White paper argues for changes to parole review for those committing crimes as youths

By Bob Needham
Michigan Law

The parole process for people who committed crimes under age 18 should be reformed to account for an evolving understanding of human development, according to a new white paper from the Civil Rights Litigation Clearinghouse.

In the 1980s and ’90s, the notion of dangerous young “superpredators” took hold in the public consciousness, leading to the imposition of harsher sentences—often in the adult justice system—for many young people. At the same time, sentencing practices were trending toward longer terms and mandatory penalties.

A better understanding about the cognitive development of young people and falling crime rates, however, discredited the superpredator theory.

“What we now know about young people who commit crimes is that they’re much more likely to reform and change, that the crimes are actually often related to features of their youth rather than some inherent intractable criminality,” said Clearinghouse Managing Attorney Tessa Bialek, who authored the white paper. “There actually are meaningful differences between most people who commit crimes under the age of 18 and people who commit crimes as adults, and that should be reflected in sentencing.”

Starting in 2005, the U.S. Supreme Court responded to the evolving understanding of youth crime in several cases that prohibited some of the harshest sentences, including the death penalty and life without the possibility of parole for nonhomicide crimes. And many states have reformed the way that they sentence young people for crimes, Bialek said. Even so, thousands of people across the country continue to serve lifelong sentences for crimes committed when they were under age 18.

Those with parole-eligible sentences often face parole systems designed mainly for adults. Such systems are poorly suited to considering youth at the time of the crime or post-crime maturity and rehabilitation, and they fail to provide a realistic path to release.

“These young people should have a chance for a productive life outside of prison,” Bialek said.

The Civil Rights Litigation Clearinghouse, housed at Michigan Law, collects and presents documents and information from large-scale civil rights cases across the United States.

The new white paper draws on the collection to recommend that the parole process for people sentenced as youth should include the following reforms.

• A meaningful opportunity for release based on demonstrated maturity and rehabilitation

• Evaluation of maturity, rehabilitation, and the mitigating factors of youth

• Access to rehabilitative programming and services

• An in-person parole hearing with counsel

• Access to the court record; ability to contribute to and correct the record

• Board decisions supported by written explanations

• Judicial review of parole denial

• Data collection, annual monitoring, and review of processes by the parole board

• Qualifications and training for parole board members and staff

Bialek sees the recommendations as falling into two buckets.

First is the basis for deciding whether to grant release.

“The release decision should be grounded in how someone has grown and changed since the crime,” Bialek said. “The release decision should look at how someone has changed and grown, how they now reflect on the crime, and the ways that they might be able to make amends for that crime outside of prison, to make positive contributions to their community—both in spite of and in light of the crime that they’ve committed.”

Second is procedural support, which includes policies intended to support in-depth and accurate parole review, like an opportunity to correct the record or permitting live back-and-forth with the parole board.

“For example, counsel can be especially important for this cohort of people,” Bialek said. “Parole boards aren’t necessarily used to seeing parole candidates who committed these kinds of crimes and have been incarcerated for decades. Counsel can help offer context for the crime and grounding in the relevant constitutional and other requirements. Counsel can also be useful in marshaling the evidence that might be required or helping someone with a reentry plan.”

The new white paper is the third in a series called Learning from Civil Rights Lawsuits. The series looks to the tens of thousands of litigation documents in the clearinghouse collection to explore promising practices and develop model policies for criminal justice reform.

The first paper in the series, released in 2022, was “Effective Communication with Deaf, Hard of Hearing, Blind, and Low Vision Incarcerated People.”

The second, released last year, was “Policies for Expanding Hepatitis C Testing and Treatment in United States Prisons and Jails.”

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