INTRODUCTION
In the Fall of 2022, the LSU Law Journal for Social Justice and Policy hosted their Symposium on the Industrial Prison Complex (IPC or PIC), which is a broad label that refers to “the overlapping interests of government and industry that use surveillance, policing, and imprisonment as solutions to economic, social and political problems.”1 The Symposium incorporated many themes, addressing in part the myriad entities that have a vested interest in continuing mass incarceration, including but not limited to private construction companies, prison service providers, and more.2 The Symposium focused on the privatization of prisons—the practice of contracting the operation of prisons and correctional facilities to private companies, as opposed to government agencies.3 This Article addresses the disparate impact of incarceration within the IPC and one avenue the legal system could employ to make the process more in line with the most up-to-date scientific research as it pertains to brain development of offenders.
The process by which juveniles (generally, a label referring to offenders up to age 18) enter incarceration varies drastically by jurisdiction, including the severity of the punishment handed down. For an offender sentenced to life without the possibility of parole at 16 or 17, this realistically translates into incarceration that spans decades, dwarfing the amount of time the offender lived prior to committing the crime. In 2021, the Supreme Court issued its decision in Jones v. Mississippi, a case centering on the decades-long imprisonment of an offender who committed murder at the age of 15.4 The changing composition of the Supreme Court heavily influenced the outcome of Jones, and cemented the role of the United States as an outlier when it comes to punishing those under 18 with a lifetime sentence of incarceration with no possibility of parole (JLWOP, or juvenile life without parole).5 Prior to Jones, the Supreme Court continually emphasized that youth requires special constitutional consideration in sentencing, and this is especially important when making determinations of life behind bars. Despite this mandate, individual states show significant disparity in the way that youth is considered in sentencing decisions. Underscoring the concept of “justice by geography,” a 17-year-old in one state could receive JLWOP with little written reasoning while in another state that same sentence is prohibited.6 The Jones decision will widen these disparities.
Part I of this Article will describe the SCOTUS history behind JLWOP sentencing and the departure from the trajectory of increased protections with the 2021 Jones decision. It will also provide jurisdiction-specific illustrations of how the disparities in sentencing are playing out nationally. Part II will describe the evolving understanding of neuroscience and the need for separate treatment of not just juveniles but also “emerging young adults” through age 25. Part III will describe how the use of a sentencing benchcard in line with the most recent scientific developments can make outcomes within the IPC more equitable (and not necessarily just for those under age 18). The neuroscience that this Article will reference is based on the work of the Center for Law, Brain & Behavior (CLBB), an organization that strives to put “the most accurate and actionable neuroscience in the hands of judges, lawyers, policymakers and journalists—people who shape the standards and practices of our legal system and affect its impact on people’s lives.”7 Over the course of a two year collaboration with CLBB, students at Northeastern University School researched issues surrounding JLWOP and produced a “Benchcard”8 that is aligned with CLBB’s published work. The goal of this Benchcard is to guide legal system players in making science-informed decisions that are in line with current understanding of brain development.9
I. JUVENILE LIFE WITHOUT PAROLE AND JURISDICTION SPECIFIC ILLUSTRATIONS OF DISPARITIES
The United States is the “undisputed leader” when it comes to incarceration, investing significant resources and money into our imprisoning systems.10 These systems are not solving problems or rehabilitating offenders: “[P]risons do not disappear problems. They disappear human beings.”11 The judicial system in many jurisdictions operates to perpetuate the IPC, inhumanely propping up incarceration as an “industry” in a way that disproportionately impacts individuals from communities that have been historically under invested and under resourced.12 This Section provides examples from three states to illustrate how differently a 17-year-old offender could be sentenced post-Jones, evidence of the operation of justice by geography.
