In 1995, the term “superpredator” was coined by political scientist John J. DiIulio, Jr.1×1. Carroll Bogert & LynNell Hancock, The Media Myth that Demonized a Generation of Black Youth, The Marshall Project (Nov. 20, 2020), https://www.themarshallproject.org/2020/11/20/superpredator-the-media-myth-that-demonized-a-generation-of-black-youth [https://perma.cc/XD7S-39B4]. to describe an alleged wave of “brutally remorseless . . . youngsters who pack[ed] guns instead of lunches” and had “no respect for human life.”2×2. The Superpredator Myth, 25 Years Later, Equal Just. Initiative (Apr. 7, 2014), https://eji.org/news/superpredator-myth-20-years-later [https://perma.cc/8S8R-Q6SK] (quoting The “Superpredator” Scare, N.Y. Times: Retro Rep. (Apr. 6, 2014), https://www.nytimes.com/video/us/100000002807771/the-superpredator-scare.html [https://perma.cc/8BJT-R7WK]). The term seized on stereotypes of Black and Brown youth as violent and criminal and fueled a “tough-on-crime” reaction toward these youth.3×3. Bogert & Hancock, supra note 1. In courtrooms in the late 1990s, the superpredator myth hung over trials and sentencing hearings of juvenile defendants. As a defense lawyer who worked at that time said, the myth “had a profound effect on the way in which judges and prosecutors viewed . . . clients.”4×4. Id. (quoting Steve Drizin, juvenile defender in the 1990s). Recently, in State v. Belcher,5×5. 342 Conn. 1 (2022). the Connecticut Supreme Court held that a sentence in which the judge relied on the characterization of the defen-dant as a “superpredator” was illegal.6×6. See id. at 4. Relying on the materially false information test, and driven by concerns about racial bias and constitutional juvenile sentencing principles, the court concluded that the term was materially inaccurate. By demonstrating that the “superpredator myth” turned youth into an aggravating, rather than mitigating, factor, counsel for Belcher successfully showed that the sentencing judge relied on improper information — thus providing a potential strategy for challenging racially biased sentences more broadly.
On December 24, 1993, fourteen-year-old Kevin Belcher and a friend approached a woman unloading groceries in front of her apartment building, pulled out a gun, and told her to hand over her purse.7×7. State v. Belcher (Belcher I), 721 A.2d 899, 900 (Conn. App. Ct. 1998). She stated that her purse was upstairs, and Belcher led her at gunpoint to her apartment to retrieve it.8×8. Id. Once there, Belcher seized the purse and sexually and physically assaulted the woman.9×9. Id. Belcher was arrested and charged with kidnapping, sexual assault, robbery, and burglary.10×10. Id. at 900–01. Although he was a minor, Belcher was transferred to adult court.11×11. Id. at 901. The judge deemed him “not amenable to treatment in a juvenile facility.” Id.
A jury found Belcher guilty on all counts,12×12. See Belcher v. State (Belcher II), No. CV990367782, 2005 WL 648043, at *1 (Conn. Super. Ct. Feb. 17, 2005). and he was sentenced to sixty years in prison.13×13. State v. Belcher (Belcher IV), No. CR940100508, 2017 WL 4508623, at *2 (Conn. Super. Ct. Aug. 24, 2017). To determine Belcher’s sentence, the sentencing court reviewed a “presentence investigation report” that included Belcher’s school records, psychological reports, and intelligence tests.14×14. Id. at *2–3. In explaining his reasoning for the imposition of such a lengthy sentence, the sentencing judge recalled DiIulio’s work in characterizing “superpredators” as a “group of radically impulsive, brutally remorseless youngsters who assault, rape, rob[,] and burglarize.”15×15. Belcher, 342 Conn. at 10 (emphasis omitted). The judge additionally told Belcher he was a “charter member” of that group and expressed his belief that Belcher had “no fears” or “pangs of conscience.”16×16. Id. at 10–11 (emphasis omitted).
