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Let’s stop throwing away juvenile lives

As a retired circuit court judge who did not seek recall, I am now free to speak my mind on important criminal justice issues. One such issue that has received much attention lately is how we in Maryland have treated juveniles charged with serious crimes. For a variety of reasons, far too many of these juveniles receive lengthy prison sentences to serve with adults in prison.

Beginning in the 1990s, the idea (now discredited) spread that juveniles who committed serious crimes were incorrigible despite their youth. As a result, many such children, particularly Black and Latino juveniles, were treated as adult criminals and given life sentences to serve, sometimes without the possibility of parole. Others were, and still are, sentenced to 60 years or more.

There has been a trend in the past decade to curb life without parole for 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 and the findings of modern neuroscience.

The 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.

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), the court ruled that Maryland’s parole scheme was sufficient to address the problem and that individual resentencings were not required. Chief Judge Mary Ellen Barbera, joined by Judges Clayton Greene, Jr., and Sally D. Adkins, dissented, reasoning that the parole system in Maryland lacked sufficient standards to grant parole to juveniles 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 to end a lengthy prison sentence.

Legislative action

To the rescue, however, came the Maryland Legislature in its recently ended session. Overriding the Gov. Larry Hogan’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 Oct. 1, 2021, allows juveniles convicted as adults, and who have been imprisoned for at least 20 years, to file a motion to reduce the duration of their 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 10 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 incarcerated persons are eligible for relief under the Juvenile Restoration Act and a staggering 87% of them are Black.  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 judges to assess each case and make findings on the statutory factors. It may very well be appropriate for these judges to start from the premise that 20 years is a sufficient period for an individual, now in his late 30s, if not late 40s, to have matured, be rehabilitated to the extent possible in a Maryland prison, and fit to reenter society.

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.

Gary E. Bair is a retired Montgomery County Circuit Court judge. He is of counsel at RaquinMercer LLC.


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