Juvenile Sentencing Schemes after Miller v. Alabama

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By John Mills and Jennifer Breen

The Supreme Court’s 2012 decision in Miller v. Alabama continues to create ripple effects throughout the nation’s legal system, several years after it was decided. The narrow holding of Miller was that the Eighth Amendment requires sentencers to individually consider the impact of youth and exercise discretion before sentencing juveniles to life without parole.  Last week, the Supreme Court, in Montgomery v. Louisiana, agreed to review whether Miller’s retroactivity in state court presents a federal question and whether Miller should be applied retroactively to individuals who were previously sentenced to mandatory life without parole for crimes they committed as juveniles. A number of states, including Illinois, Iowa, Massachusetts, Mississippi, Nebraska, New Hampshire, South Carolina, Texas, and Wyoming, have applied the federal standard and held that Miller should apply retroactively.  Some states, including Michigan and, arguably, Louisiana, have addressed Miller’s retroactivity purely as a matter of state law.  The Court’s decision in Montgomery will likely settle both retroactivity questions.

But Miller’s reach is already extending beyond mandatory life without parole sentences for juveniles, as both courts and legislatures begin to implement its broad commands. As we have recently argued, Miller requires courts to consider the basic fact that they are dealing with a child.  Because Miller addressed sentencing, its narrowest holding applies only to sentencing.

But the import of Miller is much broader.  Miller mandates the exercise of discretion in our criminal justice system, at least at sentencing, to act on the common sense notion that “every parent knows”: children have unique limitations and strengths, including a unique capacity for rehabilitation.  We know that children are not the same as adults. We know that children lack many of the cognitive skills they need to understand the decisions they make—including those involved in court proceedings themselves—simply because their brains haven’t yet gotten to that stage of development. We know that children live in environments not of their own choosing and that those home environments run the spectrum from supportive to abusive, but that children have no control over any of them. We know that cycling kids through the criminal justice system has a dramatic and independently harmful effect on kids, most of whose behavior could be better addressed in a non-criminal context. We know that children can be rehabilitated.

Until recently, however, state policies have ignored this growing body of knowledge  (as well as plain old common sense) and have treated children accused of having committed a crime as though they were adults in smaller clothes. There were many reasons for the increasing willingness of states to pretend that children are adults. The now discredited “Superpredator” myth—forcefully advanced by political scientist John DiIulio—played a major role. While the theory has been discredited, the policies it spurred remain in place. Once in place, policies are sticky things and it can be hard for state legislatures to pursue policies that seem “soft” on crime, even when the “evidence” for the policy is now accepted to be the junk social science it was.

Now, however, the winds seem to be shifting as more and more states pursue those necessary policy changes that would recognize the fundamental difference—both Constitutionally and biologically—between a fourteen-year-old and a forty-four-year-old defendant. Only a small minority of states exercise no discretion in charging and sentencing children.  These outlier states run afoul of Miller’s mandate and, therefore, require reform.

Stakeholders increasingly agree that the principles underlying Miller require broad changes in how we go about treating our children as they move through the criminal justice system. Nevada and Illinois are considering banning life without parole sentences for juveniles, Connecticut is contemplating major revisions to its juvenile justice system like programs providing for a “second look” at the sentences imposed on juveniles, and Iowa recently struck down all mandatory minimums. Additionally, new trial defense guidelines were just released for attorneys representing children facing possible life sentences. The Florida State Supreme Court just issued several rulings that highlight the distinct needs of juveniles in the criminal justice system. The decisions mandate resentencing in hundreds of cases where defendants were given extreme sentences for crimes they committed as juveniles.

More importantly, unlike the initial wave of policy changes that treated kids like adults, there are many sound reasons for treating children as such in our justice system. One of those reasons, however, is certainly the Supreme Court’s decision in Miller. That decision made clear that as far as the Constitution is concerned, children have a right to be treated like children and that we violate those rights when we pretend they are anything else.

But we believe that is a bare minimum interpretation of Miller and that complying with the mandate of Miller—and common sense—requires courts to treat children as children in every aspect of their interaction with the criminal justice system. Miller focuses on sentencing, but what else does its logic require? States are beginning to answer that question for themselves and we believe—and hope—we are just beginning to see the full impact of Miller.

John Mills is a principal attorney at The Phillips Black Project. 

Jennifer Breen studies law at Cornell Law School

The authors’ recently published law review article, upon which this post is based, Mandating Discretion: Juvenile Sentencing Schemes after Miller v. Alabama, is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2579947

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Robbed of Childhood and Chances: Ferguson and Beyond

quinnmBy Mae Quinn, Professor of Law, Washington University in St. Louis

When I was a teen I fought viciously with my sister, hung out in places I should not have been, and walked the streets with my friends. A white girl growing up in a working-class neighborhood where kids were allowed to be kids, I was never stopped, arrested or prosecuted for any of these things. I certainly was not pushed around by police, Tased with stun guns, or bitten by police dogs.

And despite being raised in a household that struggled under economic and other hardships, I became the first in my family to earn a university degree. Further guided by mentors and supportive adults who helped me along the way, I went on to law school. Today, against many odds, I am a law professor in St. Louis, where I run a law clinic that provides free legal services to community youth.

