The Increasingly The Increasingly Paradoxical Nature of Paradoxical Nature of

Lengthy Juvenile SentencesLengthy Juvenile Sentences

October 27, 2008October 27, 2008David M. SiegelDavid M. Siegel

New England Law | BostonNew England Law | Bostondsiegel@nesl.edudsiegel@nesl.edu

Law & Psychiatry Program – Clinical Research Law & Psychiatry Program – Clinical Research SeminarSeminar

University of Massachusetts Medical SchoolUniversity of Massachusetts Medical SchoolWorcester State HospitalWorcester State Hospital

OverviewOverview Paradox of Legal v. Clinical Trends Paradox of Legal v. Clinical Trends Etiology of Lengthy Juvenile SentencesEtiology of Lengthy Juvenile Sentences Clinical DevelopmentsClinical Developments Legal challenges to long juvenile Legal challenges to long juvenile

sentencessentences 88thth Amendment (“cruel and unusual Amendment (“cruel and unusual

punishment”)punishment”) Other challengesOther challenges

Developmental CSTDevelopmental CST InfancyInfancy Rights waiversRights waivers

ParadoxParadox Juveniles today face greatly increased Juveniles today face greatly increased legallegal

susceptibility to harsher penalties, for more susceptibility to harsher penalties, for more offenses, at younger ages, than in 1980, offenses, at younger ages, than in 1980, despitedespite

Greater Greater clinicalclinical skepticism concerning skepticism concerning cognitive, psychosocial and cognitive, psychosocial and neuroanatomical development of youth neuroanatomical development of youth required for legal process since 1980s.required for legal process since 1980s.

Children Children old enoughold enough to do adult crime are to do adult crime are old enough to get adult time, but they are old enough to get adult time, but they are not yet not yet adult enoughadult enough to get (or do) adult to get (or do) adult time.time.

Juvenile susceptibility to Juvenile susceptibility to lengthy prison sentences lengthy prison sentences

Juvenile crime increases, Juvenile crime increases, especially for violent crime, especially for violent crime, peaked around 1996peaked around 1996

Virtually all states modified Virtually all states modified juvenile law in responsejuvenile law in response

Juvenile crime and imprisonment Juvenile crime and imprisonment as adults have continued to fallas adults have continued to fall

Juvenile Offenders and Victims: 2006 Juvenile Offenders and Victims: 2006 National ReportNational Report

Graphs from Chapter 3: Graphs from Chapter 3: Juvenile OffendersJuvenile OffendersCopyright 2006National Center for Juvenile Justice3700 S. Water Street, Suite 200Pittsburgh, PA 15203-2363

Suggested Citation: Snyder, Howard N., and Sickmund, Melissa. 2006. Juvenile Offenders and Victims: 2006 National Report. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

More information is available online. The full report, report chapters, and data files for the graphs can be downloaded from http://ojjdp.ncjrs.gov/ojstatbb/nr2006/index.html

Additional statistics are available from OJJDP's Statistical Briefing Book, located at:http://ojjdp.ncjrs.gov/ojstatbb/index.html

The growth and decline in violent The growth and decline in violent crime by juveniles between 1980 and crime by juveniles between 1980 and 2003 are documented by both victim 2003 are documented by both victim

reports and arrestsreports and arrests

Between 1994 and 2002, the number of murders Between 1994 and 2002, the number of murders involving a juvenile offender fell 65%, to its involving a juvenile offender fell 65%, to its

lowest level since 1984lowest level since 1984

Crime & Sentencing Trends Crime & Sentencing Trends since 1996since 1996

Decrease in juveniles tried as Decrease in juveniles tried as adultsadults

Decreases in juveniles entering Decreases in juveniles entering adult prisonsadult prisons

Decrease in proportion of Decrease in proportion of juveniles as inmates in adult juveniles as inmates in adult prisonsprisons

Juvenile courts waived 46% Juvenile courts waived 46% fewer delinquency cases to fewer delinquency cases to criminal court in 2002 than criminal court in 2002 than

in 1994in 1994

Between 1996 and 2002, Between 1996 and 2002, the number of new the number of new admissions of youth admissions of youth

younger than 18 to state younger than 18 to state prisons fell 45%prisons fell 45%

