by Mark Wilson
On July 22, 2019, Oregon joined 22 other states and the District of Columbia in eliminating life without parole sentences for prisoners who committed their offenses as juveniles. The state enacted quite possibly the most progressive and broad juvenile justice reforms in the nation, ending the state’s “super-predator” treatment of tomorrow’s youth. Yet legislators refused to extend the law’s protections retroactively, to prisoners who have served decades behind bars and will likely die there absent the protections of the new law.
During the late 1980s and early 1990s, the United States experienced the tough-on-crime era, replacing rehabilitation with retribution as the nation’s predominant sentencing rationale.
The final blow for rehabilitation as a criminal justice priority was delivered when Congress passed and then-President Bill Clinton signed the Violent Crime Control and Law Enforcement Act of 1994, commonly known as the “Crime Bill.” That bill did more to create mass incarceration than any legislation preceding or following it. While it took 214 years, from 1776 to 1990, for America to incarcerate its first million prisoners, that number doubled in just a decade, from 1990 to 2000.
Most notably, the Crime Bill established a Violent Offender Incarceration and Truth-in-Sentencing Incentive Grant Program. Under that program, any state that agreed to build new prisons or expand existing ones, and require prisoners to serve at least 85 percent of their sentences, was eligible for a portion of $3 billion in federal funding.
Every state received federal truth-in-sentencing funding between 1996 and 2001, with some abolishing parole and adopting truth-in-sentencing laws requiring prisoners to serve 85 to 100 percent of their prison terms.
Just two months after enactment of the 1994 Crime Bill, Oregon voters overwhelmingly passed Ballot Measure 11, which required adults and juveniles as young as 15 years old to serve 100 percent of new, harsh mandatory minimum sentences. “Rehabilitation ... is the philosophy of Oregon’s lawmakers in dealing with hardened criminals,” argued proponents of the measure, adding, incorrectly, that “[a]ll studies have shown it flat-out doesn’t work.”
Proponents lamented a lack of truth-in-sentencing in existing laws. “This measure ... requires that a person who is 15, 16 or 17 years of age ... must be tried and sentenced as an adult,” they declared, highlighting the elimination of discretionary judicial waiver hearings.
“The clear intent of Measure 11 was to remove the considerations of the characteristics of youth for juveniles accused of the most serious crimes and to limit the range of sentencing options to the same penalties that could be imposed on an adult offender,” the Oregon Court of Appeals stated recently. “Thus, in the wake of Measure 11, the historical role of the waiver hearing as a procedural point, where the qualities of youth would be considered, was extinguished for some juveniles charged with the most serious crimes.” See: State v. Link, 297 Or.App. 126, 441 P.3d 664 (Ore. App. 2019), review granted.
Since before statehood, Oregon’s Constitution had mandated that laws for the punishment of crime shall be founded on principles of reformation and not vindictive justice. Yet 58 percent of Americans polled in 1995 felt the purpose of prison was punishment, while only 26 percent believed it was rehabilitation.
Oregon voters quickly acted on that sentiment on November 5, 1996, when they eliminated the 136-year constitutional prohibition on vindictive punishment and de-emphasized the importance of rehabilitation as a sentencing rationale and goal.
“Certain types of criminals, whether adults or juveniles, are beyond reformation,” declared the state’s then-Attorney General and future governor Theodore Kulongoski, in advocating for the change at the height of the “superpredator” hysteria that was fabricated and fanned by Princeton University politics and public affairs professor John J. Dilulio, Jr.
“No one in academia is a bigger fan of incarceration than I am,” admitted Dilulio, in a hyperbolic essay targeting youth – or more specifically inner-city black kids – in the conservative Weekly Standard on November 27, 1995. “On the horizon ... are tens of thousands of severely morally impoverished juvenile super-predators.”
Criminologist James Alan Fox poured gasoline on Dilulio’s fiery rhetoric, warning that “unless we act today we’re going to have a bloodbath when these kids grow up.”
Politicians and pundits across the nation quickly piled on.
“There are no juvenile crimes,” declared then-Speaker of the House Newt Gingrich. “If you commit a murder, rape or assault, you are an adult.”
Even then-first lady Hillary Rodham Clinton couldn’t resist joining in the superpredator hysteria. During a 1996 speech at New Hampshire’s Keene State College, she promoted the 1994 Crime Bill and called for harsher punishment for criminals, including juveniles she argued were incapable of reform.