But I can tell you that the experiences of the kids we serve are a far cry from my own.

In fact, the U.S. Department of Justice did just that — although most would not know it from recent news accounts.

This month, the press has widely covered DOJ’s investigation of Ferguson government: how systemic practices of both law enforcement and judicial officials ignore constitutional standards, punish poverty and inhumanely discriminate against black residents — all with a view toward financial gain.

Headlines have been silent, however, about one particularly powerful message in the DOJ’s report — and as a result have overlooked one particularly impacted and vulnerable population: the children of the St. Louis region.

Page one of DOJ’s report cites 42 U.S.C. 14141 as one source of its legal authority — under which it has threatened lawsuit if things don’t change. This statute protects the constitutional rights of juveniles.

From there the report recounts in horrific detail the life-altering injustices suffered by children in Ferguson — many guilty of doing nothing more than I did when I was a teenager.

It describes how Ferguson police officers in school halls respond to youthful indiscretions like fights and back-talking with force frequently followed by arrest and formal prosecution. In one especially hair-raising account, where a 14-year-old middle schooler got into an argument with a classmate, Ferguson police intervened to Tase the youth with a stun gun — sending shocking electrical current into the child’s body. Then the child faced removal from school for 180 days.

DOJ also documented 14 instances of police dogs deployed to attack citizens. In each, the suspect was black. In at least two they were just children. One of these involved police unleashing a dog on a 14-year-old child hanging out in an abandoned building, because, according to the officer, he would not show his hands.

Officers also use the municipality’s expansive — and largely unconstitutional — ordinance code to rack up cases, fines and fees for the locality. For instance, DOJ documented countless instances of charges like “gathering in a group for purposes of committing illegal activity” or “manner of walking in the street” being used against young people for the most ordinary adolescent behaviors.

Similarly, it uncovered local “ped check” practices used against youth of color. Frequently these warrantless stops led to prosecution for the charge of “failure to comply” for not providing identification or answering police questions, even though the Constitution largely protects such silence.

If as a child I had to endure daily traumas at the hands of the government officials, including threats of stops, arrests, stun guns and dog attacks — I can’t imagine retaining my focus on the future. And I surely would not have developed the same faith in our systems of justice that led me to fight so hard to become a lawyer.

Instead of helpful mentors to guide me I was met with school suspension, court fines and arrest warrants for childish activity — warrants that would have prevented me from getting my first job or first apartment — I may have given up on getting ahead.

Factor into the odds the many other layers of structural inequality suffered by youth of color in this country, I am fairly certain I would not be where I am today.

The DOJ’s report is titled “Investigation of the Ferguson Police Department.” But it calls for us to change far more than Ferguson. We should use this as an opportunity to interrogate our own lives — to acknowledge the ways in which so many of us have enjoyed invisible privilege, including something as basic as the right to childhood.

From there we must demand just, fair and compassionate treatment for all youth. Because as the DOJ’s report so powerfully demonstrates, too many kids of color — unnoticed by this week’s news about Ferguson and beyond — are robbed of their innocence by inhumane police practices and handed reduced life chances simply because of the color of their skin.

Mae C. Quinn is a professor of law at Washington University in St. Louis, where she runs the Juvenile Law and Justice Clinic. She grew up in Staten Island, N.Y. 

This essay was originally published in the St. Louis Post-Dispatch.

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Youth and Interrogation

kid questioned by policeBy Kevin Lapp, Associate Professor of Law, Loyola Law School, Los Angeles

Advocates, courts, and policymakers across the nation are considering how far the Supreme Court’s “children are different in a way that matters” criminal justice jurisprudence should extend. One of those Supreme Court cases was J.D.B., which held that a suspect’s age is relevant to determining whether an individual is in custody for purposes of Miranda. That is so even though the custody analysis is an objective inquiry. So long as the youth’s age was known or would have been objectively apparent to a reasonable officer, his age (and the developmental vulnerabilities that accompany it) must be considered.  

Just last month, a California Court of Appeal held that the same applies when deciding whether a juvenile has made an unequivocal request for an attorney after waiving Miranda. The case involved a 13-year-old eighth grader who was suspected in a shooting. Thirty pages into the transcript of the videotaped custodial interrogation, and after being shown a surveillance video of the shooting, the 13 year-old said “Could I have an attorney? Because that’s not me.” The police said no and continued the interrogation. Relying on J.D.B., the court held that the police should have considered the suspect’s age in deciding whether that statement was an unequivocal request for an attorney. Moreover, it found that the youth’s lack of maturity and sophistication were objectively apparent to a reasonable officer, and that the statement by the 13 year-old was an unequivocal request for an attorney, as opposed to a mere inquiry.

This seems right to me. While it’s true that it may be hard for police to decide whether the youth they are interrogating feel free to leave, or whether they are unambiguously and unequivocally requesting an attorney such that the interrogating must immediately end, the point of this recent juvenile jurisprudence is that law enforcement must pause when confronting youth. If they’re unsure whether their presence and training are overbearing the young person, the best result would be to warn them of their Miranda rights and respect their attempts to invoke their constitutional rights.  