A. Overview of the Evolution of Protections for Juveniles from Supreme Court Decisions
Following the creation of separate courts for juveniles and adults,13 in 1967 the Warren Court rendered its decision in In re Gault, a significant decision impacting juvenile incarceration. Gault extended certain 14th Amendment due process protections explicitly to juveniles facing a deprivation of liberty.14 Following Gault, the legal battle specifically within juvenile sentencing has centered on the federal 8th Amendment prohibition on cruel and unusual punishment and how states have interpreted this provision in conjunction with their own constitutions.15 This requires courts to grapple with the “evolving standards of decency that mark the progress of a maturing society.”16 As noted, the United States’ standard of decency that enables a 17-year-old to be incarcerated in the prison industrial complex for the remainder of their natural life is not a standard shared by any other country.
The Supreme Court had a chance to extend the impact of Gault in 1989 when it considered whether the 8th Amendment precludes the death penalty for individuals who commit crimes at 16 or 17 years of age.17 The Court noted that: “[i]n accordance with the standards of this common-law tradition, at least 281 offenders under the age of 18 have been executed in this country, and at least 126 under the age of 17.”18 The opposition argued, amongst other lines of attack, that juveniles possess less developed cognitive skills than adults and are less mature and responsible, using so called “socioscientific evidence concerning the psychological and emotional development of 16- and 17- year olds.”19 However, the majority opinion, penned by Justice Scalia, ruled that “scientific evidence is not an available weapon” and that the 8th Amendment did not prohibit the death penalty for a 16 and 17-year-old.20
In the following two decades, states continued to develop varied legislative and judicial processes for the treatment of those committing crimes under the age of 18.21 The reliance on social science and scientific evidence is inextricably linked to the use of a benchcard like the one suggested by this Article (although that type of evidence has only recently been relied on with regularity in trial courts handing down such sentences). In 2005, the Supreme Court heard the case of a 17-year-old juvenile who committed a heinous murder in Missouri and was sentenced to death.22 Relying on science, and the ever-evolving standards of decency, Roper held that the death penalty for those under 18 was unconstitutional— marking the beginning of a string of cases in which the Supreme Court increased protections for juveniles when it comes to deprivation of life and liberty. “Roper is significant for our purposes because the highest Court in the country used scientific evidence to support a shift in the law.”23 Despite the positive impact that Roper had in some areas, it highlights the difficulties and flaws associated with this kind of bright-line cutoff.24 Roper was followed by:
• Graham v. Florida: The Supreme Court ruled that juveniles cannot be sentenced to JLWOP for non-homicide offenses under the 8th Amendment.25 The majority noted developments in psychology and brain science, which continue to show fundamental differences between juvenile and adult brains.26 The dissent argued that the majority was misstating scientific data.27
• Miller v. Alabama: The Supreme Court banned mandatory life without parole for those under 18 at the time of their crimes.28 The Court cited (1) “lack of maturity,” (2) vulnerability due “to negative influences” and a “limited control over their own environment,” and (3) the “less fixed” nature of a “child’s character” as the main factors that separate juveniles from adult offenders.29 These findings resulted in what is known as the Miller factors, a group of five characteristics that distinguish juvenile offenders. The majority decision continued to emphasize the role of science in this line of decisions related to JLWOP.30
• Montgomery v. Louisiana: The Supreme Court ruled that the Miller prohibition on mandatory JLWOP applied retroactively.31 The role of Justice Kennedy throughout Roper and its progeny cannot be understated.32 • Jones v. Mississippi: Finally, despite the positive trajectory of the last three cases, in 2021 the Supreme Court ruled that sentencing authorities do not need to find a juvenile is permanently incorrigible before imposing a sentence of JLWOP.33 The only reference to scientific and sociological studies comes from the dissent.34