“They are not just gangs of kids anymore,” declared Clinton. “They are often the kinds of kids we call ‘super predators.’ No conscience, no empathy. We can talk about why they ended up that way but first we need to bring them to heel.”
Dilulio’s false narrative was quickly debunked, as violent juvenile crime rates began to fall in the mid-1990s, and by 2000 the juvenile homicide rate stabilized below the 1985 level. Dilulio’s peers criticized his findings as being the product of partisan politics rather than actual scientific research.
“His prediction wasn’t just wrong, it was exactly the opposite,” declared criminologist Franklin E. Zimring. “His theories on super-predators were utter madness.”
But the damage was already done.
“At the state level, the super-predator myth played an important role in 47 states amending their laws on juvenile crime to get tougher on youthful criminals,” observed criminologist Barry Krisberg. Others say all 50 states did so.
Professor Dilulio himself ultimately admitted that his theory was incorrect. “Thank God we were wrong,” he said. Still, he defended the findings of his research, insisting “the data we used was correct.”
The truth finally came out on January 17, 2012, when Dilulio and Fox joined Zimring and 43 other criminologists and developmental psychologists in filing an amicus brief with the U.S. Supreme Court in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012), which invalidated mandatory juvenile life without parole (JLWOP) sentences.
Notably, they advised the Court that “the fear of an impending generation of super-predators proved to be unfounded.” Moreover, “empirical research ... demonstrates that the juvenile super-predator was a myth and the predictions of future youth violence were baseless,” they wrote. “Amici have been unable to identify any scholarly research published in the last decade that provides support for the notion of the juvenile super-predator, and the scholar credited with originating that term has acknowledged that his characterizations and predictions were wrong; he is one of the amici who submit this brief.”
Nevertheless, Professor Dilulio appears unrepentant for the devastating, life-altering harm he single-handedly inflicted on America’s youth. “I’m sorry for any unintended consequences,” he said. “But I am not responsible for teenagers’ going to prison.”
As author Nell Bernstein recognized in Burning Down the House, her important 2014 critique of the U.S. juvenile justice system, “There are some insults you just can’t take back.”
We are happy to announce that prisoners convicted of JLWOP in Oregon can finally stop waiting for Dilulio to “take it back” and undo the harm he inflicted on them, long before most of them were even born.
After imposing super-predator punishments on Oregon’s youth for more than 25 years, state lawmakers have finally mustered the political will to stop subjecting tomorrow’s kids to such harsh and unconstitutional punishments.
This move was made possible, in part, by the results of a 2019 public opinion poll of state voters. Rehabilitation and prevention of youth involved in the criminal justice system were favored by 80 percent of Oregonians. The number was 96 percent among Democrats. Similarly, 81 percent favored judicial waiver hearings before youth are prosecuted as adults, 80 percent supported second-look hearings halfway through a juvenile’s sentence and 61 percent favored eliminating JLWOP sentences for youth and granting parole eligibility after 15 years.
The Oregon legislature ultimately passed Senate Bill (SB) 1008 by a super-majority vote in both the Senate and House, enacting each of the policies Oregonians said they supported and effectively repealing Measure 11 for youthful offenders.
The bill eliminates automatic waiver of juveniles to adult court, regardless of the offense committed. Instead, it reinstates discretionary judicial waiver hearings that existed before April 1, 1995. All juveniles are again entitled to such a waiver hearing before a judge, who must consider their immaturity and amenability to treatment and rehabilitation before prosecution in adult court is permitted.
Lawmakers also eliminated Measure 11’s prohibition on second-look eligibility for youth who are convicted of serious felonies. All juveniles are now eligible for a second-look hearing before the sentencing judge after serving half of their sentence. If the court finds they have been rehabilitated and do not present a threat to the community, it must order their conditional release.
SB 1008 also prohibits the imposition of life without parole sentences for anyone who was younger than 18 at the time of their offense. Further, all youth are entitled to a release hearing before the Board of Parole and Post-Prison Supervision (Board) after serving 15 years in prison, regardless of the crimes they committed and whether they were sentenced to minimum or consecutive terms of incarceration.
During the release hearing, the Board is required to “consider and give substantial weight to the fact that a person under 18 years of age is incapable of the same reasoning and impulse control as an adult and the diminished culpability of minors as compared to that of adults.”
