A SECOND CHANCE FOR THE JUVENILE KILLER : WHY YOU SHOULD CARE.

IZZY AFRIYIE

Table of Contents

As of 2021, the U.S. remains the only nation that locks up minors for life without the possibility of parole. Yes, in America, a 14-year-old who commits capital murder, can be imprisoned for the rest of his natural life. Those who support such harsh punishment for children do so under a self-righteous affinity for the maxim, “if you can do the crime, you can do the time.” But I argue that child killers are made, not born. And the best social policy lies in prevention, not in lengthy incarceration. Every child deserves a second chance at life, irrespective of the nature of his or her crimes. And it is unconscionable and morally repugnant to lock up a 14-year-old child, and give him no opportunity to ever leave the concrete walls of prison except in a coffin.

THE PORTRAIT OF THE CHILD KILLER

Most children who commit murder have one thing in common: they experience extreme adversity. They come from families of dysfunction, poverty, violence, substance abuse, and pain. Granted, not all children who experience adversity commit murder, but most who commit murder come from such backgrounds. This undisputable connection between childhood adversity and murder allowed a Chicago psychologist, Robert Zager, to predict with 90% accuracy the type of children who eventually went on to kill. Based on Zager’s finding, the City of Chicago spent $50 million on preventative programs aimed at children who were identified as “high risk for killing.” Implementation of this program saw a 47% reduction in murder in the first year—saving 193 lives and $1.4 billion.[1]

Adolfo Davis is a prime example of such traumatized children who eventually go on to kill. Davis grew up in a one-bedroom apartment with his grandmother, his bedridden grandfather, his disabled uncle, and drug-addicted mother. As early as age six, he had to fend for himself or go hungry. And at age 12, he joined a Chicago street gang, Gantsa-Disciples, after a member offered him $250 to watch out for the police. Two years later, at age 14, Davis found himself in a courtroom facing a double murder charge among other things. He was tried as an adult.

ADOLFO DAVIS CONVICTION AND JLWOP SENTENCE

It is still disputed whether Davis pulled the trigger that ended with the double murder. He maintained he did not. Prosecutors insisted he did. However, for the purpose of his guilt, the jury could still find him guilty even if he did not pull the trigger. Two men died, and others were injured, when Davis and his friends invaded a rival gang member’s home. According to court documents, they did so to seek revenge after a member of the rival gang slapped one of Davis’ friends. Therefore, even if Davis did not pull the trigger, the jury could find him guilty under an accomplice liability theory or the felony-murder theory of law. After his trial, the Jury returned a verdict on two counts of First-Degree murder, two counts of Attempted Murder, and Home Invasion. And in April 1993, Davis was sentenced to life in prison without the possibility of parole.[2]

WHEN A CHILD IS TRIED AS AN ADULT IN THE CRIMINAL JUSTICE SYSTEM

Persons below the age of 18 who commit capital murder can be tried as adults. The specific rules vary from state to state. But using Illinois as an example, minors aged 13 or older can be prosecuted under criminal law. In doing so, the court considers the minor’s age, his history, whether the offense was committed in an aggressive and premeditated manner, or whether the minor possessed a weapon in committing the alleged offense, among other factors. When a minor is charged with a crime, the age of the minor and the criminal act will determine if the minor is tried as a juvenile or tried as an adult.[3]

Before 2005, minors who were tired as adults and found guilty of capital murder were given the same mandatory punishments as adults who committed a similar act. This meant that minors could be given the death penalty. However, in 2005 the U.S. Supreme court intervened and banned the imposition of the death penalty on children below the age of 18. Scientific evidence proved, and the court accepted, that children because of their age are less matured; are more susceptible to outside influence, and are unable to make the same cost-benefit analysis that adults can make before they commit a crime. Therefore children, because of their adolescence are less culpable than adults for purpose of sentencing.[4]

MANDATORY SENTENCING SCHEMES AND LIFE IN PRISON WITHOUT THE POSSIBILITY OF PAROLE

Generally, when a person is found guilty of murder, states have mandatory sentencing schemes that provide the punishment the defendant must receive. And in most states, the punishment for capital murder is either death or life in prison without the possibility of parole. Therefore, a child who is tried as an adult, and convicted of murder would receive either a death sentence or life in prison without the possibility of parole (known as JLWOP) as punishment. These sentences were mandatory, and Judges had no leeway out of them.

