LWOP Held Unconstitutional For “Emerging Adults”

Lest there be any doubt, I’ve long supported the concept of second chances, that even those people convicted of the most heinous and serious offenses be given a second look after a lengthy period of imprisonment to determine whether continued confinement is warranted. This isn’t to say they should get parole. Sometimes, the answer will be no, they do not deserve a second chance. But there is no harm in taking a look, particularly as sentences have been ratcheted up over the past few decades into absurdly lengthy sentences.

The sentence of life without parole has already been held too extreme to satisfy the Eighth Amendment’s prohibition on cruel and unusual sentences for juveniles, people who committed the crime when they were under the age of 18 years, because they were children, intellectually and emotionally, and should not be held to the standard imposed on adults. The Massachusetts Supreme Court has now held that the same should apply to a new category, “emerging adults.”

Here, we consider whether our holding in Diatchenko I should be extended to apply to emerging adults, that is, those who were eighteen, nineteen, and twenty years of age when they committed the crime. Based on precedent and contemporary standards of decency in the Commonwealth and elsewhere, we conclude that the answer is yes.

Legally, the age of 18 is considered the age of majority, although only for some purposes, like voting, and not for others, like drinking alcohol. The crux of the decision is based on studies that conclude that the brains of youth are not yet sufficiently developed to hold them accountable as adults before age 21.

Advancements in scientific research have confirmed what many know well through experience: the brains of emerging adults are not fully mature. Specifically, the scientific record strongly supports the contention that emerging adults have the same core neurological characteristics as juveniles have. As the Superior Court judge noted, “Today, neuroscientists and behavioral psychologists know significantly more about the structure and function of the brains of [eighteen] through [twenty year olds] than they did [twenty] years ago . . . .” This is the result of years of targeted research and greater access to relatively new and sophisticated brain imaging techniques, such as structural magnetic resonance imaging (sMRI) and functional magnetic resonance imaging (fMRI). From the detailed evidence produced in the record, the judge made four core findings of fact regarding the science of emerging adult brains: emerging adults (1) have a lack of impulse control similar to sixteen and seventeen year olds in emotionally arousing situations,15 (2) are more prone to risk taking in pursuit of rewards than those under eighteen years and those over twenty-one years, (3) are more susceptible to peer influence than individuals over twenty-one years, and (4) have a greater capacity for change than older individuals due to the plasticity of their brains. The driving forces behind these behavioral differences are the anatomical and physiological differences between the brains of emerging and older adults.

The problem arises from the fact that these same issues make these “emerging adults” the most prone to crime and violence, and hence the age group most in need of deterrence. Being murdered by an 18-year-old leaves one no less dead than being murdered by a 25-year-old.

The question, however, shouldn’t be whether this holding somehow gives a free ride to “emerging adults” to commit crimes or engage in violence. It does not mean they cannot be sentenced to life imprisonment, but merely that they cannot be denied the possibility of parole after a lengthy period of incarceration. It doesn’t mean they will get parole, even after 15 years, but merely that they will be given a second look to see whether they’ve grown up, turned their lives around and can be trusted to rejoin society as a law-abiding member.

But is this a matter of constitutional dimension? Even if one takes the view that it is  good policy to given defendants sentenced to forever a reason to improve himself, to try to be a better person, to grow up, it does not implicate cruel and unusual punishment such that the decision should be a matter of legislation rather than constitutional ruling.

“As a former Senator, I held the position that was articulated in the Court’s dissenting opinion – that codifying crimes and punishments is a core legislative function and that this issue was most appropriately handled legislatively rather than through the courts. The Norfolk District Attorney’s Office now moves forward on all of these cases consistent with the ruling of the SJC,” Norfolk DA Michael W. Morrissey said in a statement.

On this point, the court justified its ruling by noting myriad differences in the treatment of the “emerging adult” cohort and concluded that denying them the possibility of parole violated “contemporary standards of decency.”

