policy community for letting me share my work! CHD

The Modern Eighth Amendment

The title of this post was the name for one of yesterday's panels at the Southeastern Association of Law Schools ("SEALS") Conference. Organized by Will Berry (Ole Miss) and Meghan Ryan (SMU), the panel addressed the history of the Eighth Amendment, Eighth Amendment doctrine and its future. Panelists (myself included) covered everything from the original meaning of "cruel and unusual" to the Court's problematic use of the "evolving standards of decency" doctrine and the future of the death penalty and JLWOP.

There really was something for everyone (well, everyone interested in Eighth Amendment issues)!

Corinna Lain (Richmond) provides a full summary here.

The War on Kids Post #4

In my last post, I discussed the Miller trilogy and states’ attempts to implement those Supreme Court decisions. Today I want to focus on one especially challenging implementation issue: parole.

When the Supreme Court held Miller retroactive in Montgomery v. Louisiana, it suggested that states could comply with the Miller mandate by employing parole procedures, evidently in an attempt to head off potential state concerns of finality and efficiency. As the Court explained: “Giving Miller retroactive effect. . . does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” However, parole post-Miller has proven to be problematic in several respects.

First, typically parole applicants enjoy very few procedural rights because the Supreme Court has treated parole as a privilege – a proceeding in which the prisoner has no liberty interest. Even when the Supreme Court has construed a state’s parole statute to create some liberty interest for prisoners, it has not gone so far as to hold that prisoners are entitled to the aid of counsel. As a result, in 35 states a prisoner has no right to counsel at a parole hearing. In contrast, when a state employs parole as a method for remedying a now-unconstitutional sentence, the prisoner does have a liberty interest at stake, as some lower courts have recognized. At the same time, because juvenile lifers are entitled to a “meaningful opportunity to obtain release,” parole boards across the country are now tasked with examining factors deemed relevant in Miller, including childhood environment and efforts at rehabilitation. Thus, youth offenders seeking parole may be entitled to procedural safeguards, including the right to counsel, never before seen in the parole context.

Second, while parole largely disappeared from the criminal justice landscape in the late 20^th century, it has been making a comeback as part of the smart on crime movement – only modern parole is new and different. While discretion and instinct are still relevant, modern parole is largely dependent upon actuarial assessments of prisoners’ risks if released. These risk assessment tools rely upon statistical relationships between both static (e.g. age at date of conviction) and dynamic (e.g. level of education obtained during incarceration) factors. Almost all states employ these risk assessment tools in the parole process.

Here’s the concern post-Miller: the risk assessment tools may rely on factors that defy the Supreme Court’s holding that children are categorically less culpable and more amenable to rehabilitation. For example, in many jurisdictions, the tools consider the inmate’s age at first commitment; the younger the age at first commitment, the higher the risk factor and the less likely the inmate is to be released. Similarly, many tools consider factors such as employment history and marital status before incarceration; being single and unemployed increases one’s risk assessment score. Juvenile offenders as a group, precisely because of their youth at the time of conviction, were unlikely to have been married or to have had an employment history. In other words, the risk assessment tools treat youth as an aggravating variable, while the entire logic of the Miller trilogy hangs on youth as a mitigating variable.

Finally, there are several other thorny questions implicated in jurisdictions that employ parole as a Miller remedy. Should states be expected to release a certain percentage of youth offenders seeking parole in order to satisfy the “meaningful opportunity” standard? When a parole board denies release, must it issue a decision and rationale in writing beyond the generic statement that an applicant is not a suitable candidate? What is an appropriate wait period for a board to impose before reconsidering a case? Henry Montgomery himself was denied parole earlier this year and given a two-year setoff period; he’s already 71 and surely at some age a two-year setoff violates the meaningful opportunity standard.

By my count, 11 states today are employing some kind of new, youth-informed parole procedure in order to address prisoners with claims under Miller. Other jurisdictions are employing their previously existing parole mechanisms to do so. Litigation challenging the adequacy of these procedures is already underway, and time will tell how helpful it was for the Court to suggest that states rely upon parole as a Miller remedy.

