The Prefrontal Cortex Strikes Again: Bill to Raise Age for Trying Juveniles as Adults to 20

The Sac Bee reports:

A California lawmaker argues that 18- and 19-year-olds aren’t mature enough to do prison time if they break the law, and so she has submitted a bill that would treat them like juveniles.

“When teenagers make serious mistakes and commit crimes, state prison is not the answer,” said bill sponsor Sen. Nancy Skinner, D-Berkeley. “Processing teenagers through the juvenile justice system will help ensure they receive the appropriate education, counseling, treatment, and rehabilitation services necessary to achieve real public safety outcomes.”

Skinner’s proposal is the last in a series of legislative and judicial changes reflecting what I referred to, in Yesterday’s Monsters, as the “rediscovery of childhood.” Since the early 2000s, our understanding of childhood and its implications as to accountability has undergone a dramatic scientific, legal, and social transformation. Recall the miscarriage of justice depicted in Ken Burns’ documentary The Central Park Five, in which five teenagers were accused, and wrongly convicted, of assaulting Trisha Meili in New York’s Central Park in 1985 and leaving her for dead. 

Current audiences bristle at the tough prosecutorial interrogation of children, but the newspaper headlines of the day (as well as rabid ads and media appearances by a younger Donald Trump) depict the youngsters as a “wolf pack” of “superpredators.” This case was no outlier: prompted by the media frenzy over the crack epidemic,  young criminal offenders, particularly African Americans, were regularly dehumanized, their age denoting danger rather than mitigation or rehabilitative potential.

However, the early 2000s, new brain imaging technologies enabled neuroscientists discover that the prefrontal cortex, which is responsible for the ability to delay gratification, exercise emotional regulation, and resist pressure, continuously grows well into our mid-twenties,  which explains impatience and rash decisions by teenagers and adolescents.

These developments first permeated the legal field in Roper v. Simmons,  where the Supreme Court struck down the death penalty for minors as unconstitutional. The court found that juveniles to be immature and irresponsible, more vulnerable to peer pressure, and possessing a “more transitory, less fixed” character. These differences “render suspect any conclusion that a juvenile falls among the worst offenders”, and therefore, from a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” 

The decision in Roper energized petitioners serving lengthy sentences for crimes committed when they were minors, and other landmark decisions followed. In Graham v. Florida,  the Supreme Court struck down life without parole for non-homicide offenses committed by juveniles, citing similar rationales, and explaining that the aims of punishment do not support such a harsh sentence for crimes other than homicide. Subsequently, in Miller v. Alabama,  the Court invalidated, for juvenile offenders, sentencing schemes under which certain murder convictions yielded mandatory life without parole sentences, finding that such schemes “preclude a sentencer from taking account of an offender’s . . . chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. . .  And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.”

Miller did not explicitly state that it would apply retroactively, to the many inmates already serving lengthy sentences under sentencing schemes that violated Miller. One such inmate was Henry Montgomery, convicted of the murder of a police officer when he was sixteen years old; at the time Miller was decided he was already in his late fifties, still serving time in Louisiana’s notorious Angola prison. Montgomery appealed his sentence,  arguing that Miller should apply retroactively.  Under constitutional doctrine, as established in Griffith v. Kentucky and in Teague v. Lane,  defendants whose cases are final face an uphill battle in reopening their cases in light of Supreme Court landmark decisions. They must convince the court of one of the following three arguments: first, that the landmark decision does not announce a “new rule,” but merely interprets prior precedent; second, that the “new rule” is substantive, rather than procedural, in nature; or third, that the “new rule” is a “watershed rule of criminal procedure,” of such seminal importance that justice requires it to be retroactively applicable.

In Montgomery, the Supreme Court was convinced of the second argument. It found that the Miller rule, according to which mandatory life without parole schemes could not apply to juveniles, was a substantive rule—a rule that “rendered life without parole an unconstitutional penalty for a class of defendants because of their status”, and therefore should apply retroactively. The Court was less decisive about the appropriate remedy, and Justice Kennedy opined that parole hearings might be a suitable forum for raising the age argument. 

