Executive Summary
In the late 1980s and 1990s, rising crime rates and the myth of the juvenile superpredator led many states to change the way that people were prosecuted and sentenced for crimes they committed under age 18, to devastating effect. The confuence of harsher penalties, mandatory minimum sentences, and easier, and sometimes automatic, transfer from juvenile to adult court, meant that thousands of children across the country received adult sentences for their crimes, often without any consideration of their youth. In 2008, an Amnesty International and Human Rights Watch joint report estimated that there were at least 2,225 people serving life without parole sentences for crimes committed under age 18 in the United States, with marked racial disparities.1 Thousands more were serving life with parole or other life-equivalent sentences.2
Over the same period, developmental research began to emerge that demonstrated that the adolescent brain is not yet fully developed and that the psychosocial maturity of youths differs fundamentally from that of adults. Studies confirmed that young people exhibit heightened immaturity, impulsivity, risk taking, and susceptibility to peer pressure. But studies also showed that youths are likely to outgrow criminal behavior, which for young people typically reflects the transient qualities of youth rather than irreparable criminality.
In a series of decisions beginning in 2005, the United States Supreme Court, citing this emerging understanding of neurological and psychosocial development, acknowledged that children are different for purposes of sentencing, less culpable and more capable of change than adults who commit the same crimes. It therefore held that the Eighth Amendment prohibits treating children the same as adults in sentencing. The Court imposed categorial prohibitions on the death penalty for crimes committed under age 18 (Roper v. Simmons),3 and on life without parole for nonhomicide crimes committed under age 18 (Graham v. Florida).4 It further held that life without parole is a disproportionate sentence for most people who commit homicide crimes under age 18, and that the penalty may be imposed only after consideration of the mitigating factors of youth,5 and only in the rare instance in which a homicide crime reflects irreparable corruption rather than the transient immaturity of youth (Miller v. Alabama and Montgomery v. Louisiana),6 although no express finding is required (Jones v. Mississippi).7 Taken together, these decisions require a realistic and meaningful opportunity for release for the vast majority of people sentenced for a crime committed under age 18.8
Thus, states began to reform how they sentenced children. As of 2023, twenty-eight states and the District of Columbia outlaw life without parole for children.9 Across the country, states have sought to comply with the Supreme Court’s Eighth Amendment jurisprudence through individualized resentencing proceedings, opportunities for sentence modification, expanded eligibility for parole, or some combination of these and other reforms. Now though, in the wake of such reforms, more people than ever are serving life or long sentences with parole eligibility.
For many serving parole eligible sentences, parole processes and procedures also implicate Eighth Amendment protections under Graham and Miller. That is, parole is one of the mechanisms through which states must provide a realistic and meaningful opportunity for release under Graham and ensure that no person whose crime reflected the transient immaturity of youth spends a lifetime in prison, which would be a disproportionate and unconstitutional sentence under Miller and Jones. Parole processes that don’t enable realistic review or a meaningful opportunity to demonstrate post-crime maturity or rehabilitation may also raise due process, state constitutional, or other legal issues. More broadly, robust parole processes offer an important course correction. Several states have extended parole-like relief to anyone serving a lengthy sentence for a crime committed under age 18 (and in some states, beyond 18 and into early adulthood10). For anyone in this cohort, parole offers an opportunity to reevaluate long sentences in light of what we now know about youth psychosocial and neurological development. Meaningful parole consideration in this context can promote the rehabilitative ideal and support people sentenced as children in realizing productive adult lives outside of prison.
In recent years, people serving life or other lengthy sentences for crimes committed under age 18 have fled lawsuits challenging parole processes and procedures that, they argue, fail to provide the requisite consideration of youth or realistic and meaningful opportunity for release. These lawsuits challenge decision-making criteria that fail to emphasize youth-related factors, or that focus on offense conduct to the exclusion of post-crime maturity and rehabilitation. They also challenge parole procedures that limit opportunities to correct the record or ensure accuracy, impede a meaningful showing of post-crime growth and change, or preclude judicial review. The results of these lawsuits have been mixed at best—some courts have rejected any efforts to apply the Supreme Court’s Eighth Amendment jurisprudence in this context, and others have affirmed anemic parole processes under which few are ever released. But, in some states, these lawsuits have resulted in judicial decisions or settlement agreements that offer guidance on what parole should look like in this context. And elsewhere, litigation has complemented or catalyzed legislative reform efforts, resulting in new policies and procedures for parole review of this cohort. Building on the case law and legislative reforms, this white paper proposes model policies for robust constitutional compliance and meaningful, comprehensive parole review for people serving long sentences for crimes committed as youth.
The paper proceeds as follows:
Part I describes the changes in law in the late 1980s and early 1990s that resulted in a marked increase in young people sentenced to life or life-like sentences, as well as the evolving understanding of psychosocial and neurological development that followed.
Part II summarizes the U.S. Supreme Court’s Eighth Amendment jurisprudence on this topic.
Part III discusses the subsequent changes that states across the country have made to the ways that they sentence people for crimes committed under age 18, the ensuing rise in parole-eligible life and life-like sentences for that cohort, and the ways in which existing parole systems fell (and continue to fall) short.
Part IV explores the constitutional dimensions of parole review in this context and the judicial decisions that have begun to fill in the contours of the relevant requirements.
Finally, Part V offers model policies, with commentary, addressing the substantive and procedural components of parole review for people sentenced for crimes committed under age 18. The model policies aim to ensure a realistic and meaningful opportunity for release that is based on assessment of youth and post-crime maturity and rehabilitation, with procedures to support decision-makers in comprehensive and accurate parole review.
I. Background: The Myth of the Juvenile Superpredator, Changes in Youth Prosecution and Sentencing, and an Emerging Understanding of Psychosocial and Neurological Development
In the late 1980s and early 1990s, crime, including violent crime, was at a high point in the United States,11 including a marked rise in violent crime committed by people under the age of 18.12 This rise in crime captured the attention and fear of the public, and led to criticism of the juvenile justice system as inadequate to confront these perceived threats.13 During this period, a theory emerged that purported to explain this rise in violent crime by youths: the juvenile “superpredator.” Political scientist John J. DiIulio, Jr., then a Princeton University professor, first used the term in 1995, with clear racial undertones,14 to describe the “ever-growing numbers of hardened, remorseless juveniles who were showing up in the system” and to predict “a sharp increase in the number of super crime-prone young males,” raised in “abject moral poverty” and poised to “do what comes ‘naturally’: murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.”15 DiIulio predicted the “need to incarcerate at least 150,000 juvenile criminals in the years just ahead.”16 The superpredator theory at once described and fueled a phenomenon already visible in changes being made to how states, and judges, sentenced young people: a belief that youths who committed serious crimes were somehow more dangerous than adults and more deserving of the harshest penalties.
