The BBA joined an amicus brief with a group of retired judges arguing that the existing ban on life without parole (LWOP) sentences for individuals under age 18, imposed by the SJC 2013 Diatchenko ruling, should be extended to “late adolescents” under age 20. First, science and experience have since demonstrated conclusively that cognitive abilities are still developing in this cohort of late adolescents, so all the arguments that led the Court to hold a decade ago that any LWOP sentence is unconstitutional as applied to minors are equally valid for their slightly-older counterparts. Second, allowing LWOP sentences for this group after an individualized hearing—an approach proposed by the Suffolk, Northwestern and Berkshire District Attorneys’ Offices—risked introducing unconscious bias into the process, thus exacerbating existing racial disparities, and would require a trial judge to do the impossible: discern which young defendants are incapable of rehabilitation at any age (“permanently incorrigible”) and should therefore be condemned to die in prison.