The population of The population of inmates younger than inmates younger than

age 18 fell 54% between age 18 fell 54% between 1997 and 20041997 and 2004

What 1990s legal changes What 1990s legal changes enabled more lengthy juvenile enabled more lengthy juvenile

sentences?sentences? Increased trial of children as adultsIncreased trial of children as adults

Removal of juvenile court jurisdictionRemoval of juvenile court jurisdiction Expanded eligibility for transferExpanded eligibility for transfer Expanded prosecutorial discretion to Expanded prosecutorial discretion to

direct filedirect file Lowered age of adult criminal court Lowered age of adult criminal court

jurisdictionjurisdiction All states permit trial of some children All states permit trial of some children

as adultsas adults 2005 APA Position Statement (attached)2005 APA Position Statement (attached)

Developmental differences Developmental differences impair juveniles’ legal impair juveniles’ legal

decision-makingdecision-making Juveniles ≤ age 15 more likely to Juveniles ≤ age 15 more likely to

confess and waive counsel than confess and waive counsel than adultsadults

Juveniles ≤ age 15 less likely to Juveniles ≤ age 15 less likely to choose to appeal cases or choose to appeal cases or disagree with attorneysdisagree with attorneys

Accept plea bargains - mixedAccept plea bargains - mixed

Greater clinical skepticism Greater clinical skepticism about juveniles’ competence about juveniles’ competence

andand responsibility responsibility Adolescence is psychologically Adolescence is psychologically

distinctivedistinctive Cognitive focus on presentCognitive focus on present Emotion-based decision-makingEmotion-based decision-making

Adolescent brain physiologically Adolescent brain physiologically distinctive with developmental distinctive with developmental chronology chronology Substantial brain development into early Substantial brain development into early

20s20s Prefrontal cortex develops lastPrefrontal cortex develops last

Developmental Features of Developmental Features of Juveniles recognized in US Juveniles recognized in US

Sup Ct in 2005Sup Ct in 2005 Roper v. SimmonsRoper v. Simmons – Court – Court

acknowledgesacknowledges Juvenile predilection for risky behaviorJuvenile predilection for risky behavior Increased susceptibility to outside Increased susceptibility to outside

pressurepressure Incompletely formed characterIncompletely formed character

Note: This accompanied an Note: This accompanied an evolving evolving national consensusnational consensus against juvenile against juvenile death penalty.death penalty.

88thth Amendment to US Amendment to US ConstitutionConstitution ““Excessive bail shall not be required, Excessive bail shall not be required,

nor excessive fines imposed, nor cruel nor excessive fines imposed, nor cruel and unusual punishments inflicted.”and unusual punishments inflicted.”

Two basic interpretive problemsTwo basic interpretive problems Times change Times change

FacialFacial challenges – categorical exemptions challenges – categorical exemptions Assess by “evolving standards of decency”Assess by “evolving standards of decency”

Every case is differentEvery case is different As-applied As-applied challenges – case-specific challenges – case-specific

exemptionsexemptions Assess for “gross disproportionality” only, not Assess for “gross disproportionality” only, not

strict proportionalitystrict proportionality

““Evolving standards of Evolving standards of decency”decency”

““Objective indicia” of national Objective indicia” of national consensus consensus State law changes and direction of State law changes and direction of

changeschanges State and jury practices in imposing State and jury practices in imposing

penaltypenalty ““Independent judgment” of the CourtIndependent judgment” of the Court

Culpability of specific class of offendersCulpability of specific class of offenders Societal goals of punishmentSocietal goals of punishment Practices of other states and countriesPractices of other states and countries

FacialFacial 8 8thth Amend. violations Amend. violations foundfound Death penalty Death penalty

