Until They Die A Natural Death: - the Youth Advocacy Division

Until They Die A Natural Death:
Youth Sentenced to Life Without Parole in Massachusetts
CHILDREN’S LAW CENTER
OF MASSACHUSETTS

The photographs that appear in this report of youth sentenced
to life without parole in Massachusetts are used with their permission.
The remaining photographs—of juveniles in detention—are
by Steve Liss, a photojournalist and Co-Founder of In Our Own
Backyard, a non-profit organization of photographers dedicated
to achieving social justice in the United States through their work.
Donations may be made at www.inourownbackyard.us.
The original paintings and drawings that appear in this report
are used with the permission of young artists from RAW Art
Works in Lynn, Massachussets. Since 1988, RAW has passionately
pursued its mission to ignite the desire to create and the
confidence to succeed in underserved youth, using the power of
the arts to transform young lives, one artist at a time. RAW’s free
art therapy-based programs are designed to create a continuum
of service to kids age 6 to 19.
RAW launched its programming when it won a contract with
the Massachusetts Department of Youth Services to develop the
first statewide art program for incarcerated youth. In 1994, RAW
established RAW Space, in downtown Lynn, to serve at-risk youth
and prevent them from entering lock up in the first place.
The artists whose work is shown in this publication have never been
involved with the juvenile justice system. While many have been
pressured to join gangs or become involved in illegal activities,
they found a sense of belonging and identity at RAW instead.

Until They Die A Natural Death:
Youth Sentenced to Life Without Parole in Massachusetts
September 2009
CHILDREN’S LAW CENTER
OF MASSACHUSETTS
Children’s Law Center of Massachusetts, Inc.
298 Union Street
Lynn, MA 01901
(781) 581-1977
www.clcm.org
Founded in 1977, the Children’s Law Center is a private, not-for-profit legal advocacy
and resource center for indigent children of the Commonwealth. Its mission is to promote
and secure equal justice and to maximize opportunity for low-income children and youth
by providing quality advocacy and legal services. The Law Center provides individual
legal representation in the areas of child welfare, education, and juvenile justice; offers
trainings and technical assistance to parents, attorneys and helping professionals; and,
engages in a myriad of systems reform efforts including research, appellate and legislative
advocacy, impact litigation, and committee and task force work.
Copyright © 2009 Children’s Law Center of Massachusetts, Inc.

AcknowledgmentS
This report was written by Lia Monahon, Equal Justice Works
Fellow of the Children’s Law Center of Massachusetts, based
on research by Lia Monahon and Barbara Kaban, Deputy
Director of the Children’s Law Center.
The Law Center’s project focusing on the state’s practice of
sentencing youth to life terms without parole would not have
been possible without the generous support of McDermott
Will & Emery LLP, through the Equal Justice Works Fellowship
program. The ready assistance of lawyers, paralegals and
librarians at McDermott greatly enlarged our capacity to identify
and learn about the individuals serving the sentence here. With
the guidance of Melissa Nott Davis, the law firm played a role
in almost every aspect of this report, providing legal research,
conducting prison interviews, gathering and reviewing case files,
compiling and analyzing data, and designing the report. Special
thanks are owed to Mark Thorogood, who managed the data and
created the charts and tables that appear in the report, and to
Christine Kim, for her report design and lay out.
We are grateful for the support of the Shaw Foundation towards
the production and distribution of the report.
The Law Center would also like to thank the many individuals
serving life without parole sentences for youth crimes, and their
family members, for their openness and patience in responding
to our many questions and requests for files.
Coordinator of the Campaign for the Fair Sentencing of Youth,
provided invaluable advice in the final stages of the project.
Many thanks are owed to the Committee for Public Counsel
Services—especially Wendy Wolf of the agency’s Youth Advocacy
Project, for her help with development of the project and Anthony
Benedetti, General Counsel, for his input as the work progressed.
We are also tremendously grateful for our collaboration with
Leslie Walker, Executive Director of Massachusetts Correctional
Legal Services. Thanks also to Paul Heroux and the staff of the
Research and Planning Division at the Massachusetts Department
of Correction, who provided important numerical and other
aggregate data concerning prisoners serving long sentences for
youth crimes.
At every stage of this project, we were fortunate to have the
steadfast support and encouragement of the Law Center’s staff
and its Executive Director, Jay McManus.
Finally, we extend our thanks to Alex Rogers Pittman and the
young artists from RAW Art Works in Lynn, Massachusetts
who allowed us to use photographs of their original artwork
in this report. And to Steve Liss, who donated his stunning
photographs of youth in detention.
Volunteers—attorneys and summer associates from Ropes &
Gray LLP and WilmerHale, and law students from the Juvenile
Justice Center of Suffolk University Law School—spent hours
coordinating, conducting and reporting on many of the interviews
with individuals serving life without parole in five different prisons
around the state. Special thanks to Heather Goldsmith for her
research assistance and to Mary Jo Johnson from WilmerHale
and Matthew Elliott from Ropes & Gray for overseeing these
collaborations.
We are also grateful to the human rights and juvenile justice
advocates around the country who shared valuable expertise
with us from the outset. In particular, Alison Parker, Deputy
Director of the U.S. Division of Human Rights Watch; Bernardine
Dohrn, Director of the Children and Family Justice Center at
Northwestern University School of Law; Anne Geraghty,
Pro Bono Counsel at DLA Piper; Deborah LaBelle from the
American Civil Liberties Union of Michigan; and Elizabeth
Calvin, Children’s Rights Advocate from the Children’s Rights
Division of Human Rights Watch. Jody Kent, the National
2

Table of Contents
2
Acknowledgments
3
Table of Contents
4
Executive Summary
7
12
14
22
26
28
29
Section I:
The Massachusetts Law That Sentences Youth to Life Without Parole
Section II:
Why Adolescents Are Different from Adults
Section III:
The Youth Sentenced to Serve Life Without Parole in Massachusetts
Section IV:
Growing Up in Prison
Section V:
Sentencing Practices Around the Country and Around the Globe
Section VI:
The Cost of Locking Up Massachusetts Youth for Life
Conclusion and Recommendations
3

EXECUTIVE SUMMARY
Youth sentenced to serve life without the possibility of parole in Massachusetts will grow
up, become adults, and remain in prison until they die a natural death. It is the harshest
punishment available for a person of any age in Massachusetts, imposed on youth
in an exceptionally severe manner: children ages 14, 15 and 16 charged with first
degree murder are automatically tried as adults and, if convicted, receive a mandatory
life without parole sentence—no exceptions. The juvenile court has no jurisdiction
over the case, so the effect is more absolute than in other states where “reverse transfer”
to juvenile court is often available or a prosecutor can choose where to file a
case. In Massachusetts, the adult court has exclusive jurisdiction and can give no
consideration to the youth’s age or life circumstances. For offenders this young, very few
states go this far in ignoring the fundamental differences between children and adults
before imposing a life without parole sentence. Although many states expose young
children to life without parole sentences, only two states—Massachusetts and Connecticut—
allow children as young as 14 to receive life without parole in this absolute manner.
Youth in Massachusetts who are too young to vote, be drafted, serve
on juries, or even drive have been sentenced to life without parole.
The Children’s Law Center identified and reviewed 46 of 57 such
cases reported by the Massachusetts Department of Correction.
These cases are an anomaly in the Northeast—neither New York
nor New Jersey have any youth serving life without parole. The
cases in Massachusetts and around the country (almost 2,500 total)
also depart starkly from the global consensus against the sentence,
which international law prohibits. Outside the United States, there
are no youth incarcerated with no hope of release anywhere in the
rest of the world.
Enactment of the current law in Massachusetts was a sweeping
reaction to a national and local spate of juvenile homicides and
faulty predictions about a coming wave of violence driven by
juvenile “super-predators.” The widespread predictions turned out
to be false and alarmist, and the underlying research discredited,
but not before they propelled passage of the current law in 1996.
The law was also a response to the insufficient juvenile court
sentences of the 1980s, when the harshest punishment for a
juvenile who was not transferred to adult court—even for murder—
was incarceration to the age of 21. The juvenile court could not
impose a lengthier sentence. And if the juvenile was transferred,
the adult court—then as now—could impose no shorter sentence
than incarceration for the rest of the child’s life. The old law failed
to hold juveniles accountable and the new law abandoned all hope
for the redemption of young lives.
After the spike in crime rates in the early 1990s, the state’s homicide
rates—particularly among youth under age 18—followed the
national trend back downward. Violent crime among Massachusetts
youth has declined markedly since the 1990s. Homicide rates
for Massachusetts youth under age 18 peaked in 1992 and have
not exceeded half the peak numbers since 1997. Since 1998, the
homicide rate in this age group has been lower than it was 30 years
ago. But the decisions made under the rushed and misinformed
conditions of the 1990s remain.
Life without parole sentences may be an appropriate response
to some adult crimes, especially in a state like Massachusetts that
does not impose the death penalty. But the current law treats youth
as young as 14 exactly like adults, regardless of their age, past
conduct, level of participation in the crime, personal background
and potential for rehabilitation.
This practice must be re-examined, especially in light of the recent
advances in brain research that reveal dramatic anatomical differences
between adolescent and adult brains—differences that are
particularly relevant to the rehabilitation of youth. Juveniles are
still developing cognitively, socially and neurologically. Teenagers
4

EXECUTIVE SUMMARY
do not yet have adult decision-making capabilities, they are more
vulnerable to outside pressures than adults, and their characters
still are not fully formed. For these reasons, the United States
Supreme Court, in striking down the juvenile death penalty,
explained that juvenile offenders, no matter what the crime, are
“categorically less culpable” than adult offenders. Most importantly,
because adolescents still have relatively unformed characters, they
have a substantially greater potential for change and rehabilitation
than adults who commit a comparable offense. As a result of this
inherent capacity to change, most juvenile offenders—even those
who commit serious offenses—desist from crime as they grow into
late adolescence and early adulthood. Youth who are sentenced
to life without parole in Massachusetts are not the adults they will
become, and change is inherent to their development.
Yet, in Massachusetts, there are people who have served 25 years
or more for childhood crimes. The fiscal costs of their lifetime
incarceration are significant—Massachusetts taxpayers pay roughly
$2.5 million dollars to incarcerate a youth for the rest of his or her
life in state prison.
The Law Center identified and reviewed the cases of 46 people
serving such sentences in Massachusetts. We were able to interview
42 of this group. In 41 percent of the cases we reviewed, the youth
sentenced to life without parole were first-time offenders, meaning
they had no prior record. Because the sentence is mandatory
in every case, however, the sentencing judge was not allowed to
consider the youth’s prior conduct or any other factor usually
important when determining punishment. In a substantial proportion
of the crimes—40 percent—juveniles acted alongside at least
one adult co-defendant. Juvenile criminal conduct typically occurs
with others and the cases we reviewed revealed that when juveniles
acted with co-defendants, they were almost always with adults.
The adult co-defendants, however, are frequently serving less severe
sentences or have already been released.
Across the cases, youth were sentenced to life without parole for
varying levels of participation in the crime and even if they were not
the principal actor. Twenty percent of the people we spoke with are
serving juvenile life without parole for felony murder. This means
that the juvenile participated in a felony, but the prosecutor did
not need to prove that the juvenile actually committed the murder.
In one such case, an unarmed youth participated in a robbery and
is now serving life without parole because of a murder committed
by one of his co-defendants.
Recurring throughout the records and personal accounts of the
children sentenced to life without parole were endemic experiences
of violence that sometimes originated in a child’s home, sometimes
in the community. As young children and in their early teenage years,
before their arrests, many of the youth were themselves victims of
serious physical abuse or lost close family members to homicide.
The records also reveal that life without parole sentences are disproportionately
imposed on African American youth in Massachusetts.
Black youth make up only 6.5 percent of the state population of all
children under age 18, but are 47 percent of those sentenced to serve
life terms without the possibility of parole for a childhood offense.
There is no question that young people can commit horrible crimes.
Murder is a brutal and devastating act that causes permanent pain
and anguish for survivors of the victim. The devastation is the same
regardless of the age of the offender. That is why youth who commit
such crimes must be held accountable and receive a substantial
punishment. The question we must consider—whether such youth
are completely unredeemable—cannot be answered when someone
is 14, 15 or 16 years old.
We know that some youth are capable of changing and benefiting
from second chances. This report shares two such examples of youth
who were sentenced before Massachusetts enacted the mandatory
juvenile life without parole sentence. One example is David D. After
David served 15 years, the Parole Board concluded unanimously that
he had rehabilitated himself. Today, he returns to lock-up only as
a guest, invited by the Massachusetts Department of Youth Services
to talk with young people about how to make better decisions, how
to think before they act violently and do harm to others. Not every
case is like David’s. But his case shows the importance of establishing
a meaningful opportunity for review of juvenile life sentences.
Periodic review after a lengthy sentence restores to youth in Massachusetts
a fair opportunity to prove rehabilitation. It also brings the
state in line with international practice and human rights standards.
Fair sentencing for youth does not mean that we return to the plainly
inadequate juvenile court sentences for homicides in the 1980s.
But it does mean that we stop imposing the state’s harshest adult
punishment on children. If, as we recommend here, life sentences
for juveniles mirrored the life sentences imposed on adults for second
degree murder, the sentence would be reviewed by the Massachusetts
Parole Board after a minimum of 15 years, but could continue
for a maximum of lifetime incarceration. The Parole Board would
conduct a careful review to determine whether, years later, youth
offenders continue to pose a threat to the community. There would
be no right to parole or release. Each individual would simply be
given a chance to prove that they have earned the right to release
through rehabilitation, that growing up has changed them.
5

SECTION I
6
Painting by Brandon Gorski

SECTION I
The Massachusetts Law That Sentences
Youth to Life Without Parole
Under current Massachusetts law, a child as young as 14 can
receive a life sentence without the possibility of parole. This is
the harshest sentence available in Massachusetts—a state with no
death penalty—and it is a sentence to die in prison. Currently,
there are 57 people in Massachusetts prisons who have received
life without parole sentences for crimes that occurred before their
eighteenth birthday. 1 Before they were old enough to vote, buy
cigarettes, or serve on the juries they appeared before, they were
sent to prison for the rest of their lives.
“ The imposition of a life sentence without
possibility of parole is a solemn and awesome
act. Like a sentence of death, it is intended to
remove a person from our midst for the rest of his
natural life. It is more awesome when imposed
on one as young as [16 year-old Gregory L.],
who may expect to live out his young manhood,
middle, and late years all in confinement.”
– Justice Charles Fried, Commonwealth v. [Gregory L.] (1995)
Youth age 14, 15 and 16 charged with first or second degree
murder are automatically tried as adults in Massachusetts
Superior Court. 2 There is no opportunity for judicial transfer to
juvenile court, often known as “reverse transfer” in other states.
Nor can the District Attorney decide to file such cases in juvenile
court, as they can in other states. In fact, the juvenile court has no
jurisdiction over such cases in Massachusetts. And all 17 year-olds,
no matter what the charge against them, are considered adults
under the state’s criminal law. Massachusetts is one of only nine
states that set the upper age of juvenile court jurisdiction at 16. 3
After the District Attorney charges a juvenile in adult court, there
is no point in the proceedings when the judge or the jury can
consider the juvenile’s age, history or potential for rehabilitation.
Like an adult, if a child is convicted of first degree murder,
he or she receives a mandatory life without parole sentence. 4
There are no exceptions. Neither the judge nor the jury have
any opportunity or authority to impose a lesser sentence. 5 Upon
conviction, the law automatically says that the child is irredeemable
and should have no opportunity to prove his or her rehabilitation.
Across the country, there are approximately 2,484 people serving
life without parole for crimes that occurred when they were under
the age of 18. 6 Each of these cases ignores the acknowledged
differences between children and adults and violates international
human rights law. There is no other country in the world that has
people serving this sentence for childhood crimes. 7
In many states, like Massachusetts, the sentence is mandatory for
at least one type of adult offense and, by a variety of court transfer
mechanisms, can be imposed on young children. 8 Massachusetts
stands apart, however, in giving the adult court exclusive
jurisdiction over murder cases against children as
young as 14 and then imposing a mandatory life
without parole sentence for all first degree murder
convictions, regardless of the circumstances. Only
Connecticut has similar laws. 9 Two additional states—
Louisiana and Washington—couple exclusive adult court
jurisdiction or mandatory transfer to adult court with mandatory
life without parole for youth ages 15 and 16, respectively. 10
In New England, Massachusetts has more than six times as many
people serving life without parole for youth crimes as any other
state. 11 In the nearest urban states, New York and New
Jersey, there is no one serving the sentence for a
childhood crime. Like Massachusetts, neither New
York nor New Jersey allows the death penalty. Life
without parole is the most severe sentence in those
states, but has been used only in adult cases. Although
Pennsylvania leads the nation in the number of people serving
life without parole for juvenile offenses, Massachusetts has the
next largest number of people serving such a sentence among the
Northeastern states. 12
The law in Massachusetts has not always been this harsh.
The current law was established 13 years ago, in 1996, in a
hurried response to a tragic case and at the height of faulty but
frightening predictions about a coming surge of youth violence.
Juvenile Transfer: All or Nothing
Ever since the creation of the Boston Juvenile Court in 1906, the
Commonwealth has recognized that children differ from adults
7

SECTION i
in their legal capacity and culpability—or blameworthiness.
The separate juvenile court systems that developed in every
state in the country throughout the first half of the twentieth
century intended to place youth in facilities separate from
adults, and to substitute treatment and rehabilitation for
punishment of juvenile offenders.
The ability to transfer children from juvenile to adult court
was reserved for those charged with the most serious, violent
offenses, including homicides. From 1975-1990, transfer
proceedings were permitted in Massachusetts, but not
required, for children between ages 14 and 17 charged with
homicide. 13 Transfer proceedings consisted of two hearings:
“Part A,” a hearing to determine if there was probable cause
to believe that the juvenile committed the offense, and “Part
B,” a hearing to determine whether the child presented a
significant danger to the public and whether s/he was
amenable to rehabilitation in the juvenile justice system. At the
conclusion of the Part B hearing, the juvenile court judge would
issue specific, written findings explaining the court’s decision.
“ The different treatment accorded youths
in the juvenile justice system is justified in
large part by the belief that children have
far greater capacity to reform than adults.
Adults have additional years of experience
and accumulated habits that make changes
more difficult and unlikely, whereas juveniles
are more likely to be influenced and molded
by proper environment and education.”
– Report of the Boston Bar Association’s Task Force on Juvenile
Justice, 1993
The laws governing transfer in Massachusetts have been the
subject of upheaval and the source of dramatic sentencing
disparities. Changes to the transfer statute have invariably
been made in response to the turmoil of a recent and tragic
loss of life. In October 1990, 28 year-old Kimberly Rae
Harbour was viciously raped, beaten and stabbed to death by
a large group of youths in Dorchester. Charges were brought
against eight individuals, five of whom were under age 17. Just
two months later, in response to the murder, the Massachusetts
Legislature enacted changes to the transfer law that required
a transfer hearing in all first or second degree murder cases.
The law created a presumption that the transfer criteria were
met (i.e. that the juvenile was dangerous and not amenable to
Not Enough Time
Of the 21 individuals who were considered juveniles under Massachusetts
law at the time of the offense, the Children’s Law Center
identified 16 who were tried before the legislative elimination of the
judicial transfer procedure. We were able to obtain and review the
juvenile court’s written decision ordering transfer in 10 of the 16
cases. We also obtained transcripts of the juvenile transfer proceedings
in 7 of the 16 cases, as well as other available portions of
the juvenile court records in some cases.
In almost all of the cases the Law Center reviewed, the prevailing
reason for transfer to adult court was that the judge believed there
was not enough time for proper treatment and rehabilitation in the
Department of Youth Services (DYS). Transfer hearings could take
a year or more to complete. If the juvenile court decided to keep
the case, commitment to DYS and access to DYS programs would
often last only a matter of months before the juvenile turned 18 and
would be released. The law permitted DYS to extend a commitment
to age 21 based on a showing that the youth was dangerous to
the public because of a mental disease or defect. 16 Most judges
viewed the prospect of extended commitment as too uncertain for
purposes of determining the juvenile’s continued access to treatment
and programming.
For Jeremiah F., the juvenile court concluded that “rehabilitation
of this juvenile would require confinement in a secured facility for
a period of not less than four years.” But by the time of his transfer
hearing, Jeremiah had already had his seventeenth birthday—leaving
just one guaranteed year in DYS custody. DYS testified before
the court that it rarely extended commitments beyond age 18. The
court was constrained to find that Jeremiah’s “possible stay there
would fall short by at least two or three years to permit reasonable
rehabilitation to avoid any danger to society.”
The point was not that Jeremiah could not be rehabilitated, but that
there was not enough time to rehabilitate him in DYS. This was
exactly what the law asked juvenile courts to consider. The only
other option available to the court was transfer to the adult system,
where Jeremiah’s eventual rehabilitation would have no meaning
at all. Jeremiah is now 40 years old—he has been in prison for 24
years.
Transfer to adult court was ordered in Robert N.’s case even
after DYS concluded that confinement in a secure facility for up
to 24 months was the most appropriate treatment plan. His DYS
caseworker reported to the juvenile court that Robert’s records
and behavior “suggest that he could be successfully treated in a
secure facility” in two years. The only appropriate secure treatment
program available for Robert was too short, however—only 9-12
months. Absence of an adequate treatment program for 15 yearold
Robert meant that he was tried as an adult. Now 44 years old,
Robert has served 28 years.
8

The Massachusetts Law That Sentences Youth to Life Without Parole
rehabilitation). 14 The juvenile could try to prove this was not the
case and the juvenile court still made the ultimate decision whether
to transfer.
While mandating transfer hearings, the Legislature let stand a stark
imbalance between the sentences in juvenile court and adult court.
If a child remained in juvenile court, the maximum sentence—
even for murder—was commitment to the Department of Youth
Services (DYS) until age 21. 15 If a child was transferred to adult
court, life without parole was the mandatory sentence. In essence,
judges had to decide between all or nothing. Some juveniles were
serving 4-5 years, and others were serving life without parole.
In 1991, the shooting deaths of 15 year-old Corey Grant and 11
year-old Charles Copney in Roxbury devastated their families
and their community. Devastation became anger when one of
the three juveniles accused of the shootings was not transferred to
adult court. In response, the Legislature again enacted another set
of changes in the law that allowed District Attorneys to appeal a
juvenile court’s decision not to transfer a child to adult court
and addressed the imbalance between juvenile and adult court
sentences for first degree murder. 17
After the 1991 amendments, a child tried in juvenile court could
be sentenced to serve 20 years, and had to serve a minimum of
15 years before becoming eligible for parole. 18 The juvenile would
remain in DYS custody until his or her eighteenth birthday, and
then serve the balance of the sentence in an adult prison.
The 1991 amendments were meant to protect public safety and
ensure a substantial punishment without abandoning all hope
for redemption of young lives. After a yearlong study, the Boston
Bar Association’s Task Force on Juvenile Justice reported in 1993
that the mandatory minimum sentence met the important need
for retribution, but failed to promote and protect rehabilitation.
The Task Force recommended modifications that would have
rewarded participation in treatment, education and skill development
in DYS. They were ignored.
The recommendations were drowned out by lawmakers and
commentators in Massachusetts and around the country who
were swept up in the false prophecies of a juvenile crime wave.
In Massachusetts, some lawmakers adopted the now infamous
mantra “adult time for adult crime” and refused to accept the
balanced approach enacted in 1991. Prominent researchers
like John DiIulio, Jr. provided fuel for the fire. Professor DiIulio
notoriously predicted in 1995 that the turn of the century
would bring a youth population of “super-predators.” 19 By 2001, he
Not Enough Time, CONT’D.
The inadequacy of available programs was a recurring theme
in the transfer orders we reviewed. Programs for treating youth
who commit violent offenses must, above all else, be located in
secure, locked facilities in order to protect public safety.
In order to achieve rehabilitation, the programs must also offer
youth therapeutic treatment, education and skill development
opportunities. Over the years, DYS could not always meet these
dual demands, as in the case of one youth who was transferred
to the adult system because the only secure DYS facility provided
no clinical treatment, and the only therapeutic program that could
offer treatment was not in a secure facility.
A similar case involved a 16 year-old boy who had repeated
seventh grade three times and then eighth grade twice before
dropping out of school. The juvenile court judge concluded that
he needed schooling and skill development, but transferred him
to adult court because if committed to DYS, the boy would spend
6-8 months in a secure facility rather than a treatment center.
“Under the regulations,” the judge found, “there is no individual
treatment plan which is particularly tailored for the needs of any
particular juvenile.”
Louis R., 17 in this photo, is serving
juvenile life without parole
for a crime committed when he
was 16. He is now 46. © 2009
Private.
By its nature, the adult system is tailored
to the needs of adult offenders, not
juveniles. It is not equipped to handle
youth like Louis R., a 16 year-old who,
according to the juvenile court, functioned
at that time at a third grade level in
reading and math and had “not
progressed intellectually, emotionally or
socially beyond the age of eight.”
Nevertheless, because Louis would
reach the chronological age of 18 just
ten months from his transfer hearing, he
was tried as an adult.
admitted that his theory had been disproved and discredited, but
not before it wrought havoc on juvenile sentencing laws.
In 1996, at the height of these false and alarmist predictions,
another bad case made bad law. Fifteen year-old Eddie O’Brien
was accused of stabbing to death the mother of his friend and
next-door neighbor. The crime was brutal in the extreme.
However, Eddie had no prior record and a strong family support.
His former teachers, coach, and neighbors testified at his transfer
hearing and described “a good kid.” When a District Court judge
retained Eddie’s case in a juvenile session of the District Court,
commentators immediately warned that automatic trial in adult
9

SECTION i
Recommendations Ignored:
The Boston Bar Association’s Task
Force on Juvenile Justice
After the 1990 and 1991 changes to the juvenile transfer and
sentencing laws, the BBA commissioned a study to examine the
impact of the new laws. 20 The Task Force included prosecutors,
defense attorneys, a clinical psychologist and a law student.
Several conclusions and recommendations arose from their
yearlong study, particularly concerning the mandatory minimum
sentences:
• “The mandatory minimum sentencing provisions […]
gainsay the efficacy of treatment and the possibility of
reform. They remove juveniles’s incentive to participate
in the treatment process, and make it far more likely that
the positive effects of treatment the juvenile receives in
the juvenile system will be subsequently undone in the
state prison environment.”
• “Recognizing that the mandatory minimum sentencing
provisions may serve retributive goals, and perhaps, act
as a deterrent, however, the Task Force proposes a
legislative compromise that would retain such sentences
for juveniles committed to DYS for murder unless they can
prove that they are in fact ready and capable of rejoining
society.” 21
• “The Task Force’s modifications provide that the mandatory
minimum sentences would be fully enforced if, at age
twenty-one, the juvenile could not demonstrate that he
or she has taken advantage of the rehabilitative services
DYS has provided, and that he or she no longer presents
a significant danger to the public.”
• “While this burden of proving rehabilitation would be
onerous, the opportunity to prove his or her own reform
would introduce a critical incentive for the juvenile’s treatment.
Further, the opportunity would be consistent with the notion
that decisions about juveniles should be made on the
basis of their individual characteristics, not simply on the
basis of the crimes they commit.”
court for all children charged with murder was the only way to be
safe from a new generation of violent juveniles.
The Commonwealth appealed the District Court’s transfer ruling
and the Supreme Judicial Court ordered a second transfer
hearing. The new judge transferred Eddie to adult court.
Before there was time to examine commentators’
predictions and the efficacy of treating children exactly
like adults, the Legislature rushed to enact the
current law: giving adult court exclusive jurisdiction
over children between ages 14 and 17 charged with
first or second degree murder. Since then, homicide
rates for adolescents under age 18 disproved the fear
of young “super-predators” that shaped this law. As
opposed to the vast increase in juvenile crime that
was predicted in 1996, the state’s youth homicide rates
had already peaked in 1992. Since 1998, the homicide
rate for youth under age 18 has been lower than it was
30 years ago. 22
A rightful call for retribution—for youth to pay a greater
price when they commit heinous crimes—motivated the
initial legislative changes to juvenile sentencing in the early
1990s. Commitment to DYS and release at age 18 or 21 did
not protect communities from potentially dangerous youth, did
not permit enough time for rehabilitation, and did not go far
enough in extracting a punishment. 23 The current law, however,
extracts from every convicted youth the same punishment as
an adult, regardless of age, past delinquency conduct, level of
participation in the crime, home background, special education
concerns, or potential for rehabilitation.
Executive clemency in the form of sentence commutation by
the Governor does not afford youth a meaningful opportunity
for review of these sentences. No petitions for reduction of
a sentence have been granted in Massachusetts—for any crime—
since 1997. 24 This stark trend illustrates why a political clemency
process such as commutation can not solve a human rights
problem such as life without parole for juveniles.
In Massachusetts, life without parole is the worst possible sentence
and should be reserved for the worst offenses. Although youth
can commit the same acts as adults, their immaturity makes their
acts less culpable. The next section of this report discusses the
proven developmental differences between youth and adults,
which caused the United States Supreme Court to conclude that
“juvenile offenders cannot with reliability be classified among the
worst offenders.” 25
10

The Massachusetts Law That Sentences Youth to Life Without Parole
Making Good on Second Chances
DAVID D.
David D. was one of the first youth to be sentenced in juvenile
court after the 1991 amendments to the juvenile sentencing laws.
He served 15 years for a first degree murder adjudication and then
became eligible for parole. The parole hearing was a chance for
David to prove that he is not the same person he was at age 16, that
he had been rehabilitated. Release after 15 years of incarceration
was not guaranteed. The Parole Board could have denied parole
and granted David a review hearing one year later.
In prison, David took advantage of every school program, work
program and counseling session available to him. The old law
permitted him to stay in DYS custody until he was 21 years old
before being transferred to DOC. In DYS, he finished the credits
necessary to receive a diploma from his public high school and
began taking college level courses. David says of this time:
“Being incarcerated allowed me to see who the true David really was,
to prove to myself, family and others that doubted me in changing.
At 16, I didn’t know who I was. I did not have the tools to sort through
traumatic personal experiences. I now have the tools and capacity to
be in control of my actions and my life. I have worked hard. I am still
working on myself, and plan to do so for the rest of my life.” 26
David continued his studies, counseling and work programs in
DOC. He also became a mentor and teacher’s assistant for younger
prisoners. During the 15 years, he had only one disciplinary infraction
for fighting with another prisoner, when he was 18 years old.
The Parole Board’s decision to grant David parole was unanimous.
The Board concluded that “the intended goals of [David’s] sentence
and the criminal justice system have been met. [David] from all
accounts, has rehabilitated himself[.]”
David is now 32 years old. Since his release, he has pursued a
productive and stable life in his community with his characteristic
determination. In addition to his full-time job in mental health
services, he works weekly shifts in a building supply store.
He continues to mentor young people by finding time to return
to DYS—now as a guest speaker. At the invitation of his former
Program Director, David regularly visits the DYS secure facility and
talks with youth in two of the units about his experiences and how
to learn and grow in DYS custody.
“When I talk to the kids in DYS,” David told us, “I try to tell them to
remember: you are human yourself, don’t be afraid to ask for help,
because we all do—even the hardest individuals. Just don’t throw
away your life to prove your ego.”
Under today’s law, David would almost certainly be sentenced to
spend the rest of his life in prison for his crime. The facts of his
case are similar to some of the cases of people serving juvenile
life without parole. David shot a man at point blank range during
an attempted robbery. His background, too, had much in common
with the people we spoke with serving life without parole for
childhood crimes. In his Boston neighborhood, David’s single mother
struggled to raise four children, one with severe mental and physical
disabilities. When David was still in grade school, David’s father
killed his girlfriend and then himself. David became withdrawn,
pulled away from his family and started associating mostly with
older peers. As a young teenager, he was heavily involved in using
and selling drugs. The violence his father had turned on himself and
his girlfriend was echoed in David’s community.
David says that one of the most important steps he took was not to
return to that community. He is fortunate, he explains, to be able to
make such choices and have new experiences. “I know one thing:
my victim will forever be a part of my life—the fact that it is at his expense
that I have what I have now.” David is doing his best to honor
the opportunity he has been given.
MICHAEL C.
Like David, the facts of Michael C.’s case have much in common with
the life without parole cases we examined. Michael was a member
of a gang in Dorchester. Although he did well in school and had a
strong relationship with his parents, he described having two lives: a
home life and a street life. In his street life, he could have status and,
from the age of 13, “easy money” from selling drugs. When he was
16, Michael was shot at several times by two gang members while he
was sitting in a car outside a convenience store. The car was parked
on a street that was dominated by a rival Dorchester gang. A bullet hit
his shoulder, just missing his head. Weeks later, Michael learned that
the person who shot at him was nearby. He armed himself to retaliate;
when he found the person who had shot at him, he shot several times
from some distance away and one bullet killed the victim.
Michael was tried in juvenile court. Because his crime occurred
before the 1991 amendments, Michael was released at age 18. The
gang life and the easy money he could make were still a strong pull.
“But I was given a chance and I wanted to change. I knew I couldn’t
go back to it.” 27
When he got out of DYS, Michael’s family was no longer living in
Dorchester. They had moved to the suburbs to be closer to Michael
while he was in custody. Michael decided to go even further away
from his old life and went to college in Virginia to study communications.
He played college basketball and finished three years of college
before electing to work full-time. He moved back to Massachusetts
when his mother was diagnosed with cancer.
In 2000, he married his high school sweetheart. They now have two
daughters in grade school. “My daughters are my world, my life,” he
told us. 28 Michael is grateful for the chance he was given to leave his
street life behind, to change and to have a family of his own. “Some
call it a success. I call it growing up.”
11

SECTION II
Why Adolescents Are Different
From Adults
Adolescents are not adults. They are still developing psychosocially
and their brains, not just their bodies, are not yet fully grown.
“ To a degree never before understood, scientists
can now demonstrate that adolescents are
immature not only to the observer’s naked
eye, but in the very fibers of their brains.”
Brief of the American Medical Association and American Psychiatric
Association, et. al. as Amici Curiae In Support of Respondent, at 10,
Roper v. Simmons, 543 U.S. 551 (2005).
Cognitively, teenagers do not yet have adult decision-making
capabilities. They are more vulnerable to outside pressures than
adults, and their characters still are not fully formed. This means
that, relative to adults, teens are less likely to consider the
consequences of their actions, to understand other people’s
perspectives, or to control their impulses. 29 In making decisions,
teens place more emphasis on the present and are less likely to
focus on the long-term consequences of their decisions. They are
apt to give greater weight to short-term risks and benefits. 30
It is even harder for teens to appreciate the potential consequences
of their actions when they are with their peers—whether they are
being pressured directly to take risks or seeking peer approval.
Teenagers spend three times as much time talking with their
peers as with adults and it is in this context that youth make many
of their riskiest decisions. 31 Of the prisoners the Law Center spoke
with in Massachusetts, 70% acted with at least one other co-defendant.
Forty-three percent acted with at least two co-defendants.
“The susceptibility of juveniles to immature and
irresponsible behavior means their irresponsible
conduct is not as morally reprehensible as that of an
adult.” Roper v. Simmons, 543 U.S. 551, 570 (2005).
Mirroring these behavioral differences are significant biological
differences between the adolescent and adult brain. Using groundbreaking
magnetic resonance imaging (MRI) and other technologies
that emerged in the late 1990s, neuroscientists have discovered that
the adolescent brain goes through striking changes and that brain
maturation is not complete even in older adolescents. 32 This is
especially so in the areas of the brain that are involved in impulse
control, like the prefrontal cortex located in the brain’s frontal
lobes. The prefrontal cortex regulates “executive” functioning, such
as decision-making, future planning and the ability to assess risks
before acting. The frontal lobes are among the last regions of
the brain to fully mature and may not be fully developed until a
person is in his or her mid 20s. 33
In the absence of a fully-developed frontal cortex, adolescent
decision-making relies on the amygdala, the area of the brain
associated with impulsive and aggressive behaviors. The amygdala
is one of the most primitive parts of the brain and among the
earliest to develop. 34 It governs instinctive, automatic “flight or
fight” responses. Adult brains have fully developed prefrontal cortices
that serve to modulate the amygdala’s responses. Teenage
brains, on the other hand, are in the process of developing the
ability to modulate such “gut” responses. 35
These are significant biological differences between adolescents
and adults that correspond with the behavioral differences
parents and psychologists have observed for decades. 36 The new
lessons of brain science, because they graphically illustrate the
developmental differences between teens and adults, have
received national attention in magazines like Time and television
shows like Frontline. 37
All of this brain growth and psychosocial development does not
happen in a perfectly linear fashion. The scientific research
reveals significant individual variation in the rates of brain and
psychosocial maturation. Again, this is not new to parents,
who know first-hand that adolescents do not suddenly complete
development and transition into adulthood at a certain age.
Nevertheless, the law and public safety require clearer boundaries
between youth and adulthood. Although brain development
continues into the 20s, age 18 traditionally marks the legal age of
majority for almost all purposes, as well as the age of adulthood
for purposes of criminal prosecution in close to 40 states and
internationally. Given the trajectory of adolescent development,
the judgments of most teenagers under age 18 do not reflect a
fully matured brain.
12

Why Adolescents Are Different From Adults
Many areas of the law in Massachusetts already recognize that
teenagers under age 18 are not as mature as adults. Youth cannot
vote until they turn 18, nor can they serve on juries, enter into
contracts, buy tobacco products or get tattoos. This is because we
do not believe that youth are able to exercise such privileges and
responsibilities wisely, and we are concerned they will be susceptible
to outside pressures. 38 The more we learn about brain science,
the better we understand the importance of these age distinctions.
However, youth as young as 14 years old, who are legally children
for every other purpose in Massachusetts, are uniformly tried and
sentenced as adults once charged with murder.
Drawing by Steven Goler, Jr.
Youth’s Inherent Capacity to Change
Perhaps the most important difference between children and
adults is that, because adolescents still have relatively unformed
characters, they have a substantially greater potential for change
and rehabilitation than adults who commit a comparable offense.
Researchers Elizabeth S. Scott and Laurence Steinberg report that
the steep drop-off in criminal activity after age 17 “reflects
the reality that most adolescents desist in late adolescence or
early adulthood. Only a small group of young offenders—about
5 percent by many estimates—will persist in criminal activity
in adulthood. The upshot is that the vast majority of teenage
offenders are individuals whose offenses are linked to adolescence
and who are not destined to become criminals.” 39 In short,
adolescents are not the adults they will become and change
is inherent to their development.
As they grow up, adolescents are uniquely capable of reform and
rehabilitation. In its decision striking down the juvenile death penalty
in 2005, the United States Supreme Court explained it this
way:
The reality that juveniles still struggle to define their
identity means it is less supportable to conclude that
even a heinous crime committed by a juvenile is
evidence of irretrievably depraved character. From a
moral standpoint it would be misguided to equate the
failings of a minor with those of an adult, for a greater
possibility exists that a minor’s character deficiencies
will be reformed. 40
A later section of this report addresses the enormous fiscal cost of
incarcerating youth for the rest of their lives despite the evidence
that most adolescent offenders desist from crime by the time they
are 30.
Honoring the special vulnerabilities and growth potential of
young people was a primary motivation for establishing the
juvenile court in Massachusetts. The express purpose of the
juvenile court is to treat youth, “not as criminals, but as children
in need of aid, encouragement and guidance.” 41 To this end,
juvenile court allows judges some discretion to determine the
appropriate disposition for an individual juvenile offender. For
serious, violent juvenile offenses, the discretion is more limited.
For juveniles between ages 14 and 17 in adult court facing murder
charges, there is no discretion at all.
The marked differences between children and adults outlined
here are not an excuse for juvenile violence. Children should
not get a “pass” or “free ride” or a “ticket out.” Nor should they
be punished—as they are now—as if they were adults. Punishment
is meant to correspond to culpability. Culpability
is a matter of blameworthiness—it is the idea that a person
can be accountable for his or her actions because s/he was
aware of their wrongfulness. Not everyone who commits the
same crime is equally culpable nor equally deserving of a certain
punishment. This is why premeditated homicides are punished
more harshly than a murder committed impulsively. This is also
why children under age 18 and people who are mentally retarded
cannot receive the death penalty.
In 1988, the United States Supreme Court made what it
described as an “obvious” conclusion in Thompson v.
Oklahoma that “less culpability should attach to a crime
committed by a juvenile than to a comparable crime
committed by an adult.” 42
Massachusetts has no death penalty, but juveniles in Massachusetts
sentenced to life without parole will die in prison. Even as adults
in their 30s and 40s, they will have no chance to show that growing
up and their efforts at rehabilitation have changed them.
13

SECTION III
The Youth Sentenced to Serve Life
Without Parole in Massachusetts
All of the 57 people serving life terms without the possibility
of parole in Massachusetts for crimes that occurred when they
were under age 18 received mandatory adult sentences in adult
court. At the time of the offense, none of them were old enough
to serve on the juries they appeared before.
Twenty-one of those individuals were under age 17, which means
they were considered juveniles by Massachusetts law. 43 Fifteen
were 16 years old and six were 15 years old at the time of offense. 44
There is no one serving the sentence for a crime that occurred
at age 14, although juveniles as young as 14 face the sentence
in adult court. Seventeen year-olds are regarded as adults under
the criminal laws of the Commonwealth, but would still be
juveniles in most other states and most other countries. For that
reason, we have included them in this report.
Youth Sentenced to Life Without Parole in
Massachusetts by Age at Offense
African American youth in Massachusetts are disproportionately
affected by the state’s juvenile life without parole sentence.
Although they make up only 6.5% of the population of all
children under age 18, African American youth are 47%
of those sentenced to serve life terms without the possibility
of parole for a childhood offense. 46 Sixty-one percent of youth
under age 18 sentenced to life without parole in Massachusetts
are people of color. Although white youth make up 75.2%
of all youth under age 18, they are just 39% of those
serving the sentence. Latino youth are represented in low
numbers—just 7% of people serving the sentence for crimes that
occurred when they were under age 18. They are 10.5% of all
youth under age 18 in the state.
Youth Under Age 18 Sentenced to Life
Without Parole By Race
Asian 7%
15 yrs old
10.5%
White 39%
16 yrs old
26.3%
Black 47%
17 yrs old
63.2%
Latino 7%
All of the children sentenced to life without parole in Massachusetts
have been boys. Today, the oldest person serving the
sentence is 52; the youngest is 20 years old. Most were sentenced
and admitted to the Massachusetts Department of Correction
(DOC) at age 17 or 18. 45
Youth Under Age 17 Sentenced to Life
Without Parole By Race
Asian 14%
White 47%
Black 29%
Latino 10%
14

The Youth Sentenced to Serve Life Without Parole in Massachusetts
6
African 5 American youth are also overrepresented as compared to
the 4 overall population of people in the custody of DOC.
Twenty-eight percent of the state’s prison population is African
3
American, as compared to 47% of those sentenced to life without
2
parole under age 18. Notably, by this measure, Latino youth
1
are again underrepresented: Latinos make up 28% of the state’s
prison
0
population, but only 7% of the youth life without parole
population. 47
Black youth under age 18 sentenced to life without
parole compared to state and doc populationS
100%
80%
60%
A Note About Our Review of Cases
The Law Center surveyed 47 individuals who are serving life
without parole sentences for crimes that occurred when they
were under age 18. The questionnaire addressed the history
of their cases, their personal and childhood backgrounds, and
their experiences in prison. Forty-four individuals responded to
the questionnaire and all but two were interviewed by an interview
team that included at least one attorney. The Law Center
also reviewed court decisions, news articles, individual case files,
and court transcripts for this report and in order to assess potential
litigation.
Any non-public information used in this report, based on interviews
and responses to the questionnaires, is used with the individual’s
signed authorization. Pseudonyms are used to identify all prisoners.
Although many prisoners authorized the use of their
names, we have used pseudonyms because of our concern that
personal information could put them at risk of harm in prison.
State Population
Under Age 18
State Department of
Correction Population
Youth Life Without
Parole Population
40%
20%
0%
Information concerning those who were under age 17 at the time
of offense was reviewed separately before it was considered
along with the cases of 17 year-olds. Of the 21 individuals numerically
identified by DOC as serving life without parole for a
crime that occurred when they were under age 17, we identified
20 and interviewed all but one prisoner who is held in a facility
out-of-state. Of the 36 individuals identified as 17 years old at
the time of the crime, we identified and interviewed 23.
African American
Other racial
minorities and white
The majority of youth were sentenced to life without parole for crimes that occurred in Suffolk County.
Youth Sentenced to Life Without Parole in Massachusetts by county of offense
11
8
16
3
5
3
#
Represents number of youth
sentenced to life without parole
15