 Before the Supreme Court announced its decision in Miller, a large California campaign waged by criminal justice nonprofits and human rights organizations yielded SB 9,  which required holding a judicial resentencing hearing for all juveniles serving life without parole. Subsequently, California lawmakers also adopted SB 260,  which expanded the access to resentencing hearings to juveniles serving other extreme sentences, short of life without parole. SB 260 was later amended by SB 261, further expanding the resentencing hearings to those who were under 23 years of age when committing the crime. This amendment better reflects neuroscience developments, according to which the prefrontal cortext continues to develop well into one’s early twenties. In this respect and others, California is ahead of the rest of the nation in acknowledging the contribution of youth to crime.  A subsequent bill signed into law in 2017, SB 394, set the date for the first opportunity for a hearing by a minor at 24 years of incarceration.   All of these developments, particularly in CA, explain the logic behind Skinner’s proposal.

 As an aside, because Yesterday’s Monsters is about parole hearings, I’ll say that these developments did, eventually, find their way into the parole hearing room with the parole grant recommendation for Leslie van Houten in 2016, in which the Board anchored its decision in the new understanding of youth:

Your choices that you made in your life at an early age based on the belief system that the family was over when there was a dissolution led you to a lifestyle of drugs, running away, unplanned pregnancy, the abortion, anti-establishment philosophy of the times. You exhibited these hallmarks of youth at the time of the crime as compared to adults, lack of maturity, underdeveloped sense of responsibility, leading a reckless, impulsive lifestyle. So that was 261. That was what the Supreme Court has ruled on, and that is on point with the case factors we see before the Panel here today, so the great weight played a role. Your age played a role.  


 It remains to be seen whether attention to youth significantly reforms the parole process. Recently, Beth Schwartzapfel observed that parole boards find ways to thwart the Court’s decision in Montgomery, arguing that long-term inmates who committed their crimes at a young age have not yet developed “insight.” The outcome is “a wave of lawsuits from those who claim parole officials are undermining their new constitutional obligations.” 

This is especially true in California, where political considerations might lead the Governor to reverse release recommendations, thus retaining political good will and protecting the gubernatorial office from public backlash. Notably, Governor Brown reversed the Board’s recommendation and denied Van Houten’s parole.

Nevertheless, it is telling that the Board—albeit more politically insulated than the Governor—felt comfortable recommending the release of a high-profile inmate on the basis of age, a fact widely known from the time the crime was committed but only recently considered. This development bodes well for other inmates, and specifically for members of the Manson “family,” whose young age was a deciding factor in their involvement with Manson in the first place. 

Which Juveniles May Be Tried As Adults? CA Supreme Court to Decide

A legislative clash regarding the prosecution of juveniles in adult courts has reached the California Supreme Court. Bob Egelko of the Chron reports:

At issue is whether youths under 16 must be tried in juvenile court, where the maximum sentence is until age 25, or can be sent to adult court and face lengthy prison sentences, including life terms for murder. 

A 2000 ballot measure allowed California prosecutors on their own to charge 14-year-olds as adults for serious crimes. Proposition 57, a state constitutional amendment passed by the voters in November 2016, required prosecutors to request such transfers from a juvenile court judge, who would consider the youth’s history and potential for rehabilitation and the nature of the charges before deciding whether to send the case to adult court. 

The new law, SB1391, passed by the Legislature last year and in effect since January, prohibits adult court prosecution for anyone younger than 16. Prosecutors have challenged the law, arguing that it conflicts with Prop. 57, but four appellate courts had upheld the law before Monday.

To put things in context: Both SB1391 and Prop. 57 aimed to do the same thing – scale back the ridiculous appetite for prosecuting juveniles in adult courts. To put things into perspective, this is a backlash against the “direct filing” policy enacted in 2000, under which the decision to prosecute a juvenile as an adult lay exclusively with prosecutors. Keep in mind that this was five years before the Supreme Court decided Roper v. Simmons, in which they relied on neuroscience and developmental psychology to “rediscover” what we forgot throughout the 1980s and 1990s: children are different than adults, and the prefrontal cortex, which allows for delayed gratification, consideration of consequences, and empathy, continues to grow and develop well into a person’s twenties. As we are reeling from the characterization of children as “superpredators” or “sociopaths”, especially in the racialized context of the crackdown on crack, we are trying to fix things.