Imposed on DefendantsImposed on Defendants <18 at crime – <18 at crime – Roper v. Simmons Roper v. Simmons (2005)(2005) Developmentally disabled – Developmentally disabled – Atkins v. Va.Atkins v. Va. (2002) (2002) Aided & abetted felony murder but did not attempt Aided & abetted felony murder but did not attempt

to kill or intend death occur – to kill or intend death occur – Enmund v. Fla.Enmund v. Fla. (1982) (1982) For non-homicide crimes ofFor non-homicide crimes of

Rape of adult woman – Rape of adult woman – Coker v. Ga.Coker v. Ga. (1977) (1977) Rape of child <12 – Rape of child <12 – Kennedy v. La.Kennedy v. La. (2008) (2008)

Non-capital applicationsNon-capital applications 12 yrs hard labor, falsifying gov’t document – 12 yrs hard labor, falsifying gov’t document –

Weems v USWeems v US (1909) (1909) Loss of citizenship for desertion – Loss of citizenship for desertion – Trop v. Trop v.

Dulles Dulles (1958)(1958) Criminalization of drug addiction – Criminalization of drug addiction – Robinson v. Robinson v.

Cal.Cal. (1962) (1962)

Why don’t Why don’t RoperRoper + + AtkinsAtkins mean JuvLWOP violates 8mean JuvLWOP violates 8thth

Amendment?Amendment? Nat’l consensus supports eligibility for, Nat’l consensus supports eligibility for, and imposition of, harsh juvenile penaltiesand imposition of, harsh juvenile penalties Compare to emerging national consensus in Compare to emerging national consensus in

30 states barred juvenile d/p (2005)30 states barred juvenile d/p (2005) 30 states barred d/p for mentally retarded (2002)30 states barred d/p for mentally retarded (2002)

Compare to national consensus against Compare to national consensus against imposing d/pimposing d/p

3 states had executed person <18 (1995-2005)3 states had executed person <18 (1995-2005) 5 states had executed person IQ<70 (1989-2002)5 states had executed person IQ<70 (1989-2002)

Court’s “independent judgment” has been Court’s “independent judgment” has been almost exclusively in capital casesalmost exclusively in capital cases Death's unique nature requires limiting to Death's unique nature requires limiting to

worst of the worst.worst of the worst. Acknowledges wide range of penological Acknowledges wide range of penological

approachesapproaches

LWOP Eligibility by StateLWOP Eligibility by StateNo No JLWOP JLWOP (10)(10)

Discretionary Discretionary

JLWOP (19)JLWOP (19)Mandatory Mandatory LWOP (+Juv) LWOP (+Juv) (16)(16)

Mandatory Mandatory LWOP with LWOP with factors factors (+Juv) (6) (+Juv) (6)

AlaskaAlaskaColoradoColoradoCaliforniaCaliforniaD.C. D.C. IndianaIndianaKansasKansasKentuckyKentuckyNew New MexicoMexicoNew YorkNew YorkTexasTexas

Arizona Arizona OklahomaOklahoma

Hawaii Hawaii OregonOregon

Illinois R. Illinois R. IslandIsland

Maine Maine TennesseeTennessee

Maryland UtahMaryland Utah

Mississippi Mississippi VermontVermont

Montana W. Montana W. VirginiaVirginia

Nebraska Nebraska WisconsinWisconsin

Nevada Nevada WyomingWyoming

North DakotaNorth Dakota

Arkansas New Arkansas New JerseyJersey

Connecticut N. Connecticut N. CarolinaCarolina

Delaware Delaware PennsylvaniaPennsylvania

Florida S. Florida S. DakotaDakota

Iowa Iowa WashingtonWashington

LouisianaLouisiana

MassachusettsMassachusetts

MichiganMichigan

MinnesotaMinnesota

MissouriMissouri

New HampshireNew Hampshire

AlabamaAlabama

GeorgiaGeorgia

IdahoIdaho

OhioOhio

South CarolinaSouth Carolina

Virginia Virginia

As-AppliedAs-Applied 8 8thth Amend. Amend. violationsviolations

Crime v. sentence suggest Crime v. sentence suggest gross gross disproportionalitydisproportionality??