During this era, nearly every state in the nation reformed the way that it prosecuted and sentenced people under age 18 for serious crimes, redrawing the boundaries of the juvenile court and exposing many more youth to the adult criminal justice system and its penalties.17 Previously, transfer to adult court and imposition of adult punishment was rare.18 In this period, however, states amended laws to make it easier to try young people in the adult system, including lowering the minimum age of adult court jurisdiction, shifting discretion to prosecutors to initiate proceedings in adult court through charging decisions, expanding the kinds of crimes that enabled or mandated transfer to adult court, and withdrawing juvenile jurisdiction for certain categories of crimes.19 Simultaneously, changes made to many adult criminal justice systems increased the prevalence of mandatory minimum sentences, reduced opportunities for early release under a Truth in Sentencing model, abolished parole in many states, and, generally, increased the penalties imposed.20 And many parole boards across the country reformed their approach to parole during this era, changing decision-making criteria and procedures for people serving life sentences in ways that drastically reduced release rates.21
Thus the nation began to condemn young people to die in prison in staggering numbers and with racially disparate effect.22 Between 1985 and 1994, the number of people tried as adults for crimes committed under age 18 increased by 71%, and black youth were more likely than white youth to be transferred to the adult criminal justice system.23 By the year 2000, estimates suggested that 250,000 children annually were charged as adults in the United States.24 Many of these children faced life- or life-like sentences and remained behind bars years later, with persistent racial disparities, even as sentencing practices affecting young people began to change.
Youth crime was in decline by the mid 1990s,25 undermining the superpredator theory, which DiIulio himself soon repudiated.26 Acknowledging the misguided approach to sentencing young people in that era, at least one court has since found that a sentencing court’s reliance on the “materially false” superpredator theory required resentencing, citing the “dehumanizing racial stereotypes” underlying the theory and noting that “[b]y labeling a juvenile as a superpredator, the very characteristics of youth that should serve as mitigating factors in sentencing . . . are treated instead as aggravating factors justifying harsher punishment.”27
And at the turn of the century, a new understanding of psychosocial and neurological development began to emerge that contradicted the then-prevailing narratives. New research made clear that the brain does not fully develop until a person is in their early-to-mid 20s; before this time, the undeveloped frontal cortex affects judgment and behavior in important ways.28 Moreover, psychosocial and behavioral studies demonstrated that, as compared to adults, young people are more impulsive, less capable of weighing risks and rewards or understanding the consequences of their actions, and more susceptible to negative influence and peer pressure.29 In this context, researchers posited, crimes committed by immature young people typically reflect the transient qualities of youth, rather than intractable bad character, because most young people will outgrow criminal behavior in adulthood.30
But the damage wrought by changes to youth prosecution and sentencing had been done, and continued. By 2013, there were more than 10,000 people serving life or life without parole sentences for crimes they had committed under age 18.31 Moreover, a 2005 report found that black children received life without parole sentences at ten times the rate of white children,32 and a 2009 report estimated that of the 6,807 people serving life or life without parole sentences for crimes committed under age 18, 77% were people of color.33
II. U.S. Supreme Court Jurisprudence: Eighth Amendment Limits on Sentences for Crimes Committed Under Age 18
In a series of decisions beginning in 2005, the United States Supreme Court made clear that youth matters in sentencing and that the Eighth Amendment’s prohibition on “cruel and unusual punishments”34 limits the sentences that may be imposed on people convicted of crimes committed under age 18. These decisions reflected the emerging understanding of neurological and psychosocial development and sparked changes to the sentencing landscape for young people across the country.
The Court first addressed the issue in 2005 in Roper v. Simmons, which held that the Eighth Amendment prohibited the imposition of the death penalty as punishment for crimes committed under age 18.35 Looking to the emerging developmental research, in a majority opinion by Justice Kennedy, the Roper Court reasoned that “juvenile offenders cannot with reliability be classified among the worst offenders,” citing their “comparative immaturity and irresponsibility,” heightened susceptibility “to negative influences and outside pressures,” and transitory personality traits, which “render suspect any conclusion that a juvenile falls among the worst offenders.”36 Ultimately, the Court concluded that because it is impossible to accurately distinguish “between the juvenile offender whose crime reflects unfortunate yet transient immaturity,” for whom the death penalty would be a disproportionate sentence, and “the rare juvenile offender whose crime reflects irreparable corruption,” the sentence could not constitutionally be imposed.37
In 2010, in Graham v. Florida, the Court held that life without parole sentences violated the Eighth Amendment when imposed on people under the age of 18 convicted of nonhomicide crimes. Citing the “twice diminished moral culpability” of a young person who did not kill or intend to kill,38 Justice Kennedy again wrote for the Court, and explained that “[l]ife without parole is an especially harsh punishment for a juvenile,” who is likely to serve more time and a greater percentage of his or her life than an adult.39 Ultimately, the Court concluded that although a state need not “guarantee eventual freedom,” it must provide “some [realistic and] meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”40 That is, a state cannot at the time of sentencing determine that a person who committed a nonhomicide crime under age 18 will never be able to demonstrate fitness to reenter society; it must therefore offer a realistic and meaningful opportunity for release, which it might opt to do through a parole process that enables the person to show that they have rehabilitated.41
Two years later, in Miller v. Alabama, the Court, in an opinion by Justice Kagan, held that a life without parole sentence is an unconstitutional penalty for people who commit homicide under age 18. The Court noted that such crimes most often “reflect the transient immaturity of youth,” and such an extreme penalty may constitutionally be imposed only on “the rare juvenile offender whose crime reflects irreparable corruption,” and only after the sentencer has accounted for “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”42 Under this holding, a mandatory life without parole sentence imposed for a homicide crime committed under age 18 violates the Eighth Amendment because it precludes the requisite consideration of the mitigating circumstances of youth.43 Instead, a sentencer must consider in mitigation the person’s age and its hallmark features, including: immaturity, impetuosity, failure to appreciate risks and consequences, family and home environment, circumstances of the offense including extent of participation and familial and peer pressures, and the incompetencies of youth and their effect on the investigation and judicial proceedings.44 After such consideration, the Court reasoned, “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”45
In Montgomery v. Louisiana, in 2016, the Court confirmed that Miller’s prohibition on mandatory life without parole sentences for offenses committed under age 18 applied retroactively to all persons serving such sentences.46 Justice Kennedy’s majority opinion explained that such sentences could be remedied in resentencing proceedings, after which life without parole could be reimposed only after adequate consideration of the mitigating factors of youth, or by “consider[ation] for parole . . . ensur[ing] that juveniles whose crimes reflected only transient immaturity—and who have since matured—will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.”47 Parole eligibility in this context must provide the requisite “opportunity for release . . . to those who demonstrate the truth of Miller’s central intuition—that children who commit even heinous crimes are capable of change.”48
Finally, in Jones v. Mississippi, in 2021, the Court held that a sentencer need not make a factual finding of permanent incorrigibility nor provide an on-the-record sentencing explanation with an implicit incorrigibility finding before imposing a discretionary life-without-parole sentence. Instead, in an opinion written by Justice Kavanaugh, the Jones Court confirmed that Miller and Montgomery require a discretionary sentencing regime that permits “the sentencer to consider the defendant’s youth, and thereby helps ensure that life-without-parole sentences are imposed only in cases where that sentence is appropriate in light of the defendant’s age.”49 The Court re-emphasized language from Montgomery to make clear that it was limiting the procedural reach of its jurisprudence while keeping the substantive requirement—that life without parole is a disproportionate sentence for “a child whose crime reflects transient immaturity”—intact.50 Though the Jones decision reflected a changed Court and the new conservative majority’s circumscription of this line of cases, Miller and Montgomery remain good law. As Justice Sotomayor emphasized in her dissent: “[s]entencers are thus bound to continue applying those decisions faithfully,” either through the robust procedures states have implemented “to give effect to Miller and Montgomery” or through the responsibility “on individual sentencers to use their discretion to ‘separate those juveniles who may be sentenced to life without parole from those who may not.’”51
In sum, under the Supreme Court’s Eighth Amendment jurisprudence, life without parole sentences imposed for crimes committed under age 18 should be rare—for the “vast majority”52 of people who commit such crimes, including anyone whose crime reflects transient immaturity rather than irreparable corruption, a sentence must offer a realistic and meaningful opportunity for release.