The problem is that these two laudable propositions are trying to do things that could be interpreted as at odds with each other. Under Prop 57, the discretion in trying juveniles as adults shifted from prosecutors to judges; under SB1391, juveniles under 16 cannot be tried in adult courts at all. Prosecutors, who are losing ground under both propositions, argue that SB1391 prevents them from presenting the case of, say, a 15-year-old boy at a hearing to determine where to try him.

My hope is that the Supreme Court will rule that these propositions are not actually at odds with each other. SB1391 sets a firm limit of 16 for adult courts; within this firm limit, juveniles–people aged 16 and 17–go through a hearing to determine whether they should be tried as adults. In that sense there is no contradiction. If the Court does find a contradiction, I hope they will resolve it in a similar fashion.

What Counts as a “Deadly Weapon?”

Minor in possession of a deadly weapon?

Last week, the California Supreme Court decided In re B.M., a case that required the Justices to address the meaning of the term “deadly weapon.”

The story, in essence, is this: B.M, a teenaged girl, returned home one night and found that her sister had changed the locks (there’s probably a bigger story here than could be examined through the lens of this case, but we’ll get to that later.) She managed to get in through the window and confronted her sister. In her anger, she picked up a butter knife in the kitchen–a dull metal knife with round serrations at the end, which is usually used for spreading butter rather than for cutting. She came into her sister’s room holding the knife and the sister covered herself with a blanket.

Here is the case’s description of the interaction:

B.M. approached Sophia, who was lying on top of the bed with her knees bent. Sophia testified that B.M. “came . . . at [her] trying to stab [her]” and that from a distance of about three feet, B.M. made several “downward” “slicing” motions with the knife in the area around Sophia’s legs. Sophia further testified that the knife hit her blanketed legs “a few” times and that the amount of pressure B.M. used was “maybe like a five or a six” on a scale from one to ten “if one is the least amount of pressure and ten is the most pressure.” Sophia initially said B.M. poked her with the knife, but she later clarified that B.M. did not poke or stab her and that B.M. did not “hurt” her. B.M. testified she only “wanted to scare [Sophia]” and “had no intentions in actually stabbing [Sophia] with [the knife].”

Reading between the lines, it seems that Sophia had originally exaggerated her description of the events to the cop who showed up, and later retracted some of that when she realized this might have consequences. There’s also clearly a history between B.M. and Sophia that is left unexplored in this decision.

The Supreme Court reversed the Appellate Court decision, which affirmed B.M.’s conviction for assault with a deadly weapon. In doing so, the Court established a realistic, context-driven definition of “deadly weapon”:

We hold, consistent with settled principles, that for an object to qualify as a deadly weapon based on how it was used, the defendant must have used the object in a manner not only capable of producing but also likely to produce death or great bodily injury. The extent of any damage done to the object and the extent of any bodily injuries caused by the object are appropriate considerations in the fact-specific inquiry required by Penal Code section 245(a)(1). But speculation without record support as to how the object could have been used or what injury might have been inflicted if the object had been used differently is not appropriate.

In other words, in the context of this case, when an inexperienced person ineffectually waves the weapon toward someone covered in a blanket, in a manner that cannot hurt the other party, the weapon is not a “deadly weapon.”

Common sense decisions like this are important, because the trend in the last decades has been to expand the reach of elements and enhancements involving weapons. But the decision has special significance for cases involving women and juveniles. The method by which women and girls commit violent offenses is different than that of men, and ignoring gender context misses out on important parts of the picture. As Lyn Brown, Meda Chesney-Lind, and Nan Stein explain in this paper, there has been an increase in the criminalization of girls, which is perceived as an increase in girls’ violence. This has sparked a moral panic regarding girls. But when you look at the context, what you find is that girls are criminalized with increased frequency for behaviors that are often a response to a larger context of domestic abuse (as might be the.case in B.M.’s case – we simply don’t know the full picture.) Moreover, treating assaults involving weapons more seriously, a seemingly straightforward, gender neutral convention, overlooks a fact that my friend and former student Ryan Newby found plays an important role in violent crime sentencing: the fact that, in domestic assault contexts, women are more likely to use a weapon to even the odds against assailants who are frequently bigger and stronger than they are. Ignoring this context makes it appear as if the assault is more serious because a weapon has been used, when oftentimes the weapon is whatever was at hand in the kitchen–such as the butter knife in this case.

