NOVJM In Books And Reports


Juvenile Justice

By David M. HaugenSusan Musser

Viewpoint 17 is written by NOVJM member Bobbi Jamriska. It is titled “The Sister of a Murder Victim Urges Legislators Not to Abolish the Life Without Parole Sentence for Juvenile Murderers.”


A Closer Look at a Child Offender: Illinois to
Review All Juvenile Life Without Parole Sentences

Many believe that allowing reviews of juvenile life without parole
sentences will benefit both society and the families of victims. One of the main
goals of the prison system is to develop citizenship so you can have offenders
reenter society.28 The Davis decision allows for individuals who entered prison
as children the opportunity to show that they are profoundly changed and can
contribute to society.29
Jeanne Bishop, Public Defender and family member of three victims killed
by a juvenile murderer, believes the ruling is beneficial to victims’ families
because it allows them to have “input into what the offender’s sentence should
be.”30 Families will have an opportunity to witness any rehabilitation in the
offender from the time of the crime to the resentencing hearing, this will hopefully allow for additional closure.31
However, not all families of victims agree. Dora Larson, the mother of a
young girl who was brutally raped and murdered and now an advocate for the
National Organization of Victims of Juvenile Murderers, fears for the public’s
safety.32 Larson believes that “some of these killers, they are wired wrong.
[Some may, if released,] do it again, and that’s what scares me so badly.”33
Marsha Norskog, whose daughter was murdered by a juvenile, is offended by the decision.34 Norskog feels the ruling is “an insult to our judicial system to
say that they deserve to be heard again . . . I think it’s a slap in the face.”35

Reforming Juvenile Justice
Should teens who murder be treated as adults? By Christina L. Lyons  

Youth advocates are seizing on bipartisan interest in criminal justice reform and historically low crime rates to lobby states to lighten sentencing standards for juveniles. They also advocate more efforts to prepare troubled teenagers — even those convicted of the most violent crimes — to be productive members of society. In 2012 the U.S. Supreme Court ruled that mandatory life terms without parole for juveniles were unconstitutional, and this fall it will hear a case on whether to make that decision retroactive for adult prisoners who committed their crimes as juveniles. But prosecutors and victims’ rights advocates say youths still must be held accountable for their crimes and judges should be able to refer repeat and violent offenders to adult court. Forming a backdrop to the debate is neuroscientific research on adolescent brain development that indicates juveniles’ reasoning abilities and impulse control are limited well into their 20s. The research also suggests that they can change their behavior, raising questions about youths’ culpability and likelihood of rehabilitation.

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Fifteen-year-old Adrian Jere Gonzalez of Santa Cruz, Calif., lured his 8-year-old neighbor to his family’s apartment last July, then raped and killed her, according to police.1

Gonzalez was soon arrested, and the district attorney charged him as an adult for murder, sexual assault and kidnapping. Youth advocacy groups immediately criticized the prosecutor’s decision to send the boy to criminal court, where he could be subject to a much longer sentence than in juvenile court.2

“When you have somebody as young as 15, this shouldn’t just be decided arbitrarily by a district attorney but by a judge in a hearing hopefully informed by experts in adolescent psychology and psychiatry,” says Barry Krisberg, director of research and policy at the University of California-Berkeley’s Chief Justice Earl Warren Institute on Law and Social Policy.

But victims’ rights advocates say a teen accused of such a heinous act should be tried in adult court. “He knew what he was doing; he has to be held accountable,” says Harriet Salarno, board chairperson of Crime Victims United of California, a nonprofit in Auburn that advocates on behalf of crime victims. She says a jury — not available in juvenile court — should be able to decide the case.

The dispute highlights a growing debate about how state judicial systems handle minors who get into trouble. At a time of declining youth crime, many lawmakers, psychologists and advocates for juveniles want to reform heavily punitive systems to take into account neuroscientific research showing adolescents have limited reasoning abilities but are greatly amenable to rehabilitation. The reformers are lobbying for states to focus on the juvenile justice system’s founding ideal of keeping young offenders in family courts, where their sentences can involve rehabilitation rather than simply punishment and incarceration in large state prisons far from home.

