There is no ignoring the growing national consensus against sentencing juveniles to life without parole (JLWOP). From local prosecutors to state legislatures to the Supreme Court of the United States, elected officials and institutions are finally acknowledging that it is cruel to sentence a person to die in prison for crimes they committed as a child. In fact, in January's Montgomery vs. Louisiana decision, the Supreme Court all but outlawed the practice.
Montgomery made retroactive Miller v. Alabama, which ruled in 2012 that mandatory life without parole sentences for juveniles violate the Eighth Amendment's prohibition of cruel and unusual punishment. Neither ruling was all-encompassing—Montgomery only addressed statutorily mandated sentences, as did its predecessor. But Montgomery not only gave hope to thousands of people serving juvenile LWOP, it also underscored just how rare such sentences should be in the future. "[A] lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect ‘irreparable corruption,'" said the court.
The ruling in Montgomery requires prosecutors to re-sentence the mandatory JLWOP cases in their jurisdiction. (Prosecutors can still ask for life without parole during re-sentencing, since the punishment is legal as long as the sentence isn’t required by law.) Since January, prosecutors have been publicly announcing how they plan to address each case, and these past few weeks all eyes have been on Michigan—Detroit (Wayne County) in particular.
Michigan has about 360 JLWOP cases, second only to Pennsylvania. Wayne County alone has more than 150 cases, or about 40 percent of the state's total, despite housing only 18 percent of the population. The racial disparity in juvenile LWOP sentencing is especially significant in Wayne County, where 93 percent of those sentenced to juvenile life without parole are black, compared to only 39 percent of the population.
Finally, last Friday, Wayne County Prosecutor Kym Worthy announced the fate in 141 of these cases.
Criminal justice reform advocates had hoped that Worthy would agree to re-sentence all the defendants to terms of years. Depending on the case, such a sentence could mean immediate release for some inmates, or the possibility of parole now or in the future for others. Ultimately, people just wanted Worthy to give each defendant the chance to eventually see a parole board. They wanted her to give every defendant hope.
Instead, Worthy has decided to once again seek life without parole sentences for many of those inmates.
"The public should rest assured that we will aggressively pursue life without possibility of parole in 60 cases,” she announced. (The other 81 cases will be sentenced to term of years.) Some of these inmates have served almost fifty years in jail for crimes they committed as a juvenile.
The Supreme Court said only the rarest of children would be irreparably corrupt. To Worthy, rare means 40 percent.
A new report from the Fair Punishment Project highlights just how alarming Worthy's decision is, calling her "an extreme outlier" on juvenile sentencing. “Worthy’s decision to again seek life without parole for one out of three individuals who were convicted as juveniles is completely out of line with the Supreme Court’s ruling, mounting scientific research, the practices of prosecutors across the country, and years of experience that have shown us that youth are capable of change and deserve an opportunity to earn their release,” said Senior Researcher at Harvard University, Rob Smith.
There's no question that the nation is moving rapidly away from JLWOP sentencing. From the report:
A majority of states have either outlawed the use of JLWOP completely or have fewer than five individuals serving the sentence. Of those, 19 states have abandoned JLWOP entirely, six states and the District of Columbia allow for JLWOP but have no individuals currently serving JLWOP sentences, and four states have five or fewer JLWOP sentences.
This momentum is not limited to left-leaning jurisdictions. Both Utah and South Dakota, which are Republican-led states, passed laws banning life without parole for minors this year. Louisiana’s conservative legislature also overwhelmingly passed a measure that would have eliminated JLWOP sentences and allowed all youth a parole hearing after 35 years.
The shift isn’t limited to states. On the local level, some prosecutors, such as Philadelphia District Attorney Seth Williams, have made the brave decision to not ask for LWOP sentences in any of the 300 plus JLWOP cases in his jurisdiction.
There are a number of reasons behind the diminishing popularity of JLWOP sentences, including shifting views of the criminal justice system. In the 1990s, during the peak of America's tough-on-crime era, JLWOP sentences were much more prevalent. A report by The Phillips Black Project found that:
From 1992 to 1999, forty-five states adopted laws expanding the adult court jurisdiction over juveniles, thereby expanding the applicability of JLWOP in those states. This period saw marked increases in JLWOP sentences, despite a drop after 1994 in homicides committed by juveniles.
[This] era was marked by much more frequent use of JLWOP, with a nearly tenfold increase in its use per homicide between 1990 and 1999.