The California Supreme Court decision makes no mention of this broader context, but it is useful to keep it in mind. Gender equity in sentencing is not always straightforward, because the language of the law is neutral and ignores what empirical research tells us about the circumstances of violent offending. This is, therefore, an even better decision than it appears at first blush.

Oh, and the kid in the picture is my very own minor. 🙂

November 2016 Ballot: Yes on 57

My colleagues and I at UC Hastings made a series of neutral, informational videos about the propositions on the November ballot. Here’s the one about Prop 57:

For readers of this blog, I’m also making endorsements. It should be a resounding YES on 57, and here’s why.

The first part of Prop. 57 is a no-brainer: who do you trust more with the decision to prosecute juveniles in adult court–a judge after a fitness hearing or a prosecutor? We’ve trusted prosecutors since we adopted Prop. 21 in 2000. We’re talking about thousands of cases here, but even one case of a young person unnecessarily doing time in an environment full of older people should be avoided. What we know about juveniles in adult institutions (which is not a lot, because it’s difficult to study) is disconcerting: suicide rates and vulnerability to abuse, assaults, and victimization. Moreover, when this decision is left to prosecutors, there are big differences between the different counties. Juvenile offenders should not be political pawns.

The second part requires a bit more unpacking, but also turns out to be a no-brainer. A typical felony sentence in California consists of the basic sentence for the offense plus a series of “enhancements” added in bills and voter initiatives over the years. Our determinate sentencing allow for people’s release from state prison after they complete most of their entire sentence, including the enhancements–which can sometimes double or even triple the original sentence. Most folks don’t come up for a parole hearing: California holds parole hearings only for lifers.

If Prop. 57 passes, some version of parole hearing will be returned to the system and applied to non-lifers as well. The idea is to award nonviolent felons doing time in prison (not a big population since Realignment and Prop 47) a parole hearing after their base sentence is completed. The proposition requires that CDCR adopt regulations about rehabilitation programming and the worth of doing programs in “good credit” days that count toward early release. So, while its target population isn’t big and some of the details on how exactly these parole hearings will be held are still obscure, a few things are clear: This will not result in more incarceration, and it will award release to people whose records show them to be rehabilitated. At worst, it’ll be an ineffectual proposition (albeit not a harmful one). But if implemented correctly, it could liberate some folks from the Byzantine maze of enhancements that leads to truly ridiculous sentences.

Some voters might be wondering whether Prop. 57 violates the single subject rule. The best two readings I can recommend on this are Michael Gilbert’s 2006 paper and his excellent 2011 followup. Using an ingenious research design, Gilbert finds that our natural tendency is not to enforce this rule when proposition are more or less on the same topic. His analysis with Robert Cooter also suggests that there’s positive value in “bundling” similar issues in one proposition.

The “bundling” of juvenile and parole here is relatively benign. Remember Marsy’s Law in 2009? The one where you thought you voted to support victims and you actually voted to extend the period between parole hearings? This one’s not like that. These two issues make the system more deliberative and personalized, things of which we could use more, and if well implemented can save lives (and dollars.) So, vote yes on 57.

Long Sentences for Juveniles: Does Parole Fix Everything?

Today, the California Supreme Court decided People v. Franklin in a way that probably had both the defendant and the state feeling unsatisfied.

The story is tragic in the same way that too many stories are: Tyris Lamar Franklin, 16 years old, was in conflict with other teenage boys, whom they referred to as the Crescent Park Gang. Shortly before the crime, the Crescents fired multiple shots into the apartment where Tyris lived with his grandmother and brothers, and attacked Tyris’ 13-year-old brother. In retaliation, Tyris shot and killed Gene, a boy who was associated with the Crescents but who had nothing to do with the attack on the little brother.

