Joe Biden, proud superpredator hunter. / Joe Mud
Natasha Vargas-Cooper,  February 2, 2016

Twilight of the Superpredators

Joe Biden, proud superpredator hunter. / Joe Mud
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In the early 1990s a conservative criminologist at Princeton, John J. DiIulio, scanned the horizon and predicted that a new superbreed of hoodlums was coming like a demographic tidal wave. Over a twenty-year span, DiIulio forecast, 270,000 juvenile offenders would roam the nation’s streets, looking to rob, rape, or assault law-abiding citizens. Due to the depravation of the drugs ingested by their mothers, these young men would be too neurologically damaged to feel empathy; growing up, they would be “fatherless, Godless, and jobless.” According to DiIulio, these youths would prove to be superpredatory, “more terrorist than criminal.”

In his 1996 essay, “My Black Crime Problem and Ours,” DiIulio later wrote, “Think how many black children grow up where parents neglect and abuse them, where other adults and teenagers harass and harm them, where drug dealers exploit them. Not surprisingly, in return for the favor, some of these children kill, rape, maim, and steal without remorse.” DiIulio’s prophecy was echoed by other respected criminologists like James Q. Wilson, Alfred Blumstein, and James Fox, who christened the future “a bloodbath.” 

The public at large already had an image for packs of feral black teens destined to terrorize civilians: the Central Park Five, a group of mostly black boys from gritty uptown projects who took to the park to swagger, bully, and punk well-to-do locals. When they were (wrongfully) accused of brutally raping and assaulting a female jogger, the images of glowering young black boys saturated nightly news coverage. 

The media, reliably, hyped up the coming adolescent armageddon and politicians sprang into action. Most states passed new laws that made it easier to try a child in an adult court. The number of children moved into adult prisons began to swell. Schools instituted zero tolerance policies, locker sweeps, and assigned armed police officers to patrol junior high and high schools.

“Decency is not the same as leniency,” Chief Justice Roberts, ever the ghoul, wrote in his dissent.

The Clinton administration played its part in the reactionary sentiment of the time by passing the largest, most costly crime bill in the nation’s history. Authored by then-Senator Joe Biden, the Violent Crime Control and Law Enforcement Act of 1994 allowed children who were thirteen years old and above to be charged with serious crimes; gave federal prosecutors more authority to charge minors as adults; made it legal for children to serve time in adult prisons; rendered it admissible to present juvenile crime records at an adult’s court proceedings; and, in order to make sure that kids who grew up in prison were punished as severely as possible, the Act cut off funding from Pell Grants for inmates seeking to get their college degree.

“We together are taking a big step,” President Clinton said at the signing ceremony, “toward bringing the laws of the land in line with the values of our people.” Those values would come to define the current morass of mass incarceration: punitive, arbitrary, and fear-based.

The youth crime bomb was a dud, the criminologists’ projection models were flawed, and the scourge of the superpredators never came to be—rates of serious juvenile crime started to go down even before these draconian measures took hold and continued to plummet over the next decade. Yet nevertheless, the infrastructure for cruelty, torture, and life-long captivity of juvenile offenders was cemented.

“Thank God we were wrong,” DiIulio said in 2001, while working inside President Bush’s White House’s Office of Faith-Based and Community Initiatives. Yes, in the place of a pubescent crime wave, we got the dismantling of protections for wayward children, the subjection of thousands of teenagers to a brutalizing punishment regime, and a state apparatus where, as Justice Elena Kagan writes, juveniles could “die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate.”

Praise God indeed.

However, last week’s Supreme Court decision to retroactively apply the ruling in 2012’s Miller v. Alabama, meaning that two thousand people who were sentenced automatically to life without parole as juveniles are now eligible to apply for parole, is enough to make a dyed-in-the-wool atheist like myself honor the same deity as DiIulio. The decision retroactively bans mandatory life sentences without the possibility of parole for juvenile offenders.

Miller v. Alabama was one of a flurry of enlightened landmark decisions to come from the Supreme Court over the last decade, including eliminating the death penalty for juveniles, in 2005, and banning life sentences without parole for juveniles convicted of crimes other than homicide, in 2010. This, topped with President Obama’s executive order to ban the practice of placing juvenile inmates in solitary confinement, is the progress toward a more decent society.

In last Monday’s decision the court reaffirmed the logic of the Miller v. Alabama ruling:

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.

Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys.

Using the same thinking, the justices in Miller v. Alabama were able to rule that automatic life sentences without parole for juvenile offenders amounted to a violation of the 8th Amendment, the protection against cruel and unusual punishment. The dissenting opinions are worth reading for their chilling Hobbesian logic. “Decency is not the same as leniency,” Chief Justice Roberts, ever the ghoul, wrote in his:

The principle behind today’s decision seems to be only that because juveniles are different from adults, they must be sentenced differently. There is no clear reason that principle would not bar all mandatory sentences for juveniles, or any juvenile sentence as harsh as what a similarly situated adult would receive. Unless confined, the only stopping point for the Court’s analysis would be never permitting juvenile offenders to be tried as adults.

Nevertheless, common sense ruled the day in 2012 and left the door open for retroactively applying the ruling. 

The plaintiff before the Supreme Court was 69-year-old Henry Montgomery. Two weeks after his seventeenth birthday in 1963, Montgomery shot and killed a deputy sheriff in East Baton Rouge. Montgomery was originally sentenced to death but the conviction was overturned by the Louisiana Supreme Court after finding that public prejudice had prevented a fair trial.

Montgomery was retried and the verdict came back “guilty without capital punishment.” This triggered an automatic life sentence without the possibility of parole. As Justice Anthony Kennedy pointed out, because of the automatic sentence, Montgomery’s defense team was given no chance to present “evidence [that] might have included Montgomery’s young age at the time of the crime; expert testimony regarding his limited capacity for foresight, self-discipline, and judgment; and his potential for rehabilitation.”

Montgomery has spent most of his life in prison and has become, according to court documents, “a model member of the prison community,” After the court’s decision in Miller v. Alabama, he petitioned to have the opportunity to apply for parole, now that automatic sentences like his are considered illegal.

The Supreme Court ruled that the decision in Miller should be applied retroactively to cases like Montgomery’s because it constituted “new watershed procedural rules” in the matter of “rules forbidding criminal punishment.”

“Prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption,” Justice Kennedy writes, “and, if it did not, their hope for some years of life outside prison walls must be restored.”

It’s heartening to see the emotional, psychological, and scientific differences between children and adults now firmly embedded in the fact Montgomery, and others, can apply for parole. The final step in killing off the myth of the superpredator for good? Ban life sentences for juvenile offenders, period, full stop. 

 

Correction: We stated that “Miller v. Alabama was one of a flurry of enlightened landmark decisions to come from the Roberts court over the last decade, including eliminating the death penalty for juveniles, in 2005.” The 2005 decision was made a few months before Roberts became Chief Justice, and the article has been amended to reflect that.

Natasha Vargas-Cooper is a criminal justice reporter in Los Angeles. She tweets from @natashavc.

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