If so, compareIf so, compare Penalties for similar crimes in same statePenalties for similar crimes in same state Penalties for identical crime in other statesPenalties for identical crime in other states

Not Not grossly disproportionategrossly disproportionate LWOP for possession > 650 gms cocaine – LWOP for possession > 650 gms cocaine –

Mich. v. HarmelinMich. v. Harmelin (1991) (1991) 25-life x 2 (consecutively) for “325-life x 2 (consecutively) for “3rdrd strike” strike”

non-violent felony – non-violent felony – Ewing v. Cal.Ewing v. Cal. (2003) (2003)

As-Applied Challenges to As-Applied Challenges to Lengthy Prison Sentences Lengthy Prison Sentences

for Juvenilesfor Juveniles 1968 -1968 - Workman v. Ky Workman v. Ky ~ LWOP ~ LWOP

for 14 yr old for rape “shocks for 14 yr old for rape “shocks conscience of society”conscience of society”

1989 - 1989 - Naovarath v. NevadaNaovarath v. Nevada ~LWOP for 13 yr old for murder ~LWOP for 13 yr old for murder cruel and unusualcruel and unusual

No other cases hold No other cases hold disproportionality – many reject disproportionality – many reject itit

Hawkins v. HargettHawkins v. Hargett (10 (10thth Cir. 1999) Cir. 1999) ““[T]here is apparently no societal [T]here is apparently no societal

consensus that a long sentence consensus that a long sentence imposed on a defendant for serious imposed on a defendant for serious crimes he committed at age thirteen crimes he committed at age thirteen offends evolving standards of offends evolving standards of decency. . . . [T]he growing minority of decency. . . . [T]he growing minority of states permitting such punishment is states permitting such punishment is evidence of changing public sentiment evidence of changing public sentiment toward modern society’s violent toward modern society’s violent youthful offenders, . . . modern society youthful offenders, . . . modern society apparently condones the severe apparently condones the severe punishment of individuals who commit punishment of individuals who commit serious crimes at young ages.” serious crimes at young ages.”

South Carolina v. Christopher South Carolina v. Christopher PittmanPittman 11/28/2001 shotgun 11/28/2001 shotgun

murder of sleeping paternal murder of sleeping paternal grandparentsgrandparents

Defendant 12 yrs oldDefendant 12 yrs old Just moved to S.C. from Just moved to S.C. from

Fla.Fla. Attempted runaway, Attempted runaway,

threatens selfthreatens self Involuntarily committed by Involuntarily committed by

fatherfather Treated inpatient with Paxil Treated inpatient with Paxil S.C. MD prescribes ZoloftS.C. MD prescribes Zoloft

88thth Amendment Facial Amendment Facial ChallengeChallenge ““Appellant argues the portion of the brain that Appellant argues the portion of the brain that

gives one the cognitive capacity to gives one the cognitive capacity to satisfactorily perform acts such as forming satisfactorily perform acts such as forming malice and waiving constitutional rights is malice and waiving constitutional rights is underdeveloped in a twelve-year-old.”underdeveloped in a twelve-year-old.”

““Based on evidence in the record, [he] Based on evidence in the record, [he] planned a double murder, executed an escape planned a double murder, executed an escape plan, and concocted a false story of the plan, and concocted a false story of the previous evening’s events. . . . The specific previous evening’s events. . . . The specific factual evidence in this case stands in stark factual evidence in this case stands in stark contrast to the general nature of the scientific contrast to the general nature of the scientific evidence . . . .”evidence . . . .”

State v. PittmanState v. Pittman, 647 S.E.2d 144, 163 (S.C. , 647 S.E.2d 144, 163 (S.C. 2007)2007)

PittmanPittman Amicus Certiorari Amicus Certiorari PetitionPetition

Recent behavioral and Recent behavioral and neuropsychological evidence of neuropsychological evidence of cognitive and psychosocial cognitive and psychosocial development demonstrates that development demonstrates that imprisonment of a 12-year-old child imprisonment of a 12-year-old child for decades without possibility of for decades without possibility of parole is inconsistent with parole is inconsistent with constitutional principles of constitutional principles of proportionality in criminal punishmentproportionality in criminal punishment