III. Parole-Eligible Sentences on the Rise after Graham and Miller
In the wake of this Supreme Court jurisprudence, the total number of people serving juvenile life without parole sentences has decreased significantly, from a peak of 2,800 to 542, a number that includes people awaiting resentencing, people resentenced to life without parole after Miller, and new cases since Miller (of which there are fewer than 100).53 And as of 2023, twenty-eight states and the District of Columbia outlaw the penalty entirely.54 But the number of people serving life with parole sentences for crimes committed under age 18 has increased, from 5,054 in 200955 to nearly 7,000 in 2021,56 even as the total prison population declined by nearly 25% during that same period.57
The prevalence of life with parole sentences derives at least in part from legislative reform and judicial relief intended to remedy sentences that violated Graham and Miller. Many states implemented so-called “Miller-fx” statutes to preclude mandatory life without parole for homicide crimes and life without parole for non-homicide crimes committed under age 18.58 In so doing, several states relied on parole to “cure” sentences that would otherwise run afoul of the Eighth Amendment. For example, a 2013 Wyoming statute provided parole eligibility to all people in the state then serving a sentence of life without parole for a crime committed under age 18.59 Similarly, in 2017, Arkansas passed a statute eliminating life without parole for juveniles and instead providing for parole after a period of years determined by the crime of conviction.60 Indeed, as of 2021, at least ten states had granted parole eligibility en masse to people serving life-without-parole sentences for a crime committed under age 18.61 In at least one instance, this was a judicially mandated fx: in 2016, Minnesota’s Supreme Court ordered that any person serving a life-without-parole sentence for a crime committed under age 18 that was final before Miller would receive a sentence of life with the possibility of parole.62 Other states provided individual resentencing proceedings at which life with parole was a possible alternative sentence to life without parole for homicide crimes, as in North Carolina63 and Alabama.64 Such reforms were intended to remedy Graham and Miller violations and to prevent future constitutional violations.
In addition to these Graham and Miller fxes, a handful of states extended parole or parole like relief much more broadly. For example, in 2014, West Virginia abolished life without parole, instituting parole eligibility after, at most, 15 years for all persons serving sentences for crimes they committed under age 18 in the state.65 Similarly, in addition to abolishing life without parole for people under age 18 at the time of the offense, Connecticut in 2015 also extended parole eligibility beyond that cohort, to all persons serving sentences of 10 years or more for crimes they committed under age 18 (extended to age 21, with exceptions, in 2024), with parole eligibility after the greater of 12 years or 60% of the sentence.66 These states apparently recognized that the sentencing regimes of the 1980s, 1990s, and early 2000s produced sentences widely out of step with what we now understand about young people, and initiated broader reforms to more fully account for, and address, the missteps of this earlier era.
Such sweeping reform was limited, however, and in most states, people serving parole-eligible life, or life-like, sentences were left out of reforms altogether. This sometimes led to an incongruous regime in which people serving harsher sentences for more serious crimes were eligible for relief while people serving sentences for less serious crimes remained incarcerated with no apparent path to release. For example, Michigan’s Miller-fix statute provided resentencing to everyone serving juvenile life without parole in the state, resulting in new term-of-years sentences, and release, for most people serving the sentence.67 But people serving life with parole sentences for crimes committed as children, often sentences imposed pursuant to plea deals that avoided life without parole, faced a lifer parole process that offered limited opportunity for review and under which few were ever released.68 In 2022, the Michigan Supreme Court cited this incongruity in holding that life with parole sentences imposed for crimes committed under age 18 violated the state constitution.69 Similarly, Florida reformed its sentencing procedures for juvenile life without parole sentences in 2014, but did not concomitantly change the parole review processes for people serving life with parole for crimes committed as youth.70 Under the statute, people serving life without parole sentences receive resentencing hearings at which the court is required to consider youth, maturity, and rehabilitation, among other factors,71 and to modify the sentence if the person has rehabilitated.72 For a two-year period, before the Florida Supreme Court changed course, it extended relief under the statute to people serving life with parole sentences—during that period, 78% of those resentenced were released, and only three were resentenced to life with parole.73 After a changed Florida Supreme Court foreclosed further consideration under the statute,74 more than 170 people serving life with parole sentences for crimes committed under age 18 were condemned to await parole review under a system that has released only 24 people serving such sentences in more than ten years.75 Their challenge to this parole process is currently on appeal before the Eleventh Circuit.76
Ultimately, reforms that expanded access to parole without concurrently reforming parole review criteria and procedures merely funneled people into parole systems that were not only ill-suited and unaccustomed to considering youth, maturity, and rehabilitation, but, in some jurisdictions, were statutorily or administratively prohibited from taking such characteristics into account. Unsurprisingly, release is often an exceptional outcome. Parole systems designed for adult offenders may not be up to the task of accounting for youth at the time of the crime or discerning suitability for release based on demonstrated maturity and rehabilitation. They may also lack the procedural protections necessary for accurate and thorough consideration, especially given the particular needs and challenges of this cohort. Moreover, people serving life with parole sentences face diminished chances of early release against a backdrop of tougher parole policies for so called “lifers” in many states.77
Recent litigation illustrates these challenges. For example:
In Florida, a recent lawsuit challenged the state’s parole process for juveniles serving life with parole sentences, pursuant to which, according to one study, only five of the more than 100 people subject to this parole process were released between 2016 and 2020.78 The lawsuit alleged that the Parole Commission routinely heard more than 40 cases in a single day, spent an average of 10 minutes on each case, and never spoke with or saw the parole candidates before issuing a decision.79 Parole candidates had no opportunity to correct factual inaccuracies in the record, and no right to counsel or expert assistance in the parole process.80 Once denied parole, most individuals were set back another seven years before their eligibility for release would be considered again. The suit alleged violations of the Eighth Amendment. The district court granted summary judgment to the Florida parole board; plaintiffs’ appeal to the U.S. Court of Appeals for the Eleventh Circuit is pending.81
In Maryland, a lawsuit challenging life with parole sentences for people who committed crimes under age 18 alleged that no juvenile lifer had been paroled in the state in more than two decades, with issues that included reliance on risk assessment tools that were not designed to assess people who committed crimes as youth, and no opportunity to correct errors in parole files.82
• In North Carolina, a lawsuit challenging a life with parole sentence imposed for a crime committed under age 18 noted that the plaintiff, who had been denied parole 12 times, had never been so much as interviewed by a member of the parole commission, had no knowledge of the information upon which the commission relied in denying him parole, and had never been given an opportunity to demonstrate maturity and rehabilitation.83
Thus, although parole was explicitly recognized by the Supreme Court as a crucial remedy in the post-Graham and Miller landscape, existing parole criteria and procedures lag behind the constitutional mandate and in many instances actually thwart that mandate.
