Cyntoia Brown, William Barr, and Juvenile Life Without Parole
By: Samuel Weiss and Myesha Braden
Convicted as an adult for murder, until last week Cyntoia Brown faced the prospect of living most or all of the rest of her life in prison for a crime committed when she was only sixteen years old. A grant of clemency from Tennessee Governor Bill Haslam will allow Cyntoia to be released on supervised parole in August, after 15 years in prison. Without the governor’s intervention, Cyntoia would have suffered the same fact as thousands of children who were convicted as adults and sentenced to life without parole.
Juvenile life without parole sentences gained favor in the early 1990’s following advocacy by proponents of “tough on crime” measures, like Attorney General nominee William Barr. During his previous stint as Attorney General, Barr wholly embraced the “incapacitation” theory of criminal justice, or the belief that extended physical restraint of offenders leads to reduced crime.” In addition to longer sentences, Barr’s concept of incapacitation demanded the expansion of prisons. “The choice is clear,” according to Barr, “[m]ore prison space or more crime.”
Applying the incapacitation theory to youth offenders, Barr argued for “tough” sentences that emphasized discipline, such as boot camps, for first-time, non-violent youth offenders. For others like Cyntoia, Barr proposed a “legislative presumption [requiring] any juvenile age 14 or older who commits an enumerated crime of violence” to be tried as an adult. Reasoning that “some youthful offenders are simply criminals who happen to be young,” he warned state attorneys general that “excessive leniency fails to adequately protect society from these violent criminals.”
Barr’s tough-line on juvenile offenders was consistent with a theory first promulgated by academics in the mid-1980s who theorized that children were becoming increasingly violent and morally depraved. They predicted that the trends would grow even more severe in the coming years. John Dilulio, a prominent Princeton political scientist, famously dubbed the coming generation “super-predators.” This myth, which has since been debunked by its own proponents, laid the foundation for sentences like Brown’s to become common-place within the juvenile justice system.
Dilulio, William Bennett, and others claimed that “super-predators” would be mostly Black and reflect a growing moral poverty in America’s urban cities. Politicians of both political parties adopted their racist theory and amplified their rhetoric. Legislators enacted sweeping policy changes, lengthening sentences for children and increasing the circumstances in which they could be tried as adults. The policy changes had their intended effect — an explosion of life without parole sentences for children tried as adults. The result was children condemned to die in prison without the possibility of ever convincing a parole board to release them.
By the mid-1990s, youth crime began dropping and continued to decline. There is no evidence that the overly punitive laws advocated by Barr and others played any role in the decline, either by deterring children from committing crimes or by incapacitating them from doing so. Moreover, advances in neuroscience and the study of adolescent brain development have demonstrated that the likelihood of criminal behavior declines considerably with age. Many advocates of the “super-predator” theory have now recanted, admitting the theory was wrong.
The twenty-first century has seen efforts to correct the damage caused by juvenile justice policies crafted on the strength of the “superpredator” myth. In 2010, the Supreme Court announced its decision in Graham v. Florida, establishing that children convicted of crimes other than murder could not be given life without parole sentences. Then in 2012, the Court held in Miller v. Alabama that the Eighth Amendment forbids sentences of life without parole for crimes committed as children, unless an individualized consideration finds the child to be permanently incorrigible. Despite these advances, the relief provided by the Supreme Court has regularly proven to be illusory.
Take Corey Grant, an African-American man incarcerated in New Jersey. He was sentenced to life without parole for gang activity and drug trafficking when he was just sixteen years old, the same age as Cyntoia. After the Supreme Court’s 2012 case, because his life without parole sentence had been automatic, Corey received a resentencing hearing to determine whether he was the rare, truly irredeemable youth offender. The resentencing judge looked at his record and found that he was not permanently incorrigible and therefore could not be sentenced to life without parole. Nonetheless, the judge still sentenced him to 65 years in prison.
Corey appealed the new sentence and initially obtained relief from the federal appeals court, but now the case is being reheard by the entire Third Circuit. The Lawyers’ Committee for Civil Rights Under Law has filed an amicus brief in Corey’s case, explaining the history of the racist “superpredator” myth underlying the expansion of life without parole sentences for youthful offenders, and arguing that replacing formal life sentences with de facto ones will render the Supreme Court’s Miller ruling hollow.
Juvenile justice advocates have been joined by NFL players Malcolm Jenkins and DeMario Davis in calling for policymakers to eliminate life without parole sentences altogether. To the contrary, those like William Barr reject the notion that rehabilitation is the goal for incarceration and believe “deterrence, incapacitation, and retribution are independent reasons” for extended sentences for anyone convicted of violent crimes, including youth offenders. For Barr and others, remarkable transformations like Cyntoia’ s –she will earn her bachelor’s degree in May — mean nothing.
Nelson Mandela said, “[t]here can be no keener revelation of a society’s soul than the way in which it treats its children.” At the very least, we should examine William Barr’s suitability to serve as Attorney General through the lens of his record on juvenile justice.
Samuel Wiess is an Associate Counsel and the 2017–19 Jerry Shestack Justice Fellow, and Myesha Braden is Director for the Criminal Justice Project, at the Lawyers’ Committee for Civil Rights Under Law.
