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One Year Later: State Level Response and Implementation of Miller v. Alabama

By Kelly Orians

On June 25, 2012, the U.S. Supreme Court issued a landmark ruling in the case of Miller v. Alabama,1 holding that the U.S. Constitution prohibits mandatory life-without-parole sentences for youth who committed their crimes under the age of 18, even if convicted of homicide. Finding that youth are entitled to “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,”2 Miller marked the third time since 2005 that the Court has relied on the Eighth Amendment’s ban on cruel and unusual punishment to strike down a juvenile sentencing practice.3

The National Center for Youth Law (NCYL) joined 89 other advocacy organizations and individuals that promote children’s rights in an amicus brief to the U.S. Supreme Court in Miller. In their brief, the amici argued, based on scientific research, that because youth lack maturity and have “an underdeveloped sense of responsibility,” they are therefore more vulnerable to negative influences and outside pressures. This susceptibility, they argued, makes a sentence of life without parole inherently disproportionate to a youth’s criminal culpability.4

A couple of years earlier, in 2010, the Court held that sentencing a juvenile to life without parole is unconstitutional in cases where the victim is not killed.5 The court’s decision in Miller did not expand that categorical ban to all offenses, even homicide cases, as many advocates had hoped. Instead, the Court more narrowly stated a categorical ban on the imposition of life without parole as a mandatory sentence for juvenile homicide offenders.

In the wake of the Miller ruling, states have confronted four main issues: (1) bringing their sentencing statutes into compliance with the ban on mandatory sentencing, (2) determining whether the ruling is retroactive, (3) providing youth with a meaningful and realistic opportunity for release, and (4) reforming their juvenile-to-adult court transfer processes in general. These considerations, as well as the broader concerns about juvenile sentencing highlighted in Miller, now shape the fate of over 2,500 people, and their families, who are currently serving life without parole sentences for crimes committed before the age of 18, as well as the over 250,000 juveniles transferred annually into the adult criminal justice system across the country.6

Miller is more than a year old, and impacts at least 29 states’ juvenile sentencing practices. An estimated 18 of these 29 states have advanced legislation to bring their state into compliance with Miller. Some states have pursued only the most basic level of compliance by replacing mandatory life without parole with the next-harshest available sentence in their respective jurisdiction.7 Meanwhile, other states have pursued compliance more broadly by either abolishing life without parole as an option all together8, and/or by addressing the inherent problems that exist when placing children in adult criminal court and adult prisons.9

Compliance with Miller’s Ban on Mandatory Life Without Parole Sentencing

The U.S. Supreme Court took a “children are different” 10 approach in Miller, as it had in the previous cases banning the death penalty for juveniles in Roper v. Simmons and life without parole sentences in non-homicide cases in Graham v. Florida. In all three cases, the Court recognized “children’s diminished culpability and heightened capacity for change.”11 In Miller, in addition to numerous social and legal factors that constrain and shape the lives of youths, the Court also cited a growing body of adolescent brain science concluding that the actions of youth are less likely to be evidence of “irretrievably depraved character.”12 The Court concluded that it is very difficult for even the most experienced professional, let alone a jury, to distinguish an incorrigible juvenile from one capable of rehabilitation. Therefore, although it did not foreclose the possibility of imposing life without parole sentences after careful consideration, the Court commented that, “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.”13

In Miller, the Court was most troubled by the fact that mandatory sentencing restricts judicial discretion despite youths’ lack of development and still evolving character. In banning mandatory life without parole sentences, the Court explained that judges must be able to consider a child’s maturity, home environment (from which a child typically cannot remove themselves by their own volition), role in the crime, inability to meaningfully aid in their own defense because of their intellectual immaturity, and potential for rehabilitation, among other key factors.14

In response, during their first legislative sessions since Miller, three states (California, Wyoming, and Delaware) recognized the inherent differences between youth and adults, as well as the problems that necessarily arise when deciding the fate of a child who does not yet have a fully formed character, and passed legislation that completely removed life without parole as a sentencing option for youth.