“Kids are not just small adults,” says Nate Balis, director of the Juvenile Justice Strategy Group for The Annie E. Casey Foundation, a private Baltimore-based philanthropy that focuses on issues affecting children. “Not only do they look different, but they are different.”

Yet some prosecutors, legal experts and victims’ rights advocates contend that youth crime is down precisely because of the deterrence of harsh punishments. Juvenile offenders, particularly the most violent, must be held accountable and public safety must remain a priority, they say.

“Even a 5-year-old knows it’s wrong to kill people,” says Steven Erickson, a forensic scientist in York, Pa.

State laws vary on when and how juveniles can be sent to adult criminal court, where they could face the same punishment as adults, including life in prison. For example, in Wisconsin, 10-year-olds charged with murder can be sent to adult criminal court. New York and North Carolina treat all 16- and 17-year-olds as adults, regardless of the crime. California allows prosecutors to decide whether to charge a 14-year-old as an adult for murder or other violent offenses, while juvenile court judges in Alaska and Washington can send a child of any age to adult court for any criminal offense. Often, juveniles convicted as adults begin their sentences in a juvenile facility and are transferred, usually at age 18 or 21, to an adult facility.3

In the early 20th century, most states automatically dealt with youths under 18 in juvenile court, where judges could decide to transfer them to adult court. Then, in the early 1990s after juvenile crime began to rise and some political scientists warned of a coming wave of “brutally remorseless” young “super-predators,” legislatures began cracking down on young offenders.4

However, the predicted wave of super-predator criminality never developed, and juvenile crime in fact began declining after spiking in the mid-1990s. By 2010, the number of juveniles arrested was down 21 percent from 2001. By 2003, homicides committed by youths had dropped to the lowest level since 1980. And after an uptick between 2003 and 2006, juvenile arrests fell in 2012 to their lowest level in 33 years.5 Likewise, the number of youths detained in juvenile facilities fell about 50 percent between 1999 and 2013.6

Theories vary on the reasons for the declines. “Crime rates are down because we’ve had a system of increasing consequences,” says Michael Rushford, president of the Sacramento, Calif.-based Criminal Justice Legal Foundation, a group of legal and academic experts that supports tougher prosecution and sentencing. But Krisberg cites improved economic circumstances, more early-childhood education, fewer gangs and less reliance by schools and law enforcement on 1990s-era “zero tolerance” policies in dealing with juvenile delinquency.7

Experts cite similar reasons for the drop in juvenile detentions, and they say dwindling state budgets made authorities more willing to divert youths to community rehabilitation programs instead of expensive state-run detention facilities. In addition, lawsuits alleging overcrowding or abuse in such facilities forced some states to seek other alternatives.8

Meanwhile, reports indicate that juvenile detainees are often physically or sexually abused by guards or other inmates. For example:

  • The Casey foundation recently found systemic “maltreatment” of youths in juvenile facilities in 29 states since 2000.
  • The U.S. Department of Justice in 2014 reported that male juveniles at New York City’s Rikers Island detention facilities were routinely abused by guards and other inmates.
  • Also in 2014, the American Civil Liberties Union reported about harm caused by solitary confinement, widely used as a punishment in juvenile facilities and to protect juveniles in adult facilities from the regular prisoner population.9

Nell Bernstein, an investigative reporter and author of the 2014 book Burning Down the House, found that youth in juvenile facilities receive limited education and counseling — and even less in adult facilities — although judges often believe teens will be rehabilitated so they can re-enter their communities.10

Punitive sentencing of young offenders is contrary to the founding principle of the juvenile justice system to rehabilitate delinquent youths, reform advocates say. And, recent neuroscientific research bolsters their argument that young people should be handled differently than adults, they say.

Magnetic resonance imaging (MRI) of the adolescent brain has shown that the prefrontal cortex — responsible for cognitive processing, reasoning and self-regulation — does not fully develop until youths are in their early- to mid-20s, researchers say. Thus, they add, adolescents are highly susceptible to peer pressure and unlikely to consider long-term consequences, making them potentially less culpable for their crimes.11

“There’s a reason that kids do incredibly stupid things, especially when they are in a group,” says Kathleen R. DeCataldo, executive director of the New York State Permanent Judicial Commission on Justice for Children.