The case was argued and briefed by staff and students at Loyola Law School, Los Angeles’s amazing Center for Juvenile Law and Policy

 

 

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Florida Supreme Court Throws Out Life Sentences for Juveniles

03lifers_1841The Florida State Supreme Court unanimously ruled on March 19, 2015, that all of Florida’s juveniles convicted of homicide who received automatic sentences of life in prison must be resentenced under a state law passed in 2014.

The long-awaited ruling answers the question of whether the United States Supreme Court’s 2012 decision in Miller v. Alabama, which effectively banned automatic life sentences for juveniles convicted of homicide, applies retroactively in the state of Florida. An estimated 250 Florida prisoners, 17 of them from Lee and Collier Counties, are serving life sentences for murders committed before they turned 18.

Under Florida’s 2014 law, passed to conform with Miller, only juveniles who committed homicides after July 2014 were subject to a revised sentencing structure, which required a judge to consider several factors before determining a prison term. For about 20 years before the law’s passage, Florida mandated a life sentence for juveniles convicted of first-degree murder. After the law passed, Florida trial and appeal courts have grappled with whether juveniles who killed before July 2014 and received automatic life sentences should receive the same consideration. The state’s five appeals courts gave conflicting opinions.

Yesterday, Justice Barbara J. Pariente of the Florida Supreme Court wrote in Rebecca Falcon [pictured above] v. Florida: “The patent unfairness of depriving indistinguishable juvenile offenders of their liberty for the rest of their lives, based solely on when their cases were decided, weighs heavily in favor of applying the Supreme Court’s decision in Miller retroactively.”

In regard to the significance of these rulings beyond the state of Florida, I’ve only just begun to closely examine the decisions, but given a cursory read, I’d say that they clearly reflect opposition to the extreme sentencing of youth, but whether that opposition is “growing” is a matter of interpretation and careful counting of the very clear split among state and federal courts across the U.S., both on the question of retroactivity and on the question of whether lengthy term of year sentences for non-homicides committed by minors are the equivalent of “life” sentences.

I am heartened by the Florida Supreme Court’s analysis of Miller retroactivity in Falcon (see pp. 3-4 of the decision and footnote 1) as well as its decision in Horsley, holding that Florida laws calling for individualized resentencing hearings do apply to juvenile offenders whose offenses were committed prior to the date of the legislation.

I also find the Gridine and Henry decisions to be significant, but again, it’s too early to say whether they represent or reflect a national trend.  I am particularly heartened by the Florida court’s interpretation of Graham v. Florida in Gridine, specifically its holding that the decision applies to attempted murder convictions, despite the language in Graham that seems to limit its decision to defendants “who do not kill, intent to kill, or foresee that life will be taken.”  Henry is a positive sign that long term of years sentences in classic non-homicide cases will also be considered as virtual “life” sentences.

These new decisions will certainly be taken into account by SCOTUS when it finally rules on Miller retroactivity, but we won’t know until the Court issues its opinion (likely next term) whether a majority of the Justices agree with the Florida majority.

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No Perfect Victim

imageBy Sarah Smith, JD, and Carlene Gonzalez, Ph.D., in conjunction with the National Council of Juvenile and Family Court Judges

Most people would agree that the victim of a crime is the last person who deserves to be judged. Yet judgment – from the public, from law enforcement, even from their families – is exactly what many crime victims encounter when they seek justice. Rape victims are met with skepticism about the veracity of their claims if they delay reporting the crime to police, take a shower afterwards, show too much or too little emotion, etc. Survivors of domestic violence who seek help find that their decisions, not those of the person who brutalized them, become the focus of inquiry. If it was so bad… Why didn’t you just leave? Call the police? Seek medical attention for your injuries?

It is uncomfortable to be confronted with the reality of one person brutalizing another. Perhaps it is this discomfort that makes us want victims to act, to look, to feel a certain way in response to their trauma. The reality is – like the Twitter hashtag says – there’s no perfect victim.

Shock. Denial. Confusion. These are all normal reactions to trauma. It is, therefore, perfectly understandable why a rape victim might not report the crime immediately, especially if they have some kind of relationship with the perpetrator. It is also understandable that a person who has been subjected to coercion and control by another person might not seek help or flee at the first opportunity. This dynamic is frequently seen among victims of sex trafficking, especially young girls who have been psychologically groomed to be emotionally dependent on their pimps. It is easy to see these young women as prostitutes. They, just like a woman who uses violence against her batterer, may have broken the law, but they are victims.

Trauma impacts individuals in different ways. But how they react is no measure of the gravity of what they have experienced. A mother who has been beaten by her husband throughout their marriage does not stay in the relationship because she thinks that the violence does not impact her children. She does not stay because she is indifferent to the terror and confusion her children feel when they see her crying and bruised after an argument with their father. She stays because leaving is dangerous. It often triggers an abuser’s violence. One study has found that women who leave abusive partners are at increased risk of being a victim of homicide. But too often, the police officer responding to that mother’s 911 call or the judge presiding over her custody doubts this victim because her response to the violence does not make sense to them.

