In the past couple of decades, there has been an increase in studies regarding the cognitive development of adolescents convicted of crimes.

The reason behind the idea that “children are different from adults,” and therefore need to be treated differently regarding sentencing, is because children and young adults are developmentally different – they are “less mature, more impulsive, more susceptible to various external pressures, and have reduced decision-making abilities.”1

Differences: Age 25 Is Important

Researchers argue that an adolescent’s brain is not fully developed until after the age of 18 – and perhaps even as late as age 25. In fact, the frontal lobe of the brain, which controls our emotions, is not fully developed until age 25. Therefore, young adults tend to be more impulsive and have difficulty controlling their emotions, creating “the perfect storm for a crime.”2

Consider this: car companies do not rent out cars to those under the age of 25. Why is this? To protect their investments. Elizabeth Cauffman, a professor at University of California-Irvine, and her team studied 1,300 serious offenders between the ages of 14 and 17, and found that 90 percent of these offenders stopped committing crimes by the age of 25.3

Crimes during adolescence create what is called an “age-crime curve” – a graph showing how crimes committed during adolescence start to rise, hit a peak when adolescents become late teens, and begins to decline as young adults move into their mid-20s. As people hit the age of 25, young adults are known to become less impulsive and more mature.4

Nicole Beitzinger Nicole Beitzinger, is a 3L at Marquette University Law School with an interest in estate planning and elder law.

Teens and Life Imprisonment: Unconstitutional?

While much of the research done regarding mass incarceration of juveniles has focused on nonviolent offenses, considering the number of people incarcerated for violent crimes alone increases the need for more of a focus on individuals who commit those violent offenses during adolescence.

For instance, in 1998, Omer Ninham was sentenced to life in prison with no possibility of parole for a murder he committed in Wisconsin at age 14. In 2007, a neuropsychologist determined that Ninham (now 23) could successfully re-enter the community, since he no longer had the same behavioral issues that he did when he was younger.5 As a result, Ninham and his attorney, Bryan Stevenson, filed a postconviction motion in 2011, arguing that sentencing a juvenile under the age of 18 to life in prison without the possibility of parole was unconstitutional and considered cruel and unusual punishment.

Nevertheless, despite there being talk of shifting the way juveniles are sentenced, the Wisconsin Supreme Court ruled that “sentencing a 14-year-old to life imprisonment without the possibility of parole for committing intentional homicide is not categorically unconstitutional.”6

Miller v. Alabama

The following year in Miller v. Alabama,7 the U.S. Supreme Court stated that “states cannot mandate life without parole sentences for juvenile offenders because such mandates don’t allow the court to assess mitigating factors unique to children, such as immaturity, family and home environment, and the possibility of rehabilitation.”8

However, this ruling did not affect crimes that reflect “irreparable corruption” – leaving state courts to make discretionary decisions regarding whether or not to impose a life sentence.9

After Miller, those following the Ninham case looked to Wisconsin to see if the decision would have any effect on Ninham’s life sentence. Since the U.S. Supreme Court “stopped short of saying that any sentence of life without parole for a juvenile is categorically unconstitutional,” courts still have the discretion to impose life without parole sentences for homicidal crimes.10

As a result, the ruling set forth in Ninham remains the current law in Wisconsin regarding life sentences for juvenile offenders: life sentencing is mandatory for a person convicted of a homicide and judges have the discretion to decide whether a person should have the possibility of parole or extended supervision.11

In Wisconsin

Currently in Wisconsin, 127 men are currently serving life sentences who were convicted of a homicide before the age of 18. Eight of them do not have the possibility of parole or extended supervision.

Interestingly, 33 of them suffered from significant trauma during their childhoods. Significant childhood trauma includes “physical and sexual abuse or neglect; witnessing domestic violence; having parents or older siblings who abuse substances, have mental illness, or are engaged in crime; or some combination.”12 Childhood trauma affects a child’s ability to operate at a standard level during adolescence, which is relevant to a juvenile’s culpability.

In 2016, the U.S. Supreme Court decided Montgomery v. Louisiana,13 holding that

even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects “unfortunate yet transient immaturity.”14

However, the Wisconsin Supreme Court has declined to take jurisdiction in a few cases regarding life sentences, while the Court of Appeals has held that it is still bound by the holding in Ninham, that life sentences without the possibility of parole for juveniles is constitutional.15

Alternatives Are Needed

The idea that children are different from adults must be reflected in our criminal justice system here in Wisconsin.

One way to tackle the issue of juvenile mass incarceration is to focus less on retributive punishments, but instead, focus more on rehabilitative treatments for troubled adolescents, especially for those who have a history of childhood trauma.

Wisconsin needs to create alternatives to incarceration, since deterrence has been less effective for young adults. Rehabilitative programs that help with desistance include finding stability in an offender’s life, such as through employment. As reflected by the age-crime curve, crimes decline as people reach their mid-20s, and only a fraction of offenders become repeat offenders.

Therefore, Wisconsin should attempt to avoid imposing long-term sentences on juvenile offenders, since “desistence shows that incapacitation concerns do not support long sentences for young offenders because most will simply age out of crime.”16 Accordingly, Wisconsin should follow in the footsteps of states like West Virginia and Nevada, by creating review hearings to allow for parole or release hearings after 15 years for crimes not involving homicide and 20 years for crimes involving homicide.

It is possible for children to change and it is important to remember that children are capable of change – even for those who have committed atrocious crimes during adolescence.17

Endnotes

1 Josh Gupta-Kagan, “The Intersection between Young Adult Sentencing and Mass Incarceration,” Wis. L. Rev. 669, 671 (2018).

2 Tim Requarth, “Neuroscience Is Changing the Debate Over What Role Age Should Play in the Courts,” Newsweek, April 18, 2016; see alsoAdjusting Juvenile Justice,” UCnet (May 28, 2014).

3 Adjusting Juvenile Justice, supra note 2.

4 Gupta-Kagan, supra note 1 at 672-73.

5 Joe Forward, “Supreme Court May Revisit Life Sentences Without Parole for Juveniles,” WisBar News, State Bar of Wisconsin, March 16, 2018.

6 Id.

7 567 U.S. 460 (2012)

8 Joe Forward, “Juvenile Law: Ban on Mandatory Juvenile Life Sentences Does Not Impact Wisconsin Law,” Rotunda Report, State Bar of Wisconsin, August 1, 2012.

9 Supreme Court May Revisit Life Sentences Without Parole for Juveniles, supra note 5.

10 Juvenile Law, supra note 7.

11 Id.; see also Eileen A. Hirsch & Martha K. Askins, “Juvenile Lifers: Reforming Extreme Sentences,” 92 Wis. Law, Jan. 9, 2019.

12 Id.

13 136 S. Ct. 718 (2016)

14 Hirsch & Askins, quoting Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016).

15 Id.

16 Gupta-Kagan, supra note 1 at 716-18, 721.

17 Hirsch and Askins, supra note 10, citing Montgomery, 136 S. Ct. 718 at 736.

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