Belcher filed a motion to correct an illegal sentence in 2015, after spending decades in prison and unsuccessfully challenging his conviction twice.17×17. See Belcher IV, 2017 WL 4508623, at *1. Belcher first appealed his conviction in 1998, arguing that trying him after he had a hearing to adjudicate his removal to adult court violated double jeopardy. See Belcher I, 721 A.2d 899, 901 (Conn. App. Ct. 1998). This argument was rejected. Id. at 901–02. Belcher also filed a motion for a new trial on the basis of newly discovered evidence. Belcher II, 2005 WL 648043, at *1. This motion was denied. Id. at *4. Belcher challenged his sentence on three grounds: that it relied on inaccurate information; was disproportionate; and violated the Eighth Amendment as interpreted by Connecticut Supreme Court precedent. Specifically, in State v. Riley,18×18. 110 A.3d 1205 (Conn. 2015); see State v. Belcher (Belcher III), No. CR94100508, 2016 WL 2935462, at *1 (Conn. Super. Ct. Apr. 29, 2016). the Connecticut Supreme Court invalidated a seventeen-year-old’s sentence of one hundred years, finding that the trial court did not sufficiently consider the mitigating factor of youth, which, at the time, was thought to be required by the U.S. Supreme Court’s 2012 decision Miller v. Alabama.19×19. 567 U.S. 460 (2012); see Riley, 110 A.3d at 1217–18; Miller, 567 U.S. at 465 (holding that courts must consider the mitigating factor of youth before sentencing a child to life without parole). The Superior Court of Connecticut ruled in favor of Belcher, reaching only the claim based on Riley.20×20. Belcher III, 2016 WL 2935462, at *1. The court noted that the state did not argue that the sentencing judge “gave mitigating effect to the defendant’s young age and its hallmarks” and ordered a new hearing.21×21. Id. at *3. Before a new hearing could occur, however, the superior court vacated its own order and, in light of new Connecticut Supreme Court developments, reconsidered the Eighth Amendment claim.22×22. See Belcher IV, 2017 WL 4508623, at *1. The court relied on the Connecticut Supreme Court’s decisions in State v. Delgado23×23. 151 A.3d 345 (Conn. 2016). and State v. Boyd.24×24. 151 A.3d 355 (Conn. 2016); see Belcher IV, 2017 WL 4508623, at *1. In these cases, the Connecticut Supreme Court refined its interpretation of Miller’s requirements, holding that a Miller violation could be remedied by parole eligibility.25×25. Belcher IV, 2017 WL 4508623, at *1. Because Belcher would be eligible for parole after serving thirty years, the court dismissed his claim and went on to consider his inaccurate information and disproportionality claims.26×26. Id. Each of these was dismissed as well.27×27. Id. at *2, *4. For the disproportionality claim, the court found no disparity between the “gravity of the offense compared to the harshness of the penalty.” Id. at *2 (quoting Ewing v. California, 538 U.S. 11, 28 (2003)).
For the inaccurate information claim, Belcher argued that the sentencing court’s characterization of him as a “superpredator” was materially false.28×28. See id. at *3. The superior court found that Belcher’s claim must fail “for at least four reasons.”29×29. Id. at *4. First, the court determined that “superpredator” was descriptive and not a “fact.”30×30. Id. The usage of the term “is of a different character” than what is usually challenged under inaccurate information claims — things like mischaracterized past convictions.31×31. Id. Second, the sentencing judge had a “reasonable basis to rely” on the term because it was created by a professor at Princeton who had published his findings.32×32. Id. In both Belcher III and Belcher IV, DiIulio’s name was misspelled as “DiLulio.” Third, the court stated that it was reasonable for the sentencing judge to use the superpredator characterization because the evidence “amply supported the conclusion that [Belcher] . . . met that definition.”33×33. Id. Lastly, the court concluded the superpredator remarks were “just a gloss” and that the sentencing judge would have reached the same result had the superpredator theory been repudiated at the time.34×34. Id.