SECTION III
Over time, the number of youth under age 17 sentenced to life
without parole has decreased. The figure below charts such sentences
in five year intervals by year of offense.
massachusetts youth under age 17 sentenced to life
without parole, 1976-present by year of offense
6
5
4
3
2
1
0
1976-
1980
2
6
1981-
1985
1986-
1990
4 4
1991-
1995
1996-
2000
2 2
2001-
2005
As illustrated in the next figure, juvenile homicide rates in Massachusetts
have also declined overall, after peaking in 1992. Homicide
rates for Massachusetts youth under age 18 have not exceeded
half the peak numbers since 1997. Since 1998, the homicide rate
in this age group has been lower than it was 30 years ago. 48
Massachusetts Homicide Offending Rates
for Youth Under Age 18, 1976-2007
15
12
9
6
3
0
2006-
Present
The following section details the recurring themes and findings
that emerged from our case reviews and interviews. In their interviews
with us, the individuals serving life without parole for youth
crimes shed light on the impact of the sentence, the young lives
that led them to prison, and the adults they have become.
Many youth sentenced to life without parole in Massachusetts
are first-time offenders.
Forty-one percent of those who are serving life without parole
for a crime that occurred when they were under age 18 received
the sentence for their first offense. These individuals had no prior
juvenile delinquency or adult criminal record. 49 Yet there was no
opportunity for the judge to consider the importance of a youth’s
prior conduct before imposing a sentence.
Before the change in the law in 1996, a juvenile could only be
transferred to adult court after a transfer hearing that explicitly
considered a youth’s prior record, if any, among other factors.
A child’s behavioral history was an important indicator of how
s/he might respond to future treatment and punishment. For
youth who are sentenced in juvenile court, this factor remains
central to the court’s determination of the sentence that will best
protect public safety and promote future rehabilitation.
It would be wrong to consider lack of prior criminal history in
isolation. A child’s behavioral past must necessarily be viewed
in light of the offense committed. But the current sentencing
structure in adult court entirely ignores a child’s behavioral track
record.
Youth were sentenced to life without parole for widely
disparate levels of participation in the crime.
The current sentencing structure also prohibits courts from
considering a youth’s level of participation in the crime.
Twenty percent of the individuals we identified are serving
life without parole for a “felony murder” conviction. This means
they were convicted of a murder that occurred during the
commission or attempted commission of certain non-homicide
felonies, such as armed robbery . . 50 Under the felony murder
law, there is no requirement to prove that a person intended to
commit murder or participated in a killing, only that s/he
intended to commit the underlying non-homicide felony and
that a death resulted.
0
1976
1978
1980
1982
1984
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
2006
16

The Youth Sentenced to Serve Life Without Parole in Massachusetts
The “joint venture” legal theory in Massachusetts case law plays
a particularly troubling role in felony murder cases. If a youth is
shown to be in a joint venture with others committing a felony, the
prosecution is not required to prove that s/he intended to commit
the felony. The joint venture theory holds the youth responsible for
the conduct of a co-defendant or other actor if it is shown that the
youth was at the scene, knew the other person intended to commit
the felony, and was by agreement willing and available to help the
other person commit the felony.
There is no question that every crime we reviewed had permanent
and grievous consequences that continue to traumatize many
families and communities. A youth’s level of participation in a
crime does not alter the harm that it causes. But the state’s harshest
punishment—the life without parole sentence—treats every juvenile
like the principal perpetrator of the crime. Most troubling, the
sentence treats every youth exactly like an adult.
Adult co-defendants frequently played influential roles.
Common to many of the cases we examined was the presence of
co-defendants, particularly older, adult co-defendants. Among those
who were under age 17 at the time of offense—and therefore still
considered juveniles under Massachusetts law—forty percent had
one or more adult co-defendants. Actions taken with adult co-defendants
accounted for 80% of all cases where juveniles acted with
others.
Juveniles sentenced to life without
parole frequently acted with others.
In 80% percent of such co-defendant
cases, they acted with adults.
Sixteen year-old Mark H.’s older co-defendant at first played
the role of a confidante: after inflicting a non-fatal wound on
the victim, Mark found an older friend and told him what had
happened. His friend told him he needed to return to the scene
and “finish the job.” Mark followed the older co-defendant back
to the scene, where the co-defendant handed Mark a kitchen
knife and told him to “do it.” 52
DILLon p.
Dillon P., 16 in this photo, is serving
juvenile life without parole for
a crime committed when he was
17. © 2009 Private.
Dillon P. was 17 years old when he met
up with two acquaintances—a 15 yearold
and an 18 year-old—and got into
a fight with two university students on
the street. He admits he threw the first
punch, knocking one of the students to
the ground. But then the 15 year-old
juvenile stabbed the student in the heart,
killing him as he lay on the ground. The
18 year-old stole the other student’s
wallet and the victim’s wallet was also
taken. In most states, both Dillon and his
younger co-defendant would have been
considered juveniles. Dillon explained to us and in his testimony
in adult court that he did not know the other youth was carrying
a knife; nor did he know the others were looking for someone
to rob.
Despite his testimony, Dillon was convicted of first degree
felony murder based on the theory that he was a joint
venturer in an armed robbery of the victim. He received the
mandatory life without parole sentence. The juvenile who
stabbed and killed the victim was tried in juvenile court and
sentenced to 20 years for first degree murder. He was
released in 2002 after serving 10 years. The adult who stole
one of the wallets pleaded guilty to manslaughter and
testified against his co-defendants in exchange for a 12-20
year sentence. He was released after serving 10 years.
In prison for 17 years, Dillon has served nearly as much time as
his co-defendants combined. At age 34, he told us that it is
easier for him to understand now that there are sometimes
unexpected and grave consequences to a person’s actions.
“When I was 17, I wasn’t thinking like that so much.” 51 But, he
says, he still struggles to understand why he is being punished
more than his co-defendants.
Dillon plans to seek a reduction of his sentence by applying to
the Governor for commutation. The trial court judge, now retired,
agrees that Dillon’s sentence should be commuted if he has been
rehabilitated. 53 Both the victim’s mother and brother support
Dillon’s release. Sharing his feelings about Dillon’s sentence,
the victim’s brother wrote to us that “as a victim, your normal
feeling is that everyone involved in the crime should get life
sentences. But as the initial shock and overreacting feelings
disappear, you start to think that might not be fair after all.” 54
A youth “in prison for life does not have the possibility to pay
back to society as a released prisoner who has an education
and a job would have.” 55 17

SECTION iii
18
Painting by Reginal Orival

The Youth Sentenced to Serve Life Without Parole in Massachusetts
In all but one co-defendant case, our research revealed adult
co-defendants who received less severe penalties than the
juvenile involved.
Nationally, a comparison of life without parole sentences
imposed on children and adults shows that youth
often receive more punitive sentences than their
adult counterparts. In the United States, in 11 of the
17 years between 1985 and 2001, youth convicted of
murder were more likely to enter prison sentenced
to life without parole than were adults convicted of the
same crime. 56
In several Massachusetts cases, adult co-defendants received lesser
sentences as the result of plea bargaining. Richard K. was one
of nine individuals charged with the death of a man who had
threatened Richard with a gun earlier in the night. The
prosecutor offered Richard a 19-20 year sentence if he would
plead to manslaughter and testify against an older adult
co-defendant who, like Richard, was a principal actor.
Richard rejected the offer. Even today, only one decade into
his life sentence for felony murder, Richard told us that he does
not regret his decision because he would have faced so much
danger and retaliation in prison if he had testified against the
older co-defendant. 57 The older co-defendant made a different
decision—he testified against Richard and pleaded guilty to
manslaughter.
Many youth were sentenced to life without parole in the
midst of childhoods marked by the violence of others and the
profound neglect of their parents.
Most notable in the responses to questionnaires and interviews
were the recurring themes of violence and prolonged neglect
that characterized so many of the lives we examined. More than
half of those who were under age 17 at the time of their crimes
reported significant histories of physical abuse from parents or
other caretakers including foster parents.
The neglect of Victor L. escalated into outright abandonment in
the months before his crime. For six weeks, Victor’s mother left her
16 year-old son and 17 year-old daughter at home alone. When
the police took Victor into custody, they could not find any adult
family member to notify and no one attended Victor’s initial court
proceedings. 58
Violence at home was often exacerbated by the total absence and
volatility that accompanies a parent’s drug addiction. Thirty-
ROBERT N.
Robert N. had just turned 16 in
this photo with his sister. He is
serving juvenile life without parole
for a crime committed at age 15.
He is now 44. © 2009 Private.
According to Robert N.’s sister, “if the
police weren’t called to the house it was
a great day.” Robert’s alcoholic, abusive
father left the family of seven when Robert
was four years old. His mother descended
into years of alcoholism, depression and
violence toward her family. There was
frequently no food in the home and
although the oldest daughter did what she
could to care for the family, they lived in a
state of chaos and addiction.
Robert’s mother turned to the Catholic
Church for support, enrolling Robert in
altar boy classes with their local pastor, Father John Geoghan.
At first, Father Geoghan appeared to be a much-needed mentor.
But in fact, he soon started sexually abusing ten-year-old Robert.
The abuse continued for almost two years.
When he was twelve years old, Robert began to associate with
a gang and to experiment with drugs and alcohol. Frequent drug
use made Robert “one of the guys.” The Department of Youth
Services concluded that his heavy alcohol intake and drug
abuse was “a poor substitute to increase his self esteem and
ego strength.”
Between his 13th and 15th birthdays, Robert was charged six
times with breaking and entering. He was placed in foster care
for a period of time and then committed to DYS. It was soon after
returning from DYS that he met his 23 year-old co-defendant,
Kimberly, and began spending most of his time at her house
because “there was a party there every night.” 59 The partygoers
ranged in age from 14 to 40. Kimberly introduced Robert to
two of her friends – Joseph who was 20 years old and another
adult. The three of them brought Robert into their plans for
robberies, including a plan to rob an elderly woman who lived
alone upstairs from Kimberly. They planned for Robert to knock
her unconscious and for Kimberly and Robert to take her
belongings. Robert says he never thought the robbery would
turn into a murder. When Robert struck Kimberly’s neighbor but
failed to render her unconscious, Kimberly summoned Joseph,
who struck her repeatedly. In his statement to the police, Joseph
said that Robert was then responsible for the rest of the beating.
Two days later, Robert called the police and told them where
he and Joseph could be found. In DYS custody, Robert was evaluated
to determine whether he should be transferred to adult court.
His DYS caseworker at the time concluded that Robert could
respond to intensive treatment in a secure juvenile facility for 24
months. Nevertheless, the opportunity for treatment was lost when
he was transferred to the adult system and, like Joseph, tried and
sentenced to life without parole. Kimberly served six months for her
role in the murder. Robert has been in prison for 29 years.
19

SECTION iii
five percent of the individuals we spoke with described a home
environment where heroin, crack cocaine or marijuana were
almost always present, being used, bought or sold.
At the time of his crime, Mark H. was trying to come to terms
with his alcoholic and drug addicted mother, who gave him
up to years of physical abuse by a foster mother described
as weighing more than 300 pounds. All of Mark’s biological
siblings also describe incidents of Mark being sexually
abused, although he does not remember the abuse. Just two
weeks before the crime, Mark had turned 16 years old and was
repeating the ninth grade. When he tried to run away from a
foster care placement, he was returned again to his biological
mother’s custody. In the days before the crime, Mark describes
his outlook on life: “I felt worthless, like I had no future. I was
passively suicidal and very lost. I had fantasies about wanting
to die in a fiery car crash or something like that.”
Both of Chris L.’s parents were in and out of prison for drug
offenses throughout his childhood. He told us about the last
time he saw his father. “I ran into him on the platform in South
Station.” Chris’ father wanted money for drugs. “I gave him
everything I had – $1.50. Then I had to hop the train.” 60
When he was six years old, Gregory L. hid under the bed and
watched his father beat his mother repeatedly with a frying
pan. On a separate occasion, his father shot his mother.
Gregory’s parents divorced before he was born, but his father
drifted in and out of their lives for the next ten years, bringing
violence with him. For young Gregory, his father’s threats
were as menacing as his actions—like when he threatened
to blow up Gregory’s house. Gregory’s mother used alcohol
and drugs to fight a losing battle against depression. When
she was pregnant with Gregory, she tried to kill herself and
was hospitalized for her mental illness. Alcohol had an early
appeal for Gregory as well. “It helped me escape my problems.” 61
He started drinking when he was 12 years old. By his freshmen
year of high school, he was drinking whiskey before going to
school in the morning. His mother made no moves to stop him
and gave him the cash he needed to avoid being sober.
Violence outside the home also figured prominently in the childhoods
of many youth who were sentenced to life without parole.
Steven G. first described the good fortune of growing up in a
quiet, stable home environment after his family was able to
leave the refugee camp in Thailand where he was born. His
family lived in a middle-class neighborhood and Steven liked
playing sports—basketball at school and flag football with the
fire department league. But when he was in junior high, both
his parents lost their jobs and the family eventually had to move
to a housing project. All of their lives changed in their new
surroundings. Violence erupted regularly out of the racial and
ethnic tensions that existed between Laotians and Puerto Ricans
in the neighborhood. Steven’s older brother spent a long time
in the hospital after he was shot in a gang-related drive-by
shooting. When he was 13 years old, Steven and his friends
joined a gang to protect themselves. In high school, he stopped
playing sports because the game schedule would alert rival gang
members to his whereabouts and he feared for his safety. 62
Street violence dominated Joseph R.’s life from an early age,
mainly because he and his mother moved around a lot, relying
on others for housing or living in the streets. His uncle was killed
when he was a young boy and during middle school, Joseph was
the victim of a stabbing that almost killed him. 63
Norman B. spent 2 weeks in the hospital after he was caught in
the cross-fire of a drive-by shooting meant for older kids. Norman
was 11 years old at the time. 64
“15 Years Was My Whole Life”
Incredibly, almost half of the individuals we spoke with had been offered plea bargains but declined to take them. The reasons varied.
Charles T. was offered a second degree life sentence, with parole eligibility after 15 years. Fifteen years represented his whole life and
he was unable to envision what it would mean to spend that much time in prison. He was also scared that a plea would result in immediate
transfer to an adult facility. After his arrest, Charles was held in an adult jail in New York City. He explained that based on his experiences
there, he wanted to avoid going back to an adult unit. 65
Frank A. was offered 18-20 years if he would plead guilty to manslaughter and testify against his co-defendants. Frank was willing to do it,
but his attorney advised him they “could do better” so Frank declined the offer. 66
20

The Youth Sentenced to Serve Life Without Parole in Massachusetts
richard k.
Richard K., 16 in this photo, is
serving juvenile life without parole
for a crime committed when he
was 17. He is now 31. © 2009
Private.
Growing up in Philadelphia living with
his mother, Richard was often teased by
other children about the way his mother
acted when she was high on crack. He
depended on his aunt and his grandmother
for meals, but only sometimes
stayed with them. When he started getting
in trouble in middle school, he was sent
to live with his father in New Bedford. He
looked up to his father and felt special
because his father could afford to buy him
new clothes and new sneakers, something
his mother could never do. Yet like his
mother, Richard’s father did nothing to hide the alcohol he drank
every morning or the drugs he used each day. It was not long
before Richard figured out that his father’s money came from
selling drugs. When he was 15 years old, Richard dropped out
of school without finishing the ninth grade and started selling
drugs instead. His father knew what Richard was doing but said
and did nothing. Richard had to be careful not to compete for his
father’s customers. 67
Daily life for Richard became dangerous and complicated.
At age 16, he spent three months in the hospital with a collapsed
lung after he was stabbed during a fight. His father went to prison
for more than a year for drug distribution. 68
He was 17 years old and among the youngest in a group of 15
or 20 teenagers and adults who crashed a party to retaliate for
threats made against him. During the fight that erupted outside
the party, an older co-defendant began beating the man who
had threatened Richard and Richard stabbed the man. Other
armed co-defendants attacked two victims who were badly injured
but survived. Richard is the only one of his eight co-defendants
who is still in prison.
After presiding over Richard’s trial and the trials of four
co-defendants, the judge found that Richard’s first degree
murder conviction was not consonant with justice. The facts of
the case, in combination with Richard’s age, prompted the judge
to conclude that Richard’s was one of the rare verdicts that
should be reduced to second degree, which carries a sentence
of 15 years to life. The Massachusetts Supreme Judicial Court
disagreed and reinstated the earlier verdict on appeal.
Photograph by Steve Liss; used with permission.
21

SECTION IV
Growing Up in Prison
The individuals we spoke with entered prison when they were—
like other teens—in the midst of formative growth and
development, both physically and emotionally. In adult facilities,
children are acutely vulnerable because of their size, their
lack of experience in the system, and their lack of a peer
support group. Their weakness is evident and sets young people
apart, making them targets for physical and sexual assault.
As compared to youth in juvenile detention facilities,
youth in adult facilities are eight times more likely to
commit suicide, five times more likely to be sexually
assaulted, and nearly twice as likely to be attacked by
other prisoners or by staff. 69
Robert N. was just 15 years old at the time of his crime—he was
5’2” and weighed 110 pounds. When he was admitted to DOC,
the staff observed in a Classification Report that he “had yet to
experience the ‘growing pains’ of childhood and adolescence;
he [had] yet to shave or to build up his muscles,” and he had been
seen “playing army” on his bunk bed.
Charles T., 15 in this photo, is
serving juvenile life without parole
for a crime committed when he
was 16. © 2009 Private.
Charles T. was arrested at age 16 and
spent two weeks in an adult unit of a New
York City jail before he was returned to
Massachusetts. In the adult unit, 50-60 beds
were lined up in rows in one large room.
Almost all the other prisoners were in
their thirties or older. Although he was
assigned a bed randomly, Charles quickly
learned that different areas of the room
were controlled by different gangs. He said
that he was lucky because an older man
looked out for him during this time.
“I tried to stay to myself.” 70 But the quick violence was
everywhere. He saw a man on the block get stabbed for refusing
to give another prisoner his street clothes. These memories and
others made Charles particularly frightened of being transferred
to DOC after he turned 17. He was relieved when the judge
in his case granted his lawyer’s request to let Charles stay in
DYS during his trial.
Children who are sentenced to life without parole for a childhood
crime grow up in prison. In Massachusetts, most will be admitted
to the adult prisons in DOC at age 17 or 18. The classification
system mandates that they spend their first two years in
a maximum security facility. 71 After that, good behavior may
earn them additional privileges and, eventually, transfer to a
medium security facility. While medium security facilities offer
more programs than maximum security facilities, space in the
programs is often limited and prisoners must put their names on
a wait list.
Many prisoners reported to us that it can take months or
years to get into an educational or skill development program
because prisoners serving life without parole are the lowest
priority on the waitlist. Peter T. told us that he has been on the
wait list to take a computer class for almost four years
because the class has only one spot for prisoners serving life
without parole. 72 Rules and practices appear to vary from one
Massachusetts facility to another, or even among the programs
offered. But according to the institutional order of priorities,
prisoners serving life without parole will never live freely again,
so DOC believes it does no harm to the youth nor to the
public by drastically curtailing their opportunities to learn and
develop skills.
Unlike adults, however, youth sentenced to life without parole
enter prison at an age when access to counseling, schooling and
skill development programs can have a decisive impact on their
development and futures.
Of the youth who entered the system as juveniles—when they
were under age 17—85% have passed their General Educational
Development exam. Of those who entered the system when they
were 17 years old, 62% have passed their GED exam. For this
group—those who were 17 years old at the time of the offense—
participating in GED classes may have been more challenging
if it had been a while since they were last in school. Only 31%
of the 17 year-olds were in school at the time of their arrest and
the average individual in this group dropped out of school after
ninth grade.
22

Growing Up in Prison
For William N., prison is the last of many institutional placements.
His mother was just 14 when she had William and she gave
him up for adoption when he was five years old. Fourteen foster
care placements and nine residential homes followed. Only at
age 12 did William begin attending school regularly. He was
placed directly into seventh grade. When he started high
school two years later, he could barely read the newspaper.
In prison, he took pre-GED classes and ultimately passed his
GED exam. Although he is not able to take the college-level
courses that are available to some prisoners, he borrows the
textbooks from other people whenever he can. He tries to tell
himself that “life does not stop because I have a toe tag on.” 73
This philosophy motivates him to keep going to Catholic church
services, meeting with counselors, and working a maintenance job
in the prison.
Almost everyone we spoke with experienced a difficult period
of adjustment to the prison surroundings, and to the reality that
they would spend the rest of their lives there. Before Curtis D.
It took Robert N. almost nine years to really grasp his situation.
During those years, he had a lot of disciplinary infractions and
experimented with the drugs that are available in prison. Then
he realized “my association had to change.” 77 He began spending
time with new people, he learned to read, write and speak Spanish,
and he became a Jehovah’s witness. He has not had a disciplinary
infraction in over 15 years.
We spoke with a few individuals who gained access to coveted jobs
or programs and described taking refuge in the daily participation.
Richard K. told us that he is fortunate because he was able to enroll
in a popular program to get a barber shop certificate. In contrast
to most other programs, the instructor of the barber school always
reserves two spots for people serving life without parole. Richard
explained that this is a special opportunity for him and that many
people in his position would like to be in barber school, but cannot
get in. He spends as much time as possible at the barber shop, cutting
hair and joining in the conversations. 78
“You just grow up very fast,” said Calvin P. who is now 27 years old.
Calvin had no prior juvenile record, so he had no idea how prison would
be. “I came in as a child. You want to be blind to it, but then you see
people get beat, getting raped and killing themselves.” 74
arrived at Walpole, he thought he was tough and would be able to
handle it. Then he witnessed a murder soon after he got there
and said “I was so afraid that my body shook all over.” He has
since been transferred to a medium security facility where
stabbings and other violence are less frequent. Talking about how
he comes to terms with his sentence, he told us, “I don’t want to be
the typical prisoner who finds God,” but believing in a higher
power has helped when Curtis does not feel strong enough. 75
At age 20, James R. is still the youngest person on his cell block.
He earned access to a job and a few classes relatively quickly
because of a clean disciplinary record in his first year in DOC.
Although this may outwardly be a sign that he is adjusting better
than most young people, he told us “one of the things I wish for
the most is to be able to be myself. I can’t be myself here.” But he
can already see changes in himself. “I think more in general. I read
and write more, I try to learn something new every day, to exceed
people’s expectations of me.” 76
Sam L., 16 in this photo, is serving
juvenile life without parole
for a crime committed when he
was 16. He is now 37. © 2009
Private.
These accounts reflect the complexity
of growing up in prison. One parent of a
youth sentenced to life without parole in
Massachusetts reflected on watching this
from the confines of a visiting room. “There
have been some years that I thought [SAM
L.] needed more time to think about what
did take place. He has served 22 years
behind bars in some conditions that I don’t
know if I would be able to stay alive and
handle myself in the manner that he has.
I have watched Sam grow into a man for
these last 22 years and often think about what a good son he has
become. The troubled boy I once knew has grown into someone
that I am proud to say is my son.” 79
23

SECTION IV
mark h.
Mark H., 15 in this photo, is serving
juvenile life without parole
for a crime committed when he
was 16. He is now 38. © 2009
Private.
Just days before his sixteenth birthday, Mark
was removed from a foster care placement
and sent back to his biological mother’s custody
against his wishes. The foster parents
were an elderly couple and Mark’s care had
fallen mostly to the two older foster brothers,
who bought Mark alcohol and introduced him
to their older friends. The placement was not
much, but it was better than anything else
Mark had known.
When he was three years old, Mark and
his siblings were put in foster care because
their mother was too alcohol and drug-addicted to care for her
children. For the next five years, Mark bore the brunt of frequent
beatings—with a wiffle ball bat, spatulas, clothes hangers, and
with something his 300 pound foster mother called her “beating
stick.” At the time, a caseworker from the Department of Social
Services (DSS) reported complaints about abuse from the
children, neighbors and teachers. The DSS reports also indicated
that Mark was regularly singled out for beatings because he
was prone to bedwetting and had a persistent stutter.
Mark’s mother eventually resumed contact with her children
and convinced DSS to return them to her care when she
discovered the abuse. But she was no better able to care for
her children and by the time he was 14, Mark and his two older
siblings had run away from their turbulent home. Back in DSS
custody, Mark was placed with the elderly couple. They did
not beat him, nor did they take notice that Mark was drinking
heavily, using drugs, and had found companionship with a group
of much older teenagers.
Despite this history, Mark had no juvenile record. Rather than
acting out, he responded to his environment by withdrawing and
escaping with alcohol and drugs. Less than three weeks after
being returned to his mother’s custody, Mark stabbed a homeless
man who confronted him in an alley way at night. When he ran
from the scene to find his older friends at a nearby hangout,
his friend Bill urged Mark to return to the scene and “finish the
job.” The older teenager took Mark back to the alley way, where he
gave Mark a kitchen knife. “Here’s the knife,” Bill told Mark. “Do it.”
At his transfer hearing, three mental health experts testified
that Mark was amenable to rehabilitation within the juvenile
system. However, the judge feared that the juvenile system would
soon lose jurisdiction over Mark when he turned eighteen. The
judge found that any rehabilitation would require a longer period—
four or five years—of intensive treatment. The court felt compelled
to reject the plainly inadequate period of incarceration in the
juvenile system. Mark was transferred to adult court and
sentenced to life without parole. The adult sentence ended
his chances to prove that he was rehabilitated five years—or even
20 years—later. Although he stressed that neither his age nor
his upbringing excuse the senseless and brutal crime on a
defenseless victim, Mark reflected soberly that by any objective
standard, he is not the same person he was at age 16.
Today, Mark is 36 years old. He passed his GED exam and
enrolled in the Boston University Prison Education Program,
graduating with a Bachelor of Liberal Studies Degree in
Interdisciplinary Studies—Magna Cum Laude. He has gone as
far as he can go with his education in prison. The same is true
of prison trade programs. Mark received his state certification
as a welder and upholsterer. He was selected into the highly
prized Massachusetts Correctional Industries Upholstery Program.
He took pride in telling us about his responsibilities as the
Head Upholsterer and sharing with us the Boston Globe
article that described Mark’s upholstering skills as displaying
talent and better quality than that produced by some professionals.
He also participates in the prison’s Buddy Program, assisting elderly
and disabled inmates. There is no ulterior motive, Mark says,
for the way he lives his life in prison. “I feel lucky to do the programs,
because they let me meet people—like teachers and guards—who
see who I am.” 80
“When you throw a kid away without giving him a chance ever again,
you don’t know what kind of person you threw away—you don’t know
what good you are throwing away.” – Curtis D. 81
24

Growing Up in Prison
Photograph by Steve Liss; used with permission.
25

SECTION V
Sentencing Practices Around the
Country and Around the Globe
Only the United States continues to impose life without parole
sentences on youth offenders. Careful research by human rights
advocates has revealed that, in the rest of world, there are no
known cases of youth incarcerated without hope of release. 82
The global consensus is to impose sentences on youth that reflect
the fundamental differences between children and adults by
preserving every youth’s right to rehabilitation. International law
requires such an approach. The Convention on the Rights of
the Child (CRC), adopted by the United Nations in 1990 and
ratified by every country in the world except the United States
and Somalia, expressly prohibits the sentencing of youth to
life without parole. 83 The CRC’s prohibition prompted many
signatory countries to eliminate the practice. 84
“ No child shall be subjected to torture or other cruel,
inhuman or degrading treatment or punishment.
Neither capital punishment nor life imprisonment
without possibility of release shall be imposed for
offences committed by persons below eighteen
years of age.”
– United Nations Convention on the Rights of the Child, art.
37, Nov. 20, 1989, 28 I.L.M. 1448, 1469-70 (entered into force
Sept. 2, 1990). Ratified by every country in the world except
the United States and Somalia.
The United States did ratify the International Covenant on Civil
and Political Rights (ICCPR), which mandates that sentencing
laws for juveniles must “take account of their age and the
desirability of promoting their rehabilitation.” 85 Governments
must also ensure that “every child” has “the right to such measures
of protection as are required by his status as a minor[.]” 86
The current practice of sentencing youth in the United States
to life without parole violates the ICCPR and the basic global
values codified by the treaty. Even considering the United States’
reservation to the treaty allowing it to treat juveniles as adults
“in exceptional circumstances,” the ICCPR’s United Nations
oversight committee, the Committee on Human Rights, concluded
in 2006 that the sentencing of youth in the United States to serve
life terms without parole violates the ICCPR. According to the
Committee, the sentence is not reserved only for exceptional
circumstances and itself violates a youth’s right “to such measures
of protection as are required by his status as a minor[.]” 87
Only the United States voted against a resolution by the United
Nations General Assembly in 2006 calling on states to abolish the
death penalty and life without parole for individuals under age
18 at the time of the crime. 88 Most recently, the Committee on
the Elimination of Racial Discrimination (CERD), charged with
enforcement of the International Convention on the Elimination
of All Forms of Racial Discrimination, examined the acute racial
disparities in the sentencing of youth to life without parole in the
United States. In March 2008, CERD concluded that “the persistence
of such . . . sentencing is incompatible with article 5(a) of the
Convention[,]” and recommended that the U.S. “discontinue the
use of life sentences without parole against [youth offenders], and
review the situation of persons already serving such sentences.” 89
According to research conducted by Human Rights Watch,
the federal government and 44 states permit this anomalous
sentencing practice, though only 39 states have individuals
serving the sentence. In 2008, there were 2,484 people serving
life without parole sentences in prisons around the country
for crimes that occurred when they were under age 18. 90
Massachusetts is one of 13 states where the sentence is possible
for children at least 14 and older. 91
Many of the current juvenile sentencing laws were passed in
the 1990s as part of larger state initiatives increasing the
severity of punishments for youth and establishing statutory
procedures for trying youth in adult courts. Between 1992 and
1994, 24 states either created or expanded statutes that
automatically waived juveniles into adult courts. 92
However, a closer look at national sentencing practices reveals
that six states and the District of Columbia prohibit the
imposition of life without parole sentences on youth and an
additional five states have no individuals known to be serving
the sentence for a youth crime. 93 Among the 39 states that to-
26

Sentencing Practices Around the Country and Around the Globe
day actively sentence youth to serve life without the possibility
of parole, more than 60% of such cases are the result of
sentencing practices in just five states: California, Florida,
Louisiana, Michigan and Pennsylvania. 94 As there are no youth
sentenced to life without parole in New York or New Jersey,
Massachusetts is second only to Pennsylvania in the number
of people serving the sentence in the Northeastern States.
Besides Massachusetts, only one other state—Connecticut—
automatically prosecutes children as young as 14 in adult
court, provides no reverse transfer mechanism, and imposes
a mandatory life without parole sentence.
More than a decade after the crack-cocaine epidemic and the
reaction to faulty predictions about young “super-predators,”
sentencing laws—particularly mandatory sentences—around
the country are under scrutiny to determine if they are rooted
in sound policy. Declining youth crime rates and widespread
awareness of the anatomical differences between adolescent
and adult brains are prompting a return to the goal of
rehabilitation as an essential tool for ensuring public safety.
Sentences for youth who commit murder must reflect the
suffering and harm their crimes have caused. Imposing a
lengthy sentence and providing a meaningful opportunity for
periodic review of such cases would bring Massachusetts and
the United States into line with other nations that hold youth
accountable and protect their human right to rehabilitation. 95
In 2008, the American Bar Association
passed a resolution urging states
to adopt laws consistent with the
following principles:
• Sentences for youthful offenders should generally
be less punitive than sentences for those age 18
and older who have committed comparable offenses;
• Sentences for youthful offenders should recognize
key mitigating considerations particularly relevant to
their youthful status, including those found by the
United States Supreme Court in Roper v. Simmons,
543 U.S. 551, 567-570 (2005), as well as the
seriousness of the offense and the delinquent and
criminal history of the offender; and
• Youthful offenders should generally be eligible for
parole or other early release consideration at a
reasonable point during their sentence; and, if
denied, should be reconsidered for parole or early
release periodically thereafter. 96
Photograph by Steve Liss; used with permission.
27

SECTION VI
The Cost of Locking Up
Massachusetts Youth for Life
It costs Massachusetts taxpayers more than $2.5 million dollars to incarcerate a juvenile for the rest of his or her life. Typically, youth
who receive adult sentences are transferred to the Department of Correction (DOC) at age 17. The table below illustrates the costs of
incarcerating a youth who is required by DOC’s classification rules to spend at least two years in a maximum security prison 97 and then,
assuming a perfect disciplinary record, will spend the rest of his or her life in a less costly medium security prison. In reality, the cost will
exceed $2.5 million dollars as the annual costs of caring for an elderly prisoner in his 60s, 70s or even 80s spike significantly. 98
Cost of Incarcerating a Juvenile for Life 99
Cost per year Number of years Sub-total
Maximum Security Prison $54,290.63 100 2 $108,581.26
Medium Security Prison $41,706.29 101 58 102 $2,418,964.82
total $2,527,546.08
Incarcerating until their deaths all of the 57 individuals who are currently serving life without parole for offenses that occurred when they were
under age 18 will cost the Commonwealth approximately $131 million dollars. Incarcerating until their deaths just those who were under age
17 at the time of the offense will cost the Commonwealth a total of approximately $48 million dollars.
Currently Serving Life without
parole (under 17 at offense) 103
Currently Serving Life Without
Parole (under 18 at offense) 104
Average cost to date $16,640,809.71 $40,413,395.01
Average future cost $31,529,955.24 $90,335,824.14
TOTAL $48,170,764.95 $130,749,219.15
This is money well spent if it protects neighborhoods and families from violence and destruction. If, however, a juvenile has been
rehabilitated after a lengthy sentence, the need to incapacitate him to protect public safety ends. Continuing to incarcerate all
youth regardless of their individual ability to grow and change comes at great financial cost to the Commonwealth. To put the cost in
context, consider that each year of continued incarceration in a medium security facility costs just $4,000 less than the starting salary
for a Boston Police Officer. 105
At a time of extended economic crisis for the state budget, millions of dollars can be saved by establishing a sentence for juveniles that
holds youth accountable but also restores their human right to rehabilitation.
28

Conclusion and Recommendations
Since the enactment of the current law imposing mandatory life without parole sentences on children in Massachusetts, several
important developments compel a re-examination of that practice. Juvenile homicide rates have declined markedly, belying alarmist
predictions in the 1990s that such rates would continue to climb. The United States Supreme Court struck down the use of the death
penalty for all youth under age 18. Advances in neuroscience have found striking anatomical differences between adolescent and
adult brains that confirm children’s greater capacity to change. Sentences for youth must reflect the harm they have caused while also
reflecting the acknowledged differences between children and adults. To protect public safety, it is not necessary to decide that a child
is irredeemable based on acts that occurred when he or she was as young as 14 years old. It is not necessary to spend millions of
taxpayer dollars on 50-60 years of lifetime incarceration. After a lengthy sentence, youth should be given a chance to appear before the
Parole Board and prove that they have been rehabilitated.
To that end, we making the following recommendations:
To Massachusetts legislators:
• Enact legislation establishing a meaningful opportunity for periodic review of life sentences for juveniles. Sentences for juveniles
convicted of first degree murder should mirror the life sentences imposed on adults for second degree murder, such that they
become eligible for parole after 15 years and at periodic intervals thereafter.
•
•
•
Provide for retroactive application of the new legislation.
Ensure that current victim notification and victim services provisions governing parole eligibility of adults are strictly applied to
review of life sentences for juveniles.
Eliminate mandatory sentencing for all juveniles in adult court so that they receive individualized sentencing, consistent with
juvenile court practices.
• Retain all convicted juveniles in DYS custody until their 21st birthdays so that they have access to rehabilitation, education and
job training programs. When youth are transferred from DYS to DOC, credit their successful participation in such programs
when determining their appropriate classification.
To the Governor of Massachusetts:
•
•
Support the enactment of legislation establishing a meaningful opportunity for periodic review of life sentences for juveniles.
Amend the Executive Clemency Guidelines to establish criteria for the commutation of juvenile life sentences in light
of a petitioner’s age at offense, level of participation in the crime and capacity for rehabilitation.
To the Supreme Judicial Court of Massachusetts:
• When reviewing a juvenile’s life sentence on direct appeal under MGL Ch. 278 § 33E, consider the juvenile’s age
and related factors.
To Massachusetts practitioners:
•
Establish a specialized area of practice for defending youth who face life without parole sentences.
29

Endnotes
1. According to data received from the Massachusetts Department of Correction in April 2009. Email from Paul Heroux, Director, Research
and Planning Division, Department of Correction (Apr. 6, 2009) (“Department of Correction Data, Apr. 2009”) (on file).
2. MGL Ch. 119 § 74 (“The juvenile court shall not have jurisdiction over a person who had at the time of the offense attained the age of
fourteen but not yet attained the age of seventeen who is charged with committing murder in the first or second degree.”). All seventeen
year-olds are considered adults under the Massachusetts criminal laws.
3. See MGL Ch. 119 § 52 (conferring delinquency jurisdiction on the Juvenile Court Department for children between the ages of 7 and 17).
This report addresses life without parole sentences imposed on youth for crimes that occurred when they were under age 18—the age of
majority in 39 states and under international law. See also Melissa Sickmund, Office of Juvenile Justice and Delinquency Prevention, National
Report Series: Juveniles in Court 5 (June 2003), available at
http://ojjdp.ncjrs.org/Publications/PubResults.aspsei=86&ti=2&si=7&kw=&strItem=&strSingleItem=&p=topic&PreviousPage=SearchResults.
In 2008, Connecticut and Illinois raised the age of juvenile court jurisdiction to include any youth under age 18.
4. MGL Ch. 265 § 2 (establishing mandatory imposition of life sentence without eligibility for parole for persons convicted of first degree murder).
5. On appeal, the Supreme Judicial Court has authority under MGL Ch. 278 § 33E to order a new trial or to reduce a first degree murder verdict
to a lesser degree of guilt if it finds that the verdict is against the weight of the evidence or such relief is in the interests of justice. Modification
of a jury’s verdict in this manner is exceedingly rare.
6. Amnesty Int’l & Human Rights Watch, The Rest of Their Lives: Life Without Parole for Youth Offenders in the United States in 2008 2 (2008)
(hereinafter “The Rest of Their Lives (2008)”) (updating report first published in 2005, The Rest of Their Lives: Life Without Parole for Child Offenders
in the United States).
7. Michelle Leighton & Constance de la Vega, Sentencing Our Children to Die in Prison: Global Law and Practice (2007), available at
http://www.usfca.edu/law/home/CenterforLawandGlobalJustice/Juvenile%20LWOP.html (noting, in February 2008, confirmation from
Israel that children given life sentences in that country are entitled to parole review, making the United States the only country in the world
known to issue the sentence or to have children serving the sentence).
8. See Leighton & de la Vega, supra note 7, at Summary of State Law. As noted by Leighton and de la Vega, it is possible in many states for
children as young as 14—or even younger—to receive life without parole. Id. at At a Glance. In Pennsylvania, for example, a child of any age
charged with murder is automatically tried in adult court unless the child can show that transfer to the juvenile court serves the public interest.
See 42 Pa. C.S.A. § 6322 (West 2000 & Supp. 2005) (murder charges against child excluded from juvenile court, but criminal court can return
case to juvenile court based on child’s showing by preponderance of the evidence that transfer serves the public interest), 42 Pa. C.S.A. § 6302
(West 2000 & Supp. 2005) (“child” is anyone under age 18). If the child remains in adult court, life without parole is mandatory upon
conviction. 18 Pa. C.S.A. § 1102 (West 1998 & Supp. 2005) (mandatory minimum punishment for murder is life imprisonment), 61 Pa. C.S.A.
§ 331.21 (West 1999 & Supp. 2005) (no possibility of parole).
9. It is rare to couple absolute statutory exclusion from juvenile court or mandatory transfer with a mandatory life without parole sentence in
adult court for youth as young as 14. Like Massachusetts, Connecticut imposes a mandatory life without parole sentence for capital murder
and has mandatory transfer to adult court for children 14 and older charged with murder. See Leighton & de la Vega, supra note 7, at Summary
of State Law (citing Conn. Gen. Stat. §§ 53a-35a (West 2001) (mandatory sentence of life without parole or death for capital murder), Conn.
Gen. Stat. Ann. § 46b-127 (West 2004 & Supp. 2005) (mandatory transfer to adult court for children age 14 and older for enumerated
felonies including murder)). There is no discretion to try these cases in juvenile court and no reverse transfer mechanism.
10. Id. (citing LSA-R.S. 14:30, 14.30.1 (Westlaw 2006) (mandatory life without parole for first and second degree murder), La. Child. Code
Ann. art. 305 (West 2004) (juveniles 15 or older charged with murder and certain other felonies must be tried as adults); Wash. Rev. Code Ann.
§ 10.95.030 (West 2005) (mandatory death or life without parole for aggravated first degree murder), Wash. Rev. Code Ann. § 13.04.030
(Westlaw 2006) (exclusive adult court jurisdiction over juveniles 16 or older charged with violent offenses, including murder)).
11. There is no one serving the sentence in Maine or Vermont. Numbers in the other New England states are low: Connecticut: 9;
New Hampshire: 3; Rhode Island: 2. See The Rest of Their Lives (2008) 3, Fig. 1.
12. Id. The Northeastern states include Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey and
Pennsylvania. Pennsylvania has sentenced 444 youth to serve life without parole.
13. MGL Ch. 119 § 61 (1988 ed.) (amended 1990). ‘
14. MGL Ch. 119 § 61 (Supp. 1991).
15. MGL Ch. 119 § 58 (extending jurisdiction of the Department of Youth Services beyond age 18, to age 21).
16. MGL Ch. 120 § 17 (1984 ed.), later amended by St. 1990, ch. 267 § 7.
17. MGL Ch. 119 § 61 (1992); 1991 Mass. Act Ch. 488 § 2.
18. MGL Ch. 119 § 72 (1992).
19. John DiIulio, Jr., The Coming of the Super-Predators, Weekly Standard, Nov. 27, 1995, at 23.
30