Our comprehensive review informs us that Supreme Court precedent, as well as our own, dictates that youthful characteristics must be considered in sentencing, that the brains of emerging adults are not fully developed and are more similar to those of juveniles than older adults, and that our contemporary standards of decency in the Commonwealth and elsewhere disfavor imposing the Commonwealth’s harshest sentence on this cohort. Consequently, we conclude that a sentence of life without the possibility of parole for emerging adult offenders violates art. 26. [This is the state Constitution equivalent of the Eighth Amendment.]

Vagaries like “decency” provide a very shaky foundation for an otherwise sound policy. Words like “decency” are highly subjective, and reflect little more than one group’s sensibility as opposed to another. What is “decent” to the majority of the Massachusetts Supreme Court may not reflect what is decent to the family of someone murdered by a 20-year-old. What is “decent” may well be the right basis to reject the propriety of imposing such a sentence, but being of dubious decency doesn’t necessarily mean it’s unconstitutional.

Nor is it clear that contemporary standards of the moment, which may well conflict with contemporary standards in the future, insulate the conclusion from criticism. Indeed, this is why legislation might be a better mechanism to reflect the political policy decisions of citizens than a court reinventing the scope of constitutional prohibitions to cover what it now deems a worthy policy.


10 thoughts on “LWOP Held Unconstitutional For “Emerging Adults”

  1. C. Dove

    Interesting. I see a large number of postconviction requests for relief submitted by a group I refer to as “young adults.” That is, people whose commitment offenses occurred between ages 18 and 25, regardless how old they are when the submit their requests. (Babies “emerge” at birth. Minors, on the other hand, immediately become adults the day they turn 18.)

    The California judicial branch has thus far held fast to the bright line at age 18 when it comes to LWOP because, as you note, crime and punishment is left to the people. The higher courts have openly expressed misgivings about treating an 18 year old the same as a 30 year old when it comes to LWOP, but all three levels of our judicial branch has honored the separation of powers thus far.

    I’m with you when it comes to second chances. But if the Legislature has thus far not given this cohort a shot at parole even in LWOP cases, why should the courts?

  2. B. McLeod

    Neuroscientists don’t explain how, for centuries, people as young as 12 and 13 regularly managed to capably handle adult roles. This leads me to wonder whether the “emerging adults” are the product of real, physiological limitations on brain development, or simply of the perpetual childhood we now indulge. It will be interesting to see whether brain development of study subjects continues to slow as we continue to raise the age at which society expects adult behavior.

  3. j a higginbotham

    It would be interesting to hear Prof Halkides’ take on this topic. But ignoring that the many plots in “Brain charts for the human lifespan” show no discontinuous step or even inflection point at age 21, what about sentencing for over-21 adults whose brain scans are below age-grade? And what about for those of us of a more advanced age whose brain scans are on a negative slope with values below those of 18-year-olds? Should we also benefit from a similar ruling as demerged adults or get no break because there is not enough lifespan left for significant change and we are trending downwards anyway? And is there any historical data to supplement these imaging studies; for instance, did the kids doing physical labor in mills and coal mines alongside adults show the same mental maturity in considering consequences and other lifestyle actions?

  4. Chris Halkides

    Possibly off-topic but the Department of Justice is seeking the death penalty in the Payton Gendron (Buffalo shooter) case. Mr. Gendron was 18.

    1. SHG Post author

      Off-topic, but hard to reconcile with an administration that professes to be against the death penalty and interested in giving defendants, particularly young defendants, a second chance.

  5. DaveL

    I’m reticent to follow along with the current fashion of arguing, based on neurological science, that young adults under 25 are somehow less than full adults because their brains are “still developing”. If we set the pinnacle of neurological development at 25 as the benchmark for full accountability (and full enjoyment of adult rights), the next logical step would seem to be to strip the same status from those whose brains have since slipped from that pinnacle of development with the passage of time – which the current state of neuroscience would suggest begins around age 30.

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