The Connecticut Supreme Court reversed and remanded. Writing for a unanimous court, Justice Mullins35×35. Chief Justice Robinson and Justices McDonald, D’Auria, Kahn, Ecker, and Keller joined the opinion. held that the superior court abused its discretion by dismissing the inaccurate information claim.36×36. Belcher, 342 Conn. at 4. The court applied a two-part test to determine whether the sentence was illegally imposed due to reliance on false information: assessing whether the information was “materially false or unreliable” and whether the sentencing judge “substantially” relied on it.37×37. Id. at 13 (quoting State v. Collette, 507 A.2d 99 (1986)). To conclude that the “superpredator” theory was materially false, the court considered the history of the term and its association with racial bias, stressing that the term was “baseless when it originally was espoused and has since been thoroughly debunked and universally rejected.”38×38. Id. at 16. For the second prong of the test, the court concluded that because the sentencing court’s remarks were “heavily directed at and shaped by the super-predator theory,” it was clear that the court substantially relied on it.39×39. Id. at 24.
The court then explained that the usage of the superpredator myth in Belcher’s case was “especially detrimental to the integrity of the sentencing procedure” because it both called into question whether Belcher would have received the same sentence if he were not Black and reversed the mitigating factor of youth.40×40. Id. at 16. Justice Mullins described how the myth transformed the “impulsivity, submission to peer pressure, [and] deficient judgment”41×41. Id. at 22. of youth from mitigating factors to aggravating ones contrary to Roper v. Simmons.42×42. 543 U.S. 551 (2005); see Belcher, 342 Conn. at 22. In Roper, the U.S. Supreme Court considered children’s relative immaturity a reason to give them less harsh sentences.43×43. Roper, 543 U.S. at 570. After invalidating Belcher’s sentence, the court remanded for resentencing.44×44. Belcher, 342 Conn. at 25.
The strategy taken by Belcher’s counsel can be useful for lawyers challenging the use of racial stereotypes in the sentencing of Black and Brown youth. Bringing a claim that a juvenile’s sentence with parole eligibility is unconstitutional under Roper and its progeny is difficult, if not impossible. So too is proving that a sentencing court relied on inaccurate information. However, by explaining how the “superpredator” myth was not only inaccurate, but also contravened the juvenile sentencing values espoused in Graham v. Florida,45×45. 560 U.S. 48 (2010). Miller, and Roper, Belcher’s counsel succeeded.
The Supreme Court’s decisions in Graham, Miller, and Roper expressed the general belief that when it comes to sentencing, children are different. In Roper, the Court held that it was cruel and unusual under the Eighth Amendment to sentence minors to death, resting its decision in part on three qualities unique to children: their relative lack of maturity and responsibility, their susceptibility to peer pressure, and their potential for growth and character development.46×46. See Roper, 543 U.S. at 569–70. In Graham, the Court extended this reasoning to hold that sentencing juveniles to life without parole (LWOP) for nonhomicide crimes was unconstitutional.47×47. See Graham, 560 U.S. at 82. And, in Miller, the Court found it cruel and unusual for states to have statutory schemes that mandated LWOP sentences for minors and thus foreclosed the consideration of the “juvenile’s ‘lessened culpability’ and greater ‘capacity for change.’”48×48. Miller v. Alabama, 567 U.S. 460, 465 (2012) (quoting Graham, 560 U.S. at 68, 74).
