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

, and | September 11, 2020 | Children and the Law

ABSTRACT
In 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.

Citation:
Fairfax-Columbo, Jaymes V. and Fishel, Sarah and DeMatteo, David, Distinguishing ‘Incorrigibility’ From ‘Transient Immaturity’: Risk Assessment in the Context of Sentencing/Resentencing Evaluations for Juvenile Homicide Offenders (June 1, 2019). Translational Issues in Psychological Science Vol. 5 Iss. 2 (2019) p. 132 – 142 , Available at SSRN: https://ssrn.com/abstract=3601182

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Jaymes V. Fairfax-Columbo

Drexel University

Jaymes V. Fairfax-Columbo is a member of the Department of Psychology at Drexel University. 

Sarah Fishel

Drexel University

Sarah Fishel is a 4th-year student in the JD/PhD Program. She received a BS with Honors in Psychology and a B.A. in Sociology from the College of William & Mary in 2016 before coming to Drexel. During her time at William & Mary, she co-founded a mentoring program bringing together students from William & Mary and residents at a local juvenile detention center, completed an internship at a residential behavioral health facility in Portsmouth, VA, and assisted in a research lab that worked with pregnant women during and following their incarceration. Sarah's research interests include the reentry process for former inmates, patterns of recidivism, and empirically based alternatives to incarceration. She is currently gaining practicum experience with Drexel’s Reentry Project.

David DeMatteo

Drexel University Thomas R. Kline School of Law

David DeMatteo is an Associate Professor of Psychology and Associate Professor of Law at Drexel University, and Director of Drexel’s JD/PhD Program in Law and Psychology. He received a BA in psychology from Rutgers University, an MA and PhD in Clinical Psychology from MCP Hahnemann University, and a JD from Villanova Law School. Dr. DeMatteo’s research interests include psychopathic personality, forensic mental health assessment, offender diversion, and drug-involved criminal offenders. His research has been funded by several federal agencies, state agencies, and private foundations, including the National Institute on Drug Abuse, Pennsylvania Department of Health, Pennsylvania Commission on Crime and Delinquency, Pennsylvania Department of Welfare, Laura and John Arnold Foundation, and the American Psychology-Law Society.

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