U.S. Sup. Ct. denied certiorari U.S. Sup. Ct. denied certiorari 4/14/20084/14/2008

Terrance Jamar Graham Terrance Jamar Graham v. Flav. Fla

2003: 16 yrs old ~ Armed burglary with 2003: 16 yrs old ~ Armed burglary with assault and attempted armed robberyassault and attempted armed robbery Received 1 year to serve, 3 years probation Received 1 year to serve, 3 years probation

(plea)(plea) 12/2004: 17 yrs old ~ Armed home 12/2004: 17 yrs old ~ Armed home

invasioninvasion Probation violation for new chargeProbation violation for new charge LWOP for Probation violationLWOP for Probation violation

Upheld 4/10/2008, 2008 WL 957672 Upheld 4/10/2008, 2008 WL 957672 (Fla.App. 1 Dist.)(Fla.App. 1 Dist.)

I don't understand why you would be given such a great opportunity to do something with your life and why you would throw it away. The only thing that I can rationalize is that you decided that this is how you were going to lead your life and there is nothing that we can do for you. And as the state pointed out, that this is an escalating pattern of criminal conduct on your part and that we can't help you any further.

We can't do anything to deter you. This is the way you are going to lead your life, and I don't know why you are going to. You've made that decision. I have no idea. But, evidently, that is what you decided to do.

Judge’s statement on probation Judge’s statement on probation violationviolation

Terrance Jamar Graham v. Fla Terrance Jamar Graham v. Fla

Future of the Legal/Clinical Future of the Legal/Clinical Paradox?Paradox? Further 8Further 8thth Amendment challenges (barely in Amendment challenges (barely in

MA)MA) Rediscovery of infancy defenseRediscovery of infancy defense

Some states (CA, AZ, FL) have already foundSome states (CA, AZ, FL) have already found developmental immaturity developmental immaturity alonealone can preclude can preclude ability be criminally responsible. ability be criminally responsible.

Rejected in MA, at least categorically. Rejected in MA, at least categorically. Clinical issues can arise case-by-caseClinical issues can arise case-by-case

Developmental competence in CST? Developmental competence in CST? Failure to raise developmental competence Failure to raise developmental competence

ineffective?ineffective? Developmental competence in rights waivers?Developmental competence in rights waivers? Appropriateness of adult or blended sentencing?Appropriateness of adult or blended sentencing?

Reduce or limit transfer eligibility via Reduce or limit transfer eligibility via legislation/rulelegislation/rule

Massachusetts Cases: 8Massachusetts Cases: 8thth Am.Am.Comm. v. Ruscitti, Comm. v. Ruscitti, 23 Mass.L.Rptr. 517 23 Mass.L.Rptr. 517

(Worcester Sup. Ct. 2/8/2008)(Worcester Sup. Ct. 2/8/2008) Two 16 yr olds argue pretrial LWOP (1Two 16 yr olds argue pretrial LWOP (1stst

degree murder) violates 8degree murder) violates 8thth Am. and should Am. and should be barred.be barred.

Offer expert testimony of juveniles’ Offer expert testimony of juveniles’ psychosocial and cognitive immaturity.psychosocial and cognitive immaturity.

Denied:Denied: Issue not “ripe” since it can be heard post-trial,Issue not “ripe” since it can be heard post-trial, Policy allowing pretrial challenge to capital Policy allowing pretrial challenge to capital

charge is based on procedural differences in charge is based on procedural differences in capital cases.capital cases.

Massachusetts Cases: Massachusetts Cases: InfancyInfancyComm. v. Ogden OComm. v. Ogden O., 448 Mass. 798 ., 448 Mass. 798

(2007)(2007) Is a 10 yr old convicted of “mayhem” too Is a 10 yr old convicted of “mayhem” too

young to form specific intent?young to form specific intent? Unprovoked spraying and igniting Unprovoked spraying and igniting

flammable liquid on 9 yr old passerby.flammable liquid on 9 yr old passerby. CST pretrial; no psych testimony at trial.CST pretrial; no psych testimony at trial.