In October 2012, California, a state that previously had discretionary life without parole sentencing for youth, passed Senate Bill 9 (SB 9), also know as the “Fair Sentencing for Youth Act.”15 Under California’s SB 9, certain youth sentenced to life without parole can petition for a sentence review, which, if granted, could lead to a reduced sentence or release. (Read more about SB9 and NCYL’s involvement with it.) In February 2013, Wyoming, a state that previously imposed mandatory life without parole for youth convicted of certain offenses, passed House Bill 23 (HB 23).16 Under HB 23, youth convicted of first-degree murder must now receive parole consideration after serving 25 years of their sentence. In June 2013, Delaware, a state that previously imposed mandatory life without parole for youth convicted of certain offenses, passed Senate Bill 9.17 Under Delaware’s SB 9, individuals serving 20 years or more for a conviction before their 18th birthday now have meaningful and frequent opportunities to appear before a judge for case review and possible resentencing.

In addition to California, Wyoming, and Delaware, Connecticut passed House Bill 6581 (HB 6581)18 in May 2013. That bill would eliminate life without parole as a sentencing option for youth and increase the availability of parole opportunities for all individuals serving prison sentences of more than 12 years for crimes committed before their 18th birthdays. The bill advanced out of the House by a vote of 137-4, but because it was not voted on in the Senate before the session adjourned it failed to pass. Advocates expect to bring the proposal back before the legislature during the 2014 legislative session.

Although California, Wyoming, Delaware, and Connecticut are the only states to have advanced or passed legislation to ensure that children’s unique capacity for growth and change is recognized by the law, legislators in Nebraska, South Dakota, Pennsylvania, Louisiana,19 Arkansas, Utah, and North Carolina have taken important first steps towards providing fair and just sentencing alternatives for youth. The legislation advanced in these states expands judicial discretion over cases involving youth, while still reserving a life without parole sentence as an option.

Retroactivity of the Miller Ruling

In addition to addressing the sentencing options that will be available for juveniles post-Miller, Mississippi, Louisiana, and Minnesota have also addressed whether Miller was intended to be retroactive.

In July, the Mississippi Supreme Court unanimously rejected the prosecutor’s argument that the Miller ruling is not retroactive. The Court held in Brett Jones v. State of Mississippi (that the Miller decision created “a new, substantive rule which should be applied retroactively to cases on collateral review.” 20 This ruling is of particular significance because Mississippi is the first state with a considerable number of youth sentenced to life without parole to publish a detailed opinion on the issue of retroactivity.21

The ruling in Jones came just after a lengthy split decision from the Supreme Court of Minnesota in the case of Chambers v. State of Minnesota—a state with only a handful of Miller-eligible cases. In Chambers, the majority of the Court denied relief for the defendant on the grounds that Miller was not retroactive. Writing for the dissent in Chambers, Justice Paul H. Anderson vehemently disagreed with the majority’s Teague v. Lane analysis,22 the controlling legal authority on whether a rule may be applied retroactively.

In Teague, the U.S. Supreme Court found that a defendant can only benefit from a new rule so long as his or her case has not been finalized (the conviction is final and is not on direct appeal), with a couple of exceptions as further explained by subsequent cases interpreting Teague. 23 One exception is if the ruling affects a “particular class of persons.” It is then considered substantive, and even defendants whose cases have been finalized can benefit from the new rule. Justice Anderson reasoned that the Miller decision did in fact lay down a “new rule,” and that those individuals impacted by Miller and whose cases have already been finalized, constitute a particular class of people – in this case, juveniles. Justice Anderson relied on the three key points in concluding that Miller provided a new substantive rule affecting a certain class of people and is therefore retroactive under Teague: (1) youth possess less culpability than an adult and therefore must be treated differently, (2) life without parole for a youth is akin to the death penalty, and (3) because life without parole for youth is akin to the death penalty, a sentencing authority must be able to consider individualized characteristics before a defendant may be sentenced.24

The most recent challenge to the retroactivity of the Miller ruling comes out of Louisiana. Although the Louisiana Supreme Court permitted retroactive application of Miller in a collateral case late last year, it will be hearing oral arguments in a challenge this December.

Even though some state prosecutors and lower state courts continue to resist implementation of Miller by arguing the decision is not retroactive, the federal government has taken the uniform position that Miller is fully retroactive and applicable in cases on collateral review.25

Providing a Meaningful Opportunity to Demonstrate Maturity and Rehabilitation

In Graham and Miller, the Court made clear that “a state is not required to guarantee eventual freedom” to juveniles. Instead, what a state must do is give juvenile defendants “a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”26 The Court further explained that an opportunity cannot be illusory but must be “realistic” and before the “end of that term.”27 This new guideline presented two key issues to the states: (1) when to provide opportunity for release so that it is a realistic, and (2) how to make this opportunity meaningful.

