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SJC decision could change handling of juvenile offenders

By Milton Valencia and John Ellement | The Boston Globe | December 27, 2013

This week’s Supreme Judicial Court decision opening the door to parole for teenagers convicted of murder will force a major examination of the way the state tries, sentences, and attempts to rehabilitate them, according to legal analysts.

In its Tuesday decision, Massachusetts’ highest court called on the state to quickly create a “new, constitutional sentencing scheme for juveniles convicted of homicide crimes.”

“We have to look at our system and figure out where we make it work in a way that has meaningful accountability, but looks at kids in a meaningful way, and addresses the fact that they are kids,” said Naoka Carey, executive director of Citizens for Juvenile Justice, a nonprofit research and advocacy group based in Massachusetts, in a phone interview Thursday.

Possible changes could include steering young killers into prison educational and self-improvement programs so they can recognize the seriousness of their crimes and seek to rehabilitate themselves. The state parole board will also have to establish new ways to consider requests by prisoners who were convicted as juveniles but are living in an adult prison system.

The SJC decision struck down a law that allows juveniles to be sentenced to life in prison with no possibility of parole for crimes committed before they turned 18, finding it violated their rights against cruel and unusual punishment.

More than 60 cases could be immediately up for review, ranging from the 1975 conviction of Joseph Drayton, who was 17 when he killed a stranger during an armed robbery, to the 1997 prosecution of Edward S. O’Brien, who was 15 when he stabbed his neighbor in Somerville, the mother of his best friend, more than 90 times.

The state Executive Office of Public Safety and Security said in a statement Thursday that, “The Parole Board takes its responsibility to implement this recent Supreme Judicial Court decision on juvenile sentencing seriously. The board is in the process of reviewing the decision and developing next steps to ensure it is fairly and swiftly implemented.”

Across the country, state courts and legislatures have been increasingly treating juvenile offenders differently than adults, even in cases of murder.

Wyoming, for instance, passed a law earlier this year offering parole hearings to defendants who committed murder before they were 18. The defendants had not been able to be considered for parole before the law was passed, unless they received a governor’s commutation, which was rare.

“They have to have a realistic shot at getting parole some day, and the way it was set up before, they didn’t really have it,” said Daniel Fetsco, deputy director of the Wyoming Board of Parole Office, in a phone interview Thursday.

In the mid-1990s, Massachusetts passed some of the nation’s most punitive laws for juvenile offenders convicted of murder, after a series of brutal homicide cases, including O’Brien’s. A 1996 law, for instance, allowed for defendants 14 and older to be tried for murder as adults, exposing them to the life sentences.

But in its Tuesday decision, the SJC — supporting recent US Supreme Court rulings — found that it agreed with medical findings that the brain functions and thinking patterns of juveniles are less developed than adults’, and so treating them as adults and depriving them of the possibility of parole would violate their rights against cruel and unusual punishment.

The court found that teenagers convicted of murder should have the right to be able to demonstrate whether they have recognized their wrongdoing and are eligible for parole beginning 15 years after their conviction, the same time frame in which an adult convicted of second-degree murder would be eligible for parole.

Legal observers said the state parole board should prioritize hearings for convicted murderers who have already served more than 15 years in prison for crimes they committed as juveniles. Some have already served more than twice that.

They also said the parole board will have to revise its procedures for such prisoners. Typically, the board listens to testimony from convicted murderers and their supporters stating why they should be granted parole, and also arguments against granting it; but now the board will also have to consider the SJC’s findings that teenagers should be treated differently than adults.

“More and more, the courts and the legislatures across the country are looking at this research and saying, ‘OK, in order to treat kids fairly, we have to treat them differently than we’re treating adults,’ ” said Joshua Dohan, director of the youth advocacy division for the state Committee for Public Counsel Services, Massachusetts’ public defender agency.

The state’s highest court based its decision on that research on juveniles, and parole board members will have to factor that into their deliberations.

“The court is demonstrating its trust that the members of the parole board will do their homework and study the criteria that they need to consider for juveniles and make sure to give them a fair, informed, and thorough hearing,” Dohan said.

Donna Sytek, chairwoman of the New Hampshire Adult Parole Board, which recently reviewed the case of a 31-year-old man convicted of a murder he committed at age 14, said she has learned to weigh the characteristics of a teenager versus an adult’s.

Teenagers, for instance, might be more likely to have a record of fights in jail, because they might seek the protection of a gang, especially if they believed they would never be eligible for parole.

However, she added, key questions remain: Will defendants be able to be reintroduced to society, and do they recognize the seriousness of their crimes?

“We approach everything using guidelines, risk assessment scores, but we bring our own judgment to it,” she said.

Rosemary Scapicchio, an attorney who represents several defendants who were convicted for crimes committed as juveniles, said the Department of Correction will have to better classify teenagers who were convicted as adults so they could work on improving themselves, and win the opportunity to prove they should be granted parole.

“These kids can still have hope,” she said. “They shouldn’t have to suffer from these bad decisions for the rest of their lives, and that’s what was happening under the old system.”

But Stephen Solimene, whose sister Janet Downing was killed by O’Brien, lashed out the court ruling. He said the ruling is at odds with the same court’s decision 16 years ago that O’Brien could be charged as an adult — one of the first in the state under the tougher enforcement against juveniles accused of murder.

“They are the ones who created the law in the first place and to now reverse it is just totally insane,” he said. “The victims get revictimized all over again.”

Solimene said he has already been contacted by prosecutors who told him that O’Brien, now 33 years old, could one day be called to a parole hearing. Reluctantly, he said, he will be there with his sister’s children.

“I hate like hell to go over this whole thing all over again,” he said. “I thought everything was settled.”

Read the full article here.