The War on Kids Post #3

As Doug’s readers know, in recent years the Supreme Court has limited the extent to which states can expose kids to the most serious sanctions on the books. In a series of cases known as the Miller trilogy (Roper v. Simmons, Graham v. Florida, and Miller v. Alabama) the Court has held that states cannot execute people for juvenile crimes (Roper); that the Eighth Amendment bars life without parole for juvenile, non-homicide offenders (Graham); and that it similarly precludes mandatory life without parole even for juveniles who commit homicide (Miller). With these decisions, the Court has underscored the idea that “kids are different” for constitutional purposes and state sentencing practices must reflect that fact.

While I address these decisions in some detail in The War on Kids, I know that most of Doug’s readers are familiar with the basics of these decisions and the social science on which they relied. So I want to focus this post on the implementation of the Miller trilogy.

Implementing the Miller trilogy has been messy. First, there was the question of who benefitted from these cases. Roper and Graham were clearly retroactive decisions – they took off the table a form of punishment as it applied to a category of individuals – and each case affected a relatively small pool of prisoners. At the time of Roper, there were 72 death row inmates who had been convicted as juveniles, and according to the Supreme Court, there were 129 juvenile non-homicide offenders serving LWOP at the time of Graham.

Miller, on the other hand, called into question the validity of approximately 2,500 cases nationwide. After some initial confusion among lower courts, the Supreme Court clarified in Montgomery v. Louisiana that the Miller decision applied retroactively. As a result, those 2,500 prisoners whose cases were squarely within the purview of Miller became eligible for some modification of their sentence. (I’ll return in my next post to the Montgomery Court’s suggested and yet problematic method for compliance, parole). In addition, youth offenders across the nation who had been sentenced to de facto life sentences or to sentences of life with parole began to seek judicial relief, arguing that the reasoning of Miller applied to their cases too. In sum, there are now thousands of individuals across the country with legitimate claims to relief under the Miller trilogy.

Second, states have grappled with how to implement a Miller remedy: what should it be? and who should provide it? In recent years, many state legislatures have banned JLWOP. In 2011, the year before Miller, only five states banned JLWOP; today 20 states and D.C. ban the sentence. At the same time, states like West Virginia and Nevada have enacted legislation that not only bans JLWOP, but also permits ongoing, periodic review for youth serving lengthy terms and requires sentencing judges to consider the mitigating aspects of youth. Courts have also focused on the rehabilitative ideals of the Miller trilogy and have struck down lengthy term-of-year sentences as the de facto equivalent of JLWOP. The Massachusetts high court has banned JLWOP and held that youth offenders seeking parole have the right to counsel and expert assistance. The Iowa Supreme Court found that the Miller rationale precludes any mandatory sentence for youth. In sum, many courts and legislative bodies are grappling with when youth offenders should receive a second-look, what term of year sentence is appropriate in lieu of LWOP, and what procedural safeguards apply post-Miller to inmates seeking relief.

As I discuss in the book, this implementation process has been slow and the results have been mixed. Not all states have embraced the science and reasoning behind the Miller trilogy. For example, Michigan incarcerates 363 of the roughly 2,500 inmates nationwide serving JLWOP. Under Miller, those 363 individuals should receive a new sentence that takes into account their youth and other relevant mitigating factors. Moreover, the Miller Court expressly said that, given what we know about adolescent brain development, “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Yet prosecutors in Michigan are seeking to resentence more than half of these individuals to LWOP over great protest from the defense community. Some prosecutors in counties of Pennsylvania and Louisiana have taken equally harsh positions on resentencing JLWOP inmates. At the same time, courts have been split on the question whether Graham and Miller apply to aggregate juvenile sentences that result in a death-in-custody term.