JUDICIAL REVIEW AND MODIFICATION OF SENTENCES
After Graham and Miller, several states opted to revise their sentencing regimes by implementing processes for judicial review and modification of sentences, rather than through parole eligibility. For example:
In Washington DC, a person who has served at least 15 years for a crime committed under age 25 may file an application for sentence modification and will receive a hearing. Courts are directed to consider the diminished culpability of youth and post-offense maturity and rehabilitation, among other factors, and “shall reduce” the term of imprisonment upon a finding that the petitioner “is not a danger to the safety of any person or the community and that the interests of justice warrant a sentence modification.”84
In North Dakota, a person serving a sentence for a crime committed under age 18 may petition for a sentence reduction after serving 20 years. The governing statute directs the reviewing court to consider factors including the diminished culpability of youths as compared to adults.85
In Florida, people serving life without parole for crimes committed under age 18 receive a resentencing hearing after 15 or 25 years, depending on the circumstances of the offense, at which youth and post-crime maturity and rehabilitation must be considered.86 The court must modify the sentence if it finds that the person has been rehabilitated and is reasonably fit to enter society.87 Counsel is provided for sentencing and resentencing hearings, and the defendant may hire experts, present evidence, cross-examine witnesses, and appeal.88
While this paper focuses on parole processes and procedures, it looks to some of these sentence modification statutes as instructive in requiring a release decision based on consideration of youth and post-crime maturity and rehabilitation, and in providing procedures to support robust, meaningful, and accurate review.
IV. Constitutional and Practical Considerations for Parole Review
As states turned to parole to address Graham and Miller deficiencies, courts across the country were asked to consider whether and how this jurisprudence extended to life or long sentences carrying parole eligibility.
As a threshold matter, courts have assessed whether these cases apply to life or life-like sentences with parole eligibility such that anyone serving such a sentence for a nonhomicide crime committed under age 18, and the vast majority of people convicted of homicide crimes committed under age 18, whose crimes reflected transient immaturity rather than irreparable corruption, must have a realistic opportunity for release grounded in consideration of youth, maturity, and rehabilitation. When parole is the mechanism for ensuring a constitutionally mandated opportunity for release, as the Massachusetts Supreme Judicial Court has explained, “the parole hearing acquires a constitutional dimension.”89 Some courts have therefore concluded that parole must provide a realistic and meaningful opportunity for release, under Graham, and ensure that no person whose crime reflected the transient immaturity of youth spends a lifetime in prison, which would be a disproportionate and unconstitutional sentence under Miller.90 Courts that have held to the contrary seemingly fail to recognize that an anemic parole system that fails to account for youth or post-crime growth and change disembowels the substantive requirements of Graham and Miller.91
This section describes some of the judicial decisions that have considered what is constitutionally required for (1) the timing of the opportunity for release on parole, (2) the substance of a parole decision grounded in youth, maturity, and rehabilitation, and (3) the procedures necessary to support comprehensive, accurate, meaningful review. The Supreme Court’s Eighth Amendment jurisprudence offers a starting point for this analysis, but this section also considers if and how other constitutional considerations might apply. Finally, informed by case law and, especially, recent legislative reform, this section previews specific policies and practices that can support robust constitutional compliance and meaningful parole review.
A. Timing of a Meaningful Opportunity for Release on Parole
Graham and its progeny suggest that to pass constitutional muster, the opportunity for release on parole must come at a time in the person’s life that allows some chance to rejoin and reconcile with society,92 to reenter the community, and to demonstrate rehabilitation.93 Under this metric, a sentence may violate the Eighth Amendment if it fails to provide a chance for release at a meaningful time in an individual’s life. Many courts to consider this issue have thus concluded that sentences that preclude parole consideration until old age violate the Eighth Amendment. For example, the California Supreme Court, in People v. Contreras, rejected as unconstitutional sentences of 50 years to life and 58 years to life imposed for nonhomicide offenses committed under the age of 18.94 The court reasoned that to comply with the Eighth Amendment, a sentence imposed for a nonhomicide crime must offer a “chance for fulfillment outside prison walls, and . . . reconciliation with society,” as well as an “incentive to become a responsible individual.”95 The New Jersey Supreme Court similarly rejected sentences requiring minimum terms of 55 years and 68 years, as violative of the Eighth Amendment, reasoning that release “in [the defendants’] seventies and eighties” was not sufficiently meaningful and explaining that courts must focus on the “real-time consequences” of a sentence.96 These courts and others recognize that a meaningful opportunity for release must come at a time in a person’s life that enables a productive life outside of prison.97 Note, though, that some courts to consider the issue have rejected challenges to sentences that seemingly preclude release within a person’s lifetime, concluding either that lengthy sentences imposed pursuant to a discretionary sentencing regime necessarily comply with the Eighth Amendment under Jones,98 that Graham and Miller apply to life without parole sentences only,99 or that the possibility of release even in old age complies with the Supreme Court’s dictates.100
The model policies that follow in Section V below do not propose a specific timeframe for initial parole review, a determination that will vary by state. Note, though, that parole consideration must be realistic and meaningful from the outset, that is, if a sentencer or legislature (or some combination) has determined that parole eligibility begins at a particular date, then parole consideration from that date forward should provide comprehensive review and a realistic opportunity for release. If a person demonstrates the requisite maturity, rehabilitation, and fitness for release then parole should be granted.
B. Criteria for a Release Decision Grounded in Youth, Maturity, and Rehabilitation
Many courts and legislatures across the country have recognized that under Graham and Miller, a parole board must consider a person’s youth at the time of the crime and must ground the parole decision in assessment of post-crime maturity and rehabilitation. Several courts have emphasized that parole review for people who were under 18 at the time of the crime must necessarily be different than typical parole review in order to ensure consideration of these factors, and have rejected parole decisions or processes that failed to adequately account for youth, maturity, and rehabilitation.101
Along these lines, some courts have concluded that denial of parole based principally on the nature of the offense, a consideration properly accounted for at sentencing, may violate the Eighth Amendment. For example, a federal court in Iowa has denied a defendants’ motion to dismiss an Eighth Amendment challenge to a parole process pursuant to which the parole candidate alleged he had been denied parole based solely on the seriousness of the offense and without consideration of his youth at the time of the crime or his subsequent maturity and rehabilitation.102 Other courts have denied motions to dismiss similar challenges to parole processes alleged to rely exclusively or primarily on the crime committed or juvenile criminal history,103 rather than on the required considerations of youth, maturity, and rehabilitation.104 However, some courts have declined to recognize any Eighth Amendment constraints on parole review, effectively gutting the requirements of Graham and Miller.105
Nonetheless, post-Graham and -Miller legislative reforms enacted in a dozen states across the country have uniformly required consideration of youth, maturity, and rehabilitation in the parole release decision.106 Following these examples, the model policies in Section V include provisions requiring consideration of post-crime growth and change, incorporating Miller’s mitigating factors of youth, and limiting reliance on the circumstances of the offense to inform the release decision.