This held true in Michigan, too—more juveniles were sentenced to LWOP between 1990-1999 than any other decade. However, as criminal justice reform began to take hold and the Supreme Court narrowed the sentence's scope and applicability, juvenile LWOP sentences have become less and less common.
But the shift away from LWOP is not only correlative with pivoting ideology. It's also rooted in science, including relatively recent research about the adolescent brain. From Fair Punishment Project’s recent report:
Modern neuroscience has proven that the adolescent brain differs substantially from the adult brain. The prefrontal cortex, which is the part of the brain used for impulse control and planning, is not fully developed until around age 25. As a result, young people have a reduced capacity to control their impulses; they may know and understand the choices they are making, but they have a harder time resisting the compulsion to act.
It is no surprise that as people age, their likelihood of committing crimes significantly decreases. Developmental research shows that juveniles usually outgrow the type of reckless behavior that leads to contact with the criminal justice system. Thus, the strength of the adolescent brain lies in its elasticity and resilience. In a very real sense, the teenager who commits a serious crime is not the same person years—or decades—later when a parole board decides whether he or she should be released from prison.
The data the report cites is objective, but the attendant effects are principled. Children are categorically differentiated from adults for a reason. There is a reason that we house them, feed them, and check their report cards until they are well into their teens—they are not fully equipped with adequate decision-making facilities.
Children's inability to appropriately process information and make good decisions is only magnified in unsupportive environments. It is unsurprising, then, that statistics show that those sentenced to JLWOP were disproportionately likely to have experienced childhood trauma, violence, and instability. Almost 80 percent witnessed violence in their homes regularly, 40 percent were enrolled in special education classes, and fewer than half were even attending school at the time of the crime. Almost half suffered from physical abuse, including 80 percent of girls sentenced to JLWOP. Similarly, 77 percent of girls had also been sexually abused.
Every time we sentence a child as an adult, we send a message that a kid is only a kid until they do wrong. But that is the exact opposite of reality—kids are kids especially when they do wrong.
JLWOP is not just bad policy based on bad science. It's also explicitly racist. In Wayne County, 93 percent of JLWOP defendants are black, and statewide things aren’t much better. In 2012, Second Chances 4 Youth reported that "73 percent of those youth serving life without parole are children of color, despite their only representing 29 percent of youth in Michigan."
Worthy hasn't released the names and details of the sixty prisoners she's trying to keep in jail for life. But even if the list includes every white or Hispanic person serving juvenile life without parole in Wayne County, black LWOP defendants would still account for 80 percent of those being retried for LWOP.
The common retort to such data is that black people are more likely to commit crime. But even among those convicted of homicide, there is stark racial disparity. The Phillips Black Project reports:
Starting in 1992, the height of the super-predator panic, a black juvenile arrested for homicide has been twice as likely to be sentenced to LWOP as his white counterpart. This difference was found to be statistically significant, when controlling for other variables.
And racial disparity in juvenile LWOP sentencing isn't just related to the race of the offender, but the race of the victim. From The Sentencing Project:
While 23.2 percent of juvenile arrests for murder involve an African American suspected of killing a white person, 42.4 percent of JLWOP sentences are for an African American convicted of this crime. White juvenile offenders with African American victims are only about half as likely (3.6 percent) to receive a JLWOP sentence as their proportion of arrests for killing an African American (6.4 percent).
It's not only race, either—class also matters. Juvenile offenders are more likely to be poor, and 32 percent were living in public housing at the time of their offense.
Why is it that Worthy, a black prosecutor in a significantly minority city, has decided to take such a draconian approach to re-sentencing? From Metro Times:
Worthy said Wednesday that her office analyzed each juvenile case after the High Court decisions were reached, and had "one of the shortest time periods in the country to do so" under Michigan’s statute.
The prosecutor's office "combed trial transcripts, prison records, and numerous other documents," she said, as well as seeking "input from from victims' families, when they could be located during this short window of time."
In cases where life without parole was recommended by Worthy's office, "many of the juveniles committed disturbing crimes, and once they were in prison they continued to commit crimes, and have serious misconduct issues well into mature adulthood," she said, adding: "These facts simply cannot be ignored."
Worthy said she doubts the authors of the Fair Punishment Project report did "any kind of impartial or serious analysis" of the 60 defendants' backgrounds.
It's an interesting defense from a jurisdiction that has been less than transparent about the details concerning these defendants' backgrounds, making the analysis she calls for virtually impossible.