Sadly, at a societal level, we do not display as much sympathy toward victims of crimes as we should. Instead, we often attach partial or much of the responsibility for the crime to the victim. We do so by questioning their respectability, provocativeness, past risky behaviors, degree of intoxication, etc. at the time of the crime. For fear of being blamed or disbelieved about the crime, many victims fail to report their assaults to authorities. From a socio-psychological perspective, various theories lend a hand at understanding our judgments and biases as observers of crimes. The Attribution Theory, for instance, suggests that individuals explain an event by external (i.e., situational factors outside of one’s control) or internal (i.e., dispositional characteristics, like personality) causes. Based on the tenets of the Attribution Theory and in line with victim blaming, the Defensive Attribution Theory suggests that an individual’s perceived similarity with a victim and the likelihood that this individual will experience such an event themselves decreases whether they will ascribe blame to the crime victim. The latter theory highlights how multiple factors impact how we assign blame to others, including the role of in-group preference. For this reason, it is crucial that we recognize the impact of our judgments and biases, and therefore, how our judgments impact our decisions about crime victims. Rather than critiquing a victim’s behaviors, we must make an active effort to understand victim behavior and how they are likely to present, as well as subtle warning signs of abusers. For more information about the victim-abuser relationship, please visit the National Network to End Domestic Violence website. For more information on the National Council of Juvenile and Family Court Judges (NCJFCJ)’s please visit http://www.ncjfcj.org. Additionally, information on trauma-informed systems of care can be found at http://www.ncjfcj.org/our-work/trauma-informed-system-care

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Perceiving Adolescence

By Kevin Lapp, Associate Professor, Loyola Law School|Los Angeles

The challenge of demarcating adolescence from childhood and adulthood comes mainly from figuring out when it ends. 18 has been the traditional end point, but many experts increasingly view adolescence as a period that lasts into the mid-twenties. But extending adolescence beyond 18 is probably less pressing than ensuring that those under 18 receive the protections long reserved for childhood (or adolescence, or “not yet adulthood”).

Advocates have been fighting that fight for decades, w-haywood-burns-instituteand the flourishing of knowledge about adolescent brain developmental and psychosocial research on youth has armed reformers with empirical findings that seemed to have aided their efforts. For example, after upholding the death penalty for 16 and 17 year olds in 1989, the Supreme Court reversed course in 2005 in Roper, striking down the death penalty for those who committed crimes under 18. In Roper, as well as the juvenile justice decisions to follow (Graham, J.D.B., and Miller), the empirics of adolescence played a prominent role. Spurred by these findings, the Supreme Court has repeatedly averred that the law cannot proceed against youth “as though they were not children.”

This has appeal, and works, as a general proposition. But as I’ve noted before, perceptions matter. And there is evidence that some youth are not seen, despite their age, as youth, and thus lose the protections of childhood. This happens in 2 primary ways: (1) racial perceptions, by which minority youth are seen as older than their actual age, and more culpable for their acts, and (2) the forfeiture theory, by which youth who break the law are seen as having forfeited the protections that childhood typically offers.

This post focuses on the link between race, perceptions, and childhood, turning again to psychological studies. UCLA Psychology Professor Phillip Atiba Goff and colleagues tested 176 police officers in large urban areas, mostly white males, average age 37, and 264 mostly white, female undergraduate students from large public U.S. universities, to determine their levels of certain types of bias. They found that, beginning around age 10, Black youth are seen as older than their actual age, and more culpable for the same behavior as same-aged White youth. The age gap was not small: the study found that Black youth were more likely to be mistaken as older than their actual age by an average of 4.5 years. That means that the study participants saw a 14 year-old Black youth as 18-19 years old.

Thus, wherever the line is drawn between childhood and adolescence and adulthood, there’s a good chance that black male youth exit childhood and adolescence sooner, and thus lose the dispensations granted to children much sooner than others. This, I argue in a forthcoming paper called Databasing Delinquency, about the unprecedented adult-like data collection and retention and distribution practices that youth are subjected to these days by the criminal justice system (sex offender registration, gang databases, DNA databases, and more), generates support or tolerance for increased adult-like surveillance and more punitive, adult-like responses to rule-breaking behavior by minority youth.

We can see how this research might undermine the Supreme Court’s strong declarations that childhood cannot be ignored when thinking about the J.D.B. decision. J.D.B. says that police must account for age in determining whether an individual is in custody (and thus must be given Miranda warnings) because youth are much more likely to feel like they’re not free to leave encounters with police than adults. However, J.D.B. says that police must account for age only when “the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to any reasonable officer.” This is easy in the school setting in which J.D.B. arose – unless police are interrogating staff, they are dealing with someone who is not an adult.

But outside the school setting, the skewed perceptions of the age of minority youth could easily lead many police officers to conclude (as those in the Goff study did) that a 15 year-old Black kid is a 19 year old adult. They will then treat the youth as they would an adult, claiming as they did in many cases I litigated in practice that the youth was free to leave the encounter but choose to stay and keep talking. As a consequence, the aim of the J.D.B. court (to get law enforcement to issue Miranda warnings to more youth) will not come to pass.

