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Scott Harshbarger

Don’t throw away the key on all juvenile killers

By Scott Harshbarger
October 3, 2009

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IN MASSACHUSETTS, life without any possibility of parole is the mandatory sentence for a person convicted of murder. But no other state in the nation expressly sets the minimum age of this mandatory sentence as young as Massachusetts does at age 14. Indeed, no other country in the world is known to impose life without parole on children under age 18. Sometimes, being unique can be a point of pride; this is not one of those times.

Of course, the best and cheapest form of protection is prevention. Elsewhere on the continuum is accountability - people must be held accountable for their acts, especially one as egregious and tragic as murder, regardless of whether the murder is committed by a teenager or adult.

But sentencing children to life without parole ignores the realities of youth development: Kids change. Kids grow up. Brain development is responsible for fundamental differences between children and adults.

Does this mean all kids deserve parole? Absolutely not. It means they should have the right to have their case periodically reviewed by a parole board. Life without parole is reserved for the worst of the worst in Massachusetts. It is not appropriate for kids whose personalities are still developing.

When I was attorney general in the 1990s, the state faced a spate of murders committed by teenagers. Many predicted a coming storm of violent juvenile crime. Some warned that without drastic changes to the juvenile justice system, teenagers of the future would be the most violence-prone in history. As it turned out, thankfully, the predictions about teenage “super-predators’’ were wrong.

But the sentencing laws at that time were inadequate, causing understandable anger and fear. Until 1991, the maximum juvenile court sentence for murder was commitment to the Department of Youth Services until the age of 21. This was dangerous, misguided, and a failure to honor the victim’s loss of life.

In 1996, before we all could analyze the impact, Massachusetts lawmakers took the extreme step of removing all murder cases against those 14 and older from juvenile court. Since then, children convicted of first-degree murder have automatically received life without parole.

Nationally, teenage homicide rates peaked in 1994. By 2002, those rates were lower than they were in 1976. In Massachusetts, the peak came in 1992 and, since 1998, the Commonwealth’s teenage homicide rate has never exceeded what it was 30 years ago.

For some youths, serving a life term without parole is an unfortunate necessity. For others, they may become different people - they may grow into adults who have faced the horror of their actions, who search for ways to make positive contributions. Teenage children change. It’s in their nature.

That’s why the Legislature should replace the current law with one that allows for a review of juvenile life sentences. Under the reform recently proposed by juvenile justice advocates, the Parole Board would review juvenile life sentences after 15 years. As Lia Monahon points out in a report released this week by Children’s Law Center of Massachusetts, no one would be released automatically, just given an opportunity to prove their rehabilitation to the board - a tough audience that does not grant second chances lightly.

When a juvenile is sentenced to life without parole, the state spends $2.5 million to keep that person in prison until he dies. That’s too much taxpayer money to ignore the possibility that, over time, it would no longer be necessary. A second look at juvenile life sentences is smart, but also allows us to remain tough, case by case. This way, if we spend $2.5 million, we know why.

In the rest of the world, lawmakers have found ways to protect communities from dangerous youth without relying on life without parole sentences. Massachusetts should do the same.

Scott Harshbarger, a former attorney general of Massachusetts, is senior counsel at Proskauer Rose.

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