Early in my career I got a call from a new colleague. He had no experience in criminal law and he was troubled by a sentence he imposed. He had sent a man to the workhouse for 60 days for stealing one pack of cigarettes. Although the man had many prior thefts, my colleague felt he had gone too far. My response was: you can fix it.
But, there are times when you cannot fix it. In the cigarette case, Minnesota law at the time allowed a judge to fix it…but, had it been a prison sentence, it could not have been fixed.
Reflecting on what we do and the consequences we impose on others is a path toward improvement as a judge. Evelyn Baker, a retired Missouri circuit court judge, has this opinion piece in The Washington Post under the headline “I sentenced a teen to die in prison. I regret it.”
Here are excerpts:
“You will die in the Department of Corrections.” Those are the words I spoke as a trial judge in 1997 when I sentenced Bobby Bostic to a total of 241 years in prison for his role in two armed robberies he committed when he was just 16 years old.
Bostic and an 18-year-old friend robbed a group of six people who were delivering Christmas presents to a needy family in St. Louis. Two shots were fired. A bullet grazed one person, but no one was seriously injured. The two then abducted and robbed another woman — who said she was groped by Bostic’s accomplice before the two released her. They used the money they stole from her to buy marijuana. Despite overwhelming evidence against him, Bostic chose to go to trial. He was found guilty.
Bostic had written me a letter trying to explain his actions, but despite this, he had not, in my view, demonstrated sufficient remorse.
I told him: “You are the biggest fool who has ever stood in front of this court. . . . You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice. . . . Your mandatory date to go in front of the parole board will be the year 2201. Nobody in this room is going to be alive in the year 2201.”
I thought I was faulting Bostic for his crimes. Looking back, I see that I was punishing him both for what he did and for his immaturity. I am now retired, and I deeply regret what I did. Scientists have discovered so much about brain development in the more than 20 years since I sentenced Bostic. What I learned too late is that young people’s brains are not static; they are in the process of maturing. Kids his age are unable to assess risks and consequences like an adult would. Overwhelming scientific research shows that children lack maturity and a sense of responsibility compared with adults because they are still growing. But for the same reason, they also have greater capacity for reform.
That’s perhaps not surprising. As a society, we recognize that children and teens cannot and do not function as adults. That’s why below a certain age you cannot vote, join the military, serve on a jury or buy cigarettes or alcohol….
Most courts have understood the Supreme Court’s 2010 decision to mean that the Constitution prohibits sentences like the one I gave to Bostic. While I did not technically give him “life without parole,” I placed on his shoulders a prison term of so many years combined that there is no way he will ever be considered for release. He won’t become eligible for parole until he is 112 years old — which means he will die in prison, regardless of whether he rehabilitates himself or changes as he grows older.
I see now that this kind of sentence is as benighted as it is unjust. But Missouri and a handful of other states still allow such sentences, and the Missouri courts have affirmed the sentence I handed down.
This week, the Supreme Court will consider whether to take Bostic’s case and, if the justices do, they will decide whether his sentence is an outcome the Constitution can countenance. The court should take the case and give Bostic the chance I did not: to show that he has changed and does not deserve to die in prison for something he did when he was just 16.
Imposing a life sentence without parole on a child who has not committed murder — whether imposed in a single sentence or multiple sentences, for one crime or many — is wrong. Bostic was immature, and I punished him for that. But to put him, and children like him, in prison for life without any chance of release, no matter how they develop over time, is unfair, unjust and, under the Supreme Court’s 2010 decision, unconstitutional.