Prior to Jones, Miller was the seminal case for sentencing, establishing that mandatory LWOP for individuals under age 18 violated the 8th Amendment.35 SCOTUS identified attributes that set juveniles apart from adults: immaturity, impetuosity, failure to appreciate risks and consequences, family and home environment beyond the juvenile’s control, and the context of the offense including family and peer pressure (the Miller factors).36 In a way that “guts” Miller and its progeny,37 the Jones majority ruled that a sentencing authority does not need to make a finding of permanent incorrigibility before imposing JLWOP.38 This drastically broadens juvenile sentencing discretion and leaves it up to individual states to develop sentencing systems that rely on such discretion.39 Lower courts citing to Jones generally treat JLWOP in one of two ways: either that (1) the court was not required to specifically find the juvenile was permanently incorrigible before sentencing them to JLWOP, or that (2) the juvenile’s resentencing hearing pursuant to Miller sufficiently took youth and other mitigating factors into consideration.40
In the first, lower courts cite to Jones when holding that a sentencing authority need not make a separate finding that the defendant is permanently incorrigible before sentencing a juvenile to JLWOP. In the second instance, courts discuss the many ways the sentencing authority used their discretion in resentencing, and which factors they considered to determine a constitutionally appropriate sentence for the juvenile. There are also a growing handful of cases that discuss the emerging scientific understanding of the adolescent brain and new research that has led to calls for change surrounding juvenile sentencing (and beyond age 18 in some jurisdictions).41 This group will continue to grow in the coming decades as law catches up to science. The examples below highlight the post-Jones landscape as states have tried to implement the mandates from SCOTUS in the JLWOP space.42
B. Louisiana: The Most Carceral State in the Nation
Following Miller, individual states grappled with whether to increase constitutional protections beyond the necessity of an individualized sentencing hearing. Louisiana is one of many states that continue to impose JLWOP, resulting in disproportionate incarceration of youth of color.43 The Legislature implemented Miller by enacting two statutes, which ultimately applied retroactively.44 Because of this approach to JLWOP post-Miller, Jones had virtually no impact on the landscape of juvenile incarceration within Louisiana—juveniles are still eligible for this sentence if the particular state procedure is followed. While Louisiana does use benchcards,45 none of the identified resources addressed the Miller factors or the role of youth in sentencing.
While the United States is an outlier when it comes to incarceration internationally, Louisiana stands out within our borders for similar reasons.46 In 2022, Louisiana had the highest rate of incarceration in the entire United States.47 Louisiana has a large population of people currently serving life sentences they were handed as juveniles, and in the past years has sentenced more juveniles to life without parole than any other state.48 And just like many other facets of the cradle to prison pipeline, and so called birth penalties,49 research shows that the juveniles most impacted are largely and increasingly people of color.50 For example, Black youth are twice as likely to receive a sentence of JLWOP than their white peers.51 Adults and juveniles alike have attempted to argue unsuccessfully in Louisiana courts that this extremely disparate incarceration is “one of the primary reasons behind the escalating growth of Louisiana’s prison industrial complex.”52
There are glimmers of hope—for example, the introduction of a bill to end JLWOP sentences.53 Yet, that bill was introduced in 2021 and as of the time of publication of this Article had stalled in committee. Without legislative change, and in the absence of a clear mandate from SCOTUS on JLWOP, sentencing disparities are going to continue to widen in places like Louisiana where sentencers have the ultimate discretion and there is no requirement to prove meaningful consideration of youth. Jones has not been cited in Louisiana state court or the federal Fifth Circuit, likely because that decision just affirmed the way that the judiciaries had been operating pre-2021.54 There is also no pattern of using science in sentencing decisions, which is unsurprising given the post-Miller/Jones approach that Louisiana employs.
