Robert Kinscherff and Frank DiCataldo, "Half a Life: Legal and Policy Implications of Releasing Youth Incarcerated for Murder"

Half a Life:

Legal and Policy Implications of Releasing Youth Incarcerated for Murder

Frank DiCataldo, Ph.D.

Roger Williams University

Karter K. Reed, A.A. Community Activist, Advocate, Mentor

Robert Kinscherff, Ph.D., J.D

Senior Fellow in Law and Applied Neuroscience MGH and Harvard Law School

© All rights reserved 2016

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Half a Life: Legal and Policy Implications of Releasing

Youth Incarcerated for Murder

Overview of Panel

Dr. Frank DiCataldo Summary: Research & Original Research

Mr. Karter K. Reed Perspectives from Lived Experience

Dr. Robert Kinscherff Legal and Policy Implications

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Juvenile Life without Parole (JLWOP)

• ACLU estimates that there are currently 2570 individuals serving JWOP in the US (ACLU.org)

• 57 individuals were serving JLWOP in Massachusetts in 2009 (Children’s Law Center of Massachusetts, 2009)

• Juvenile lifers experience (Nellis, 2012):

– high levels of exposure to violence at home (79%); – high rates of physical abuse (46.9%) and sexual abuse (20.5%) – Significant educational challenges - 40% in special education and nearly

half not attending school at the time of their offense – Significant social and economic disadvantage – 31.5% living in public

housing and 17.9% not living with a close relative

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JWOP in Massachusetts (Children’s Law Center , 2009)

• 41% of those who are serving JLWOP received the sentence for their first offense

• 20% are serving JLWOP for “Felony-Murder”

• 40% had one or more adult co-defendants

• 35% had a home environment where drugs were almost always present, being used, bought or sold

• More than half reported significant histories of physical abuse

• Only 31% were enrolled in school at the time of their arrest

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Recidivism of Juvenile Homicide Offenders

Study N Follow-up Recidivism Recidivism rate

(years) measure any violent

____________________________________________________________________________________

Howell (1995) 128 1-3 conviction 22%-41%

Hagan (1997) 20 5-15 re-arrest 60% 35%

Heide et al. (2001) 59 15 reincarceration 60%

Vries and Liem (2011) 137 8.5 re-arrest 59% 20%

Trulson et al. (2012) 442 3 re-arrest; felony 57%

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The Recidivism of Juveniles convicted of homicide and released as adults: A Massachusetts Study

Sample

• 33 juveniles awaiting trial for a homicide offense or transfer to the DOC post-conviction for a homicide offense were recruited and interviewed between 1995 and 1998 (DiCataldo and Everett, 2008)

• 22 of the original 33 had been released to the community

• Recidivism data obtained from their Criminal Offender Record Information (CORI)

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• Serious Violent Persistent Offenders – two or more post-release convictions for violent offenses and/or one violent conviction involving the use of a weapon.

• Single Violent Persistent Offenders - one post-release conviction for a violent offense without the use of a weapon.

• Violent Desistance Offenders – one or more post-release convictions for non-violent offense(s) and no violent offense convictions.

• Total Desistance Offenders – No post-release criminal convictions.

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Table 1

Demographic and Legal Characteristics of the Four Juvenile Homicide Offender Groups

Serious Single Violence Total

Violent Violent Desistance Desistance

Persistent Persistent Offenders Offenders

Offenders Offenders

N (%) N (%) N (%) N (%)

______________________________________________________________________________

Group 2 (9.1%) 2 (9.1%) 3 (13.6%) 15 (68.2%)

Race

African-American 0 0 3 (13.6%) 9 (40.9%)

Caucasian 1 (4.5%) 0 0 3 (13.6%)

Latino 1 (4.5%) 2 (9.1%) 0 1 (4.5%)

Mixed 0 0 0 2 (9.1%)

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Table 2

Prior Offense History and Recidivism Post-Release

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Serious Single Violent Total Sample

Violent Violent Desistance Desistance Total

Persistent Persistent Offenders Offenders

Offenders Offenders

______________________________________________________________________________

M (SD) M (SD) M (SD) M (SD) M (SD)

Age at Time of 15.9 (.07) 16.3 (1.6) 15.6 (0.8) 16.4 (1.0) 16.2 (0.9)

Offense

Age at Release 28.8 (3.1) 27.7 (2.4) 27.6 (3.6) 29.7 (2.97) 29.1 (2.9)

Time Committed 12.8 (3.1) 11.4 (3.9) 12.0 (2.8) 12.9 (3.1) 12.7 (3.1)

Time at Risk 8.5 (4.7) 7.1 (2.82) 8.5 (2.70) 7.6 (3.73) 7.8 (3.4)

------------------------------------------------------------------------------------------------ ---------------------

N (M, SD) N (M, SD) N (M, SD) N (M, SD) N (M, SD)

Prior Offenses 6 (3.0, 2.1) 5 (2.5, 0.7) 12 (4.0, 1.2) 45 (3.0, 2.7) 68 (3.1, 2.3)

Convictions 14 (7.0, 5.7) 5 (2.5, 0.7) 20 (6.7, 6.7) 0 39 (5.6, 3.9)

Post-Release

Violent Convictions 9 (4.5, 3.5) 2 (1.0, 0.0) 0 0 11 (0.5, 1.3)

Post-Release

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Major Findings

Recidivism rate utilizing post-release conviction was generally lower than in previous studies

