The complex, evolving task of youth sentencing
Friday, February 2, 2018
By the Honorable Leslie Halligan
As a District Court judge, I regularly am presented with sentencing decisions that require the review of an individual’s encapsulated life story. Often these are stories of family disruption, abuse, neglect and various traumas beginning at a young age. Many involve a history of addiction, with use of alcohol and drugs as pre-teens, gradually evolving to serious addictions to drugs like methamphetamine. Others recount a history of emotional disturbance or mental illness, poorly treated or left untreated. The stories often mirror personal histories of inmates at the Montana State Prison that I reviewed while working years ago as a clinical student in law school to prepare sentence review arguments. Determining how to appropriately interrupt an individual’s path to prison continues to challenge me, and I believe it is a challenge in which our profession has a significant stake and even a responsibility to address.
As a Missoula County prosecutor, I spent many years assigned to dependency cases, cases in which children were alleged to be at risk of abuse and neglect by parents or a custodian; and a fair number of years assigned to prosecuting delinquency cases. In prosecuting juveniles, I became much more familiar with the complex system that has developed to address at-risk youth, some of whom were involved in both arenas, often referred to as cross-over youth. I gained experience in detention alternatives and worked on a regular basis with Montana’s Youth Court Act, which seeks to prevent and reduce youth delinquency through a system that does not seek retribution, but is designed to provide, statewide, “immediate, consistent, enforceable, and avoidable consequences of youths’ actions,” and “a program of supervision, care, rehabilitation, detention, competency development and community protection for youth before they become adult offenders.” Mont. Code Ann. § 41-5-102(2). Using Montana statistics from 2013-2017, Youth Court receives an average of 5,968 referrals each year. Of these referrals, approximately 48 percent are diverted by youth court probation officers and 15 percent are dismissed by county attorneys. Of the remaining referrals, another 19 percent result in a youth being placed on informal probation, 12 percent are processed in formal court with various dispositions, and 3 percent result in transfers to the Montana Department of Corrections. Often, youth proceed through the informal system without legal representation, but youth referred to formal court are appointed legal counsel. While the legal representation of youth often falls to the least experienced attorneys, the complexity of both the Youth Court Act and the youth’s circumstances demand careful assessment and skill.
As reflected in the statistics, only a small percentage of juveniles engage in criminal behavior so serious that they are propelled into the adult criminal system. An even smaller percentage commit homicides or inflict serious harm. For these youth, sentencing policy has evolved through several recent U.S. Supreme Court decisions. In addressing a writ of habeas corpus, the Montana Supreme Court recently examined Montana’s juvenile sentencing jurisprudence in Steilman v. Michael, 2017 MT 310, particularly whether life sentences without the possibility of parole constitute cruel and unusual punishment for juveniles. To better understand the Court’s analysis and Steilman’s implications, turn to the article authored by Missoula attorney Lars Phillips on page 14, in which he addresses both the breadth and application of the decision. Consistent with the Youth Court Act, the Montana court embraces the constitutional rights of youth and now requires sentencing courts to determine, as announced by Justice Sonia Sotomayor in Tatum v. Arizona, 137 S. Ct. 11 (2016), “whether the juvenile offender before it is a child whose crimes reflect transient immaturity or is one of those rare children whose crimes reflect irreparable corruption for whom a life without parole sentence may be appropriate.” The Court ultimately does not grant relief to the youth, and its decision may reflect the struggle that exists when assessing the practical reality of applying these constitutional principles to the facts presented.
As we move forward to fully understand the implications of the Steilman decision and our treatment of juveniles in our court system, we should be mindful of Article II, Section 15 of the Montana Constitution that provides: “Rights of persons not adults. The rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.” Early intervention by the social service and judicial systems to “enhance the protection of such persons” could go a long way toward altering the path of a youth from a life of addiction, abuse or neglect, or involvement with the criminal justice system, and toward a path of being a productive citizen.