C. Pennsylvania: An Example of How Jones Destroyed Judicial Protections for Juveniles
Philadelphia has been described as “ground zero” for JLWOP,55 in no small part due to the complete abrogation of the Miller protections in Pennsylvania post-Jones. 56 While Pennsylvania incarcerates fewer individuals than Louisiana, it still “locks up a higher percentage of its people than almost any democracy on earth.”57 And, it does so at a rate that disproportionately impacts Black, Hispanic, and Native American populations.58 Nationally, two-thirds of offenders serving JLWOP were in either Pennsylvania, Louisiana, or Michigan.59 In 2017, the Pennsylvania Supreme Court in Batts adopted a presumption against JLWOP and required that the Commonwealth carry the burden of proving beyond a reasonable doubt that the juvenile is permanently incorrigible.60
Following Jones, the Pennsylvania Supreme Court in Felder reconsidered the requirements imposed by Batts, and held that both the presumption against life without parole sentencing for juveniles and the burden imposed on the Commonwealth were not constitutionally required.61 Pennsylvania courts were only required to consider the relevant sentencing statutes, which will then guarantee that youth and attendant characteristics are considered as required by Miller. 62 Sentencing courts in Pennsylvania have characterized Felder as “dissolv[ing] the procedural requirements set forth in Batts,” with the vast majority of post-Felder appeals affirming a juvenile offender’s life without parole or de facto life without parole sentence.63 Additionally, under Felder, the sentencing court’s consideration of youth goes to its sentencing discretion—not to the legality of the sentence.64 While Pennsylvania does have benchcards, none of the identified resources addressed the Miller factors or the role of youth in sentencing.65 Pennsylvania has cited to Jones more than 30 times in state court decisions, the second most of any other state.66
D. Massachusetts: Expansion of the JLWOP Prohibition up to Age 2167
Following Miller, Massachusetts substantially increased protections for incarcerated juveniles by categorically banning JLWOP for anyone under the age of 18 at the time they committed murder.68 The Massachusetts legislature also expanded jurisdiction of its juvenile courts from age 17 to 18.69 These protections have resulted in fewer youth imprisoned in the IPC, however it is still unclear how many juveniles within the Commonwealth are still serving JLWOP. While Massachusetts is thought of as a liberal-leaning state in comparison to Louisiana, researchers found nearly the same percentage of JLWOP even though the overall incarceration rate is much lower and the total prison population is about one quarter the size.70
In February 2023, the Massachusetts Supreme Judicial Court (SJC) heard arguments in two cases that ask whether it is constitutional for people between the ages of 18 and 20 to receive mandatory sentences of life in prison without the possibility of parole.71 This case put the question of science squarely in the hands of the judiciary, with the potential to make a significant change in the way that Massachusetts hands down a life without parole sentence.72 And while Massachusetts, like Louisiana and Pennsylvania, does use benchcards, there is no tool for players in the legal system to understand the Miller factors in light of the CLBB White Paper research, discussed below. Such a tool would be incredibly helpful not just for those offenders under 18, but also for those up to age 20 and even 25.
Shortly before final review for publication of this article in January 2024, the Massachusetts judiciary extended definition of juvenile beyond age 18 to extend these protections for older offenders up to age 21.73 In the majority opinion, Chief Justice Budd emphasized “we must recognize the ‘unique characteristics’ of emerging adults that render them ‘constitutionally different’ from adults for purposes of sentencing.”74 The decision relied heavily on “scientific consensus” and the findings as to brain development from the Superior Court decision.75 This watershed decision continues to widen the disparities between jurisdictions when it comes to equal treatment of individuals who have committed the same crime at the same age.76
II. CREATION OF A BENCHCARD TO EDUCATE AND AID: USE OF SCIENCE AS A “WEAPON” IN DECISIONS INVOLVING INDIVIDUALS UP TO AGE 25
Judges and jurors are often tasked with making decisions in cases that require expert knowledge to guide or instruct them in their role. Students at Northeastern University School of Law, in collaboration with CLBB, created a “Benchcard” that explains the Miller factors through the lens of advances in understanding of brain development. The goal of the project was to inject more thoughtful consideration and treatment of systems-involved offenders.77 A Benchcard is a guide used in legal proceedings that provides a concise summary of legal information about a particular topic. While there is no uniformity when it comes to continuing legal education requirements for judges and attorneys,78 with widespread adoption and use, a Benchcard has the potential to make a positive impact on the prison industrial complex. It has the potential to facilitate more uniform, thoughtful, and rehabilitative sentences (as opposed to those propping up complexes for financial gain).
