• Kieya Simpson

New Legislation to Address the Sentencing of Juvenile Offenders, Leaves Many Unsatisfied


“David Bailey walks free today without having served his full sentence while we as a family serve the life sentence that he inflicted on us. I think often of all the other victims that will have to endure what our family suffered over the last year as a result of the Incarceration Reduction Amendment Act (IRRA). We can all agree that the criminal justice system needs to be reformed but not at the expense of the true victims of violent crimes.” These words come from Ms. Wanda Harrell, the sister of deceased Kevin Harrell. Kevin Harrell was one of two young men shot and killed by seventeen year-old David Bailey during a double homicide after a minor dispute outside of a D.C. nightclub in 1994. Harrell’s family members were outraged to discover that after serving twenty-four years of his thirty-five year sentence, pursuant to the IRAA, Bailey petitioned to have his remaining sentence reduced.

In 2012, the Supreme Court ruled in Miller v. Alabama (and Montgomery v. Louisiana, which made it retroactive), that the Eight Amendment’s prohibition against cruel and unusual punishment forbids the mandatory sentencing of life in prison without the possibility of parole for juvenile homicide offenders. The Court’s ruling reflects its consideration of the neuroscience findings that the brain is not fully developed until age twenty-five. Therefore, youth offenders cannot be held to the same culpability standard as an adult. Based on this groundbreaking decision by the Supreme Court, many states around the country began implementing legislation that would regulate sentencing for juvenile offenders convicted of homicide. According to The Sentencing Project, twenty-three states and the District of Columbia have banned life sentences without the possibility of parole for juveniles.

In response to the changing law in the area of juvenile offenders, the District of Columbia Council passed D.C. Law 21-238, more commonly known as the Comprehensive Youth Justice Amendment Act of 2016 (“CYJAA”). One section of the CYJAA titled the “Incarceration Reduction Amendment Act of 2016” established a process for individuals who have been “sentenced for D.C. Code offenses as juveniles, have served twenty years in prison, and have not yet come up for parole, to petition the D.C. Superior Court to have their sentences reviewed.” If a court decides to grant a juvenile meeting these qualifications a resentencing hearing, the judge evaluates whether the inmate has made an effort to better themselves behind bars by taking advantage of educational options and staying out of trouble. Ultimately, the court can release the inmate, keep them in prison but lessen their sentence, or reject the petition.

Most recently, D.C. Councilmember Charles Allen introduced The Second Look Act of 2019, which will give violent criminals (including rapists and murderers) an opportunity to reduce their sentences after only serving fifteen years of their often lengthier sentences and will expand eligibility to adults who committed their crimes before the age of twenty-five. However, the proposed expansion not only drew criticism from the families of victims, but the legislation also led to open criticism from Federal prosecutors. For example, Jessie K. Liu, the U.S. Attorney for the District, said that “laws and amendments were being passed too quickly and did not give enough time to determine how well those who have been released were adjusting to life outside prison.” Ms. Liu seemed most concerned with whether the initial IRAA legislation has proved to be successful concerning the seventeen individuals who have been released or had their sentences reduced. She believed that there should be more time to study IRAA’s impact before expanding the legislation.

Councilmember Allen countered her concerns by explaining that none of those released have been rearrested, some are employed (others are seeking jobs), and many are involved in youth groups to deter violence within the city. In addition, Councilmember Allen and Ms. Liu appear to have differing perceptions as to whether the expansion would require judges to consider the actual crime itself in determining whether an individual should be granted resentencing. Based on the analysis on DOJ’s website, the legislation removed “the nature of the offense” from the factors that a judge must consider. However, Councilmember Allen insists that judges can consider the crime itself, but the judge should not determine if the crime was too heinous to warrant a resentencing.

During David Bailey’s 2018 resentencing hearing, prosecutors pointed to fights Bailey had with other inmates during his incarceration as evidence that he was not a reformed individual. The victims’ families expressed their emotional trauma caused by the death of their loved one. And a forensic psychologist testified that Bailey, now forty-two, was no longer a danger to other members of society. The judge disagreed with the government, modified Bailey’s sentence, and he was released from confinement on New Year’s Eve.

Stories like Mr. Bailey’s are not unique, and there will continue to be a much needed dialogue surrounding resentencing guidelines for juvenile offenders. Legislators, judges, and prosecutors will all have to grapple with the ultimate goals of our criminal justice system and what an ideal result looks like. Current cases tend to show that a balancing of all aspects of our justice system, do not always produce results favorable to all who are involved.


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