This research suggests that the Court got the standard wrong in J.D.B. – rather than making the apparent age a critical factor, the Court could have, and should have, said that police must ask the person’s age, and if they determine or are told it’s 17 or under, they must consider youth in determining custody, and issue Miranda warnings before proceeding with custodial questioning. This should be so even if the officer believes the person looks like an adult. Even if the person is actually lying, and is really 19 or 21, there can be little harm in communicating to an adolescent that he has the Constitutional right to remain silent.

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25 Year-Old Adolescents?

imageBy Kevin Lapp, Associate Professor of Law, Loyola Law School|Los Angeles

Adolescents are neither children nor adults. But who falls within the category of adolescents? Given the great advantages of age-based distinctions in clarity and efficiency, when does adolescence start and when does it end?

Adolescence has typically referred to the period between puberty and social and economic independence. In the mid-1800s, that meant adolescence lasted about 5 years. But many things have changed since then. On the front end of adolescence, the age of puberty has declined for both boys and girls. At the back end, more young people than ever go off to college, delaying their entry into the full-time job market. They are getting married later. They’re living with parents longer.

As a result, leading adolescence psychologist Laurence Steinberg maintains that adolescence now covers the period from 10 to 25. That would mean that not only every teenager, but almost every college student, and many law students, are adolescents. In fact, Steinberg predicts that the lengthening of adolescence is likely to continue, and conceiving of adolescence as limited to the teen years will become “more outdated and harmful.” (Age of Opportunity: Lessons from the New Science of Adolescence).

There isn’t space in a blog post to debate the length of adolescence (another prominent psychologist Jeffrey Jensen Arnett alternatively talks about “Emerging Adulthood”, by which he means ages 18-25). In any event, it’s almost universally accepted that full development/maturity doesn’t come until the early to mid-twenties. I’m interested in thinking about the implications of the law recognizing a long adolescence, which is decidedly not widely embraced.

First off, it would not mean that all the rights and responsibilities of adulthood are withheld until a person reached 25 or 21 or 18. Whether adolescents requires distinct rules depends on how they are different. And they are different from children and adults in different ways at different ages. For example, by 16, most youth are close to adults in their ability to reason and process information, but they’re bad at deploying those skills when in groups of other teens or stressful situations, in part because they’re more interested in risk and less concerned with long-term consequences. That means that someone who can capably recognize right from wrong may nevertheless be less culpable for their actions than adults.

Indeed, some of the rules governing adolescents would overlap with those for children, and others would overlap with those for adults, depending on what was being regulated. This is, in many ways, the world we have. Young people can’t drive until 16, vote until 18, or drink until 21. But we also seem to allocate rights and responsibilities poorly. A 16 year-old can dangerously drive a car on our highways, and can be tried in adult court for his actions, but is not considered mature enough to handle R-rated movies unless watching with a parent. Paying more attention to how adolescents are different from children and adults would allow us to do a better job of assigning rights and responsibilities to adolescents.

I’ve thought most about the change that a long adolescence would bring to the law with regard to juveniles and criminal law. A long legal adolescence could mean an expanded juvenile court jurisdiction. In most states, jurisdiction ends at 18, though North Carolina and New York send everyone 16 and over to adult criminal court. In a world where adolescence lasts until 25, and where what distinguishes adolescents from adults involves decision-making capacities and attributes that make them less culpable for their acts, we might need to significantly expand juvenile court jurisdiction (or, as Barry Feld argues, provide for a youth discount at sentencing for those processed in criminal court). Similarly, 4th and 5th amendment jurisprudence, and the ability to consent to waiving those rights, probably needs to better account for the age of the person protected by and purportedly waiving those rights.

There are undoubtedly implications of a long legal adolescence in fields like torts, contracts, autonomy rights (including health, speech), family law and the strength and duration of parental rights, and more, but I don’t know them well enough to lay them out. If anyone is willing to indulge me and teach me, how might a long adolescence change the landscape in your field of expertise?

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Just World Belief and Victim Blaming

By Alicia DeVault, B.S., and Martha-Elin Blomquist, Ph.D.

Media coverage of recent events such as campus sexual assaults and officer-involved shootings brings to light a topic that is not often discussed: victim blaming. Victim blaming can be defined as holding the victim partially, or wholly, responsible for the crimes that have been committed against them. This is not restricted solely to acquaintances or close friends, and family, of the victim. Indeed, victim blaming can come from medical profesimagesionals, law enforcement, media, and society at large.

Victim blaming is a serious issue that can lead people to discredit victims of traumatic experiences. It is not unusual in rape cases to hear people express opinions that place blame primarily upon the victim due to clothing, inebriation, or other factors. With regard to officer-involved shootings, it is also not uncommon to hear sentiments detailing the past criminal history of the victim as a reason why the shooting occurred.