Throughout the years, research has demonstrated that far more must be done “to ensure scientific literacy in the legal profession, beginning in law school, but also continuing throughout the professional careers of practicing lawyers.”79 With judges acting as the gatekeepers of scientific evidence in the courtroom,80 the importance of the work done at CLBB is essential to that responsibility when it comes to consideration of the signature qualities of youth. CLBB’s goal is to put the most accurate and actionable neuroscience in the hands of judges, lawyers, policymakers, and journalists—people who shape the standards and practices of our legal system and affect its impact on people’s lives.81 They work to make the legal system more effective and more just for all those affected by the law. In 2022, CLBB published a White Paper intended to facilitate science-informed decision-making and application of updated research findings in law and public policy bearing upon adolescence and criminal proceedings.82
The White Paper demands more careful analysis than can be given here; however, it outlines different age categories: juvenile (up to age 18), late adolescent (up to age 21), and young adult (up to age 25).83 CLBB’s research shows that maturation of brain structure, brain function, and brain connectivity continues throughout the early twenties, which impacts decision-making, self-control, and emotional processing.84 It uses the Miller factors as a framework to explain their findings.85 The purpose of the White Paper is to serve as a vehicle for courts and legislators to make decisions about juvenile incarceration that are more in line with the science. The science—in short, the bright line cut of 18 to define who is a juvenile—is not grounded in the realities of how an individual’s brain develops.86
A. The Use of “Benchcards” and Disparities in Judicial Education
One of the ethical responsibilities of attorneys is to keep up to date through continuing legal education courses, or CLEs.87 This is also in line with the ABA rule related to technological competence that has been adopted by most states.88 Similar to the regulation of attorneys, jurisdictions have CLE requirements that apply to judges as well.89 For example, the Wyoming Judicial Branch requires all judges to complete 15 hours of accredited continuing judicial education every year.90 Ohio requires judges to complete a minimum of 40 hours of continuing judicial education every biennium and has since 1981.91 The rationale behind states that require this continued training is that “by continuing judicial education judges and justices can better fulfill their obligation to the public . . . and establish a minimum for such continuing judicial education.”92
During the creation of the Benchcard, research showed disparities in CLE requirements for judges. 93 There is a crucial need for continued education when it comes to many scientific intersections with the law simply based on the rapid pace of technological advancements in neuroscience alone. Broadly, judicial education can include judicial training, instruction in judicial process, procedure, skills, or attitudes, as well as teaching substantive law, such as the latest trends in international law. The lack of national minimum standards and uniformity when it comes to judicial education is likely fostering outcome discrepancies in many contexts. Judges in the United States typically “[take] the oath, [step] onto the bench, and [proceed] to fill the judicial role as if born in the robe. This tradition, which is rooted in medieval English practice, assumes that anyone who has become a senior litigator is sufficiently well-prepared to act as a judge.”94 This is not the case, nor should it be the expectation.95
The National Judicial College is an example of one organization that creates uniformity by offering high quality judicial education programs for those on the bench.96 This organization was created at the recommendation of a U.S. Supreme Court justice and is the only educational institution in the United States that teaches courtroom skills to judges of all types from all over the country.97 Benchcards are one tool utilized by the NJC as an aid to those in the judiciary, intended to be used by judges, attorneys, or others involved in the legal process to enhance consistency and fairness at various states of legal proceedings.98
For example, The Gault Center, whose mission is to promote justice for children by ensuring excellence in youth defense,99 features a Benchcard on “Addressing Bias in Delinquency and Child Welfare Systems.”100 It is a 12-page document that walks the reader through foundational concepts like the disproportionate impact of bias on youth of color.101 The Benchcard then provides a list of questions for a judge to ask at every decision point or hearing to minimize the impacts of bias.102 These aids can guide a decision maker and provide additional knowledge that might not be within the toolset of that particular individual. Ideally, these tools would be accompanied by trainings, tracking, and continual self-reflection by those using the tools.103
B. Creating the Benchcard and Limitations
Throughout the course of the 2021 to 2022 and 2022 to 2023 academic years at Northeastern University School of Law, I supervised two groups of students who examined Jones v. Mississippi and the CLBB White Paper within the context of JLWOP.104 Because the White Paper is lengthy and dense, students worked to create a “Benchcard” to help easier use and understanding of the research within the White Paper. The goal of the Benchcard was to serve as a tool for those involved in making decisions for individuals within our systems. Individuals with the power of decision of systems-involved youth and emerging adults must be proficient in science and technology, now more so than ever.