Determining When to Provide a Realistic Opportunity for Release

Determining when to provide a youth with an opportunity for release has been an issue of great controversy since the Graham and Miller decisions. At one end of the spectrum, Iowa, Florida, Missouri, and Alabama have advanced legislation that would give a youth an opportunity for release only after serving at least 50 years in prison, when many of these prisoners would be approaching 80 years of age. Advocates in these states have either stalled legislation or challenged these legislative acts as both unconstitutional under the Miller guidelines, and inefficient given the already limited resources in the criminal justice system. To keep someone – particularly a youth who enters prison without a fully formed character – incarcerated for decades without an evaluation of their continued threat to public safety is a poor use of limited resources, particularly given the fact that the cost of keeping someone in prison becomes greater as they age.

Since an opportunity for release is merely an opportunity and not a guarantee, California gives youth a first opportunity for judicial review after serving 15 years in prison. After serving 15 years, a youth is able to petition to go before a judge to have their life sentence commuted to a 25 years-to-life sentence and be eligible for release on parole after serving 25 years.28 However, even requiring 25 years in prison (with a person approximately 40 years of age by the time he become eligible for parole) does not align with what is known about youths’ ability to reform their character.

Given that adolescent brain science has concluded that a human brain, specifically the pre-frontal cortex which governs decision-making, only approaches full development after someone has reached their mid-twenties,29 it is reasonable to assume that a youth could be able to demonstrate rehabilitation at that time. Moreover, although not specifically contemplated by the Court in their decision, effective sentencing policy should consider that in order for a youth to successfully re-enter society they must be able to maintain connections to their community and find gainful employment. After 25 years in prison, it is unlikely a youth still has meaningful connections with their community. Further, with little to no employment experience and a felony on his or her record, it is even more unlikely a juvenile returning to the community after such a lengthy sentence will be able to find a job.

Making an Opportunity for Release Meaningful

Regardless of when the first opportunity arises, providing a youth with review that meets the constitutional standards set out in Miller requires states to decide what criteria will be considered when making a decision, and what mechanism will be utilized (i.e. the courts, the parole board, the executive branch). In Miller, the Court observed that the behavior of a youth during the commitment offense is not dispositive of his or her character or future potential for change.30 It is therefore insufficient to focus solely on the depravity of the crime when evaluating whether a youth is worthy of release. In lieu of focusing solely on the original offense, the Court in Graham identified some characteristics that do demonstrate maturity based on the transition from adolescence to adulthood. These factors include “remorse, renewal, and rehabilitation.”31

Although in many states the parole board is the body that will make decisions about a youth’s rehabilitation and potential for release, it is not clear that parole boards are the best option for meeting the constitutional standard set in Graham and Miller. As the Court observed in Graham, it is difficult even for experts to discern which youth are likely to reoffend and which will succeed upon release.32 In order for any review process to make a fair and meaningful assessment, it must take a holistic look at a youth before determining appropriate punishment.

To that end, of the states that have passed legislation in response to the Miller ruling, California, Delaware, North Carolina, Pennsylvania, South Dakota, Nebraska, and Louisiana have all mandated consideration by parole boards and/or judges of several mitigating factors relevant to youth. In addition to standard mitigating factors, these states, to varying degrees, have also included consideration of involvement of adult co-defendants; family history and life at home; exposure to trauma at an early age; a youth’s ability to appreciate risks and consequences; and evolution of a youth’s experience in prison, including involvement in rehabilitative programing and education.

No discussion of criminal sentencing policies is complete without consideration of the role race plays in the criminal justice system. Although sentencing statutes are race neutral on their face, black youth have comprised nearly 60 percent of the youth sentenced to adult prisons since 1990.33 Data compiled by Human Rights Watch shows that black youth nationwide are serving life without parole sentences at a rate ten times higher than that of white youth.34 Although racial disparities on their own are not dispositive of a flawed system, numerous empirical studies have concluded that ethnic/racial minority youths are sentenced more harshly than similarly situated white youths at every stage of the criminal justice system—from arrest to sentencing.35

Given these inherent problems, several states have addressed the overarching problem of sentencing youth in the adult criminal justice system by mandating greater levels of review when a youth is initially transferred into the adult criminal justice system. These reforms include greatly limiting prosecutorial discretion, requiring judges to issue opinions about why a youth has been transferred, and opening up opportunities for more youth sentenced in the adult criminal justice system to be reviewed by parole boards or judges.