ENDNOTES
20. Task Force on Juvenile Justice, Boston Bar Association, The Massachusetts Juvenile Justice System of the 1990s: Re-Thinking a National Model, 21 New
Eng. J. on Crim. & Civ. Confinement 339 (1995).
21. The Task Force concluded that an important rationale for mandatory minimum sentences and ease of transfer to adult court was the need
for retribution, separate and apart from society’s responsibility and ability to rehabilitate youth. Chief Legal Counsel to then-Governor
William F. Weld, Robert J. Cordy, told the Task Force: “Just because they [juvenile offenders] may become law-abiding, productive citizens is not
enough. There needs to be a balancing of justice [i.e. a community sense of satisfaction] with public safety.” Id. at n33.
22. See Email from James Alan Fox, Lipman Family Professor of Criminal Justice, Northeastern University (Oct. 8, 2008, June 19, 2009) (on file)
(enclosing data from the Federal Bureau of Investigation’s Supplementary Homicide Reports concerning juvenile homicide rates in
Massachusetts from 1976-2007). See discussion infra p. 18 and note 48.
23. There is some evidence that this imbalance between the punishments available in juvenile court and adult court resulted in a greater number of
transfers. After enactment in 1991 of the mandatory minimum sentences in juvenile court, the number of transfer hearings rose, but
proportionally less than half as many juveniles were transferred to adult court—11% in 1991 as compared to 4% in 1992. Id. at 11-12.
24. See Shelley Murphy, Commutation plea carries a political risk for Patrick, The Boston Globe, Feb. 27, 2008, available at
http://www.boston.com/news/local/articles/2008/02/27/commutation_plea_carries_a_political_risk_for_patrick/ (accessed Aug. 12, 2009).
25. Roper v. Simmons, 543 U.S. 551, 569 (2005).
26. Children’s Law Center interview with David D. in Boston, Massachusetts (May 12, 2009).
27. Children’s Law Center interview with Michael C. in Lynn, Massachusetts (Apr. 9, 2009). Unless otherwise noted, all of the statements from
Michael in this section were obtained during the interview.
28. Letter from Michael C. to Children’s Law Center (May 2009).
29. Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the
Juvenile Death Penalty, 58 Am. Psychologist 1009, 1011-12 (2003).
30. Elizabeth S. Scott & Laurence Steinberg, Adolescent Development and the Regulation of Youth Crime, in 18 The Future of Children: Juvenile Justice 15,
20 (Fall 2008). For example, adolescent performance on a task called Delay Discounting demonstrated that adolescents are more inclined to
value immediate consequences and discount future consequences. When asked to choose between receiving a large monetary reward at some
future time or a smaller reward sooner, adolescents were more likely to take less money sooner, regardless of the amounts of money offered or
the time periods involved. Elizabeth S. Scott & Laurence Steinberg, Rethinking Juvenile Justice 47-48 (2008) (hereinafter “Scott, Rethinking
Juvenile Justice”).
31. L.P. Spear, The Adolescent Brain and Age-Related Behavioral Manifestations, 24 Neuroscience & Biobehav. Revs. 417, 420 (2000).
32. Nat’l Inst. of Mental Health, U.S. Dep’t of Health and Human Services, Publication No. 04-4929, Teenage Brain: A Work in Progress (2004).
Available at http://www.nimh.nih.gov/health/publications/teenage-brain-a-work-in-progress-fact-sheet/index.shtml.
33. Nitin Gogtay et. al., Dynamic Mapping of Human Cortical Development During Childhood Through Early Adulthood, 101 Proc. Nat’l Acad. Sci. 8174,
8177 (2004).
34. Id.
35. Staci A. Gruber & Deborah A. Yurgelun-Todd, The Mind of a Child: The Relationship Between Brain Development, Cognitive Functioning,
and Accountability Under the Law: Neurobiology and the Law: A Role in Juvenile Justice, 3 Ohio St. J. Crim. L. 321, 328-30 (2006).
36. Sarah Dunston & B.J. Casey, What Have We Learned About Cognitive Development From Neuroimaging, 44 Neuropsychologia 2149, 2152-54 (2006).
See also Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment in Adolescence: Why Adolescents May Be Less Culpable Than
Adults, 18 Behav. Sci. & L. 741, 756-59 (2000).
37. See Nancy Shute, How to Deploy the Amazing Power of the Teen Brain, U.S. News and World Report, Nov. 26, 2008, available at
http://health.usnews.com/articles/health/brain-and-behavior/2008/11/26/how-to-deploy-the-amazing-power-of-the-teen-brain.html
(accessed Feb. 20, 2009); David Bjerklie, How the Teen Brain Works, Time Magazine, Sept. 8, 2006, available at
http://time.blogs.com/daily_rx/2006/09/attack_of_the_t.html (accessed Feb. 20, 2009); Frontline: Inside the Teenage Brain (PBS Television
broadcast Jan. 31, 2002), available at http://www.pbs.org/wgbh/pages/frontline/shows/teenbrain/ (accessed Feb. 20, 2009).
38. To 16 year-olds, we extend the adult privilege of the right to drive an automobile, but the recent lessons of brain science confirm every parent’s
anxiety about a child getting behind the wheel. Car insurance companies like Nationwide Auto Insurance and Allstate Insurance Company have
begun educating their customers about adolescent risk-taking and the differences between adult and adolescent brains.
See, e.g., www.allstate.com/content/refresh-attachments/Brain-Ad.pdf.
39. Scott, Rethinking Juvenile Justice, supra note 30, at 53.
40. Simmons, 543 U.S. at 570.
41. MGL Ch. 119 § 53.
42. Thompson v. Oklahoma, 487 U.S. 815, 835 (1988). The Court continued:
The basis for this conclusion is too obvious to require extended explanation. Inexperience, less education, and less intelligence make the
teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much moreapt to be motivated by
mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities
of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult. Id.
31

43. See MGL Ch. 119 § 52 (conferring delinquency jurisdiction on the Juvenile Court Department for children between the ages of 7 and 17).
44. The figures here are based on data received from the Massachusetts Department of Correction in April 2009. Email from Paul Heroux,
Director, Research and Planning Division, Department of Correction (Apr. 6, 2009) (“Department of Correction Data, Apr. 2009”) (on file).
The Department of Correction provided aggregated numerical information, but would not provide identifying information concerning the
individuals serving juvenile life without parole sentences. The Children’s Law Center independently collected and reviewed public records
to identify as many of the 57 individuals as possible. Based on our research, we sent questionnaires to 47 people. We interviewed all but two
of the 44 people who responded to our questionnaire. Data collected from the Department of Correction, questionnaire responses and
interviews were supplemented by review of individual files, appellate records, and news sources.
45. Department of Correction Data, Apr. 2009.
46. Population data based on 2000 Census Data for Massachusetts as compiled by Kids Count in Table 6, Population Totals by Race and Hispanic
Origin in the 2000 Census, available at
http://www.kidscount.org/cgi-bin/aeccensus.cgiaction=profileresults&area=25S&areaparent=00N&section=2&printerfriendly=1.
47. Research and Planning Division, Massachusetts Department of Correction, January 1, 2008 Inmate Statistics 4, Table 2 (May 2008), available at
http://www.mass.gov/pageID=eopsterminal&L=4&L0=Home&L1=Law+Enforcement+%26+Criminal+Justice&L2=Prisons&L3=Research
+Data&sid=Eeops&b=terminalcontent&f=doc_research_and_planning_january_1_population_description&csid=Eeops.
48. The Federal Bureau of Investigation’s Supplementary Homicide Reports (SHR) compile data concerning homicide victims and homicide
offenders from 1976-2007, including age, sex and race data. The Children’s Law Center obtained SHR data specifically pertaining to
Massachusetts youth from Professor James Alan Fox at Northeastern University, who compiles and analyzes the SHRs for the Bureau of Justice
Statistics. See Email from James Alan Fox, Lipman Family Professor of Criminal Justice, Northeastern University (Oct. 8, 2008) (on file).
49. By “juvenile record” we mean a prior juvenile delinquency adjudication or a “CWOF,” a juvenile court case that has been continued without
a finding.
50. Massachusetts General Laws Ch. 265 § 1 defines murder in the first degree as “murder committed with deliberately premeditated malice
aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with [] imprisonment
for life.” The third kind of first degree murder is known as felony murder. Crimes punishable with life imprisonment are those that are
“inherently dangerous to human life” but do not result in a homicide. In Massachusetts, these are crimes such as armed robbery, armed assault
and rape. If a homicide occurs during the course of such a felony, anyone who is found to have intended to commit the felony is also guilty of
first degree murder, regardless of his or her level of participation in the killing.
51. Children’s Law Center interview with Dillon P. in prison in Massachusetts (Dec. 17, 2008).
52. Commonwealth v. [Mark H.] , 407 Mass. 434, 436 (1990).
53. Chris Faraone, The punch that took two lives, The Boston Phoenix, Aug. 5, 2009, available at
http://thephoenix.com/Boston/News/87700-punch-that-took-two-lives/rel=inf (accessed Aug. 6, 2009).
54. Email from Dan-Jarle Køhler Raustein to Children’s Law Center (June 13, 2009).
55. Id.
56. Amnesty Int’l & Human Rights Watch, The Rest of Their Lives: Life Without Parole for Child Offenders in the United States 32-34 (2005) (hereinafter
“The Rest of Their Lives (2005)”).
57. Children’s Law Center interview with Richard K. in prison in Massachusetts (Oct. 1, 2008).
58. Commonwealth v. [Victor L.] , Finding and Order re: Commonwealth’s Motion to Transfer, Dorchester District Court, dated Sept. 30, 1991.
59. Children’s Law Center interview with Robert N. in prison in Massachusetts (Jan. 28, 2008).
60. Children’s Law Center interview with Chris L. in prison in Massachusetts (July 24, 2008).
61. Children’s Law Center interview with Gregory L. in prison in Massachusetts (Nov. 27, 2007).
62. Children’s Law Center interview with Steven G. in prison in Massachusetts (Aug. 5, 2008).
63. Children’s Law Center interview with Joseph R. in prison in Massachusetts (July 24, 2008).
64. Children’s Law Center interview with Norman B. in prison in Massachusetts (July 24, 2008).
65. Children’s Law Center interview with Charles T. in prison in Massachusetts (Jan. 24, 2008).
66. Children’s Law Center interview with Frank A. in prison in Massachusetts (July 15, 2008).
67. Children’s Law Center interview with Richard K. in prison in Massachusetts (Oct. 1, 2008).
68. Id.
69. Richard E. Redding, Office of Juvenile Justice and Delinquency Prevention, Juvenile Transfer Laws: An Effective Deterrent to Delinquency
7 (August 2008), available at http://www.ojjdp.ncjrs.gov/publications/PubAbstract.asppubi=242419.
70. Children’s Law Center interview with Charles T. in prison in Massachusetts (Jan. 24, 2008).
71. It was common for the individuals we spoke with to be admitted to MCI-Cedar Junction at Walpole at age 17 or 18 and kept there for a
significant portion of their first two years. We learned from our interviews that there are currently few programs available at this facility:
a television GED course and computerized commercial driving course.
72. Children’s Law Center interview with Peter T. in prison in Massachusetts (July 18, 2008).
73. Children’s Law Center interview with William N. in prison in Massachusetts (Oct. 30, 2008).
32

ENDNOTES
74. Children’s Law Center interview with Calvin P. in prison in Massachusetts (July 9, 2008).
75. Children’s Law Center interview with Curtis D. in prison in Massachusetts (July 11, 2008).
76. Children’s Law Center interview with James R. in prison in Massachusetts (Jan. 25, 2008).
77. Children’s Law Center interview with Robert N. in prison in Massachusetts (Jan. 28, 2008).
78. Children’s Law Center interview with Richard K. in prison in Massachusetts (Oct. 1, 2008).
79. Letter from Edward L., father of Sam L., to Children’s Law Center (Jan. 2009).
80. Children’s Law Center interview with Mark H. in prison in Massachusetts (Dec. 13, 2007).
81. Children’s Law Center interview with Curtis D. in prison in Massachusetts (July 11, 2008).
82. Leighton & de la Vega, supra note 7 (noting, in February 2008, confirmation from Israel that children given life sentences in that country are
entitled to parole review, making the United States the only country in the world known to issue the sentence or to have children serving the sentence).
83. United Nations Convention on the Rights of the Child, art. 37, Nov. 20, 1989, 28 I.L.M. 1448, 1469-70 (stating that “[n]either capital
punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of
age”). See also Leighton & de la Vega, supra note 7, at 14 & n100-01 (noting General Comments issued by the Committee on the Rights of the
Child in 2007 that clarify further the CRC’s prohibition of juvenile life without parole sentences).
84. See The Rest of Their Lives (2005) at 104-05 & n311.
85. International Covenant on Civil and Political Rights (ICCPR), art. 14(4), Dec. 19, 1966, 999 U.N.T.S. 171.
86. Id. at art. 24(1).
87. Leighton & de la Vega, supra note 7, at 15-18.
88. Id. at 15-16.
89. The Rest of Their Lives (2008) at 9. Article 5(a) of the Convention on the Elimination of All Forms of Racial Discrimination requires parties to
the Convention to “eliminate racial discrimination . . . notably in the enjoyment of . . . the right to equal treatment before the tribunals and
all other organs administering justice.” International Convention on the Elimination of All Forms of Racial Discrimination, art. 5(a),
Dec. 21,1965, 660 U.N.T.S. 195, adopted by the United States on Nov. 20, 1994.
90. The Rest of Their Lives (2008) at 3, Fig. 1.
91. Leighton & de la Vega, supra note 7, at 5.
92. Scott, Rethinking Juvenile Justice, supra note 30, at 96-97.
93. See Leighton & de la Vega, supra note 7, at 5 (Alaska, Colorado, Kansas, Kentucky, New Mexico, Oregon and the District of Columbia do not
allow life without parole sentences for youth; there are no known cases in Maine, New Jersey, New York, Utah or Vermont).
94. The Rest of Their Lives (2008) at 3, Fig. 1.
95. A federal bill pending in the House of Representatives would accomplish this objective by requiring the federal system and state governments to
establish a meaningful opportunity for periodic review of all juvenile cases after 15 years. See Juvenile Justice Accountability and Improvement
Act of 2009, H.R. 2289, available at http://thomas.loc.gov/cgi-bin/query/zc111:H.R.2289.IH:.
96. American Bar Association 2008 Report with Recommendation #105C at 1 (Policy adopted Feb. 2008), available at
http://www.abanet.org/leadership/2008/midyear/updated_reports/hundredfivec.doc..
97. See Objective Classification System, Massachusetts Department of Correction (Feb. 2006) (providing for non-discretionary classification override
that restricts prisoners serving life without parole to maximum security facilities for the first two years of incarceration).
98. Youth serving life without parole will grow old in Massachusetts prisons, contributing to the costly “graying” of the prison population. Elderly
prisoners tax medical, mental health and programmatic resources. See Christopher Calia, Massachusetts Dep’t of Corr. Research and Planning
Div., Age of Custody Population 1998-2007 3 (Dec. 2007). The Department of Correction was not able to quantify for the Children’s Law
Center the added costs of maintaining elderly prisoners. Estimates for housing an aging prisoner have ranged from $69,000 a year to three times
the cost of the typical adult prisoner. See Marc Mauer et al., The Sentencing Project, The Meaning of Life: Long Prison Sentences in Context 25
(May 2004), available at http://www.sentencingproject.org/Admin/Documents/publications/inc_meaningoflife.pdf; B.J. Anno, Nat’l Inst.
of Corrections, Correctional Health Care: Addressing the Needs of Elderly, Chronically Ill, and Terminally Ill Inmates (2004), available online
at http://www.nicic.org/Library/018735.
99. All costs are in today’s dollars.
100. See Email from Kyra Silva, Director, Budget Office, Massachusetts Department of Correction (Jan. 13, 2009) (estimating FY09 average cost per
offender at a maximum security facility to be $54,290.63) (on file). Projected amounts are based on today’s dollars and not adjusted for inflation.
101. See Email from Kyra Silva, Director, Budget Office, Massachusetts Department of Correction (Jan. 13, 2009) (estimating FY09 average cost per
offender at a medium security facility to be $41,706.29) (on file). Projected amounts are based on today’s dollars and not adjusted for inflation.
102. This number reflects the remaining life expectancy of a 17 year-old male living in Massachusetts, less two years spent in a maximum security
prison. See Massachusetts Dep’t of Public Health, Massachusetts Deaths 2007 Fig. 1 (2009) (“Massachusetts Deaths 2007”), available online at
http://www.mass.gov/Eeohhs2/docs/dph/research_epi/death_report_07.pdf.
103. Based on average current age of 36 years; life expectancy of 36 remaining years. See Massachusetts Deaths 2007 at Fig. 1.
104. Based on average age of 34 years; life expectancy of 38 remaining years. Id.
105. See Entrance Requirements for the Boston Police Department Academy,
http://www.cityofboston.gov/POLICE/exam.asp (listing among benefits base salary of $46,000) (accessed on June 4, 2009).
33

The Children’s Law Center is grateful to McDermott Will & Emery LLP and to the Shaw Foundation for their generous support of this publication.
McDermott Will & Emery recognizes and appreciates the need to give back to the communities of which it is a part and to assist those who are unable to afford legal services.
Through its Kids First Initiative, McDermott provides at-risk children across the United States and abroad with legal representation for a variety of needs, including special
education, school access and registration, school discipline, government benefits, adoption, guardianship, guardian ad litem services for children in the abuse and neglect
system, and law reform and legislative policy. For more information about McDermott’s pro bono program, please see http://www.mwe.com/info/probono/.
Made possible by a grant from
the McDermott Will & Emery
Charitable Foundation
Cover: Photograph by Steve Liss; used with permission.

Children’s Rights
Children’s Rights Litigation Committee
American Bar Association
Fall/Winter 2009 Vol. 11, Issue 1
Life after Roper: Using Adolescent Brain Development in Court
By Wendy Paget Henderson Esq.
Over the past decade, scientific
evidence regarding adolescent
brain development has grown
exponentially. Our understanding of how
the brain develops has fundamentally
shifted, from the belief that the brain is
fully developed at birth to the knowledge
that the brain undergoes important structural
changes through the mid-20s. This
research has led to a number of questions
about how to effectively treat youth in
the criminal justice system, and what it
would look like to provide treatment that
mirrored their developmental stage.
Over the same decade, the ramifications
of the criminal justice reforms of
the mid-90s, when nearly every state
made it easier to try youth in adult court
and incarcerate youth in adult prisons,
have become clear. The research has
shown that trying youth as adults is
counterproductive as a way of promoting
community safety. Youth who are tried
in adult court recidivate more quickly
and with more serious crimes than those
tried in juvenile court. The results of the
studies from the U.S. Centers for Disease
Control and Prevention and the U.S.
Department of Justice, have been the
same: Trying youth as adults simply does
not work. 1 With this wealth of research
in hand, attorneys have been working on
moving adolescent brain development
front and center into the juvenile and
criminal court.
Continued on page 5
Providing High-Quality Representation for LGBTQ
Youth in Foster Care
By Mimi Laver
It is hard to be an adolescent. It is
even more difficult to be an adolescent
who is placed in foster care.
Imagine, then, the struggles a lesbian,
gay, bisexual, transgender, or questioning
(LGBTQ) youth who is in foster
care might face. LGBTQ youth are often
kicked out of their homes when they
disclose their LGBTQ status to their
parents. They engage in risky behaviors
at a greater rate than their non-LGBTQ
peers. They are often disrespected, or
worse, while in foster care and involved
in the child welfare legal system. In fact,
research shows that
• More than 4–10 percent of youth in
state care are LGBTQ identified.
• Twenty-five to 40 percent of homeless
youth are LGBTQ. (Half of gay
or bisexual young men who are forced
out of their homes because of sexual
orientation engaged in prostitution to
survive.)
• LGBTQ youth experience high
rates of substance abuse due to
In this Issue
2 Message from the Chairs
12 Ensuring Equal Educational Opportunities
16 Juvenile Regional Services: Rebuilding a Broken Juvenile Defender System
18 Covenant House Provides Critical Legal Services to Homeless Youth
stigmatization. (Sixty percent of gay
and bisexual young men are substance
abusers, compared with less than 4
percent of youth in the population as
a whole.)
• Thirty percent of LGBTQ youth
reported physical violence by family
after coming out.
• Eighty percent of LGBTQ students
reported verbal harassment at school.
(Seventy percent felt unsafe; 28 percent
dropped out.)
Continued on page 8
Published in Children’s RIghts, Volume 1, Number 1, Fall/Winter 2009. © 2009 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Life after Roper
(Continued from page 1)
Translating the Research
Research on adolescent development
can be used to support the propositions
that adolescents are more reckless than
adults, more susceptible to peer influence,
less able to judge the risks of their
behavior, less able to envision the longterm
consequences of their actions, and
generally less culpable than the typical
adult. 2 However, science has not progressed
to the point where an individual
adolescent’s brain scan can be used to
back up any one of these propositions
in an individual case. 3 As attorneys, the
challenge becomes taking the general
principles of adolescent development
and effectively integrating them into
a specific case, either as a defense or a
mitigation factor in sentencing. The
following discussion is a snapshot of
how recent brain research is currently
being used around the country to bolster
arguments that adolescents are different
from adults and should be treated
differently.
A Word about Competence
Competence is a low bar, but many
adolescents are still not able to make it
over. The arguments that follow assume
that competence has been established.
It is imperative to ensure competence
before moving forward. A recent study
by the MacArthur Foundation Research
Network on Adolescent Development
and Juvenile Justice found that younger
teens were nearly three times more likely
than older adults to be impaired in their
understanding of the court process. 4
Sentencing Mitigation
Adolescent development science
indicates that youth are not the most
culpable of criminals. The U.S.
Supreme Court confirmed this in Roper
v. Simmons. The Court found that the
differences between adolescents and
adults in their impetuous nature, susceptibility
to peer pressure, and transient
personality “. . . render suspect any
conclusion that a juvenile falls among
the worst offenders.” 5
Similarly, it can be argued that in
states that offer a range of sentencing
options for crimes, juveniles should be
on the lesser end of the sentencing scale.
The case of Illinois v. Clark illustrates this
type of argument. 6 In Clark, an adolescent
defendant was convicted of firstdegree
intentional homicide and sentenced
to 46 years in prison, within the
statutory sentencing range but closer
to the higher penalty end of the range.
At trial, the defense called Dr. Rubin
Gur, a leading neuropsychologist and
national expert on adolescent brain
development. He testified to the impact
of adolescent brain development on
behavior. Although he had not studied
the defendant’s brain, he testified that
there was “very little disagreement” that
adolescents have a hard time changing
the course of their behavior because they
are unable to contextualize their actions.
The trial court found the testimony
about brain development fascinating,
but decided that it was not relevant
because the neuropsychologist had not
individually assessed the defendant. The
appellate court disagreed and reduced the
sentence 10 years (to 36 years), finding
that the trial court did not fully consider
the mitigating evidence presented about
the adolescent’s age and development.
Duress or Coercion
Adolescent brain development may also
be used to bolster a defense of duress or
coercion. In the Connecticut Supreme
Court case State v. Heinemann, 7 the
defense of duress was raised with a focus
on adolescent development. The defendant
argued that the trial court “failed
to provide a jury instruction that would
have allowed the jury to factor [the
defendant’s] age into the defense
. . . with an eye toward accounting for
the difference in how adolescents
evaluate risks.” 8 In this instance, the
higher court acknowledged that adolescents
are different from adults:
We understand the defendant’s
plea, acknowledge that juveniles
often have more immature
decision-making capability, and
recognize the literature supporting
the notion that juveniles are
vulnerable to all sorts of pressure,
including, but not limited to,
duress. 9
However, the court found that if they
were to acknowledge adolescent differences,
that would require rewriting the
entire Penal Code. A requirement to
consider the age of young offenders to
understand their culpability with relation
to their particular vulnerabilities
and susceptibility to peer pressure would
be a significant departure from the Penal
Code. The court declined to make such
a drastic change in the Penal Code,
suggesting that those types of changes
would have to come from the legislature.
10
The court went on to find that
adolescents may have particular difficulty
recognizing the option to remove
themselves from the situation (a typical
component of most coercion or duress
statutes). However, the legislature’s
determination in Connecticut that
16-year-olds should be treated as adults
for criminal liability purposes in all cases
was dispositive on the issue. 11
Although the Heinemann court
declined to adopt a new rule about adolescents’
particular vulnerabilities, they
did provide good language about the differences
between adolescents and adults.
In other states where there is an age of
adult court jurisdiction of 18 and a juvenile
is transferred or waived into adult
court, this argument may be more viable.
Alternatively, an argument can still be
made that the reasonable adolescent
Published in Children’s RIghts, Volume 1, Number 1, Fall/Winter 2009. © 2009 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

would not be able to see an escape route
from a situation, even if the reasonable
adult could discern an alternate solution
or solutions.
Reckless or Reasonable
One of the most obvious places where
our legal system fails to account for
adolescent development is in the assessment
of recklessness. Scientific research
has confirmed the general understanding
that adolescents take more risks
than adults do, and fail to perceive
the riskiness of their behavior due to a
failure to weigh long-term consequences
as heavily as short-term gains. 12 Many
statutory definitions of recklessness
require an awareness of the level of
risk. For example, the jury instructions
for first-degree reckless homicide in
Wisconsin include a requirement that
defendants be aware that their conduct
create an unreasonable and substantial
risk of death or great bodily harm. The
requirement for a subjective understanding
of the risk has proven to be an area
ripe for challenge with adolescents.
In J.R. v. Alaska, the question for the
court of appeals in Alaska was whether
the court should measure a 15-year-old
against a reasonable juvenile or a reasonable
adult standard. 13 In this case, a high
school student shot and killed two people
at the school. The State uncovered that
the defendant in this case, J.R., taught
the student how to use a shotgun and
urged him to carry out the shooting. J.R.
was charged with second-degree murder
on the theory he had knowingly engaged
in behavior manifesting extreme indifference
to the value of human life. The
question on appeal was whether J.R.’s
recklessness should be measured against a
juvenile or adult rubric.
The trial court found that because J.R.
was engaged in an adult activity, conduct
with a firearm, he should be held to a
reasonable adult standard. The Appellate
court reversed. The juvenile argued that
he was not serious about actually helping
commit murder, and that it was reasonable
for him to believe that his classmate
was not actually going to commit murder,
but was instead just bragging.
We are unaware of any authority to
support the claim that J.R. should
be held to an adult standard for his
actions of showing [his classmate]
how to use a shotgun and encouraging
him to carry out the plan to take
the shotgun to school and commit
murder. . . . It was undisputed that
J.R. knew that shooting people
with a shotgun was dangerous. The
dispute was whether J.R. knew or
reasonably should have known that
[his classmate] would go beyond
mere words and would actually
proceed to gun people down at the
school. To resolve this issue, the jury
should have evaluated J.R.’s level
of care against the standard reasonably
expected of a juvenile—not an
adult. 14
One of the most
obvious places where
our legal system fails to
account for adolescent
development is in the
assessment of
recklessness.
Louisiana decided similarly on the issue,
essentially creating a reasonable juvenile
standard of care. 15 Minnesota has
two different standards—the reasonable
juvenile in juvenile court and the
reasonable adult in adult court. 16
Mental Responsibility
The statutes for mental responsibility
vary nationally, but there is an argument
that for those states that have adopted
the M’Naghten test, adolescence may
fall into an exception to M’Naghten. In
State v. McLaughlin, 17 the court heard
significant testimony that in light of
recent developments in adolescent
brain research, the application of the
M’Naghten rule to adolescent defendants
violates the due process clause of
the Minnesota Constitution.
The adolescent development literature
has well documented the impulsivity
of youth. It follows that many adolescents
would fall under the irresistible
impulse test within the M’Naghten
rule. That is, “a person is not criminally
responsible for an act if mental disease or
defect prevented that person from controlling
potentially criminal conduct.” 18
In essence, because adolescence is a time
of continual irresistible impulses, they
fall within the M’Naghten definition of
not being criminally responsible.
The issue was not decided in the
McLaughlin case because it had not been
raised at the lower court level. The
intersection between normal adolescent
development and the mental disease or
defect defenses seems ripe for further exploration
in the courts. Certainly, there
is an argument that adolescence is not a
perpetual state of mental illness; however,
the measures by which adult mental
disease and defect are judged may be
inadequate to gauge mental responsibility
in adolescents.
More to Come
As brain science continues to become
accepted in courts, and as we learn more
about adolescent development, there
will be other challenges to how youth
can fairly be held accountable in court,
while taking into account their particular
developmental stage. Maturity
has long been a component of statutory
considerations of who should be waived
(or transferred) into adult court, and
which juveniles should be returned (or
reverse waived) into juvenile court.
Brain development has further implications
for imperfect self defense, 19 the
infancy defense, 20 and other areas of law
where juveniles are currently being held
Published in Children’s RIghts, Volume 1, Number 1, Fall/Winter 2009. © 2009 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

to adult standards of conduct. Ages of
jurisdiction for juvenile court, both lower
and upper, have been questioned around
the country in light of brain science.
In the years to come, a body of law
will develop outlining the boundaries
of how youth will be held accountable
in developmentally appropriate ways.
By understanding how brain development
affects the actions of youth, we can
better devise ways to keep communities
safe from dangerous youth, while not
foreclosing future opportunities for youth
who are simply acting impulsively and
recklessly—in other words, acting like
teenagers. n
Wendy Paget Henderson Esq. is a Juvenile
Justice Policy Analyst for the Wisconsin
Council on Children and Families. Wendy
can be contacted at whenderson@wccf.org.
Endnotes
1. R. Redding, Juvenile Transfer Laws: An
Effective Deterrent to Delinquency U.S. Department
of Justice, Juvenile Justice Bulletin,
August 2008.
R. Hahn, Effects on Violence of Laws and
Policies Facilitating the Transfer of Youth from the
Juvenile to the Adult Justice System: A Report
on the Recommendations of the Task Force on
Community Preventive Services, Morbidity and
Mortality Weekly Report, Nov. 2007.
2. See generally, R. Dahl, (2004). Adolescent
Brain Development: A Period of Vulnerabilities
and Opportunities. Annals of New York
Academy of Sciences, 1021. L. Steinberg,
(2008). Adolescence (8th ed.). New York:
McGraw-Hill.
3. S. Grafton, Brain Scans Go Legal, Scientific
American Mind, December/January
2007, 30–37.
4. MacArthur Research Network on
Adolescent Development and Juvenile Justice.
(2006). Issue Brief 1: Adolescent Legal Competence
in Court, available at www.adjj.org/
downloads/9805issue_brief_1.pdf.
5. Roper v. Simmons, 543 U.S. 551 at 570.
6. Illinois v. Clark, 374 Ill. App.3d 50
(2007).
7. State v. Heinemann, 920 A.2d 278
(2007).
8. Id. at 281, emphasis added.
9. Id. at 308. The Court included in footnote
19 of its opinion a comprehensive summary of
current adolescent brain research findings.
10. Id. at 309.
11. Connecticut had an age of adult court
jurisdiction of 16 at the time of the opinion.
Since the writing of the opinion, Connecticut
changed its law to return 16- and 17-year olds
to the original jurisdiction of the juvenile
court, effective January 1, 2010.
12. D. Keating, (2004). “Cognitive and
brain development.” In R. Lerner, & L. Steinberg
(Eds.) Handbook on Adolescent Psychology
(2d ed.) 45–84. New Jersey: John Wiley &
Sons.
13. J.R. v. State of Alaska, 62 P.3d 114
(2003).
14. Id. at 121.
15. In re Malter, 508 So.2d 143 (1987).
16. In re S.W.T., 277 N.W.2d 507 (1979)
(in juvenile proceedings, a juvenile standard
of care applies). Huebner v. Koelfgeren, 519
N.W.2d 488 (Minn. App. 1994).
17. State v. McLaughlin, 725 N.W.2d 703
(2007).
18. Black’s Law Dictionary 835 (7th ed.)
1999.
19. In the Matter of the Welfare of A.C.L.,
2007 Minn. App. Unpub. LEXIS 164 (2007).
20. Commonwealth v. Ogden O., 864
N.E.2d 13 (2007); B. Kaban and J. Orlando,
Revitalizing the Infancy Defense in the Contemporary
Juvenile Court, 60 Rutgers L. Rev. 33
(2007).
Raising our Hands
Creating a National Strategy for Children’s Right to Education and Counsel
October 23, 2009 | Northwestern University School of Law | Chicago, IL
The American Bar Association Section of Litigation Children’s Rights Litigation Committee (CRLC) will be
hosting an important national summit to advance the critical issue of a human right to counsel for children
focusing on exclusion from education, and abuse and neglect cases.
For more information about the summit, or to assist with planning,
please contact the CRLC Committee Director, Cathy Krebs at krebsc@staff.abanet.org or 202-547-3060
Published in Children’s RIghts, Volume 1, Number 1, Fall/Winter 2009. © 2009 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 1 11-AUG-08 12:15
Sentencing Our Children to Die in
Prison: Global Law and Practice
By CONNIE DE LA VEGA & MICHELLE LEIGHTON*
Introduction and Overview
THIS ARTICLE FOCUSES ON THE SENTENCING of child offenders
to a term of life imprisonment without the possibility of release or
parole (“LWOP”). These are children convicted of crimes when
younger than eighteen years of age, as defined by the international
standards contained in the U.N. Convention on the Rights of the
Child. 1
The LWOP sentence condemns a child to die in prison. Short of
the death penalty, LWOP is the harshest of sentences that may be imposed
on an adult. Imposing such a punishment on a child contradicts
our modern understanding that children have enormous
potential for growth and maturity as they move from youth to adulthood,
and the widely held belief in the possibility of a child’s rehabilitation
and redemption. It has been noted that:
This growth potential counters the instinct to sentence youthful
offenders to long terms of incarceration in order to ensure public
safety. Whatever the appropriateness of parole eligibility for
[forty]-year-old career criminals serving several life sentences, quite
different issues are raised for [fourteen]-year-olds, certainly as compared
to [forty]-year-olds, [who] are almost certain to undergo dramatic
personality changes as they mature from adolescence to
middle age. 2
* Connie de la Vega is Professor of Law and Director of the Frank C. Newman
International Human Rights Clinic, University of San Francisco School of Law. Michelle
Leighton is Director of Human Rights Programs, Center for Law and Global Justice,
University of San Francisco School of Law. This Article and previous reports were
developed from the work of the authors and students in the Clinic at the United Nations.
An acknowledgement of all those who have contributed to this ongoing project follows at
the end of the Article.
1. U.N. Convention on Rights of the Child, GA Res. 44/25, Annex, U.N. GAOR,
44th Sess., Supp. No. 49, at 167, U.N. Doc. A/44/49 (Nov. 20, 1989) [hereinafter CRC].
2. Victor Streib & Bernadette Schrempp, Life Without Parole for Children, CRIM. JUST.,
Winter 2007, at 4, available at http://www.abanet.org/crimjust/cjmag/21-4/LifeWithou
Parole.pdf.
983

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 2 11-AUG-08 12:15
984 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
Experts have documented that children cannot be expected to
have achieved the same level of psychological and neurological development
as an adult, even when they become teenagers. 3 They lack
the same capacity as an adult to use reasoned judgment, to prevent
inappropriate or harmful action generated as a result of high emotion
and fear, and to understand the long-term consequences of rash
actions. 4
For many of the children who are sentenced to LWOP, it is effectively
a death sentence carried out by the state over a long period of
time. Children endure emotional hardship, hopelessness, and neglect
while serving time in prison. They may also be threatened with physical
abuse. The young age of those serving time in prison in the United
States, for example, makes them more susceptible than adults to severe
physical abuse by older inmates:
Many adolescents suffer horrific abuse for years when sentenced to
die in prison. Young inmates are at particular risk of rape in
prison. Children sentenced to adult prisons typically are victimized
because they have “no prison experience, friends, companions or
social support.” Children are five times more likely to be sexually
assaulted in adult prisons than in juvenile facilities. 5
This experience can produce additional trauma for children who
are likely to have suffered physical abuse before entering prison. One
recent study of seventy-three children serving LWOP sentences in the
United States for crimes committed at age thirteen and fourteen concluded:
“They have been physically and sexually abused, neglected,
and abandoned; their parents are prostitutes, drug addicts, alcoholics,
and crack dealers; they grew up in lethally violent, extremely poor
areas where health and safety were luxuries their families could not
3. MACARTHUR FOUND. RESEARCH NETWORK ON ADOLESCENT DEV. & JUVENILE JUSTICE,
ISSUE BRIEF 3, LESS GUILTY BY REASON OF ADOLESCENCE [hereinafter ISSUE BRIEF 3], available
at http://www.adjj.org/downloads/6093issue_brief_3.pdf (discussing the decision-making
capacity of adolescents); MACARTHUR FOUND. RESEARCH NETWORK ON ADOLESCENT DEV. &
JUVENILE JUSTICE, ISSUE BRIEF 4, ASSESSING JUVENILE PSYCHOPATHY: DEVELOPMENTAL AND LE-
GAL IMPLICATIONS, available at http://www.adjj.org/downloads/4536issue_brief_4.pdf (discussing
the applicability of adult psychopathy assessments to adolescent individuals,
particularly when used to determine long-term probability of rehabilitation or recidivism).
4. ISSUE BRIEF 3, supra note 3; see also Roper v. Simmons, 543 U.S. 551, 569–73
(2005).
5. EQUAL JUSTICE INITIATIVE, CRUEL AND UNUSUAL: SENTENCING 13- AND 14-YEAR OLD
CHILDREN TO DIE IN PRISON 14 (2007), available at http://www.eji.org/eji/files/20071017
cruelandunusual.pdf (providing November 2007 commentary from the Equal Justice Initiative
in Montgomery, Alabama, and citing 2006 reports of the National Institute of Justice
and findings of the United States Congress under 42 U.S.C.A. 15601 (2003) regarding
prison rape in the United States).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 3 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 985
afford.” 6 Some child offenders believe death to be more humane than
life with the knowledge that their death will come only after many
decades spent living in these circumstances. 7 With no hope of release,
they feel no motivation to improve their development toward maturity.
This is reinforced by the fact that youths placed in the adult system
“receive little or no rehabilitative programming.” 8
In this context, the sentence is indeed cruel. These issues have
become so well-understood at the international level that a state’s execution
of this sentence raises the possibility that it not only
violates juvenile justice standards but also contravenes international
norms established by the United Nations Convention Against
Torture. 9 Globally, the consensus against imposing LWOP sentences
on children is virtually universal. Based on the authors’ research,
there is only one country in the world today that continues
to sentence child offenders to LWOP terms: the United States. 10
The United States has at least 2484 children serving life without
parole or possibility of release sentences. 11 In the United States
6. Id. at 15.
7. See EQUAL JUSTICE INITIATIVE, supra note 5, at 12, 15, 18, 28 (telling the stories of
child inmates who have repeatedly attempted suicide).
8. CHRISTOPHER HARTNEY, NAT’L COUNCIL ON CRIME & DELINQUENCY (“NCCD”),
NCCD FACT SHEET: YOUTH UNDER AGE 18 IN THE ADULT CRIMINAL JUSTICE SYSTEM 1 (2006),
available at http://www.nccd-crc.org/nccd/pubs/2006may_factsheet_youthadult.pdf.
9. U.N. Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, GA Res. 39/46, Annex, U.N. GAOR, 39th Sess., Supp. No. 51, at
197, U.N. Doc. A/39/51 (Dec. 10, 1984). The authors made this observation in reviewing
the United States’ practice of sentencing children to life without parole in 2006. See infra
Part II.
10. Tanzania has one child offender serving a life sentence who was reported to be
ineligible for parole, but the government has submitted written documentation to the authors
confirming that it allows parole for all children and is in the process of undertaking
reforms in the sentencing code so that the child in question, or any other child, cannot be
sentenced to a term that prohibits parole review. See infra Part I.C.1 for a discussion on
Tanzania.
11. In 2002, Human Rights Advocates reported that 2225 persons were serving this
sentence. HUMAN RIGHTS ADVOCATES, WRITTEN STATEMENT SUBMITTED BY HUMAN RIGHTS
ADVOCATES (RIGHTS OF THE CHILD), U.N. Doc. E/CN.4/2002/NGO/44 (2002). Human
Rights Watch (“HRW”) clarified the numbers in its 2005 report and the authors recently
begun clarifying these numbers in 2007: in Pennsylvania the number of child offenders
receiving LWOP is now 433, up 101 since 2005. HRW’s most recent count of state cases
suggests that there are at least 444 child offenders serving LWOP in Pennsylvania now and
a total of 2484 child offenders serving LWOP sentences nationwide. HUMAN RIGHTS
WATCH, EXECUTIVE SUMMARY: THE REST OF THEIR LIVES: LIFE WITHOUT PAROLE FOR YOUTH
OFFENDERS IN THE UNITED STATES IN 2008, at 3 (2008) [hereinafter HRW EXECUTIVE SUM-
MARY], available at http://www.hrw.org/backgrounder/2008/us1005/us1005execsum.pdf
(updating the Human Rights Watch and Amnesty International report from 2005, infra
note 18).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 4 11-AUG-08 12:15
986 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
from 2005 to 2007, courts sentenced 259 children to serve LWOP
terms. 12
A positive development is that Israel, Tanzania, and South Africa,
countries reported to have had child offenders serving LWOP
sentences, have now officially clarified their law to allow, or have
stated publicly that they will allow, parole for juveniles in all cases. 13
This is a laudable departure from earlier positions and one that the
authors and other human rights groups look forward to monitoring. 14
These countries could, however, further clarify the legal prohibition
of juvenile LWOP sentences expressly in their criminal justice codes.
For Israel, there remains the concern that parole review is difficult to
pursue and rarely granted for child offenders convicted of violating
security regulations in Israel and in the Occupied Territories. There is
also concern about the Israeli Defense Forces Chief of Staff, who has
the discretion and authority to determine whether parole is actually
granted, conducting such review, rather than having the independent
judiciary do so, though as discussed below, the government has indicated
that the High Court does review all denials.
The community of nations, within which all nations are included
simply by virtue of their existence, now condemns the practice of sentencing
children to LWOP by any state as against modern society’s
shared responsibility for child protection and, more concretely, as a
human right violation prohibited by treaties and expressed in customary
international law. The authors wrote this Article in part to expose
this human rights abuse to the global public, other governments, and
the United Nations (“U.N.”), and to share this information more
clearly with the American public and officials.
This problem is of particular concern today for Americans because
there is no evidence that the severity of this sentence provides
any deterrent effect on youth, just as was the case with the juvenile
death penalty. 15 The United States Supreme Court has found that
“the absence of evidence of deterrent effect is of special concern be-
12. HRW EXECUTIVE SUMMARY, supra note 11, at 2–3.
13. See infra Part I.C (discussing countries which have officially clarified their laws to
allow, or have stated publicly that they will allow, parole for juveniles serving LWOP
sentences).
14. Israel had been reported to have up to seven child offenders serving LWOP but
the government has clarified its law with the authors and provided assurance that even
child offenders convicted for political and security crimes are entitled to parole review. See
infra Part I.C.4 (discussing law and practices of Israel). The last documented case in Israel
of a life sentence for a juvenile occurred in 2004. See infra Part I.C.4.
15. Roper v. Simmons, 543 U.S. 551, 571–72 (2005).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 5 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 987
cause the same characteristics that render juveniles less culpable than
adults suggest as well that juveniles will be less susceptible to deterrence.”
16 Americans may well ask why so many United States states
continue to violate international human rights law as it is practiced by
virtually every other country in the world where children also commit
terrible crimes on occasion. Why does the United States continue to
impose a sentence that is not humane, appropriate, or a deterrent to
crime, and that fails America’s children and adults Surveys demonstrate
that Americans believe in the redemption and rehabilitation of
children and do not believe that incarcerating youth in adult facilities
teaches them a lesson or deters crime. 17 The country’s juvenile justice
laws and policies should better reflect this understanding.
Part I examines the global condemnation of this practice, which
has led to international law standards, as well as the actual practices of
sentencing children to LWOP in the United States. This Part also
highlights the countries which have abrogated the law recently and
discusses those countries where the law may remain ambiguous. The
discussion of the current practices in the United States demonstrates
that it is the world’s only remaining practitioner of LWOP sentencing
and that racial discrimination has become prevalent in these and
other juvenile sentences across the country. The analysis presented in
Part I is based on available information from research, review of country
reports to the United Nations, meetings with officials and official
statements, and reports of non-governmental organizations and other
experts in the field.
Part II analyzes international human rights standards and the violation
of international law by countries imposing sentences of LWOP
for child offenders. Part III identifies several juvenile justice and rehabilitation
models of other countries and United States states that can
serve as alternatives to harsh and inappropriate sentencing for
children.
Part IV presents the conclusions and recommendations of the authors
to governments and policy-makers in remedying these violations,
and for improving the opportunities for juvenile rehabilitation.
16. Id. at 571. The United States Supreme Court stated, “As for deterrence, it is unclear
whether the death penalty has a significant or even measurable deterrent effect on
juveniles . . . .” Id. If the death penalty has no deterrent value, it is difficult to imagine that
a lesser penalty of LWOP would have more of a deterrent value.
17. BARRY KRISBERG & SUSAN MARCHIONNA, NCCD, FOCUS: ATTITUDES OF U.S. VOTERS
TOWARD YOUTH CRIME AND THE JUSTICE SYSTEM 3–5 (2007), available at http://www.nccdcrc.org/nccd/pubs/zogby_feb07.pdf
(summarizing a national poll undertaken by NCCD
on the issue of juvenile crime and punishment).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 6 11-AUG-08 12:15
988 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
The Article commends the efforts of governments, international organizations,
and non-governmental organizations (“NGOs”) for their efforts
in the past few years to more urgently bring non-complying
governments into compliance with international law and juvenile justice
standards. The authors conclude by recommending that:
- Countries should continue to denounce the practice of sentencing
juveniles to LWOP as against international law, to condemn the
practice among the remaining governments which allow such sentencing,
and to call upon those where the law may be ambiguous to institute
legal reforms confirming the prohibition of such sentencing.
Countries should also work to remove barriers to the enforcement of
international standards and expand their juvenile justice models to
focus more extensively on rehabilitation programs, including education,
counseling, employment and job training, and social or community
service programs and to evaluate these models to ensure
protection of the rights of juveniles.
- The United States should abolish the juvenile LWOP sentence
under federal law and undertake efforts to bring the United States
into compliance with its international obligations to prohibit this sentencing.
This includes efforts to rectify the sentences of those juvenile
offenders now serving LWOP, to evaluate the disproportionate sentencing
of minorities in the country, and to work more expeditiously
to eradicate the widespread discrimination in the country’s juvenile
justice system. The United States government should consider more
equitable and just rehabilitation models as described in this Article, as
well as monitor and publish data on child offenders serving LWOP
sentences in each state. The United States should also ratify the U.N.
Convention on the Rights of the Child.
- Israel should expressly clarify its regulations related to political
and security crimes for which LWOP sentences for juveniles are prohibited.
Israel should also address concerns that parole review is difficult
to pursue and rarely granted for child offenders convicted of
violating security regulations in Israel and in the Occupied Territories,
and ensure review by the independent judiciary rather than the
Israeli Defense Forces Chief of Staff.
- Tanzania should follow through expeditiously in clarifying by
law that any child currently serving or who may be given a life sentence
for any crime will be subject to parole review.
- South Africa should pass, without haste, the Child Justice Bill to
clarify abolition of juvenile LWOP sentencing under all
circumstances.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 7 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 989
- Antigua and Barbuda, Argentina, Australia, Belize, Brunei,
Cuba, Dominica, Saint Vincent and the Grenadines, the Solomon Islands,
and Sri Lanka should clarify the legal prohibition of LWOP
sentences for juveniles and ensure that their provinces bring their
laws into compliance with their obligations under the U.N. Convention
on the Rights of the Child, the International Covenant on Civil
and Political Rights, and other international law related to juvenile
justice.
I. Countries’ Practices in Imposing LWOP Sentences
Very few countries have historically used life sentences for juvenile
offenders. Indeed, as this Article illustrates, a single country is
now responsible for 100% of all child offenders serving this sentence:
the United States. Most governments have either never allowed, expressly
prohibited, or will not practice such sentencing on child offenders
because it violates the principles of child development and
protection established through national standards and international
human rights law. There are now at least 135 countries that have expressly
rejected the sentence via their domestic legal commitments, 18
and 185 countries that have done so in the U.N. General Assembly. 19
18. Only ten countries besides the United States could be said to have laws with the
potential to permit the sentence today, leaving 135 countries that have rejected the potential
practice expressly by law or by official pronouncements. The authors tabulate this from
their own investigation and from figures reported by HRW and Amnesty International
(“AI”). See AI & HRW, THE REST OF THEIR LIVES: LIFE WITHOUT PAROLE FOR CHILD OFFEND-
ERS IN THE UNITED STATES 106 (2005) [hereinafter HRW/AI REPORT], available at http://
www.hrw.org/reports/2005/us1005/TheRestofTheirLives.pdf. The HRW/AI Report identifies
fourteen countries out of 145 surveyed in CRC reports as having laws potentially
allowing LWOP for juveniles, leaving 131 countries besides the United States having expressly
rejected LWOP for juveniles. Id. Since that time, the authors have clarified that
Argentina and Belize may also have laws allowing juvenile LWOP, but that five others do
not allow juvenile LWOP: Burkina Faso, Israel, Kenya, South Africa, and Tanzania. The
authors also note that the HRW/AI Report survey included 154 countries aside from the
United States, but for nine, the information was inconclusive in HRW’s investigation. Of
the remaining 145 countries, the report found fourteen countries had laws possibly allowing
LWOP sentences for children, but the authors have now clarified that five of those
listed are ones that now prohibit juvenile LWOP, and two not originally listed possibly do
have such laws as noted above. This would leave 135 countries expressly prohibiting the
sentence and ten besides the United States that might allow the sentence.
19. In 2006, 185 countries voted for a resolution on rights of the child at the United
Nations General Assembly which included the call for any government with juvenile LWOP
sentences to abolish the practice. Rights of the Child, G.A. Res. 61/146, 31(a), U.N. Doc.
A/Res/61/146 (Dec. 19, 2006) [hereinafter Rights of the Child 2006], available at http://
daccessdds.un.org/doc/UNDOC/GEN/N06/503/19/PDF/N0650319.pdfOpenElement.
A nearly identical resolution was passed by the General Assembly in 2007 by a vote of 183
to one with the United States being the only country to vote against it. Rights of the Child,