But some prosecutors and psychologists say brain research does not prove that youths who commit violent crimes cannot control their actions and shouldn’t be punished as adults. Further, such a philosophy “doesn’t lead people to be able to take responsibility for their actions and choices in life,” says Nita Farahany, a law and philosophy professor at Duke University.

Temple University psychology professor Laurence Steinberg says that while the research may not prove juveniles lack culpability, it shows promise that they can be rehabilitated. In his 2014 book, Age of Opportunity: Lessons from the New Science of Adolescence, Steinberg described adolescence as a period of “brain reorganization,” when the mind is easily influenced and shaped by outside factors.12

Such research shows that youths should not be punished the same as adults and need counseling to change their behavior, says Michael Harris, senior attorney for the Oakland, Calif.-based National Center for Youth Law, which provides legal resources for child advocates. “No young person should be tried in adult court,” he says. “It’s more counterproductive than going through the juvenile justice system, and nothing is done to help them become productive citizens.”

Youth advocates also say juveniles should not face life sentences without the possibility of parole. Given young peoples’ “unique capacity to change,” accountability measures “should focus on rehabilitation,” says Jody Kent Lavy, director and national coordinator of the Baltimore-based Campaign for the Fair Sentencing of Youth.

But Charles “Cully” Stimson, a senior legal fellow with the conservative Heritage Foundation think tank, stands by his opposition to that approach, as reflected in his 2009 report: “Adult Time for Adult Crimes.”

In 2012 the U.S. Supreme Court, in Miller v. Alabama, declared it unconstitutional for states to make it mandatory for juveniles found guilty of certain crimes to receive life in prison without the possibility of parole.13 Since then, states and courts have disagreed on whether that ruling should apply to sentences imposed before 2012. The high court is expected to rule on that issue this fall.14

As reform advocates, legislators, psychologists and lawyers continue to debate how the justice system should handle youths, they are focusing on these key issues:

Does brain research prove adolescents are less culpable for their crimes?

Wallace Mlyniec, senior counsel at Georgetown University’s Juvenile Justice Clinic, says advances in brain imagery have helped researchers understand that the human brain continues to mature until about age 25, meaning adolescents are less able to make rational decisions.

“The cognitive part really is pretty good by the age of 16,” he says. “Most 16-year-olds have the cognitive capacity of adults, but they don’t have the impulse control, the decisionmaking ability, the experience to understand what is the consequence of their behavior, and they are influenced by peers in the ways adults are not.”

“The future, for a 15-year-old, is Friday night,” he says. Therefore, adolescents should not be held to the same standards of culpability as an adult, he contends.

The Supreme Court began suggesting that in its 1998 ruling in Thompson v. Oklahoma barring capital punishment for anyone under 16. “The susceptibility of juveniles to immature and irresponsible behavior means ‘their irresponsible conduct is not as morally reprehensible as that of an adult,’” the court stated. It reiterated this statement in 2005, when it banned the death penalty for juveniles under 18, and reaffirmed that stance in 2012, when it barred mandatory life sentences without parole for youths.

Harris, of the National Center for Youth Law, points out: “What we have learned … over the last couple of decades through research on adolescent brain development is that teenagers and adolescents are very susceptible to peer influence. They are very much thrill-seeking. And they do not have the ability to consider long-term consequences the same way an adult can.”

UC-Berkeley’s Krisberg is a strong proponent of adolescent brain research, saying it “puts a fine point on what we knew for a long time” about adolescent behavior. But, he warns, it should not be the only factor considered at trial. Lawyers on both sides in a case should be able to also provide psychological and psychiatric evaluations of the youth involved and information about his or her family and social background, and prior criminal convictions and evidence of motive, he says.