And prisoners feel the geographic disparity post-Miller. Consider Florida, where Terrence Graham originally received JLWOP for the attempted armed robbery of a barbeque restaurant. After the Supreme Court found his JLWOP sentence unconstitutional in 2010, he received a resentencing hearing and a 25-year sentence for his non-homicide crime. In contrast, juvenile homicide offenders in Massachusetts are now parole eligible after serving 15 years and they enjoy a number of procedural rights in the parole process. Post-Miller it is clear that justice can be slow and uneven as a function of federalism.

In my next post, I’ll focus specifically on state attempts to use parole in order to comply with Miller.

Prison Nurseries?

I'll be back tomorrow blogging about the war on kids, but I wanted to share this NBC news story about prison nurseries.

According to the piece, there are eight prison nurseries in the United States, and as the number of women in prison has exploded in recent years, their existence raises several interesting questions. Is separation from one's infant a just part of a sentence? Does that sentence inflict more harm on the child than the mother? Is it safe/desirable/cost-effective to allow mothers and infants to remain in prison together? More here:

Bedford Hills has the nation’s longest-running prison nursery. Opened in 1901, it has allowed hundreds of women who have started their sentences pregnant to bond with their babies while behind bars — something advocates say is best for babies and lowers the mothers’ recidivism rate, but some critics argue violates the children’s constitutional rights using taxpayer money, while placing a burden on prison staff by requiring them to double as day care workers.

Bedford Hills is one of eight prison nurseries in the United States. The number of such programs has fluctuated as funding and sentiment toward them has risen and fallen, but now, more than ever, their effectiveness is under scrutiny as the number of women behind bars has skyrocketed.

There are nearly 214,000 women incarcerated in the U.S. — an increase of more than 700 percent since 1980, according to nonprofit The Sentencing Project. There is no official count of how many of these women give birth while imprisoned.

In most prisons, when a woman gives birth, her baby is taken away within 48 to 72 hours and sent to either a relative or foster care. Prison nursery supporters say that keeping newborns with their moms, even behind bars — while not a perfect solution — is better than any alternative.

 

The War on Kids Post #2

In my last post, I addressed the irony of America inventing the juvenile court and then both exporting that concept to the world and abandoning it domestically. Today I want to unpack the realities of my claim that there has been a war on kids since the late 20^th century. Let me acknowledge that, to some readers, the concept of a war on kids in America today may sound misguided or dramatic. After all, educators complain of helicopter parents and so-called free-range parents may face prosecution for granting their children liberties that were commonplace in my childhood. However, even as some children in America are more coddled and protected than ever before, I stand by my claim that the U.S. has waged a war on kids.

This is what the war on kids looks like. On any given day, there are approximately 50,000 juveniles being held in American correctional facilities, thousands of whom are in adult jails and prisons. While some hold themselves out as camps, academies or training facilities, these are correctional institutions; 89% of them are locked and many employ handcuffs, leg cuffs and restraining chairs, as well as solitary confinement. At the same time, we are not reserving detention for the most serious juvenile offenders. Nearly a quarter of youth in juvenile facilities have only been charged with a technical probation violation or a status offense. Schools, with police officers in the halls and zero-tolerance policies on the books, have become a gateway to the criminal justice system. In at least 22 states it’s a crime to disrupt school in ways that may have earned a student a trip to the principal’s office a few decades ago. Preschoolers, yes, preschoolers, can face suspension and expulsion for age-appropriate behaviors. This is deeply problematic, as suspensions, especially repeated ones, increase a student’s risk of dropping out of school and coming into contact with the criminal justice system.

Moreover, as I mentioned in my first post this week, our laws have cemented the notion that kids, once accused of a crime, may be treated as adults. Prosecutors routinely remove kids from juvenile court and charge them in adult court on the basis of the legal fiction of transfer laws. Youth in adult court are subject to mandatory sentences that today many of us would agree are too harsh even as applied to adults. Juveniles can be housed in adult correctional facilities, despite being the most vulnerable to physical and sexual assault in those locations. Until 2005 we were the only nation to execute people for juvenile offenses, and today we are the only developed nation in the world that still sentences children to die in prison.

