The Increasingly Paradoxical Nature
of Lengthy Juvenile Sentences
October 27, 2008
David M. Siegel
New England Law | Boston
dsiegel@nesl.edu
Law & Psychiatry Program – Clinical Research Seminar
University of Massachusetts Medical School
Worcester State Hospital
Overview
 Paradox
of Legal v. Clinical Trends
 Etiology of Lengthy Juvenile Sentences
 Clinical Developments
 Legal challenges to long juvenile sentences
 8th
Amendment (“cruel and unusual punishment”)
 Other challenges
 Developmental
 Infancy
 Rights
waivers
CST
Paradox
Juveniles today face greatly increased legal
susceptibility to harsher penalties, for more
offenses, at younger ages, than in 1980, despite
 Greater clinical skepticism concerning cognitive,
psychosocial and neuroanatomical development
of youth required for legal process since 1980s.
 Children old enough to do adult crime are old
enough to get adult time, but they are not yet
adult enough to get (or do) adult time.

Juvenile susceptibility to lengthy
prison sentences
Juvenile crime increases, especially for
violent crime, peaked around 1996
 Virtually all states modified juvenile law in
response
 Juvenile crime and imprisonment as adults
have continued to fall

Juvenile Offenders and Victims: 2006 National Report
Graphs from Chapter 3:
Juvenile Offenders
Copyright 2006
National Center for Juvenile Justice
3700 S. Water Street, Suite 200
Pittsburgh, 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 crime by
juveniles between 1980 and 2003 are documented by
both victim reports and arrests
Between 1994 and 2002, the number of murders involving a
juvenile offender fell 65%, to its lowest level since 1984
Crime & Sentencing Trends since 1996
Decrease in juveniles tried as adults
 Decreases in juveniles entering adult
prisons
 Decrease in proportion of juveniles as
inmates in adult prisons

Juvenile courts waived 46% fewer
delinquency cases to criminal court in
2002 than in 1994
Between 1996 and 2002, the
number of new admissions of
youth younger than 18 to state
prisons fell 45%
The population of inmates
younger than age 18 fell 54%
between 1997 and 2004
What 1990s legal changes enabled more
lengthy juvenile sentences?

Increased trial of children as adults
 Removal
of juvenile court jurisdiction
 Expanded eligibility for transfer
 Expanded prosecutorial discretion to direct file
 Lowered age of adult criminal court jurisdiction
All states permit trial of some children as
adults
 2005 APA Position Statement (attached)

Developmental differences impair
juveniles’ legal decision-making
Juveniles ≤ age 15 more likely to confess
and waive counsel than adults
 Juveniles ≤ age 15 less likely to choose to
appeal cases or disagree with attorneys
 Accept plea bargains - mixed

Greater clinical skepticism about
juveniles’ competence and responsibility

Adolescence is psychologically distinctive
 Cognitive
focus on present
 Emotion-based decision-making

Adolescent brain physiologically distinctive
with developmental chronology
 Substantial
brain development into early 20s
 Prefrontal cortex develops last
Developmental Features of Juveniles
recognized in US Sup Ct in 2005

Roper v. Simmons – Court acknowledges
 Juvenile
predilection for risky behavior
 Increased susceptibility to outside pressure
 Incompletely formed character

Note: This accompanied an evolving national
consensus against juvenile death penalty.
8th Amendment to US Constitution
“Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual
punishments inflicted.”
 Two basic interpretive problems

 Times
change
 Facial
challenges – categorical exemptions
 Assess by “evolving standards of decency”
 Every
case is different
 As-applied
challenges – case-specific exemptions
 Assess for “gross disproportionality” only, not strict
proportionality
“Evolving standards of decency”

“Objective indicia” of national consensus
 State
law changes and direction of changes
 State and jury practices in imposing penalty

“Independent judgment” of the Court
 Culpability
of specific class of offenders
 Societal goals of punishment
 Practices of other states and countries
Facial 8th Amend. violations found

Death penalty

Imposed on Defendants
<18 at crime – Roper v. Simmons (2005)
 Developmentally disabled – Atkins v. Va. (2002)
 Aided & abetted felony murder but did not attempt to kill or
intend death occur – Enmund v. Fla. (1982)


For non-homicide crimes of
Rape of adult woman – Coker v. Ga. (1977)
 Rape of child <12 – Kennedy v. La. (2008)


Non-capital applications
12 yrs hard labor, falsifying gov’t document – Weems v US
(1909)
 Loss of citizenship for desertion – Trop v. Dulles (1958)
 Criminalization of drug addiction – Robinson v. Cal. (1962)

Why don’t Roper + Atkins mean
JuvLWOP violates 8th Amendment?

