The Massachusetts Supreme Judicial Court is considering whether to eliminate automatic life-without-parole prison sentences for juveniles convicted of murder.
Last year, the U.S. Supreme Court ruled that mandating such sentences for young people is unconstitutional (PDF). The high court said there should be individualized hearings so judges can consider the new science about adolescent development as well as any mitigating factors in a juvenile offender's background.
Supporters say Massachusetts now needs to clarify its law, which does mandate such sentences. They also want the state to decide what would happen to the estimated 62 people now serving life sentences after they were convicted as juveniles.
At an SJC hearing Wednesday, attorney John Zanini, representing the Suffolk County district attorney, argued that the state should not apply the U.S. Supreme Court ruling retroactively.
"To try to put the burden on the district attorney to conduct a sentencing hearing and bring in psychologists and friends and neighbors and family members and the victim's family, it's really an inappropriate burden on the judicial system," Zanini said.
Assistant Attorney General Amy Karangekis argued on behalf of the state Parole Board and the Department of Correction. She took issue with claims that the parole board is biased when reviewing cases involving juvenile offenders.
"It's not a hollow review. And it affords all offenders — including juveniles — a meaningful review, determination and opportunity to obtain release if parole-eligible," Karangekis said.
The SJC is considering two cases on this issue. One involves a man who has been in prison for 32 years after being sentenced as a juvenile; the other involves a man, Marquise Brown, who was a juvenile at the time of his crime and has not yet been sentenced.
Barbara Kaban, the appellate attorney representing Brown, joined WBUR's Morning Edition to discuss Wednesday's arguments.
Barbara Kaban: The issue is what is an appropriate remedy after the Supreme Court decision? What is an appropriate sentence under Massachusetts law?
Deborah Becker: What do you think is an appropriate sentence for Brown?
The reality is right now under our statutory scheme, we don't have a construct that can be implemented. And that leaves us with a void, and the Legislature has yet to act.
Historically, when the court is faced with an unconstitutional sentencing scheme, they look to the next most serious offense and the constitutional penalty available for that offense. Right now in Massachusetts, that would be the penalty for manslaughter, which is a maximum penalty of 20 years. And the judge has discretion to sentence the individual any time up to the 20 years.
There's a lot of concern that, is 20 years sufficient penalty when someone has been convicted of first degree murder? It's an interesting issue, but what the Supreme Court has said is that children are constitutionally different from adults for purposes of sentencing.
We had a period of time in Massachusetts from 1992 to 1996 that juveniles retained in the juvenile court also had a maximum penalty of 20 years. So it's not inconsistent with what international practice, our past history and in terms of developmentally appropriate sentencing scheme.
There was an argument from the other side that said there really isn't all that much different about what we know about children and how we treat children. We've always treated children differently is what they said. What would you say to that?
The science has shown us a great deal about adolescent development and how kids are different from adults. And the Supreme Court of the United States has unequivocally recognized that children are different from adults. They've actually established a foundational principle that says a state cannot impose its harshest punishments on children, disregarding the fact that they are children.
What about the argument that this places more of a burden on the judicial system to try to go over these cases again, resentence people? And hasn't a jury already possibly taken into account a lot of those potentially mitigating factors when the case was tried?
No, the jury never got a chance to take into account any of those mitigating factors because it was a mandatory sentence, and they didn't have to; they were looking at guilt or innocence. We're not going back at the guilt or innocence. We're talking about what is a constitutional sentence. I don't think revisiting 62 cases is an excessive burden on the commonwealth when we're talking about fundamental fairness in the interests of justice.
Should it just be a simple, "OK, you can't do mandatory life without parole, but it's still an option on the table"?
Under our state Constitution, I don't believe that life without parole should be allowed. I think it does in fact inflict cruel or unusual punishment on a juvenile because it's deciding at ages 14, 15, 16 or 17 that in fact that child will never grow and change and be fit to re-enter society.
Another interesting issue that came up was whether it's meaningful to even make someone eligible for parole. Statistics pointed out the number of those convicted of second degree murder who were parole-eligible and were released. Why is that an argument here?
Parole is uncertain; it's unpredictable. And the data shows that if you are a juvenile at the time of your crime, it's unlikely. We've reviewed the parole decisions going back to 2010, and any person who was sentenced as a juvenile for a second degree murder, making them eligible for parole, has not yet received parole regardless of how they've grown and changed because the fact is that [what] the parole board seems to look at and focus on are very different than the real-life factors.
One of the justices questioned whether that was something the high court can even take up because that's a separation of powers here, and it's a different branch of government. Why is that relevant to this argument do you think?
Well, it's relevant to this argument because if the commonwealth is relying on the parole board to do the sentencing or the resentencing, it raises separation of power issues because the parole board is part of the executive branch, and it's only the judiciary that does sentencing.
This program aired on September 5, 2013.