Many within our systems do not have any in-depth training or education on certain crucial areas, including neuroscience and brain development.105 One challenge for efforts to improve judicial use of forensic evidence is the lack of scientific background and education among lawyers generally, and judges in particular.106 Many judges do not focus on science, technology, or math as undergraduates,107 and then go on to sit on the bench for many years as the progress in those fields rapidly develops with each passing year. A Benchcard provides a judge with knowledge on the most up-to-date science, facilitating and more uniformity in resolution of legal issues108
Just as the White Paper is organized by the Miller factors, the LO16 Benchcard is also organized around those same factors: (1) the juvenile's age and immaturity; (2) and (3) family home environment and peer influence; (4) understanding of legal proceedings; and (5) a juvenile’s greater potential for rehabilitation.109 Using a “decision tree” model, the Benchcard walks the audience through the factors that differentiate juveniles from adults and how those might be considered within a systems decision. Based on input from CLBB and experts, the students intentionally kept the Benchcard to just under 5 pages, an incredibly challenging task considering the complexity and length of the White Paper and SCOTUS precedent on JLWOP.
Throughout the year, students considered other aspects of the Benchcard, including visual appeal, durability, and jurisdiction-adaptability. First, as to visual appeal, font and text size were experimented with before landing on a combination that was appealing. Color was added to the visual aids included in the chart to avoid a boring, black and white legal document. Finally, after a suggestion from one expert at the Judicial College, blank spaces were inserted throughout the Benchcard, with an additional “Notes” section at the end. This was a critical piece because it allows a judge from any jurisdiction to add notes or cases or expand on the information that the Benchcard provides as a starting point. As observed from the analysis of Louisiana, Pennsylvania, or Massachusetts, geography matters when it comes to the controlling rules on JLWOP.110
A tool like this Benchcard has limitations, just as neuroscience in law has limitations.111 Over the course of two years, we encountered numerous challenges when it comes to the use of neuroscience within the judiciary and the creation of a tool to facilitate that use. First, it is particularly hard to create a tool or checklist that has universal applicability where jurisdictions vary in how they have applied Miller and Jones at the state level. Something that would be specifically tailored to Massachusetts, Washington, or Illinois (states where JLWOP has been banned for those at least under age 18 if not higher) would look different than a Benchcard for use in Louisiana (where a 17-year-old can still receive that sentence). Ultimately, the team modeled the LO16 Benchcard using the White Paper structure because of the applicability of that science to any offender under age 25.
Second, our group struggled to decide at what point in the individual’s involvement in the criminal justice system and the IPC this type of tool would be most valuable. Jones and the cases we studied focused on the far end of the process: sentencing. But we found that the neuroscience of the White Paper is applicable at many points in our system. The Miller factors affecting a 21-year-old young adult should be considered when determining what that individual should be charged with or the court in which they are placed.112 Is diversion more appropriate considering those factors? Because of the time constraints of the class, and the need to create a universal document, the LO16 Benchcard focuses on sentencing. However, players in the legal system should be considering this science at multiple stages and not just the very end.
The final Benchcard was an accomplishment for the students and will hopefully serve as the starting point for discussion on how to increase judicial familiarity with the critical work done by CLBB.113 Yet, at the end of the project, there are still many moving pieces and loose ends in the wake of Jones and disparate geographical treatment of juveniles in the United States. Punishment for a crime should be graduated and proportioned to both the offender and the offense. The use of a benchcard in decisions for individuals up to age 25 can enhance the ability of the legal system as a whole to ensure that punishment is proportional in light of the most current neuroscience on brain development. While JLWOP will continue to be imposed on a state-by-state basis, illustrating the concept of justice by geography, intentional and thoughtful decisions—aided by a Benchcard—can hopefully foster proportionality.114