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 8 11-AUG-08 12:15
990 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
Of the remaining countries besides the United States, ten may
have laws that could permit the sentencing of child offenders to life
without possibility of release, but there are no known cases where this
has occurred. The ten countries are Antigua and Barbuda, Argentina,
Australia, Belize, Brunei, Cuba, Dominica, Saint Vincent and the
Grenadines, the Solomon Islands, and Sri Lanka. 20
The United States has at least 2484 children convicted of crimes
committed before the age of eighteen who are now serving the LWOP
sentence in United States prisons (including 259 sentenced since
2005). 21
A. Globally, the United States is the Only Violator of the
Prohibition Against LWOP Sentences for Children
The United States is the only violator of the international human
rights standard prohibiting juvenile LWOP sentences. With
thousands of juveniles serving LWOP sentences, and none serving
such sentences in the rest of the world, the United States is the only
country now violating this standard. 22
Forty-four states and the federal government allow LWOP to be
imposed on juvenile offenders. 23 Among these states, thirteen allow
G.A. Res. 62/141, 36(a), U.N. Doc. A/Res/62/141 (Dec. 18, 2007) [hereinafter Rights of
the Child 2007].
20. HRW/AI REPORT, supra note 18, at 106–07 (citing their investigation of country
reports to the Committee on the Rights of the Child and in-country investigations). The
authors have also added Belize to this list, but deleted others as the authors’ investigation
has revealed clarification in law and practice since 2005 when the HRW/AI Report was
issued. The authors have also now confirmed that Burkina Faso, Israel, Kenya, South Africa,
and Tanzania now prohibit this practice. See infra Part I.C for a discussion of these
countries. Kenya clarified to the Committee on the Rights of the Child (“Committee”) in
2007 that those sentences were now prohibited. Burkina Faso has confirmed it applies
directly the CRC prohibitions in domestic law, including sentencing. South Africa has indicated
it no longer allows these sentences and has no child offenders serving. As discussed
below, however, it is somewhat unclear what the law provides for in South Africa, as a Child
Justice Bill, which would expressly outlaw the sentencing for youths, has been pending for
five years. The authors have clarified with the Director of the President’s Office of Child
Rights, who herself clarified with officials in the Department of Corrections in the country,
that there are no juvenile offenders serving this sentence in South Africa and this sentence
will not be imposed in the future. In 1999, South Africa had reported to the Committee
that four juvenile offenders were serving the sentence. HRW/AI REPORT, supra note 18, at
106 n.320. For Cuba, it has been suggested that it is technically possible under the law to
sentence a child sixteen years of age to LWOP, but there are no known cases. Id. at 107.
Cuban officials with whom the authors of this Article met also deny there are any child
offenders serving such a sentence.
21. Supra notes 11–12.
22. See supra note 11.
23. For state-by-state LWOP information and statutory references, see infra Appendix.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 9 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 991
sentencing a child of any age to LWOP, and one sets the bar at eight
years or older. 24 There are eighteen states which could apply the sentence
to a child as young as ten years, 25 and twenty states that could do
this at age twelve. 26 Thirteen states set the minimum age at fourteen
years. 27 These figures are startling considering that as of 2004, 59% of
children in the United States who were convicted and sentenced to
LWOP received the sentence for their first-ever criminal conviction,
16% were between the ages of thirteen and fifteen when they committed
their crimes, and 26% were sentenced under a felony murder
charge where they did not pull the trigger or carry the weapon. 28 The
Appendix contains an updated summary of state practice and law. 29
As noted above, the LWOP sentence was rarely imposed until the
1990s, when most states passed initiatives increasing the severity of juvenile
punishments. 30 Such initiatives also created prosecutorial and
statutory procedures to waive juveniles into the adult criminal system,
where they can be prosecuted and sentenced as adults. 31
The rate of judicial waiver (allowing children to be tried as
adults) increased 68% from 1988 to 1992. 32 Since 1994, forty-three
states implemented legislation facilitating transfer of juveniles to adult
court. 33 Twenty-eight or more states limited or completely eliminated
juvenile court hearings for certain crimes, and at least fourteen states
24. See infra Appendix (showing thirteen states where a court can sentence a child of
any age to LWOP and one state setting a minimum age of eight years). Those states are:
Delaware, Florida, Idaho, Maine, Maryland, Michigan, Nebraska, New York, Pennsylvania,
Rhode Island, South Carolina, Tennessee, and West Virginia. Id.
25. See infra Appendix (describing ten states with minimum LWOP age of ten years).
26. See infra Appendix (describing twenty states with minimum LWOP age of twelve
years).
27. See infra Appendix (showing thirteen states where minimum LWOP age is fourteen
years).
28. HRW/AI REPORT, supra note 18, at 30 & n.60, 31 & n.61. Since that report, Colorado
passed a law abolishing the sentencing practice in 2006. See infra Appendix.
29. This analysis has updated earlier statements by NGOs and advocates. See infra
Appendix in this Article for more detail. The authors note that no national data is officially
collected on juvenile LWOP sentences specifically by the United States government.
30. See PATRICK GRIFFIN ET AL., NAT’L CENTER FOR JUVENILE JUSTICE, TRYING JUVENILES
AS ADULTS IN CRIMINAL COURT: AN ANALYSIS OF STATE TRANSFER PROVISIONS III 3–4 (1998),
available at http://www.ncjrs.org/pdffiles/172836.pdf.
31. Id. at 1–11.
32. Jonathan E. Cruz, Juvenile Waivers and the Effects of Proposition 21, 1 LAW & SOC’Y
REV. 29, 38 (2002) (Univ. of Cal., Santa Barbara), available at http://www.lawso.ucsb.edu/
projects/review/issues/2001-2002/r01-03cruz.pdf.
33. MIKE MALES & DAN MACALLAIR, THE COLOR OF JUSTICE: AN ANALYSIS OF JUVENILE
ADULT TRANSFERS IN CALIFORNIA 3 (2000), available at http://www.buildingblocksforyouth.
org/colorofjustice/coj.pdf (noting in 2000 report how many states enacted laws for transfer
from juvenile to adult court in the past six years).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 10 11-AUG-08 12:15
992 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
gave prosecutors individual discretion to try children as adults, bypassing
the traditional safeguard of judicial review. 34
In violation of international law, some children are still incarcerated
in adult prisons, despite undisputed research documenting that
children are then subject to greater physical violence and rape, commit
or attempt to commit suicide at greater rates, and suffer life-long
emotional trauma. 35 The National Council on Crime and Delinquency
found that “[o]ne in [ten] juveniles incarcerated on any given
day in the U[nited] S[tates] will be sent to an adult jail or prison” to
serve their time. 36 The number of children serving time in adult jails
increased 208% between 1990 and 2004. 37 By transferring juveniles to
the adult court system, many states neglect to honor the status of these
minors as juveniles, a violation of the United States’ obligations under
Article 24 of the International Covenant on Civil and Political
Rights. 38
Although crime rates have been steadily declining since 1994, 39 it
is estimated that the rate at which states sentence minors to LWOP
remains at least three times higher than it was fifteen years ago, 40 suggesting
a tendency for states to punish these youths with increasing
severity. For example, in 1990, there were 2234 youths convicted of
murder in the United States, 2.9% of whom were sentenced to
LWOP. 41 Ten years later, in 2000, the number of youth murderers
had dropped to 1006, but 9.1% still received the LWOP sentence. 42
34. John Hubner, Discarded Lives, Children Sentenced to Life Without Parole, AMNESTY
INT’L MAG., Spring 2006, http://www.amnestyusa.org/Spring_2006/Discarded_Lives_Chil
dren_Sentenced_to_Life_Without_Parole/page.doid=1105357&n1=2&n2=19&n3=392.
35. See, e.g., EQUAL JUSTICE INITIATIVE, supra note 5, at 13–14.
36. HARTNEY, supra note 8, at 4.
37. Id. at 3.
38. Human Rights Comm., Comments on United States of America, 34.s, U.N. Doc.
CCPR/C/SR.2395 (2006) [hereinafter Comments on United States]; see discussion infra
Part II.
39. Note that crime levels reached their peak in 1994 and have declined since. See
Jeffrey Fraser, Facts vs. Perceptions: “Superpredator” Theory Belies Crime Data, 32 CHILD., YOUTH
& FAM. BACKGROUND (Univ. of Pittsburgh Office of Child Dev., Pittsburgh, Pa.), June 2000,
available at http://www.education.pitt.edu/ocd/publications/backgrounds/32.pdf.
40. HRW/AI REPORT, supra note 18, at 2.
41. Id.
42. Id.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 11 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 993
1. United States Children of Color Are Sentenced
Disproportionately to LWOP when Compared to
White Children
Also alarming is the disproportionate number of children of
color sentenced to LWOP in the United States. Although significant
racial disparities exist in the overall juvenile justice system, African
American children are reportedly serving LWOP sentences at a rate
that is ten times higher than white children. 43 In California, which has
the greatest system-wide racial disparity in this regard, 190 of the 227
persons serving the LWOP sentence for crimes committed before the
age of eighteen are persons of color. African American children in
California are likely to receive a life without parole sentence at a rate
that is eighteen times that of white children, while Hispanic children
are five times more likely to receive the sentence than whites. 44 Racial
disparities track in jurisdictions across the United States. Other examples
are:
ALABAMA
African American, Indian, Asian, and Hispanic children were
36% of the child population as of 2002; 45 African Americans are 73%
of children serving LWOP sentences; 46 and 100% of children serving
LWOP for non-homicide offenses. 47
COLORADO
African Americans are 4.4% of the child population and 26% of
those serving LWOP sentences. 48
43. HRW, VOL. 20, NO. 2 (G), SUBMISSION TO THE COMMITTEE ON THE ELIMINATION OF
ALL FORMS OF RACIAL DISCRIMINATION 21 (Feb. 2008) [hereinafter HRW, VOL. 20, NO. 2
(G)], available at http://www.hrw.org/reports/2008/us0208/us0208web.pdf.
44. See HRW, VOL. 20, NO. 1 (G), “WHEN I DIE, THEY’LL SEND ME HOME”: YOUTH
SENTENCED TO LIFE WITHOUT PAROLE IN CALIFORNIA 4 (2008) [hereinafter HRW, WHEN I
DIE, THEY’LL SEND ME HOME], available at http://www.hrw.org/reports/2008/us0108/
us0108web.pdf.
45. HOWARD N. SNYDER & MELISSA SICKMUND, NAT’L CENTER FOR JUVENILE JUSTICE,
JUVENILE OFFENDERS AND VICTIMS: 2006 NATIONAL REPORT 3 (2006), available at http://
ojjdp.ncjrs.gov/ojstatbb/nr2006/downloads/NR2006.pdf (providing data from 2002).
46. HRW, VOL. 20, NO. 2 (G), supra note 43, at app. 3.
47. EQUAL JUSTICE INITIATIVE, supra note 5, at 24 (referencing data on thirteen- and
fourteen-year old child offenders).
48. HRW, THROWN AWAY 15–24 (2005) (calling attention to children sentenced to
LWOP in the state of Colorado), available at http://hrw.org/reports/2005/us0205/
us0205.pdf.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 12 11-AUG-08 12:15
994 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
MICHIGAN
Children of color are 27% of the child population 49 and 71% of
children serving LWOP sentences. 50 African American children in
Michigan comprise 69% of the total. 51 On a county-by-county basis,
the disparities are even more significant.
Children of color in Wayne County, Michigan, are 94% of the
children given LWOP sentences, though they are only half of the
child population; in Oakland County, they are 73% of children serving
LWOP sentences but 11% of the child population; and in Kent
County, children of color are 50% of children serving LWOP
sentences but only 13% of the child population. 52
MISSISSIPPI
African Americans are 45% of the population 53 and 75% of children
serving LWOP sentences (compared to 20% of white
children). 54
Racial disparity permeates the United States juvenile justice system.
Though African Americans comprise 16% of the child population
in the United States, they comprise 38% of those confined in
state correctional facilities. 55 In analyzing the “relative rate index,” a
standardized index that compares rates of racial and ethnic groups
compared to whites, 56 the latest data identifies minority overrepresentation
in detention for nearly every state in the country. For example,
in South Dakota, the relative rate index for African American children
compared to whites in detention is 47:1; in North Dakota it is 21:1;
49. For zero to seventeen years of age, see SNYDER & SICKMUND, supra note 45, at 3.
50. CHILDREN IN CONFLICT WITH THE LAW: JUVENILE JUSTICE & THE U.S. FAILURE TO
COMPLY WITH OBLIGATIONS UNDER THE CONVENTION FOR THE ELIMINATION OF ALL FORMS OF
RACIAL DISCRIMINATION 25 (2008) [hereinafter CHILDREN IN CONFLICT WITH THE LAW]
(printed by the Children & Family Justice Center, Northwestern University School of Law)
(on file with authors).
51. HRW, VOL. 20, NO. 2 (G), supra note 43, at app. 3.
52. CHILDREN IN CONFLICT WITH THE LAW, supra note 50, at 25.
53. Id.; see SNYDER & SICKMUND, supra note 45, at 3.
54. E-mail from Holly Thomas, Assistant Counsel, NAACP Legal Defense & Educ.
Fund, Inc., to Michelle Leighton, Dir. of Human Rights Programs, Ctr. for Law & Global
Justice, Univ. of San Francisco School of Law (Aug. 8, 2007) (on file with authors) (discussing
Mississippi Department of Corrections and data released via Freedom of Information
Act request that was later updated by the Office of Capital Defense Counsel in Mississippi).
55. NCCD, AND JUSTICE FOR SOME 25 (2007), available at http://www.nccd-crc.org/
nccd/pubs/2007jan_justice_for_some.pdf.
56. The custody rate in the index is the number of juvenile offenders in detention in
2003 per 100,000 juveniles aged ten and over to age eighteen generally. Id. at 8.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 13 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 995
Wisconsin 18:1; New Jersey 15:1; Wyoming 12:1; Nebraska 11:1; and
New Hampshire 10:1. 57
Children of color are also held in custody and prosecuted “as
adults” in criminal courts and given adult sentences more often than
white children. 58 African American children are six times more likely
to be brought into custody than white children, 59 even though they
make up just 16% of the total United States child population, as compared
to white children, who make up 78% of the child population. 60
Children of color are also much more likely than white youth to
do their time in adult prison. Twenty-six out of every 100,000 African
American children were sentenced to and are serving time in adult
prison whereas the rate for white children is only 2.2 per 100,000. 61
On a state-by-state basis, these disparities are magnified, as discussed
above.
The United States government is aware of this disparity, as are
most Americans. A recent survey indicated that 60% of Americans believe
that non-white youth are more likely to be prosecuted in adult
court. 62 This is clearly not “equal treatment before the tribunals . . .
administering justice” as required by Article 5(a) of the U.N. Convention
on the Elimination of Racial Discrimination (“CERD”), to which
the United States is a party. 63
Finally, of serious concern is the cumulative disadvantage to minorities
entering the justice system via arrest through the period of
incarceration. As a result, racial disparity actually increases as the
youth is arrested, processed, adjudicated, sentenced, and
incarcerated. 64
Within the juvenile system, the trends for juvenile placements out
of the home (the most severe disposition for youth adjudicated as delinquent)
demonstrate that white youth are underrepresented in this
category of penalty and youth of color suffer discrimination. From
1987 to 2003, the total placements increased from approximately
57. Id. at 24 (citing Census of Juveniles in Residential Placement 1997, 1999, 2001,
and 2003).
58. Id. at 34.
59. HRW, VOL. 20, NO. 2 (G), supra note 43, at 19.
60. Id. at 10.
61. NCCD, supra note 55, at 35 fig.19 (providing graphic representation of statistics as
to racial disparities and youth in adult prisons).
62. See KRISBERG & MARCHIONNA, supra note 17, at 1.
63. International Convention on the Elimination of All Forms of Racial Discrimination,
Dec. 21, 1965, S. TREATY DOC. NO. 95-18 (1994), 660 U.N.T.S. 195, available at http://
www2.ohchr.org/english/law/cerd.htm.
64. NCCD, supra note 55, at 4.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 14 11-AUG-08 12:15
996 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
92,000 to 97,000, yet the percentage of whites given out of home
placement decreased in the same period from approximately 52% to
39%. 65
While institutions in the country have documented racial disparities
in growing numbers over the past decade, the United States government
has done little to address the most serious discriminatory
practices leading to this disparity. Even after passing the Juvenile Justice
and Delinquency Prevention Act of 2002, 66 a law designed to address
discrimination suffered by children, the government has not
ensured that states take effective action to address the offending discrimination
in their jurisdictions. Moreover, data on racial disparity
among juveniles receiving LWOP is neither collected nor analyzed by
the federal government or by states in any systemic manner. Thus, the
government does not inform the public of this disparity. Without a
systematic effort, the United States cannot effectively ensure the eradication
of discrimination as required by CERD.
C. Countries that Clarified or Recently Changed Their Law and
Practice to Prohibit LWOP Sentences for Juveniles
The authors had reported that Tanzania and South Africa had
juvenile offenders serving LWOP sentences, and that Burkina Faso
and Kenya, while having no children serving LWOP sentences, had
laws that appeared to allow for the punishment. 67 In the past year, all
of these countries have clarified their practice, law, or both to prohibit
LWOP sentences for juveniles, as discussed below.
1. Tanzania
In Tanzania, the government asserts that no child under the age
of eighteen is sentenced to LWOP. 68 Several children recently sen-
65. Id. at 19–20, 20 fig.9, 22 fig.10. Trends in residential placement evaluated from
1987–2003 were mapped by the NCCD separately and are on file with the authors.
66. Pub. L. No. 107-273, 116 Stat. 12201 (amending 42 U.S.C. § 5601 et seq. (2000),
originally enacted in 1974).
67. See, e.g., HUMAN RIGHTS ADVOCATES, SPECIAL REPORT ON HUMAN RIGHTS VIOLA-
TIONS IN SENTENCING: IMPRISONING CHILDREN FOR LIFE WITHOUT POSSIBILITY OF RELEASE
(2007). This report was submitted to the 4th Session, Human Rights Council in March
2007, as part of the work completed by University of San Francisco law students Nicole
Skibola, Patricia Fullinwider, and Angela Fitzsimons. HUMAN RIGHTS ADVOCATES, WRITTEN
STATEMENT SUBMITTED BY HUMAN RIGHTS ADVOCATES, INC. (JUVENILE SENTENCING), U.N.
Doc. A/HRC/4/NGO/3 (2007), available at http://ap.ohchr.org/documents/dpage_e.
aspxsi=A/HRC/4/NGO/3.
68. E-mail from Joyce Kafanabo, Minister Plenipotentiary, Permanent Mission of the
United Republic of Tanzania to the U.N., to Michelle Leighton, Dir. of Human Rights

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 15 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 997
tenced to life terms have now been given parole. 69 Tanzania has confirmed
that one child offender who was seventeen at the time of the
crime is serving a life sentence in the country. There was concern that
the Sexual Offences Special Provisions Act 70 (“SOSPA”), under which
he was sentenced, does not provide for parole. 71 In meetings with the
authors and written follow-up, the government has confirmed that all
children, including the child in this case, are to be eligible for parole.
72 It committed to make the necessary changes in law to expressly
prohibit such sentencing in the future, to allow for parole review of
the one child offender identified above, and otherwise to come into
full compliance with the Convention on the Rights of the Child. In a
statement to the Center for Law and Global Justice from the Permanent
Mission of the United Republic of Tanzania to the United Nations,
officials stated:
The juvenile justice system in Tanzania has always been in favour
of a child. No life sentence has ever been imposed on children
prior to 1998. . . .
Currently there is a process to review the juvenile justice system
in line with CRC. A cabinet paper has already been prepared
by the Ministry of Justice and Constitutional Affairs on a comprehensive
legislation on children, the same is expected to be submitted
to cabinet secretariat soon.
At the same time a bill on miscellaneous amendments is expected
to be tabled by Parliament before the end of 2007 . . . that
gives to the High Court reversionary and discretionary powers, in
this regard the court can in sua motu call a file of any case concerning
a child offender and redress the harsh punishment that has
been imposed on a child. It should be noted in addition to the
court the social welfare officers can also move the court to make a
review. Thus based on the above information on the current practice
and the progress on the juvenile justice system in Tanzania, I
can confidently say that the sentence of the one child serving life
imprisonment will be reviewed and that his sentence has the possibility
of parole . . . . It is our expectation that this information [sic]
is sufficient to inform you that there are mechanisms that allow a
Programs, Ctr. for Law & Global Justice, Univ. of San Francisco School of Law (Oct. 13,
2007) (on file with authors) [hereinafter Kafanabo E-mail, Oct. 13, 2007] (indicating that
in all cases where a child is sentenced to life imprisonment, the child welfare department
appeals to higher courts immediately “which in all circumstances either reduces the sentence
or releases the child”); see also Facsimile from Joyce Kafanabo to Michelle Leighton
(Oct. 15, 2007) (on file with authors) [hereinafter Kafanabo Letter, Oct. 15, 2007].
69. Two children were released recently and one is receiving a parole hearing at the
time of writing. E-mail from Michelle Leighton to Joyce Kafanabo (Nov. 2, 2007) (on file
with authors); Kafanabo Letter, Oct. 15, 2007, supra note 68.
70. Sexual Offences Special Provisions Act (“SOSPA”), Nos. 4, 7 (1998) (Tanz.).
71. Minimum Sentence Act of 1972 (Tanz.).
72. Kafanabo E-mail, Oct. 13, 2007, supra note 68.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 16 11-AUG-08 12:15
998 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
review of sentence of any child who is sentenced to life, and that
life imprisonment for the juvenile offenders does not mean it is
without parole. 73
In Tanzania, the Department of Social Welfare and a parole review
board monitor children in custody and “upon being satisfied that
the child has been rehabilitated will then start process for releasing
the child.” 74 The life sentence where a child offender may not receive
this review is an unusual case because the sentence has only become
possible under a law enacted in 1998 to punish cases of sexual abuse,
particularly in young children. 75
The one law that poses an issue for sentencing of juveniles as
adults is the SOSPA, 76 a Parliamentary Act adopted in 1998 after the
country began experiencing record levels of rape, incest, and sodomy
of young children, some as young as five years old. 77 The law sought
to reduce violence against children by increasing education and punishment
for such crimes. 78 The offender’s age is not considered in
prosecuting cases under SOSPA, and children are prosecuted as
adults. 79 The law imposes stricter sentences for second- or third-time
offenders, and offenders can be sentenced to between thirty years and
life. 80 For rape of a child under the age of ten, SOSPA mandates the
automatic sentence of life imprisonment. 81 Under any other criminal
73. Kafanabo Letter, Oct. 15, 2007, supra note 68; see also Interview with Augustine
Mahiga, Permanent Representative, United Republic of Tanzania, Ministers Plenepotentiare
Joyce Kafanabo and Modest Mero, Second Secretary Tully Mwaipopo, and other
Tanzanian officials, in New York, N.Y. (Sept. 28, 2007) (on file with authors) [hereinafter
Mahiga, Sept. 28, 2007] (resulting from discussions initiated by Nick Imparato of the University
of San Francisco School of Business and Management, who also had meetings with
the Permanent Representative on the subject). The one child serving LWOP was first identified
by HRW and AI in 2005. See HRW/AI REPORT, supra note 18, at 106 (citing e-mail
correspondence to HRW from Erasmina Masawe, Attorney, Legal and Human Rights Centre,
Dar es Salaam, Tanzania, in July 2004, regarding the high profile case of a seventeenyear-old
convicted of rape).
74. Kafanabo E-mail, Oct. 13, 2007, supra note 68.
75. See Kafanabo Letter, Oct. 15, 2007, supra note 68.
76. SOSPA, Nos. 4, 7 (1998) (Tanz.).
77. Mahiga, Sept. 28, 2007, supra note 73; Kafanabo Letter, Oct. 15, 2007, supra note
68.
78. For example, a child convicted of murder in Tanzania is subject to ten years of
imprisonment before a request for probation can be made; however, under the SOSPA,
courts apply less discretionary and harsher sentences. Kafanabo Letter, Oct. 15, 2007, supra
note 68.
79. Mahiga, Sept. 28, 2007, supra note 73.
80. Id.
81. SOSPA, § 6(3). The authors note that the source is ambiguous as to whether
SOSPA applies to rape of both boys and girls, or just girls. Interpretation of the Act was
provided by Tanzanian officials and lawyers. Mahiga, Sept. 28, 2007, supra note 73.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 17 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 999
convictions, the President of the country personally confirms every
sentence given to a child offender in Tanzania, but under SOSPA the
court issues the sentence without review by the President. 82
As noted above, the Tanzanian Minister of Justice is introducing a
reform bill in Parliament to bring sentencing under SOSPA into compliance
with the Convention on the Rights of the Child 83 (“CRC”). It
would prohibit cruel and unusual punishments for children, including
LWOP sentences for child offenders. The reform bill will provide
the courts with discretion in determining all sentences under SOSPA
with respect to juveniles, in compliance with the CRC. 84 An interim
act was recently passed that allows for the offender or his family to
petition the court for immediate review. In its review, the court is to
ensure compliance with the CRC prohibition on LWOP sentences. 85
The authors will continue to monitor these developments.
2. South Africa
South Africa no longer allows LWOP sentences for child offenders
and has no children serving this sentence. South Africa reported
to the CRC in 1999 that it had four child offenders serving LWOP
sentences. 86 The government’s second report to the Committee on
the Rights of the Child, the oversight body for the CRC, does not discuss
or further clarify this figure. 87 However, the head of the President’s
Office on Rights of the Child has confirmed to the authors in
its consultation with the Department of Corrections that there are no
juvenile offenders serving an LWOP sentence in South African prisons,
i.e., no persons who committed crimes before age eighteen, and
that all sentenced persons qualify now to apply for parole after a de-
82. Mahiga, Sept. 28, 2007, supra note 73.
83. CRC, supra note 1.
84. A copy of the proposed bill is on file with the authors.
85. Id. The Minister of Justice introduced an interim act which passed the Parliament
at the time of writing this Article. E-mail correspondence between Michelle Leighton, Dir.
of Human Rights Programs, Ctr. for Law & Global Justice, Univ. of San Francisco School of
Law, and Joyce Kafanabo, Minister Plenipotentiary, Permanent Mission of the United Republic
of Tanzania (Nov. 22–26, 2007) (on file with authors).
86. South Africa State Party Report to the Committee on the Rights of the Child, 514, U.N.
Doc. CRC/C/51/Add.2 (May 22, 1999) (reporting four child offenders serving the
sentence).
87. Telephone Interviews with Official Representatives of the Office on the Rights of
the Child, Government of South Africa (May–June 2007) (notes on file with the authors);
see The Presidency of Republic of South Africa, 2nd Children’s Rights Country Report
submitted to the United Nations Committee on the Rights of the Child (Aug. 2006) (on
file with authors).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 18 11-AUG-08 12:15
1000 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
terminate period. 88 Thus, child offenders cannot be sentenced to an
LWOP term.
South Africa has also been considering a Child Justice Bill since
2002 that would expressly clarify the illegality of life imprisonment for
child offenders. 89 In 2004, the South Africa Supreme Court of Appeals
issued a critical decision, Brandt v. S., 90 which gave judges sentencing
discretion with regard to juveniles. 91 The decision
emphasized the importance of children’s rights and reaffirmed that
CRC 37(b) principles require juvenile imprisonment to be a last resort
and for the shortest time possible. 92
Although the Brandt decision marks greater strides toward the expansion
of children’s rights, it appears that there is still concern by
some legal groups, such as the Centre for Child Law at the University
of Pretoria, that the South African government has made minimal efforts
to ensure that its incarcerated youth receive special programs
over its older prison population. 93 Section 73(b)(iv) of the Correctional
Services Act 111 of 1998 specifies that a person serving life imprisonment
may not be placed on parole until he or she has served at
least twenty-five years or has reached sixty-five years if at that time he
or she has served fifteen years. 94 There is no parallel clause benefiting
young offenders, and it appears that the Act aids only people who
were fifty years or older at the time of the commission of the offense. 95
The reform bill under consideration may address these deficiencies.
More recently, the government announced that in an attempt to curb
prison overcrowding, it would release 300 adults serving life
88. E-mail correspondence between Mabel Rantlha, Head of South African President’s
Office on Rights of the Child, and Michelle Leighton (Aug. 1–2, 2007); Telephone
Conferences with Officials in Dep’t of Justice and Foreign Ministry (May 29, 2007–June 19,
2007) (on file with the authors).
89. See Draft Child Justice Bill, Republic of South Africa, para. 72 (2002), available at
http://www.pmg.org.za/bills/020808childjusticebill.htm (“No sentences of life imprisonment
may be imposed on a child.”).
90. S v B 2006 (1) SACR 311 (SCA) (S. Afr.); Brandt v State 2005 (2) All SA 1 (SCA) (S.
Afr.).
91. Id.
92. Do Minimum Sentences Apply to Juveniles, ARTICLE 40 (Cmty. Law Centre, Univ. of
the Western Cape, S. Afr.), May 2005, at 1, available at http://www.communitylawcentre.
org.za/Childrens-Rights/01Article-40/article-40-archives/article_40_2005_05_vol7_1.pdf.
93. CHILD LAW MATTERS (Ctr. for Child Law, Univ. of Pretoria, Pretoria), Dec. 2006,
available at http://www.childlawsa.com/docs/Newsletter_Dec2006.pdf.
94. Correctional Services Act 111 of 1998 s. 73(b)(iv) (S. Afr.).
95. Id.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 19 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1001
sentences, some of whom were former death row inmates. 96 The opposition
Inkatha Freedom Party, among other critics, stated that “it is
petty criminals, especially juveniles, who should be considered for release,
not people who are in prison serving life sentences for serious
crimes.” 97
3. Burkina Faso and Kenya
Both Burkina Faso and Kenya had been listed in earlier reports as
countries where there was a possibility that a child offender could receive
an LWOP sentence. However, in March 2007, during and after
the U.N. Human Rights Council session, both countries clarified that
they do not allow for such sentences and provided written explanation
to the authors. 98 Both countries assert that they now apply international
standards prohibiting this sentencing, particularly as now recognized
by the Committee on the Rights of the Child in its General
Comment on Juvenile Justice, published in February 2007. 99
In Burkina Faso, there is no law providing for child offenders
younger than sixteen to be given life sentences. After age sixteen, the
laws could possibly be read to try the child as an adult for certain
crimes, making the child potentially eligible for a life sentence. 100
However, this interpretation has never been confirmed by a judge in
the country, and officials have stated that doing so now would contravene
Burkina Faso’s treaty obligations under the CRC, which apply
directly in domestic law. 101
Kenya has specifically clarified its compliance with the CRC in a
report submitted to the Committee on the Rights of the Child in
96. South African Press Ass’n (“SAPA”), IFP Slams Release of Former Death-Row Inmates,
MAIL & GUARDIAN ONLINE, Jan. 4, 2007, http://www.mg.co.za/articlePage.aspxarticleid=
294936&area=/Breaking_news/breaking_news__national.
97. Id.
98. Meetings and correspondence between Philip Owade, Ambassador, Deputy Permanent
Representative, Permanent Mission of Kenya to the U.N., Geneva, Switzerland,
other Kenyan delegates, and official delegates of Burkina Faso, and Michelle Leighton,
Dir. of Human Rights Programs, Ctr. for Law & Global Justice, Univ. of San Francisco
School of Law (Mar. 2007) [hereinafter Meetings and Correspondence]; also in follow-up
correspondence with Michelle Leighton (Mar. 23–28, 2007).
99. See Comm. on Rights of the Child, Children’s Rights in Juvenile Justice, General Comment
No. 10, U.N. Doc. CRC/C/GC/10 (Apr. 25, 2007) [hereinafter General Comment No.
10].
100. Meetings and Correspondence, supra note 98.
101. Correspondence between Michelle Leighton and Myriam Poussi, Official Representative
in the Mission of Burkina Faso, Geneva, Switz. (Mar. 23–28, 2007) (on file with
authors) (original in French) (confirming statements of officials in meetings at the U.N.
Human Rights Council session, March 2007).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 20 11-AUG-08 12:15
1002 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
2006. 102 It ratified a bill which outlaws LWOP sentences for all children
under age eighteen. 103
4. Israel
Prior to 2008, Israel had been reported by human rights groups
to have anywhere between one and seven child offenders serving
LWOP sentences. 104 The authors have received official clarification
and commitment from the Israeli government that its laws allow for
parole review of juvenile offenders serving life terms, 105 even those
sentenced for political or security crimes in the Occupied Territories,
those children for which the authors were most concerned. 106 Concerns
remain, however, among legal practitioners in Palestine and
Israel that parole review is difficult to pursue and rarely granted. 107 An
additional concern is that the parole review for child offenders convicted
of violating security regulations in Israel and in the Occupied
102. Meeting between Michelle Leighton, other HRA delegates, and Ambassador
Philip Owade during March 2007 Human Rights Council meeting (meeting notes on file
with authors) (identifying its official statements to the Committee on the Rights of the
Child).
103. This is found in Kenya’s section 18(2) of the Children’s Act. The Children’s Act,
(2001) Cap. 586 § 18(2) (Kenya); see also Gov’t of Kenya, Second Periodic Report of State Parties
Under the Convention on the Rights of the Child, 146, delivered to the Committee, U.N. DOC.
CRC/C/KEN/2 (July 4, 2006), available at http://www.unhchr.ch/tbs/doc.nsf/898586b1
dc7b4043c1256a450044f331/189bbd47582246fdc12572590029f5a5/$FILE/G0545052.pdf.
104. The authors also met with officials on the subject during the March 2007 session
of the U.N. Human Rights Council. The report of four juvenile offenders serving life
sentences was reported in Israel State Party Report to the Committee on the Rights of the Child,
1372, delivered to the Committee, U.N. Doc. CRC/C/8/Add.44 (Feb. 27, 2002), available at
http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/f0bbf252c0b1
ca20c1256bed004c56c4/$FILE/G0240564.pdf. But HRW identified three others: Shadi
Ghawadreh, Youssef Qandil, and Anas Mussallmeh. See HRW/AI REPORT, supra note 18, at
106. E-mail correspondence between Connie de la Vega, Professor of Law, Univ. of San
Francisco School of Law, and Hilary Stauffer, Legal Adviser, Human Rights & Humanitarian
Affairs, Permanent Mission of Israel to the U.N., Geneva, Switz. (May 30–31, 2007)
(on file with authors) [hereinafter Stauffer E-mails, May 30–31, 2007] (reporting on discussion
with the Israeli Ministry of Justice and confirming the authors’ prior assertions about
Israel’s laws and practices).
105. E-mail from Gil Limon, Legal Adviser, Permanent Mission of Israel to the U.N., to
Michelle Leighton (Feb. 1, 2008) [hereinafter Limon E-mail, Feb. 1, 2008]; Letter from
Daniel Carmon, Ambassador, Deputy Permanent Representative, Permanent Mission of
Israel to the U.N., New York (Jan. 22, 2008) (on file with authors).
106. Letter from Daniel Carmon, Ambassador, Deputy Permanent Representative, Permanent
Mission of Israel to the U.N., New York (Mar. 6, 2008) (on file with authors) (discussing
concern regarding children sentenced for political or security crimes in the
Occupied Territories).
107. E-mails from Khaled Quzmar, Coordinator of Legal Unit, Defence for Children
International, Palestine Section, to Michelle Leighton (Jan. 10, 2008, Jan. 12, 2008, Feb. 7,
2008) (on file with authors).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 21 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1003
Territories is not conducted by the independent judiciary but by the
Israeli Defense Forces Chief of Staff, who has the discretion and authority
to determine whether parole is actually granted. Officials have
indicated that this determination can be subject to review by the Israeli
High Court of Justice and have sent correspondence showing
that two petitions for parole submitted by prisoners serving life
sentences in Judea and Samaria are currently being reviewed by the
High Court in Israel. 108
By way of background, in its report to the Committee on the
Rights of the Child in February 2002, the government identified four
child offenders serving life sentences, but did not indicate whether
parole was available, stating:
The Supreme Court has held, in a majority decision, that the court
has the discretion to review each case on its merits; should it reach
the conclusion that the appropriate punishment is life imprisonment,
and should it consider that this punishment is just and
necessary, it may sentence a minor to life imprisonment (Miscellaneous
Criminal Applications 530/90 John Doe v. State of Israel,
P.D. 46(3) 648). One Supreme Court justice, basing herself, inter
alia, on the Convention, expressed the view that life imprisonment
should only be imposed on a minor in exceptional cases; however,
her opinion was deemed as “needing further study” by the justices
who sat with her (Miscellaneous Criminal applications 3112/94
Abu Hassan v. State of Israel (11.2.99 not yet published)). In practice,
life imprisonment is imposed on minors very rarely; to date, it
has been imposed on three seventeen-year-olds who stabbed a bus
passenger to death as part of the “initiation rite” of a terrorist organization;
and on a youth aged seventeen and ten months who
strangled his employer to death after she commented on his work
and delayed payment of his salary for two days. 109
Human Rights Watch identified three other juveniles sentenced to life
terms in 2004. 110
Israeli law provides for review of life sentences and commutation
to a sentence of thirty years, unless the youth offenders are sentenced
by military courts under the 1945 Emergency Regulations for political
or security crimes where the commutation is not applicable—as such,
108. Limon E-mail, Feb. 1, 2008, supra note 105; Letter from Daniel Carmon, Ambassador,
supra note 106.
109. Israel’s State Party Report to the Committee on the Rights of the Child, 1372, U.N. Doc.
CRC/E/8/Add.44 (Feb. 27, 2002), available at http://www.unhchr.ch/tbs/doc.nsf/89858
6b1dc7b4043c1256a450044f331/f0bbf252c0b1ca20c1256bed004c56c4/$FILE/G0240564.
pdf.
110. The cases in question are reported as Shadi Ghawadreh, Youssef Qandil, and Anas
Mussallmeh. HRW/AI REPORT, supra note 18, at 106; see also supra note 104 and accompanying
text.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 22 11-AUG-08 12:15
1004 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
there was concern that for those cases a juvenile would in effect be
serving the equivalent of an LWOP sentence. 111 The seven juveniles
that could possibly qualify, discussed above, were presumably sentenced
for political or security crimes. 112
While the government has clarified its law, as noted above, it appears
that no reform in the Emergency Regulations Act or sentencing
procedure is underway to prohibit this sentence. Further express clarification
of law to prohibit effective LWOP sentences is warranted, as
are reforms ensuring that juvenile offenders sentenced to life terms in
the Occupied Territories are not subject to harsher parole review standards
than children serving the same life terms from crimes committed
in Israel.
D. Countries With Laws that Conceivably Allow LWOP Sentences
for Juveniles but Where No Practice Exists
The other countries with LWOP sentences available for child offenders
reportedly do not have any child offenders serving this sentence.
For the countries listed here, the laws provide for a life
sentence to be imposed on child offenders, but it is not clear whether
a life sentence means there is no possibility of parole. 113 Besides the
United States, there remain ten countries where it is unclear but reportedly
possible for a child offender to serve an LWOP sentence.
These countries are: Antigua and Barbuda, Argentina, Australia, Be-
111. HRW/AI REPORT, supra note 18, at 106 n.322 (citation omitted) (discussing lack
of parole available to those who are sentences under the Israel 1945 Emergency Regulations
Act).
112. In a 2005 report, HRW was not able to verify whether or how many of the seven
youths would not be provided parole consideration because they were sentenced for political
or security crimes. In the authors’ meetings and correspondence with Israeli officials
during 2007, officials confirmed that at that point there was no change in the general
number of life and/or LWOP cases as noted in this Article. Stauffer E-mails, May 30–31,
2007, supra note 104. The authors have not found any additional reported cases since 2004.
113. The authors have met with officials from most countries listed in this report, including
in 2007 during the U.N. Human Rights Council session and in follow-up correspondence,
and have clarified state practice as presented in this Article, and added Belize
to this list. Australia’s circumstance is discussed in Part I.D of this Article. In addition,
Argentina may become a country of concern, if it were to allow or have any children serving
life sentences where it is unclear that there is the possibility of parole. The authors
became aware of this suggestion only at the time of writing this Article. For an earlier list of
countries which reported laws on LWOP for juveniles, see HRW/AI REPORT, supra note 18,
at 106 n.319. For nine out of the 154 countries researched, the authors were unable to
obtain the necessary sources to determine whether or not the sentence exists in law, and if
it does, whether or not it is imposed.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 23 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1005
lize, Brunei, Cuba, 114 Dominica, Saint Vincent and the Grenadines,
the Solomon Islands, and Sri Lanka (which has new legislation pending
that would bring it in line with the CRC prohibition on LWOP).
Two countries of particular concern, Australia and Argentina, are discussed
below.
According to Australia’s report to the Committee on the Rights of
the Child at the end of 2004, state, territory, and federal laws are now
standardized as to the age of criminal responsibility, which is ten years
of age. 115 However, there is a rebuttable presumption that “children
aged between 10 and 14 are incapable, or will not be held accountable,
for committing a crime, either because of the absence of criminal
intent, or because they did not know that they should not have done
certain acts or omissions.” 116 There are no child offenders convicted
under federal law serving LWOP sentences: Australian officials have
indicated that there are currently about twenty-six federal prisoners
with life sentences. Only two of those prisoners do not have a nonparole
period set, but neither of these persons were sentenced when
they were juveniles. 117
114. With respect to Cuba, a reform bill is pending that would create a juvenile justice
system, but the present law is still unclear as to whether juvenile offenders could possibly,
at some point in the future, be sentenced to LWOP.
115. Gov’t of Austl., Combined Second & Third Reports of the Government of Australia Under
the Convention on the Rights of the Child, delivered to the Committee, 72, U.N. DOC. CRC/C/
129/Add. 4 (Sept. 30, 2003) [hereinafter Australia CRC Reports], available at http://www.
unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/9118c7351dc21240c125700
7004a6026/$FILE/G0445319.pdf.
116. Id.
117. E-mail correspondence between Michelle Leighton, Dir. of Human Rights Programs,
Ctr. for Law & Global Justice, Univ. of San Francisco School of Law, and Judy Putt,
Research Manager, Australian Gov’t Inst. of Criminology (“AIC”), Canberra, Austl. (Sept.
18–30, 2007) (on file with authors). According to correspondence with the AIC:
[U]nder section 20C(1) of the Crimes Act 1914 a child or young person who is
charged with or convicted of a Commonwealth offense may be tried, punished or
otherwise dealt with as if the offence were an offence against the law of the State
or Territory in which the person is tried. This enables young federal offenders to
be dealt with in accordance with the juvenile justice systems established in each
State or Territory. Most State and Territory juvenile justice legislation contains
maximum terms of detention that may be imposed on juveniles, i.e., the NT Juvenile
Justice Act 2005 provides that a term of detention imposed on a juvenile must
not exceed 2 years (if the juvenile is over fifteen years of age) or one year (if the
juvenile is less than fifteen). The NT legislation also says a non-parole period
must be set if the sentence is over twelve months. In Victoria, the Children, Youth
and Families Act 2005 provides that a maximum term of one years detention can
be imposed on a juvenile between the age of ten and fifteen, and a maximum of
two years for juveniles over fifteen years of age. Therefore, if a juvenile federal
offender is dealt with under section 20C(1) of the Crimes Act in accordance with
the juvenile justice system of the State or Territory in which the offender is

