Making the Sentencing Case: Psychological and Neuroscientific Evidence for Expanding the Age of Youthful Offenders

Youthful offenders convicted of serious crimes continue to be sentenced to death and life without parole in the United States based on legal arguments that cast them as incorrigible and permanent dangers to society. Yet psychological and neuroscientific evidence contradicts these arguments and unequivocally demonstrates significant changes in brain, behavior, and personality throughout the life course, especially during adolescence as it extends into the early twenties. This article ( a) clarifies the current state of the science on typical behavioral and brain development showing robust changes into the twenties; ( b) demonstrates that behavior, personality, and psychopathic traits are dynamic and change over time; and ( c) underscores that reliance on prior criminal behavior only to predict later recidivism is tenuous at best. Together, these scientific insights make a case for extending juvenile protections to youthful offenders sentenced for crimes committed in their teens and early twenties. Expected final online publication date for the Annual Review of Criminology, Volume 5 is January 2022. Please see http://www.annualreviews.org/page/journal/pubdates for revised estimates.

Throwing Away the Key: The Unintended Consequences of “Tough-on-Crime” Laws

During the 1980s and 1990s, U.S. policymakers adopted draconian criminal justice polices including widespread use of extremely long sentences, including life without parole. The country is now coming to face the consequences of these policies: a new class of geriatric prisoners posing little threat to public safety as they age into their seventies and beyond. Using a perspective drawn from bounded rationality, framing, and agenda-setting, we recount how policymakers adopted these policies, with key blind spots relating to obvious consequences of these harsh laws. We show how political leaders can over-respond to a perceived public policy crisis, particularly when powerful frames of race, fear, and dehumanization come to dominate the public discourse. We show how these trends are radically changing the demographics and needs of prison populations through a chronological review, mathematical simulation of the prison population, review of statistics about prison population, and personal stories illustrating these themes drawn from inside prison.

Normalizing Extreme Imprisonment

Normalizing Extreme Imprisonment offers a new explanation for how penal reforms and those driving them can end up normalizing, in the sense of making the public view as acceptable, incredibly severe punitive practices. Since its introduction in 1978 as an alternative to the death penalty, there has been a dramatic increase and expansion of life without parole (LWOP) in the United States, including beyond the scope of capital crimes for which it was originally conceived. Despite this growth, limited attention has been given to this punishment and very few attempts made to narrow its scope or curtail its proliferation. Emerging scholarship suggests the punishment has been ‘normalized’, in part because of how some death penalty abolitionists have framed and used LWOP. Drawing upon a range of evidence and using the development of LWOP in the Californian death penalty context over 40 years as an example, this book significantly deepens and extends this claim to offer a new explanation for how extreme forms of imprisonment become normalized. To discuss the extent to which some opponents to the death penalty may have facilitated, participated in, or perhaps even animated the three main normalizing mechanisms (visibility, denial, and routinization), this book focuses on three sites where death penalty abolitionists have lobbied, campaigned, pled and settled, for LWOP, namely Congress, the broader political sphere, and courtrooms. The book then contrasts these representations of LWOP’s severity with prisoners’ lived experiences detailed in an exceptional set of 299 letters.

Debevoise’s Holloway Project and “Second Looks”

The president’s power to grant clemency is but one feature of a sentence-correction ecosystem. But the abolition of federal parole in the 1980s left the clemency power as the only way to correct lawfully imposed sentences for the simple reason that they are too damn long. This article is about another way to correct sentences for that simple reason, one that has been right there all along but was moribund for decades, and about a 2018 statute and a Debevoise & Plimpton pro bono project that breathed life into it. And it is a critical Article III complement to the Article II clemency power. For the past five years, the Holloway Project at Debevoise has advocated for federal prisoners, overwhelmingly men of color, who were given bone-crushing sentences pursuant to the cruelest mandatory sentencing law the federal system had to offer. The typical Holloway Project client is a middle-aged man who was sentenced decades ago for robbery sprees in which a firearm was used but no one was hurt and little was stolen. In almost all of their cases, the indefensible sentences—often as not the equivalent of life without parole—had nothing to do with their culpability and everything to do with their refusals to cooperate and/or plead guilty. This article describes the Holloway Project and how it has used what has become known colloquially as the “compassionate release” statute, 18 U.S.C. § 3582(c)(1)(A), and 2018’s First Step Act to persuade federal judges to undertake holistic, compassionate reevaluations of the men these incarcerated individuals have become after all their years in prison, and inject some humanity and justice into a sentencing regime that is still in desperate need of both.

Juveniles Are Not So Different

The “juveniles are different” doctrine is gaining ground in the United States. It holds that children, unlike adults, should not receive merciless punishments like life without parole, given their immaturity, impulsivity, and limited brain development. The doctrine’s impact has been both significant and modest because it operates in an exceptionally repressive context considering the advent of mass incarceration. Unless construed more broadly, it may help rationalize draconian sentences for adults and cement the status quo. This Article offers a wider historical and comparative perspective. Over time, age has recurrently served to legitimize punitiveness toward children or adults. America has oscillated between deeming that juveniles deserve fewer rights than adults, that they deserve more rights, or that they should essentially be treated the same. After diverse paradigm shifts, mass incarceration led to a downward-leveling process whereby juveniles were punished just as ruthlessly as adults. “Juveniles are different” was a reaction to this trend, although punitive assumptions undergird its rigid age carve-outs. This Article calls for a new phase: an upward-leveling process under which juveniles’ emerging right to be free from merciless punishments would apply to everyone. This is the norm in other Western democracies, which have gravitated toward universal human rights and moderate punishment. A broader outlook may spell the difference between a conception of “juveniles are different” that casts adults as irredeemable and a stepping-stone toward meaningful systemic reform.

Life Sentences and Perpetual Confinement

The past 40 years have been a time of great change in life sentencing, during which the use of life sentences has dramatically grown and the quality of life sentences has markedly hardened. The rise of life without parole in the United States is a particularly recognizable development, but life sentencing has increased worldwide, and the use of other forms of punishment that hold people in prison until death has also intensified. This article focuses on these transformations by examining several important areas in which thinking and scholarship on life sentencing have been altered and spurred by recent developments. The review concludes by pointing to gaps in the field of research and highlighting issues on which social scientific research on life sentencing has more to contribute going forward.