Victim Blaming and Just World Belief

Victim blaming has serious consequences and implications for how victims of traumatic events come forward to report their experiences. It has further implications for how the justice system handles such victims. If victim blaming is to end and victims of traumatic experiences are to feel comfortable coming forward with their stories, lay persons as well as professionals involved in the legal system first need to be aware of the ways in which social psychological factors are involved in victim blaming.

One such social psychological factor that can impact victim blaming is belief in a just world.

The basic premise of this belief is that good things happen to good people, and bad things happen to bad people. In other words, people “get what they deserve.”

This belief offers many protective benefits. For instance, belief in a just world allows people to feel as if the world has order. It gives people confidence they will be treated fairly by others and not be the victim of disaster. In essence, belief in a just world indicates an obligation to behave fairly. By being a good person and behaving in a fair manner, only positive things will occur; being a bad person and behaving in an unfair manner ensures that negative things will occur.

Belief in a just world helps people interpret events of personal life in a meaningful way. If something negative happens, a person can say that it was because of a fault of their own (e.g., because of a moral failing) or it was deserved. In this vein, belief in a just world serves as a reference to judge and explain both the fate of others and our own. It further gives psychological comfort to people. Indeed, it provides a way of coping with an uncertain world and the ever present possibility that violence will occur.

People who have levels of belief in a just world have been found to admire fortunate people and derogate victims. People who are victimized are seen as morally lacking, whereas people who are successful are seen as virtuous. Derogating victims leads people to focus on the victim – rather than the perpetrators of crime and violence – and to find fault with his or her behavior. In rape cases, this could involve focusing on the way the person dressed or how much alcohol the person imbibed. In shooting cases, it could involve attention to the past criminal history or the appearance of the person (e.g., excessive tattoos). In both of these cases, concern with the victim’s so-called “faults” leads to conclusions that the individual is “moral lacking” and therefore does not deserve system responses that are supportive or impartial.

Problems with Belief in a Just World and Victim Blaming

Even though belief in a just world has positive benefits to those who hold the belief, it can be problematic in that it leads people to have biases that are factually and morally unsupportable. These biases prevent people from actually living according to other standards and values they hold (e.g., fairness, equal protection under the law, charity, justice and empathy). These biases may lead people, who are otherwise good-hearted, well-meaning and caring, to blame, rather than sympathize, with victims.

Blaming victims for what has happened to them can lead to victims feeling vilified and to perpetrators not being prosecuted for their crimes. Indeed, victim blaming can often prevent victims from seeking psychological help and reporting traumatic crimes to police. This, in turn, undermines the credibility and capacity of the court system both to achieve accurate fact-finding and render justice.

So What Do We Do?

We all have implicit biases. Recognizing them is the first step in combating them. When an individual recognizes that he or she has the thoughts or views described above in response to an incident of rape or police shooting, stop and reflect. Ask yourself the following questions: am I blaming the victim? Why do I think this way? What factual information do I have about the victim or perpetrator? What facts and actions are needed to promote justice, public safety, and fairness? What other beliefs and values could counteract biases about the victim?

In understanding that belief in a just world can result in victim blaming, the hope is that people can become more aware of their biases and cognitive processes. Encouraging the open and objective pursuit of justice regarding the victim and the accused perpetrator will help to fight against victim blaming and achieve a safer and fairer society.

The post was published in conjunction with the National Council on Juvenile and Family Court Judges.

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Keeping a Grim Tally in Juvenile Court

imageOne recent morning I sat in juvenile delinquency court on the fifth floor of the county courthouse in Durham, N.C., and kept a bleak tally. A 14-year-old boy admitted to a larceny charge for having stolen a video console and games from his neighbor, a serious crime — a felony, because the property was worth more than $1,000. The boy was thin and wiry, and had a blank expression. He wore jeans, a long-sleeved shirt and no coat, despite cold temperatures. He was African-American.

A 15-year-old boy was charged with larceny of an iPhone and possession of marijuana. His lawyer told the judge that when the boy was sleeping during “in-school suspension,” someone had placed another classmate’s iPhone in his coat pocket. As soon as the teen had awoken, he gave the phone to the school resource officer, yet he was still charged. In the courtroom, the boy stood up straight, dutifully said “yes, sir” and “no, sir” to the judge, and was placed on probation for a year, a disposition that could lead to incarceration for up to five days, placement with the Department of Social Services or nine months in a boot camp. He also was African-American.

Another 14-year-old boy was charged with assault with a dangerous weapon inflicting serious injury, a violent felony, for a scuffle with an older teenager who was an alleged gang member. The “dangerous weapon” was a small hand weight the boy carried for protection. The “serious injury” was a deep cut to the older teen’s head, which had been injured after the boy threw the weight in anger. The boy stood nervously with his mother, who spoke no English. He was Latino.

There were several other cases on that morning, and the pattern continued: young teenagers — either black or brown — who were charged with criminal offenses typical of adolescence. They had taken things that didn’t belong to them, used illegal drugs or gotten into fights. Yet, in a metropolitan area with a population of 288,000 that is 42 percent white, 38 percent black and 13 percent Latino, there was not one white child in the courtroom.