Sally Satel, a resident scholar at the conservative American Enterprise Institute think tank in Washington and co-author of the 2013 book Brainwashed: The Seductive Appeal of Mindless Neuroscience, says lawyers and psychologists rely too heavily on the rhetorical power of science to sway juries. “What we know from neuroscience does not deepen the picture” of why adolescents behave a certain way but only “adds new vocabulary,” she says. Further, she argues, neuroscience is not well enough advanced to explain culpability on a case-by-case basis.15

Erickson, the forensic scientist, agrees. “Most people in the system are impulsive, risk takers, [who] don’t see the future,” he says. “The Supreme Court said these qualities are what make juveniles less morally culpable. Then who in the criminal justice system is morally culpable?”

Likewise, says Duke’s Farahany, who serves on the Presidential Commission for the Study of Bioethical Issues, the brain science “doesn’t tell us what competency an individual has, nor what competencies you have to have to be answerable to the law.”

Stephen Morse, a professor of law and psychiatry at the University of Pennsylvania, warns against “brain-over-claim syndrome,” in which “people make claims based on the neuroscience that don’t follow from the neuroscience.” The “criteria for responsibility are entirely behavioral — meaning acts and mental states,” he says. “We don’t hold brains responsible; we hold people responsible.”

Society already knew that juveniles tend to be more impulsive and susceptible to peer pressure, he says. He objects to the argument that neuroscience shows that certain legal policies are necessary. Whether sentences for juvenile offenders should be mitigated is “not a scientific argument or question; it’s a moral and legal question.”

Temple psychology professor Steinberg agrees the science has only bolstered what society long knew about adolescent behavior, and that the science doesn’t mitigate youths’ culpability. Like Erickson, he asks, “If we argue that young people are less able to control their impulses, what do we do about adults who for some demonstrable reason have less ability to control their impulses?”

However, Steinberg says, “It’s not just that adolescents are less mature, it’s that adolescents are transient. A 30-year-old who has poor judgment and is short-sighted is always going to be that way.” But an adolescent could change, he maintains. Thus, he says, when deciding sentences, courts should consider research showing brains are malleable, and therefore youths can reform.16

“The brain’s malleability makes adolescence a period of tremendous opportunity — and great risk,” Steinberg wrote in 2014. “If we expose our young people to positive, supportive environments, they will flourish. But if the environments are toxic, they will suffer in powerful and enduring ways.”17

DeCataldo, of New York’s commission on justice for children, uses adolescent brain research to teach legislators, educators and policymakers “that we can really change these kids.” She says the research shows that a youth development approach that involves input from a school and community “is so much more effective than a punitive approach.”

She adds: “I think people can come back from doing the most heinous acts.”

Should states raise the age at which juveniles can be charged as adults?

Based on recent brain research, justice reform advocates have been pushing states to raise the age at which juveniles can be charged for any offense in adult court, where they can be subject to lengthy or lifelong prison sentences,

“With all the research on the adolescent brain, the idea of treating a 16-year-old as an adult is a hard case to make,” says the Casey Foundation’s Balis.

Many advocates cite inconsistencies in U.S. laws regarding teens and young adults. “A society that tries 12-year-olds who commit serious crimes as adults because they are mature enough to ‘know better,’ but prohibits 20-year-olds from buying alcohol because they are too immature to handle it, is deeply confused about how to treat people in this age range,” Temple University’s Steinberg wrote in 2014.18

Youth advocates say when children under 18 are held in adult facilities they are exposed to harmful conditions, ranging from physical abuse by adult inmates to lengthy periods of solitary confinement. In 2010, for example, 16-year-old Kalief Browder was sent to Rikers Island, an adult prison in New York City, after being accused of stealing a backpack. While awaiting trial in the adult system, he spent three years in jail, including nearly two in solitary confinement. He was released in late 2014 and committed suicide several months later.19

The Bureau of Justice Statistics estimated that about 7,600 youths under 18 were held in adult facilities in 2010. That is far more than the 2,300 held in June 1999 but 20 percent fewer than the 9,500 held in 1990, when the juvenile population in adult prisons peaked. However, observers on both sides of the issue say reliable estimates are hard to collect because few courts keep records of the number of juveniles incarcerated with adults.20

Americans have “a deep cultural instinct to punish as a way of changing behavior,” says Jeffrey Butts, director of the Research and Evaluation Center at the John Jay College of Criminal Justice in New York. “And most people making decisions about policy are thinking about someone else’s kid,” not their own.