Perhaps most discouraging, the war on kids has taken its greatest toll on the nation’s most vulnerable kids – those in poor, minority areas that are under-resourced and heavily policed. Black youth are more than twice as likely as white youth to be arrested, and, even as overall youth detention rates continue to decline, black youth are five times as likely as white youth to be detained. Similarly, poverty shunts children into the criminal justice system who would never be there if they had the financial resources to pay for private counsel, a diversion program, or even an ankle bracelet. Finally, when one looks at youth serving the most extreme sentence on the books, life without parole, approximately half were physically abused and nearly 80 percent witnessed violence in the home. Thus, like most wars, the war on kids has had its greatest impact on poor, minority and otherwise vulnerable communities.

In my next post, I’ll address recent Supreme Court decisions regarding juvenile sentencing and their implementation at the state level.

VA Asks Supreme Court for Delay in Resentencing Malvo

As reported in this Washington Post piece, Virginia is asking the Supreme Court to delay the resentencing of convicted Beltway sniper, Lee Boyd Malvo. Here is more:

Virginia on Thursday asked the Supreme Court to put on hold a lower court’s decision that requires new sentences for Beltway sniper Lee Boyd Malvo, who was confined to life imprisonment for his deadly teenage rampage.

The commonwealth said it wants the high court to overturn a decision by a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond. But in the meantime, it asked the court to simply delay any resentencing process.

“This case involves one of the most notorious serial murderers in recent history,” Virginia Solicitor General Toby J. Heytens wrote in a petition to Chief Justice John G. Roberts Jr., who hears emergency applications resulting from 4th Circuit decisions.

“The issue presented by this stay application is whether Virginia will be required to commence (and potentially conclude) the process of resentencing Malvo — risking additional trauma to his numerous victims and their families and exposing the Commonwealth to significant cost — before” the Supreme Court can decide whether the 4th Circuit got it right.

The War on Kids Post #1

Greetings, fellow SL&P readers and Doug Berman fans! I’m Cara Drinan, and I’d like to thank Doug for generously offering me the opportunity to guest blog while he’s away on vacation. For the most part, I will blog about my recent book, The War on Kids: How American Juvenile Justice Lost Its Way (Oxford University Press 2017, available here), but if time permits, I’ll also post about current events.

I look forward to sharing my research over the coming days and hearing your thoughts and comments. The War on Kids begins by addressing the arc of American juvenile justice. Despite inventing the juvenile court a little more than a century ago, the United States has become an international outlier in the severity of its juvenile justice practices. The War on Kids explains that trajectory as a sub-plot to the story of mass incarceration, and then exposes the machinery of juvenile justice: how certain kids are more likely than others to end up in the system and what that bleak experience looks like for a juvenile inside the system. The latter half of the book turns to examining prospects for reform on the horizon. Recent Supreme Court juvenile sentencing decisions and related state legislative responses provide grounds for optimism, and yet implementation efforts to date have been slow and bumpy. Finally, the book concludes that we must launch a war for kids and outlines policy measures that such a war must entail: the elimination of extreme juvenile sentences, the abolition of mandatory minimums for kids, and a shift away from juvenile incarceration altogether.

Obviously, I can’t cover the whole book in a few blog posts, and I hope you’ll read it in full, but in the coming days I will address a few questions addressed within the book:

• Given that the juvenile Court model was an American invention, how did the US become the extreme outlier that it is today?
• What does the war on kids look like today in America?
• How have recent Supreme Court decisions regarding extreme juvenile sentences been implemented on the ground?
• What does a war for kids entail?

Today, I’ll tackle the first question – the question of how the United States became the extreme outlier that it is today in terms of juvenile justice. The U.S. invented the juvenile court model in Illinois in 1899. This early juvenile court wasn’t perfect by any stretch, but it was based on a shared recognition that a child who broke the law was typically in need of social services rather than punishment. In contrast to adult courts, juvenile courts shared several defining features: relative informality, broad judicial discretion, and a guiding ethic of juvenile vulnerability and rehabilitation. Over the course of the twentieth century, every state in the nation adopted the juvenile court model, as did developed nations around the globe.

