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Submitted 5:30 p.m. EDT
Letter to the Editor

Governor Cuomo could do something right now.”

Issa Kohler-Hausmann of New Haven, Connecticut

In Miller v. Alabama, the United States Supreme Court, announced a legal principle that social science, neuroscience and common sense had long recognized: juveniles have “diminished culpability and greater prospects for reform” such that “children are constitutionally different from adults for purposes of sentencing.” Relying on that principle, the court held that imposing a mandatory life sentence without the possibility of parole on juveniles violated the Eighth Amendment’s prohibition on cruel and unusual punishment, even for the crime of murder.

As Dana Goldstein’s heart-wrenching article points out, New York State is one of only two states that automatically charge juveniles in adult criminal court. There is an emerging consensus that this is an unsupportable practice, even though some lawmakers are resisting legislation to change it. But there is another problem with the way juvenile offenders are treated, one that Governor Cuomo and Attorney General Schneiderman could do something about right now without waiting for the Legislature to act. They could change the way the Board of Parole assesses individuals who commit crimes as juveniles when considered for release after serving their minimum sentence.

The Board of Parole’s appointed role in our criminal justice system is not to subjectively decide how much time they believe a person ought to serve in prison. Rather, their role is to assess whether an individual meets the statutory release criteria, namely whether he or she has been rehabilitated and does not pose a substantial risk to public safety.

Currently, the Board of Parole has no policy or regulation instructing them to take the age of an offender into account when evaluating the crime at a release hearing. The Board regularly holds juvenile offenders to an adult standard when those people come before the Board. And they rely on that assessment as the basis for denying parole, often for years after the person has completed his minimum sentence. The State is actively appealing one case where a judge found the Board applied a constitutionally inappropriate standard to assess a man who committed a murder as a juvenile. According to data compiled by the Parole Hearing Data Project, there were more than 250 parole hearings in New York over the past two years for individuals who were 19 or younger when they entered prison and are serving indeterminate life sentences.

The state should acknowledge the moral and constitutional imperative that juveniles have “diminished culpability and greater prospects for reform” in parole decision-making. The attorney general should stop defending the board’s practice of holding juvenile offenders to an adult standard in release hearings and the governor should instruct the Board of Parole to draft regulations requiring them to take the offender’s age into account in assessing whether the individual meets the release criteria.

Issa Kohler-Hausmann Associate Professor of Law at Yale Law School and Associate Professor of Sociology at Yale