Going Beyond Miller — Recognizing and Respecting the Inherent Differences Between Youth and Adults

In addition to broader reforms to state sentencing policies and sentencing review provisions directly addressed by the Miller ruling, Colorado, California, and Missouri have also advanced legislation addressing the fundamental differences between youth and adults.


In 2012, Colorado House Bill 1271 (HB 1271) was introduced by a bi-partisan group of legislators at the urging of the Colorado Juvenile Defender Coalition. Prior to the passage of HB 1271, Colorado’s “direct file statute” (C.R.S §19-2-517) gave prosecutors unilateral discretion to file charges against certain 14-17 year olds directly in criminal court.36 This follows a general trend over the last twenty years of putting incredible power in the hands of prosecutors and completely bypassing judicial oversight through the practice of “direct file.” Once filed in criminal court, judges were given no power to review or remand a case back to juvenile court. Further, once filed in criminal court, youth had no opportunity to challenge their transfer.

Following the passage of HB 1271 prosecutors are still able to direct file youth in criminal court who are 16 and 17 years of age, however, they may only be direct filed for the most serious of offenses37 and they are now entitled to file a motion for a “reverse transfer hearing,” where the judge will use an 11-factor balancing test to determine whether the juvenile and the community will be better served by proceedings in criminal or juvenile court.38

Although youth from 12 to15 years of age may no longer be direct filed in criminal court they may still end up in criminal court through judicial transfer (based on judicial discretion), however, their case must be evaluated by a juvenile court judge using the same 11 factor test before transfer can occur.39

Further, transfer exposes a youth to a number of collateral consequences (beyond enhanced sentences). HB 1271 contemplated these consequences and allows for any felony conviction in juvenile court to be converted to a juvenile adjudication for purposes of future expungement.

Colorado’s approach to addressing the practice of “direct file” through legislation has implications for hundreds of thousands of youth nationwide. It is estimated that over 250,000 youth are transferred into the adult criminal justice system annually.


In February of this year, Missouri legislators introduced House Bill 541 (HB 541, aka “Jonathan’s Law”)40 a bill requiring judges to consider giving minors who have been convicted as adults a juvenile sentence, and requiring an explanation why not, if they do not. Jonathan’s Law was written in remembrance of Jonathan McClard, and in response to his tragic death. At the age of 17 Jonathan was serving a 30-year prison sentence and was en-route to being incarcerated in the general population when he committed suicide at an adult prison. The most thorough study conducted on youth suicide in secure care found that rates are 7.7 times higher in adult prisons than in juvenile facilities.41

Jonathan’s mother, Tracy McClard, founded Families and Friends Organized to Reform Juvenile Justice (FORJ-MO) and has championed the legislation. The Governor signed “Jonathan’s law” into law on June 12, 2013.


In September 2013, California Governor Jerry Brown signed into law Senate Bill 260 (SB 260), initially introduced by Senator Loni Hancock. SB 260 will provide an opportunity for early release on parole for anyone who was under the age of 18 at the time of his or her crime and was tried as an adult and has served more than 15 years. SB 260 also will establish a parole process that acknowledges the unique situation of youth in the criminal justice system.42 Human Rights Watch has estimated that 5,000 of the 6,500 youth offenders sentenced to adult prison terms in California will be eligible for relief under SB 260.43

Moving Forward

Although the U.S. Supreme Court did not create a categorical ban on life-without-parole sentences for juvenile offenders, it recognized the inherent differences between youth and adults in its ban on mandatory life without parole sentences. As a juvenile offender continues to grow and develop, it is in the best interest of both the youth and the taxpayers that he or she be given meaningful and frequent opportunities to demonstrate maturity and rehabilitation starting early on in his or her incarceration.

No state has perfected a mechanism by which these sentence reviews can occur at this point. However, a holistic approach which takes into consideration a juvenile offender’s age at the time of the offense and her rehabilitation, is undoubtedly the fairest and most realistic method of evaluation. Further, a meaningful opportunity for release must also consider the conditions a youth faces in facilities designed specifically for adults that may put them at a disadvantage. The underlying premise of the recent Miller and Graham U.S. Supreme Court decisions—that youth are different than adults and have inherent capacity for change—should motivate states to reform their practices to reflect this reality.

Kelly Orians was a 2013 summer law clerk at NCYL, working with Attorney Frankie Guzman on his project to address direct file reform in California. Kelly is in her second year at University of California, Los Angeles Law School in the David J. Epstein Program in Public Interest Law and Policy and the Critical Race Studies Program.