Having practiced in the juvenile courts of this Southern purple state for the past decade, I can report that this latest tally was not unusual. In fact, according to the federal Office of Juvenile Justice and Delinquency Prevention, children of color are significantly overrepresented in juvenile courts across the U.S. While white children are occasionally charged with criminal offenses, the vast majority are African-American or Latino.

That same week I watched the new documentary, “Kids for Cash,” a chilling tale of corrupt juvenile court judges in Luzerne County, Pa., who took kickbacks of nearly $2.6 million to build two private, for-profit detention centers. From 2003 through 2008, the judges committed hundreds of children to these facilities following brief court appearances during which the children unknowingly waived counsel and admitted guilt to minor offenses. Many then spent months or years separated from their families, leaving them profoundly damaged. Thanks to the dogged advocacy of lawyers Marsha Levick and Robert Schwartz from the Juvenile Law Center in Philadelphia, the judges were eventually convicted in federal court and themselves sentenced to lengthy prison terms.

What struck me most about the film was not the unusual nature of the cash kickbacks but the fact that the real tragedy in Luzerne County — like Durham, where I practice, or your own local juvenile court — was the inaction of others, including probation officers, prosecutors and defense attorneys, who all stood by and said nothing.

As I sit in these courtrooms, I try to remain conscious of my own role in perpetuating a system of racial and socioeconomic inequality. Have I failed to speak? Have I failed to act? Weeks, months and years pass, and the composition of the children in juvenile court remains the same. I know that I am not doing enough, but it is not clear what can or should be done. I only know that whenever possible, I am driven to keep our young clients out of the juvenile justice system, because it is very difficult for them to get out.

This essay was originally published by Youth Today.

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Posted in Juvenile Court, Juveniles, North Carolina, Race, Class, Ethnicity, School to Prison Pipeline, Uncategorized | Comments Off

Juvenile Lifers: Reason for Hope

On December 1, 2014, the Supreme Court again deflected an effort to clarify whether its landmark 2012 decision in Miller v. Alabama banning mandatory life without parole sentences for juveniles should be applied retroactively. It was the second time this term and at least the fourth time since last June.  [Although the Court accepted review of a case raising the retroactivity issue on December 12th in Toca v. Louisiana, the case was rendered moot several weeks later when George Toca accepted a plea deal and was released.]

The Court’s December 1 refusal to hear an appealimage of an Illinois Supreme Court ruling allowing for retroactive application means that at least 80 of the 100 inmates serving juvenile life without parole in that state will now have an opportunity for resentencing.

While the fate of an estimated 2,000 individuals across the United States who are currently serving mandatory life-without-parole sentences for homicide offenses committed as minors still remains unclear, post-Miller decisions in state supreme courts and state legislatures suggest they may have reason to hope.

To put in perspective the latest deflection, each year the Court receives some 10,000 petitions to hear cases. The justices and their law clerks then narrow the list down to about 80 for review. In most cases, including this one, the Court offers no explanation for its decision either to grant or deny certiorari (review).

Of four recent petitions that the Court has declined to review on whether mandatory juvenile life without parole should be applied retroactively, two were appealing state court decisions that allowed for retroactivity; the other two were appealing ones that had denied it.

Miller v. Alabama was the third in a recent series of juvenile sentencing decisions from the Court that interpreted the Eighth Amendment’s ban on cruel and unusual punishment. Roper v. Simmons, decided by the Court in 2005, banned the use of the death penalty against juvenile offenders. Graham v. Florida, decided in 2010, banned life without parole sentences for juveniles convicted of non-homicide offenses.

With Miller, the Court effectively struck down laws in approximately 28 states, as well as federal statutes that required mandatory, non-parole-eligible life sentences to be imposed on individuals under 18 who were convicted of homicide.

According to the Campaign for the Fair Sentencing of Youth, Miller also led six states (Delaware, Hawaii, Massachusetts, Texas, West Virginia, and Wyoming) to abolish juvenile life without parole sentences in their entirety and five others (California, Florida, North Carolina, Pennsylvania, and Washington) to severely limit its use. On a national level, in October, the Criminal Justice Section of the American Bar Association passed a resolution, likely to become ABA policy in February, calling on states and the federal government to abolish juvenile life without parole.

The Miller Court, in its 5-4 ruling, called for individual review of each case and careful consideration of the classic hallmarks of adolescence, including immaturity, impetuosity and the failure to appreciate risks and to assess consequences. Miller also required sentencing judges to recognize the impact of the child’s family and home environment as well as the child’s role in the offense and potential for rehabilitation.

The Court said discretionary life sentences for minors should be rare. Justice Elena Kagan, writing for the majority, declared:

Given all that we have said in Roper, Graham, and this decision about children’s diminished culpability, and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.
Since the Miller decision, state legislatures have been slow to respond. But in fact, that may not be a negative development.

According to the Sentencing Project, 15 of the 28 states affected have not passed compliance legislation. However, of the 13 that have passed new laws, 11 require young offenders to serve lengthy terms ranging from 15 to 40 years before parole review can even be considered.