Such severe punishment for young people also doesn’t reliably change behavior, Butts and others say. The Department of Justice reported that six major studies found higher recidivism rates among juveniles convicted for violent offenses in criminal court when compared with similar offenders tried in juvenile court.21

Moreover, says DeCataldo of New York state’s commission on justice for children, “when kids go through adult facilities, they aren’t getting any type of education.” New York requires imprisoned youths to attend classes only until they are 16, she says.

Mlyniec, of the Juvenile Justice Clinic at Georgetown University, says the juvenile system should change how it deals with typical adolescent behavior that can result in mistakes. He cites the experience of 19-year-old Zachery Anderson of Elkhart, Ind. Anderson met a girl on an online dating website who said she was 17 — a year above the age of consent in her home state of Michigan. Anderson eventually traveled to Michigan where the two had sex. However, it turned out she was 14. Originally convicted of criminal sexual conduct, Anderson would have been placed on a sex offender registry. Mlyniec asks, “Should it even be a crime?” — a question many observers asked, prompting a district court judge in September to vacate the sentence. A new judge will consider whether to sentence Anderson under a Michigan law for youthful offenders and not place his name on the state’s sex offender registry.22

Judges sometimes impose overly harsh sentences, and youths should not be incarcerated with adults, says Heritage’s Stimson. But “first-degree murder is still first-degree murder,” he says. “It’s not debatable the brain is developing, but whether at some point in the development [adolescents] can appreciate the difference of right and wrong.”

Forensic scientist Erickson doesn’t entirely agree. He says, “It’s fine to have a system that wants to treat juveniles differently” for such crimes as theft. “But when you are talking about murder, that’s different. Retribution has to be part of the criminal justice system; we punish them because they deserve it.”

Juries should consider each case individually, says Rushford of the Criminal Justice Legal Foundation. “A major focus of the trial is the age of the defendant,” he says. “So let the jury look at the case on its own merits.”

A major worry is that a violent youth could hurt someone else, says Steve Doell, president of the Oregon chapter of Crime Victims United. In a recent Oregon case, a juvenile who had been charged with burglary and harassment was treated as a low-level offender, but later raped a 39-year-old woman and killed a 29-year-old woman, he says.23

For a crime victim, or for the surviving family members, “it really doesn’t make any difference if the person is 16, 24 or 66 years old,” Doell says. “You have got the same result; you have got the family member that’s been raped, you have got a family member that’s dead at the hands of another person.”

Texas state Sen. John Whitmire, a Democrat and strong proponent of justice reforms, says legislators should carefully consider the consequences of changing laws. “Advocates say the poor 17-year-old shouldn’t be in [facilities] with adults,” Whitmire says. “But if you put him in a juvenile facility, what about my 12-, 13-, 14-year-olds? You want to protect them from 17-year-olds.”

Further, if all 17-year-olds typically charged as adults in Texas — about 26,000 last year — are handled in the juvenile system, he says, “it will crash the system. I’m actually trying to depopulate the juvenile system.”

Should juveniles be sentenced to life in prison without parole?

Many youth advocacy groups balk at the prospect of young people facing life sentences without the possibility of parole. “The idea that they would get effectively a death sentence, that they will die in prison, without ever having the opportunity to prove that they could change just seems wrong,” says the Casey Foundation’s Balis.

Advocacy groups such as the Campaign for the Fair Sentencing of Youth want a ban on life sentences for juveniles. Currently, there are about 2,500 prisoners nationwide who were sentenced as juveniles to life in prison, according to The Sentencing Project, a Washington-based research group that opposes life without parole for juveniles.24

According to the fair sentencing campaign, 14 states have banned life sentences without parole for juveniles, nine after the Supreme Court’s 2012 ruling in Miller v. Alabama that mandatory life sentences for juveniles are unconstitutional. Also following the ruling, five states abolished life without parole as an option for juveniles “in most cases,” the campaign said.25

Many juveniles serving life in prison “have demonstrated that, even with limited programming on the inside, they have been able to grow and change,” says Jody Kent Lavy, the campaign’s director and national coordinator. “It’s important to check on them later in life to determine that they have been rehabilitated.”

