1. 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

2. Overview Paradox of Legal v. Clinical Trends Paradox of Legal v. Clinical Trends Etiology of Lengthy Juvenile Sentences Etiology of Lengthy Juvenile Sentences Clinical Developments Clinical Developments Legal challenges to long juvenile sentences Legal challenges to long juvenile sentences 8 th Amendment (“cruel and unusual punishment”) 8 th Amendment (“cruel and unusual punishment”) Other challenges Other challenges Developmental CST Developmental CST Infancy Infancy Rights waivers Rights waivers

3. Paradox Juveniles today face greatly increased legal susceptibility to harsher penalties, for more offenses, at younger ages, than in 1980, despite 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. 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. 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.

4. Juvenile susceptibility to lengthy prison sentences Juvenile crime increases, especially for violent crime, peaked around 1996 Juvenile crime increases, especially for violent crime, peaked around 1996 Virtually all states modified juvenile law in response Virtually all states modified juvenile law in response Juvenile crime and imprisonment as adults have continued to fall Juvenile crime and imprisonment as adults have continued to fall

5. 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

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

7. Between 1994 and 2002, the number of murders involving a juvenile offender fell 65%, to its lowest level since 1984

8. Crime & Sentencing Trends since 1996 Decrease in juveniles tried as adults Decrease in juveniles tried as adults Decreases in juveniles entering adult prisons Decreases in juveniles entering adult prisons Decrease in proportion of juveniles as inmates in adult prisons Decrease in proportion of juveniles as inmates in adult prisons

9. Juvenile courts waived 46% fewer delinquency cases to criminal court in 2002 than in 1994

10. Between 1996 and 2002, the number of new admissions of youth younger than 18 to state prisons fell 45%

11. The population of inmates younger than age 18 fell 54% between 1997 and 2004

12. What 1990s legal changes enabled more lengthy juvenile sentences? Increased trial of children as adults Increased trial of children as adults Removal of juvenile court jurisdiction Removal of juvenile court jurisdiction Expanded eligibility for transfer Expanded eligibility for transfer Expanded prosecutorial discretion to direct file Expanded prosecutorial discretion to direct file Lowered age of adult criminal court jurisdiction Lowered age of adult criminal court jurisdiction All states permit trial of some children as adults All states permit trial of some children as adults 2005 APA Position Statement (attached) 2005 APA Position Statement (attached)

13. Developmental differences impair juveniles’ legal decision-making Juveniles ≤ age 15 more likely to confess and waive counsel than adults 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 Juveniles ≤ age 15 less likely to choose to appeal cases or disagree with attorneys Accept plea bargains - mixed Accept plea bargains - mixed

14. Greater clinical skepticism about juveniles’ competence and responsibility Adolescence is psychologically distinctive Adolescence is psychologically distinctive Cognitive focus on present Cognitive focus on present Emotion-based decision-making Emotion-based decision-making Adolescent brain physiologically distinctive with developmental chronology Adolescent brain physiologically distinctive with developmental chronology Substantial brain development into early 20s Substantial brain development into early 20s Prefrontal cortex develops last Prefrontal cortex develops last

15. Developmental Features of Juveniles recognized in US Sup Ct in 2005 Roper v. Simmons – Court acknowledges Roper v. Simmons – Court acknowledges Juvenile predilection for risky behavior Juvenile predilection for risky behavior Increased susceptibility to outside pressure Increased susceptibility to outside pressure Incompletely formed character Incompletely formed character Note: This accompanied an evolving national consensus against juvenile death penalty. Note: This accompanied an evolving national consensus against juvenile death penalty.