Fast-forward 100 years, and by the end of the twentieth century, the U.S. had become known for its punitive “adult crime, adult time” approach to juveniles. Perhaps most notable to the international community, until 2005 the United States was the only nation to execute people for juvenile offenses, and today we are the only developed nation in the world that still sentences children to die in prison. In order to understand how this happened – and how it happened fairly quickly – it helps to think of the war on kids as a subplot to the story of mass incarceration.

As Doug’s regular readers well know, the American correctional population exploded in the late 20^th century. In the 1970’s there were approximately 300,000 people in American jails and prisons, and today we have more than two million adults and children behind bars. While the story of mass incarceration is complex, there is no disputing that, with crime on the rise beginning in the 1960’s and into the 1990’s, politicians on both sides of the aisle embraced tough on crime positions. They enacted more criminal laws and enhanced penalties for criminal violations. As we sent more and more people to prison for increasingly long periods of time, our correctional population ballooned.

Juveniles suffered from this trend toward mass incarceration in two particular ways. First, politicians enacted laws that enabled prosecutors and judges to treat children as if they were adults. This was a massive shift. For most of the twentieth century a child accused of a crime was dealt with in juvenile court. However, as part of the get-tough policies of the 1980’s and 1990’s, lawmakers passed transfer laws (of several varieties) that made it increasingly easy and common for kids charged with a crime to be prosecuted in adult court. Today, every jurisdiction has at least one provision (and most have several) that permits a juvenile to be transferred to adult court often without judicial oversight. Twenty-three states set no minimum age for that transfer.

Second, around the same time, federal and state lawmakers introduced determinate sentencing schemes, including mandatory minimums that have been the source of extensive discussion here on this blog. It’s possible lawmakers were not considering these two policy shifts and their interaction, but these two developments were the perfect storm for juveniles. By the end of the twentieth century, transfer laws made it increasingly easy for kids to land in adult court, and once there, they were exposed to mandatory minimums that had been drafted with adults in mind. Two states supreme courts have recognized the absurdity of this in practice (Washington and Iowa, discussed here) and have barred mandatory minimums as they apply to youth, but the practice remains common.

That’s it for today. In my next post, I’ll explore what the war on kids actually looks like in practice.

Professor Cara Drinan guest-blogging on "The War on Kids"

I am heading out today on a family trip that will take me off-line (and thus not blogging) for much of the next week.  I am very pleased to be able to welcome Professor Cara Drinan as a guest-blogger to discuss her book, titled "The War on Kids: How American Juvenile Justice Lost Its Way," which was just published by Oxford University Press and is available here.  I am so very grateful Cara was interesting in doing some blogging while I am away. 

Here is a part of the publisher's description of Cara's book:

In The War on Kids, Cara Drinan reveals how the United States went from being a pioneer to an international pariah in its juvenile sentencing practices.  Academics and journalists have long recognized the failings of juvenile justice practices in this country and have called for change. Despite the uncertain political climate, there is hope that recent Supreme Court decisions may finally make those calls a reality. The War on Kids seizes upon this moment of judicial and political recognition that children are different in the eyes of the law.  Drinan chronicles the shortcomings of juvenile justice by drawing upon social science, legal decisions, and first-hand correspondence with Terrence [Graham] and others like him -- individuals whose adolescent errors have cost them their lives.  At the same time, The War on Kids maps out concrete steps that states can take to correct the course of American juvenile justice.

I believe Cara may be covering ground in this blog space that goes beyond what appears in her book, and I am very happy to share this space and am excited to see what Cara wants to say here.  (I hope and expect to do still do a little blogging while on the road over the next week, but I certainly will not be able to keep up my usual pace.)