Held: No, not in general or as to this Held: No, not in general or as to this child.child. MA law never presumed juveniles under 14 MA law never presumed juveniles under 14

lacked capacity; lacked capacity; Legislature’s enactment of comprehensive Legislature’s enactment of comprehensive

juvenile justice system giving juvenile justice system giving greater greater protectionsprotections to juveniles precludes “infancy” to juveniles precludes “infancy” defense.defense.

Developmental issues’ significance in Developmental issues’ significance in infancy?infancy? Case-specific incapacity always possibleCase-specific incapacity always possible

““[I]t might be possible for a particular juvenile to [I]t might be possible for a particular juvenile to present expert testimony based on present expert testimony based on scientific scientific evidence demonstrating that the juvenile was evidence demonstrating that the juvenile was unable to form the specific intent to commit a unable to form the specific intent to commit a crime because of a mental deficiency, brain crime because of a mental deficiency, brain injury, or the likeinjury, or the like.”.”

Legislature can recognize science by Legislature can recognize science by changing lawchanging law ““[A]s to [A]s to evidence that children between the ages evidence that children between the ages

of seven and fourteen years are incapable of of seven and fourteen years are incapable of committing criminal acts because of insufficient committing criminal acts because of insufficient brain developmentbrain development, . . . respect for the legislative , . . . respect for the legislative process means that it is not the province of the process means that it is not the province of the court to sit and weigh conflicting evidence court to sit and weigh conflicting evidence supporting or opposing a legislative enactment.”supporting or opposing a legislative enactment.”

Significance of no psych Significance of no psych evid?evid? ““[A]ppellate counsel relies, in part, on [A]ppellate counsel relies, in part, on

recent scientific studies that purport to recent scientific studies that purport to show that brain development plays a show that brain development plays a crucial role in a child's ability to crucial role in a child's ability to understand the consequences of his understand the consequences of his actionsactions. These studies . . . do not . These studies . . . do not address the mental capacities or address the mental capacities or deficiencies of this particular juvenile. deficiencies of this particular juvenile. As such, even if these scientific studies As such, even if these scientific studies had been introduced by trial counsel, had been introduced by trial counsel, they would have had a negligible effect they would have had a negligible effect on the current proceedingson the current proceedings.”.”

ResourcesResources Dev CSTDev CST

David R. Katner, David R. Katner, The Mental Health Paradigm And The The Mental Health Paradigm And The Macarthur Study: Emerging Issues Challenging The Macarthur Study: Emerging Issues Challenging The Competence Of Juveniles In Delinquency SystemsCompetence Of Juveniles In Delinquency Systems, 32 Am. , 32 Am. J.L. & Med. 503 (2006).J.L. & Med. 503 (2006).

Christopher Mallett, Christopher Mallett, Death Is Not Different: The Transfer Death Is Not Different: The Transfer of Juvenile Offenders to Adult Criminal Courts, of Juvenile Offenders to Adult Criminal Courts, 43 No. 4 43 No. 4 Crim. Law Bulletin 3 (July-Aug 2007).Crim. Law Bulletin 3 (July-Aug 2007).

Grisso, S., Steinberg, L., Woolard, J., Cauffman, E., Scott, Grisso, S., Steinberg, L., Woolard, J., Cauffman, E., Scott, E., Graham, S., et al., E., Graham, S., et al., Juveniles' competence to stand trial: Juveniles' competence to stand trial: A comparison of adolescents' and adults' capacities as A comparison of adolescents' and adults' capacities as trial defendants, trial defendants, Law and Human Behavior, 27, 333-363 Law and Human Behavior, 27, 333-363 (2003).(2003).

McArthur Foundation Research Network on Adolescent McArthur Foundation Research Network on Adolescent Development: http://www.adjj.org Development: http://www.adjj.org

Infancy Infancy Barbara Kaban & James Orlando, Barbara Kaban & James Orlando, Revitalizing The Infancy Revitalizing The Infancy

Defense In The Contemporary Juvenile CourtDefense In The Contemporary Juvenile Court, 60 Rutgers , 60 Rutgers L. Rev. 33 (2007).L. Rev. 33 (2007).