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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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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Kiddie Court is No Joke for Juveniles

imageA client of mine, who I’ll call Deanna, was a 15-year-old in the ninth grade at a public high school in North Carolina. She lived with her mother, who was unemployed, and two younger brothers in government-subsidized housing. She had never been in juvenile court, and had an unblemished school disciplinary record. She was struggling academically, however, in danger of failing algebra.

A rumor circulated among students that someone was going to “shoot up” the school on Dec. 21, the date signifying the end of the phase of the Mayan calendar thought by some to represent the end of the world.

The police officer assigned to the school interviewed several students to determine who started the rumor. A ninth-grade boy claimed he heard it from Deanna. When questioned, Deanna denied starting the rumor but admitted she had seen something about it on Facebook and mentioned it to her friends.

The rumor quickly spread, and the school community became alarmed. Administrators sent an email to the district relaying the rumor and advising parents to keep their children home from school on Dec. 21 if they chose.

In January, the school officer filed a juvenile delinquency complaint against Deanna, alleging that she had committed the serious felony of making a false report concerning mass violence on educational property. An element of that complaint requires proof that the juvenile knew or had reason to know that the report was false.

The complaint was assigned to a juvenile probation officer (JPO), whose evaluation consisted of a 20-minute interview with Deanna and her mother, during which Deanna had no right to counsel and received no information about any other rights she might have.

The JPO authorized the complaint to be filed as a juvenile delinquency petition, following her office’s practice that complaints that allege felonies are presumptively approved. She conducted no independent investigation or analysis of evidence. The cursory intake interview, which focused on Deanna’s mediocre grades and her mother’s unemployment, merely confirmed for the JPO that juvenile court involvement was warranted.

Deanna’s initial court appearance was in February. The judge notified her that counsel would soon be appointed. By then, however, Deanna had already received a 10-day school suspension and had missed yet another day of instruction to appear in court.

Deanna became increasingly anxious and upset. She was teased at school for having been suspended, and she worried her friends would find out about the pending criminal charges. Meanwhile, her mother’s job hunt was repeatedly interrupted by the case, increasing tension at home. By the time she met with her public defender, Deanna only wanted the case to end, imploring, “Can we just move on and say I started the rumor? This is stupid.”

Deanna’s entry to the juvenile court system is representative of how many young people find themselves in U.S. delinquency courts. Deanna was accused of typical adolescent misconduct committed in a school setting, which is one of the primary feeders into juvenile court. Since the mid-1990s, zero-tolerance policies in public schools have led to children being criminally charged for misbehavior that previously would have been addressed through internal school procedures. As a result, Deanna not only received a two-week suspension, she was also questioned by a police officer, interviewed by a JPO, adjudicated in a public forum and placed on court supervision for at least 12 months, with a variety of conditions imposed on both her and her parents.

Although the media, members of the public and even some JPOs, prosecutors and judges colloquially refer to juvenile court as “kiddie court,” presuming it has few negative effects on children, research indicates that the impact of juvenile court processing — such as Deanna’s — is not benign. Potential negative consequences of juvenile delinquency adjudications are felt in areas such as housing, employment, immigration and education, as well as enhanced penalties for future offenses.

Deanna’s felony adjudication, for example, could be used against her in the contexts of pretrial release, plea negotiation or sentencing if she were to face new charges as an adult in criminal court. The prosecutor could invoke it during a bail hearing to support an argument for a higher bond or during plea-bargaining to push for a more punitive sentence. It could also potentially hinder her ability to obtain employment and college admission, as well as financial aid. Furthermore, longitudinal studies have shown that children exposed to juvenile court reoffend at higher rates and are stigmatized by even the most minimal contact with the court system.

We also know that contact with the juvenile justice system is inherently criminogenic, and that when young people perceive court procedures to be unfair, they reoffend at higher rates. We know that detention, even for short periods of time, can be damaging to a child’s emotional well-being and that it exposes young people to the risk of physical and sexual assault. We know that long-term commitment exacerbates the conditions of those with pre-existing behavioral and mental health problems, which includes a significant subgroup of those who enter the juvenile court system. We know that reducing the rate of juvenile incarceration does not increase juvenile crime or violence, and that the number of cases that are either diverted or petitioned approximates the same percentage of youth who have been found to grow out of delinquent behavior through normal adolescent development without any court intervention.