Under California law at the time, the judge had no choice: he had to sentence Tyris to 25-to-life for the murder and to a consecutive 25-to-life for the weapon enhancement. The math is easy: Tyris would come up for parole for the first time after 50 years, at the age of 66. But the judge felt very uncomfortable with this decision. His explanation of the sentence echoes not only his grief and frustration with the unnecessariness of the crime AND the punishment, but also his thinking, which was influenced by the new Supreme Court line of cases, starting with Roper v. Simmons and continuing with Graham v. Florida. These cases relied on new findings in neuroscience and developmental psychology, which suggest that juvenile brains continue developing well into their mid-20s, and that until their prefrontal cortex is fully developed, they are less capable of thinking about consequences, factoring in long-term considerations, and resisting peer pressure. Reflecting this “rediscovery of childhood” perspective, the judge said:

The sentence is the sentence that‘s prescribed by law, not one that the Court chooses. And I will impose it in this case, but first I just want to say a couple of words to both families. I see a lot of pain in this courtroom all the time. And so often it‘s because of senseless things that happen. And if there‘s a senseless case, this is a senseless case. We‘ve got two young men‘s lives destroyed. . . . We‘ve lost two young men. And for what? It‘s so senseless. I would have loved to have seen these two young men grow up to be people, to be the people they‘re supposed to be, both of them. And neither of them is going to have that opportunity. It‘s because of unspeakably stupid choices that you made, Mr. Franklin. And I just hope that something can come out of this that‘s productive. I‘m impressed with Gene[‘s] . . . family‘s dignity going through this. Their empathy for Mr. Franklin‘s family and even Mr. Franklin. And I‘m impressed with Mr. Franklin‘s family‘s understanding and empathy for [Gene]‘s family. And if we can take something from this, I would love for it to be, get the guns out of Richmond, get the violence out of Richmond, and don‘t have these young black men going after each other because we see it so much in this courthouse. And what ends up happening is we have some young men going to prison for the best years of their lives at the least, and other young men who don‘t get to grow up. And how crazy is this? How crazy. So if both families can do anything to try to make some sense and find some good out of this, work together to try to get the guns out of Richmond, get the guns out of the pockets of these young men who haven‘t got the frontal lobes yet to figure out how to deal with their issues.

Shortly after Tyris Franklin was sentenced to 25 + 25, the Supreme Court decided Miller v. Alabama. Under Miller, mandatory life-without-parole schemes for juveniles are unconstitutional. Even before the Supreme Court’s subsequent decision in Montgomery v. Louisiana, which applied Miller retroactively, California was already searching for ways to fix these problems. One such way was through SB 260, later codified as Penal Code 3051, which provides a special “youth offender hearing” before the parole board. For someone serving a sentence like Tyris Franklin’s, that would mean a parole hearing after 25 years, in lieu of the 50 that the law provided before the amendment. Moreover, under the new law, the board is encouraged to take the person’s age when the offense was committed into account in a serious way. For evidence that the parole board takes the “rediscovery of childhood” perspective seriously, see their recent decision recommending Leslie Van Houten’s release.

The California Supreme Court found today that the “youth offender parole hearings” provided by Penal Code 3051 preempted Franklin’s argument that his sentence violated Miller, because he is already eligible for the “fix” via an earlier parole date. Nonetheless, the Court remanded the case to determine whether Franklin was able to fully present evidence as to his level of maturity, which won’t make a difference for the sentence but will make a difference twentysomething years from now on parole. It’s a bit of a “neither here nor there” decision. The state representatives would say: if the sentence is fine, and if there’s evidence in the judicial explanation that the judge was aware of youth issues, why not take that into account? And Franklin would say: if the judge clearly was unhappy with the mandatory sentence, and the mandatory sentence was unconstitutional, why not give the judge a chance to fix this at resentencing, rather than waiting twenty-five years?

Part of the discomfort with relying on the parole “fix” in this case relates to the proximity between Miller and Franklin. Even though, legally, it doesn’t matter whether the case we’re remedying with a parole hearing happened one day or fifty years before Miller, it somehow feels different. When the Supreme Court decided Montgomery, Henry Montgomery was in his late 60s, having served fifty years behind bars for a crime committed when he was a teenager. A parole hearing to release him could be held immediately. Here, by contrast, the result is that with the “fix”, which was just held to preempt the constitutional channel, Franklin has to wait more than twenty years to argue something that we know the judge felt very strongly about as recently as 2011.

Whether or not you think the result in Franklin was constitutionally permissible, the deeper questions about the parole “fix” emerge. We’re very good at ratcheting up sentences and we’ve done a masterful job at forgetting that children were children. And now that we’ve remembered the difference between youth and adults, it’s taking us a very long time to fix things using very small steps, which put a dent in ultra-severe sentences, but are still very far from undoing their destructive effects.