Lower rate may be due to their older age (29.1 years) at the time of their release. They had served an average of 12.7 years in prison and had been in the community for 7.8 years

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Total Desistance offenders had the least criminally-involved families and reported a lower crime problem in their community but reported feeling less safe than the members of the other groups. Also, had fewer prior mental health and substance abuse problems and fewer problems with anger control and fighting

Violence Desistance Offenders occupied a middle ground position on prior delinquency, family history, mental health and community variables

Serious Violent Persistent Group reported a increased history of family criminality, more mental health and substance abuse problems and more problems with anger control and fighting

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Limitations and Implications

Limitations

Small sample

Selection bias

Post-release interview

• Implications for post-Miller resentencing and parole hearings

• Potential for youthful offenders for change and rehabilitation, even if they have committed a homicide offense

• The protective role of normal developmental maturation (desistance)

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Legal and Policy Implications of Releasing Youth Incarcerated for Murder

Robert Kinscherff, Ph.D., J.D. 13

Context Shaping Evolving Law and Policy

• “Crack and Handgun” Spike ~ 1985 – 1992

• Public Perception of the Rise of the Teen “Super-Predator”

• “Old Enough To Do the Crime, Old Enough to Do the Time”

• Parallel Emergence of Breakthroughs in Neuroscience

• Scientific Humility in Ability to Predict Individual Outcomes

• Funding of Research on Adolescent Brains, Delinquent Trajectories

• Critique of “Era of Mass Incarceration” and “Pipelines to Prison”

• From Hard or Soft on Crime to “Smart on Crime” 14

Legal Implications

• 2005 Roper v. Simmons No Death Penalty • 2010 Graham v. Florida No LWOP For Non-Capital cases • 2012 Miller v. Alabama No Mandatory JLWOP • 2016 Montgomery v. Louisiana Miller applied retrospectively

Bringing together two constitutional doctrines: (1) Children are different, and (2) Death—including sentencing to die in prison (LWOP) is different, at least for youth under age 18. The reason: Developmental immaturity mitigates culpability and brings vulnerabilities to all youth under age 18 that must be taken into account

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Convergences of Science and Law

• Developmental neuroscience on adolescent brain changes

• Behavioral and social science on adolescent: – Capacities for self-regulation

– Capacities for decision-making, especially in “hot” cognition contexts

– Risk-taking and sensation-seeking

– Vulnerabilities to peer influences, family and other social contexts

• Normative self-desistance of misconduct as youth mature

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Miller Factors

• Youthful propensity for flawed decisions, reckless actions

• Vulnerability to adverse conditions and/or degree of autonomy

• Circumstances of the offense and the youth’s involvement

• Greater potential for rehabilitation based in maturation

• Developmentally related vulnerabilities in legal proceedings

See: T. Grisso, A Kavanaugh (2016) Prospects for Developmental Evidence in Juvenile Sentencing Based on Miller v. Alabama. Psychology, Public Policy and the Law (vol 226, no 3, 235-249)

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Miller and Montgomery

• A sentencing court is required to “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison” (Miller)

• LWOP for youth is reserved for the “rare juvenile offender whose crime reflects irreparable corruption” and is “irretrievably depraved” (Miller)

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Miller and Montgomery

• Miller’s application of constitutional doctrines regarding the differences of children from adults based upon mitigation arising from youthful immaturity and capacities for rehabilitation as articulated in Miller “established that the penological justifications for life without parole collapse in light of the distinctive attributes of youth” (Montgomery)

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Legal Implications

• In post-Miller sentencing where LWOP could be imposed:

– What evidence could ever show “irreparable corruption?”

– Note that “heinousness” of the crime cannot itself be used to make inferences about character or rehabilitation prospects of the youth (Roper)

• In post-Miller sentencing where LWOP is not imposed:

– What should be the minimum time served before “wrapping” a term of years or becoming parole-eligible?

– How to balance interests in rehabilitation and punishment? 20

Legal Implications

• In post-Miller resentencing where LWOP had been imposed: – Should post-sentencing prison conduct be excluded or included in making the new

sentencing decision?

– Should prison “conditions of confinement” and rehabilitative resources be weighed in assessing the course of maturation of an inmate incarcerated since adolescence?

• In post-Miller parole hearings: – Should there be special instructions for Miller inmates regarding how to weigh the

severity of the offense? Assessing conduct by inmates prior to Miller when there was limited motivation to engage in rehabilitative programming? Weighing impact of correctional policies that limit access by LWOP inmates to rehabilitative programming?

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Policy Implications

• Different procedures, rules of evidence and/or sentencing for youth charged with capital offenses? Up to what age?

• Different sentencing guidelines for youth charged with capital offenses? Up to what age?

• Different facilities with different programming for youth sentenced for capital or other serious violent offenses? Up to what age?

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Policy Implications

• Emphasis on correctional programming that anticipates eventual re-entry with focus upon:

– Assuring basic literacy skills with access to higher education

– Providing pre-vocational and vocational skill acquisition

– Facilitating establishing or maintaining positive social networks

– Addresses criminogenic needs, values, attitudes and beliefs

– Developing capacities for victim empathy, community engagement

•

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Thank You! Questions, Comments, Conversation?

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Health & Medicine

Robert Kinscherff and Frank DiCataldo, "Half a Life: Legal and Policy Implications of Releasing Youth Incarcerated for Murder"