In theory, these cases could be read to create a general requirement that youth must be considered as a mitigating factor in all juvenile sentencing cases;49×49. See Amanda Huston, Jurisprudence vs. Judicial Practice: Diminishing Miller in the Struggle over Juvenile Sentencing, 92 Denv. U. L. Rev. 561, 573–81 (2015) (arguing that “Miller’s rationale . . . is applicable to all juvenile sentencing proceedings,” id. at 581). in practice, these cases are construed narrowly. The Connecticut Supreme Court has interpreted Roper and its progeny not to require consideration of “mitigating factors associated with a juvenile’s young age before imposing a sentence that includes an opportunity for parole.”50×50. State v. Boyd, 151 A.3d 355, 357–58 (Conn. 2016). Connecticut is not alone in its interpretation: many states have determined that parole eligibility cures an otherwise invalid life sentence.51×51. See, e.g., Brianna H. Boone, Note, Treating Adults like Children: Re-sentencing Adult Juvenile Lifers After Miller v. Alabama, 99 Minn. L. Rev. 1159, 1184–86 (2015) (discussing parole schemes in Michigan, Massachusetts, and Wyoming); Huston, supra note 48, at 601–02 (same for Colorado); Kelly Scavone, Note, How Long Is Too Long?: Conflicting State Responses to De Facto Life Without Parole Sentences After Graham v. Florida and Miller v. Alabama, 82 Fordham L. Rev. 3439, 3470–71, 3473–74 (2014) (same for Montana and Louisiana); Megan Annitto, Graham’s Gatekeeper and Beyond: Juvenile Sentencing and Release Reform in the Wake of Graham and Miller, 80 Brook. L. Rev. 119, 132–36 (2014) (same for Pennsylvania and California); The Editorial Bd., Opinion, Echoes of the Superpredator, N.Y. Times (Apr. 13, 2014), https://www.nytimes.com/2014/04/14/opinion/echoes-of-the-superpredator.html [https://perma.cc/DSC5-YDJQ] (same for West Virginia and Hawaii). Thus, raising a successful constitutional challenge to overturn a sentence offering the possibility of parole is, in many places, destined to fail. Indeed, as Belcher was eligible for parole, the Connecticut Superior Court dismissed his Eighth Amendment claim on these grounds.52×52. See Belcher IV, No. CR940100508, 2017 WL 4508623, at *2 (Conn. Super. Ct. Aug. 24, 2017); Reply Brief of the Defendant-Appellant at 7, Belcher, 342 Conn. 1 (No. 40884).
Successfully challenging the use of the superpredator myth without explaining how it contravenes these principles would have been difficult as well. Judges in Connecticut have significant discretion over what information they consider in sentencing hearings53×53. See State v. Eric M., 858 A.2d 767, 772–73 (Conn. 2004); State v. Martin M., 971 A.2d 828, 836 (Conn. App. 2009). : in terms of accuracy, information must only have “some minimal indicium of reliability.”54×54. Eric M., 858 A.2d at 773 (quoting State v. Huey, 505 A.2d 1242, 1246 (Conn. 1986)). Beyond reliability, the judge must also have “a reasonable, persuasive basis” for using the information. Id. Typically, generalized characterizations of the defendant are acceptable.55×55. See, e.g., State v. Salters, 222 A.3d 123, 130–31 (Conn. App. Ct. 2019) (holding that the sentencing court’s consideration of the defendant as an alleged gang member was acceptable); Martin M., 971 A.2d at 835–37 (holding that the sentencing court’s labeling of the defendant as a “sexual predator” and reliance on the perceived recidivism rates of sexual offenders was acceptable). Indeed, the Connecticut Supreme Court upheld the use of racialized characterizations in the sentencing of an adult as recently as 2021. In State v. Francis,56×56. 258 A.3d 1257 (Conn. 2021). the court held that a sentencing judge’s statements that “‘young men like [the defendant] . . . are involved in drugs’ and have ‘new cars,’ ‘jewelry,’ ‘money,’ and ‘attractive ladies,’”57×57. Id. at 1265. and characterization of these men as “macho,” did not show that the judge relied on materially false information.58×58. Id. at 1264. Although counsel for Ernest Francis argued that these descriptors should be placed in the “historical context” of the 1990s when there was “mass hysteria over so-called, and completely fictitious, youthful ‘super-predators,’”59×59. Reply Brief of the Petitioner-Appellant at 5, Francis, 258 A.3d 1257 (No. 20353). the Connecticut Supreme Court upheld Francis’s sentence.60×60. Francis, 258 A.3d at 1268. “Macho” is certainly connected to negative, racialized stereotypes, which the court recognized.61×61. See id. at 1266–67; see also José B. Torres et al., The Myth of Sameness Among Latino Men and Their Machismo, 72 Am. J. Orthopsychiatry 163, 166–67 (2002). But, while the justices expressed their concern that the comments were “inappropriate,”62×62. Francis, 258 A.3d at 1266. and clarified that “[g]eneralizations . . . based in pernicious stereotypes have no place in our judicial system,”63×63. Id. at 1267. they ultimately denied Francis’s claim based on a strict application of the materially false information test.64×64. See id. at 1265–66 (focusing, in part, on the fact that the defendant had sold drugs). It seems probable, then, that the result in Belcher would have been different had counsel not intertwined the use of racial stereotypes with constitutional juvenile sentencing concerns.
