Brought back to life: Massachusetts Supreme Judicial Court resuscitates parole eligibility for juveniles convicted of first degree murder.

• Author: Knight, Erin D.

"We have never decided whether the phrase 'inflict cruel or unusual punishments' in art. 26 has the same prohibitive sweep as the phrase 'nor cruel and unusual punishments inflicted' in the Eighth Amendment." (1)

1. INTRODUCTION

   The cornerstones of the American juvenile justice system are rehabilitation and guidance. (2) From the very beginning a paternalistic approach, instead of stern discipline, has governed the correction of delinquent behavior. (3) Our society does not consider juveniles to be fully developed adults, and instead believes that juveniles have the time and opportunity to adjust their behavior to meet societal standards. (4) As a result, Congress implemented the juvenile court system to help delinquent minors become the adults our nation expects them to be. (5)

   The justice system is no stranger to the axiom that legislators both make the law and set the statutory guidelines for sentencing criminal perpetrators. (6) In sentencing offenders after a criminal trial, judges look to these statutes and regulations, as well as to relevant common law, to determine the appropriate punishment or rehabilitative programs for each offender convicted. (7) To some, it may not always be clear why judges choose a given sentence; there may be many considerations involving more than just the offense charged, especially in the juvenile system. (8)

   In abiding by legislated law, judges must often implement mandatory sentences for some crimes, negating the ability of that judge to consider the inherently distinct characteristics of a minor offender. (9) The United States Supreme Court in Miller v. Alabama (10) held the sentencing term of mandatory life without the possibility of parole (LWOP) unconstitutional for juvenile homicide offenders, classifying LWOP as "cruel and unusual punishment" when applied to juveniles under the Eighth Amendment. (11) In turn, the Supreme Judicial Court of Massachusetts (SJC) took the position that mandatory and discretionary sentences of LWOP under Massachusetts General Laws chapter 265, Section 2 shall no longer apply to juveniles and violate Article 26 of the Massachusetts Declaration of Rights. (12) As a result, individuals currently serving LWOP sentences following a homicide conviction as a juvenile are now eligible for parole if they have served a term of at least fifteen years. (13) In issuing this historic relief, the SJC noted the broader protections afforded to citizens under Article 26, yet discussing its similarity to the Cruel and Unusual Punishment clause of the Eighth Amendment. (14) The SJC, however, failed to parse why Article 26 offers these heightened protections, and in failing to do so the court erred in proscription of discretionary LWOP sentences for the most heinous of juvenile offenses. (15)

   This Note will examine the relationship between the Legislature and state courts in sentencing criminally convicted juveniles. (16) This Note will also seek to clarify perceptions as to the current state of the law behind the mandatory sentencing of minors; the concept of individualized assessment; and the disparities between trying an adult and, alternatively, a child under the age of eighteen. (17) Finally, this Note will analyze the extended protections created under Article 26 and the SJC's scrutiny of the Massachusetts General Court's (MGC) sentencing schemes. (18)

2. HISTORY

   1. A Brief History of the Juvenile Justice System

      In the United States, Illinois first introduced the concept of the juvenile court in 1899. (19) Since then, the implementation of a juvenile court system has spread across the country. (20) Legislatures based the inception of juvenile courts on the premise that society owed a child offender more than just a verdict; society owed the child offender guidance toward a better life outcome through rehabilitation and clinical perspective. (21) In recent years, these original motives have blurred due to media hype and political crackdowns, often resulting in sentences for juveniles that are not unlike those imposed on adults. (22)