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 24 11-AUG-08 12:15
1006 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
State practice in Australia is more difficult to evaluate in this regard.
In Queensland, children aged seventeen who are in conflict with
the law may be tried as adults in particular cases, though the authors
are not aware of any children serving LWOP sentences. 118 This was
noted of concern to the Committee on the Rights of the Child in evaluating
Australia’s compliance with its treaty obligations. 119
In New South Wales, two juveniles who were sentenced to life imprisonment
challenged a law enacted after their sentencing which
they argued would give legal weight to a judge’s recommendation that
they not be given parole and in effect cause them to be serving an
LWOP sentence. Those cases are Elliot v. the Queen 120 and Blessington v.
the Queen, 121 and both are before Australia’s High Court. 122 The High
Court rejected the arguments that the recommendation in question
had acquired the character of a legal order and interpreted the relevant
criminal sentencing acts to allow the petitioners to apply for the
determination of a minimum term and additional term after they
served twenty years of their sentence. 123
charged, it is unlikely that it would be possible for the juvenile to receive a sentence
of life imprisonment without parole.
Id. However, section 20C of the Crimes Act does not preclude a juvenile who receives a
sentence of life imprisonment from receiving an LWOP sentence. Id. Paragraph
19AB(1)(b) of the Crimes Act provides that where a court imposes a federal life sentence,
or any federal sentence exceeding three years, the court must fix either a single non-parole
period for that sentence or make a recognizance release order (release on a good behavior
bond). Id. However, under subsection 19AB(3), the court may decide to not fix a nonparole
period or make a recognizance release order if the court considers it inappropriate
to do so under the circumstances. Under subsection 19AB(4), if the court decides not to
fix a non-parole period or make a recognizance release order, then the court must give its
reasons for doing so and cause these reasons to enter into the court’s records. Id.
118. Committee on the Rights of the Child Concluding Observations to 2d & 3rd Reports submitted
by Australia to the Committee, 73, U.N. Doc. CRC/C/15/Add. 268 (Oct. 20, 2005) [hereinafter
Concluding Remarks to 2d & 3rd Reports, Australia]. It urged Australia to make
reforms to this law before its next report due January 15, 2007. Id. 74.
119. Id. 9, 10; see id. 73.
120. Elliot v. The Queen, (2007) H.C.A. 51. These cases concern the New South Wales
Crimes (Sentencing Procedure) Act of 1999. CRC Remarks to 3rd Report, Australia, supra note
118. The High Court heard oral argument in September 2007, but it is uncertain when the
cases will be decided. The transcript of the High Court hearing is accessible at http://www.
austlii.edu.au/au/other/HCATrans/2007/538.html.
121. Blessington v. The Queen (S218/2007).
122. Id. The High Court heard oral arguments in September 2007 and has now reserved
the cases for decision. See High Court of Australia Bulletin 2007, No. 10, 31, Oct.
2007 (on file with authors).
123. See supra notes 108–09; Order of final decision H.C.A. 51 (Nov. 8, 2007). The
Court found that the legislative acts did not change the authority or discretion of the province’s
supreme court review of applications seeking determinate sentencing, only the “determinate”
time period upon which petitioners could apply (which went from eight to

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 25 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1007
No other juvenile LWOP cases are known. However, should Australian
provinces allow the LWOP sentences, Australia would be in violation
of its treaty obligations under the CRC. The Committee on the
Rights of the Child was concerned with Australia’s juvenile justice system
in 2005 and with the courts’ ability to implement the treaty provisions
in the face of contrary domestic law. The Committee indicated
that it “remains concerned that, while the Convention may be considered
and taken into account in order to assist courts to resolve uncertainties
or ambiguities in the law, it cannot be used by the judiciary to
override inconsistent provisions of domestic law.” 124 In response, the
Committee further recommended that Australia “strengthen its efforts
to bring its domestic laws and practice into conformity with the
principles and provisions of the Convention, and to ensure that effective
remedies will always be available in case of violation of rights of
the child.” 125
Argentina is now a country of concern. It passed a law in 2004
that may provide for life sentences without parole for sixteen- and seventeen-year-olds
for certain crimes. 126 There are no known cases of
persons sentenced under the 2004 law for LWOP, although there are
five cases where life sentences have been given. 127
The laws and practice of the majority of the countries in the
world are reflective of the requirements of international treaties
which prohibit LWOP for offenders under the age of eighteen at the
time of the commission of the crime. The next section discusses the
status of this prohibition under international law.
III.
International Law Prohibits Life Without Possibility of
Release or Parole for Juveniles
Customary international law has recognized that the special characteristics
of children preclude them from being treated the same as
twenty years) and the criteria for further consideration, including recommendations of the
original sentencing judge, in issuing a determinate sentence. Id. paras. 18–23.
124. Concluding Remarks to 2d & 3rd Reports, Australia, supra note 118, 9 (regarding
Australia’s compliance with the treaty); see also id. 73.
125. Id. 10.
126. Cód. Pen. [PENAL CODE] art. 13 (Arg.).
127. “La mano dura y la Corte menemista podrían costarle una condena internacional
al país,” BUENOS AIRES ECONÓMICO, Jan. 23, 2008, at 8; see also E-mail from Facundo Hernández,
Legal and Social Studies of Uruguay, to Connie de la Vega, Professor of Law, Univ.
of San Francisco School of Law (Feb. 25, 2008) (on file with authors). Translated from
Spanish, the article title reads, “The hoary hand of the Menemist Court could result in an
international condemnation of the country.”

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 26 11-AUG-08 12:15
1008 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
adults in the criminal justice system. 128 To sentence a child in such a
severe manner contravenes society’s notion of fairness and the shared
legal responsibility to protect and promote child development.
Trying children in adult courts so that they can receive “adult”
punishment squarely contradicts that most basic premise behind the
establishment of juvenile justice systems: ensuring the well-being of
youth offenders. The harsh sentences dispensed in adult courts do not
take into account the lessened culpability of juvenile offenders, their
ineptness at navigating the criminal justice system, or their potential
for rehabilitation and reintegration into society.
Moreover, indeterminate sentences lack the element of proportionality
which many believe is essential in a humane punishment. 129
Indeed, the LWOP sentence penalizes child offenders more than
adults, because the child, by virtue of his or her young age, will likely
serve a longer sentence than an adult given LWOP for the same
crime.
The common law heritage of the United States and of some of
the states that allow for LWOP in their laws 130 evolved a century ago to
impose a separate punishment structure on children and to prohibit
LWOP sentences. 131 The Children Act of 1908 in England required
differentiated treatment of children and adults and “leniency in view
of the age of the offender at the time of the offense.” 132 The practice
of imposing LWOP sentences on children has been a more recent
phenomenon at the end of the last century, largely in the 1990s, by a
128. General Comment No. 10, supra note 99, 10–11.
129. Also problematic is that many states integrate youthful violent offenders with
adult state prison populations beginning at age sixteen. See generally KEVIN J. STROM, BU-
REAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SPECIAL REPORT: PROFILE OF STATE PRIS-
ONERS UNDER AGE 18, 1985–1997 (2000), available at http://www.ojp.usdoj.gov/bjs/pub/
pdf/pspa1897.pdf. These youths are at increased risk for sexual assault and violent assault.
See HRW/AI REPORT, supra note 18, at 73–80.
130. The United States, a number of Caribbean Islands, and Tanzania (which formerly
had the possibility of the LWOP sentence), which are all referred to in this Article as having
the possibility of LWOP, were all colonies inheriting the English common law tradition.
It is noted in this Article that the sentence of LWOP is not a common law tradition, but a
recent phenomenon adopted in the past decade and a half in addressing juvenile crime
rates.
131. See Brief for the Human Rights Committee of the Bar of England and Wales,
Human Rights Advocates, Human Rights Watch, and the World Organization for Human
Rights USA as Amici Curiae Supporting Respondent, at 9–11, Roper v. Simmons, 543 U.S.
551 (2005) (No. 03-633) (providing commentary by lead attorney Connie de la Vega). The
Court cited the amicus brief twice in its decision.
132. Id. at 10 (citation omitted) (referring to Lord Steyn and Lord Hope of Craighead
in a 1998 case).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 27 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1009
small minority of countries seeking harsher sentences against juvenile
offenders. 133
A. Treaties Prohibit LWOP Sentences Because of the Special
Characteristics of Children
The CRC, a treaty ratified by every country in the world except
the United States and Somalia, 134 codifies an international customary
norm of human rights that forbids the sentencing of child offenders
to LWOP. 135 In early 2007, the Committee on the Rights of the Child,
the implementation authority for the CRC, clarified this prohibition
in a General Comment: “The death penalty and a life sentence without
the possibility of parole are explicitly prohibited in article 37(a) of
CRC.” 136 The General Comment’s additional paragraph 77, titled “No
life imprisonment without parole,” further recommends that “parties
abolish all forms of life imprisonment for offences committed by persons
under the age of eighteen.” 137 Providing greater clarity to this
norm is the Committee’s interpretation of treaty obligations around
procedure for trial of juveniles, requiring nations to treat juveniles
strictly under the rules of juvenile justice. 138 This would effectively
prohibit courts from trying juveniles as adults—the primary mechanism
in United States courts and elsewhere for applying the LWOP
sentence. 139
Other recent developments in international law have highlighted
the urgent need for countries to reconsider their juvenile sentencing
policies and prohibit by law LWOP sentences for child offenders. The
prohibition is recognized as an obligation of the International Covenant
on Civil and Political Rights 140 (“ICCPR”). Article 7 prohibits
133. See supra notes 30–34 and accompanying text (discussing the rapid evolution of
LWOP sentences for children in the United States as laws emerged to allow children to be
tried in courts as adults in the 1990s); supra notes 76–82 (noting the potential for LWOP
sentences in Tanzania due to sentencing requirements for particular crimes).
134. See OHCHR, STATUS OF THE PRINCIPAL INTERNATIONAL HUMAN RIGHTS TREATIES
(June 9, 2004), available at http://www.unhchr.ch/pdf/report.pdf (reporting the ratification
status of nations for major treaties and indicating that the United States has only
provided a signature for the CRC but has not ratified it).
135. CRC, supra note 1.
136. General Comment No. 10, supra note 99, 4(c).
137. Id. 77.
138. See Id. 77, 88.
139. See infra Appendix (providing information about the United States practice of allowing
juveniles to be tried as adults).
140. International Covenant on Civil and Political Rights, Dec. 16, 1966, S. TREATY
DOC. NO. 95-20 (1992), 999 U.N.T.S. 171 [hereinafter ICCPR].

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 28 11-AUG-08 12:15
1010 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
cruel, unusual, and degrading treatment or punishment, 141 and
LWOP sentences are cruel when applied to children. Juvenile LWOP
sentences also violate Article 10(3), which provides, “The penitentiary
system shall comprise treatment of prisoners the essential aim of
which shall be their reformation and social rehabilitation. Juvenile offenders
shall be segregated from adults and be accorded treatment
appropriate to their age and legal status.” 142 In the sentencing of juvenile
persons, governments should “take account of their age and the
desirability of promoting their rehabilitation” as prescribed by Article
14(4) of the treaty. 143 This is reinforced by Article 24(l), which states
that every child shall have “the right to such measures of protection as
are required by his status as a minor, on the part of his family, society
and the State.” 144
B. The United States is in Direct Violation of its Treaty
Obligations
The United States ratified the ICCPR in 1992. 145 The Committee
on Human Rights, the oversight authority for the treaty, determined
in 2006 that the United States is not in compliance with the treaty
because it allows LWOP sentences for juveniles. The Committee made
this determination even considering that the United States had taken
a reservation to the treaty to allow the trying of juveniles in adult court
in “exceptional circumstances.” 146 The extraordinary breadth and
rapid development in the United States of sentencing child offenders
to LWOP since the United States’ ratification of the ICCPR contradicts
the assertion that the United States has applied this sentence
only in exceptional circumstances. In fact, the total number of chil-
141. Id. art. 7.
142. Id. art. 10(3).
143. Id. art. 14(4).
144. Comments on United States, supra note 38.
145. The United States ratified the ICCPR in June 8, 1992. ICCPR, supra note 140;
Office of the United Nations High Comm’r for Human Rights, ICCPR, http://
www2.ohchr.org/english/bodies/ratification/4.htm (last visited Apr. 23, 2008) (providing
list of countries ratifying the ICCPR by country name and date). In its ratification of the
ICCPR, the United States declared, “The United States reserves the right, in exceptional
circumstances, to treat juveniles as adults, notwithstanding paragraphs 2 (b) and 3 of article
10 and paragraph 4 of article 14.” Office of the United Nations High Comm’r for
Human Rights, ICCPR Declarations and Reservations, http://www2.ohchr.org/english/
bodies/ratification/4_1.htm (last visited Apr. 23, 2008).
146. Comments on United States, supra note 38.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 29 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1011
dren tried as adults and sentenced to LWOP now exceeds 2484, many
of whom were first-time offenders. 147
In evaluating the United States’ compliance with the treaty in
2006, the Committee on Human Rights found the United States to be
out of compliance with its obligations. The Committee concluded that
the United States’ practice of sentencing child offenders to LWOP
violates article 24(l), which states, “Every child shall have, without any
discrimination as to race, colour, sex, language, religion, national or
social origin, property or birth, the right to such measures of protection
as are required by his status as a minor.” 148
The Committee expressed its grave concern “that the treatment
of children as adults is not applied in exceptional circumstances
only . . . . The Committee is of the view that sentencing children to life
sentence without parole is of itself not in compliance with article 24(l)
of the Covenant.” 149
The Committee Against Torture, the official oversight body for
the Convention Against Torture, Cruel, Inhuman or Degrading Treatment
or Punishment, to which the United States is a legal party, evaluated
United States’ compliance in 2006. The committee commented
that the life imprisonment of children “could constitute cruel, inhuman
or degrading treatment or punishment,” 150 in violation of the
treaty.
Moreover, the United States has done nothing to reduce the pervasive
discrimination evident in many United States states’ applications
of the LWOP sentence to children of color. As discussed in Part
II, the rate of African American youth compared to white youth per
100,000 youths incarcerated in adult prisons is twenty-six to two. Furthermore,
youth of color in some jurisdictions receive more than 90%
of the LWOP sentences given and national rates for African Americans
are ten times those of white youth. 151
147. See supra notes 11–12.
148. Comments on United States, supra note 38.
149. Id.
150. International Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, S. TREATY DOC. NO. 100-20 (1988), 1465
U.N.T.S. 113; Office of the High Comm’r on Human Rights, 9. Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10
December 1984, http://www2.ohchr.org/english/bodies/ratification/9.htm (last visited
June 15, 2008); see Committee Against Torture, Conclusions and Recommendations of the Committee
Against Torture: United States of America, 35, U.N. Doc. CAT/C/USA/CO/2 (July 25,
2006).
151. See supra notes 22–42 and accompanying text (discussing United States practices);
see also HRW/AI REPORT, supra note 18, at 2.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 30 11-AUG-08 12:15
1012 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
The Committee on the Elimination of Racial Discrimination, the
official monitoring body for the Convention on the Elimination of
Racial Discrimination, to which the United States is a party, determined
in its Concluding Observations that juvenile LWOP sentences
are incompatible with the United States’ obligations under the treaty.
Specifically:
The Committee notes with concern that according to information
received, young offenders belonging to racial, ethnic and national
minorities, including children, constitute a disproportionate number
of those sentenced to life imprisonment without parole. (Article
5 (a))
The Committee recalls the concerns expressed by the Human
Rights Committee (CCPR/C/USA/CO/3/Rev.1, para. 34) and the
Committee against Torture (CAT/C/USA/CO/2, para. 34) with
regard to federal and state legislation allowing the use of life imprisonment
without parole against young offenders, including children.
In light of the disproportionate imposition of life
imprisonment without parole on young offenders – including children
– belonging to racial, ethnic and national minorities, the
Committee considers that the persistence of such sentencing is incompatible
with article 5 (a) of the Convention. The Committee
therefore recommends that the State party discontinue the use of
life sentence without parole against persons under the age of eighteen
at the time the offence was committed, and review the situation
of persons already serving such sentences. 152
The United Nations General Assembly (“G.A.”) has also acted on
the issue of LWOP sentences for juveniles. By a vote of 185 to one (the
United States was the only country voting against it) the G.A. passed a
resolution on December 19, 2006 153 calling upon nations to “abolish
by law, as soon as possible, the death penalty and life imprisonment
without possibility of release for those under the age of 18 years at the
time of the commission of the offense.” 154 A similar resolution was
adopted by a vote of 183 countries to one (once again, the United
States was the only country voting against it) in December of 2007. 155
International law, as expressed through international treaties and
other agreements, is the supreme “law of the land” in the United
States and should be applied in the context of juvenile sentencing.
The Supremacy Clause is the common name given to Article VI,
Clause 2 of the United States Constitution, which states:
152. Committee on Elimination of Racial Discrimination, Concluding Observations of
the United States, 21, U.N. Doc. CERD/C/USA/CO/6 (Feb. 6, 2008).
153. Rights of the Child 2006, supra note 19, 31(a).
154. Id.
155. Rights of the Child 2007, supra note 19, 36(a) (incorporating U.N. General
Assembly, Third Committee, 24, U.N. Doc. A/C.3/62/L.24 (Oct. 2007)).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 31 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1013
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall
be made, under the authority of the United States, shall be the
supreme Law of the land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution of Laws of any State
to the Contrary notwithstanding. 156
In Roper v. Simmons, 157 which abolished the practice of juvenile
executions, the United States Supreme Court considered not only the
evolution of international law, but also the evolution of the practice in
the community of nations. The Court has referred to the laws of other
countries and to international authorities as instructive for its interpretation
of the Eighth Amendment’s prohibition of “cruel and unusual
punishments.” 158
In considering constitutional values related to the death penalty,
the most severe punishment of juveniles, the Court observed:
It is difficult even for expert psychologists to differentiate between
the juvenile offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime reflects
irreparable corruption. As we understand it, this difficulty
underlies the rule forbidding psychiatrists from diagnosing any patient
under [eighteen] as having antisocial personality disorder, a
disorder also referred to as psychopathy or sociopathy, and which
is characterized by callousness, cynicism, and contempt for the
feelings, rights, and suffering of others. If trained psychiatrists with
the advantage of clinical testing and observation refrain, despite
diagnostic expertise, from assessing any juvenile under [eighteen]
as having antisocial personality disorder, we conclude that States
should refrain from asking jurors to issue a far graver condemnation—that
a juvenile offender merits the death penalty. When a
juvenile offender commits a heinous crime, the State can exact forfeiture
of some of the most basic liberties, but the State cannot
extinguish his life and his potential to attain a mature understanding
of his own humanity. 159
It has been demonstrated that a juvenile awaiting death in prison
under the LWOP sentence also has no opportunity to attain a mature
understanding of his or her own humanity.
C. The Prohibition of Juvenile LWOP Is Customary International
Law and a Jus Cogens Norm
The prohibition against sentencing child offenders to LWOP is
part of customary international law and the virtually universal con-
156. U.S. CONST. art. VI, cl. 2.
157. 543 U.S. 551 (2005).
158. Id. at 575–78.
159. Id. at 573–74 (citations omitted).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 32 11-AUG-08 12:15
1014 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
demnation of this practice can now be said to have reached the level
of a jus cogens norm. 160 Once a rule of customary international law is
established, that rule generally applies to all nations, including those
that have not formally ratified it themselves. 161
For a norm to be considered customary international law, it must
be a widespread, constant, and uniform state practice compelled by
legal obligation that is sufficiently long to establish the norm, notwithstanding
that there may be a few uncertainties or contradictions in
practice during this time. 162 The International Court of Justice (“ICJ”)
has said that “a very widespread and representative participation in
[a] convention might suffice of itself” to evidence the attainment of
customary international law, provided it included participation from
“States whose interests were specially affected.” 163 When customary
law is said to be a jus cogens norm, no persistent objection by a particular
country will suffice to prevent the norm’s applicability to all nations.
According to Article 53 of the Vienna Convention on the Law of
Treaties, it is “a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of
160. The doctrine of jus cogens focuses on the supremacy of certain customary international
law norms in regulating state practice: norms which have been “accepted and recognized
by the international community of States as a whole as [ ] norm[s] from which no
derogation is permitted and which can be modified only by [ ] subsequent norm[s] of
general international law having the same character.” Vienna Convention on the Law of
Treaties, 1155 U.N.T.S. 331 (1969); see also Connie de la Vega & Jennifer Brown, Can a
United States Treaty Reservation Provide a Sanctuary for the Juvenile Death Penalty 32 U.S.F. L.
REV. 735, 754 (1998); Vienna Convention on the Law of Treaties, supra, at 352; The Barcelona
Traction, Light and Power Company, Limited Case (Belgium v. Spain), 1970 I.C.J. 4,
paras. 33–34; IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 512–15 (4th ed.
1990); ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT
(1994); de la Vega & Brown, supra, at 759–62.
161. The exception is a nation that has persistently objected to the rule, provided it has
not already become a rule of customary international law that has reached the level of a jus
cogens norm.
162. The Anglo-Norwegian Fisheries Case (U.K. v. Norway), 1951 I.C.J. 116, 138–39;
Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v. U.S.), 1986
I.C.J. 14, 98, para. 186.
163. North Sea Continental Shelf Cases (FRG v. Denmark; FRG v. Netherlands) 1969
I.C.J. 3, paras. 73–74 (finding that “although the passage of only a short period of time is
not necessarily, or of itself, a bar to the formation of a new rule of customary international
law on the basis of what was originally a purely conventional rule, an indispensable requirement
would be that within the period in question, short though it might be, State practice,
including that of States whose interests are specially affected, should have been both extensive
and virtually uniform in the sense of the provision invoked; and should moreover have
occurred in such a way as to show a general recognition that a rule of law or legal obligation
is involved”).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 33 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1015
general international law having the same character.” 164 This definition
is accepted by most legal scholars in and outside of the United
States. 165 Moreover, United States law recognizes that customary international
law is part of domestic United States law and binds the government
of the United States. 166
The International Law Commission has included this principle
among those in its Draft Articles on State Responsibility. 167 It commented
that “the obligations arise from those substantive rules of conduct
that prohibit what has come to be seen as intolerable because of
the threat it presents to the survival of states and their peoples and the
most basic human values.” 168
The current President of the ICJ, the Honorable Rosalyn Higgins,
has stated that what is critical in determining the nature of the norm
as a jus cogens norm is both the practice and opinio juris of the vast
majority of nations. 169 It is important to look at the legal expectations
of the international community of nations and their practice in conformity
with those expectations. As such, G.A. resolutions can provide
evidence of such expectations. 170
The prohibition of LWOP fulfills these requisites for three reasons:
(1) there is a widespread and consistent practice by countries to
not impose a sentence of LWOP for child offenders as a measure that
is fundamental to the basic human value of protecting the life of a
child; (2) the imposition of such sentences is relatively new and now
practiced by only one nation, the United States—all of the other states
which had taken up the practice have joined the global community in
abolishing the sentence; and (3) there is virtually universal acceptance
that the norm is legally binding, as codified by the CRC and elsewhere,
and requires countries to abolish this practice, as evidenced by
164. Vienna Convention on the Law of Treaties, supra note 160.
165. See, e.g., RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § n102 (1986); SEAN
MURPHY, PRINCIPLES OF INTERNATIONAL LAW 82 (2006).
166. See, for example, the United States Supreme Court opinion in The Paquete Habana,
175 U.S. 677, 699 (1900), discussing the place of international law in domestic
United States law.
167. See Art. 40, and the Commentary, Draft Articles on Responsibility of States for
Internationally Wrongful Acts, available at http://untreaty.un.org/ilc/texts/instruments/
english/commentaries/9_6_2001.pdf. The International Law Commission (“ILC”)
adopted the draft articles and Commentary at its 53rd session in 2001. ILC, Draft Articles
on Responsibilities of States for Internationally Wrongful Acts, With Commentaries, available
at http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.
168. See ILC, supra note 167, at 112 (providing paragraph 3 of Commentary to Article
40).
169. See HIGGINS, supra note 160, at 22.
170. Id. at 23.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 34 11-AUG-08 12:15
1016 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
the most recent U.N. General Assembly resolution 61/146 (discussed
above).
First, there is only one country that is known to still practice the
sentencing of juveniles to LWOP, have children serving the sentence,
or both: the United States. Second, the sentence has not been consistently
and historically applied to child offenders. Even in the United
States, the sentence was not used on a large scale until the 1990s when
crime reached record levels. 171 It was only between 1992 and 1995
that forty states and the District of Columbia all passed laws increasing
the options for sending juveniles to adult courts. 172 Before this time,
the sentence had been rarely imposed. 173 Third, there is near universal
acceptance that the norm is legally binding, as codified by CRC
article 37, which prohibits LWOP sentences for juveniles. All but two
countries are party to the CRC (the United States and Somalia), and
all countries except the United States have ended the practice of using
this sentence in accordance with their treaty obligations.
The Human Rights Committee found that this sentence violates
the ICCPR, in evaluating the United States’ report to the Committee,
as the treaty ensures that every child has the right to such measures
necessary to protect his or her status as a minor. 174 Trying and sentencing
a child as an adult violates that minor’s status. Applying a
serious adult sentence to a child also implicates article 7 of the ICCPR
relating to cruel, inhuman, and degrading treatment, as was also suggested
by the Committee Against Torture.
In addition to the legal prohibition recognized in the context of
treaty law, countries have reinforced their obligation to uphold this
norm in a myriad of international resolutions and declarations over
the past two decades. The General Assembly resolution 61/146 of December
2006, calling for the immediate abrogation of the LWOP sentence
for juveniles in any country applying the penalty, is one that
grew from many other international legal pronouncements. 175
171. Note that crime levels reached their peak in 1994 and have been declining since.
See Fraser, supra note 39.
172. Id.
173. From 1962 until 1981, an average of two youth offenders in the United States
entered prison each year with LWOP sentences. See HRW/AI REPORT, supra note 18, at 31.
174. Comments on United States, supra note 38, 34.
175. Rights of the Child 2006, supra note 19, 31(a). The authors read the statement
by the Committee that the juvenile LWOP sentence is out of compliance with Art. 24 to
mean that “compliance” with treaty obligations would require abolition of this sentence.
The authors consider that failure to comply with a substantive provision of the ICCPR,
such as Art. 24, is a violation of the government’s treaty obligations, particularly as country
parties expect other country parties to comply with the treaty’s substantive provisions.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 35 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1017
Prior to this, the G.A. had adopted other statements on the subject
which serve as evidence of nations’ expectations that all members
of the international community of nations should respect this norm.
In 1985, the G.A. adopted the United Nations Standard Minimum
Rules for the Administration of Juvenile Justice (“Beijing Rules”), reiterating
that the primary aim of juvenile justice is to ensure the wellbeing
of the juvenile and that confinement shall be imposed only after
careful consideration and for the shortest period possible. 176 The
Commentary to these rules indicates that punitive approaches are not
appropriate for juveniles and that the well-being and the future of the
offender always outweigh retributive sanctions. 177
Similarly, in 1990 the G.A. passed two resolutions extending protections
for incarcerated juveniles: the U.N. Rules for the Protection
of Juveniles Deprived of Their Liberty 178 and the U.N. Guidelines for
the Prevention of Juvenile Delinquency 179 (“Riyadh Guidelines”).
Both resolutions consider the negative effects of long-term incarceration
on juveniles. The Riyadh Guidelines state that “no child or young
person should be subjected to harsh or degrading correction or punishment.”
180 Additionally, the U.N. Rules for the Protection of
Juveniles Deprived of Their Liberty emphasizes imprisonment as a last
resort and for the shortest time possible. 181
Every year for the last decade of its existence, the U.N. Commission
on Human Rights emphasized the need for the global community
to comply with the principle that depriving juveniles of their
liberty should only be a measure of last resort and for the shortest
appropriate time. 182 Its resolutions consistently called for this compli-
176. Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing
Rules”), G.A. Res. 40/33, U.N. Doc. A/40/53 (Nov. 29, 1985) [hereinafter Beijing Rules],
available at http://www.unhchr.ch/html/menu3/b/h_comp48.htm.
177. Id.; see id. at Rule 17.1(d) (Commentary).
178. United Nations Rules for the Protection of Juveniles Deprived of Their Liberty,
G.A. Res. 45/113, U.N. Doc. A/RES/45/113 (Dec. 14, 1990), available at http://www.
un.org/documents/ga/res/45/a45r113.htm.
179. United Nations Guidelines for the Prevention of Juvenile Delinquency (“The Riyadh
Guidelines”), G.A. Res. 45/112, 46, U.N. Doc. A/RES/45/112 (Dec. 14, 1990)
[hereinafter Riyadh Guidelines], available at http://www.un.org/documents/ga/res/45/
a45r112.htm.
180. Id. 54.
181. United Nations Rules for the Protection of Juveniles Deprived of Their Liberty,
supra note 178, arts. 1–2.
182. Human Rights in the Administration of Justice, in Particular of Children and
Juveniles in Detention, Comm’n on Human Rights Res. 1996/32, 13, U.N. Doc. E/
CN.4/RES/1996/32 (Apr. 19, 1996); Human Rights in the Administration of Justice, in
Particular of Children and Juveniles in Detention, Comm’n on Human Rights Res. 1998/

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 36 11-AUG-08 12:15
1018 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
ance, and in 2005, it further called specifically for the abolition of the
juvenile LWOP sentences. 183 The Commission’s replacement body,
the Human Rights Council, included the prohibition in its first substantive
resolution on the rights of the child. 184
A near universal consensus has coalesced over the past fifteen
years and even accelerated in the last several years, as evidenced by
the recently passed G.A. Resolutions 62/141 and 61/146, the 2006
Conclusions and Recommendations of the Human Rights Committee
discussing the United States’ practice of sentencing juveniles to
LWOP, the similar observations of the Committee Against Torture,
and the 2007 Committee on the Rights of the Child’s General Comment
on Juvenile Justice. Indeed, because only one country, the
United States, now applies this sentence and holds 100% of the cases,
the prohibition against the sentence can now be said to have reached
the level of a jus cogens norm, a practice no longer tolerated by the
international community of nations as a legal penalty for children. In
sum, the United States alone is violating international law by allowing
its courts to impose this penalty on children.
IV.
Juvenile Justice and Rehabilitation Models
The ICCPR and the CRC provide that deprivation of liberty for
child offenders be a “measure of last resort.” As previously explained,
the Beijing Rules and the Riyadh Guidelines consider long-term incarceration
of juvenile offenders antithetical to the purpose and meaning
of juvenile justice. 185 The Human Rights Council recognized the
39, 15, U.N. Doc. E/CN.4/RES/1998/39 (Apr. 17, 1998); Rights of the Child, Comm’n
on Human Rights Res. 1999/80, 28, U.N. Doc. E/CN.4/RES/1999/90 (Apr. 28, 1999);
Rights of the Child, Comm’n on Human Rights Res. 2000/85, 36, U.N. Doc. E/CN.4/
RES/2000/85 (Apr. 27, 2000); Rights of the Child, Comm’n on Human Rights Res. 2001/
75, 28, U.N. Doc. E/CN.4/RES/2001/75 (Apr. 25, 2001); Rights of the Child, Comm’n
on Human Rights 2002/92, 31, U.N. Doc. E/CN.4/RES/2002/92 (Apr. 26, 2002); Rights
of the Child, Comm’n on Human Rights 2003/86, U.N. Doc. E/CN.4/RES/2003/86 (Apr.
25, 2003); Rights of the Child, Comm’n on Human Rights 2004/48, 35, U.N. Doc. E/
CN.4/RES/2004/48 (Apr. 14, 2004). The Commission was replaced thereafter by the
Human Rights Council which has only in 2007-08 begun to adopt thematic resolutions
again.
183. See supra note 182 and accompanying text; Rights of the Child, Comm’n on
Human Rights 2005/44, U.N. Doc. E/CN.4/RES/2005/44 (2005).
184. Rights of the Child, Comm’n on Human Rights 31 (2008) [hereinafter Rights of
the Child 2008], http://www2.ohchr.org/english/bodies/hrcouncil/docs/7session/A-
HRC-7-L11-Add1.doc.
185. “The institutionalization of young persons should be a measure of last resort and
for the minimum necessary period, and the best interests of the young person should be of
paramount importance.” Riyadh Guidelines, supra note 179, 46.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 37 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1019
importance of alternatives to imprisonment of juveniles at its March
2008 session. 186 The following examples of alternative sentencing
structures focusing on rehabilitation and reduction of recidivism represent
only a few options of the many available to states in improving
their juvenile justice practices.
A. The German Model of Alternative Sentencing and Juvenile
Rehabilitation
The German model of juvenile rehabilitation, or restorative justice,
is an example of a juvenile justice system focused on rehabilitation.
In the 1970s, Germany withdrew traditional sentencing for
juveniles. 187 The conventional model gave way to alternative measures
in the 1970s enumerated in the Juvenile Justice Act (“JJA”), including
suspensions, probation, community service, and a system of dayfines.
188 As a result, between 1982 and 1990, incarceration of
juveniles in Germany decreased more than 50%. 189
In 1990, the JJA was amended to include additional alternatives
to incarceration. 190 In the case of juvenile offenders (fourteen to seventeen
years of age), the German criminal justice system predominately
aims to educate the juvenile and provides for special
sanctions. 191 Initially, education and disciplinary measures are implemented.
192 Only if those measures are unsuccessful is youth imprisonment
with the possibility of suspension and probation used. 193
The current JJA emphasizes release and discharge of child offenders
when the severity of the crime is balanced with “social and/or
educational interventions that have taken place.” 194 Included in Ger-
186. Rights of the Child 2008, supra note 184, 32.
187. Dr. Christian Pfeiffer, Alternative Sanctions in Germany: An Overview of Germany’s Sentencing
Practices, Presentation for the Nat’l Inst. of Justice Research in Progress Seminar
Series, Washington, D.C., (Feb. 1996), available at http://www.ncjrs.gov/pdffiles/germany.
pdf.
188. Id.
189. Id.
190. Frieder Dünkel, Juvenile Justice in Germany: Between Welfare and Justice § 1
(Mar. 8, 2004), available at http://www.esc-eurocrim.org/files/juvjusticegermany_betw_
welfar_justice.doc.
191. Lars Horst, Rehabilitation of Juvenile Offenders in South Africa and Germany—A
Comparison 9 (2005) (unpublished Master of Law dissertation, Univ. of Cape Town, S.
Afr.), available at http://lawspace.law.uct.ac.za:8080/dspace/bitstream/2165/52/1/Horst
L+2005.pdf.
192. Id.
193. Id.; see also Jugendgerichtsgesetz [Juvenile Justice Act], 1990, §9, 13, 21, and 27
(F.R.G.).
194. Dünkel, supra note 190 (citing Juvenile Justice Act §§ 45(1)–(2)).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 38 11-AUG-08 12:15
1020 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
many’s innovative system of juvenile justice and rehabilitation is the
equal value given to efforts of reparation to the victim, participation
in victim-offender reconciliation (mediation), and education programs.
195 Furthermore, the German model does not restrict rehabilitation
and justice by the nature of the offense. Additionally, felony
offenses can be reduced or “diverted” under certain circumstances,
“e. g. a robbery, if the offender has repaired the damage or made
another form of apology (restitution/reparation) to the victim.” 196
Prison sentences for child offenders are a sanction of last resort,
ultima ratio, in line with international norms including CRC and the
Beijing Rules. 197 For child offenders between fourteen and seventeen
years of age, the minimum length of youth imprisonment is six
months and the maximum is five years. 198 In cases of very serious
crimes for which adults could be punished with more than ten years of
imprisonment, the maximum length of youth imprisonment is ten
years. 199 Additionally, there is no possibility of death sentences or
LWOP for child offenders. The low level of juvenile recidivism is a
testament to the success of this innovative system.
B. The New Zealand Family Group Conference Model and
Juvenile Rehabilitation
New Zealand began utilizing the approach of restorative justice as
an alternative for juveniles in the criminal system in 1989 with the
passage of the Children, Young Persons, and Their Families Act 200
(“Act”). The Act provides for a Family Group Conference (“Conference”)
as a first step for dealing with a juvenile offender. 201 These
Conferences have now become the lynch-pin of the New Zealand
youth justice system, both as pre-charge mechanisms to determine
195. Id. § 2.
196. Id.
The situation is different in the general penal law for adults (> 18 or 21 years old)
where diversion according to §§ 153 ff. of the Criminal Procedure Act is restricted
to misdemeanours. Felony offences (i.e. [sic] crimes with a minimum prison sentence
provided by law of one year) are excluded.
Id. § 2 n.3.
197. See Juvenile Justice Act, §§ 5(2), 17(2); see also Beijing Rules, supra note 176, 17.1
(restricting youth imprisonment to cases of serious violent crimes or repeated violent or
other crimes if there seems to be no other appropriate solution).
198. Dünkel, supra note 190, § 2.
199. Id.
200. Children, Young Persons, and Their Families Act 1989, 1989 S.R. No. 24 (N.Z.),
available at http://www.legislation.govt.nz/act/public/1989/0024/latest/DLM147088.
html.
201. Id. § 22.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 39 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1021
whether prosecution can be avoided, and also as post-charge mechanisms
to determine how to address cases admitted or proved in the
Youth Court. 202
The purpose of the Conference is to establish a safe environment
in which the young offender, family members and others invited by
the family, the victim or a representative, a support person for the
victim, the police, and a mediator or manager of the process may
come together to discuss the various issues. Sometimes a social
worker, a lawyer, or both are also present. 203
The main goal of a Conference is to formulate a plan about how
best to deal with the offending youth. It consists of three integral
components. First, the participants seek to ascertain whether or not
the young person admits to the offense—this is a necessary component
for the process to go forward. 204 Next, information is shared
among all the parties at the Conference about the nature of the offense,
the effects of the offense on the victim or victims, the reasons
for the offense, any prior offenses committed by the young person,
and other information relevant to the dialogue. 205 Third, the participants
decide on an outcome or recommendation. 206 The Act requires
the police to comply with the recommendations/agreements adopted
and findings made by the Conference. 207
The New Zealand model for family group conferencing is largely
inspired by traditional Maori justice practices. 208 Modern day family
group conferencing incorporates traditional Maori beliefs “that responsibility
was collective rather than individual and redress was due
not just to the victim but also to the victim’s family.” 209 “Understanding
why an individual had offended was also linked to this notion of
collective responsibility. The reasons were felt to lie not in the individual
but in a lack of balance in the offender’s social and family envi-
202. New Zealand Ministry of Justice, Youth Justice Process in New Zealand—Family
Group Conferencing, http://www.justice.govt.nz/youth/fgc.html (last visited Mar. 29,
2008).
203. Allison Morris & Gabrielle Maxwell, Restorative Justice in New Zealand: Family Group
Conferences as a Case Study, 1 WESTERN CRIMINOLOGY REV. 1 (1998), available at http://wcr.
sonoma.edu/v1n1/morris.html.
204. Id.
205. Id.
206. Id.
207. Children, Young Persons, and Their Families Act 1989, § 35, 1989 S.R. No. 24
(N.Z.).
208. Morris & Maxwell, supra note 203.
209. Id.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 40 11-AUG-08 12:15
1022 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
ronment.” 210 This understanding focuses on the need to address the
causes of this imbalance in a collective manner. 211 The emphasis is
placed on restoring the harmony between the offender, the victim,
and the victim’s family. 212
There are now 8000 Family Group Conferences held every year in
New Zealand, and as a result, 83% of youth offenders are diverted
from the criminal justice system. 213 Imprisonment and the use of
youth justice residences have dropped significantly with the use of
Conferences. 214 This alternative to juvenile sentencing provides an
excellent model for other states to follow in seeking to decrease juvenile
incarceration and recidivism rates.
C. The Georgia Justice Project’s Holistic Approach to Juvenile
Rehabilitation
In the United States, the Georgia Justice Project (“GJP”) also
utilizes an innovative approach to breaking the cycle of crime and
poverty among children in Atlanta, Georgia. 215 A privately-funded
nonprofit organization, GJP minimizes rates of recidivism amongst
juveniles by incorporating counseling, treatment, and employment
and education programs with its legal services. 216 Its rate of recidivism
is 18.8%, as compared to the national United States average of over
60%. 217
Working with underprivileged minorities in the DeKalb and
Fulton counties of Georgia, GJP works with its juvenile clients to form
a relationship that extends beyond legal representation. 218 Recognizing
that juvenile offenses typically indicate deeper problems such as
lack of familial support, insufficient access or motivation for educa-
210. Id.
211. Id.
212. Id.
213. A.J. BECROFT, YOUTH JUSTICE FAMILY GROUP CONFERENCES: A QUICK “NIP AND
TUCK” OR TRANSPLANT SURGERY—WHAT WOULD THE DOCTOR ORDER IN 2006 8 (2006),
available at http://www.cyf.govt.nz/documents/becroft_paper.pdf (presenting Judge
Becroft’s views on family group conferences at an international conference in Wellington,
New Zealand).
214. Id.
215. Georgia Justice Project, About the Georgia Justice Project, http://www.gjp.org/
about (last visited Mar. 31, 2008) [hereinafter About the GJP].
216. Id.
217. Georgia Justice Project, GJP Programs, http://www.gjp.org/programs (last visited
Feb. 19, 2000) [hereinafter GJP Programs]. The authors note, however, that the referenced
statistic includes both juvenile and adult clients. See id.
218. Georgia Justice Project, GJP Legal Services, http://www.gjp.org/programs/legal
(last visited Mar. 29, 2008).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 41 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1023
tion, poverty, and lack of access to employment opportunities, GJP
works on the criminal defense of the child offender as well as provides
a breadth of other programs that reduce the likelihood of recidivism.
219 Along with an attorney, each child offender is paired with a
licensed social worker. 220 As a team, the attorney, social worker, and
juvenile work together on the case and accompany the juvenile
through the entire process. 221 If the judicial proceedings result in incarceration,
GJP maintains close contact with the juvenile both during
and after incarceration. 222 In this context, GJP provides incentives
and support as the child offender rebuilds his or her life. This support
is often a critical component in breaking the cycle of crime and
poverty.
D. The Annie E. Casey Foundation’s Juvenile Detention
Alternatives Initiative
The Juvenile Detention Alternatives Initiative program (“JDAI”),
which has eighty sites in twenty-one states and the District of Columbia,
has focused its attention on eight “core strategies” to minimize
juvenile delinquency and rehabilitate youth. 223 Notable strategies include
encouraging collaboration between juvenile justice agencies
and community organizations, new or enhanced alternatives to detention
(such as electronic monitoring), case processing reforms to reduce
length of stay in custody, and reducing racial disparities. 224
While children who pose a danger to the community are still detained,
the program’s focus is to stop deviant behavior before children
fall into a life of crime.
In Santa Cruz, California, the ten-year-old JDAI program is considered
a model. It offers health and drug abuse counseling, resume
writing, and computer classes, as well as provides meditation classes
and an adult mentor for advice and guidance. Following the JDAI program,
Santa Cruz has seen the number of children in detention per
day decrease from 46.7 to 15.9 on average, saving millions of dollars
219. Id.
220. GJP Programs, supra note 217.
221. About the GJP, supra note 215.
222. Georgia Justice Project, GJP Social Services, http://www.gjp.org/programs/social
(last visited June 5, 2008).
223. Annie E. Casey Found., Results from the Juvenile Detention Alternatives Initiative,
http://www.aecf.org/MajorInitiatives/JuvenileDetentionAlternativesInitiative/JDAIRe
sults.aspx (last visited Feb. 19, 2008) [hereinafter JDAI Results].
224. Annie E. Casey Found., Core Strategies, http://www.aecf.org/MajorInitiatives/
JuvenileDetentionAlternativesInitiative/corestrategies.aspx (last visited Mar. 29, 2008).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 42 11-AUG-08 12:15
1024 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
per year for the state. 225 Other counties have followed suit with great
success. Among others, New Mexico’s Bernalillo County JDAI site reduced
its average daily detention population by 58% between 1999
and 2004, 226 and New Jersey’s Essex County lowered its average daily
population by 43% in just two years. 227 In addition, Ada County,
Idaho, Pierce County, Washington, and Ventura County, California,
have all decreased detention populations by at least one-third since
implementing the program. 228
E. The Bridge City Center for Youth, Louisiana
After finding that the Bridge City Correctional Facility had serious
problems of abuse and youth violence, the United States Department
of Justice recommended immediate reform. 229 However, it was
not until the death of a child inmate and resulting public protest that
the facility began to restructure in earnest and comply with the newly
enacted Juvenile Justice Reform Act. 230 The facility was shut and reorganized
with the help of the Annie E. Casey Foundation and the Mac-
Arthur Foundation, reopening in 2005. 231 The reforms abolished the
prior boot-camp style youth facility, in which juvenile inmates were
treated like adults, and established a home-like environment focusing
on therapeutic care and rehabilitation. 232
In 2005, the center housed approximately seventy young men,
ranging from thirteen to twenty years old, in individual dormitories
for about eight to twelve persons. 233 The dormitories, which replaced
the concrete cells, are carpeted and contain colorful quilts, pillows,
curtains, and couches to create a home-like atmosphere. Each dormitory
conducts a series of daily “circles” where the young men gather to
discuss concerns or complaints together in order to come to nonvio-
225. JDAI Results, supra note 223.
226. Id.
227. Id.
228. Id.
229. Letter from Deval Patrick, Assistant Attorney Gen., Civil Right Div., U.S. Dep’t of
Justice, to Mike Foster, Governor, State of La. (July 15, 1996), available at http://www.
usdoj.gov/crt/split/documents/lajuvfind3.htm (regarding investigation of secure correctional
facilities for children in Louisiana).
230. Katy Reckdahl, Bayou Betterment: In Louisiana, a New Juvenile Justice System Is Emerging,
with the Governor’s Strong Support, AM. PROSPECT, Aug. 15, 2005, at A15, available at http:/
/www.prospect.org/cs/articlesarticle=bayou_betterment.
231. Id.
232. Id.
233. Id.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 43 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1025
lent, group-approved solutions to problems. 234 The youths also have
daily access to education, mental health, social services, and substance-abuse
treatment. 235
The success of the Bridge City Center for Youth is being replicated
throughout the state at other juvenile facilities. 236 Though relatively
new, the Annie E. Casey Foundation and the Juvenile Justice
Project commended the program as a model state juvenile facility.
These and other juvenile justice reforms in Louisiana contributed to a
reduction in recidivism among youths from 2004 to 2006 by 23%. 237
V. Conclusions and Recommendations
The LWOP sentence condemns a child to die in prison. It is
cruel and ineffective as a punishment, it has no deterrent value, and it
contradicts our modern understanding that children have enormous
potential for growth and maturity in passing from youth to adulthood.
The sentence further prevents society from ever reconsidering a
child’s sentence and denies the widely held expert view that children
are amenable to rehabilitation and redemption.
The international community has outlawed this sentencing practice
and considers it a violation of state obligations to protect the status
of a child. States are required to seek recourse in criminal
punishment toward more rehabilitative models of justice. The LWOP
sentence for juveniles is a direct violation of CRC, the Convention
Against Torture, and ICCPR, as well as customary international law.
The United States is also out of compliance with the Convention on
the Elimination of Racial Discrimination in the application of this sentence
disproportionately among youth of color. The fact that the
United States is the only country in the world with juveniles serving
these sentences alone evidences the clear consensus in the world regarding
this prohibition.
Nonetheless, efforts should continue towards complete abolition
in the few countries where the sentence still remains a possibility. In
regard to the remaining countries of concern, the authors commend
234. See id.
235. Kathleen Babineaux Blanco, Governor, State of La., Bridge City Dedication (July
14, 2005) (transcript available at http://blancogovernor.com/index.cfmmd=newsroom&
tmp=detail&articleID=857).
236. JUVENILE JUSTICE PROJECT OF LA., ANNUAL REPORT 15 (2005 & 2006), available at
http://www.jjpl.org/ar06.pdf.
237. La. Office of Youth Dev., Profile of Recidivism in Office of Youth Development
(Jan. 25, 2008), available at http://www.oyd.louisiana.gov/statistics-05-oyd/1f.pdf.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 44 11-AUG-08 12:15
1026 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
Tanzania and South Africa for their recent official agreement and
clarification removing the possibility of this sentence. However, the
implementation of promised legal reforms should immediately begin
if they are to ensure compliance with obligations under CRC and international
law, in particular in South Africa where passage of the
Child Justice Bill would clarify abolition of juvenile LWOP sentencing
under any circumstances. The authors also welcome Israel’s clarification
of its laws and welcome the review of decisions of lower courts
and the military commanders in the Occupied Territories by its Supreme
Court.
Nine other countries still need to clarify the ambiguities in their
own laws to confirm the prohibition of the LWOP sentence for
juveniles: Antigua and Barbuda, Australia, Belize, Brunei, Cuba, Dominica,
Saint Vincent and the Grenadines, the Solomon Islands, and Sri
Lanka. In particular, Australia must clarify its law most urgently to prevent
at least one province from moving in the opposite direction of
allowing LWOP sentences for juveniles. Argentina must address the
potential effects of its 2004 law and amend it to ensure that it does not
result in LWOP sentences. And Israel should continue to review its
lower court and military court decisions.
The authors commend the efforts of governments, international
organizations, and NGOs for their efforts in the past few years to more
urgently bring non-complying governments into compliance with international
law and standards of juvenile justice. To solidify these
changes, the authors conclude by recommending the following:
Countries should continue to denounce the practice of sentencing
juveniles to LWOP as against international law, to condemn the
practice of the United States government in allowing such sentencing,
and to call upon those where the law may be ambiguous to institute
legal reforms confirming the prohibition of such sentencing. The removal
of barriers to the enforcement of international standards, expansion
of juvenile justice models to focus more extensively on
rehabilitation programs, including education, counseling, employment
and job training, and social or community service programs, and
evaluation of these models to ensure protection of the rights of
juveniles should be encouraged.
The United States should abolish the LWOP sentence under federal
law and undertake efforts to bring all the states into compliance
with the nation’s international obligations to prohibit this sentencing.
This change would necessarily include rectification of the sentences of
those juvenile offenders now serving LWOP. The United States should

