Last week, Tennessee Governor Bill Haslam granted Cyntoia Brown clemency for a crime committed when she was sixteen years old. Convicted as an adult for murder and given a life sentence, she faced the prospect of living most or all of the rest of her life in prison. Brown, like thousands of other people sentenced as children, was victim to the juvenile life without parole sentences advocated by proponents of “tough on crime” measures, like Attorney General nominee William Barr.
As Attorney General, Barr wholly embraced the theory of “incapacitation,” or the belief that extended physical restraint of offenders leads to reduced crime.” Barr’s concept of incapacitation centers on two elements; longer sentences and more prisons. “The choice is clear,” according to Barr, “[m]ore prison space or more crime.”
Applying the incapacitation theory to youth offenders, Barr favored “tough” sentences that emphasized discipline, such as boot camps, for first-time, nonviolent youth offenders. For others, Barr advocated in favor of the dangerous “legislative presumption [requiring] any juvenile age 14 or older who commits an enumerated crime of violence” to be tried as an adult. Barr reasoned that “some youthful offenders are simply criminals who happen to be young,” and warned state attorneys general that “excessive leniency fails to adequately protect society from these violent criminals.”
Barr’s position was consistent with a theory first promulgated academics in the mid-1980s who theorized that children were becoming increasingly violent and morally depraved, and 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 racist 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 Americas urban cities. Politicians of both political parties adopted their 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—life without parole sentences given to children exploded in number. These sentences condemned children 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 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 damaged caused by juvenile justice policies crafted as the result of the “super predator” 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 by children unless an individualized consideration finds the child to be permanently incorrigible. Unfortunately, for some children, the relief provided by the Supreme Court has proven to be illusory.
Take Corey Grant, an African-American man incarcerated in New Jersey. He was sentenced to life without parole for a gang activity and drug-trafficking when he was just sixteen years old, the same age as Brown. 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 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 “super predator” 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, joined by NFL players Malcolm Jenkins and DeMario Davis, have pushed policymakers to eliminate life without parole sentences altogether. To the contrary, proponents of “tough on crime” policies like those espoused by William Barr would prefer to “incapacitate” thousands of youth offenders by sentencing them to spend the majority of their lives locked behind prison walls.
William Barr’s suitability to serve as Attorney General must be examined through the lens of his record on juvenile justice. As Nelson Mandela said, “[t]here can be no keener revelation of a society’s soul than the way in which it treats its children.”
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.