C. Procedures to Support Thorough and Accurate Review of Youth, Maturity, and Rehabilitation
A parole system must have certain procedures in place to support the requisite realistic and meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation and in consideration of the mitigating factors of youth. Thus, although parole is usually considered a discretionary ‘act of grace’ outside the protections of due process,107 some courts have recognized that parole for this cohort necessitates a different inquiry. State sentencing regimes that rely on parole to comply with the Eighth Amendment dictates of Graham, Miller, and their progeny are not simply providing parole as an “act of grace”; parole must offer a meaningful opportunity to demonstrate maturity and rehabilitation, and the process must ensure release upon such a demonstration.108 A system in which parole is intended to remedy an otherwise unconstitutional life sentence creates a liberty interest, or “protectable expectation of parole,”109 to which due process protections may apply to require particular procedures to support meaningful review.110
In view of the procedural dimensions of constitutional parole reform, some courts have properly concluded that certain minimum procedures are required. These courts have cited not only the weighty constitutional implications of parole in this context, but also the “unique characteristics of juvenile offenders” and the “potentially massive amount of information [that] bears on these issues.”111 In light of these considerations, the Supreme Judicial Court of Massachusetts held that parole review for people serving mandatory life sentences for crimes committed under age 18 necessitated appointment of counsel, payment of expert fees, and limited judicial review.112 And the Iowa Supreme Court has similarly held that “access to the file and a right to provide information to the Board” represent “the minimum due process protections.”113 Of course, not all courts considering the issue agree, and ultimately, few have recognized any due process dimension.114 And others have approved bare-bones parole processes under which, e.g., the parole decision-makers “attest they consider the [required] factors [and] they have demonstrated their application from time to time.”115 Such decisions miss the mark. As legislatures across the country have recognized, certain procedures are essential to meaningful parole review for this cohort. To that end, several states have implemented a wide range of procedural reforms to support robust parole review, ensure consideration of youth, maturity, and rehabilitation, and promote success in the parole process and upon release.116 The model policies that follow draw principally from these reforms to propose policies for: access to rehabilitative programming and services; in-person parole hearings including the opportunity to make statements and answer questions; access to counsel and expert evaluation; ability to examine and correct the record; written parole decisions with reasons given for denial; judicial review; training for decision-makers; and oversight of the parole process.
LEARNING FROM LITIGATION AND LEGISLATION
The model policies presented in Section V derive from relevant litigation documents, judicial decisions, and recent legislation implemented in states across the country in the wake of Graham, Miller, and their progeny. This is an area of the law where litigation in tandem with other forms of advocacy has been crucial to bring about change.117
Lawsuits across the country have shed light on the inadequacies of existing parole systems to meet constitutional and practical requirements. The complaints, briefing, expert reports, and other supporting documents are instrumental in illustrating the problems and their stakes. As described here, judicial decisions have helped shaped the contours of what is—or may not be—required under the Eighth Amendment, due process, or state constitutions. And settlement agreements and other injunctive relief, though rare, offer a model for possible paths forward. For example, in Maryland after the district court denied in relevant part the state’s motion to dismiss a lawsuit challenging its parole processes for people serving life with parole for crimes committed under age 18, the parties engaged in negotiations resulting in a settlement agreement that required changes to the state Parole Commission’s decision-making criteria and procedures.118
Often, however, change in this area has resulted from legislative reforms that build on the requirements of Graham, Miller, and cases that followed. For example, after the Connecticut Supreme Court held that Miller applied retroactively to preclude life without parole or lengthy term-of-year sentences for crimes committed as juveniles, the state legislature passed a statute eliminating life without parole for juveniles in the state and providing for parole for any person sentenced to 10 years or more for a crime committed under age 18 (later extended, with some exceptions, 21).119 Indeed, some of the most expansive reforms in this area are the result of legislative advocacy and reform.120
V. Model Policies: Parole Procedures for People Serving Sentences for Crimes Committed Under Age 18
The following model policies are intended to support thorough and accurate parole review and to ensure that people serving sentences for crimes committed under age 18 have a realistic and meaningful opportunity for release. They encompass substantive considerations, such as criteria for release and appropriate bases for the release decision, as well as procedures to support comprehensive review and to ensure that this cohort is well supported in navigating the parole process and reentry. Indeed, it is essential that everyone involved in the parole process works toward a shared goal of preparing people to be released and to succeed upon release.
Note, as discussed in Part IV(a), that we do not offer recommendations for the timing of parole consideration—which will necessarily vary from jurisdiction to jurisdiction—although ensuring an opportunity for a productive life outside of confinement is crucial to the constitutional adequacy of any parole system intended to cure a Graham or Miller violation.121
The policies may be integrated into statutes governing state parole processes, parole board guidelines, or some combination of the two. Implementation of these policies will necessarily differ based on the particular characteristics and capacities of the states and parole systems that might seek to implement them. To that end, these policies are written so that they can be easily copied and pasted into a document that refines and adapts them for a particular system, including by referring to the parole decision-making entity, generally, as “[Parole Board]”. The policies are available at https://clearinghouse.net/resource/4071/ in a word processing text format (without footnotes) to facilitate such copying and tailoring.
A NOTE ON SCOPE, EMERGING ADULTS, AND BROAD APPLICATION OF THE MODEL POLICIES
These model policies are intended to guide parole consideration for people sentenced for crimes committed under age 18. Given all we know about youth, criminality, and reform, it seems prudent, if not constitutionally required,122 to ensure more robust parole consideration for any person serving a sentence for a crime committed under age 18, regardless of sentence length. That is, as some states have enacted, parole for this cohort should always give mitigating effect to youth, be grounded in assessment of post-crime growth and change, and include procedures to support meaningful consideration of these factors.
Moreover, these recommendations need not be limited to people under 18 at the time of the crime, and should be considered for broader application, including to emerging adults. Research shows that the developmental characteristics underpinning Graham and Miller extend beyond the age of 18, into the early 20s. During this period of “emerging adulthood,” young people demonstrate similar heightened impulsivity, susceptibility to peer pressure, and riskier behavior, all of which they are likely to outgrow.123 Thus for this group, too, “the ability to predict future criminal behavior based on prior behavior is tenuous at best.”124 In view of this, California extends its youthful offender parole to all people under age 26 at the time of the crime;125 Connecticut recently extended its “second look” parole reform from people under 18 to people under 21 at the time of the crime, with limited exceptions;126 the Supreme Judicial Court of Massachusetts cited the neurological similarities between juveniles and emerging adults to hold that all life without parole sentences for crimes committed under age 21 violated the state constitution;127 Michigan’s Supreme Court recently held that mandatory life without parole imposed on 18-year-olds violated the state constitution;128 and Washington’s Supreme Court held that mandatory life without parole was unconstitutional under the state constitution as applied to people between the ages of 18 and 21 at the time of the crime,129 among other similar decisions and reforms.