When the U.S. Supreme court ruled in Roper v Simmons in 2005 to take away the death penalty for minors, the only remaining punishment under the mandatory sentencing scheme for minors was JLWOP. Children across the country who were found guilty of capital murder were therefore sentenced to mandatory life in prison without the possibility of parole.

But in 2012, the U.S Supreme Court revisited the issue of child sentencing for capital murder in the now-famous case Miller v Alabama. There, the Court ruled that children below the age of 18 cannot be given a mandatory life sentence without the possibility of parole.[5]

And in 2016, the Supreme Court ruled in Montgomery v Louisiana that its Miller ruling must be applied retroactively.[6] This meant that minors who were sentenced to mandatory life in prison without the possibility of parole before the Miller decision, became eligible to have their sentences reviewed, and in some cases have new sentences imposed.

The court’s decision in Miller and Montgomery affected about 2,500 persons including Davis who were serving JLWOP for crimes they committed before they turned 18.

DISCRETIONARY LIFE IN PRISON WITHOUT THE POSSIBLITY OF PAROLE

The decision in Miller only banned mandatory, not discretionary, JLWOP sentences. The ruling created a loophole that allows judges to impose JLWOP sentences at their discretion. Miller requires that the minority of the defendant be considered a mitigating factor for purposes of sentences. But if the judge were to find, after considering the minor’s age, environment, nature of the offense, and other mitigating factors, that the minor is irreparably corrupt, the judge can exercise her discretion to imprison the minor for the rest of his natural life.

This loophole allowed Illinois Judge Angela Petrone to resentence Davis to JLWOP in 2015.[14] Illinois interpreted Miller to apply retroactively even before the Supreme Court’s decision in Montgomery. And Davis’s case was the first case up for review before the court. Although people who testified on behalf of Davis, including Father David Kelly, who had known Davis for more than two decades, lauded Davis’s positive transformation and his desire to help at-risk youths, Judge Petrone resentenced him to life in prison without the possibility of parole. She did so, in her own words, because “… is necessary to deter others.”

The court anticipated that JLWOP sentences would apply in only the rarest of cases where the child’s character was irredeemable. Miller  and Montgomery require the sentencing judge to ask: “whether the petitioner was among the very rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”[7] And in Tatum v. Arizona, Justice Sotomayor writing for the majority stated,[8]

It is clear after Montgomery that the Eighth Amendment requires more than a mere consideration of a juvenile offender’s age before the imposition of a sentence of life without parole. It requires that a sentencer decide whether the juvenile offender before it is a child “whose crimes reflect transient immaturity” or is one of “those rare children whose crimes reflect irreparable corruption” for whom a life without parole sentence may be appropriate.

Judge Angela Petrone got Miller Wrong in resentencing Davis in 2015. However, her authority as well as that of other judges to sentence minors to life in prison without the possibility of parole, at their discretion, remains the law.

JLWOP TAKES AWAY HOPE THAT INSPIRES BEHAVORIAL CHANGE IN JUVINILES

Hope is a great motivator for behavioral change. Given that most children who commit murder already come from lives of extreme adversity, they may not interpret their incarceration as a deserving punishment for their behavior. Instead, they are more likely to perceive imprisonment for the rest of their natural lives as an additional layer of the adversity they have been burdened with their whole life. They may interpret their punishment as the “system” or the world being against. Such children are therefore more likely to go against the “system” than work with it in transforming themselves into better and more responsible adults.