She adds, “We know young people can commit serious crimes, and the consequences are no less tragic. But the question we face as a society is, how do we hold them accountable as youth? Do we want to encourage them to better themselves while in prison and prove they can come home as productive members of their community?”

Many young criminals have been exposed to violence as a child, she explains, an argument Associate Justice Elena Kagan made in the Supreme Court’s Miller ruling. “Mandatory life without parole … prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional.”26

Moreover, says The Sentencing Project, housing juveniles for life “requires decades of public expenditures,” averaging $34,135 per year — and double that for an inmate over 50.27

Lavy says the United States does not align with the rest of the world on this issue. She says the U.N. Convention on the Rights of the Child, ratified by 140 signatory countries but not the United States, prohibits life sentences for juveniles.28 Yet, she says, the United States has ratified the International Covenant on Civil and Political Rights, considered an international bill of rights, and the International Convention on the Elimination of All Forms of Racial Discrimination — relevant because a disproportionate percentage of juveniles of color are incarcerated.29 The Campaign for the Fair Sentencing of Youth says life without parole for juveniles also undermines the U.N. convention against torture.30

“There’s no merit to those arguments,” says the Heritage Foundation’s Stimson, a former deputy assistant secretary of Defense who in 2006 helped defend the department’s compliance with the convention against torture before the United Nations. That convention and the International Covenant on Civil and Political Rights are silent on the issue of life without parole sentences, he says.

“States are fully within their rights and their decision-making fully within the debate of the social science experts to offer life without parole sentences for those convicted of first degree murder,” he says.

State justice systems allow judges to use discretion, as the Supreme Court directed in its 2012 ruling in which it stated that “the judge must take youth and experience and other factors into consideration,” Stimson points out. “So they get an individualized sentencing procedure.” In any case, he adds, most juveniles convicted of murder are not given life sentences, and prosecutors “are sensitive to the unique circumstances of each case.”

Salarno, of Crime Victims United, says, “We aren’t making anybody accountable and responsible.” She contends there is a “movement … going on in this country” in which “the victim has become the perpetrator and the perpetrator has become the victim.”

Her group opposed a California measure, ultimately passed in 2013, to allow those sentenced to life without parole before age 18 to ask for a rehearing. “Those families went through all that trauma and all that fear, and a jury gave them that sentence,” Salarno says. “And now they live in fear because [the inmate] is going to get out. That is wrong to do that to those families.”

In his dissent in the Miller case, Chief Justice John G. Roberts Jr. said the court had confused decency with leniency. “It is a great tragedy when a juvenile commits murder — most of all for the innocent victims,” Roberts wrote.

Erickson, the forensic scientist, warns, “If the Supreme Court eventually decides we will have a categorical ban, is that not at war with the doctrine that juries get to decide?”

Rushford of the Criminal Justice Legal Foundation opposes banning life without the possibility of parole (LWOP), and says some murderers, even those under 18, “should never see the light of day.” However, he adds, “the juveniles on LWOP who are performing well, behaving and making themselves productive should be in a different kind of housing from the hard-core gang banger.”

Moreover, he continues: “There is a guaranteed way to reduce sentences for 17-year-old multiple murderers. There is something called a commutation by the governor. In California, we have a governor who has done that. He’s putting his butt on the line every time when he makes those calls.”

Muhammad, of Impact Justice, says paroled inmates released in recent years by Democratic Gov. Jerry Brown have become productive citizens. He says those convicted at 14 and sentenced to life terms likely didn’t have a brain that had fully developed yet. “Thirty years later they would be a human being.”

He supports banning life-without-parole sentences. He warns, however, that courts can impose sentences that are not termed life without parole but are effectively the same. “There are courts and judges who get around [a ban on mandatory life without parole] by giving 150-year sentences. That hasn’t been outlawed.”

Erickson and others explain, however, that such sentences typically provide for a parole hearing after a certain number of years.