Indeed, these model policies are intended to promote accurate, thorough, and rehabilitation-focused review that could benefit parole boards and parole candidates, regardless of age at the time of the crime, supporting a meaningful opportunity for release for any person ready to return and contribute to society outside of prison.130
1. Meaningful Opportunity for Release Based on Demonstrated Maturity and Rehabilitation131
a. When a person serving a sentence imposed as the result of an offense or offenses committed when the person was less than eighteen years of age becomes eligible for parole pursuant to applicable provisions of law, the [Parole Board] shall ensure that the person has a meaningful opportunity for release based on demonstrated maturity and rehabilitation.
b. After considering the factors described in (2), the [Parole Board] shall apply a presumption that a person considered for parole under this [statute] is to be released, and must order release if it determines that the person has demonstrated maturity and rehabilitation since the time of the offense(s), that there is a reasonable probability that the person will live and remain at liberty without violating the law, and that the benefits to such person and society that would result from release substantially outweigh the benefits to such person and society that would result from continued incarceration.132
2. Evaluation of Maturity, Rehabilitation, and the Mitigating Factors of Youth133
a. In assessing a person’s overall maturity and rehabilitation since the time of the offense(s), the [Parole Board] shall consider:
i. the person’s demonstrated emotional maturity and refection, including insight into past conduct;
ii. the person’s demonstrated maturity of judgment, including but not limited to improved impulse control, the development of pro-social relationships, and independence from negative influences;
ii. the person’s participation in rehabilitative, treatment, and educational programs while in prison, as applicable and to the extent those programs have been made available, including any use of self-study for self-improvement;
iv. the person’s history of employment in prison, if opportunities have been available;
v. obstacles that the person may have faced as a youth entering the adult correctional system;
vi. the person’s institutional conduct, with greater weight given to more recent conduct occurring after the person has had time to mature and to adjust to prison;
vii. the person’s ability to progress to and succeed at lesser security levels, if the ability to progress is available;
viii. the person’s occupational skills and job potential, as well as ability and readiness to assume obligations and undertake responsibilities;
ix. the person’s reentry plan, including residence and reentry plans; and
x. any other information relevant to the person’s maturity and rehabilitation.
b. In reaching a release decision, the [Parole Board] shall give substantial mitigating weight to the following factors:
i. the diminished culpability and heightened capacity for change of youths as compared to that of adults;
ii. the hallmark features of youth, including immaturity, impetuosity, and limited ability to assess or appreciate risks and consequences;
iii. the young age of the person at the time of the offense(s);
iv. the immaturity of the person at the time of the offense(s);
v. whether and to what extent peer or adult pressure was involved in the offense(s);
vi. the person’s family and community circumstances at the time of the offense(s), including any history of abuse, trauma, poverty, and involvement in the child welfare system; and
vii. lack of ability of the person to extricate themselves from criminogenic circumstances.
Under no circumstances shall the [Parole Board] consider the person’s age at the time of the offense(s) as an aggravating factor.
c. The [Parole Board] shall not deny parole based in any part on factors outside of the person’s demonstrated ability to change, such as nature or effects of the offense.
Commentary to Policies 1 and 2
The U.S. Supreme Court has made clear that anyone convicted of a nonhomicide crime committed under age 18 and most people convicted of a homicide crime committed under age 18, whose crimes reflected transient immaturity rather than irreparable corruption, must have a realistic opportunity for release grounded in consideration of youth, maturity, and rehabilitation. For a parole system to meet this constitutional requirement, the release decision must be based on assessment of post-crime growth and change, considered in the context of the person’s youth before, during, and after the crime. The release decision must not be centered on the seriousness of the offense or victim impact—such considerations are reflected in the original sentence and do not bear on assessment of post-crime maturity and rehabilitation except insofar as they might inform a baseline from which to measure change or offer context for behavior.134 Recognizing this, states that have reformed their parole systems to better serve this cohort have uniformly required some consideration of youth as well as post-crime maturity and rehabilitation.135
Note that the mitigating considerations of youth bear on several aspects of the parole release decision. For example, parole decision-makers must consider the effect of youth and related challenges for the person adapting to the adult correctional system when assessing early institutional behavior. Some states even preclude consideration of any disciplinary tickets incurred before a certain age,136 or limit consideration to infractions committed within a fixed, recent period of time.137 Policies concerning prison discipline might also distinguish between serious infractions and minor ones that should have little or no relevance to the release decision.138
Furthermore, because crimes committed by young people are typically the result of transient immaturity rather than irreparable corruption, and the “vast majority”139 of people in this cohort will outgrow criminal behavior,140 parole boards should apply a presumption in favor of release, ordering release unless the evidence demonstrates that the person has not sufficiently matured or rehabilitated or otherwise doesn’t meet the criteria for release.141
3. Access to Rehabilitative Programming and Services142
a. Within the first year of incarceration for a person eligible for parole under this [statute], the [Parole Board or Department of Corrections] shall conduct an assessment of the person and identify programming and services that would be appropriate to prepare the person for return to the community. Such assessment shall happen at least every five years during the person’s incarceration.
b. At least five years before first parole eligibility, a representative from the [Parole Board] shall meet with the person to provide information about the parole hearing process and individualized recommendations regarding work assignments, rehabilitative programs, and institutional behavior, including any programming required to be completed before parole can be granted. The representative shall also advise the person on the importance of trying to collect and retain records relating to their youth, including official records, educational records, and other records that might be pertinent to parole consideration.
c. To the extent possible, the [Department of Corrections] shall make the programming that has been identifed in (b) available in time for it to be completed prior to the person’s parole hearing.
Commentary to Policy 3
Access to rehabilitative programming is essential not only to promote growth and rehabilitation, but also to offer hope for, and facilitate, a productive life outside of prison.143 Often, people serving life sentences are given lowest priority for rehabilitative programs and services, or are excluded from eligibility entirely.144 But courts and legislatures alike have recognized that access to such programs “is vital, especially for juvenile offenders, to enhance their growth and rehabilitative potential,”145 to support success in the parole process and, especially, upon reentry into the community. Therefore, several states encourage, if not require, collaboration between parole boards and departments of corrections to increase access to rehabilitative programming. For example, Washington requires that the state’s Department of Corrections, at least five years before certain juvenile parole hearings, “conduct an assessment of the offender and identify programming and services that would be appropriate to prepare the offender for return to the community,” and make such programming available “to the extent possible.”146 California similarly directs its parole board to meet with people six years prior to their minimum parole eligibility date and provide “information about the parole hearing process, legal factors relevant to his or her suitability or unsuitability for parole, and individualized recommendations for the inmate regarding his or her work assignments, rehabilitative programs, and institutional behavior.”147 And the Iowa Supreme Court has held that if the state, through the parole board, wishes to condition release upon completion of certain programming, the Department of Corrections cannot unreasonably withhold such programming.148 Along these lines, too, the settlement agreement in the Maryland Restorative Justice Initiative v. Hogan lawsuit includes a new regulation for the Department of Corrections and a modification to the Department’s case management manual directing case managers and the Commissioner to give “significant weight” or “serious consideration” to Parole Commission requests or recommendations related to security classifications and programming.149
Pre-parole assessments and resulting programming recommendations—by individual(s) with the necessary expertise from either the Department of Corrections or parole board or both, as appropriate in a particular system—can support rehabilitation and help ensure access to programming for people serving life or long sentences. Pre-parole interaction with the parole board can also offer a touchpoint to demystify the parole process, set expectations, and help people to better navigate and prepare for parole and, ultimately, release.