The following words by Adolfo Davis, who was sentenced to life in prison without the possibility of parole for a crime he committed at age 14 captures the mind of the child killer:

Chaos and destruction sent us on a one-dimensional path of darkness. We were unloved, unwanted, abandoned, and scared. But the most dangerous emotion was self-pity, the incubator of evil. Feeling sorry for oneself feeds the anger within us. The world owes us, that is how we felt. Two of us blamed our parents for everything bad that happened in our lives. They are the reason we are rotting in prison. Stanley had a different experience. As a young boy, Stanley witnessed a policeman murder his uncle; a scene that continues to be replayed in his memory.

Making parole a possibility for such children is a chance for redemption—a second chance at life. It is saying to the child that we hear you, we see you, and we want to give you the opportunity to be better so you can have a better life.

Additionally, when parole is a possibility, and children are aware that their demonstration of growth, maturity, and positive transformation could lead to their freedom one day, they may be more likely to participate in developmental programs. They are also more likely to corporate with prison authorities in hope of securing their freedom one day. James Garbarino, the author of Miller’s Children: Why Giving Teenage Killers A Second Chance Matters For All of Us, wrote of a conversation he had with a prole commissioner of the northeastern state. The parole commissioner recalled the dramatic change he saw is prisoner who were serving a JLWOP sentence when the decision in Miller was announced. According to him, before the court’s decision, the children were “unruly, and acted out, making supervision in the prison very difficult. After Miller, their behavior radically improved.”

A CHILD'S BRAIN AND CHARACTER ARE NOT FULLY FORMED BY ADOLESCENCE

Research in the field of developmental psychology and neuroscience shows that the adolescent brain is not fully formed. That is, the region of the brain that relates to higher executive functioning like impulse control, planning ahead, and risk avoidance is not fully formed by adolescence. [9] Additionally, children are more susceptible to outside influence. And “exposure to deviant peers leads to increased deviant behavior and is a consistent predictor of adolescent delinquency.”[10]

The court has accepted these scientific findings in all of its monumental decisions relating to child sentencing. For example in Miller, the Court stated that “And because a child’s character is not well-formed as an adult’s, his traits are ‘less fixed’ and his action is less likely to be ‘evidence of irretrievable depravity.’” [11]  Similarly in Roper, the U.S. Supreme Court wrote that “[P]sychology and brain science continue to show fundamental differences between juvenile and adult minds” making their actions “less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults”[12]

These findings demonstrate that a child’s character is not fixed by adolescence. Who a person is at age 14 is not necessary who that person would be at age 30 when his brain is fully developed. However, who a child is at 14 is likely a reflection of the environment, and conditions he grows up under.  And as a child’s brain develops, and he is exposed to positive role models, his character and behavior can be reshaped to reflect the positive behavior he observes around him. For example, a study conducted by sentencing project in 2012 found the following about defendant who committed murder when they were minors:

 79% witnessed violence in their homes regularly
 32% grew up in public housing
 40% had been enrolled in special education classes
 Fewer than half were attending school at the time of their offense
 47% were physically abused
 80% of girls reported histories of physical abuse and 77% of girls reported histories of sexual abuse
 
It is no wonder that a vast majority of children who grow up in healthy homes and neighborhoods with positive role models do not commit murder.

LENGTHY PRISON SENTENCES FOR VIOLENT OFFENDERS, IS THE REAL REASON AMERICA IS THE PRISON CAPITAL OF THE WORLD.

RELATED

THE CHILD KILLER WHO TURNED HIS LIFE AROUND- THE STORY OF JEREMIAH BOURGEOIS

Like Many child killers, Bourgeois was a child of neglect. As early as age 11, he followed the footsteps of his older brother and entered into a life of petty crime. By the age of 12, Bourgeois barely spent time at home and was expelled from school. In May 1992, when Bourgeois was 14 years old, his older brother entered a convenience store and opened fire. His brother wounded the two owners of the store. Shortly after, Bourgeois’s brother was apprehended and charged with aggravated assault. During his brother’s trial, the store owners testified on behalf of the state, and his brother was pronounced guilty of the charge.