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 45 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1027
also evaluate the disproportionate sentencing of minorities in the
country and work more expeditiously to eradicate the widespread discrimination
in the country’s juvenile justice system, including to consider
more equitable and just rehabilitation models as described in
this Article. Lastly, the United States should monitor and publish data
on child offenders serving LWOP sentences in each state where this
occurs. It should also provide information to these states on the status
of international law, particularly on the concluding observations of
the treaty bodies that have reviewed United States practices in this
area. The children in the United States cannot be worse in their nature
or their offenses than those in all other countries. They should
not be treated as if they are.
Acknowledgements
The authors would like to thank a number of legal practitioners,
advocates, and scholars who provided valuable data, insights, and/or
editorial review for the original report upon which this Article is
based. In particular, the authors thank Tim Arnold, Rebecca Hobbs,
and Kathleen Schmidt of the Kentucky Department of Public Advocacy;
Pat Arthur, National Center for Youth Law, California; Bradley
Bridge, Public Defender, Defender Association of Pennsylvania; Sandra
Coliver, Open Society Institute, New York; Rodger Dillon, California
Senate Committee on Labor and Industrial Relations; Mary Ellen
Johnson, Pendulum Foundation, Colorado; Pierre Marc Johnson,
Heenan Blaikie, Quebec; Barry Krisberg, Susan Marchionna, and
Christopher Hartney, National Council on Crime and Delinquency,
California; Deborah LaBelle, Juvenile Life Without Parole Initiative,
Michigan; Marsha Levick, Juvenile Law Center, Pennsylvania; Lia
Monahon, Children’s Law Center of Massachusetts; Ann Skelton, Carina
du Toit, and Tonaldah Ngidi, Centre for Child Law, University of
Pretoria, South Africa; and Brian Steveneson, Equal Justice Initiative,
Montgomery, Alabama, and New York University Law Professor. The
authors are tremendously appreciative of the partnership with Brian
Foley, Visiting Associate Professor, Drexel University College of Law,
Pennsylvania, in developing the Appendix on United States law, and
the time and research dedicated by University of San Francisco School
of Law Librarian, Jill Fukunaga. They also thank Nick Imparato, Professor,
University of San Francisco School of Business and Management,
for facilitating and participating in key diplomatic meetings.
The authors were fortunate to have the design services of Jamie Leighton,
JLL Designs, the editorial acumen of Angie Davis, Communica-

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 46 11-AUG-08 12:15
1028 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
tions Director, University of San Francisco School of Law, and the
consultation of Lori Teranishi, Van Prooyen Greenfield, LLP, on the
authors’ original report.
The authors also wish to recognize Dean Jeffrey Brand’s support
for the project and the outstanding research of University of San Francisco
law students who contributed to this content and earlier reports
to the United Nations. They particularly acknowledge the stellar research
assistance of Jennifer Porter who worked throughout the summer
and fall terms of 2007, as well as Nicole Skibola, Patricia
Fullinwider, and Angela Fitzsimons, who helped to prepare earlier
United Nations reports on the subject. They also thank law students
Amanda Solter and Marie Montesano.
The Center for Law and Global Justice, University of San Francisco
School of Law, works university-wide in a multi-disciplinary environment,
recognizing that promoting the rule of law with justice
requires cooperation among all disciplines (http://www.usfca.edu/
law/home/CenterforLawandGlobalJustice/index.html). The work of
the USF Center for Law and Global Justice and Frank C. Newman
International Human Rights Law Clinic is made possible at the United
Nations through the close collaboration of Human Rights Advocates
(“HRA”) and its Board of Directors. HRA (http://www.humanrights
advocates.org) is a non-profit organization dedicated to promoting
and protecting international human rights. It participates actively in
the work of various United Nations human rights bodies, using its status
as an accredited NGO.
The Project itself and its accomplishments in advocating for the
abolition of juvenile life without parole sentences around the world
would not have been possible without the generous support of the
JEHT Foundation in New York. JEHT’s assistance to the USF Center
for Law and Global Justice enhanced the Center’s ability and capacity
to work directly with NGOs in the United States, at the United Nations,
and in the field, as well as with governments and international
organizations.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 47 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1029
Appendix*
At a Glance
43 STATES ALLOW JLWOP
12 STATES AND THE DISTRICT OF COLUMBIA EITHER DO NOT ALLOW
OR DO NOT APPEAR TO PRACTICE JLWOP SENTENCES
7 STATES AND THE DISTRICT OF COLUMBIA PROHIBIT IT
Alaska, Colorado, Kansas, Kentucky, Montana, New Mexico, Oregon,
District of Columbia
5 STATES HAVE NO CHILDREN KNOWN TO BE SERVING THE SENTENCE
THOUGH THEY ALLOW JLWOP BY LAW
Maine, New Jersey, New York, Utah, Vermont
1 STATE APPLIES ONLY TO JUVENILES AT AGE 16 OR ABOVE
Indiana
2 STATES APPLY ONLY TO JUVENILES AT AGE 15 OR ABOVE
Louisiana and Washington
13 STATES APPLY ONLY TO JUVENILES AT AGE 14 OR ABOVE
Alabama, Arizona, Arkansas, California, Connecticut, Iowa, Massachusetts,
Minnesota, New Jersey, North Dakota, Ohio, Utah,
Virginia
7 STATES APPLY ONLY TO JUVENILES AT AGE 13 OR ABOVE
Georgia, Illinois, Mississippi, New Hampshire, North Carolina,
Oklahoma, Wyoming
1 STATE APPLIES ONLY TO JUVENILES AT AGE 12 OR ABOVE
Missouri
* This state law survey was compiled by Michelle Leighton, Director Human Rights
Programs, University of San Francisco School of Law, and Brian J. Foley, Visiting Associate
Professor of Law, Drexel University College of Law, with assistance from Bradley Bridge,
Assistant Defender, Defender Association of Philadelphia, PA, Jill Fukunaga, Law
Librarian, University of San Francisco School of Law, and Jennifer Porter, Legal Intern,
Center for Law and Global Justice, Graduate of the University of San Francisco School of
Law. The authors updated this survey for publication with the accompanying Article. The
U.S.F. Law Review updated these citations to reflect the most recent versions of the
referenced code sections available.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 48 11-AUG-08 12:15
1030 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
4 STATES APPLY ONLY TO JUVENILES AT AGE 10 OR ABOVE
South Dakota, Texas, Vermont, Wisconsin
1 STATE APPLIES ONLY TO JUVENILES AT AGE 8 OR ABOVE
Nevada
14 STATES COULD APPLY LWOP AT ANY AGE
Delaware, Florida, Hawaii, Idaho, Maine, Maryland, Michigan,
Nebraska, New York, Pennsylvania, Rhode Island, South Carolina,
Tennessee, West Virginia

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 49 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1031
Summary of State Law with Citations in the United States
2007
ALABAMA
Imposes JLWOP (discretionary) Minimum age 14.
ALA. CODE § 13A-5-40 (LexisNexis 2005 & Supp. 2007) (LWOP
for murder); see also §§ 13A-5-6, 13A-5-9 (2005) (LWOP habitual
offenders).
ALA. CODE § 12-15-34 (LexisNexis 2005 & Supp. 2007)
(prosecutorial discretion to transfer any child fourteen years or older
to adult criminal court, with transfer hearing needed).
ALASKA
Does not impose JLWOP.
ALASKA STAT. § 12.55.125(a), (h), (j) (2006) (providing
mandatory ninety-nine-year sentences for enumerated crimes, discretionary
ninety-nine-year sentences in others, but permitting a prisoner
serving such sentence to apply once for modification or reduction of
sentence after serving half of the sentence).
ARIZONA
Imposes JLWOP (discretionary) Minimum age 14.
ARIZ. REV. STAT. ANN. § 13-703.01(A) (Supp. 2007) (LWOP
sentences discretionary).
ARIZ. REV. STAT. ANN. § 13-501(A)–(B) (2001 & Supp. 2007) (juvenile
of age fifteen, sixteen, and seventeen “shall” be prosecuted as
an adult for first degree murder and enumerated felonies; juvenile at
least age fourteen “may” be prosecuted as an adult for class one
felonies).
ARKANSAS
Imposes JLWOP (mandatory) Minimum age 14.
ARK. CODE ANN. § 5-4-104 (2006 & Supp. 2007) (mandatory
LWOP or death for capital murder or treason).
ARK. CODE ANN. § 9-27-318 (2008) (if the juvenile is at least fourteen
years of age and commits a felony, he or she can be transferred
to adult court and tried as an adult).
CALIFORNIA
Imposes JLWOP (discretionary) Minimum age 14.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 50 11-AUG-08 12:15
1032 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
CAL. PENAL CODE § 190.5(b) (West 1999 & Supp. 2008) (limiting
discretionary LWOP to juveniles age sixteen or older).
CAL. PENAL CODE § 209 (West 2008) (kidnapping with or without
bodily harm where death or exposure to substantial risk of death carries
LWOP, age fourteen or older); §§ 218, 219 (wrecking a train or
bridge); CAL. PENAL CODE § 37 (West 1999 & Supp. 2008) (treason);
§ 128 (perjury in capital case leading to execution), § 11418(b)(2)
(West 2000 & Supp. 2008) (using weapon of mass destruction); CAL.
PENAL CODE § 12310 (West 2000 & Supp. 2008) (using a bomb which
kills).
COLORADO
Does not impose JLWOP.
COLO. REV. STAT. § 17-22.5-104(IV) (2007) (allowing juveniles
sentenced to LWOP to apply for parole after serving forty years). State
legislative reform passed in 2006 abolished JLWOP which has not yet
been retrospectively applied.
CONNECTICUT
Imposes JLWOP (mandatory) Minimum age 14.
CONN. GEN. STAT. ANN. § 53a-35a (West 2007 & Supp. 2008)
(mandatory sentence of LWOP or death for capital murder).
CONN. GEN. STAT. ANN. § 46b-127 (West 2004 & Supp. 2008)
(mandatory transfer to adult court for children age fourteen and
above for enumerated felonies).
DELAWARE
Imposes JLWOP (mandatory) Any age.
DEL. CODE ANN. tit. 11, § 4209 (2001 & Supp. 2005) (mandatory
LWOP for “any person” convicted of first degree murder).
DEL. CODE ANN. tit. 10 §§ 1010, 1011 (1999 & Supp. 2006) (“child
shall be proceeded against as an adult” for enumerated felonies; child
can request hearing and court may transfer back to juvenile court at
its discretion).
FLORIDA
Imposes JLWOP (mandatory) Any age.
FLA. STAT. ANN. § 775.082 (West 2005 & Supp. 2008) (mandatory
LWOP for juveniles convicted of murder).
FLA. STAT. ANN. § 985.225 (West 2001) (“child of any age” may be
indicted for crimes punishable by death or life imprisonment; once

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 51 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1033
indicted, child must be “tried and handled in every respect as an
adult”; once convicted, “child shall be sentenced as an adult”).
GEORGIA
Imposes JLWOP (discretionary) Minimum age 13.
GA. CODE ANN. §§ 17-10-30.1, 17-10-31.1 (2004 & Supp. 2007)
(LWOP or life discretionary sentence for murder), 17-10-7(b)(1&2)
(authorizing mandatory LWOP for recidivist offenders).
GA. CODE ANN. § 15-11-28(b) (2005 & Supp. 2007) (concurrent
juvenile and adult court jurisdiction over child of any age accused of
crime where adult would be punished by death, LWOP, or life;
mandatory adult court jurisdiction for such crimes if committed by
child over 13 years old, no reverse transfer if child over thirteen).
GA. CODE ANN. § 15-11-28(b)(1) (2005 & Supp. 2007) (juvenile
court has concurrent jurisdiction with superior court where child is
alleged to have committed an act for which an adult defendant would
receive the sentences of death, LWOP, life, or imprisonment).
GA. CODE ANN. § 15-11-28(b)(2)(A) (2005 & Supp. 2007) (exclusive
superior court jurisdiction over any child ages thirteen to seventeen
who has committed enumerated offenses).
GA. CODE ANN. § 16-3-1 (2007) (child cannot be found guilty of
crime if committed it below age thirteen).
KMS v. State, 200 S.E.2d 916 (Ga. Ct. App. 1973) (distinguishing
between finding of delinquency, which is permitted for children below
age thirteen, with adjudication of guilt for crime, not permitted
for children below age thirteen).
HAWAII
Imposes JLWOP (discretionary) Any age.
HAW. REV. STAT. §§ 706-656, 706-657 (1993 & Supp. 2007)
(mandatory LWOP for first degree murder or attempted murder and
for what would be considered “heinous” second degree murder, but,
“[a]s part of such sentence the court shall order the director of public
safety and the Hawaii paroling authority to prepare an application for
the governor to commute the sentence to life imprisonment with parole
at the end of twenty years of imprisonment”).
HAW. REV. STAT. § 571-22 (2006 & Supp. 2007) (no age limit for
discretionary transfer to adult court of juveniles for first degree murder
or second degree attempted murder).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 52 11-AUG-08 12:15
1034 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
IDAHO
Imposes JLWOP (discretionary) Any age.
IDAHO CODE ANN. § 18-4004 (2004 & Supp. 2007) (LWOP discretionary
penalty for first degree murder).
IDAHO CODE ANN. § 20-508 (2004 & Supp. 2007) (mandatory
transfer to adult court for juveniles ages fourteen to eighteen accused
of enumerated crimes, discretionary transfer for children below age
fourteen accused of enumerated crimes).
IDAHO CODE ANN. § 20-509(3)–(4) (2004 & Supp. 2007) (juvenile
tried as an adult can be sentenced pursuant to adult sentencing measures,
pursuant to juvenile sentencing options, or a court can commit
the juvenile to custody of the department of juvenile corrections and
suspend the sentence or withhold judgment).
ILLINOIS
Imposes JLWOP (mandatory) Minimum age 13.
730 ILL. COMP. STAT. ANN. 5/5-8-1 (West 2007) (details
mandatory minimum sentences for felonies; for first degree murder,
if death cannot be imposed and one aggravating factor proven the
mandatory sentences is LWOP, if no aggravating circumstances, the
sentence is twenty to sixty years).
705 ILL. COMP. STAT. ANN. 405/5-130(4)(a) (West 2007)
(mandatory adult court jurisdiction over children at least thirteen
years old accused of “first degree murder committed during the
course of either aggravated criminal sexual assault, criminal sexual assault,
or aggravated kidnapping”).
INDIANA
Imposes JLWOP (mandatory) Minimum age 16.
IND. CODE ANN. § 35-50-2-3 (LexisNexis 2004 & Supp. 2007) (limiting
discretionary LWOP sentence to people above age sixteen for
the crime of murder).
IOWA
Imposes JLWOP (mandatory) Minimum age 14.
IOWA CODE ANN. § 902.1 (West 2003) (LWOP sentences are
mandatory upon conviction for “Class A Felony”).
IOWA CODE ANN. § 232.45(6)(a) (West 2006) (juvenile court may
waive jurisdiction over a child as young as fourteen).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 53 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1035
KANSAS
Does not impose JLWOP.
KAN. STAT. ANN. § 21-4622 (2007) (LWOP not permitted as a sentence
for capital murder or first degree murder where defendant is
less than eighteen years old).
KENTUCKY
Does not impose JLWOP.
KY. REV. STAT. ANN. § 640.040 (West 2006 & Supp. 2007) (limits
youthful offender convictions to life with parole after twenty-five
years).
KY. REV. STAT. ANN. § 635.020 (West 2006 & Supp. 2007)
(mandatory transfer to adult court of juvenile for use of a firearm and
adult sentence applied); see Britt v. Commonwealth, 965 S.W.2d 147
(Ky. 1998) (section 640.010 applies to juveniles, including cases transferred
under 635-020).
See Shepherd v. Commonwealth, 2006-SC-000450-MR, 2008 Ky.
LEXIS 30 (Ky. Sup. Ct. Feb. 21, 2008) (error to provide jury instruction
on LWOP sentence as an option for youthful offenders but not
reversible as lesser sentence awarded); see also Workman v. Commonwealth,
429 S.W.2d 374 (Ky. 1968) (juvenile LWOP as penalty for rape
violative of state constitution); Edmondson v. Commonwealth, 2001-
SC-0253-MR, 2002 Ky. Lexis 271 (Ky. Sup. Ct. Dec. 19, 2002) (unpublished
decision concerning felony theft by an adult, citing Workman in
dicta for general proposition that juvenile LWOP is unconstitutional).
LOUISIANA
Imposes JLWOP (mandatory) Minimum age 15.
LA. REV. STAT. ANN. §§ 14:30, 14:30.1 (2007 & Supp. 2008)
(mandatory LWOP for first- and second-degree murder).
LA. CHILD CODE ANN. art. 305 (2004 & Supp. 2008) (any juvenile
fifteen years old or older charged with first-degree murder, seconddegree
murder, aggravated rape, or aggravated kidnapping must be
tried as an adult).
MAINE
Imposes JLWOP (discretionary) Any age.
ME. REV. STAT. ANN. tit. 17-A, § 1251 (Supp. 2006 & Supp. 2007),
State v. St. Pierre, 584 A.2d 618, 621 (Me. 1990) (LWOP sentences are
discretionary under § 1251).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 54 11-AUG-08 12:15
1036 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
ME. REV. STAT. ANN. tit. 15, § 3101 (2003 & West Supp. 2007)
(discretionary hearing to determine whether to transfer juvenile of
any age to adult court for trial for murder or enumerated felonies).
MARYLAND
Imposes JLWOP (discretionary) Any age.
MD. CODE ANN., CRIM. LAW §§ 2-202, 2-203, 2-304 (LexisNexis
2002 & Supp. 2007) (LWOP sentence discretionary for enumerated
crimes).
MD. CODE ANN., CTS. & JUD. PROC. § 3-8A-06 (LexisNexis 2006 &
Supp. 2007) (discretionary transfer to adult court of child of any age
accused of murder).
MASSACHUSETTS
Imposes JLWOP (mandatory) Minimum age 14.
MASS. GEN. LAWS ANN. ch. 265, § 2 (West 2002 & Supp. 2008)
(LWOP mandatory for juvenile convicted of first degree murder).
MASS. GEN. LAWS ANN. ch. 119, § 72B (West 2002) (treating a juvenile
fourteen or older as an adult for murder in the first or second degree);
§ 74 (removing from juvenile court jurisdiction any juvenile
fourteen or older charged with murder in first or second degree).
MICHIGAN
Imposes JLWOP (discretionary) Any age.
MICH. COMP. LAWS § 712A.4 (2005 & Supp. 2008) (court has discretion
to try children as adult offenders, but if under fourteen years
old waiver hearing required).
MICH. COMP. LAWS § 769.1 (2002 & Supp. 2008) (allows adult
sentences for children convicted of certain crimes).
MICH. COMP. LAWS § 750.316 (2003 & Supp. 2008) (imprisonment
for life for first-degree murder); MICH. COMP. LAWS
§ 791.234(6) (certain sentences of life imprisonment mean no eligibility
of parole, including murder in first degree § 750.316).
MICH. COMP. LAWS § 791.244 (2005 & Supp. 2008) (Governor
may grant clemency after serving ten years of an LWOP sentence).
MINNESOTA
Imposes JLWOP (mandatory) Minimum age 14.
MINN. STAT. ANN. § 609.106 (West 2003 & Supp. 2008)
(mandatory LWOP for enumerated “heinous” crimes, including first
degree murder).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 55 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1037
MINN. STAT. ANN. § 260B.125 (West 2007 & Supp. 2008) (discretionary
waiver, age fourteen).
MISSISSIPPI
Imposes JLWOP (discretionary) Minimum age 13.
MISS. CODE ANN. § 97-3-21 (West 2005 & Supp. 2007) (LWOP
sentence discretionary for murder).
MISS. CODE ANN. §§ 43-21-151(a), 43-21-157(8) (West 2008)
(mandatory adult court jurisdiction limited to age thirteen for any felony
punishable by life; mandatory adult court jurisdiction after age
thirteen for any felony punishable by life in prison or death).
MISSOURI
Imposes JLWOP (mandatory) Minimum age 12.
MO. ANN. STAT. § 565.020 (West 1999 & Supp. 2008) (mandatory
LWOP for first-degree murder juveniles).
MO. ANN. STAT. § 211.071 (West 2004 & Supp. 2008) (discretionary
transfer, age limit of twelve for enumerated crimes).
MONTANA
Does not impose JLWOP.
MONT. CODE ANN. § 46-18-219 (2006) (a LWOP sentence must be
given if the defendant has been previously convicted of one of the
following: deliberate homicide, aggravated kidnapping, sexual intercourse
without consent, sexual abuse of children, or ritual abuse of a
minor, otherwise LWOP is discretionary sentence for deliberate murder
defined by MONT. CODE ANN. § 45-5-102).
MONT. CODE ANN. § 41-5-206 (2006) (discretionary transfer if the
child is twelve years or older for enumerated offenses; when the minor
is sixteen years of age, more types of offenses are added to the list; if a
child is age seventeen and commits enumerated offense, county attorney
“shall” file with the district court).
MONT. CODE ANN. § 46-18-222(1) (2007) (“[M]andatory minimum
sentences . . . and restrictions on parole eligibility do not apply
if . . . the offender was less than eighteen years of age at the time of
the commission of the offense.”). A 2007 amendment to statute provides
exceptions to mandatory minimum sentences and restrictions
on parole eligibility for juveniles.
NEBRASKA
Imposes JLWOP (mandatory) Any age.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 56 11-AUG-08 12:15
1038 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
NEB. REV. STAT. §§ 43-247 (2004 & Supp. 2006), 43-276 (2004)
(juvenile court has concurrent jurisdiction with district court for
juveniles under age sixteen who commit a felony).
NEB. REV. STAT. § 43-276 (2004 & Supp. 2006) (District Attorney
has discretion to file in criminal court, list of factors to be
considered).
NEB. REV. STAT. § 28-105 (1995 & Supp. 2006) (Punishment for
Class IA felony can be LWOP, discretionary).
NEB. REV. STAT. § 29-2522 (1995 & Supp. 2006) (murder in the
first degree mandates LWOP if death penalty not unanimous).
NEVADA
Imposes JLWOP (discretionary) Minimum age 8.
NEV. REV. STAT. ANN. § 200.030 (LexisNexis 2006 & Supp. 2007)
(Murder in first degree punishable, among other things, by death or
LWOP).
NEV. REV. STAT. ANN. § 194.010 (LexisNexis 2006) (children
under eight years of age not liable to punishment, but between ages
eight and fourteen are liable to punishment if clear proof that they
knew the act’s “wrongfulness” at time of commission).
NEV. REV. STAT. ANN. § 62B.330 (LexisNexis 2006) (juveniles
committing murder among other offenses not deemed “delinquent
acts” and juvenile court has no jurisdiction; crimes are automatically
tried in adult court).
NEW HAMPSHIRE
Imposes JLWOP (discretionary) Any age.
N.H. REV. STAT. ANN. § 630:1-a (LexisNexis 2007) (murder in the
first degree shall be punished by LWOP).
N.H. REV. STAT. ANN. § 628:1 (LexisNexis 2007) (juvenile under
age fifteen not criminally responsible, but for murder in the first or
second degree, manslaughter, assault, or other specified crimes, the
thirteen-year-old can be held criminally responsible if transferred to
superior court).
N.H. REV. STAT. ANN. § 169-B:24 (LexisNexis 2001 & Supp. 2007)
(transfer of juvenile to superior court for a trial as adult).
NEW JERSEY
Imposes JLWOP (mandatory) Minimum age 14.
N.J. STAT. ANN. § 2C:11-3(b), (g) (West 2005 & Supp. 2007) (specifically
limiting LWOP for juveniles to mandatory LWOP for murder

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 57 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1039
of police officer, killing a child under age fourteen, or murder in the
course of a sexual assault or criminal sexual contact).
N.J. STAT. ANN. § 2A:4A-26 (West 1987 & Supp. 2007) (discretionary
waiver of juvenile court jurisdiction over the case if child is age
fourteen or over).
NEW MEXICO
Does not Impose JLWOP
N.M. STAT. ANN. § 31-21-10 (LexisNexis 2000 & Supp. 2007)
(maximum sentence in state, life imprisonment, has parole eligibility
after thirty years).
NEW YORK
Imposes JLWOP Any age—but JLWOP applied only if crime is
terrorist act.
N.Y. PENAL LAW §§ 125.25(5), 125.26, 125.27 (McKinney 2004)
(element of crime of murder in the first degree (carrying LWOP
under § 70.00) is being over age eighteen).
N.Y. PENAL LAW § 490.25(d) (McKinney 2008) (for the crime of
terrorism, LWOP applied with no restriction on age as element of
crime). But see N.Y. PENAL LAW §§ 30.00(1)–(2) (McKinney 2004 &
Supp. 2008) (under age sixteen not held criminally responsible, including
exceptions for children ages thirteen to fifteen).
NORTH CAROLINA
Imposes JLWOP (mandatory) Minimum age 13.
N.C. GEN. STAT. § 14-17 (2007) (mandatory LWOP sentence for
murder in the first degree, for persons under age eighteen).
N.C. GEN. STAT. § 7B-2200 (2007) (mandatory transfer to adult
court where probable cause that juvenile committed Class A felonies,
age limit thirteen years).
NORTH DAKOTA
Imposes JLWOP (discretionary) Minimum age 14.
N.D. CENT. CODE § 12.1-32-01 (1997 & Supp. 2007) (LWOP discretionary
for enumerated crimes).
N.D. CENT. CODE § 12.1-04-01 (1997) (juvenile under the age of
seven not capable of committing a crime, and juvenile cannot be tried
as adult if under fourteen years of age when he or she committed the
offense).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 58 11-AUG-08 12:15
1040 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
OHIO
Imposes JLWOP (mandatory) Minimum age 14.
OHIO REV. CODE ANN. § 2929.03(E) (LexisNexis 2006 & Supp.
2008) (LWOP or life mandatory for aggravated murder).
OHIO REV. CODE ANN. § 2971.03 (LexisNexis 2007 & Supp. 2008)
(mandatory LWOP for murder, rape of victim under ten years, and
other sexually violent acts).
OHIO REV. CODE ANN. § 2152.10(B) (LexisNexis 2007 & Supp.
2008) (discretionary transfer of fourteen years or older for felonies,
mandatory if prior adjudicated delinquent for other offenses).
OKLAHOMA
Imposes JLWOP (discretionary) Minimum age 13.
OKLA. STAT. ANN. tit. 21, § 701.9 (West 2002 & Supp. 2008) (discretionary
LWOP for certain crimes).
OKLA. STAT. ANN. tit. 10, § 7306-1.1(B) (West 2007 & Supp. 2008)
(mandatory transfer if age thirteen and above, for first-degree
murder).
OREGON
Does not Impose JLWOP.
OR. REV. STAT. § 161.620 (2007); see also State v. Davilla, 972 P.2d
902 (Or. Ct. App. 1998) (interpreting § 161.620 to bar juvenile
LWOP).
PENNSYLVANIA
Imposes JLWOP (mandatory) Any age.
18 PA. CONS. STAT. ANN. §§ 1102, 9711 (West 1998 & Supp. 2008)
(mandatory minimum penalty for murder is life).
61 PA. CONS. STAT. ANN. § 331.21 (West 1999 & Supp. 2008) (no
parole until minimum term of sentence served, i.e., life means
LWOP).
42 PA. CONS. STAT. ANN. § 6302 (West 2000 & Supp. 2008) (murder
not in “delinquent act” definition for juvenile court jurisdiction;
certain other crimes not included for child of fifteen years or more).
42 PA. CONS. STAT. ANN. § 6322 (West 2000 & Supp. 2008) (court
can transfer murders to juvenile court).
42 PA. CONS. STAT. ANN. § 6355(e) (West 2000 & Supp. 2008)
(juvenile court cannot transfer case back to criminal court where
criminal court has transferred it to juvenile court pursuant to section
6322).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 59 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1041
RHODE ISLAND
Imposes JLWOP (discretionary) Any age.
R.I. GEN. LAWS § 12-19.2-4 (2002 & Supp. 2007) (LWOP discretionary
for certain crimes).
R.I. GEN. LAWS § 14-1-7 (2002 & Supp. 2007) (no age limit for
transfer of juvenile for enumerated crimes; discretionary, because
hearing required).
R.I. GEN. LAWS § 12-19-11 (2002) (mandatory LWOP sentence
cannot be suspended or allowed parole).
R.I. GEN. LAWS § 11-23-2 (2002 & Supp. 2007) (sentence for firstdegree
murder is mandatory life imprisonment).
SOUTH CAROLINA
Imposes JLWOP (mandatory) Any age.
S.C. CODE ANN. § 17-25-45 (2003 & Supp. 2007) (except in cases
that impose the death penalty, when convicted of a serious offense as
defined in statute, a person must be sentenced to a term of LWOP
only if that person has prior convictions for enumerated crimes).
S.C. CODE ANN. § 20-7-7605(6) (Supp. 2007) (discretionary transfer
and there is no age limit for murder or “criminal sexual conduct”);
see also State v. Corey, 529 S.E.2d 20 (S.C. 2000) (construing the lack of
discussion of age in § 7605(6) as requiring that there is no age limit).
SOUTH DAKOTA
Imposes JLWOP (mandatory) Minimum age 10.
S.D. CODIFIED LAWS §§ 22-6-1 (1998 & Supp. 2003) (life imprisonment
mandatory minimum for juvenile convicted of class A felony),
24-15-4 (life imprisonment means LWOP).
S.D. CODIFIED LAWS § 26-11-3.1 (1999) (mandatory transfer to
adult court of juveniles sixteen or older who commit enumerated felonies,
hearing at option of juvenile charged where juvenile must prove
transfer back to juvenile court is in the best interests of the public;
discretionary transfer for ages ten to sixteen).
TENNESSEE
Imposes JLWOP (discretionary) Any age.
TENN. CODE ANN. §§ 39-13-202, 39-13-204 (2006 & Supp. 2007)
(penalty for murder in first degree is death, LWOP or life
imprisonment).

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 60 11-AUG-08 12:15
1042 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
TENN. CODE ANN. § 37-1-134 (a)(1) (2005 & Supp. 2007)
(mandatory transfer for enumerated crimes, no age limit for murder
and other enumerated crimes).
TEXAS
Imposes JLWOP (mandatory) Minimum age 10.
TEX. FAM. CODE ANN. § 54.04(d)(3)(A) (Vernon 2005) (maximum
term under juvenile court jurisdiction for enumerated felonies
including murder is forty years).
TEX. FAM. CODE ANN. § 54.02(a)(2)(A) (Vernon 2002 & Supp.
2007) (juvenile can be transferred to adult court at fourteen years of
age for capital felony among others).
TEX. FAM. CODE ANN. § 54.02(j)(2) (Vernon 2002 & Supp. 2007)
(transfer allowed between ages ten and seventeen for capital offense
per section 19.02).
TEX. FAM. CODE ANN. § 54.02(m) (Vernon 2002 & Supp. 2007)
(mandatory waiver without transfer proceedings if previously transferred
and convicted in criminal court).
TEX. PENAL CODE ANN. § 8.07(a) (Vernon 2003 & Supp. 2007)
(other means of waiving juveniles under age fifteen to adult court
jurisdiction).
TEX. PENAL CODE ANN. § 12.31 (Vernon 2003 & Supp. 2007)
(mandatory death or LWOP for capital felony).
UTAH
Imposes JLWOP (discretionary) Minimum age 14.
UTAH CODE ANN. § 76-3-206 (2003 & Supp. 2006) (LWOP is a
discretionary sentence).
UTAH CODE ANN. § 78-3a-502(3) (2002 & Supp. 2007) (discretionary
age limit of fourteen for adult court jurisdiction).
VERMONT
Imposes JLWOP (discretionary) Minimum age 10.
VT. STAT. ANN. tit. 13, § 2303 (1998 & Supp. 2007) (LWOP discretionary
for first-degree and second-degree murder).
VT. STAT. ANN. tit. 33, § 5506 (2001 & Supp. 2007) (discretionary
jurisdiction for enumerated crimes, with an age limit of ten years).
VIRGINIA
Imposes JLWOP (mandatory) Minimum age 14.

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 61 11-AUG-08 12:15
Spring 2008] GLOBAL LAW AND PRACTICE 1043
VA. CODE ANN. § 18.2-10 (2005) (life imprisonment mandatory
for enumerated offenses); see Lenz v. Warden of Sussex I State Prison,
593 S.E.2d 292 (Va. 2004) (“life” means LWOP because there is no
parole for someone who receives a life sentence).
VA. CODE ANN. §§ 16.1-269.1 (2003 & Supp. 2007) (mandatory
transfer of age fourteen or over if probable cause for certain felonies),
16.1-269.4 (2003) (however, the juvenile can appeal the juvenile
court’s transfer decision).
VA. CODE ANN. § 53.1-151(B1) (2005 & Supp. 2007) (enumerates
when a person sentenced is not eligible for parole including conviction
of three felony offenses of murder, rape, robbery).
WASHINGTON
Imposes JLWOP (mandatory) Minimum age 15.
WASH. REV. CODE ANN. § 10.95.030 (West 2002 & Supp. 2008)
(mandatory death or LWOP for aggravated murder in first degree).
WASH. REV. CODE ANN. §§ 13.04.030 (West 2004 & Supp. 2008)
(exclusive adult court jurisdiction over child sixteen years or older
who is accused of committing serious violent offense), 13.40.110
(West 2004 & Supp. 2008) (juvenile court to hold waiver hearing if
child is aged fifteen to seventeen and accused of class A felony or attempt,
solicitation, or conspiracy to commit class A felony).
WEST VIRGINIA
Imposes JLWOP (discretionary) Any age.
W. VA. CODE ANN. §§ 61-2-2, 62-3-15 (LexisNexis 2005) (LWOP
discretionary for first-degree murder).
W. VA. CODE ANN. § 49-5-13(e) (LexisNexis 2004 & Supp. 2007)
(notwithstanding any other part of code, court may sentence a child
tried and convicted as adult as a juvenile).
W. VA. CODE ANN. § 49-5-10 (LexisNexis 2004 & Supp. 2007)
(mandatory transfer of juvenile who is age fourteen or over for certain
felonies; discretionary transfer where child below age fourteen accused
of committing murder or other enumerated felon under the
code).
WISCONSIN
Imposes JLWOP (discretionary) Minimum age 10.
WIS. STAT. ANN. § 973.014 (West 2007) (LWOP discretionary).
WIS. STAT. ANN. §§ 938.18, 938.183 (West 2000 & Supp. 2007)
(exclusive adult court jurisdiction with age limit of ten years, for first-

\\server05\productn\S\SAN\42-4\SAN404.txt unknown Seq: 62 11-AUG-08 12:15
1044 UNIVERSITY OF SAN FRANCISCO LAW REVIEW [Vol. 42
degree intentional homicide, first-degree reckless murder, second-degree
intentional homicide; age limited to fourteen for other felonies;
limited exceptions also provided).
WYOMING
Imposes JLWOP (discretionary) Minimum age 13.
WYO. STAT. ANN. § 6-2-101 (2005) (LWOP discretionary for firstdegree
murder).
WYO. STAT. ANN. § 14-6-203(d) (2007) (juvenile court has exclusive
jurisdiction in cases involving minor under age thirteen for felony
or misdemeanor punishable by over six months in prison).
WYO. STAT. ANN. § 14-6-203(f)(iv) (2007) (concurrent adult and
juvenile court jurisdiction, with an age limit of fourteen, for enumerated
felonies).
WYO. STAT. ANN. § 14-6-237 (2007) (discretionary transfer between
adult and juvenile court).
DISTRICT OF COLUMBIA
Does not Impose JLWOP
D.C. CODE § 22-2104(a) (2001 & Supp. 2008) (no LWOP for
juveniles).

