As Mass Reconsiders Life Without Parole For 18 To 20-Year-Olds?
“Late adolescents are particularly likely to be sentenced based on systemic racism and implicit biases in policing, prosecution, and sentencing.”
A potential history-making hearing was held before the seven justices at the Supreme Judicial Court (SJC) on Feb. 6, as two linked cases called for an end to mandatory life without parole sentences (LWOP) for “emerging adults,” those who were 18 to 20-years-old at the time of their crime.
These cases spring from Diatchenko v. District Attorney, the historic 2013 Massachusetts ruling in which the SJC ordered that any life-in-prison sentences for juveniles (those under 18 at the time of their crime) without parole possibility were unconstitutional, i.e. constituting cruel or unusual punishment. Following that decision, 66 juveniles became eligible to see the Parole Board.
Ending the sentence of LWOP for emerging adults would impact approximately 200 people currently in the Mass prison system, nearly half of whom have served at least 25 years behind bars. They would be able to petition the Parole Board to serve the remainder of their sentences in the community with supervision.
Attorneys in support of ending LWOP argued before the SJC that recent developments in brain science and new understandings of behavior in young adults should allow those 200, and specifically their two clients in particular—Sheldon Mattis and Jason Robinson—to have the opportunity for parole. Prosecutors said Mattis, then 18, handed a gun to his co-defendant who killed Jaivon Blake, i.e. a case of felony-murder. Nineteen-year-old Robinson was convicted of the first-degree murder of Iman Yazbek, armed robbery, and carrying a dangerous weapon.
“Science ha[s] established that late adolescents [are] more prone to sensation seeking than both individuals under eighteen and individuals over twenty-one, and [are] more susceptible to peer influence than older individuals,” the Massachusetts Committee for Public Council (CPCS) wrote in a brief supporting the cases. CPCS provides services for many juveniles and indigent people charged with first-degree murder.
A group of national neurologists and psychologists pointed out in their written statement that both Washington and Michigan Supreme Courts “have interpreted their respective state constitutions to protect late adolescents from mandatory LWOP.”
However, those arguing against changing the law insisted that mandatory LWOP for that cohort is not unconstitutional. The Suffolk County District Attorney’s office advocated in an opposition brief for individualized resentencing hearings before a judge for those 200 emerging adults instead of a categorical ban on LWOP. For anyone newly sentenced to life without parole, the opposition wants judges to determine, after a sentencing hearing, if petitioners deserve LWOP because they are “irretrievably depraved.”
“That question [of depravity], which asks judges to forecast into the future without any architecture to do that, also implicates the role of implicit bias and systemic racism in sentencing decisions,” said Katy Naples-Mitchell, special litigation advisor for the Criminal Justice institute at Harvard Law (CJI), in a phone interview.
What’s race got to do with it?
While the evolving science around LWOP was questioned, disputed, or verified at the Feb. 6 hearing, what got less attention were the race implications of life sentences where there is no opportunity for release.
According to a report by the nonprofit DC research group the Sentencing Project (TSP), Massachusetts is tied with Louisiana for housing the highest percentage of prisoners serving LWOP sentences—14% of the prison population. Nationally, TSP cited that one in five Black men in prison is serving a life sentence. But in Mass, Black people aged 18 to 20 are “sixteen times more likely than their White peers’ ‘ to be sentenced to prison for life, stated a brief supporting the Mattis and Robinson cases, authored by the Boston University Center for Antiracist Research and others, including CJI.
“While Black and Latinos represent only 25 percent of Mass residents, they comprise 70 percent of incarcerated late adolescents,” noted a group of 23 retired judges, the Boston Bar Association, and the Mass Bar Association in their brief. This is in part, they wrote, because “Research has shown that young Black men are often perceived to be older than they are,” which can wrongfully lead judges to believe they are more culpable than their same-age white counterparts.
The BU brief argued that such “extreme race disproportionality … underscores the arbitrariness, punitiveness, and cruelty” of LWOP sentences for emerging adults. It added, “Late adolescents are particularly likely to be sentenced based on systemic racism and implicit biases in policing, prosecution, and sentencing, rather than on their unique characteristics or the facts of their crimes.”