      1. Juvenile Courts and Sentencing

      1. Standards for Separation of Juvenile and Adult Courts

         Before the creation of juvenile courts in 1899, children were often severely punished for crimes commonly considered inconsequential. (23) By progressively recognizing the developing maturity of juveniles, courts began to appreciate that a juvenile's decreased culpability, coupled with their greater ability to change, required an analysis of the inherent differences between juvenile and adult offenders. (24) From this analysis, courts concluded that they should withhold from juveniles many procedural rights commonly afforded to adults, such as bail, indictment by grand jury, public trial, and trial by jury; instead the court was to act in the best interests of the child, determining procedural outcomes on his behalf. (25) Courts contended that their duty was to govern the child and not overlook his indiscretion, to guide him back onto the path of appropriate behavior by acting in the interest of a parent and yet not violating the child's rights, for a child does not have a true right to liberty, but does have one to custody. (26) Such an approach was not without criticism, however, as Justice Fortas announced in Kent v. United States (27) his concern that removing a child's procedural rights veritably affords the child offender fewer protections than an adult offender, and strips the child of essential attention and rehabilitative care. (28)

         The Supreme Court's decision in In re Gault (29) now guides the modern juvenile justice system. (30) This landmark decision, along with precedent guidance from Kent, gave new light to a more formal criminal procedure for juveniles, but still allowed for a waiver to the adult system. (31) The Court in Gault held that the "reasonable doubt" standard afforded to adults must also be applied to juveniles because delinquency adjudication is a true criminal proceeding and loss of liberty is still at stake. (32)

         There are three types of dispositions available to the judge in a juvenile proceeding. (33) The first, nominal dispositions, are verbal warnings or reprimands, and are the least punitive of the three dispositions. (34) The next category, conditional dispositions, include probationary plans in which the youth is directed to complete specified conditions during an allotted time period, ranging from months to several years. (35) Finally, judges may also impose custodial dispositions. (36) There are two types of custodial dispositions: nonsecure custody or secure custody. (37) Nonsecure custody dispositions place juveniles in group homes, foster care, or other rehabilitation settings until the court can make more permanent, superior arrangements for the child. (38) Secure custody is considered a last resort for sentencing, as it results in youth offenders living in secure facilities, which correlates closely with incarceration. (39)

      2. Sentencing of Juvenile Offenders

         The sentencing of a juvenile offender focuses on rehabilitation and individualized determinations relating to the specific characteristics of the minor delinquent. (40) As the Supreme Court has noted, "[j]ust as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered" in analyzing culpability. (41) The purpose of an individualized determination turns on the notion that a juvenile's character has yet to fully develop. (42) A court, therefore, must weigh individual factors of character to determine if the juvenile's lack of maturity contributed to the offense or if he or she suffers from "irreparable corruption." (43) Juveniles are deemed to possess a greater propensity for change than adults, and thus rehabilitation is often a more appropriate solution. (44)

         Due to high violent-crime rates in the early 1990s, legislatures enacted "tough-on-crime" measures throughout the country. (45) These initiatives prompted courts to employ a more punitive approach to juvenile sentencing, resulting in the concept of "'adultified' juvenile offenders." (46) In the wake of the "tough-on-crime" approach, mandatory minimum sentences, including LWOP punishments, started to appear in courtrooms across the United States; there was also an increase in waivers to adult court, which sent juveniles into the realm of the adult system of punishment. (47) The recent trend in fewer harsh LWOP sentences is reflective of decisions to relax the previously tough sentencing schemes. (48) In leaning toward accountability, instead of strict punishment, courts are returning to schemes centered on rehabilitation, and alternatives to punitive incarceration. (49)

   2. State Powers for Sentencing

      1. The Legislature

         Around the late nineteenth century, state legislatures utilized their power to enact criminal laws. (50) Subsequently, courts commonly recognized that it was the Legislature's prerogative to define crimes and set penalties. (51) The Legislature is afforded primacy in creating and enacting criminal laws--a responsibility that is not to be impeded unless extenuating circumstances demand otherwise. (52) The legislative lawmaking power, however, must yield to federal and state constitutional law, despite the fact that federalism provides for state's individual authority to create and regulate its criminal laws. (53)

      2. The Courts

         While the Legislature creates and enacts laws, it is ultimately the role of the Judiciary to enforce those laws during the adjudication process and, in turn, decide upon appropriate punishment. (54) During the adjudication process, courts interpret criminal statutes passed by the Legislature and create "presumptions" when resolving crucial statutory ambiguities during trial. (55) State courts have the freedom, and are often encouraged, to expand the scope of rights given to their citizens through state...