In my most recent blog, I examined how judges decide whether to have serious cases involving 15-, 16-, and 17-year-olds handled in juvenile court or as adult criminal cases. For a variety of reasons—including the fact that, although the juvenile court has jurisdiction over respondents through the age of 21, the juvenile system itself has very few treatment options for those aged 18 to 21—many such cases are ultimately treated as adult criminal cases, and far too many of these juveniles receive lengthy prison sentences to serve with adults in the Division of Correction. Indeed, dating back to the 1990’s, when crime levels were high and serious crimes committed by juveniles were increasing, the idea (now discredited) spread that some young people were incorrigible despite their youth. As a result, many such children, particularly those Black and Latino juveniles, were treated as adult criminals and were given life sentences to serve, sometimes without the possibility of parole. Others were, and still are, sentenced to life sentences or to sentences of 60 years or more. There has been a trend in the past decade to curb life without parole for such juveniles, but do we really want our teens to spend decades or most of their lives in prison for something they did when their brains were not fully developed? Is the person who committed a serious crime at age 16 the “same” person at age 26 or 36, let alone at 46? Certainly not, at least according to our own experiences as adolescents and to the findings of modern neuroscience.
The United States Supreme Court has recognized the uniqueness of the adolescent brain in a series of decisions dating back to 2005. In that year, the Court ruled in Roper v. Simmons, 543 U.S. 551 (2005), that juveniles could not be sentenced to death because of their lessened culpability based upon immaturity and susceptibility to outside influences. Five years later, the Court held that juveniles could not be sentenced to life without parole in non-homicide cases. Graham v. Florida, 560 U.S. 48 (2010). The Court stressed that juvenile offenders must be given a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 75. The Court soon thereafter ruled in Miller v. Alabama, 132 S. Ct. 2455 (2012), that mandatory life without parole sentences for juveniles violates the Eighth Amendment. The Court in Miller emphasized that judges must be able to consider the characteristics unique to young defendants such as “transient rashness, proclivity for risk, and inability to assess consequences.” Id. at 2465.
These decisions, held to be retroactive in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), led to the opportunity for juveniles across the country to have some recourse to challenge their now unconstitutional sentences. The Court in Montgomery noted, however, that the 2,100 people covered by the Miller and Graham cases were not necessarily entitled to resentencing hearings so long as parole hearings were available to them. Id. at 736.
In what might be considered a partial retreat from these holdings, the Supreme Court’s latest word on the subject came just a few months ago. In Jones v. Mississippi, 593 U.S. ___ (2021), the Court reaffirmed the requirement that “youth matters in sentencing,” but also ruled that state courts did not need to make a separate finding of “permanent incorrigibility” to sentence a person to life without parole for conduct that occurred when that person was under the age of 18.
In Maryland, both the Court of Appeals and the General Assembly have responded to the issue in the wake of these Supreme Court rulings. In Carter v. State, 461 Md. 295 (2018), a four-judge majority of the Court ruled that Maryland’s parole scheme was sufficient to address the problem and that individual resentencings were not required. The Court concluded: “The Maryland law governing parole, including the statutes, regulations, and executive order, provides a juvenile offender serving a life sentence with a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’” Id. at 365. Chief Judge Barbera, joined by Judges Greene and Adkins, dissented, reasoning that the parole system in Maryland lacked sufficient standards to grant or deny parole to juvenile offenders serving the equivalent of a life sentence. As such, this class of offenders did not have a “meaningful opportunity to obtain release.” Id. at 368-71. The upshot of Carter and the Supreme Court rulings was that juveniles sentenced as adults in Maryland had only the possibility of parole as a way to end a lengthy prison sentence.
To the rescue, however, came the Maryland Legislature in its recently ended session. Overriding the Governor’s veto, the General Assembly passed a landmark bill, the Juvenile Restoration Act, which goes beyond the protections afforded juveniles from the Supreme Court and the Court of Appeals. This law, effective October 1, 2021, allows judges to impose a sentence on juveniles convicted as adults less than the minimum term under the law. It also prohibits judges from imposing a sentence of life without the possibility of parole on juveniles convicted as adults. For the class of juveniles convicted as adults before October 1, 2021, who have been imprisoned for at least 20 years, such individuals may file a motion to reduce the duration of the sentence. A hearing on such a motion must be held and the court may reduce the sentence if it determines that “the individual is not a danger to the public” and “the interests of justice will be better served by a reduced sentence.” In reaching this ruling, the court must consider ten enumerated factors (similar to those described by the Supreme Court in Miller and Graham) and “any other factor the court deems relevant.”
At least 415 persons who were juveniles at the time of their offenses are eligible for relief under the Juvenile Restoration Act. It is significant that a staggering 87% of these incarcerated persons are Black. Of course, this harkens back to the fact that there is racial bias inherent in the juvenile justice system for a variety of reasons. According to the Campaign for the Fair Sentencing of Youth, this racial disparity is the worst in the entire nation.
It will now be up to individual circuit court judges to assess each case, make findings on the statutory factors, and determine whether an individual is not a danger to the public and that the interests of justice will be better served by a reduced sentence. Fortunately, the ten factors do not include “permanent incorrigibility” or “irreparable corruption,” which the Supreme Court seems to believe justifies sentencing a child to die in prison. Neuroscience informs us that adolescent brains are not fully mature and, as such, no one is permanently incorrigible based on what they did at age 15, 16, or 17. Such a judgment about children is the very type of subjective factor fraught with potential racial and cultural bias.
Indeed, it may very well be appropriate for judges hearing these serious cases to start from the premise that 20 years is a sufficient period of time for an individual, now in his late 30’s, if not late 40’s, to have matured, be rehabilitated to the extent possible in a Maryland prison, and fit to reenter society. Each case, of course, will be considered on its own merits, but such a presumption is a good place to start. The Sentencing Project, a research group that advocates for sentencing reform, “supports a 20-year maximum sentence for nearly all individuals convicted of crimes…, not only those sentenced in their youth.” Policy Brief, Updated May 2021, at 5. “This recommendation recognizes that the age of mass incarceration in America led to extreme and overly harsh sentences that are often unjust and counterproductive to public safety.” Id. Without doubt, this assessment applies even more so to juveniles sentenced as adults. It is time for Maryland judges to take the lead in reducing racial disparities in sentencing as well as in ending the barbaric practice of sentencing children to die in prison.
Judge Gary E. Bair (Ret.)
Of Counsel, RaquinMercer LLC