Commentary: Fair sentencing of juveniles will require time, resources

Over the past decade, there has been a revolution in juvenile justice and the sentencing of youths. The Supreme Court ended the death penalty for juveniles in 2005; in 2012, it did the same for mandatory life without parole. Four years later, in the case Montgomery v. Louisiana, the court applied its earlier ruling retroactively and granted new sentencing for close to 2,000 juveniles who had received mandatory life sentences without parole.

In so doing, the court has turned a very bright light on the Philadelphia justice system, which has more juveniles serving life-without-parole sentences (300) than any other county in the country. Now we must pay the price for our history of overly aggressive sentencing of children, and that price is not only figurative but literal.

Montgomery made two things very clear: Only juveniles who are "irreparably corrupted" deserve to spend the rest of their lives in prison without the possibility of release, and only a very small percentage of juveniles are beyond rehabilitation.

The question now is, how do we identify those very few juveniles out of the 300? Or, to put it more positively, we must now determine how to provide an opportunity for the many juveniles who have served decades in prison to show that they deserve the second chance our courts have ordered. Such opportunities can only be achieved in two ways: through careful and thorough negotiations with the District Attorney's Office, or by extensive and expensive court proceedings. While the first option is often preferable, the city must be prepared for the second. Indeed, even negotiations will require considerable resources.

Our courts have stated that a sentence of life without parole for a juvenile is the equivalent of a death sentence for an adult; thus the same effort that must be put into constitutionally sound capital sentencing will be required for juvenile sentencing.

Philadelphia has seen firsthand the cost of handling our most serious criminal cases in an unprofessional and casual manner. No other city in the country has seen as many death sentences reversed as Philadelphia has, largely due to the city's insistence that it handle these cases "on the cheap." Philadelphia's history of failing to provide resources in capital cases has been unfair to victims as well as defendants, and our penny-wise, pound-foolish approach has ended up costing us far more than we would have spent had the cases been dealt with properly in the first place. We should not repeat the same mistakes with these juvenile resentencings.

The Campaign for the Fair Sentencing of Youth, a nationally respected coalition of legal advocates for children, has written guidelines endorsed by virtually every significant organization engaged in the defense of children accused of violent crimes. These guidelines make one thing crystal clear: While every sentencing will be different, each will require a full investigation of the crime and the background of the juvenile. As many of these cases are decades old, the work will be considerable.

At a bare minimum, lawyers handling these cases need to be familiar with the trial that occurred years previously, the prison records of the children who have grown into adults, and the backgrounds of the clients getting a second chance at future freedom. More than anything else, it is this background investigation that will be both laborious and fruitful.

Does it matter that a child grew up in a terribly abusive home, without guidance or role models, but has since matured into a citizen who has made the most of his prison time? Or that a kid acted as a lookout for a robbery while an older codefendant committed an unexpected murder, but has grown up to become an inmate trusted by prison guards to be a leader in the prison community?

Given the incredibly important decision prosecutors or judges must make in determining a fair sentence, such information is crucial. But the gathering of that information will require resources.

We have learned much from the mistakes and myths that emerged in the 1990s. Our fear of juvenile "super-predators" was misplaced; we have now replaced that fear with science-based knowledge of juvenile brain development and social-science-based insight into the behavior of children.

Rather than demonizing youths for their crimes, we have come to recognize that a large percentage of children can be rehabilitated, and that significant but not life-ending incarceration will serve the needs of punishment, the safety of the community, and the eventual hope of freedom for those who have paid their debt to society.

The fair sentencing of these juveniles is not only morally required but also attainable with real effort. We should not take the easy shortcuts that have gotten us so lost in the past.

Marc Bookman is director of the Atlantic Center for Capital Representation in Philadelphia. mbookman@atlanticcenter.org