16. 8 th Amendment to US Constitution “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Two basic interpretive problems Two basic interpretive problems Times change Times change Facial challenges – categorical exemptions Facial challenges – categorical exemptions Assess by “evolving standards of decency” Assess by “evolving standards of decency” Every case is different Every case is different As-applied challenges – case-specific exemptions As-applied challenges – case-specific exemptions Assess for “gross disproportionality” only, not strict proportionality Assess for “gross disproportionality” only, not strict proportionality

17. “Evolving standards of decency” “Objective indicia” of national consensus “Objective indicia” of national consensus State law changes and direction of changes State law changes and direction of changes State and jury practices in imposing penalty State and jury practices in imposing penalty “Independent judgment” of the Court “Independent judgment” of the Court Culpability of specific class of offenders Culpability of specific class of offenders Societal goals of punishment Societal goals of punishment Practices of other states and countries Practices of other states and countries

18. Facial 8 th Amend. violations found Death penalty Death penalty Imposed on Defendants Imposed on Defendants <18 at crime – Roper v. Simmons (2005) <18 at crime – Roper v. Simmons (2005) Developmentally disabled – Atkins v. Va. (2002) Developmentally disabled – Atkins v. Va. (2002) Aided & abetted felony murder but did not attempt to kill or intend death occur – Enmund v. Fla. (1982) Aided & abetted felony murder but did not attempt to kill or intend death occur – Enmund v. Fla. (1982) For non-homicide crimes of For non-homicide crimes of Rape of adult woman – Coker v. Ga. (1977) Rape of adult woman – Coker v. Ga. (1977) Rape of child <12 – Kennedy v. La. (2008) Rape of child <12 – Kennedy v. La. (2008) Non-capital applications Non-capital applications 12 yrs hard labor, falsifying gov’t document – Weems v US (1909) 12 yrs hard labor, falsifying gov’t document – Weems v US (1909) Loss of citizenship for desertion – Trop v. Dulles (1958) Loss of citizenship for desertion – Trop v. Dulles (1958) Criminalization of drug addiction – Robinson v. Cal. (1962) Criminalization of drug addiction – Robinson v. Cal. (1962)

19. Why don’t Roper + Atkins mean JuvLWOP violates 8 th Amendment? Nat’l consensus supports eligibility for, and imposition of, harsh juvenile penalties Nat’l consensus supports eligibility for, and 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 imposing d/p Compare to national consensus against imposing 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 almost exclusively in capital cases Court’s “independent judgment” has been almost exclusively in capital cases Death's unique nature requires limiting to worst of the worst. Death's unique nature requires limiting to worst of the worst. Acknowledges wide range of penological approaches Acknowledges wide range of penological approaches

20. LWOP Eligibility by State No JLWOP (10) Discretionary JLWOP (19) Mandatory LWOP (+Juv) (16) Mandatory LWOP with factors (+Juv) (6) AlaskaColoradoCaliforniaD.C.IndianaKansasKentucky New Mexico New York Texas Arizona Oklahoma Hawaii Oregon Illinois R. Island Maine Tennessee Maryland Utah Mississippi Vermont Montana W. Virginia Nebraska Wisconsin Nevada Wyoming North Dakota Arkansas New Jersey Connecticut N. Carolina Delaware Pennsylvania Florida S. Dakota Iowa Washington LouisianaMassachusettsMichiganMinnesotaMissouri New Hampshire AlabamaGeorgiaIdahoOhio South Carolina Virginia

21. As-Applied 8 th Amend. violations Crime v. sentence suggest gross disproportionality? Crime v. sentence suggest gross disproportionality? If so, compare If so, compare Penalties for similar crimes in same state Penalties for similar crimes in same state Penalties for identical crime in other states Penalties for identical crime in other states Not grossly disproportionate Not grossly disproportionate LWOP for possession > 650 gms cocaine – Mich. v. Harmelin (1991) LWOP for possession > 650 gms cocaine – Mich. v. Harmelin (1991) 25-life x 2 (consecutively) for “3 rd strike” non- violent felony – Ewing v. Cal. (2003) 25-life x 2 (consecutively) for “3 rd strike” non- violent felony – Ewing v. Cal. (2003)

22. As-Applied Challenges to Lengthy Prison Sentences for Juveniles 1968 - Workman v. Ky ~ LWOP for 14 yr old for rape “shocks conscience of society” 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 1989 - Naovarath v. Nevada ~LWOP for 13 yr old for murder cruel and unusual No other cases hold disproportionality – many reject it No other cases hold disproportionality – many reject it