4. In-Person Parole Hearing with Counsel150
a. At least six months before a person becomes eligible for parole pursuant to this subsection, the [Parole Board] shall hold an in-person hearing to determine the person’s suitability for parole release.
b. At least twelve months prior to the hearing, the [Parole Board] shall notify the [Public Defender], the appropriate [State's Attorney], and [Victim Services] of the person’s eligibility for parole release pursuant to this subsection. The [Public Defender] shall assign counsel if the person is indigent.
c. At the hearing, the [Parole Board] shall permit the person eligible for parole and the person’s counsel to make statements. The parole candidate shall answer the [Parole Board’s] questions, which may pertain to growth, maturity, rehabilitation, and reentry plans, among other topics.
d. The hearing shall be conducted before more than one member of the [Parole Board]. Release shall be ordered if a majority of the members presiding over the hearing vote in favor of release.
e. The hearing shall be recorded and the recording retained by the [Parole Board] until the conclusion of the person’s next parole hearing and any appeal, or until the person is released on parole, whichever occurs first.
Commentary to Policy 4
Most states that have implemented parole reform now provide for in-person or live-by-video hearings, and many statutes make clear that parole candidates may speak at their hearings.151 These kinds of parole hearings, permitting real-time exchange between parole candidates and decision-makers, allow parole decision-makers to ask questions directly and to more accurately assess insight and maturity. Live hearings also permit parole candidates to address questions, provide context and perspective, and correct or rebut any inaccurate information. When possible, in-person hearings may avoid the potential for technological difficulties, enable fuller assessment of the parole candidate (via body language or other non-verbal clues), and support connection and an enhanced sense of fairness of process.152 But any kind of live hearing is preferrable to written submissions, which may be especially ill-suited to this purpose for people sentenced as youth, who “will often lack the educational attainment necessary to write effectively, and are likely to be much more capable of expressing themselves orally.”153
Counsel is an important part of the parole process for this cohort for many reasons. People who have been incarcerated since they were youths may face unique challenges in marshalling the requisite evidence to provide the youth-related context for their crimes as well as to demonstrate post-crime growth and change.154 Young people who commit crimes are often an especially vulnerable population—more likely to have experienced abuse and trauma, to require psychological and other professional services, to have experienced educational disruption, and to lack connections and support outside prison, among other vulnerabilities.155 Counsel, among other procedural supports, may be essential to enable this cohort to navigate the parole process and to prepare for successful release, including developing a release plan.156 In addition, these kinds of parole hearings require inquiry into the circumstances of youth and subsequent efforts toward rehabilitation, which necessitates “a potentially massive amount of information . . . including legal, medical, disciplinary, education, and work-related evidence.”157 In this context, counsel is crucial to ensuring that the parole board is presented with all relevant information, which may require extensive investigation into background, evaluations from mental health experts, and procurement of other records and testimonies.158 Full, adequate presentation of relevant evidence permits the parole board to make an informed, accurate assessment of maturity and rehabilitation and to avoid erroneously incarcerating people who should otherwise be released.159 Presence of counsel can further support the parole decision-makers by directing focus on the proper factors, especially in a context that differs from typical parole consideration in light of the characteristics of the parole candidates, the lengthy sentences that they may be serving, and the nature of the crimes of conviction, which are often more serious than the kinds of crimes that parole boards are accustomed to reviewing.160 In addition, counsel can correct or dispute aspects of the record, or provide youth-related context to the crime, so that these important functions can occur without potentially casting the parole candidate as combative or as failing to accept responsibility.161 Counsel can also help navigate the process after any denial of parole, including accessing a record of the hearing and decision and providing support in the judicial review process.
Participation of counsel can support parole candidates and decision-makers alike, without transforming the process into an unduly adversarial one. For example, in Connecticut, counsel prepares a written submission focused on offering context for consideration of maturity and rehabilitation and other statutory factors, supports the parole candidate in preparing for the hearing, and makes a statement at the hearing, without cross examination or sustained back and forth with the Board or with counsel for the state (who is also permitted to make a statement but not to cross-examine).162
Some involvement by counsel in the parole process is not unusual—in a survey conducted in 2014, 39 states reported considering input from counsel in the release decision.163 Of course, in order to effectively serve this essential role, any appointed counsel must be properly trained and supported in performing their duties, including with compensation that affords sufficient time devoted to these matters.164 Of course, there is a cost associated with providing counsel in this context. If such an expense is not yet feasible, systems ought to consider how best to otherwise support people in preparing for and navigating the parole process and in ensuring a comprehensive and accurate record for review, for example through access to social work or similar support independent from departments of corrections or parole systems.
5. Examination by Psychiatrist or Psychologist with Relevant Expertise165
a. The [Parole Board] may, before holding the hearing described in subsection (4), provide the parole candidate the opportunity to undergo examination by a psychiatrist or psychologist, at state expense if the person is indigent.
b. Within 60 days of any such evaluation, the psychiatrist or psychologist shall file a written report of findings and conclusions with the [Parole Board] and must also provide a certified copy of the report to the person and the person’s counsel.
Commentary to Policy 5
Independent psychological evaluations and reports from experts, including those with special training in psychosocial development, may support a parole board in adequately accounting for youth and assessing maturity, rehabilitation, and fitness for release. While these expert reports may not be required in the ordinary course, the opportunity for expert assessments or evaluations should be available, and funded, for people who might benefit from such assessment, including, for example, in cases involving mental illness or sex crimes.166 Experts trained in adolescent psychology, for example, can help the board understand an individual’s circumstances and motivations at the time of the crime, post-crime development, and conduct in prison. Massachusetts’s highest court has explained that assistance of a psychologist or other expert witness “may be crucial to [a] juvenile’s ability to obtain a meaningful chance of release.”167 The court construed a relevant statute to authorize courts to permit payment of experts to assist with parole proceedings “in certain limited contexts—specifically, where it is shown that the [person] requires an expert’s assistance in order effectively to explain the effects of the individual’s neurobiological immaturity and other personal circumstances at the time of the crime, and how this information relates to the individual’s present capacity and future risk of reoffending.”168 Access to specially trained psychological experts may also be important because there is a higher prevalence of mental impairments among young offenders than among those not involved with the justice system; lack of access to experts increases the risk that parole is denied based on undiagnosed psychiatric or cognitive impairments, which may go untreated in prison.169 Note, though, that just as typical parole procedures may be ill-suited to people serving sentences for crimes committed as children, so, too, may typical experts, untrained in adolescent development or mental health, be unable to sufficiently evaluate the particular characteristics and needs of this cohort. Accordingly, some states require parole boards in cases involving juvenile offenders to consider reports from experts in adolescence.170
6. Use of Risk Assessment Tools171
a. Upon request of the parole candidate or determination by the [Parole Board] that sufficient cause supports requiring assessment of risk, a risk assessment may be performed.
b. Any risk assessment or similar evaluation considered for purposes of the parole release decision shall include dynamic risk factors, shall account for the mitigating features of youth, shall have been validated to be free of racial bias, and shall permit the professional administering the tool to exercise independent clinical judgment in assessing risk.
c. The parole candidate and/or counsel shall have access to any risk assessment performed under subsection (b) as well as the opportunity to review for accuracy, including in scoring, underlying facts and conclusions, and to present any corrections to the [Parole Board].
d. Any assessment performed under subsection (b) shall be completed in sufficient time so as not to postpone the parole hearing required in 4(a) or otherwise delay release.