Yet we continue to use the juvenile justice system as the primary safety net for many poor children and their familiestwitter-bird-small. We allow those children with the most needs to be fast-tracked through an indiscriminate intake system. We watch passively as they are saddled with the stigma of juvenile delinquency adjudications and are often warehoused for months or years in juvenile detention facilities.

Imagine if Deanna were from a family of means, with two college-educated parents who were gainfully employed. Imagine that she had ready access to tutors and therapists. Picture her living in a well-tended home. Would this have made a difference at intake? Would the JPO have recommended some alternative to formal issuance of a felony petition? What separates these two versions of Deanna? Until the intake process is restructured, we will continue to have a juvenile court system in which the only logical answer to this question is socio-economic status.

This essay was originally published by the Juvenile Justice Information Exchange.

My research on the juvenile court intake process was published in the 2013 Texas Tech Law Review.

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Children in Isolation: The Solitary Confinement of Youth

Ismael Nazario was raised in Brooklyn, N.Y., by his mom, a single parent who always emphasized the importance of education and doing well in school. When Ismael was 13, his mother was diagnosed with breast cancer. As she underwent chemotherapy and radiation, Ismael began to struggle.

By 10th grade, he had lost interest in school and instead spent his time smoking marijuana and talking to girls. At 15, he got into a scuffle with another student and was arrested, placed in handcuffs and taken to the police station. A year later, at age 16, he was charged with assault and sent to Rikers Island jail to await resolution of his case.

There he was attacked by four inmates who demandimageed his phone privileges and commissary food and required him to ask their permission before sitting in a chair or using the bathroom. Ismael quickly learned that in order to survive, he needed to be ready to fight.

Although Ismael’s assault charge was ultimately dismissed, the two months that he spent in jail changed the way in which he saw himself and his place in the world. The following year, at age 17, he was once again held at Rikers — this time for two alleged robberies — as he could not afford to post bail. After getting into a fight with a group of other inmates, which guards characterized as inciting a riot, Ismail was placed in solitary confinement.

While there, he hallucinated, paced, talked to himself, cried and screamed. The New York City Department of Corrections disciplinary rules allow for inmates to be sentenced to punitive solitary confinement for such seemingly minor infractions as horseplay, noisy behavior or annoying a staff member.

Before Ismael left Rikers two years later, he had spent more than 300 days in “the box,” a six-by-eight-foot cell containing a bunk, sink, toilet, and metal door with no natural light and a small mesh window through which food is delivered. His longest stretch in solitary lasted four months. All of his time incarcerated at Rikers was in pretrial detention — he had not yet been convicted of a crime.

Ismael Nazario’s experience is representative of the many thousands of young people who are held in isolation on any given day across the globe. I’ve conducted new research that reveals that approximately 30 percent of the world’s countries either employ the practice or legally condone its use.

Whether the young person is held in a juvenile or immigrant detention center, adult jail or prison, the common denominator for all these settings is that the individual is under the age of 18, removed from the general population of the facility, and kept alone in a room or a cell for 23 hours each day, with one hour of exercise in what is often a small cage.

Frequently the triggering event for imposing isolation is a relatively minor misbehavior that violates the facility’s rules. Large percentages of teenagers in solitary have diagnosed mental health problems. Solitary may also be imposed during pretrial detention to coerce suspects into confessing or pleading guilty.

Government entities have long justified the practice of solitary confinement on only a few grounds. U.S. Bureau of Prisons regulations stipulate that solitary confinement is warranted to ensure the safety and security of the facility or as a sanction for committing a prohibited act. Corrections officers maintain that solitary is the best way to prevent violence among inmates, many of whom are mentally ill, and is necessary for prison guard safety. Studies have found that isolation is one of the key correlates for reports of illness, self-mutilation and jail suicides.

