At a sentencing hearing in Seattle this week for a 16 year old convicted as an adult, the judge imposed a 59 year sentence. In justifying this clearly excessive sentence that will result in this boy spending the rest of his life in prison, the judge stated that this boy had showed “absolutely no remorse.” In his plea for a reduced sentence, this youth argued that he was a “good dude” and that there was “no evidence that I’m a bad dude.”

For me, the frustration of this case was that this boy is more right about his future likelihood to commit a crime than was the judge. In fact, the United States Supreme Court has instructed us that youth are different. Courts must take age into account and look at the individual characteristics of a child before imposing a sentence. The Supreme Court has gone so far as to say that life sentences should be extremely rare and that even those youth who show no remorse are likely to grow out of it in the future. Every youth should have a chance for a meaningful opportunity for release. Courts must build this meaningful opportunity into their sentencing practice.

We know that social science supports the Supreme Court’s holding in cases involving youth and excessive sentences. Youth are impetuous, do not think about the consequences of their actions and don’t show remorse in the way that adults with fully developed brains do. Likewise, corporations knows that as we grow up, we become more responsible. That is why it is hard for young adults to rent cars, sign leases, and get credit cards. Corrections departments know the same thing. Risk assessment scoring instruments used to determine the level of security required in prison use age as a primary factor and the older a person is, the lower their dangerousness level becomes.

It is time for courts to catch up and adopt a more realistic and rationale understanding of youth development. The continuing challenge of getting courts to consider youth as a factor in sentencing makes it the responsibility of defenders to get courts to change their practice. Our community must continue to educate courts and help them reform their practice so that youth receive the opportunity for meaningful relief that the Supreme Court has said is required for a just criminal justice system.

1.Start educating courts and prosecutors about juvenile brain development and impulsivity well ahead of trial.

Despite the clear direction that the Supreme Court has laid out for trial courts, many judges continue to impose clearly excessive sentences. Getting the court to understand that the landscape has changed and that they need to adapt their sentencing is a significant challenge. Courts must be provided with both case law and the scientific studies that describe why youth need an opportunity for meaningful release. Advocacy on this issue should start early and can come in many different ways. For example, if your jurisdiction houses youth who are being charged as adults in an adult facility, talk to the court about why your client should be housed in a juvenile facility. Bringing up differences between youth and adults whenever you can will help the court understand that kids are different. Whenever you can, continue to remind the court that not only does the science support your position, but that the Supreme Court mandates that courts consider the differences that youth necessarily have.

2.Argue that cases should be tried in juvenile court and challenge automatic transfer proceedings.

Washington has automatic procedures for some youth so that they are charged in adult court without a hearing. Regardless of what your statute says, start arguing that those types of cases should not be heard in adult court until there has been an individualized determination that the case should not remain in juvenile court. The requirement from Miller v. Alabama that courts consider the particular circumstances of a juvenile before imposing a life sentence applies equally to transfer proceedings. And even where your court is not ready to consider this argument, it is an excellent opportunity to educate the court about why they need to consider youth as a mitigating factor at sentencing.

3.Incorporate brain development evidence into your trials.

When the Supreme Court recognized in JDB v. North Carolina that the age of the juvenile should be considered in determining the voluntariness of the confession, the Court opened the door to defense arguments that adolescent brain development extends well beyond sentencing issues. Where you can, incorporate this science into your cases. Continue to remind the court that age impacts decision-making, and that as a person gets older, decision-making necessarily improves. You can argue it in confession hearings, but also in-show up procedures where you can argue that a youth’s behavior may have impacted the reliability of the procedure and in search cases where consent is at issue. Consider asking for a “reasonable juvenile” instruction where there is any language involving foreseeability or a reasonable person. Courts should continue to be reminded that the age of your client does matter and that it informs all of the decisions that the court makes throughout a trial.

4.Argue mitigation at sentencing.

Most importantly, defenders need to get the courts to understand why age is a mitigation factor that they must consider at sentencing. Use a forensic mental health expert who is knowledgeable about adolescent development and get an evaluation and opinion so that you can argue reduced sentences. If your state has mandatory minimums or required enhancements, argue that these do not apply post Miller. Instead use the language of Miller to compel the court to take age into consideration. Successful arguments can focus on how youth do not contemplate that their conduct will harm others, how they can easily be influenced by others, and where they may have acted under fear of threats from others.

Courts that wish to send a message by imposing a long sentence should be challenged on this. Deterrence is not a justification for a harsh sentence of youth, for the same reasons – kids don’t necessarily think about consequences when they act. The science on adolescent brain development clearly shows that other kids will not be dissuaded and that no one is listening to this message when a court imposes a clearly excessive sentence.

Make clear to courts that kids will respond to out of custody supervision. Intervention and prevention policies work equally well with youth who have committed serious crimes as it does with those youth who remain in the community. A reduced sentence that focuses on rehabilitation rather than retribution serves the community and makes it far more likely that the youth will successfully reintegrate back into society.

5.Talk About the Role of Age on All Younger Clients, Including Those Over 18

While Miller and all other recent Supreme Court cases address the way that juveniles are treated by our courts, there is no magic line at age 18. The brain does not fully develop until the late 20s and it is reasonable to argue that all of our young clients are still developing. An 18 year old who commits a serious crime is just as likely to continue to mature as is a 17 year old. For all of our young clients courts need to understand that the greater emphasis that is placed upon rehabilitation, the more likely it is that the will court will prevent future crime. Like all youthful clients, those who are over 18 should be given a meaningful opportunity for release and courts should build opportunities for rehabilitation into the sentencing practice.

6.Get Courts to Change Their Practice and Procedure

Despite the fact that the Supreme Court has used every opportunity it has been given to find that youth matters, some trial courts continue to move forward with their cases with a business as usual attitude. Like the judge in Seattle, many courts continue to see the impetuousness of youth as a permanent factor of that person’s personality rather than what it really is:  a transitory characteristic. It is our obligation as defenders to change this analysis. Regardless of the crime that they have committed, youth must be given the opportunity for rehabilitation and a meaningful opportunity for release. It is our job to ensure that courts have the tools to understand this and when a young person states that they are a “good dude” at a sentencing hearing, the court is able to see that this is true, take it into account, and hopefully, impose a fair sentence supported by the principles laid out by Miller.