1 Miller consolidates two cases, Miller v. Alabama, which was on writ of certiorari to the Court of Criminal Appeals of Alabama, and Jackson v. Hobbs, which was on writ of certiorari to the Supreme Court of Arkansas. The majority opinion in Miller was written by Justice Kagan and joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented.

2 Miller v. Alabama, 132 S. Ct. 2455, 2469, 183 L. Ed. 2d 407 (2012).

3 In 2005, in the case of Roper v. Simmons, the United States Supreme Court ruled it unconstitutional to impose capital punishment on a person under the age of 18. In 2010, in the case of Graham v. Florida, the United States Supreme Court ruled it unconstitutional to sentence a juvenile to life without parole in a case that did not involve a homicide.

4 Graham v. Florida130 S. Ct. 2011, 2026 (2010).

5 Miller v. Alabama, 132 S. Ct. 2455, 2466, 183 L. Ed. 2d 407 (2012).

6 Campaign for Youth Justice, Key Facts: Youth in the Justice System. Washington D.C.: Campaign for Youth Justice, 2007. Web. May 2011. Citing Woolard, J. “Juveniles within Adult Correctional Settings: Legal Pathways and Developmental Considerations.” International Journal of Forensic Mental Health 4.1 (2005): 18. Print. ; See Also Coalition for Juvenile Justice. Childhood on Trial: The Failure of Trying and Sentencing Youth in Adult Criminal Court. Washington, D.C.: Author, 2005. Print.

7 Nebraska, South Dakota, Pennsylvania, Louisiana, Arkansas, Utah and North Carolina have passed or advanced legislation to expand judicial discretion over cases involving youth leaving life without parole as a sentencing option for youth.

8 California, Wyoming, and Delaware abolished the sentence of life without the possibility of parole for juveniles.

9 Missouri, and Colorado have gone beyond the Miller and Graham rulings to reform their adult transfer processes, and California is currently pursuing legislation to expand parole opportunities to more youth convicted in adult criminal court.

10 Miller, 132 S. Ct. at 2470.

11 Id. at 2469.

12 Miller v. Alabama, 132 S. Ct. 2455, 2475, 183 L. Ed. 2d 407 (2012)

13 Miller v. Alabama, 132 S. Ct. 2455, 2481, 183 L. Ed. 2d 407 (2012)

14 Miller v. Alabama, 132 S. Ct. 2455, 2468, 183 L. Ed. 2d 407 (2012)

15 S.B. 9, 2011 – 2012 General Sess. (CA. 2012).

16 H.B. 0023, 62nd Leg., General Sess. (WY. 2013).

17 S.B. 9, 147th Leg., General Sess. (DE. 2013).

18 H.B. 6581, 2012 – 2013 General Sess. (CT. 2013).

19 HB 152 (now Act 239) includes a presumption against using juvenile life without parole as a sentence stating the sentence “should normally be reserved for the worst offenders and the worst cases.” H.B. 152, 39th Leg., Regular Sess. (LA. 2013).

20 Jones v. State, 2009-CT-02033-SCT, 2013 WL 3756564 (Miss. July 18, 2013).

21 It is estimated that 80% of the estimated 2500 youth sentenced to life without parole are isolated to five states: California, Louisiana, Massachusetts, Michigan, and Pennsylvania. Mississippi has an estimated 24 people serving life without parole for crimes committed in their youth.

22 In Teague v. Lane, the United States Supreme Court laid out when a defendant is entitled to the benefit of a new rule. The Court concluded “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” But once a conviction or sentence becomes final, the defendant is not entitled to the retroactive benefit of a new rule, subject to two exceptions. First, “a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Second, “a new rule should be applied retroactively if it requires the observance of those procedures that are … implicit in the concept of ordered liberty.” The second exception is “reserved for watershed rules of criminal procedure.” Teague v. Lane, 489 U.S. 288, 300–10, (1989).

23 In Penry v. Lynaugh the Supreme Court clarified its holding in Teague holding that new rules “prohibiting a certain category of punishment for a class of defendants because of their status or offense ” are substantive. Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (emphasis added).

24 Chambers v. State, 831 N.W.2d 311, 334 (Minn. 2013) (Anderson, J. dissenting)

25 Resp’t. Resp. to Pet’r. Application for Authorization to File A Second or Successive Mot. Under 28 § 2255, 4: 4-6, May 9, 2013; Resp’t. Resp. to Pet’r. Application for Authorization to File A Second or Successive Mot. Under 28 § 2255, 2: 1-3, February 22, 2013; Resp’t. Resp. to Pet’r. Mot. for Recons. Of Order Denying Mot. for Leave to File A Second Mot. Pursuant to 28 § 2255, 6: 9 – 14, May 30, 2013.