When the inmate is alone and living in disciplinary or segregated housing, violence toward staff has also been found to be significantly more likely. It has even been suggested that isolation and intensified control measures in prison settings generate a culture or ecology of cruelty, causing long-term psychological harm to the correctional officers who work in these units. Likewise, studies have found that subjecting prisoners to solitary confinement makes it more difficult for them to assimilate back into their communities, increasing the risk of recidivism.

There is no easy answer to the question of why the practice of isolating young inmates continues to persist despite extensive evidence of its harm. Since the 1980s, a major factor has been the tough on crime penal philosophy perpetuated by legislators and a lack of meaningful judicial review of the conditions of isolation. From the perspective of those within the prison industrial complex, it is easier to keep adolescent super-predators locked alone in cells than to implement the reforms necessary to create a healthy correctional environment.

This attitude is particularly pronounced when the young people are black or brown, have no one to advocate for them, and have been labeled bad kids or throwaway kids by the juvenile and criminal justice systems. These factors are further compounded by the high percentages of imprisoned youth who are mentally ill, have drug or alcohol addictions, or both, presenting even greater challenges to facilities with few resources.

Ismael Nazario, who spent more than 300 days in “the box” in Rikers Island jail, is now in his mid-20s. His mother survived cancer, and she and her son are still close. Ismael eventually pled guilty to one of the robbery charges and the other was reduced to a misdemeanor, enabling him to avoid a felony conviction. Since his release he has found meaningful employment — for three years he worked as a case manager with at-risk adolescents in Brooklyn and more recently with adults and teenagers who have been released from Rikers Island. Ismail does not talk with his clients about his own time in the box, but he has seen what the experience has done to other boys.

Most young people who are held in isolation are not as fortunate as Ismail. Yet, the question of whether to continue to isolate youth cannot be characterized as merely another intractable issue about which reasonable minds may differ. The justifications that allow governments to keep teenagers alone in cells for hours, days and weeks at a time are not the result of rational thinking based on evidence. Instead, the solitary confinement of youth is one more byproduct of the systemic problems that continue to plague modern society: the vanishing social safety-net, generational poverty, implicit bias, the school-to-prison pipeline, mass incarceration and the criminalization of mental illness. Ending the practice of isolating children is an important step toward confronting these broader issues.

This essay was originally published by the Juvenile Justice Information Exchange.

My scholarship on the solitary confinement of youth will be published in the Wake Forest Law Review later this year; a draft version may be found here.


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Engagement of Victims in Juvenile and Family Courts


By Shawn C. Marsh, Ph.D. and Kelly Ranasinghe, J.D., C.W.L.S.

According to the U.S. Department of Health and Human Services, more than three million children were reported to authorities for abuse or neglect in 2012, with approximately two million of those cases receiving a response by Child Protective Services. Further, the U.S. Bureau of Justice Assistance reports that in 2013 U.S. residents age 12 or older experienced an estimated 6.1 million violent victimizations. Although it is not clear how many of these victims came in direct contact with juvenile and family courts, it is likely a substantial portion experience at least some contact with the justice system. Before appropriate services for victims can be coordinated by justice system professionals, it is necessary to identify who is a victim and to what degree has the experience of victimization impacted their functioning across physiological, psychological and social domains. Although identification and engagement is seemingly an easy task, in reality, it is more complex than many imagine. From a public health perspective, however, the payoff is substantial – and there are numerous ways to help victims. For example, in cases where victims develop traumatic stress reactions, there are myriad evidence-based treatments (e.g., trauma-focused cognitive behavioral therapy) that can promote healing and limit future victimization. The National Council of Juvenile and Family Court Judges (NCJFCJ) presents common challenges to appropriate engagement of victims in the justice system.