Nat’l consensus supports eligibility for, and imposition
of, harsh juvenile penalties

Compare to emerging national consensus in
30 states barred juvenile d/p (2005)
 30 states barred d/p for mentally retarded (2002)


Compare to national consensus against imposing d/p
3 states had executed person <18 (1995-2005)
 5 states had executed person IQ<70 (1989-2002)


Court’s “independent judgment” has been almost
exclusively in capital cases
Death's unique nature requires limiting to worst of the
worst.
 Acknowledges wide range of penological approaches

LWOP Eligibility by State
No JLWOP Discretionary
(10)
JLWOP (19)
Mandatory LWOP
(+Juv) (16)
Mandatory
LWOP with
factors (+Juv) (6)
Alaska
Colorado
California
D.C.
Indiana
Kansas
Kentucky
New Mexico
New York
Texas
Arkansas New Jersey
Connecticut N. Carolina
Delaware Pennsylvania
Florida
S. Dakota
Iowa
Washington
Louisiana
Massachusetts
Michigan
Minnesota
Missouri
New Hampshire
Alabama
Georgia
Idaho
Ohio
South Carolina
Virginia
Arizona Oklahoma
Hawaii
Oregon
Illinois
R. Island
Maine
Tennessee
Maryland Utah
Mississippi Vermont
Montana W. Virginia
Nebraska Wisconsin
Nevada
Wyoming
North Dakota
As-Applied
th
8
Amend. violations
Crime v. sentence suggest gross disproportionality?
 If so, compare

 Penalties
for similar crimes in same state
 Penalties for identical crime in other states

Not grossly disproportionate
 LWOP
for possession > 650 gms cocaine – Mich.
v. Harmelin (1991)
 25-life x 2 (consecutively) for “3rd strike” nonviolent felony – Ewing v. Cal. (2003)
As-Applied Challenges to Lengthy
Prison Sentences for Juveniles
1968 - Workman v. Ky ~ LWOP for 14 yr
old for rape “shocks conscience of
society”
 1989 - Naovarath v. Nevada ~LWOP for 13
yr old for murder cruel and unusual
 No other cases hold disproportionality –
many reject it

Hawkins v. Hargett (10th Cir. 1999)
“[T]here is apparently no societal consensus
that a long sentence imposed on a defendant
for serious crimes he committed at age thirteen
offends evolving standards of decency. . . .
[T]he growing minority of states permitting
such punishment is evidence of changing
public sentiment toward modern society’s
violent youthful offenders, . . . modern society
apparently condones the severe punishment of
individuals who commit serious crimes at
young ages.”
South Carolina v. Christopher Pittman



11/28/2001 shotgun murder of
sleeping paternal grandparents
Defendant 12 yrs old
Just moved to S.C. from Fla.
Attempted runaway, threatens self
 Involuntarily committed by father
 Treated inpatient with Paxil
 S.C. MD prescribes Zoloft



8th Amendment Facial Challenge
“Appellant argues the portion of the brain that gives
one the cognitive capacity to satisfactorily perform
acts such as forming malice and waiving constitutional
rights is underdeveloped in a twelve-year-old.”
“Based on evidence in the record, [he] planned a
double murder, executed an escape plan, and
concocted a false story of the previous evening’s
events. . . . The specific factual evidence in this case
stands in stark contrast to the general nature of the
scientific evidence . . . .”
State v. Pittman, 647 S.E.2d 144, 163 (S.C. 2007)
Pittman Amicus Certiorari Petition
Recent behavioral and neuropsychological
evidence of cognitive and psychosocial
development demonstrates that
imprisonment of a 12-year-old child for
decades without possibility of parole is
inconsistent with constitutional principles
of proportionality in criminal punishment
 U.S. Sup. Ct. denied certiorari 4/14/2008