Executive Summary May 2008
The Rest of Their Lives: Life without Parole for Youth Offenders in
the United States in 2008
Youth (persons below the age of 18) can and do commit terrible crimes, causing
enormous suffering to victims and their families. When youth commit such crimes,
they should be held accountable, but in a manner that reflects their age and
immaturity and their special capacity for rehabilitation. Instead, in 39 US states and
under federal law, teens who are too young to vote, buy cigarettes, or serve on the
juries they appear before, are tried as adults and, if convicted, are sentenced to
juvenile life without parole (JLWOP). Life without parole means that a young person
is sentenced to die in prison.
This brochure
updates The
Rest of Their
Lives, a report
first published
in 2005.
A sentence of juvenile life without parole is cruel, unfair, and unnecessary. It sends
an unequivocal message to youth that they are beyond redemption. It erroneously
presumes that allowing youth offenders a parole hearing (which is not a guarantee of
release) would fail to protect public safety and be unfair to victims. It also ignores
the differences between adults and children—differences we accept as a matter of
common sense, and which science fully recognizes.
Summary of New Findings in 2008
• There are currently 2,484 persons in US prisons serving sentences of life
without parole for crimes committed when they were under the age of 18.
• In 11 states, black youth arrested for murder are significantly more likely to be
sentenced to JLWOP than are white youth arrested for the same crime.
• There are no youth serving JLWOP anywhere else in the world.
Four youth offenders
serving life without parole
sentences in US prisons;
the pictures depict each of
them within a few months
of his or her arrest. They
were (from left to right) age
seventeen, fourteen,
sixteen, and fifteen when
they committed their
crimes. © 2005 Private.
There are 2,484
youth serving
life without
parole in the US
and none in the
rest of the
world.

Executive Summary
Life without Parole for Youth: A Nationwide Problem
As of May 2008, Human Rights Watch has calculated that there are 2,484 youth
offenders serving life without parole in the United States—up from the 2,225 we
reported in 2005. The higher number is due primarily to improvements in state data
reporting rather than significant increases in JLWOP sentencing rates.
Youth serving JLWOP across the country are predominantly male (only 2.6 percent are
female), and the majority are black (60 percent). Sixteen percent were 15 or younger
when they committed their crimes. Figure 1 (below) gives the state distribution of the
2,484 youth serving JLWOP sentences.
In some states, a sentence of JLWOP is mandatory once a youth is convicted of
certain crimes; in others, the sentencing judge has discretion. California, Florida,
Louisiana, Michigan, and Pennsylvania have the largest numbers of youth sentenced
to JLWOP, and all but California impose the sentence on a mandatory basis. In
California, youth convicted of certain categories of murder are presumptively
sentenced to JLWOP, since California law states that in such cases youth “shall be”
sentenced to JLWOP unless a judge finds “good reason” to instead impose a
sentence of 25 years to life.
California,
Florida,
Louisiana,
Michigan, and
Pennsylvania
have the largest
numbers of
youth
sentenced to
JLWOP, and
they all impose
the sentence on
a presumptive
or mandatory
basis for some
categories of
offense.
Harsh Sentencing Practices
The number of youth offenders entering prison with JLWOP sentences each year
began to increase in the late 1980s, reaching 50 in 1989. It peaked in 1996 at 152,
and then began to decline; in 2003, 54 youth offenders entered prison with the
sentence. But states have by no means abandoned the use of life without parole for
youth offenders, and in many cases they have treated them more harshly than
adults.
In 11 of the 17 years between 1985 and 2001, youth convicted of murder in the United
States were more likely to enter prison with a life without parole sentence than were
adults convicted of the same crime. As shown in Figure 2, even when we consider
murderers sentenced to either life without parole or death, in four of those 17 years,
youth were more likely than adults to receive one of these two most punitive
sentences.
2 Human Rights Watch

The Rest of Their Lives, May 2008
Figure 1 – State Distribution of 2,484 Juvenile Offenders Serving JLWOP
State Total State Law State Total State Law
Alabama 62 Mandatory Nebraska 24 Mandatory
Alaska 0 No JLWOP Nevada 16 Discretionary
Arizona 32 Discretionary New Hampshire 3 Mandatory
Arkansas 73 Mandatory New Jersey 0 Mandatory
JLWOP
California 227
Presumption
New Mexico 0 No JLWOP
No JLWOP post-
Colorado 48
2005
New York 0 Mandatory
Connecticut 9 Mandatory North Carolina 44 Mandatory
Delaware 7 Mandatory North Dakota 1 Discretionary
Florida 266 Mandatory Ohio 0 Mandatory
Georgia 8 Discretionary Oklahoma 48 Discretionary
Hawaii 4 Mandatory Oregon 0 No JLWOP
Idaho 4 Mandatory Pennsylvania 444 Mandatory
Illinois 103 Mandatory Rhode Island 2 Discretionary
Indiana 2 Mandatory South Carolina 26 Mandatory
Iowa 42 Mandatory South Dakota 9 Mandatory
Kansas 0 No JLWOP Tennessee 4 Discretionary
Kentucky 5
Ban on sentencing
to JLWOP under Texas 1 Mandatory
court challenge
Louisiana 334 Mandatory Utah 1 Discretionary
Maine 0 Discretionary Vermont 0 Discretionary
Maryland 13 Discretionary Virginia 48 Mandatory
Massachusetts 53 Mandatory Washington 28 Mandatory
Michigan 316 Mandatory West Virginia 0 Discretionary
Minnesota 2 Mandatory Wisconsin 16 Discretionary
Mississippi 24 Mandatory Wyoming 6 Discretionary
Missouri 116 Mandatory Federal Prisons 2 Discretionary
Montana 1 Mandatory Washington, D.C. 0 No JLWOP
Sources: State prison systems provided data directly to Human Rights Watch as of mid-2004 (except that we used the National
Corrections Reporting Program to obtain data for Virginia, and for Alabama, we used its inmate locator system). We updated
data between mid-2004 and 2008 using the following methods: state departments of corrections sent updated data directly to
Human Rights Watch or to other organizations; post-2004 press reports were checked against inmate records with state
departments of corrections; and correspondence received by Human Rights Watch from youth offenders sentenced to life
without parole was checked against press reports and state inmate records. The term “mandatory” means judges have no
option other than to sentence youth offenders to JLWOP upon conviction for at least one type of offense. Most often that
offense is first degree murder.
Human Rights Watch 3

Executive Summary
Figure 2
In some years,
Percentage of Juvenile Murder Offenders Sentenced to LWOP or Death Compared with
Percentage of Adult Murder Offenders Sentenced to LWOP or Death
youth convicted
of murder were
2.5%
Juveniles
more likely to
enter prison
as a percentage of all murder offenders in each age group
2.0%
1.5%
1.0%
0.5%
Adults
with a life
without parole
sentence than
were adults
convicted of
murder.
0.0%
1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001
Source: National Corrections Reporting Program (NCRP). The NCRP is sponsored by the Bureau of Justice Statistics (BJS), US
Department of Justice, and was created to address the need to consolidate data on corrections at the national level. NCRP
data downloads are available online at http://www.icpsr.umich.edu/NACJD/NCRP/ (accessed September 6, 2005).
Crimes That Can Lead to a Life without Parole Sentence
As youth and adult crime rates rose in the late 1980s and early 1990s, politicians and
the public feared they were being besieged by “super-predators”—youth who
repeatedly committed violent offenses. In response, states decided to try youth as
adults and to send greater numbers of those convicted to adult prison, some with life
without parole sentences. The actual profiles of youth sentenced to JLWOP show how
misguided and unnecessary those decisions were.
• The majority of youth sentenced to life without parole are first offenders. Prior
to the crime for which they were sentenced to JLWOP, an estimated 59 percent
had neither an adult criminal record nor a juvenile adjudication.
• An estimated 26 percent of youth offenders were convicted of felony murder.
These are crimes in which a teen who commits a non-homicide felony such as
robbery is held responsible for a codefendant’s act of murder that occurs
during the course of the felony. State laws often do not require the teen to
59 percent of
youth serving
life without
parole received
the sentence for
their first-ever
criminal
conviction of
any sort.
26 percent of
youth serving
life without
parole were
convicted of
felony murder.
4 Human Rights Watch

The Rest of Their Lives, May 2008
know that a murder will take place or even that the codefendant is armed.
• Many teens serving JLWOP committed their crimes with adults. For example,
in 70 percent of JLWOP cases in California in which a teen was acting with
codefendants, at least one of the codefendants was an adult. And, in an
estimated 56 percent of California cases in which a juvenile who received
JLWOP had an adult codefendant, the adult received a more lenient sentence
than the teen.
Life without Parole for Felony Murder
Peter A. was 15 years old, a sophomore in high school, and living at home with his
family in Chicago when he committed his crime. Peter spent much of his time with his
adult brother, with whom Peter would “go to the movies and go go-cart racing” and for
whom Peter would sometimes act as a drug courier. After two individuals stole drugs
and money from his brother’s apartment, Peter, on instructions from his brother,
helped to steal a van in order to drive to the individuals’ home to recover the drugs
and money.
Peter stayed in the van while two others went inside. He heard shots, and a few
seconds later one of the men who had gone in came running out of the house. Two
people had been killed.
Peter was held accountable for the double murder because it was proven he had
stolen the van used to drive to the victims’ house. He was sentenced to life without
possibility of parole even though the judge called Peter “a bright lad” with
“rehabilitative potential.” It was a mandatory sentence; the judge had no discretion to
decide otherwise.
Racially Discriminatory Sentencing
On average across the country, black youth are serving life without parole at a per
capita rate that is 10 times that of white youth. Many states have racial disparities
that are far greater. Among the 26 states with five or more youth offenders serving
JLWOP and for which we had data on race, the highest black to white ratios are in
Connecticut, Pennsylvania, and California, where black youth are between 18 and 48
times more likely to be serving a sentence of life without parole than white youth.
In Connecticut,
Pennsylvania,
and California,
black youth are
between 18 and
48 times more
likely to be
serving a
sentence of life
without parole
than white
youth.
Human Rights Watch 5

Executive Summary
Figure 3 – Ratio of Black to White Youth Serving JLWOP Sentences
Connecticut
Pennsylvania
California
Delaware
Wisconsin
Illinois
Nebraska
North Carolina
Colorado
Arizona
All States *
Michigan
Maryland
Massachusetts
Iowa
Oklahoma
Arkansas
Florida
Missouri
Washington
Georgia
Louisiana
Kentucky
Mississippi
Alabama
Nevada
South Carolina
Human Rights
Watch
challenges the
US
government’s
claim that there
is no proof that
black youth
were sentenced
to JLWOP
because of
racial
discrimination.
0.00 10.00 20.00 30.00 40.00
Sources: See Figure 1 above for JLWOP sentencing data. Population data extracted by Human Rights Watch from C. Puzzanchera, T.
Finnegan, and W. Kang, National Center for Juvenile Justice, “Easy Access to Juvenile Populations Online: US Census Population Data,”
State Population Data with Bridged Race Categories 2004, for ages 14-17, http://www.ojjdp.ncjrs.gov/ojstatbb/ezapop/ (accessed
January 2, 2008). Certain states are not included in the above figure because of insufficient data. The ratios were calculated using rates
per 10,000 population of youth age 14-17 disaggregated by race and state.
On February 22, 2008, at a hearing before the United Nations Committee on the
Elimination of Racial Discrimination (CERD), the US Department of Justice claimed
that although black youth are more likely to be sentenced to JLWOP, crime rates
among black youth are higher and therefore the “disparate impacts are not per se
evidence of racial discrimination. There is no proof that they were sentenced to life
without parole because of racial discrimination.” Human Rights Watch has found
evidence that, while not conclusive, seriously challenges this claim.
We gathered data on the race of youth arrested for murder (which is the criminal
conviction that most often leads to the life without parole sentence), and the race of
youth serving life without parole. Figure 4 presents the ratio of black youth arrested
for murder to black youth sentenced to life without the possibility of parole (column
A) and the comparable ratio for white youth (column B). The difference between the
ratio for black and for white youth is presented as a ratio in column C.
Across the US,
black youth
arrested for
murder were
sentenced to
LWOP at a rate
1.59 times that
of white youth
arrested for
murder.
6 Human Rights Watch

The Rest of Their Lives, May 2008
Figure 4 — Sentencing of Black and White Youth to JLWOP After Arrest for Murder
State
A: Black Juvenile Murder
Arrest Rate / Black JLWOP
Rate
B: White Juvenile Murder
Arrest Rate / White JLWOP
Rate
C: Black Rate of JLWOP Per
Arrests / White Rate of JLWOP
Per Arrests
California 21.14 123.31 5.83
Connecticut 17.13 95.00 5.55
Delaware 3.00 12.00 4.00
Colorado 4.23 11.89 2.81
Arizona 16.33 41.00 2.51
*All States 7.98 12.70 1.59
North Carolina 21.19 32.43 1.53
Washington 11.60 17.31 1.49
Illinois 12.74 18.90 1.48
Pennsylvania 1.90 2.82 1.48
Nebraska 4.00 4.50 1.13
Sources: See Figures 1 and 3 above. Murder arrest data extracted by Human Rights Watch from data provided by the Federal Bureau of
Investigation (FBI), “Uniform Crime Reporting Program: 1990-2005 Arrest by State” (extracted by code for murder crimes, juvenile status,
and race), on file with Human Rights Watch.
Something
other than the
criminality of
black and white
youth—such as
discrimination—
causes JLWOP
sentencing
disparities.
If race were not related to JLWOP sentencing, we would expect the ratio in column C
to be equal to one. However, in 10 states, we found that the ratio was significantly
higher. California has the worst disparities in the nation: for every 21.14 black youth
arrested for murder in the state, one is serving a JLWOP sentence, while for every
123.31 white youth arrested for murder, one is serving JLWOP. In other words, black
youth arrested for murder are sentenced to JLWOP in California at a rate that is 5.83
times that of white youth arrested for murder. Across all 25 states for which we had
data, black youth arrested for murder were sentenced to JLWOP at a rate 1.59 times
that of white youth arrested for murder.
These disparities suggest that there is something other than the relative criminality
of these two racial groups—something that happens after their arrest for murder,
such as discriminatory treatment by prosecutors, before courts, and by sentencing
judges—that causes the disparities between sentencing of black and white youth to
JLWOP.
Life in Prison
No one expects prison to be a pleasant place. But there is a considerable incongruity
between the physical and mental maturity of young prisoners and the kinds of
people and experiences they confront in prison. The vast majority of youth serving
life without parole have had violent experiences in prison.
Human Rights Watch 7

Executive Summary
Many youth get into fights with other prisoners in order to defend themselves from
physical violence, including rape:
• Jackson W., who entered prison at age 17 with a life without parole sentence,
said that he was hospitalized in prison in Arkansas because “I got stabbed a
couple times .… I got my head busted by locks. That’s a small weapon, but
they still hurt.”
“I got stabbed a
couple times .…
I got my head
busted by locks.
That’s a small
weapon, but
they still hurt.”
• Andrew H., who was 16 at the time of his crime and entered prison with life
without parole at the same age, explained that he was hospitalized after
being “stabbed in the left shoulder helping a guy that I knew when others
tried to rape him.”
Rape is a particular risk for youth offenders:
• Luke J., who committed his crime at age 17 and is sentenced to JLWOP, said
that he had always been “real skinny” and always looked younger than his
age: “When I first came into prison [a] dude told me that he was gonna make
me his ‘bitch’ and he beat me up real bad.”
Once in prison, youth offenders sentenced to life without parole believe that society
has thrown them away, and their loss of hope can result in self-harm and suicide:
“I told them I
was starting to
have suicidal
thoughts ... and
they said that
was normal and
just go back to
my cell. I cut up
my wrist .... But
then reality is
still here when I
wake up.”
• José F., who committed his crime at age 17 and is sentenced to JLWOP, said: “I
went to mental health one time and they put me on a pain killer. I told them I
was starting to have suicidal thoughts ... and they said that was normal and
just go back to my cell. I cut up my wrist. Well, I thought that drugs helped me
to escape. But then reality is still here when I wake up.”
Life without Parole and International Human Rights
The global rejection of life without parole for young offenders is overwhelming: The
Center For Law and Global Justice at the University of San Francisco, in collaboration
with Human Rights Watch, has confirmed that there are no youth offenders serving
life without parole sentences anywhere in the rest of the world. In its use of LWOP
sentences for youth, the United States is an international anomaly.
In its use of
LWOP
sentences for
youth, the US is
an international
anomaly.
8 Human Rights Watch

The Rest of Their Lives, May 2008
The United States’ practice of sentencing youth to JLWOP is a violation of, or raises
concerns under, at least three international treaties to which the United States is
party. The Human Rights Committee (the oversight and enforcement body for the
International Covenant on Civil and Political Rights) has said that “[t]he Committee is
of the view that sentencing children to life sentences without parole is of itself not in
compliance with article 24(1) of the Covenant.” Moreover, the Committee Against
Torture (the oversight and enforcement body for the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment) has stated that JLWOP
for youth “could constitute cruel, inhuman or degrading treatment or punishment” in
violation of the treaty.
Finally, in March 2008, the Committee on the Elimination of Racial Discrimination
(the oversight and enforcement body for the International Convention on the
Elimination of All Forms of Racial Discrimination) found that, in light of the racial
disparities in the sentencing of youth to JLWOP in the US, “the persistence of such
[youth LWOP] sentencing is incompatible with article 5(a) of the Convention. The
Committee therefore recommends that the State party discontinue the use of life
sentence without parole against [youth offenders], and review the situation of
persons already serving such sentences.”
Fair Sentences for Youth
Lawmakers do not face a choice between being “soft on crime” and supporting life
without parole for teen offenders. They can protect community safety, save on
incarceration costs, and still save youth from a lifetime in prison. Giving youth
offenders a second chance would align US sentencing practices with the rest of the
world and with the goals of criminal punishment.
Lawmakers can
protect
community
safety, save on
incarceration
costs, and save
youth from a
lifetime in
prison.
In the United States, criminal punishment has four goals: rehabilitation, retribution,
deterrence, and incapacitation. Sentencing youth to life without parole fails to
measure up on all four counts.
After years of ignoring the goal of rehabilitation, the United States is moving back to
recognizing it as crucial to community safety. Life without parole not only does not
advance this goal, it negates it. The sentence sends an unequivocal message to
youth offenders that they are banished from the community forever, no matter how
they change or grow.
Human Rights Watch 9

Executive Summary
Proponents of life without parole believe the sentence is necessary in order to
ensure retribution—that society metes out the worst punishment for the worst
offenses. However, while teens can commit the same acts as adults, by virtue of their
immaturity they are not as blameworthy or culpable. They do not have adults’
developed abilities to think, to weigh consequences, to make sound decisions, to
control their impulses, and to resist group pressures; their brains are anatomically
different, still evolving into the brains of adults.
Neuroscientists conducting magnetic resonance imaging (MRI) research have
uncovered striking physical differences between the brains of adolescents and those
of adults, showing that the areas involved in impulse control are less developed in
youth. These findings suggest that states should revise their sentencing laws to
ensure that youth are not sentenced as if they were adults.
Life without
parole sends an
unequivocal
message to
youth offenders
that they are
banished from
the community
forever, no
matter how they
change or grow.
Supporters of the life without parole sentence also claim that teens who pause to
consider the consequences before committing crimes will be deterred if they face
harsh sentences such as life in prison without parole. But young people are less
likely than adults to pause before acting, and when they do, research has failed to
show that the threat of adult punishment deters them from crime. Deterrence is also
unlikely given research showing that adolescents cannot really grasp the true
significance of the sentence.
Finally, incapacitation as a justification for life without parole sentences fails
because some youth offenders can be rehabilitated and become productive
members of society. No one can deny that life without parole makes some
contribution to public safety to the extent that locking up youth prevents them from
committing additional crimes. But the need to incapacitate a particular offender
ends once he or she has been rehabilitated. There is no basis for believing that all or
even most of the teens who receive life without parole sentences would otherwise
have engaged in a life of crime. Our research indicates that many teens received life
without parole for their first offense. There is little in their histories to warrant the
assumption that they would not mature and be rehabilitated if they were spared a
lifetime in prison.
The need to
protect public
safety and to
incapacitate a
particular
offender ends
once he or she
has been
rehabilitated.
The terrible crimes committed by youth can cause injury and death and ruin lives. In
10 Human Rights Watch

The Rest of Their Lives, May 2008
its sentencing choices, the United States must reflect the harm these youth have
caused. But it must also acknowledge that they are not all irredeemably violent
people. Recognizing their capacity to grow and to transform themselves is deeply
embedded in human rights principles. Instead of violating those principles with
regularity, the United States should vigorously uphold them.
Recommendations
The United States must stop sentencing youth offenders to life without possibility of
parole. Specifically, Human Rights Watch recommends:
To the federal government
• Abolish the sentence of life without parole for youth charged with violating
federal laws.
The United
States must
reflect the harm
that youth have
caused, but it
must also
acknowledge
that not all
youth serving
JLWOP are
irredeemably
violent people.
• Condition federal funding of state programs under the Juvenile Justice and
Delinquency Prevention Act upon the state’s elimination of life without parole
sentences for youth offenders.
To state lawmakers
• Enact legislation that abolishes the sentence of life without parole for any
offense committed by a person below the age of 18. Such legislation should
include a retroactivity provision enabling youth offenders currently serving life
without parole to have their cases reviewed by a court for re-assessment and
re-sentencing to a sentence that includes the possibility of parole.
• Develop and publish annual statistics on youth in the adult criminal justice
system, including: demographic information (age, race, sex), data on children
tried in adult criminal court, the manner by which each child reached adult
criminal court (e.g. transfer, direct file), the nature of the crimes alleged,
existence of a prior criminal record, and if convicted, the precise sentence
received.
Enact
legislation that
abolishes the
sentence of life
without parole
for any offense
committed by a
person below
the age of 18.
Human Rights Watch 11

Executive Summary
To state and federal departments of corrections
• Take into account the mental and physical maturity of incarcerated youth
offenders when allocating cells or other housing within correctional facilities.
• Provide mental health and social services to assist youth offenders with
adjusting to prison conditions as well as coping with the length of their
sentences.
For more information, including the sources upon which
this summary is based, please visit Human Rights Watch’s
website at: http://hrw.org/reports/2005/us1005/. On the
website you can also view photos and listen to audio clips
of youth offenders serving life without parole.
12 Human Rights Watch

Updated JLWOP Figures, May 2009
State Distribution of Estimated 2,574 Juvenile Offenders Serving Juvenile Life Without
Parole
Jurisdiction Total State Law Jurisdiction Total State Law
Alabama 62 c Mandatory a Nebraska 24 c Mandatory
Alaska 0 No JLWOP Nevada 16 Discretionary
Arizona 32 Discretionary New Hampshire 3 Mandatory
Arkansas 73 Mandatory New Jersey 0 Mandatory
California 250 b JLWOP
Presumption
New Mexico 0 No JLWOP
Colorado 48
No JLWOP
post-2005
New York 0 Mandatory
Connecticut 9 c Mandatory North Carolina 44 Mandatory
Delaware 7 Mandatory North Dakota 1 Discretionary
Florida 266 c Mandatory Ohio 2 b Mandatory
Georgia 8 Discretionary Oklahoma 48 Discretionary
Hawaii 4 Mandatory Oregon 0 No JLWOP
Idaho 4 Mandatory Pennsylvania 444 c Mandatory
Illinois 103 c Mandatory Rhode Island 2 Discretionary
Indiana 2 Mandatory South Carolina 26 Mandatory
Iowa 44 b Mandatory South Dakota 9 Mandatory
Kansas 0 No JLWOP Tennessee 4 Discretionary
Kentucky 5
Ban on sentencing to
JLWOP under court
challenge
Texas 4 b Mandatory
Louisiana 335 c Mandatory Utah 1 Discretionary
Maine 0 Discretionary Vermont 0 Discretionary
Maryland 13 Discretionary Virginia 48 Mandatory
Massachusetts 57 b Mandatory Washington 28 b Discretionary
Michigan 346 b Mandatory West Virginia 0 Discretionary
Minnesota 2 Mandatory Wisconsin 16 Discretionary
Mississippi 24 Mandatory Wyoming 6 Discretionary
Missouri 116 Mandatory Federal Prisons 37 b Discretionary
Montana 1 Mandatory
District of
Columbia
0 No JLWOP
Sources: Unless otherwise indicated, these figures are based on data provided directly to Human Rights Watch as of mid-2004
(except that we used the National Corrections Reporting Program to obtain data for Virginia, and for Alabama, we used its
inmate locator system). Unless otherwise indicated, and where possible, we updated data between mid-2004 and 2009 using
the following methods: post-2004 press reports were checked against inmate records with state departments of corrections;
and correspondence received by Human Rights Watch from youth offenders sentenced to life without parole was checked
against press reports and state inmate records.
a The term “mandatory” means judges have no option other than to sentence youth offenders to JLWOP upon conviction for at
least one type of offense. Most often that offense is first degree murder.
b In 2009, state department of corrections or Federal Bureau of Prisons sent updated data directly to Human Rights Watch or to
partner organizations.
c In 2008, state department of corrections sent updated directly to Human Rights Watch or to partner organizations.
Human Rights Watch

105C
AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
FEBRUARY 11, 2008
RECOMMENDATION
RESOLVED, That the American Bar Association urges federal, state, tribal, local and
territorial governments to authorize and implement sentencing laws and procedures that both
protect public safety and appropriately recognize the mitigating considerations of age and
maturity of youthful offenders (i.e., those under age 18 at the time of their offense who are
subject to adult penalties upon conviction) based on the following principles:
1. Sentences for youthful offenders should generally be less punitive than sentences for
those age 18 and older who have committed comparable offenses;
2. Sentences for youthful offenders should recognize key mitigating considerations
particularly relevant to their youthful status, including those found by the United States
Supreme Court in Roper v. Simmons, 543 U.S. 551, 567-570 (2005), as well as the
seriousness of the offense and the delinquent and criminal history of the offender; and
3. Youthful offenders should generally be eligible for parole or other early release
consideration at a reasonable point during their sentence; and, if denied, should be
reconsidered for parole or early release periodically thereafter.

105C
REPORT
I. INTRODUCTION: ABA Policies on Youth in the Criminal Justice System
The American Bar Association has a long history of recognizing that youth under 18 who
are involved with the justice system should be treated differently than those who are 18 or older.
The ABA’s overall approach to juvenile justice policies has been and continues to be to
strongly protect the rights of youthful offenders within all legal processes while insuring public
safety. Central to this ABA premise is the understanding that youthful offenders have lesser
culpability than adult offenders due to the typical behavioral characteristics inherent in
adolescence. It is understood that they can and do commit delinquent and criminal acts that have
an impact on public safety, but these actors nonetheless are developmentally different. They are
not adults and do not have fully-formed adult characteristics.
Juvenile Justice Standards
In 1979 and 1980, the American Bar Association adopted as policy 20 volumes of
Standards that were developed over the prior decade by the Institute of Judicial Administration-
American Bar Association Joint Commission on Juvenile Justice Standards.
Jurisdiction and age is addressed in the volume “Standards Relating to Juvenile
Delinquency and Sanctions,” where ABA policy set the 18 th birthday as the age for criminal
court jurisdiction, with younger offenders falling under the jurisdiction of the juvenile court.
2.1 Age
The juvenile court should have exclusive original jurisdiction in all cases
in which conduct constituting an offense within the court’s delinquency
jurisdiction is alleged to have been committed by a person
A. not less than ten and not more than seventeen years of age at the time the
offense is alleged to have been committed … 1
Although the Standards set age 18 as the age when criminal court jurisdiction begins,
they recognize exceptions. These appear in “Standards Relating to Transfer Between Courts,”
which declare that no person under 15 should ever be tried in criminal court, and that criminal
courts should only have jurisdiction over youths 15-17 years of age when a juvenile court waives
jurisdiction. 2
1 IJA-ABA Juvenile Justice Standards Annotated: A Balanced Approach, ed. By Robert E. Shepherd, Jr., p. 147. 1996.
(American Bar Association).
2 Id. at 285.
2

105C
Youth in the Criminal Justice System
Despite the clarity of ABA policy, states vary in the way youths under 18 are defined
(juvenile versus adult) and in the way that youths move between the juvenile and criminal justice
systems. All states allow certain juveniles to be tried in criminal court or face adult sanctions;
most states have multiple ways to impose adult sanctions on offenders who are under 18. 3 These
include judicial waiver that is discretionary (45 states), presumptive (15 states) or mandatory (15
states); concurrent jurisdiction (15 states); and statutory exclusions for particular crimes (29
states). Fifteen states allow juvenile courts to impose blended sentences that include adult
criminal sanctions; 17 states allow criminal courts “to impose sanctions otherwise available only
to offenders handled in juvenile court.” 4
Fifteen states give both juvenile and criminal court original jurisdiction in specified
cases, giving prosecutors discretion to file in either court. 5
The vast majority of states are in accord with ABA policy in setting 17 as the upper age
of juvenile court jurisdiction. However, 13 states set the upper age at 15 or 16. 6
Nearly 2 million 16- and 17- year-olds live in these 13 states. If these youth are
referred to criminal court at the same rate that 16- and 17- year-olds elsewhere are
referred to juvenile court, then a large number of youth younger than 18 face trial
in criminal court because they are defined as adults under state laws. In fact, it is
possible that more youth younger than 18 are tried in criminal court in this way
than by all other transfer mechanisms combined. 7
Despite ABA policy that sets 15 as the age below which no juvenile should be transferred
to criminal court, even when transfer (or waiver) is done by a judge, only New Mexico uses that
age. Twenty-three states have no minimum age for criminal court jurisdiction for juveniles
charged with specified offenses. Two states set 10 as the minimum age, two set 12, six set 13,
and 16 set 14. 8
In those jurisdictions that try youth as adults in criminal court—with a few exceptions
discussed below-- juveniles are exposed to the same sentences that adults receive.
3 See Snyder, Howard N., and Sickmund, Melissa, 2006. Juvenile Offenders and Victims: 2006 National Report. Washington,
DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, at 110-11.
4 Id.
5 Id., at 113.
6 Until June of 2007, three states—Connecticut, New York and North Carolina—set 15 as the upper age. Ten states set 16 as the
upper age limit: Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, New Hampshire, South Carolina, Texas and
Wisconsin. National Center for Juvenile Justice, 2007. State Juvenile Justice Profiles. www.ncjj.org/stateprofiles. In June,
2007, Connecticut raised the age of juvenile court jurisdiction, setting 17 as the upper age limit; Rhode Island lowered the upper
age of juvenile court jurisdiction to 16, but in October, 2007, repealed the earlier change. Today, then, two states set 15 as the
upper age limit, and 10 set 16 as the upper age limit.
7 Snyder and Sickmund, note 3, supra, at 114.
8 Id.
3

105C
ABA Policies Treat Juveniles in Criminal Court Differently Than Adults
The net result of state policies described above is that “at least two hundred thousand
American youth under the age of eighteen are tried as adults each year.” 9
The ABA’s Criminal Justice Section responded to this phenomenon in 1997 by creating a
Task Force on Youth in the Criminal Justice System. 10 The Task Force report was published in
2001 11 and its guiding principles were adopted by the ABA as policy in 2002. 12
“Youth” were defined in the Task Force report as “those persons under the age of
eighteen involved in the criminal justice system.” 13
The Task Force declined to examine the various ways that states use to try youths under
18 as adults. Rather, the Task Force elected to respond to the reality described above, that most
states in minor or major ways depart from the IJA-ABA Standards, and that those jurisdictions
needed to incorporate principles of adolescent development when doing so. 14 The report’s many
recommendations were organized into three categories: the pre-trial stage, the trial stage, and
corrections. The recommendations in all three areas were framed in the context of seven
9
YOUTH IN THE CRIMINAL JUSTICE SYSTEM: Guidelines for Policymakers and Practitioners. 2001. (American Bar
Association), at 1. See also THE CONSEQUENCES AREN’T MINOR: The Impact of Trying Youth as Adults and Strategies for
Reform. 2007. (Campaign for Youth Justice), at 6.
10 The Task Force was chaired by Hon. Johanna L. Fitzpatrick, Chief Judge of the Court of Appeals of Virginia. Vice-Chair was
Norman K. Maleng, King County Prosecuting Attorney, Seattle, Washington. The Task Force was comprised of CJS members,
with liaisons coming from the ABA CJS Juvenile Justice Committee, the ABA Judicial Division, National Association of Pretrial
Service Agencies, National Legal Aid and Defender Association, and the United States Department of Justice.
11 YOUTH IN THE CRIMINAL JUSTICE SYSTEM: Guidelines for Policymakers and Practitioners. 2001. (American Bar
Association).
12 The Association adopted the following recommendation:
RESOLVED, That the American Bar Association supports the following principles derived from the
2001 Report of the Task Force on Youth in the Criminal System of the Criminal Justice Section, Youth in
the Criminal Justice System: Guidelines for Policymakers and Practitioners concerning youth in the
criminal justice system:
1. youth are developmentally different from adults and these differences should be taken into
account;
2. pretrial release or detention decisions regarding youth awaiting trial should reflect their
special characteristics;
3. if detained or incarcerated, youth should be housed in institutions or facilities separate from
adult institutions or facilities at least until they reach the age of eighteen;
4. youth detained or incarcerated should be provided programs which address their
educational, treatment, health, mental, and vocational needs;
5. youth should not be permitted to waive the right to counsel without consultation with a
lawyer and without a full inquiry into the youth’s comprehension of the right and their capacity to make
the choice intelligently, voluntarily and understandingly. Stand-by counsel should be appointed if the
right to counsel is voluntarily waived;
6. judge should consider the individual characteristics of the youth during sentencing; and
7. collateral consequences normally attendant to the justice process should not necessarily
apply to all youth arrested for crimes committed before age eighteen; and
FURTHER RESOLVED, That the ABA opposes, in principle, the trend toward processing
more and younger youth as adults in the criminal justice system and urges policymakers at all levels to
take the previously mentioned principles into account in developing and implementing policies involving
youth under the age of eighteen.
13
14
Id. at 5.
Id. at 1-3.
4

105C
“general principles,” three of which serve most directly as springboards for the recommendation
for sentence mitigation and periodic review of sentences that is the subject of this report:
1. Youth are developmentally different from adults, and these developmental
differences need to be taken into account at all stages and in all aspects of the
adult criminal justice system.
6. Judges in the adult criminal justice system should consider the individual
characteristics of the youth during sentencing.
7. The collateral consequences normally attendant to the adult criminal justice
process should not necessarily apply to all youth arrested for crimes
committed before the age of eighteen. 15
The proposed recommendation builds on the Task Force report, making explicit
what the Task Force implied. Although the Task Force did not specifically propose
changes to statutory schemes, it made clear that developmental differences should be
taken into account “in all aspects of the adult criminal justice system.” It specifically
called for judges to take developmental differences into account at sentencing. It
specifically called for reduction of collateral consequences for youths convicted as adults.
ABA Policy on Sentencing of Juveniles
In addition to adopting policy that calls for taking into account developmental differences
when youths are tried as adults, the ABA has addressed two types of sentences for youths who
are tried as adults: the Association has opposed the death penalty for juveniles, and it has
opposed sentences of life without parole for juveniles.
The ABA was a very early leader in the effort to end the death penalty for offenders
under age eighteen. The CJS Juvenile Justice Committee first considered this issue in 1981 and
drafted a resolution to abolish this practice. This Section’s resolution progressed through the
ABA deliberation process and was officially adopted by the ABA House of Delegates in August
1983, predating the major Supreme Court rulings on this issue by several years. This 1983 ABA
Resolution was cited and relied upon by the Supreme Court in subsequent rulings on this issue. 16
15 Id. at 7.
16 Stanford v. Kentucky, 492 U.S. 361, 388 (1989) (Brennan, J., dissenting), and Thompson v. Oklahoma, 487 U.S. 815, 830
(1988).
5

105C
In addition the ABA, through its 1991 policy endorsing the United Nations Convention
on the Rights of the Child, has policy opposing Life Without the Possibility of Parole (LWOP)
for juvenile offenders. 17
II.
ADOLESCENT DEVELOPMENT AND SENTENCE MITIGATION
Very serious delinquent and criminal offenses of youthful offenders often result in
visceral demands for the harshest punishments. These punitive demands may lead us to forget
that no matter how adult-like the offense may be, the youthful offender is not an adult. This
Resolution on Sentencing Mitigation for Youthful Offenders proposes that sentences for youthful
offenders recognize that key fact and not simply impose an adult sanction upon a child. First,
this principle recognizes that youthful offenders are less culpable than adult offenders, simply
because of the innate characteristics of their youthfulness. This basic premise was recognized
once again by the United States Supreme Court in Roper v. Simmons. 18 That Court also
expressly approved of key mitigating considerations in sentencing youth offenders, all of which
suggest the appropriateness of less harsh punishments. 19 Roper rested on the following
principles:
A. Youthful offenders are “categorically less culpable than the average criminal;”
B. Youthful offenders have a tendency to conform, a lack of maturity, and an
underdeveloped sense of responsibility;
C. Youthful offenders are more vulnerable or susceptible to negative influences and
outside pressures including peer pressure; and
D. The characters of youthful offenders are not as well formed and their personality
traits are more transitory, less fixed.
This Resolution recommends, therefore, that juvenile and criminal sentences for youthful
offenders be generally less punitive than they are for adult offenders convicted of committing the
same offenses.
Second, deterrence applies differently to adolescents than it does to adults. Youths
recognize risks differently than adults, and they weigh them differently: “[T]he same
17
Article 37 of the Convention states that “Neither capital punishment nor life imprisonment without possibility of parole shall
be imposed for offenses committed by persons below 18 years of age …” United Nations Convention on the Rights of the Child,
Nov. 20, 1989, 1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468-1470 (entered into force Sept. 2, 1990). In addition, the ABA has
long had policies against mandatory sentencing in the criminal justice system. In 1974, the ABA adopted a resolution opposing,
“in principle, legislatively imposed mandatory minimum prison sentences . . .” The Criminal Justice Standards urge legislatures
to authorize sentencing courts to impose a range of available sanctions, specifying maximum but not mandatory minimum
sentences. See Standards on Sentencing, 18-3.11, 18-3.21.
18 543 U.S. 551, 567 (2005).
19 Simmons, 543 U.S. at 569-570.
6

105C
characteristics that render juveniles less culpable than adults suggest as well that juveniles will
be less susceptible to deterrence.” 20
The very youthfulness of juvenile offenders is well established as grounds for imposing
less severe punishments upon them, even when they commit the most serious of crimes. Indeed,
this principle of lesser juvenile culpability undergirds the earliest juvenile court systems. 21 As
juvenile rights and responsibilities have been adjudicated over the last century, this premise
typically has been assumed.
The United States Supreme Court has long accepted the assumption of lesser culpability
for juvenile offenders and the premise that youth by itself mitigates even for the most serious
crimes. 22 The Court confirmed this basic premise on March 1, 2005 in a landmark juvenile
sentencing case, Roper v. Simmons, observing once again that there is "sufficient evidence that
today our society views juveniles . . . as 'categorically less culpable than the average criminal.'" 23
The Simmons Court identified three distinct reasons why juvenile offenders cannot be reliably
classified as among the worst offenders:
First, as any parent knows and as the scientific and sociological studies
respondent and his amici cite tend to confirm, "[a] lack of maturity and an
underdeveloped sense of responsibility are found in youth more often than
in adults and are more understandable among the young. These qualities
often result in impetuous and ill-considered actions and decisions."
Johnson, supra, at 367, 125 L. Ed. 2d 290, 113 S. Ct. 2658; see also
Eddings, supra, at 115-116, 71 L. Ed. 2d 1, 102 S. Ct. 869 ("Even the
normal 16-year-old customarily lacks the maturity of an adult"). It has
been noted that "adolescents are overrepresented statistically in virtually
every category of reckless behavior." Arnett, Reckless Behavior in
Adolescence: A Developmental Perspective, 12 Developmental Review
339 (1992). In recognition of the comparative immaturity and
irresponsibility of juveniles, almost every State prohibits those under 18
years of age from voting, serving on juries, or marrying without parental
consent. See Appendixes B-D, infra.
The second area of difference is that juveniles are more
vulnerable or susceptible to negative influences and outside
pressures including peer pressure. Eddings, supra, at 115, 71 L.
Ed. 2d 1, 102 S. Ct. 869 ("[Y]outh is more than a chronological
fact. It is a time and condition of life when a person may be most
susceptible to influence and to psychological damage"). This is
20 Simmons, 543 U.S. at 571.
21 See Illinois Juvenile Court Act of 1899, 1899 Ill. Laws 131.
22 See e.g. Thompson v. Oklahoma, 487 U.S. 815 (1988); Eddings v. Oklahoma, 455 U.S. 104, 116 (1982) ("Even the normal 16-
year-old customarily lacks the maturity of an adult").
23 Simmons, 543 U.S. at 567.
7

105C
explained in part by the prevailing circumstance that juveniles
have less control, or less experience with control, over their own
environment. See Steinberg & Scott, Less Guilty by Reason of
Adolescence: Developmental Immaturity, Diminished
Responsibility, and the Juvenile Death Penalty, 58 Am.
Psychologist 1009, 1014 (2003) (hereinafter Steinberg & Scott)
("[A]s legal minors, [juveniles] lack the freedom that adults have
to extricate themselves from a criminogenic setting").
The third broad difference is that the character of a juvenile
is not as well formed as that of an adult. The personality traits of
juveniles are more transitory, less fixed. See generally E. Erikson,
Identity: Youth and Crisis (1968). These differences render
suspect any conclusion that a juvenile falls among the worst
offenders. The susceptibility of juveniles to immature and
irresponsible behavior means "their irresponsible conduct is not as
morally reprehensible as that of an adult." Thompson, supra, at
835, 101 L. Ed. 2d 702, 108 S. Ct. 2687 (plurality opinion). Their
own vulnerability and comparative lack of control over their
immediate surroundings mean juveniles have a greater claim than
adults to be forgiven for failing to escape negative influences in
their whole environment. See Stanford, 492 U.S., at 395, 106 L.
Ed. 2d 306, 109 S. Ct. 2969 (Brennan, J., dissenting). 24
In Simmons, the Court said: a) teens under 18 are different; b) there may
be some exceptions to that rule, but no one can tell for certain who those
exceptions are; c) in the context of death, we will make an absolute rule barring
execution of those under 18. Justice O’Connor argued that states should be able
to make exceptions for the rare, obviously different case.
The proposed policy is grounded in a different syllogism. The
recommendation says: a) teens under 18 are different; b) there may be some
exceptions to that rule; and c) even though no one can tell for certain who those
exceptions are, governmental entities are free to craft exceptions to the general
rule. Thus, the resolution is consistent with Justice O’Connor’s dissent, while
recognizing the general proposition that adolescents are different (even if they,
like Christopher Simmons, committed a horrible crime).
Both the Court’s logic and that of the recommendation are supported by an
increasingly large body of scientific research. Teens are both less culpable, and
24 Simmons, 543 U.S. at 569-570.
8

105C
they are more likely to change, than their adult counterparts. Psychologists
attribute the differences between adolescents to both cognitive factors (children
think differently than adults) and psychosocial factors (children lack developed
social and emotional capabilities). 25 Research shows that adolescent thinking is
oriented to the present and largely overlooks consequences or implications. 26
Other research shows that children tend to make decisions based on emotions,
such as anger or fear, to a much greater extent than do adults. 27 This is
particularly true in stressful situations. 28
The MacArthur Foundation’s Research Network on Adolescent
Development and Juvenile Justice has produced a body of literature that confirms
differences between adolescents and juveniles that are relevant for sentencing
policy and practice. A recent Network Issue Brief observed:
The legal system has long held that criminal punishment should be
based not only on the harm caused, but also on the blameworthiness
of the offender. How blameworthy a person is for a
crime depends on the circumstances of the crime and of the person
committing it. Traditionally, the courts have considered several
categories of mitigating factors when determining a defendant’s
culpability. These include:
• Impaired decision-making capacity, usually due to mental illness
or disability,
• The circumstances of the crime—for example, whether it was
committed under duress,
• The individual’s personal character, which may suggest a low
risk of continuing crime.
Such factors don’t make a person exempt from punishment—
rather, they indicate that the punishment should be less than it
25 See Elizabeth Cauffman and Laurence Steinberg, (Im)maturity of Judgment in Adolescence: Why
Adolescents May be Less Culpable Than Adults, 18 BEHAV. SCI. & L. 742 (2000).
26 See, e.g., William Gardner and Janna Herman, Adolescent's AIDS Risk taking: A Rational Choice
Perspective, in ADOLESCENTS IN THE AIDS EPIDEMIC 17, 25-26 (William Gardner, et al. eds.; 1990)
("Gardner"); Marty Beyer, Recognizing the Child in the Delinquent, 7 KENTUCKY CH. RTS. J. 16 (Summer
1999); Meghan M. Deerin, The Teen Brain Theory, CHICAGO TRIBUNE, Aug. 12, 2001, at C1; Catherine C.
Lewis, How Adolescents Approach Decisions: Changes over Grades Seven to Twelve and Policy
Implications, 52 CHILD DEVELOPMENT 538, 541-42 (1981).
27 See Thomas Grisso, What We Know About Youth's Capacities, in YOUTH ON TRIAL: A DEVELOPMENTAL
PERSPECTIVE ON JUVENILE JUSTICE 267 (Thomas Grisso and Robert G. Schwartz, eds., 2000).
28 See Kim Taylor-Thompson, States of Mind/States of Development, 14 STAN. L. & POL’Y REV. 153,
155nn107-108 (2003) ("Taylor-Thompson"); Marty Beyer, Immaturity, Culpability & Competency in
Juveniles: A Study of 17 Cases, IN 15 SUMMARY OF CRIMINAL JUSTICE 27 (2000).
9