A few hours after his brother’s guilty verdict was announced, Bourgeois went back to the convenience store and fatally shot one of the store owners in retaliation for testifying against his brother. He was charged with aggravated murder. And at 14 years old, he was tried as an adult. Bourgeois was convicted of the murder charge and sentenced to life in prison without the possibility of parole.

But the Supreme Court’s decision in Miller gave Jeremiah Bourgeois a second chance at life outside prison bars. 

Bourgeois spent his early years in detention an angry child. He rebelled against the system and decried his own failures as well as that of society that influenced his choices in May 1992. But eventually, he made the decision to turn his life around.

He was released on October 28, 2019, after serving more than 27 years in prison.

Before his release from prison, Bourgeois earned a bachelor’s degree in legal studies and criminology. He graduated magna cum laude. He tutored other prisoners working towards their GED’s. And he served as an advisor to University Beyond Bars, which is a nonprofit that helps prisoners obtain a college education. He became a contributor to The Crime Report, a criminal justice news site, and his articles were published in the American Journal of Criminal Law. His legal commentary, which criticized the parole board practices in Washington State resulted in a senate hearing in the state. And later, his legal analysis influenced a landmark decision to end unlawful confinement of prisoners.

As a free man, Bourgeois is now a legal scholar, a public speaker, an advocate of criminal justice reform, and a husband. He plans to earn his Ph.D. one day and to become a college professor.

Bourgeois inspiring and incredible transformation demonstrates that when child killers are given a second chance they can become model members of society. At the age of 14, Bourgeois brain had not fully developed. His character had not fully formed. He became a petty criminal because of the negative influence around him. However, as he matured and formed his own identity, and as positive opportunities were presented to him in prison, he took advantage of them and worked incredibly hard to turn his life around.

Who Bourgeois was at 14 years old, was not indicative of the man he now is at 41.

CONCLUSION

I would like to be clear:  the call is to end discretionary sentences of life imprisonment without the possibility of parole for minors. It is not to advocate that all minors, by virtue of their age alone, should be freed from prison or be given a shortened prison sentence irrespective of the risk they pose to society. Parole has to be earned. And it is within the prerogative of the parole board to decided whether or not a defendant has demonstrated the level of maturity, character, and growth to be deserving of parole. Besides the hefty cost [13]  of incarcerating a minor for the rest of his natural life, granting wrong doers a second chance at redemption is the decent thing to do.

[1] James Garbarino, Miller’s Children: Why Giving Teenage Killers a Second Chance Matters for All of Us, § 10 (2018).

[2] People v. Davis, 388 Ill. App. 3d 869, 872, 904 N.E.2d 149, 152 (2009).

[3] Ill.Rev.Stat.1989, ch. 37, P 805-4.

[4] Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005)

[5] Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012)

[6] Montgomery v. Louisiana, 577 U.S. 190, 136 S. Ct. 718 (2016)

[7] Tatum v. Arizona, 137 S. Ct. 11 (2016)

[8] See (7)

[9] See Roper v Simmons, Brief for American Psychological Association et al. as Amici Curiae 3 at 4

[10] See Roper v Simmons, Brief for J. Lawrence Aber et al. as Amici Curiae 12–28 (discussing post-Graham studies) at 26-27

[11] (quoting Ropper v Simmons).

[12] See (4)

[13] According to the sentencing project, it costs an average of $34,135 per year to house one prisoner. This cost almost doubles when the prisoner is over 50 years old. Therefore, a 50-year sentence for a 16-year old will cost approximately $2.25 million.

[14] Adolfo Davis was released from prison in March 2020 after his attorneys struck a deal with prosecutors in 2017. He was resentenced to 60 years in prison. He became eligible for parole after serving 30 years.

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