A South Carolina judge heard arguments in late May 2023 to reconsider the sentence of Jesse Osborne, who committed a school shooting in 2016. Fourteen-year-old at the time, Osborne killed his father and then opened fire at Townsville Elementary School, killing a 6-year-old child and injuring others.
He was sentenced to life without parole, but his lawyers asked that a judge “give Jesse some hope” of getting out of prison decades later. The judge ordered the defense to submit a detailed report by the end of June on the abuse Osborne suffered as a child and his potential for rehabilitation. He said the prosecution would have 10 days to respond, although no decision was announced as of mid-July.
At the heart of this case is whether it is appropriate to sentence children to die in prison, with no chance of being released. Half a century ago, in the United States, offenders of any age were rarely sentenced to life without parole, and it wasn’t until 1978 that states began trying young people as adults. Between 1985 and 2001, however, youth convicted of murder were actually more likely to enter prison with a life sentence than adults convicted of the same crime.
Yet the use of juvenile life without parole, or JLWOP, has declined sharply over the past two decades and has been condemned by the American Bar Association, thanks in large part to new research on brain development.
As a former prosecutor, I respect the need to consider the perspective of victims. However, I also believe it is important to recognize that a 14-year-old’s brain is far from fully developed, and that retribution and accountability must take this into account – ideas that guide my work today as a lawyer defending young offenders.
The era of “superpredators”
In 1995, political scientist John J. DiIulio Jr. published an influential article claiming that the United States was facing a wave of “superpredatory” children who “prefer murder to mischief” and “see no relationship between doing good (or bad) now and being rewarded (or punished) for it later”.
DiIulio blamed this predicted criminal conduct on the “moral poverty” of not having “loving, capable, responsible adults who teach you right from wrong.” He has repeatedly drawn attention to violence among young black people in “downtown neighborhoods”.
While DiIulio coined the phrase “superpredator,” his message resonated with many Americans used to “war on drugs” and “tough on crime” campaigns. America’s history of marginalization and criminalization of black citizens has caused the media and the public to accept his theory, as have several high-profile cases. Perhaps most notorious was the Central Park Five, in which five black teenage boys were wrongly convicted of raping a white woman in Central Park in 1989.
Throughout the 1980s and 1990s, long before DiIulio’s article, states had already established tougher sentencing laws, even for minors. Legislatures across the country embraced judging children as adults and rejected policies focused on prevention and rehabilitation.
Between 1985 and 1994, the number of children tried as adults increased by 71%, and in 2012, 28 states imposed mandatory life sentences for capital murder for some minors.
The “super predator” theory turned out to be a myth: by the late 1990s, youth crime had actually declined, and that trajectory continued. Between 2000 and 2020, the number of young people incarcerated fell by 77%.
By 2000, DiIulio had retired the apex predator theory and was advocating for reform. However, many laws from the “super predator” era are still in effect. The United States is still the only country to sentence children to life without the possibility of parole.
Changes to the Supreme Court
Nevertheless, a sea change has taken place in legal thinking, as psychologists have argued that adolescents are less culpable than adults due to the nature of the adolescent brain.
Beginning in the 2000s, the United States Supreme Court began to recognize that juvenile offenders are different from adults. In 2005, the court banned the death penalty for those under 18 and, in 2010, life sentences for minors convicted of non-criminal offences.
Two years later, in Miller v. Alabama, the court ruled that even in homicide cases, mandatory sentences of life imprisonment without parole for minors violated the Eighth Amendment’s prohibition against “cruel and unusual punishment.” However, the judges did not outright ban life sentences – simply mandatory sentencing laws requiring them for perpetrators of juvenile homicide, without considering the particular mitigating factors of each case.
In each of these decisions, the Supreme Court recognized that a lack of brain development makes adolescents, even those who commit serious and violent offenses, less culpable and more capable of change than adults. In Miller v. Alabama, the court noted that teenagers are impulsive, cannot escape abusive home environments, cannot properly assist their attorneys, and have an inherent capacity for rehabilitation.
Change state by state
This change in attitude had an obvious impact on state laws. Today, a majority of states have now banned or have no one serving JLWOP.
More than 500 people who were convicted before these SCOTUS cases are still serving life without parole for crimes they committed as children. However, another 1,000 people were freed because laws changed to overturn their original convictions, according to the Campaign for the Fair Sentencing of Young People, which campaigns against JLWOP.
Virginia, for example, passed a law in 2020 to allow people convicted as young offenders who have already served 20 years in prison to apply for parole. Approximately 17 have been reviewed and granted parole so far, including seven pardoned individuals whom my law students and I have assisted.
Another aspect of adolescent development that research has emphasized is the rehabilitative potential of young offenders, challenging the idea that they are irretrievably dangerous. A 2020 study found that only 1.14% of those sentenced to life without parole in Philadelphia and eventually released were reconvicted of an offense. Similarly, of 142 people released in Michigan after the Supreme Court’s Miller decision, only one had been re-arrested in 2021.
The way to go
Nothing can bring back shortened lives. But in my more than 25 years of working in the juvenile justice system, I have seen time and time again that our society fails defendants and victims by not helping them resolve their conflicts before they come to that. Those I assist as a defense attorney often come from the same tragic backgrounds and backgrounds as the victims I have served as a prosecutor.
Increasingly, however, it seems that schools, courts and communities are turning to approaches other than life without parole to help young people overcome or prevent the worst things they’ve ever done in the first place.
The primary purpose of juvenile court has always been rehabilitation rather than punishment. Courts now have improved assessment tools, effective intervention programs, recognition of the roles that lack of brain development and trauma play in delinquent behavior, and treatments for underlying psychiatric disorders that can help achieve this goal – if our society is willing to invest in these resources sooner rather than later.
This article is republished from The Conversation, an independent, nonprofit news site dedicated to sharing ideas from academic experts. The Conversation is trusted information from experts, from an independent, non-profit organization. Try our free newsletters.
It was written by: Julie Ellen McConnell, University of Richmond.
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Julie Ellen McConnell is affiliated with Housing Opportunities Made Equal as a board member and volunteer