The Board must also consider the age and immaturity of the person at the time of the offense; whether and to what extent an adult was involved in the offense; the person’s family and community circumstances at the time of the crime, including any history of abuse, trauma and involvement in the juvenile justice system; the person’s subsequent growth and increased maturity during incarceration; the person’s participation in rehabilitative and educational programs while in custody, if available, and the use of self-study for self-improvement; a mental health diagnosis; and any other mitigating factors. “Under no circumstances may the board consider the age of the person as an aggravating factor.”
SB 1008 received broad support from both the left and right sides of the political aisle. Conservatives like the Koch brothers joined progressives like Bryan Stevenson, executive director of the Equal Justice Initiative, who successfully argued Miller and other juvenile life without parole cases before the Supreme Court, in offering national support for the legislation. Locally, Oregon’s governor, attorney general, several prosecutors, a guard union, dozens of retired state trial and appellate court judges, and many others came out in favor of the bill.
The legislation became a priority for longtime state Senator Jackie Winters, whose late husband Ted Winters had served time in adult prison as a juvenile. Her support undoubtedly ensured passage of the historic legislation. When the well-respected Winters, who was suffering from terminal cancer, saw her health take a dramatic turn for the worse, her colleagues doubled their efforts to ensure she could see the bill become law.
During a late night vote, SB 1008 made it over its final hurdle by a 40-to-18 margin in the House on May 23, 2019, with four Republicans joining Democrats in voting yes.
Senator Winters issued a statement the next morning, saying youth in the criminal justice system deserve a second chance. “We need a public safety system that holds youth accountable for crimes but just as importantly ensures they can grow and change for the better,” she said. Winters died just days after the bill passed.
Still, all is not rainbows and sunshine in Oregon. Former prosecutor Norm Frink joined crime victims in opposing the legislation. When their efforts failed, Frink accused Republicans of entering into a “corrupt bargain” with Democrats to support the bill.
“Crime victims and law enforcement were sold out by the Republican caucus and the leadership of the Republican Party,” he argued.
Proponents of the legislation were unhappy for another reason. Senator Floyd Prozanski, a leading sponsor of the bill, said he wanted it to be retroactive, but it was not politically viable to do so. As such, SB 1008 applies only to youth who commit crimes on or after the January 1, 2020 effective date of the legislation.
“I support allowing for this second look to go across the board,” said Prozanski, a former prosecutor whose sister was murdered when he was a teenager.
The lack of political courage to treat yesterday’s juvenile offenders the same as tomorrow’s is indefensible to many supporters of SB 1008.
“We have admitted to ourselves and to the community as a state, that we need to treat youth differently,” declared Bobbin Singh, executive director of the Oregon Justice Resource Center. “If we’re going to look at a truth prospectively, we have to apply that truth retrospectively as well.”
During a Senate Judiciary Committee hearing on SB 1008 on March 28, 2019, state Attorney General Ellen Rosenblum seemed to agree, offering her support for passage of the legislation.
“I am pleased to ... offer my support for the important work of reforming Oregon’s system of juvenile justice,” she told the Committee. “My purpose in coming to you today is ... to commend you in the highest terms for your courageous leadership in taking up the question. We stand ready at the Department of Justice to assist you as you move forward.”
Yet within days of SB 1008’s passage, Rosenblum made a series of decisions that demonstrated her own lack of “courageous leadership” as she moved to undermine reform efforts and block them from applying to former juveniles who have served decades in prison.
“The Appellate Division of the Oregon Department of Justice has as one of its important responsibilities defending the legality of sentences that were previously imposed and that comply with current law,” claimed Kristina Edmunson, Rosenblum’s communications director.
Noting that there are an estimated 100 people in Oregon prisons who would qualify for parole hearings if SB 1008 were applied retroactively, Singh suggested that Governor Kate Brown could use her clemency powers to ensure that eligible prisoners who have served more than 15 years receive an SB 1008 parole hearing. Brown’s office did not respond to questions about whether she would consider doing so.
“The contradictions are so clear and so frustrating,” said Ryan O’Connor, an attorney who represents several former juveniles serving time in adult prisons. “There’s a real prospect that these guys will die in prison for things they did as kids.”
Sources: Senate Bill 1008 (2019); The New York Times; Equal Justice Initiative; The Appeal; The Oregonian/OregonLive; Burning Down the House, by Nell Bernstein (The New Press, 2014)
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