But even putting accessibility aside, Worthy's justification is still specious. First, inmates that have been accused of crimes in custody generally have no sufficient arena to refute those claims. And while prisons theoretically have adjudication processes for infractions committed in custody, inmates face an uphill battle for justice and risk retaliation or punishment for alleging innocence.
For inmates, fighting accusations of wrongdoing is only worth it to preserve their chance at parole. But for these 60 inmates, who were sentenced to die in prison without exception, parole was never an option. Therefore, it is much less likely that they would have contested any alleged misconduct.
What's more, records of the prison misconduct that she cites would be available to the parole board. If an inmate's behavior indicated that they were not ready for release, the parole board could deny them parole. Or, even further, if Worthy herself wanted to try these defendants for the continued prison crimes she alleges, she could do so. Perhaps the crimes she’s citing would justify a longer sentence. But she's asking for life without parole sentences for the crime these defendants committed as children.
Worthy has prevented them from even getting the opportunity to stand in front of a parole board, or face a jury again. She has denied them even the tiniest light in the tunnel.
Worthy could still change her mind and give these defendants another chance. As she stated, she faced somewhat unusual resource and time constraints due to Michigan statutory requirements that forced her to make an announcement within six months. But she still has the discretion to change direction. She could look to Williams in Philadelphia for guidance, or one of the many other elected officials that has taken a stand against JLWOP. After all, the risk of reoffending drops significantly as people age, and most juveniles serving life without parole were sentenced on their first offense.
At the very least, Worthy could agree to stop sentencing juveniles to LWOP in the future. She claims that many of these 60 inmates "once they were in prison they continued to commit crimes, and have serious misconduct issues well into mature adulthood." But this wouldn't be part of the prosecutorial calculus for a juvenile sitting at the defendants table in the future.
Most of these inmates weren't sentenced during Worthy's tenure as head of office. Only 27 of the 150 Wayne County JLWOP inmates have been sentenced under her, and only four since Miller outlawed mandatory JLWOP in 2012. But Worthy has been working in the Detroit criminal justice system for 30 years. She's began her career in the Wayne County Prosecutor's office after graduating law school in 1984. From 1994-2004 she served as a judge in Circuit Court, where she "presided over hundreds of serious felony cases." In 2004, she was elected county prosecutor.
During her 12 years as head of her office, Worthy has been hailed as a moral leader in her field. She made headlines when she prosecuted Mayor Kwame Kilpatrick on corruption charges in 2008, and is seen as a force in the city. A 2010 Essence article described her as "obsessively deconstructed, idolized, criticized and, above all, feared."
But recent decisions have put that reputation in serious jeopardy. Over the past few months she's faced nationwide criticism for her office's failure to release Davontae Sanford, a blind and developmentally delayed teenager who falsely confessed to a quadruple homicide in 2007. From The Atlantic:
The typed confession [police] prepared read that Sanford admitted he and three friends planned to rob the house on Runyon Street. They’d first met at a restaurant, then passed out guns. On the drive to the house, according to this first confession, Sanford asked to get out of the car before they reached the house on Runyon Street, then he walked home. He was there when he said his friend jumped through the backyard and shouted to Sanford that he’d shot someone.
Sanford’s story didn’t make sense: The restaurant he claimed to have met at had been closed for months; Sanford didn’t match any of the descriptions given by witnesses who saw two—not four—men run from the house; and the caliber of guns Sanford described were wrong. But two subsequent confessions were closer to what the police needed.
Although the real killer confessed in 2008, Sanford wasn't released until last month. Wayne County Circuit Judge Brian Sullivan dismissed the charges against Sanford and criticized Worthy as well as Sanford’s defense team. “This case is thick with speculation, conjecture, confusion and unanswered questions,” he said, “far thinner on evidence,"
In a city like Detroit, Worthy has the opportunity to lead the way on criminal justice reform by rethinking harsh sentencing, reducing incarceration, and investing preventative resources in communities. And, as one of just a few black prosecutors in her state, she could make a uniquely significant impact by taking a stand against racial inequality in the criminal justice system. There's no question that she has the skills to lead the way.
Yet, instead she's chosen to be the wrong kind of outlier. "We have fulfilled our obligation to protect the public and to follow the spirit and intent of the Supreme Court decisions," Worthy said Wednesday. But she's wrong.
The Supreme Court emphasized just how rarely children deserve to be sentenced to LWOP, yet Worthy believes that 40 percent of these defendants deserve to die in jail. Worthy's refusal to evolve on this issue will be a permanent stain on her legacy.