SCOTUS Offers Hope for Lifers Without Parole Sentenced When They Were Juveniles

In 1963, Henry Montgomery killed a police officer. His murder conviction in Louisiana, for “guilty without capital punishment”, carried a mandatory life without parole sentence. That is, under Louisiana law, Montgomery could not present mitigating evidence–he was automatically sentenced to life without parole. At the time the crime was committed, Montgomery was 17 years old. Today he is 70 years old, and he’s been in prison ever since.

In 2009, decades after Montgomery’s sentence, the Supreme Court decided Miller v. Alabama, which rendered mandatory life without parole statutes unconstitutional insofar as they apply to juveniles. The decision was one of several decisions, starting with Roper v. Simmons, which incorporated insights from developmental psychology into criminal justice. We now know that the brain continues developing well into our mid-twenties, and that impulse control, resistance to peer pressure, and the ability to consider long-term goals  are not quite there yet for juveniles. So, sentencing them to a lengthy period of time, without option to reconsider, now seems unjust in light of what we know of their cognitive capabilities.

But what about people who were sentenced to automatic life without parole before Miller v. Alabama? Thousands of these folks, who were teenagers when they were sentenced, are now middle-aged or even elderly (certainly by prison standards.) Many of them have spent most of their life in jail. Should their sentences be reconsidered? In other words, does Miller apply retroactively? This morning, the Supreme Court ruled that it does–and that states who used to apply these schemes to juveniles should now award them remedial parole hearings to reconsider their possible release.

The technical question at the heart of Montgomery has to do with the retroactivity rules. Imagine a situation in which a criminal justice rule is changed in a way that could benefit defendants.

Under constitutional doctrine in a case called Teague v. Lane, defendant no. 1, whose case hasn’t even started yet, will of course benefit from the new rule, which applies prospectively. Defendant no. 2’s case is still alive–that is, it’s undergoing an appellate process or the time to appeal hasn’t run out yet–and because the case is not “final” yet, she will also benefit from the rule change. But Defendant no. 3, whose case has already become final–which is to say, she exhausted her direct appeals, or the time to appeal has run out–will not be able to benefit from the rule change. There are two exceptions to this doctrine: the new rule will apply retroactively if it is either a “substantive rule of Constitutional Law”, which includes  “rules forbidding criminal punishment of certain primary conduct,” as well as “rules prohibiting a certain category of punishment for a class of defendants because of their status or offense” or a “watershed rule of criminal procedure”, which is to say, a very momentous change (most rules are not that important; when SCOTUS thinks of such a rule, they think about things like the right to counsel and somesuch.)

According to the today’s ruling, Teague v. Lane applies not only to federal defendants on habeas, but also to defendants like Montgomery, who have been using their state’s collateral proceedings. Or, as Justice Kennedy stated for the majority,

The Court now holds that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule. Teague’s conclusion establishing the retroactivity of new substantive rules is best understood as resting upon constitutional premises. That constitutional command is, like all federal law, binding on state courts.

The rule in Miller is, according to the majority, a “substantive rule of Constitutional Law”, as it doesn’t merely address process–it addresses the question whether a certain category of punishment (in this case, mandatory life without parole) is applicable to a certain category of people (in this case, juveniles.) It stems from the string of cases that recognized that children are different from adults in their “diminished culpability and greater prospects for reform.” These differences mean that imposing automatic LWOP on children “poses too great a risk of disproportionate punishment.” While the decision has a procedural component–the need to hold a hearing before imposing LWOP on juveniles–it is, in essence, a substantive statements that juveniles should simply not be subject to that category of punishment. The Court is not concerned about the extent to which this hinders finality–in this case, the state really can no longer exercise its punitive power by sending juveniles to prison for the rest of their lives without discretion, and once there is a social agreement there, finality arguments really do not apply.

The Court also gives states that used to have mandatory LWOP schemes for juveniles a corrective path: they should award people who are currently serving time under these schemes for crimes committed when they were juveniles an appropriate opportunity to be heard and to provide evidence for their rehabilitation, in which their young age at the time they committed the crime (and all we know about the implications of age to development) shall be taken into account.

Justices Scalia, Alito, and Thomas dissented, on the grounds that the Court had no jurisdiction to decide the case and that its classification of the Miller rule as a substantive rule was overbroad beyond the original intent in Teague.