Challenge #1: Victims neither seen nor heard. Victims of crimes or other traumatic experiences might not come to the attention of the justice system because they do not come forward to authorities. A victim may also not have the capacity or ability to come forward (e.g., in the case of child experiencing abuse or neglect, intimidation in cases of domestic violence, etc.). Further, some victims might not know that the behavior or event they are subjected to is considered a crime, or victims in rural environments may find it difficult to report crime or seek help due to physical isolation. These realities speak to the importance of strong education for judges and allied court professionals on the signs of trauma and the importance of screening protocols.

Challenge #2: Victims seen but not heard. Even when a traumatic or adverse past is revealed or discovered, victims still face challenges. Ultimately, knowing one has a history of victimization is a necessary but not sufficient step in offering and coordinating indicated support. This is moving beyond understanding the symptomatology of victims; it also is considering the nuances of how experiences might impact the presentation of victims and giving voice to the victim about what they want and need. Asking “What happened to you – and how can we help?” is critical to ensuring victims are truly heard and provided maximum opportunity for self-determination.

Challenge #3: Victims resist or inconsistently engage in services. When victims are identified and indicate a desire for help, matching them with appropriate services can be difficult. This is not surprising. The court system was originally structured to function as an institution devoted to maintaining social order by providing dispute resolution mechanisms. In addition, many areas simply do not have the capacity to handle the many people who are referred to services by the court. Further, one remarkably persistent myth is that victims are automatically inclined to pursue treatment at all. It is important to remember that an arrest, the intervention of the court or the presence of a victim advocate does not alleviate all (or any) of the victim’s socio-economic and even psychological pressures to maintain the status quo. Many new professionals to the criminal justice field are struck by the initial reaction of a victim-client who they are there to help. In many instances, a victim’s reaction to intervention may range from dismissal\minimization to outright hostility and aggressiveness.

Challenge #4: Victims as offenders. The reality is that there is often a blurred line regarding victimization when dealing with offenders in court. Studies suggest, for example, that upwards of 90% of youth involved in the deep end of the juvenile justice system have some history of trauma or adverse events, with many demonstrating symptoms of Post Traumatic Stress Disorder. A core difficulty when working with these trauma victims who are also juvenile offenders are the diametrically different ways the court approaches treatment. For the majority of offenders in the juvenile justice system, an integral therapeutic goal of their probation is acknowledging the harm that they have inflicted upon others and taking responsibility for their actions. On the other hand, an integral part of trauma-focused treatment is ensuring the victim acknowledges her own trauma and victimization and understanding that the violence, abuse or trauma was not her fault. Accordingly, many courts struggle with victims that also can be offenders. Sometimes there is a reluctance to view victim-offenders as “injured” versus victim or offender. Indeed, this can be a difficult balance to strike, but is seen as critical to helping modify future offending behavior or being placed at risk for additional victimization.

Few will argue there are a substantial number of victims that likely come in contact with juvenile and family courts. Identification of those victims presents challenges, and even when identified, there are myriad considerations in assessing the degree to which services are needed and desired. Even when victims agree to participate in support, there are further challenges to matching services to need, assisting victims to remain engaged in services, and more holistically viewing injured parties. Trauma-informed courts, however, are a critical component in the healing community, and awareness of the dynamic and challenges outlined here are important to responding appropriately to victims – whether or not they develop traumatic stress reactions. To that end, the position of the NCJFCJ in regards to treatment of victims, as adopted by the Board of Directors via resolution in July 2012 as part of the Project ONE Key Principles, states:

All children, youth, families and communities deserve a justice system that promotes the safety and empowerment of victims. The need for information, efficiency and compliance must be weighed against the need for confidentiality. To empower victims, courts and other stakeholders should respect victim autonomy related to service access and process, as well as provide all relief allowable under law while meeting a broad array of safety, socioeconomic and community restoration needs. In domestic violence cases, victim autonomy related to decisions to leave a relationship or reunify should be emphasized whenever possible. Courts should treat the safety of children and adult victims of domestic violence with equal regard, and practice should demonstrate the understanding that the best interests, safety and resiliency of children are inextricably linked to the health, safety and welfare of their battered parent.

This post was published in conjunction with the National Council of Juvenile and Family Court Judges.

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