Commentary to Policy 6
The risk assessment tools typically used to support parole board decision making are ill-suited to people who commit crimes as youths, have not been validated for people who spend a long time in prison, risk reinforcing racial stereotypes and exaggerating risk based on systemic disadvantage, and may lend a clinical imprimatur to what ought to be legal and administrative considerations.172 Many of the static factors that inform evaluation of risk implicitly situate youth as aggravating, rather than mitigating. For example, people who did not graduate from high school, are not married, and/or who have never held a job outside of prison may be deemed more risky, even though these factors are usually true for any person who was first incarcerated as a child.173 Moreover, the tools may assign a higher risk score to people who committed crimes at younger ages, as all in this cohort will have done,174 notwithstanding evidence of lower rates of recidivism for this population.175 To combat this skew, any risk assessment tool must include consideration of dynamic factors that account for post-crime growth and change, and should enable exercise of independent judgment that allows the assessor to, for example, downgrade assessment of risk to account for youth.176 Moreover, assessors must have context for how prisons operate, and must be willing and able to consider collateral sources other than prison authorities.177 For example, in the settlement agreement in the Maryland Restorative Justice Initiative v. Hogan litigation, the parties modified the existing parole statute to provide that risk assessments must include dynamic factors and permit exercise of independent judgment, and also modified the Department of Corrections’ case management manual to make clear that case managers are to consider youth in security classification decisions as well as in preparing pre-parole summaries.178 Parole decision-makers, too, must be educated about the efficacy of risk assessment tools for this particular population.179 Finally, parole candidates and their counsel must have the opportunity to review any risk assessment for error.180
7. Access to the Record; Ability to Contribute to and Correct the Record181
a. At least 30 days, and ideally 60 or more days, in advance of the parole hearing, the [Parole Board] shall permit the person and the person’s counsel to review information that the [Parole Board] will consider in determining the person’s suitability for release, including any statements concerning the circumstances of the offense(s) and any risk or psychological assessment conducted.
b. In advance of the parole hearing, the [Parole Board] shall permit the person to submit materials to the [Parole Board] including, but not limited to, letters of support, court records, expert reports, and records relating to the person’s childhood and efforts at rehabilitation, and any corrections to the existing record.
c. The [Parole Board] shall permit persons with knowledge of the parole candidate before the offense(s), or the parole candidate’s growth and maturity since the time of the offense(s), to submit statements for review in advance of the parole hearing. This may include, but is not limited to, family members, friends, school personnel, faith leaders, community representatives, and others with relevant knowledge
Commentary to Policy 7
People eligible for parole for crimes committed as youth must have access to all information used by the parole decision-makers, and an ability to correct or rebut that information. Otherwise, parole candidates cannot dispute or correct inaccuracies or provide alternative accounts or reports that may be helpful to the release decision. Permitting access and opportunity to correct the record helps ensure that the parole release decision rests on accurate information. Indeed, at least one court has recognized that this is not just good policy but a constitutional imperative, holding that access to parole files and the ability to provide information and correct misinformation is a due process requirement.182
8. Release Decisions and Judicial Review183
a. If the [Parole Board] denies release, it shall provide a written statement of the reasons supporting its decision, including the youth-related factors and evidence of maturity and rehabilitation that it considered and the evidence found to overcome the presumption of release. Denial that relies in whole or in part on the result of any risk assessment performed pursuant to 6(a) shall provide detail as to the specific aspects of the risk assessment supporting denial. The [Parole Board] shall also offer guidance as to what will improve the person’s likelihood of release upon subsequent consideration, including, for example, any specific educational or rehabilitative programs that the person must complete.
b. If the [Parole Board] determines that continued confinement is necessary, the [Parole Board] shall reassess a person’s suitability for parole at a hearing no more than two years after any decision denying parole.
c. Decisions of the [Parole Board] shall be subject to judicial review under an abuse of discretion standard.
Commentary to Policy 8
Judicial review helps ensure that the parole decision complies with constitutional and statutory requirements. As the Massachusetts Supreme Judicial Court has explained, the “purpose of judicial review” is to discern “whether the board has carried out its responsibility to take into account the [required] attributes or factors”184—a determination that may have constitutional significance.185 To support meaningful judicial review, parole boards should provide a statement of reasons for the denial and guidance for the person to improve the likelihood of parole release in the future. A complete statement of reasons for the parole decision may also minimize use of improper bases for denial, as requiring explanation on the record can reduce some forms of cognitive bias.186 A statement of reasons may also prepare the parole candidate for future parole review by pointing to programs or treatments that could best prepare the person for release. Review under an arbitrary and capricious or abuse of discretion standard aligns with majority practice of states permitting judicial review.187 Finally, permitting parole re-review after two years offers an opportunity for the person to complete additional programming, solidify reentry plans, and otherwise prepare for rehearing, without unduly extending their period of incarceration.
9. Data, Monitoring and Review188
a. The [Parole Board] shall annually conduct a review of all people currently serving sentences for crimes committed under age 18 to ensure that parole eligibility hearings are timely and appropriately conducted.
b. The [Parole Board] shall collect and maintain data, including how many parole review hearings are held annually under [this statute] and the results, as well as a statistical breakdown on the basis of age, race, ethnicity, gender, type of offense, and any categorization based on risk assessment or similar evaluation.
c. The [Parole Board] shall also put in place mechanisms for reviewing and improving parole processes, including upon annual review conducted under (a).
10. Qualifications and Training189
a. All [Parole Board] members and relevant staff shall receive training at initiation of the position, and at least annually thereafter, in: adolescent psychology, development, and decisionmaking, and how it relates to the applicable parole considerations; low rates of recidivisim for people released post-Graham and Miller; the application of risk assessment tools to this population; the requirements of [this statute], including appropriate and inappropriate bases for the release decision, and the meaning of key terms, including maturity and rehabilitation, in this context; and the role of parole in the broader sentencing and punishment scheme.
b. Whenever possible, [Parole Board] members and supporting staff shall have some relevant background in adolescent development, and should reflect a diversity of experiences and perspectives, with greater emphasis on people reflective of the communities most affected by mass incarceration, and people whose orientation is towards social work and services, rather than law enforcement and corrections.
Commentary to Policy 10
Training upon assumption of duties and annually thereafter ensures that all parole decision-makers remain informed about relevant topics, even as membership changes. Decision-makers should be trained in adolescent development and related issues, and in why and how the parole release decision for this cohort is to be grounded in assessment of youth, maturity, and rehabilitation. Other relevant training topics may include: the impact that psychosocial development and trauma may have on institutional conduct during early incarceration; the effect of youth on navigating criminal proceedings;190 age-crime desistence;191 low rates of recidivism for people released post-Graham and Miller;192 juvenile crime and remorse;193 and the superpredator myth and related sentencing trends in the 1990s and early 2000s. Direct engagement, including with people currently incarcerated or people who have been released on parole after serving sentences for crimes committed under age 18, can also be beneficial.194