26 Miller v. Alabama, 132 S. Ct. 2455, 2469, 183 L. Ed. 2d 407 (2012); Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 2029-30, 176 L. Ed. 2d 825 (2010)

27 Miller v. Alabama, 132 S. Ct. 2455, 2469, 183 L. Ed. 2d 407 (2012); Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 2029-30, 176 L. Ed. 2d 825 (2010)

28 S.B. 9, 2011 – 2012 General Sess. (CA. 2012).

29 Elkhonon Goldberg, The Executive Brain: Frontal Lobes and the Civilized Mind (New York: Oxford University Press, 2001), p. 434; Allan L. Reiss, et al., “Brain Development, Gender and IQ in Children: A Volumetric Imaging Study,” Brain, vol. 119 (1996), p. 1768; Elizabeth R. Sowell, et al., “Mapping Continued Brain Growth and Gray Matter Density Reduction in Dorsal Frontal Cortex: Inverse Relationships During Postadolescent Brain Maturation,”Journal of Neuroscience, vol. 21 (2001), p. 8821.

30 Miller v. Alabama, 132 S. Ct. 2455, 2488, 183 L. Ed. 2d 407 (2012)

31 Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 2031-32, 176 L. Ed. 2d 825 (2010)

32 Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 2026, 176 L. Ed. 2d 825 (2010)

33 Human Rights Watch/Amnesty International. (2005). The Rest of Their Lives: Life Without Parole for Child Offenders in the United States. New York, New York.

34 Id.

35 See., e.g., Eileen Poe-Yamagata and Michael A. Jones, And Justice for Some (Building Blocks for Youth Initiative for the National Council on Crime and Delinquency, 2000), available online at:, accessed on August 15, 2013 (finding that youth of color are overrepresented and receive disparate treatment at every stage of the juvenile justice system); Mike Males and Dan Macallair, The Color of Justice: An Analysis of Juvenile Adult Court Transfers in California (Justice Policy Institute, Building Blocks for Youth Initiative, Feb. 2000), available online at:, accessed on September 14, 2004 (The Color of Justice) (showing that youth of color are 8.3 times more likely than white youth to be sentenced by an adult court to imprisonment in a California Youth Authority facility); Jolanta Juszkiewicz, Youth Crime/Adult Time: Is Justice Served? (Pretrial Services Resource Center, Building Blocks for Youth Initiative, Oct. 2000) available online at:, accessed on August 15, 2013 (showing over-representation and disparate treatment of youth of color in the adult system and questioning the fairness of prosecuting youth as adults).

36 Under the old procedures youth as young as 14 could be direct filed for: (1) any felony committed against a person where the 14 year old had previously been transferred or been eligible for direct file transfer; And/or (2) murder or attempted murder with the use or threatened use of a deadly weapon, and/or by a person who has been adjudicated for a felony within the previous 2 years.

37 In Colorado they have six distinct felony categories. Class one felonies are considered the most severe (e.g. rape, murder) and class six felonies are considered the most minor (e.g. theft, stalking).

38 The eleven factors to be considered by the court include: (1) The seriousness of the offense, (2) Whether the offense was committed in a pre-mediated, aggressive, violent, or willful manner, (3) Whether the crime was committed against a person or property (more weight being given to crimes against the person), (4) The age and maturity of the juveniles (as assessed by home environment, emotional attitude, and pattern of living), (5) The record of the juvenile and whether they were previously court involved, (6) Current and past mental health status, (7) Likelihood of juvenile rehabilitation based on options available in juvenile and district courts, (8) The interest of the community in the imposition of a punishment commensurate with the gravity of the offense, (9) The impact of the offense on the victim, (10) Whether the juvenile has been previously committed for a delinquency that would amount to a felony, (11) Whether a deadly weapon was used in the commission of the offense

39 See above.

40 HB 541, 97th Leg., General Sess. (MO. 2013)

41 Flaherty, Michael G. “An Assessment of the national incidence of juvenile suicide in adult jails, lockups, and juvenile detention centers.” The University of Illinois, Urbana-Champaign, 1980.

42 S.B. 260, 2013 – 2014 General Sess. (CA. 2013) (original).