105C
would be for others committing similar crimes, but under different
circumstances.
Should developmental immaturity be added to the list of mitigating
factors Should juveniles, in general, be treated more leniently
than adults A major study by the Research Network on
Adolescent Development and Juvenile Justice now provides strong
evidence that the answer is yes. 29
More recently, neuroscientists using magnetic resonance imaging have
provided a physiological basis for these adolescent behaviors. There are dramatic
differences between the brains of adolescents and those of adults. 30 Studies show
that the brain continues to develop into the twenties, and this is particularly true of
physiological developmental processes relating to judgment and impulsecontrol.
31 Researchers have found that the parts of the brain in the frontal lobe
associated with regulating aggression, long-range planning, abstract thinking and,
perhaps, even moral judgment are not sufficiently developed in adolescents to
support these functions. These parts of the brain are not fully developed until
adulthood. 32 Because they lack frontal lobe functions, adolescents tend to make
decisions using the amygdala, a part of the brain associated with impulsive and
aggressive behavior. 33
29 MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, ISSUE
BRIEF 3: Less Guilty by Reason of Adolescence, 2006. Available at
http://www.adjj.org/downloads/6093issue_brief_3.pdf.
30 See Jeffrey Arnett, "Reckless Behavior in Adolescence: A Developmental Perspective," Developmental
Review, vol. 12, (1992), p. 339; Jay N. Giedd, et al., "Brain Development During Childhood and
Adolescence: A Longitudinal MRI Study," Nature Neuroscience, vol. 2 (1999), p. 681; Kenneth W. Kwong,
et al., "Dynamic Magnetic Resonance Imaging of Human Brain Activity During Primary Sensory
Stimulation," Proceedings of the National Academy of Science, vol. 89 (1992), p. 5675.
31 Gur RC, Ragland JD, Moberg PJ, Bilker WB, Kohler C, Siegel SJ, Gur RE. Computerized Neurocognitive
Scanning II: The Profile of Schizophrenia. Neuropsychopharmacology, 2001, 25, 777-788. Sharma, T., &
Harvey, P. (Eds.), Cognition in Schizophrenia. Oxford University Press: Oxford, G.B., 1999. Yakovlev PL,
Lecours AR (1967) The myelogenetic cycles of regional maturation of the brain. In: Regional development of
the brain in early life (Minkowski A, eds), pp 3-70. Oxford: Blackwell. Matsuzawa J, Matsui M, Konishi T,
Noguchi N, Gur RC, Bilker W, Miyawaki T. Age-related volumetric changes of brain gray and white matter
in healthy infants and children. Cerebral Cortex. 2001, 11, 335-342.
32 See Bruce Bower, "Teen Brains On Trial: The Science Of Neural Development tangles With The Juvenile
Death Penalty," Science News Online, vol. 165, no. 19 (May 8, 2004); Elkhonon Goldberg, The Executive
Brain: Frontal Lobes and the Civilized Mind, (New York: Oxford University Press, 2001), p. 434; Allan L.
Reiss, et al., "Brain Development, Gender and IQ in Children: A Volumetric Imaging Study," Brain, vol. 119
(1996), p. 1768; Elizabeth R. Sowell, et al., "Mapping Continued Brain growth and Gray matter Density
Reduction in Dorsal Frontal Cortex: Inverse Relationships During Postadolescent Brain Maturation," Journal
of Neuroscience, vol. 21 (2001), p. 8821.
33 See Jan Glascher and Ralph Adolphs, "Processing of the Arousal of Subliminal Emotional Stimuli by the
Human Amygdala," Journal of Neuroscience, vol. 23 (2003), p. 10274; national Juvenile Defender Center,
Adolescent Brain Development and Legal Culpability, 2003. The recommendation does not depend on brain
research for its viability, nor is it an argument for an age even higher than 18; rather, it emphasizes that teens
10

105C
In Simmons, the Court took the diminished culpability of juveniles under
the age of eighteen into account in concluding that the two penological
justifications for the death penalty applied to them with lesser force than to adults.
The Court reasoned that the reduced culpability of juvenile offenders requires a
correspondingly lower severity of punishment to meet retributive aims. Similarly,
it recognized that the lower likelihood that juvenile offenders engage in the kind
of cost-benefit analysis that attaches weight to the possibility of such a harsh
sentences, reduced the deterrent value of harsh sentences. 34
Moreover, as the Simmons Court also recognized, the relative importance
of rehabilitative aims are increased when considering the treatment of juvenile
offenders because the rehabilitative potential of youth is intrinsically greater:
The reality that juveniles still struggle to define their identity
means it is less supportable to conclude that even a heinous crime
committed by a juvenile is evidence of irretrievably depraved
character. From a moral standpoint it would be misguided to
equate the failings of a minor with those of an adult, for a greater
possibility exists that a minor's character deficiencies will be
reformed. Indeed, "[t]he relevance of youth as a mitigating factor
derives from the fact that the signature qualities of youth are
transient; as individuals mature, the impetuousness and
recklessness that may dominate in younger years can subside."
Johnson, supra, at 368, 125 L. Ed. 2d 290, 113 S. Ct. 2658; see
also Steinberg & Scott 1014 ("For most teens, [risky or antisocial]
behaviors are fleeting; they cease with maturity as individual
identity becomes settled. Only a relatively small proportion of
adolescents who experiment in risky or illegal activities develop
entrenched patterns of problem behavior that persist into
adulthood"). 35
This consideration applies with equal force to all sentences for juvenile offenders,
from the death penalty and life in prison without parole to much less severe
sentences.
Statutory Law Issues
at 16 and 17 are nowhere near full maturity. The brain research merely reinforces the powerful body of
knowledge about adolescent development cited by the Supreme Court in Roper.
34 Simmons, 543 U.S. at 571-72.
35 Simmons, 543 U.S. at 570.
11

105C
Among the states, recognition of developmental differences is illustrated by the varying
ways that state laws approach imposition of Life Without the Possibility of Parole (LWOP) as a
sentence for youthful offenders, imposed either on a discretionary or a mandatory basis. While
many states do not differentiate between an adult and a juvenile for this particular sentence, there
seems to be a growing trend among state laws toward modifying it as it applies to juveniles. To
begin with, in two states LWOP is not an authorized sentencing disposition, and therefore no
juveniles would be subject to a sentence of life without parole. 36 (These two states do, however,
allow for lengthy terms-of-years punishments.)
Several states have begun to treat juveniles differently than adults in sentencing, even for
violent crimes, many recognizing the difficulties in sentencing children, while still considering
the maturity and developmental differences that are unique to these offenders. Although these
jurisdictions are a minority among the States, three states plus the District of Columbia
specifically disallow LWOP for offenders under age eighteen 37 and one state specifically
disallows LWOP for offenders under age sixteen. 38 Additionally, in May 2006, Colorado passed
legislation forbidding LWOP for a person younger than eighteen. 39 Therefore, six states, plus
the District of Columbia expressly forbid sentencing a juvenile (either sixteen or eighteen) to life
without parole. Taken with the two states where LWOP is not an authorized disposition for any
offender, nine jurisdictions forbid this sentence for juveniles.
Although the majority of states permit LWOP for juveniles, in several of the states that
generally impose mandatory or discretionary life sentences without parole on adults, the
legislature affords special consideration for juvenile offenders. In Montana, a statutory
mandatory minimum does not apply if the offender was under the age of eighteen at the time of
the crime. 40 Oregon also gives special consideration to juveniles, providing that there are no
mandatory minimums when sentencing for juveniles waived from juvenile court, although
36 Neither Alaska nor New Mexico authorizes life without parole as a punishment. See Alaska Stat. § 12.55.125 (2005) (allows a
term of years up to ninety-nine years, but no LWOP); N.M. Stat. Ann. § 31-21-10 (2006) (offenders serving life sentences are
eligible for parole after thirty years).
37 District of Columbia, Kansas, New York, and Texas. See D.C. Code § 22-2104(a) (2006) (“provided that, no person who was
less than 18 years of age at the time the murder was committed shall be sentenced to life imprisonment without release.”); Kan.
Stat. Ann. § 21-4622 (2005) (provides that if the defendant was “less than 18 years of age at the time of the commission thereof,
the court shall sentence the defendant as otherwise provided by law, and no sentence of death or life without the possibility of
parole shall be imposed hereunder.”); N.Y. Penal Law § 125.27(1)(b) (2006) (that defendant be aged eighteen or older at the time
of the defense is an element of the crime of first degree murder); Tex. Fam. Code Ann. § 54.04(d)(3)(A) (2006) (provides
blended sentencing and states that if the child offender is convicted of a capital, aggravated first degree, or aggravated controlled
substance felony, the offender can be held for up to forty years after transfer from the youth facility).
38 Indiana disallows a child under sixteen to be sentenced to life without parole. Ind. Code § 35-50-2-3(b)(2) (2006) (providing
that a person “at least sixteen (16) years of age but less than eighteen (18) years of age at the time the murder was committed may
be sentenced to life imprisonment without parole.”).
39 See 2006 Colo. Legis. Serv. Ch. 228 (H.B. 06-1315) (West).
40 See Mont. Code Ann. § 46-18-222 (2005).
12

105C
LWOP does remain an authorized disposition. 41
restrictions on parole for juveniles. 42
Additionally, in Kentucky there are no
Of special notice is Colorado, whose legislature recently passed an amendment whereby
if a person is convicted as an adult, parole is possible after serving forty years. 43 In this Act, the
legislature recognizes that LWOP for children results in an “irredeemable loss to society,” and
that children are developmentally different than adults and should be treated as such. 44 Although
the legislation recognizes that persons younger than eighteen commit serious crimes, it states,
because of their level of physical and psychological development, juveniles who
are convicted as adults may, with appropriate counseling, treatment services, and
education, be rehabilitated to a greater extent than may be possible for adults
whose physical and psychological development is more complete when they
commit the crimes that result in incarceration. 45
The legislature concludes stating,
[T]he general assembly finds, therefore, that it is not in the best interests of the
state to condemn juveniles who commit class 1 felony crimes to a lifetime of
incarceration without the possibility of parole. Further, the general assembly
finds that it is in the interest of justice to recognize the rehabilitation potential of
juveniles who are convicted as adults of class 1 felonies by providing that they are
eligible for parole after serving forty calendar years of their sentences. 46
This act amends the former Co. Stat. § 18-1.3-401(4) to allow parole after forty years for a
juvenile convicted as an adult. 47
There are other instructive exceptions to “adult time” for youths tried as adults. While
New York State, for example, tries 13-15 year-olds as adults for enumerated crimes, age in that
state is a mitigating factor. 48
41 See Or. Rev. Stat. § 163.150 (2005) (punishment mandatory sentence of death, LWOP or life upon a conviction of aggravated
murder), but see Or. Rev. Stat. § 161.620 2005) (providing no mandatory minimums for juveniles waived from juvenile court,
except mandatory 30 year minimum for aggravated murder and discretionary 5 year minimum for use of a firearm during
commission of a felony).
42 See Ky. Rev. Stat. Ann § 640.040 (Baldwin 2005) (“No youthful offender shall be subject to limitations on probation, parole or
conditional discharge as provided for in KRS 533.060.”).
43 2006 Colo. Legis. Serv. Ch. 228 (H.B. 06-1315) (West).
44 See id. at § (1)(2).
45 See id. at § (1)(b), (c).
46 Id. at § (2).
47 Id.
48 See generally, Butterfield, All God’s Children: The Bosket Family and the American Tradition of Violence (1996); Corriero,
Judging Children as Children: A Proposal for a Juvenile Justice System (2006).
13

105C
III. ADOLESCENT DEVELOPMENT AND ELIGIBILITY FOR PAROLE
CONSIDERATION
As the Simmons Court observed, “the character of a juvenile is not as well formed as that
of an adult.” 49 The literature on brain development reinforces this point.
Thus, a fundamental characteristic of youthful offenders, certainly as compared to adult
offenders, is their potential for growth and maturation into non-threatening, productive citizens. 50
This growth potential for youthful offenders counters the instinct to sentence them to long terms
of incarceration, including life in prison without parole, essentially to “lock ‘em up and throw
away the key.” Whatever the appropriateness of parole eligibility for forty-year-old career
criminals serving several life sentences, quite different issues are raised for fourteen-year-old
first time offenders sentenced to prison. They may have committed essentially the same acts and
have been convicted of the same offenses, but 14-year-olds, certainly as compared to forty-yearolds,
are almost certain to undergo dramatic personality changes as they age from adolescence to
middle-age. Sentences for such offenders should not conclude today what kind of adults these
adolescents will be many years from now. As any parent knows, predicting what teenagers will
become by next week, let alone when they are grown adults, is nearly impossible. That key
decision should wait to be made until adolescents have reached adulthood and can be assessed
more accurately at that stage of their lives. If they have evolved into promising and nonthreatening
adults, strong consideration should be given to various forms of release on parole for
those juvenile offenders. 51
The recommendation would require states to give parole consideration to youths
sentenced as adults at a reasonable point in their sentences.
IV.
MITIGATION, SENTENCE RECONSIDERATION AND PUBLIC SAFETY
Criminal sentencing rests on five familiar pillars: specific deterrence, general deterrence,
retribution, rehabilitation and incapacitation. 52 They operate in different ways with respect to
public safety.
For the reasons set forth above in the discussion of Simmons, adolescent development,
and culpability, it is clear that those five considerations should operate differently when the
person sentenced was under 18 at the time of the office. Deterrence—which is intended to have
49 See text for footnote 23, supra.
50 A striking account of an adolescent’s capacity for change is Ishmael Beah’s, A Long Way Gone: Memoirs of a Boy Soldier,
2007. (Sarah Crichton Books / Farrar, Straus and Giroux). Beah was a 13-year-old child soldier in Sierra Leone who was
involved in barbarous acts. Rescued by UNICEF at age 16, Beah went through an intense period of rehabilitation, came to the
United States, was adopted, attended Oberlin College, and at age 26 published his memoir.|
51 See generally Victor Streib and Bernadette Schrempp, Life Without Parole for Children, 21(4) (ABA) CRIM. JUST. ____
(Winter 2007).
52 Packer, Herbert, The Limits of the Criminal Sanction. 1968. (Stanford University Press).
14

105C
a direct impact on public safety-- obviously operates differently on adolescents. 53 Retribution is,
at its core, about an offender’s blameworthiness; it has an attenuated relationship to public
safety. (A first-time murderer may deserve a long sentence even if he or she represents little risk
to the public.) Rehabilitation is very much tied to public safety, and one consideration for
sentencing and for parole will be the likelihood of rehabilitation in the first instance, and whether
rehabilitation has occurred in the second. Because youthful offenders are not fully formed, as a
class they have a high probability of rehabilitation. Incapacitation is clearly connected to public
safety, but adolescents’ changeability suggests that the duration of confinement should be subject
to review.
This recommendation leaves it to each jurisdiction to calculate the right balance among
the goals, proportionality, and reconsideration of the sentences of youthful offenders.
V. CONCLUSIONS
All of these lines of analysis lead to the conclusion that sentences authorized and
implemented for offenders under age eighteen should incorporate several well established
mitigating considerations unique to the youthfulness of such offenders. 54 Their crimes may be
the same as those of adults, but these offenders simply are not adults and should not be sentenced
as if they were. 55 Sentences should take into consideration both the nature and circumstances of
the offense and the character and background of the offenders. This approach leads naturally to
recognizing the unique mitigating circumstances of young offenders.
At its core, Anglo American criminal law is about punishment– about the
intentional infliction of harm on persons who have committed blameworthy acts.
We punish because we believe such harm is morally deserved by a particular
individual for a particular act. To do this, the criminal law needs to make sense as
a language of moral desert, punishing only those who deserve condemnation,
punishing the guilty only to the extent of their individual moral desert, and
punishing the range of variously guilty offenders it apprehends in an order that
reflects their relative blameworthiness. . . . To the extent that institutions of
criminal and juvenile justice make punishment decisions about young law
violators, they must be servants of the moral obligations of penal proportionality. .
53 See text connected to footnote 19, supra.
54 In 2006, the ABA launched the Initiative for Youth at Risk, which addresses a variety of issues, including those affecting
youthful offenders. Indeed, the Youth at Risk initiative, like ABA justice policy, recognizes developmental differences between
youths and adults.
55 The public appears to agree with this sentiment. In a January, 2007 poll by Zogby International, the public strongly agreed that
youth crime is a major problem, but “most of the American voting public things that giving young people the help they need to
mature, learn, and overcome the mistakes of youth is key to enhanced public safety.” Focus, Views from the National Council on
Crime and Delinquency, February, 2007, at 2. http://www.nccd-crc.org/nccd/pubs/zogby_feb07.pdf.
15

105C
. . [D]esert is a measure of fault that will attach very different punishment to
criminal acts that cause similar amounts of harm. 56
The other characteristic of young offenders is the understanding that they will change
significantly as they grow into adulthood. A fifteen-year-old today will be a quite different
person when he or she is age thirty or thirty-five. To decide today whether or not that fifteenyear-old
offender should continue to be imprisoned on into those adult years and even into old
age is to assume extra-human powers to predict human behavior generations into the future.
That crucial decision to release or not release offenders on parole should be made at the time
such release is being contemplated and not decades earlier. This conclusion leads to the principle
that youthful offenders should be eligible for parole consideration at reasonable points during
their sentences, even in those jurisdictions that do not provide parole eligibility for adult
offenders.
Respectfully submitted,
Stephen Saltzburg
Chair, Criminal Justice Section
February 2008
56 Zimring, Penal Proportionality for the Young Offender: Notes on Immaturity, Capacity, and Diminished Responsibility in
YOUTH ON TRIAL: A DEVELOPMENTAL PERSPECTIVE ON JUVENILE JUSTICE 267 (Thomas Grisso and Robert G. Schwartz, eds.,
2000).
16

105C
GENERAL INFORMATION FORM
1. Summary of Recommendation.
This recommendation urges federal, state, local, tribal, and territorial governments to
authorize and implement sentencing laws and rules of procedure that both protect public
safety and give mitigating consideration to youthful offenders (i.e., those under 18 at the
time of their offense who are subject to adult penalties upon conviction) by recognizing
mitigating considerations endorsed by the United States Supreme Court in Roper v.
Simmons, by authorizing and implementing sentences for youthful offenders that are
generally less punitive than comparable sentences for older offenders, and by requiring that
such offenders generally be eligible for parole consideration at a reasonable point during
their sentences and, if parole is denied, be reconsidered for parole periodically thereafter.
2. Approved by Submitting Entity.
This recommendation was approved by the Criminal Justice Section Council at its
November 3, 2007 meeting.
3. Similar Recommendations Submitted Previously.
This recommendation has not previously been submitted to the House of Delegates or the
Board of Governors.
4. Relevant Existing ABA Policies and Affect on These Policies.
Institute of Judicial Administration-American Bar Association Juvenile Justice Standards,
adopted by the ABA as policy in 1980, set the 18 th birthday as the age for criminal court
jurisdiction, with younger offenders falling under the jurisdiction of the juvenile court.
Exceptions are recognized, but no person under 15 should ever be tried in criminal court
and criminal courts should have jurisdiction over youths 15-17 years of age only after a
juvenile court waives jurisdiction.
ABA in 2002 endorsed the principles of the CJS Task Force on Youth in the Criminal
Justice System, which called on jurisdictions, when treating those under 18 as adults, to
take into account developmental differences, to consider individual characteristics of the
youth, and to reduce collateral consequences for youths convicted as adults.
ABA policy also opposes the death penalty and life without parole for youth under age 18.
5. Urgency Requiring Action at this Meeting.
Approval of the recommendation is needed as soon a possible in order to permit the ABA
to be a participant in helping shape the disposition of decisions related to these issues by
governmental agencies and legislative bodies.
17

105C
6. Status of Congressional Legislation (If applicable).
N/A
7. Cost to the Association.
The recommendation’s adoption would not result in direct costs to the Association. The
only anticipated costs would be indirect costs that might be attributable to lobbying to have
the recommendation adopted or implemented at the state and federal levels. These indirect
costs cannot be estimated, but should be negligible since lobbying efforts would be
conducted by existing staff members who already are budgeted to lobby Association
policies.
8. Disclosure of Interest (If Applicable).
No known conflict of interest exists.
9. Referrals.
Concurrently with submission of this report to the ABA Policy Administration Office for
calendaring on the February 2008 House of Delegates agenda, it is being circulated to the
following:
Sections, Divisions and Forums:
All Sections and Divisions
ABA Commission on Youth-At-Risk
10. Contact Person (Prior to 2008 Mid Year Meeting).
Robert Schwartz
Juvenile Law Center
1315 Walnut St., FL 4
Philadelphia, PA 19107-4705
Phone: (215) 625-0551
E-Mail: rschwartz@jlc.org
11. Contact Persons (Who will present the report to the House).
Neal R. Sonnett
Stephen Saltzburg
Law Offices of Neal R. Sonnett George Washington University
One Biscayne Tower
School of Law
Two South Biscayne Blvd. Suite 2 720 20 th Street, NW - Room B-303F
Miami, Florida 33131 Washington, DC 20006
Phone: (305) 358-2000 Phone: (202) 994-7089
FAX: (305) 358-1233 FAX: (202) 994-7143
E-Mail: nsonnett@sonnett.com E-Mail: ssaltz@main.nlc.gwu.edu
18

105C
EXECUTIVE SUMMARY
A. Summary of Recommendation.
This recommendation urges federal, state, local, tribal, and territorial governments to
authorize and implement sentencing laws and rules of procedure that both protect public
safety and give mitigating consideration to youthful offenders (i.e., those under 18 at the
time of their offense who are subject to adult penalties upon conviction) by recognizing
mitigating considerations endorsed by the United States Supreme Court in Roper v.
Simmons, by authorizing and implementing sentences for youthful offenders that are
generally less punitive than comparable sentences for older offenders, and by requiring that
such offenders generally be eligible for parole consideration at a reasonable point during
their sentences and, if parole is denied, be reconsidered for parole periodically thereafter.
B. Issue Recommendation Addresses.
While youthful offenders—those under 18 at the times of their crimes-- can and do commit
delinquent and criminal acts that have an impact on public safety, they nonetheless are
developmentally different. They are not adults and do not have fully-formed adult
characteristics. Current state and federal sentencing policy governing youths who are tried
and sentenced as adults often fail to recognize developmental differences between youths
or adults (i.e., they lack penal proportionality), and they often fail to recognize the capacity
of youthful offenders to change. The recommendation addresses proportionality of
sentencing and periodic review of sentencing of youths who are tried as adults. The ABA’s
approach to juvenile justice policies is to strongly protect the rights of youthful offenders
while ensuring public safety. Central to this premise is the understanding that youthful
offenders have lesser culpability than adult offenders due to the typical behavioral
characteristics inherent in adolescence.
C. How Proposed Policy Will Address the Issue.
The recommendation will require jurisdictions to authorize and implement sentences for
youthful offenders that are generally less punitive and more open to subsequent
modification than comparable sentences for older offenders; and it will require jurisdictions
to ensure that such offenders be eligible for parole consideration at a reasonable point
during their sentences and, if parole is denied, be reconsidered for parole periodically
thereafter.
D. Minority Views or Opposition.
No opposition to this recommendation is known to exist at this time.
19

Why do most 16-year-olds
drive like they’re
missing a part of their brain
because they are.
Even bright, mature teenagers sometimes do
things that are “stupid.”
But when that happens, it’s not really their fault. It’s
because their brain hasn’t finished developing. The
underdeveloped area is called the dorsal lateral
prefrontal cortex. It plays a critical role in decision
making, problem solving and understanding future
consequences of today’s actions. Problem is, it won’t be
fully mature until they’re into their 20s.
It’s one reason 16-year-old drivers have crash rates three
times higher than 17-year-olds and five times higher
than 18-year-olds. Car crashes injure about 300,000
teens a year. And kill nearly 6,000. Is there a way for
teens to get their driving experience more safely—
giving their brains time to mature as completely as
their bodies Allstate thinks so.
Graduated Driver Licensing (GDL) laws are one
approach that’s been proven effective at reducing teen
crashes. These laws restrict the more dangerous kinds
of driving teens do, such as nighttime driving and
driving with teen passengers. Since North Carolina
implemented one of the most comprehensive GDL
laws in the country, it has seen a 25% decline in
crashes involving 16-year-olds.
To find out what the GDL laws are in your state,
visit Allstate.com/teen. Help enforce them —
and if they aren’t strong enough, ask your legislator to
strengthen them.
Let’s help our teenagers not miss out on tomorrow just
because they have something missing today.
It’s time to make the world a safer place to drive.
That’s Allstate’s Stand
The Cupped Hands logo is a registered service mark and “That’s Allstate’s Stand” is a service mark of Allstate Insurance Company. Life insurance and annuities issued by Allstate Life Insurance Company, Northbrook, IL and Lincoln Benefit Life Company,
Lincoln, NE. In New York, Allstate Life Insurance Company of New York, Hauppauge, NY. Property-casualty insurance products issued by Allstate Fire and Casualty Insurance Company, Allstate Indemnity Company, Allstate Insurance Company, Allstate
Property and Casualty Insurance Company, Northbrook, IL. © 2007 Allstate Insurance Company

I s s u e B r i e f 3
Less Guilty by Reason of Adolescence
In 2005, in a landmark decision, the U.S. Supreme Court outlawed the death penalty for
offenders who were younger than 18 when they committed their crimes. The ruling centered
on the issue of culpability, or criminal blameworthiness. Unlike competence, which concerns
an individual’s ability to serve as a defendant during trial or adjudication, culpability
turns on the offender’s state of mind at the time of the offense, including factors that would
mitigate, or lessen, the degree of responsibility.
The Court’s ruling, which cited the Network’s work, ran counter to a nationwide trend
toward harsher sentences for juveniles. Over the preceding decade, as serious crime rose and
public safety became a focus of concern, legislators in virtually every state had enacted laws
lowering the age at which juveniles could be tried and punished as adults for a broad range
of crimes. This and other changes have resulted in the trial of more than 200,000 youths in
the adult criminal system each year. 1
Proponents of the tougher laws argue that youths who have committed violent crimes need
more than a slap on the wrist from a juvenile court. It is naïve, they say, to continue to rely
on a juvenile system designed for a simpler era, when youths were getting into fistfights in
the schoolyard; drugs, guns, and other serious crimes are adult offenses that demand adult
punishment. Yet the premise of the juvenile justice system is that adolescents are different
from adults, in ways that make them potentially less blameworthy than adults for their
criminal acts.
The legal system has long held that criminal punishment should be based not only on the
harm caused, but also on the blameworthiness of the offender. How blameworthy a person
is for a crime depends on the circumstances of the crime and of the person committing it.
Traditionally, the courts have considered several categories of mitigating factors when determining
a defendant’s culpability. These include:
• Impaired decision-making capacity, usually due to mental illness or disability,
• The circumstances of the crime—for example, whether it was committed under duress,
• The individual’s personal character, which may suggest a low risk of continuing crime.
Such factors don’t make a person exempt from punishment—rather, they indicate that the
punishment should be less than it would be for others committing similar crimes, but under
different circumstances.
Should developmental immaturity be added to the list of mitigating factors Should juveniles,
in general, be treated more leniently than adults A major study by the Research
Network on Adolescent Development and Juvenile Justice now provides strong evidence
that the answer is yes.

The Network’s Study of Juvenile Culpability
The study of juvenile culpability was designed to provide scientific data on whether, in what
ways, and at what ages adolescents differ from adults.
Many studies have shown that by the age of sixteen, adolescents’ cognitive abilities—loosely,
their intelligence or ability to reason—closely mirrors that of adults. But how people
reason is only one influence on how they make decisions. In the real world, especially in
high-pressure crime situations, judgments are made in the heat of the moment, often in the
company of peers. In these situations, adolescents’ other common traits—their short-sightedness,
their impulsivity, their susceptibility to peer influence—can quickly undermine their
decision-making capacity.
The investigators looked at age differences in a number of characteristics that are believed
to undergird decision-making and that are relevant to
mitigation, such as impulsivity and risk processing, future
orientation, sensation-seeking, and resistance to peer pressure.
These characteristics are also thought to change over
the course of adolescence and to be linked to brain maturation
during this time. The subjects—close to 1,000 individuals
between the ages of 10 and 30—were drawn from
the general population in five regions. They were ethnically
and socioeconomically diverse.
The study’s findings showed several characteristics of
adolescence that are relevant to determinations of criminal
culpability. As the accompanying figure indicates, although
intellectual abilities stop maturing around age 16, psychosocial
capability continues to develop well into early
adulthood.
Short-Sighted Decision-Making
One important element of mature decision-making is a sense of the future consequences of
an act. A variety of studies in which adolescents and adults are asked to envision themselves
in the future have found that adults project their visions over a significantly longer time,
suggesting much greater future orientation.
These findings are supported by data from the Network’s culpability study. Adolescents
characterized themselves as less likely to consider the future consequences of their actions
than did adults. And when subjects in the study were presented with various choices measuring
their preference for smaller, immediate rewards versus larger, longer-term rewards (for
example, “Would you rather have $100 today or $1,000 a year from now”), adolescents
had a lower “tipping point”—the amount of money they would take to get it immediately as
opposed to waiting.
How might these characteristics carry over into the real world When weighing the longterm
consequences of a crime, adolescents may simply be unable to see far enough into the
future to make a good decision. Their lack of foresight, along with their tendency to pay
more attention to immediate gratification than to long-term consequences, are among the
factors that may lead them to make bad decisions.
Level of Maturity
1.30
1.10
0.90
0.70
0.50
0.30
The Immaturity Gap
Intellectual
maturity reaches
adult levels at 16
Psychosocial
development
continues into
early adulthood
Intellectual
Ability
Psychosocial
Maturity
10-11 12-13 14-15 16-17 18-21 22-25 26-30
Age
Poor Impulse Control
The Network’s study also found that as individuals age, they become less impulsive and less
likely to seek thrills; in fact, gains in these aspects of self-control continue well into early
adulthood. This was evident in individuals’ descriptions of themselves and on tasks designed
to measure impulse control. On the “Tower of London” task, for example—where the goal

is to solve a puzzle in as few moves as possible, with a wrong move requiring extra moves
to undo it—adolescents took less time to consider their first move, jumping the gun before
planning ahead.
Network research also suggests that adolescents are both less sensitive to risk and more
sensitive to rewards—an attitude than can lead to greater risk-taking. The new data confirm
and expand on earlier studies gauging attitudes toward risk, which found that adults spontaneously
mention more potential risks than teens. Juveniles’ tendency to pay more attention
to the potential benefits of a risky decision than to its likely costs may contribute to their
impulsivity in crime situations.
Vulnerability to Peer Pressure
The law does not require exceptional bravery of citizens in the face of threats or other duress.
A person who robs a bank with a gun in his back is not as blameworthy as another who
willingly robs a bank; coercion and distress are mitigating factors. Adolescents, too, face
coercion, but of a different sort.
Pressure from peers is keenly felt by teens. Peer influence can affect youths’ decisions
directly, as when adolescents are coerced to take risks they might otherwise avoid. More
indirectly, youths’ desire for peer approval, or their fear of rejection, may lead them to do
things they might not otherwise do. In the Network’s culpability study, individuals’ reports
of their vulnerability to peer pressure declined over the course of adolescence and young
adulthood. Other Network research now underway is examining how adolescent risk-taking
is “activated” by the presence of peers or by emotional arousal. For example, an earlier Network
study, involving a computer car-driving task, showed that the mere presence of friends
increased risk-taking in adolescents and college undergraduates, though not adults. 1
Although not every teen succumbs to peer pressures, some youths face more coercive situations
than others. Many of those in the juvenile justice system live in tough neighborhoods,
where losing face can be not only humiliating but dangerous. Capitulating in the face of
a challenge can be a sign of weakness, inviting attack and continued persecution. To the
extent that coercion or duress is a mitigating factor, the situations in which many juvenile
crimes are committed should lessen their culpability.
Confirmation from Brain Studies
Recent findings from neuroscience line up well with the Network’s psychosocial research,
showing that brain maturation is a process that continues through adolescence and into early
adulthood. For example, there is good evidence that the brain systems that govern impulse
control, planning, and thinking ahead are still developing well beyond age 18. There are also
several studies indicating that the systems governing reward sensitivity are “amped up” at
puberty, which would lead to an increase in sensation-seeking and in valuing benefits over
risks. And there is emerging evidence that the brain systems that govern the processing of
emotional and social information are affected by the hormonal changes of puberty in ways
that make people more sensitive to the reactions of those around them—and thus more susceptible
to the influence of peers. 2
Policy Implications:
A Separate System for Young Offenders
The scientific arguments do not say that adolescents cannot distinguish right from wrong,
nor that they should be exempt from punishment. Rather, they point to the need to consider
the developmental stage of adolescence as a mitigating factor when juveniles are facing
criminal prosecution. The same factors that make youths ineligible to vote or to serve on a
jury require us to treat them differently from adults when they commit crimes.

Some have argued that courts ought to assess defendants’ maturity on a case-by-case basis,
pointing to the fact that older adolescents, in particular, vary in their capacity for mature
decision-making. But the tools needed to measure psychosocial maturity on an individual
basis are not well developed, nor is it possible to distinguish reliably between mature and
immature adolescents on the basis of brain images. Consequently, assessing maturity on an
individual basis, as we do with other mitigating factors, is likely to produce many errors.
However, the maturing process follows a similar pattern across virtually all teenagers.
Therefore it is both logical and efficient to treat adolescents as a special legal category—and
to refer the vast majority of offenders under the age of 18 to juvenile court, where they will
be treated as responsible but less blameworthy, and where they will receive less punishment
and more rehabilitation and treatment than typical adult offenders. The juvenile system does
not excuse youths of their crimes; rather, it acknowledges the development stage and its role
in the crimes committed, and punishes appropriately.
At the same time, any legal regime must pay attention to legitimate concerns about public
safety. There will always be some youths—such as older, violent recidivists—who have
exhausted the resources and patience of the juvenile justice system, and whose danger to the
community warrants adjudication in criminal court. But these represent only a very small
percentage of juvenile offenders. Trying and punishing youths as adults is an option that
should be used sparingly.
Legislatures in several states have begun to reconsider the punitive laws enacted in recent
decades. They have already recognized that prosecuting and punishing juveniles as adults
carries high costs, for the youths and for their communities. Now we can offer lawmakers in
all states a large body of research on which to build a more just and effective juvenile justice
system.
1
Allard, P., & Young, M. (2002). Prosecuting juveniles in adult court: Perspectives for policymakers and practitioners. Journal
of Forensic Psychology Practice, 6, 65-78.
2
Gardner, M., & Steinberg, L. (2005). Peer influence on risk-taking, risk preference, and risky decision-making in adolescence
and adulthood: An experimental study. Developmental Psychology, 41, 625-635.
3
Nelson, E., Leibenluft, E., McClure, E., & Pine, D. (2005) The social re-orientation of adolescence: A neuroscience perspective
on the process and its relation to psychopathology. Psychological Medicine, 35, 163-174.
For more information
MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice
Temple University, Department of Psychology
Philadelphia, PA 19122
www.adjj.org
The Research Network on Adolescent Development and Juvenile Justice is an interdisciplinary,
multi-institutional program focused on building a foundation of sound science and legal
scholarship to support reform of the juvenile justice system. The network conducts research,
disseminates the resulting knowledge to professionals and the public, and works to improve
decision-making and to prepare the way for the next generation of juvenile justice reform.

NIMH: Teenage Brain: A work in progress
Teenage Brain: A work in progress
New imaging studies are revealing—for the first time—patterns of brain development that extend into
the teenage years. Although scientists don't know yet what accounts for the observed changes, they may
parallel a pruning process that occurs early in life that appears to follow the principle of "use-it-or-loseit:"
neural connections, or synapses, that get exercised are retained, while those that don't are lost. At
least, this is what studies of animals' developing visual systems suggest. While it's known that both
genes and environment play major roles in shaping early brain development, science still has much to
learn about the relative influence of experience versus genes on the later maturation of the brain. Animal
studies support a role for experience in late development, but no animal species undergoes anything
comparable to humans' protracted childhood and adolescence. Nor is it yet clear whether experience
actually creates new neurons and synapses, or merely establishes transitory functional changes.
Nonetheless, it's tempting to interpret the new findings as empowering teens to protect and nurture their
brain as a work in progress.
The newfound appreciation of the dynamic nature of the teen brain is emerging from MRI (magnetic
resonance imaging) studies that scan a child's brain every two years, as he or she grows up. Individual
brains differ enough that only broad generalizations can be made from comparisons of different
individuals at different ages. But following the same brains as they mature allows scientists a much finergrained
view into developmental changes. In the first such longitudinal study of 145 children and
adolescents, reported in l999, NIMH's Dr. Judith Rapoport and colleagues were surprised to discover a
second wave of overproduction of gray matter, the thinking part of the brain—neurons and their branchlike
extensions—just prior to puberty. 1 Possibly related to the influence of surging sex hormones, this
thickening peaks at around age 11 in girls, 12 in boys, after which the gray matter actually thins some.
Prior to this study, research had shown that the brain overproduced gray matter for a brief period in early
development—in the womb and for about the first 18 months of life—and then underwent just one bout
of pruning. Researchers are now confronted with structural changes that occur much later in
adolescence. The teen's gray matter waxes and wanes in different functional brain areas at different
times in development. For example, the gray matter growth spurt just prior to puberty predominates in
the frontal lobe, the seat of "executive functions"—planning, impulse control and reasoning. In teens
affected by a rare, childhood onset form of schizophrenia that impairs these functions, the MRI scans
revealed four times as much gray matter loss in the frontal lobe as normally occurs. 2 Unlike gray matter,
the brain's white matter—wire-like fibers that establish neurons' long-distance connections between
brain regions—thickens progressively from birth in humans. A layer of insulation called myelin
progressively envelops these nerve fibers, making them more efficient, just like insulation on electric
wires improves their conductivity.
file:///L|/JDN/Brain%20Resources/Brain%20Developmen...5.%20Teenage%20Brain%20A%20work%20in%20progress.htm (2 of 5)8/16/2006 4:47:41 PM

NIMH: Teenage Brain: A work in progress
Advancements in MRI image analysis are providing new insights into how the brain develops. UCLA's
Dr. Arthur Toga and colleagues turned the NIMH team's MRI scan data into 4-D time-lapse animations
of children's brains morphing as they grow up—the 4th dimension being rate-of-change. 3 Researchers
report a wave of white matter growth that begins at the front of the brain in early childhood, moves
rearward, and then subsides after puberty. Striking growth spurts can be seen from ages 6 to 13 in areas
connecting brain regions specialized for language and understanding spatial relations, the temporal and
parietal lobes. This growth drops off sharply after age 12, coinciding with the end of a critical period for
learning languages.
While this work suggests a wave of brain white matter development that flows from front to back,
animal, functional brain imaging and postmortem studies have suggested that gray matter maturation
flows in the opposite direction, with the frontal lobes not fully maturing until young adulthood. To
confirm this in living humans, the UCLA researchers compared MRI scans of young adults, 23-30, with
those of teens, 12-16. 4 They looked for signs of myelin, which would imply more mature, efficient
connections, within gray matter. As expected, areas of the frontal lobe showed the largest differences
between young adults and teens. This increased myelination in the adult frontal cortex likely relates to
the maturation of cognitive processing and other "executive" functions. Parietal and temporal areas
mediating spatial, sensory, auditory and language functions appeared largely mature in the teen brain.
The observed late maturation of the frontal lobe conspicuously coincides with the typical age-of-onset of
schizophrenia—late teens, early twenties—which, as noted earlier, is characterized by impaired
"executive" functioning.
Another series of MRI studies is shedding light on how teens may process emotions differently than
adults. Using functional MRI (fMRI), a team led by Dr. Deborah Yurgelun-Todd at Harvard's McLean
Hospital scanned subjects' brain activity while they identified emotions on pictures of faces displayed on
a computer screen. 5 Young teens, who characteristically perform poorly on the task, activated the
amygdala, a brain center that mediates fear and other "gut" reactions, more than the frontal lobe. As
teens grow older, their brain activity during this task tends to shift to the frontal lobe, leading to more
reasoned perceptions and improved performance. Similarly, the researchers saw a shift in activation
from the temporal lobe to the frontal lobe during a language skills task, as teens got older. These
functional changes paralleled structural changes in temporal lobe white matter.
While these studies have shown remarkable changes that occur in the brain during the teen years, they
also demonstrate what every parent can confirm: the teenage brain is a very complicated and dynamic
arena, one that is not easily understood.
References
1 Giedd JN, Blumenthal J, Jeffries NO, et al. Brain development during childhood and adolescence: a
longitudinal MRI study. Nature Neuroscience, 1999; 2(10): 861-3.
file:///L|/JDN/Brain%20Resources/Brain%20Developmen...5.%20Teenage%20Brain%20A%20work%20in%20progress.htm (3 of 5)8/16/2006 4:47:41 PM

NIMH: Teenage Brain: A work in progress
2 Rapoport JL, Giedd JN, Blumenthal J, et al. Progressive cortical change during adolescence in
childhood-onset schizophrenia. A longitudinal magnetic resonance imaging study. Archives of General
Psychiatry, 1999; 56(7): 649-54.
3 Thompson PM, Giedd JN, Woods RP, et al. Growth patterns in the developing brain detected by using
continuum mechanical tensor maps. Nature, 2000; 404(6774): 190-3.
4 Sowell ER, Thompson PM, Holmes CJ, et al. In vivo evidence for post-adolescent brain maturation in
frontal and striatal regions. Nature Neuroscience, 1999; 2(10): 859-61.
5 Baird AA, Gruber SA, Fein DA, et al. Functional magnetic resonance imaging of facial affect
recognition in children and adolescents. Journal of the American Academy of Child and Adolescent
Psychiatry, 1999; 38(2): 195-9.
NIH Publication No. 01-4929
NIMH publications are in the public domain and may be reproduced or copied without the permission
from the National Institute of Mental Health (NIMH). NIMH encourages you to reproduce them and use
them in your efforts to improve public health. Citation of the National Institute of Mental Health as a
source is appreciated. However, using government materials inappropriately can raise legal or ethical
concerns, so we ask you to use these guidelines:
●
●
●
●
NIMH does not endorse or recommend any commercial products, processes, or services, and
publications may not be used for advertising or endorsement purposes.
NIMH does not provide specific medical advice or treatment recommendations or referrals; these
materials may not be used in a manner that has the appearance of such information.
NIMH requests that non-Federal organizations not alter publications in a way that will jeopardize
the integrity and "brand" when using publications.
Addition of Non-Federal Government logos and website links may not have the appearance of
NIMH endorsement of any specific commercial products or services or medical treatments or
services.
If you have questions regarding these guidelines and use of NIMH publications, please contact the
NIMH Information Center at 1-866-615-6464 or at nimhinfo@nih.gov.
Top
Updated: 02/17/2006
file:///L|/JDN/Brain%20Resources/Brain%20Developmen...5.%20Teenage%20Brain%20A%20work%20in%20progress.htm (4 of 5)8/16/2006 4:47:41 PM