Terrance Jamar Graham v. Fla

2003: 16 yrs old ~ Armed burglary with assault
and attempted armed robbery


Received 1 year to serve, 3 years probation (plea)
12/2004: 17 yrs old ~ Armed home invasion
Probation violation for new charge
 LWOP for Probation violation


Upheld 4/10/2008, 2008 WL 957672 (Fla.App.
1 Dist.)
Judge’s statement on probation violation
Terrance Jamar Graham v. Fla
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.
Future of the Legal/Clinical Paradox?


Further 8th Amendment challenges (barely in MA)
Rediscovery of infancy defense
Some states (CA, AZ, FL) have already found
developmental immaturity alone can preclude ability be
criminally responsible.
 Rejected in MA, at least categorically.


Clinical issues can arise case-by-case
Developmental competence in CST?
 Failure to raise developmental competence ineffective?
 Developmental competence in rights waivers?
 Appropriateness of adult or blended sentencing?


Reduce or limit transfer eligibility via legislation/rule
Massachusetts Cases: 8th Am.
Comm. v. Ruscitti, 23 Mass.L.Rptr. 517 (Worcester
Sup. Ct. 2/8/2008)
 Two 16 yr olds argue pretrial LWOP (1st degree
murder) violates 8th Am. and should be barred.
 Offer expert testimony of juveniles’
psychosocial and cognitive immaturity.
 Denied:
 Issue
not “ripe” since it can be heard post-trial,
 Policy allowing pretrial challenge to capital charge is
based on procedural differences in capital cases.
Massachusetts Cases: Infancy
Comm. v. Ogden O., 448 Mass. 798 (2007)
 Is a 10 yr old convicted of “mayhem” too
young to form specific intent?
 Unprovoked
spraying and igniting flammable liquid
on 9 yr old passerby.
 CST pretrial; no psych testimony at trial.

Held: No, not in general or as to this child.
 MA
law never presumed juveniles under 14 lacked
capacity;
 Legislature’s enactment of comprehensive juvenile
justice system giving greater protections to juveniles
precludes “infancy” defense.

Developmental issues’ significance in infancy?
Case-specific incapacity always possible


“[I]t might be possible for a particular juvenile to present
expert testimony based on scientific evidence
demonstrating that the juvenile was unable to form the
specific intent to commit a crime because of a mental
deficiency, brain injury, or the like.”
Legislature can recognize science by changing law

“[A]s to evidence that children between the ages of seven
and fourteen years are incapable of committing criminal
acts because of insufficient brain development, . . . respect
for the legislative process means that it is not the province
of the court to sit and weigh conflicting evidence
supporting or opposing a legislative enactment.”
Significance of no psych evid?

“[A]ppellate counsel relies, in part, on recent
scientific studies that purport to show that brain
development plays a crucial role in a child's
ability to understand the consequences of his
actions. These studies . . . do not address the
mental capacities or deficiencies of this
particular juvenile. As such, even if these
scientific studies had been introduced by trial
counsel, they would have had a negligible effect
on the current proceedings.”

Dev CST





Resources
David R. Katner, The Mental Health Paradigm And The Macarthur Study:
Emerging Issues Challenging The Competence Of Juveniles In Delinquency
Systems, 32 Am. J.L. & Med. 503 (2006).
Christopher Mallett, Death Is Not Different: The Transfer of Juvenile
Offenders to Adult Criminal Courts, 43 No. 4 Crim. Law Bulletin 3 (JulyAug 2007).
Grisso, S., Steinberg, L., Woolard, J., Cauffman, E., Scott, E.,
Graham, S., et al., Juveniles' competence to stand trial: A comparison of
adolescents' and adults' capacities as trial defendants, Law and Human
Behavior, 27, 333-363 (2003).
McArthur Foundation Research Network on Adolescent
Development: http://www.adjj.org
Infancy

Barbara Kaban & James Orlando, Revitalizing The Infancy Defense In The
Contemporary Juvenile Court, 60 Rutgers L. Rev. 33 (2007).