Distinguishing ‘Incorrigibility’ From ‘Transient Immaturity’: Risk Assessment in the Context of Sentencing/Resentencing Evaluations for Juvenile Homicide Offenders

Abstract

n two recent cases, the United States Supreme Court abolished mandatory juvenile life without parole (LWOP; Miller v. Alabama, 2012) and held that the ban applies retroactively (Montgomery v. Louisiana, 2016). Pointedly, the Court suggested that juveniles should only be sentenced to LWOP when they are 'incorrigible' or 'irreparably corrupt.' In practical terms, this means juveniles should only be sentenced to LWOP if they are unlikely to desist from criminal activity. Although there are no measures of long-term risk for juveniles, making it difficult to predict which juveniles are incorrigible or irreparably corrupt, forensic mental health professionals are increasingly being called upon to offer opinions about the long-term risk of juvenile offenders in homicide cases. This article provides a framework through which forensic mental health professionals can approach such cases. Given research indicating that most juvenile offenders will naturally desist from criminal activity over time, we suggest the default assumption of forensic mental health professionals should be that any individual juvenile offender is also likely to desist. Any adjustment from this base-rate-informed assumption requires empirical justification—namely, the existence of factors associated with life-course persistent offending. Further, treatment amenability, protective factors, and the availability of effective interventions for reducing criminal risk should be considered.

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Keywords: Forensic Psychology; Homicide; Juvenile Delinquency; Risk Assessment; Criminal Offenders; Criminal Behavior; Life Span; Protective Factors; Risk Factors