Protecting Youth in the Criminal Justice System 

In 2000, I was sentenced to 80 years to life in prison for a crime I committed when I was 18 years old.

Though legally an adult, I was, in every meaningful way, still a child. I wasn’t old enough to buy alcohol or rent a car. Like typical juveniles, I had a lack of impulse control and inability to appreciate consequences.

Yet under the federal Constitution, life sentences — including life without parole — are legal for people even younger than I was when I was arrested. In 2012’s Miller v. Alabama, the Supreme Court held that children can be sentenced to die in prison so long as they are “permanently incorrigible.”

In Miller and previous cases, however, the Court recognized that juveniles who commit crimes are different than adults. Their “lack of maturity” and “underdeveloped sense of responsibility” result in “recklessness, impulsivity, and heedless risk-taking,” the Court explained in Miller. They are “more vulnerable” to “outside pressures,” have less ability to “extricate themselves from horrific, crime-producing settings,” and have character traits that are “less fixed” than adults, it recognized. As such, the Court said, they “have diminished culpability and greater prospects for reform.”

The Court also acknowledged that a life sentence is an “especially harsh punishment for a juvenile.” A teen sentenced to life “will almost inevitably serve more years and a greater percentage of his life in prison than an adult offender,” the Court has said. Life in prison for a teen “as compared with an older person,” then, is the same sentence “in name only.” 

Even with these acknowledgments from the nation’s highest court, thousands of people are serving life sentences for crimes committed before they turned 18, according to a Sentencing Project report. And countless more are incarcerated for life based on terrible things they did when they were still teens but had already turned 18, like me. The brain science “strongly supports the contention that emerging adults” — a term for people who recently reached legal adulthood — “have the same core neurological characteristics as juveniles have,” Massachusetts’s supreme court recently said.

Indeed, some state courts have announced greater protections than the U.S. Supreme Court for young people facing long sentences. Several have extended protections to people over the age of 18, recognizing that emerging adults are not as culpable as older adults.

Massachusetts has gone the furthest, categorically barring life without parole sentences for anyone under 21 in last year’s Commonwealth v. Mattis — with no “permanent incorrigibility” exception. In 2016’s State v. Sweet, the Iowa Supreme Court declared it categorically unconstitutional to sentence people under 18 to life without parole; the Washington Supreme Court did the same two years later in State v. Bassett. In In Re Monschke in 2021, the Washington Supreme Court extended Miller protections to people aged 20 — meaning people between 18 and 20 can be sentenced to life without parole only if they are irredeemable. In People v. Parks, the Michigan Supreme Court applied Miller to people aged 18, and last month heard oral arguments about whether to expand those protections to people under 21. The New Jersey high court, meanwhile, extended Miller to sentences that are the practical equivalent of life without parole, holding in State v. Comer in 2022 that a statute requiring a minimum of 30 years in prison with no possibility of parole was unconstitutional when applied to children. And the North Carolina high court held in State v. Kelliher that same year that people sent to prison as children must have a chance at release from prison after 40 years. 

Shielding kids from the most extreme punishments is a step toward treating the most vulnerable people in our society humanely. All the reasons why judges shouldn’t be able to sentence kids to die in prison counsel in favor of keeping them out of the adult justice system all together. But too many young people are tried as adults.

According to the Equal Justice Initiative, there is no minimum age for prosecuting children as adults in almost a dozen states: Alaska, Florida, Hawaii, Idaho, Maine, Michigan, Pennsylvania, Rhode Island, South Carolina, Tennessee, and West Virginia. As a result, children as young as eight have been tried as adults. Other states, like Georgia, prosecute children as young as 13 as adults if they are accused of certain crimes.

Many states are getting more punitive towards kids, not less. A new law in Tennessee allows judges to try children as young as 15 as adults for stealing a firearm or attempting to do so. (Before this law was passed, children in the state could be tried as adults “for violent or otherwise extreme offenses.”) Under a new law in Kentucky, 15-year-olds accused of certain firearm-related felonies will be charged as adults. For the first time in years, prosecutors in San Francisco, California, recently tried to transfer 16-year-olds to adult court. And some lawmakers in New York have pushed to rollback the state’s 2017 “Raise the Age” law, which diverts 16– and 17-year-olds charged with non-violent felonies out of the adult system.

In 2022, 1,900 people under 18 were held in adult jails and more than 400 were serving sentences in adult prisons, The Sentencing Project reported. Prison is no place for a child. Children housed in adult carceral facilities are at increased risk of sexual assault, physical violence, and suicide. Though many states require institutions to separate children from the adult populations, that usually means the kids are held in the practical equivalent of solitary confinement — a practice that inflicts profound mental and emotional harm even on adults.

The racial disparities in prosecutions of juveniles are enormous, from arrest through imprisonment. The Sentencing Project reported in 2019 that 80 percent of kids serving life sentences are people of color and that, in 2021, Black kids were held in juvenile facilities at a rate almost five times higher than white youth. The majority of children under 14 who are transferred into the adult system each year are Black or Latino, according to the Equal Justice Initiative.

But there has been some progress. Former North Carolina Gov. Roy Cooper last summer vetoed a bill that would have funneled more juveniles into the adult system. And in Washington, DC — where I was given a life sentence — the city council in 2021 passed the Second Look Amendment Act, allowing anyone who has served at least 15 years for a crime committed under the age of 25 to petition for resentencing. The law reflects scientific evidence that the brain isn’t fully developed until age 25. As of today, over 200 Washington, DC residents have been released under the act and its 2016 precursor, which offered an opportunity for resentencing to people who committed crimes as children.

When I was charged as an adult, I didn’t understand very much about the charges that were levied against me. My court-appointed attorney tried to explain what was happening, but it might as well have been in a foreign language. No one was interested in the circumstances that led me, a teenager, to commit a crime. They just proceeded as if I was as culpable as a 30-year-old man.

We must do more to protect kids. Policymakers, advocates, funders, foundations, legal representatives, communities, families, and individuals need to raise awareness about the dangers and injustice of treating kids like adults and change how young people are treated. Instead of locking them up and throwing away the key, we must address the economic, healthcare, and social systems that contribute to youth crime. Studies show there is “a complex interplay between childhood experiences, social influences, and available resources in shaping criminal behavior.” And youth who have been ensnared in the criminal justice system should be given resources to address any trauma or mental health issues they may have.

I am proof that kids and young adults are redeemable. After 21 years in prison, I was released November 12, 2021, thanks to Washington, DC’s Second Look legislation. I now work as a policy and education associate at the Council for Court Excellence, where I lead the Second Chance Hiring Alliance. I serve as a Public Voices fellow on Transformative Justice with The OpEd Project and previously was a Congressman John Lewis fellow. I have re-built relationships with my loved ones, volunteered with at-risk youth to help them avoid my mistakes, and performed as a spoken-word artist and actor. I have received awards for my contributions to the Washington, DC community.

But I am not unique. Every child and young person sent away has the potential to someday be an indispensable community member on the outside. We just need to give them that chance.

Gene Downing is the Policy & Education Associate at Council For Court Excellence.

Suggested Citation: Gene Downing, States Must Do More to Protect Children in the Criminal Justice System, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Feb. 12, 2025), https://statecourtreport.org/our-work/analysis-opinion/states-must-do-more-protect-children-criminal-justice-system