THE BLOG

Time to Put Truth and Common Sense Back Into Sentencing of Youthful Offenders

05/01/2015 02:46 pm ET | Updated May 01, 2016

A few weeks ago, I sat in a courtroom at the Cook County Criminal Court building at 26th and California in Chicago, watching the first of what will be eighty or so re-sentencing hearings of former youthful offenders in Illinois who are currently serving mandatory life without parole sentences. Adolfo Davis, now 38-years old, was being re-sentenced for a double-murder he participated in when he was just 14 -years old. Adolfo and the other former offenders are getting a second chance as a result of Miller v. Alabama, a 2012 United States Supreme Court decision that struck down mandatory life without parole sentences for juveniles as "cruel and unusual punishment" because such sentences prevented judges from considering the unique attributes of youth that make them less culpable for their crimes than adults.

Youthful offenders, according to the Supreme Court, should be punished less severely than adults because they are more impulsive decision makers, frequently tempted by the promise of short-term rewards and often ignoring the long-term consequences of their actions. They also fall under the sway of older peers and adults who often pressure them to participate in criminal activity. And while it is true that no criminal -- adult or juvenile -- should be defined by the "worst thing they have ever done," this is especially true for younger offender. Because their brains are still developing and their personalities are not yet fixed, locking them up and throwing away the key means giving up on countless teenage boys and girls who will eventually grow out of their criminal behavior.

Twenty years ago, however, there was a different "truth" about youthful offenders. That "truth" was that the United States was on the brink of a crime wave committed by juvenile "superpredators." To nip this "coming Armageddon" in the bud, prosecutors around the country persuaded legislators to "automatically transfer" juveniles to criminal court and require that judges impose "mandatory minimum" sentences and mandatory "enhancements" if their crimes were "gang" or "gun" related. According to prosecutors, such mandatory sentences were necessary to prevent judges from "coddling" this "new breed" of juvenile criminals.

In the aftermath of these laws, the mandatory minimum sentence in Illinois for a gun-related killing more than quadrupled. Instead of a 20-year minimum sentence (which required that the defendant serve 10 years), a 15-year-old charged with a gun-related murder faced a 45 year minimum sentence if convicted (20 years for the murder, 25 years for the gun) and would have to serve 100 percent of that sentence before being released. Because 20-year sentences for murders are rare, this ensured that offenders who were not old enough to get their driver's licenses at the time of their crimes would be senior citizens when it came time for them to be released.

We now know that these harsh and unforgiving sentencing policies for youthful offenders were built on a lie. The Armaggedon never came. The so-called "superpredators" never arrived. Juvenile violent crime dropped to record lows and has remained steady at these levels ever since. But this lie cost tens of thousands of mostly black and brown teenagers their futures.

It's time to put the "truth" back into sentencing for youthful offenders. We can do this by reducing the numbers of juveniles who are "automatically transferred" and letting judges again decide which juveniles should stay in juvenile court or be tried in criminal court. We can do this by eliminating mandatory sentencing enhancements for gun and gang-related crimes.

And we can do this by restoring to judges the ability to allow juvenile offenders to earn their way out of lengthy sentences by giving them credit for good behavior, completing their education, and attaining certificates in various trades. Such flexible sentences will force juvenile offenders to think about the long-term consequences of misbehaving in prison, incentivize their good behavior and self-improvement, and will give them some hope of a life outside of prison before they have one foot in the grave.

The good news is that Miller has jumpstarted a discussion among legislators about the costs -- both human and financial -- of "mandatory" sentences for youthful offenders. Here in Illinois, legislators are debating whether to roll back "automatic" transfers and gun enhancements and to replace mandatory sentences with options that allow individuals to periodically prove to judges that they are ready for early release.

Miller has even caused some prosecutors to rethink the wisdom of "one-size fits all" sentencing schemes for young offenders. While watching Adolfo Davis's hearing, I nearly fell out of my seat when a veteran Cook County prosecutor, in his opening statement, announced, "we believe that Miller is excellent" and said that judges should have more discretion with regard to sentencing juvenile offenders.

Such an admission would have been considered "heresy" two decades ago. Today, it's just plain common sense.