Juveniles in Adult Institutions

Yesterday we held a film screening and a panel on juveniles serving prison terms in adult institutions, which was cosponsored (and generously funded) by Rosen Bien Galvan and Grunfeld, LLP.

 

 Our guests included Caitlin McNally, the filmmaker, by Skype, and three speakers in person: Michael Bien of RBGG, Sue Burrell of the Youth Law Center, and Nate Williams of Westside Community Services, who spoke movingly about his own experiences behind bars as a teenager. You can watch the post-film panel below.

Juvenile Solitary Bill Fails

Amidst the joyous news following the settlement in Ashker v. Brown comes a less encouraging development: AB 124, which would severely limit the use of solitary confinement in juvenile facilities (to four hours at a time, and not as a form of punishment), failed in the Assembly Appropriations Committee and won’t be proceeding forward. The East Bay Express reports:

Proponents of SB 124 — co-sponsored by state Senator Mark Leno, D-San Francisco, and the Ella Baker Center for Human Rights, an Oakland nonprofit — have argued that the bill could go a long way in protecting youth inmates in county and state facilities from the inhumane and unjustified practice of isolation. The documented psychological deterioration associated with solitary confinement — which was a key argument in the state class-action suit — can be especially damaging for vulnerable youth inmates who have often already experienced a wide range of trauma in their lives. With California now agreeing to dramatically curb the use of isolation for adults and with officials increasingly acknowledging the harms of solitary, the failure of SB 124 was particularly painful for advocates who have been pushing versions of the bill for several years. 

“We’re talking about the health and lives of young people who are endangered by this practice,” Jennifer Kim, Ella Baker Center’s director of programs, told me yesterday. Kim helped write the legislation and has repeatedly amended the bill in response to criticisms of correction officials, who have continued to argue that isolation of juveniles is an important tool to control “dangerous” kids. In reference to the state lawsuit and settlement, which will have no impact on juvenile facilities or inmates, Kim added, “Thousands of adults are going to be ordered out of solitary confinement … [because] the courts have had to intervene. … And yet the legislature has been largely not leading in the way they could be.” 

SB 124, which successfully passed the Senate in June, would ban the use of solitary confinement in juvenile facilities for longer than four hours at a time. The legislation would also prohibit correctional officers from using solitary as a form of punishment and would only allow isolation when youth pose an immediate, substantial risk to themselves or others. Facilities would also be barred from isolating inmates who pose a threat as a result of a mental disorder. Additionally, the legislation requires jails to document all instances of solitary through a statewide reporting system. Correction and probation officials across the state have consistently opposed the measure, arguing that facilities do not use the kind of inhumane solitary confinement tactics that advocates describe. The opponents have also contended that the restrictions of SB 124 would put staff and youth at risk by making it harder for officers to isolate violent youth. 

What with SB 261 passing only recently, the California legislature’s approach to juveniles can only be seen as puzzling. Are we treating them as children? as adults? for what purposes? are we willing to resentence but not to limit solitary confinement? and, under the circumstances, what is worse–adult prison or state juvenile facilities?

Join us on 9/17 to discuss these issues with juvenile justice advocates.

Expanding the Definition of Juveniles: SB 261 and Adolescents

Just in time to be an interesting lead to our upcoming event, Juveniles in Adult Institutions, a bill–SB 261–has passed in California that expands the definition of juveniles.

The bill, proposed by Senator Hancock, is an extension of SB 260, which passed in 2013. Under that bill, as explained in this guide, people sentenced to lengthy prison terms in adult institutions for offenses they committed under the age of 18 receive a special “youth offender hearing” before the parole board, in which juvenile development is taken into account in the decision whether to release.

If Governor Brown signs SB 261, the age cutoff will rise to 23.

There are some very good reasons, grounded in developmental psychology, for expanding the definition of “juvenile” to adolescent years. We have known for a while that the transition from juvenile to adult is non-linear, due to considerable changes in brain chemistry, and that adolescent brain development continues occurring until the mid-20s. The emerging findings from this research have already shaped some legal decisions, such as Roper v. Simmons, Miller v. Alabama, and Graham v. Florida.

At our event on September 17, we’ll be discussing the implications of these developmental psychology findings on our practices of trying juveniles as adults. Please join us!