23. Hawkins v. Hargett (10 th 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.”

24. South Carolina v. Christopher Pittman 11/28/2001 shotgun murder of sleeping paternal grandparents 11/28/2001 shotgun murder of sleeping paternal grandparents Defendant 12 yrs old Defendant 12 yrs old Just moved to S.C. from Fla. Just moved to S.C. from Fla. Attempted runaway, threatens self Attempted runaway, threatens self Involuntarily committed by father Involuntarily committed by father Treated inpatient with Paxil Treated inpatient with Paxil S.C. MD prescribes Zoloft S.C. MD prescribes Zoloft

25. 8 th 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.” “ 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....” “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)

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

27. Terrance Jamar Graham v. Fla 2003: 16 yrs old ~ Armed burglary with assault and attempted armed robbery 2003: 16 yrs old ~ Armed burglary with assault and attempted armed robbery Received 1 year to serve, 3 years probation (plea) Received 1 year to serve, 3 years probation (plea) 12/2004: 17 yrs old ~ Armed home invasion 12/2004: 17 yrs old ~ Armed home invasion Probation violation for new charge Probation violation for new charge LWOP for Probation violation LWOP for Probation violation Upheld 4/10/2008, 2008 WL 957672 (Fla.App. 1 Dist.) Upheld 4/10/2008, 2008 WL 957672 (Fla.App. 1 Dist.)

28. 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 violation Terrance Jamar Graham v. Fla

29. Future of the Legal/Clinical Paradox? Further 8 th Amendment challenges (barely in MA) Further 8 th Amendment challenges (barely in MA) Rediscovery of infancy defense Rediscovery of infancy defense Some states (CA, AZ, FL) have already found developmental immaturity alone can preclude ability be criminally responsible. Some states (CA, AZ, FL) have already found developmental immaturity alone can preclude ability be criminally responsible. Rejected in MA, at least categorically. Rejected in MA, at least categorically. Clinical issues can arise case-by-case Clinical issues can arise case-by-case Developmental competence in CST? Developmental competence in CST? Failure to raise developmental competence ineffective? Failure to raise developmental competence 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 legislation/rule Reduce or limit transfer eligibility via legislation/rule

30. Massachusetts Cases: 8 th Am. Comm. v. Ruscitti, 23 Mass.L.Rptr. 517 (Worcester Sup. Ct. 2/8/2008) Two 16 yr olds argue pretrial LWOP (1 st degree murder) violates 8 th Am. and should be barred. Two 16 yr olds argue pretrial LWOP (1 st degree murder) violates 8 th Am. and should be barred. Offer expert testimony of juveniles’ psychosocial and cognitive immaturity. Offer expert testimony of juveniles’ 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 charge is based on procedural differences in capital cases. Policy allowing pretrial challenge to capital charge is based on procedural differences in capital cases.

31. 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? 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. Unprovoked spraying and igniting 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 child. Held: No, not in general or as to this child. MA law never presumed juveniles under 14 lacked capacity; 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. Legislature’s enactment of comprehensive juvenile justice system giving greater protections to juveniles precludes “infancy” defense.

32. Developmental issues’ significance in infancy? Case-specific incapacity always possible 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.” “[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 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.” “[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.”

33. 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.” “[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.”

34. Resources Dev CST Dev CST 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). 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 (July- Aug 2007). Christopher Mallett, Death Is Not Different: The Transfer of Juvenile Offenders to Adult Criminal Courts, 43 No. 4 Crim. Law Bulletin 3 (July- Aug 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). 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 McArthur Foundation Research Network on Adolescent Development: http://www.adjj.org Infancy Infancy Barbara Kaban & James Orlando, Revitalizing The Infancy Defense In The Contemporary Juvenile Court, 60 Rutgers L. Rev. 33 (2007). Barbara Kaban & James Orlando, Revitalizing The Infancy Defense In The Contemporary Juvenile Court, 60 Rutgers L. Rev. 33 (2007).