Yet, the Feb. 6 hearing did not highlight race. I asked attorney Ruth Greenberg, one of the lawyers representing Sheldon Mattis, about this, and she said in a phone interview that “there is no need for the court to decide the implicit bias question in order to reach the constitutionally-correct decision.” In other words, the court can make a decision without considering the implications of racism on the sentence of LWOP. Greenberg also mentioned that attorney Rose Scapiccio, who represents Jason Robinson, argued that putting “a categorical ban on LWOP” for emerging adults will have a “racial impact.”
Sentencing hearings and racial bias
When the SJC renders its decision, it will be deciding if a ruling should ban mandatory LWOP for emerging adults or if they should allow resentencing hearings, permitting those 200 to go back before judges—and only then, to possibly receive a new sentence.
If they determine LWOP should be off the table for emerging adults, similar to Diatchenko, the Parole Board would be the decider. After at least 20 years in prison, a late adolescent could be considered rehabilitated, no longer a safety risk, and released to serve the remainder of their sentence in the community.
The judges argued in their brief that “judges cannot ascertain, with any reasonable degree of certainty, whether imposition of this most severe punishment is warranted.” In other words, science has reliably taught us that judges cannot readily predict the future of an 18 to 20-year-old who has committed a life-sentence crime.
Courts have diverged significantly in the ways they apply reasoning when rendering a LWOP sentence, the BU brief stated, and judges, arguably due to implicit bias, have used the same information to reach opposite conclusions. In addition, the attorneys in the BU brief wrote, “Studies have shown that judges are more likely to view children and late adolescents of color as inherently violent and more likely to reoffend.”
The Parole Board’s record
If unconscious bias can introduce “racial distortions in sentencing,” as the judges’ brief maintained, we wanted to know how the Parole Board has stacked up in terms of racial bias in their decisions.
According to the Committee for Public Counsel Services, since Diatchenko in 2013, the board has held approximately 70 hearings to consider whether a juvenile who committed homicide, originally sentenced to LWOP, deserved to be granted a parole permit.
I analyzed 50 of those decisions* that were all publicly available in order to see the Parole Board’s record with juveniles. I spoke with those who had served time behind bars to find out the race of each of the 50 lifers since the Parole Board does not include the race of petitioners in their decisions.
- Of the 50: 18 were white (36%); 23 were Black (46%); 5 were Latino (10%); and 4 were Asian (8%).
- For their initial hearing before the Parole Board, there were 17 yes votes (34%) and 33 no votes (66%).
- Fourteen Blacks (43%) and 14 whites (43%) got an equal number of no votes in those initial hearings. Blacks (9, or 53%) got more than twice the number of positive parole votes as whites (4 or 23%).
- Ultimately 41 out of 50 juvenile lifers have been paroled so far (some took multiple hearings).
- The Black/white racial breakdown of those ultimately paroled among the 50: 21 Blacks out of the 50 (42%); 13 whites out of the 50 (26%).
- Blacks ultimately paroled compared to Blacks not paroled: 21 out of 23 (91%); whites ultimately paroled compared to whites not paroled 13 out of 18 (72%).
- The average setback (time between hearings) of those who did not get parole the first time was 3.45 years. (Note: the Board allows one to five years between hearings).
- The average setback for Blacks was 3.36 years and for whites, 3.5 years.
The data indicates that in terms of paroling rates, the Parole Board did not treat the cohort of Black juveniles differently than the cohort of whites.
If the SJC determines mandatory LWOP is unconstitutional for 18 to 20-year-olds, the incremental approach of the Parole Board—as they decide who is rehabilitated, no longer a safety risk, and can be safely released to serve the remainder of their sentence in the community—might be the best way of keeping racial bias out of the equation.
*Of the 70 decisions, I used the first 50 I found who could be identified by race. The decisions are either on the Parole Board’s website or available through searching online. A complete analysis of the 70 would be useful.