In Missouri, the lack of legislative action has actually produced a more positive result through the state’s supreme court, which ruled in State v. Hart that prosecutors must persuade the jury beyond a reasonable doubt that a life without parole sentence is “just and appropriate under all the circumstances.” So far, the state has been unable to secure such a sentence.

The central, unanswered question by the Miller Court is whether the decision applies to those estimated 2,000 individuals sentenced before 2012 to mandatory life-without-parole sentences for homicides committed as minors. If it does, these offenders could receive new sentencing hearings, and, possibly, new sentences.

If not, the life sentence would stand, forever foreclosing the opportunity for a judge to consider the young offender’s individual characteristics and circumstances.

With repeated denials of certiorari in the past six months, the Supreme Court appears content to allow individual states to resolve the issue of retroactivity, despite a clear split among state supreme courts as well as federal circuit courts. Traditionally, such splits warranted the Court’s review of so-called percolating issues; but since judicial review is discretionary (requiring at least four of the nine justices to agree to accept a case), it is difficult to predict if or when the Court will address the issue.

Meanwhile, there have been a growing number of state court decisions in which the majority ruled in favor of retroactivity. In October, the Court let stand the Nebraska Supreme Court’s decision in Nebraska v. Mantich to apply Miller retroactively. In addition to Nebraska and Illinois, seven other state supreme courts have applied Miller retroactively to juvenile offenders whose homicide conviction was final before June 25, 2012: Iowa, Massachusetts, Mississippi, New Hampshire, South Carolina, Texas and Wyoming.

In June, the Court let stand the Pennsylvania Supreme Court’s decision in Cunningham v. Pennsylvania not to apply Miller retroactively, and in October it let stand a similar decision from the Ohio Court of Appeals. Supreme courts in three other states — Louisiana, Michigan Minnesota — have also ruled that it does not apply retroactively, while those in Alabama, Colorado, Florida and North Carolina (among others) are still considering the retroactivity issue.

As for the federal courts, no appellate courts have squarely decided for or against Miller retroactivity, although there have been recent arguments in the 4th and 8th Circuits, and a case that’s being briefed in the 3rd, where decisions will all be forthcoming.

A number of circuits have addressed the strength of the retroactivity argument in assessing whether to allow habeas petitions from prisoners serving juvenile life without parole. At least six (1st, 2nd, 3rd, 4th, 5th and 8th) have allowed these petitions to go forward, while two have not (5th and 11th). None of these rulings, however, is either precedential or appealable.

Federal district courts have also begun to rule on the issue, with decisions on both sides. It is possible that the Supreme Court is waiting to see how other lower courts sort out the question of retroactivity before it addresses the issue itself.

Time may actually prove to be an ally. If state supreme courts continue to find Miller retroactive and order resentencing hearings, and as judges begin to conduct those hearings, the Supreme Court may be hard pressed to rule against such a trend.

The Court’s latest decision will have an immediate impact on one particularly high-profile case in Illinois. In Illinois v. Davis, the state court had allowed Addolfo Davis to apply for a review of his original LWOP sentence. In 1990, Davis, then 14, was accused, along with two older teens, of fatally shooting two people and injuring two others from a rival gang in Chicago. There was conflicting testimony during the trial about whether Davis himself fired a weapon or had merely stood by the doorway while his co-defendants forced their way into the apartment where the shooting occurred.

Although neither testimony nor forensic evidence established that he injured or shot anyone, he was ultimately convicted and sentenced under an Illinois law requiring life without parole for first-degree murder.

Because of the mandatory nature of the state statute, the sentencing judge was prohibited from considering Addolfo’s youth, family background, role in the offense or any other potentially mitigating factors.

At the time of the crime, nearly 25 years ago, Davis was 5 feet tall and 100 pounds. He was raised by his grandmother, who worked long hours to support her husband, who was disabled and bedridden, a son with an intellectual disability and a drug-addicted daughter, who was Addolfo’s mother. They lived in a building’s cellar that lacked separate rooms or a kitchen; there was only a refrigerator and electricity from an extension cord connected to the landlord’s upstairs apartment. When he was 9, Davis committed his first crime — grabbing the purse of a woman at a gas station to pay for something to eat. Drawn to older men in the neighborhood who were gang members, he quickly learned how to steal cars and deal drugs.

Less than a year before the shootings, Davis could barely read or write and was displaying signs of mental illness. He was reported to bang his head against the wall, burn himself with cigarettes and jump from the roof of one building to another. Despite recommendations that he be placed in a psychiatric facility, the Illinois Department of Children and Family Services put him in a temporary shelter that experts had described as a “human warehouse.”

Soon after, he ran away, and the murders took place five days later.

Davis is now 38. He is incarcerated at Menard Correctional Center near the southern tip of Illinois. He writes poetry and has earned his high school equivalency degree. With the Supreme Court’s decision, he finally has the opportunity to demonstrate the basic premise behind Miller: that children are not merely miniature adults and that they have the unique capacity to change.

This essay was originally jointly published by The Crime Report and the Juvenile Justice Information Exchange.

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Posted in Adult Court, Case Law, Miller v. Alabama, Sentencing, State Laws, U.S. Supreme Court | 1 Comment