Yet counsel was able to demonstrate that the use of “superpredator” contravened juvenile sentencing precedent65×65. Reply Brief of the Defendant-Appellant, supra note 51, at 5–6. — although the sentence was not unconstitutional per se — and the Connecticut Supreme Court embraced this argument. As Belcher’s counsel explained, the superpredator label was a “distorted lens” that erased the “capacity for reform and rehabilitation particularly noteworthy in a juvenile defendant.”66×66. Id. at 22. The superpredator myth’s false image of Black boys as dangerous due to their “impulsivity, submission to peer pressure, [and] deficient judgment”67×67. Belcher, 342 Conn. at 9. reversed the typical reasons for leniency for youth: youth should be given lesser sentences for these very characteristics. While Belcher’s parole eligibility negated his constitutional claim, and the sentencing court’s construction of Belcher as a superpredator alone would not necessarily require the invalidation of his sentence, the combination of these two issues concerned the court enough to hold that Belcher’s sentence was imposed illegally.68×68. See id. (stating that the superpredator myth was “particularly harmful materially false information” that “cannot be reconciled” with Supreme Court precedent).
Given the ubiquity of racism in the juvenile justice system, arguments like that used in Belcher can be replicated by other lawyers fighting for reduced sentences of nonwhite defendants sentenced as children. For Black and Brown children, stereotypes, implicit bias, and a lack of empathy can fuel racially biased treatment and erase the reduced culpability associated with childhood.69×69. See Zenobia Bell & Ana Rasquiza, Nat’l Ctr. for Youth L., Implicit Bias and Juvenile Justice 14–18 (2014); Rebecca Epstein et al., Girlhood Interrupted: The Erasure of Black Girls’ Childhood 4–6 (2015), https://genderjusticeandopportunity.georgetown.edu/wp-content/uploads/2020/06/girlhood-interrupted.pdf [https://perma.cc/M84H-JSNV]; Barry C. Feld, The Transformation of the Juvenile Court — Part II: Race and the “Crack Down” on Youth Crime, 84 Minn. L. Rev. 327, 374–75 (1999); Kenneth B. Nunn, The Child as Other: Race and Differential Treatment in the Juvenile Justice System, 51 DePaul L. Rev. 679, 709–12 (2002); Robert J. Smith & Justin D. Levinson, The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, 35 Seattle U. L. Rev. 795, 811–12 (2012). For an account of the way stereotypes exacerbate the criminalization of Latino and Native children as well, see Jessica Nelson et al., Beyond Exclusionary Discipline: Re-Conceptualizing Connecticut’s School to Prison Pipeline to Address Root Causes 7–11 (2020), https://ctvoices.org/wp-content/uploads/2020/05/Beyond-Exclusionary-Discipline_Just-Research.pdf [https://perma.cc/NNU4-V4MU]. These stereotypes likely contribute to the fact that Black children “receive harsher treatment” than white children “at every stage of the criminal justice system, from the point of arrest to sentencing.”70×70. Amnesty Int’l & Hum. Rts. Watch, The Rest of Their Lives 39 (2005), https://www.hrw.org/sites/default/files/reports/TheRestofTheirLives.pdf [https://perma.cc/SXL7-E5S4]. In sentencing specifically, Black children are given lengthier sentences and are more likely to be sentenced as adults.71×71. Nunn, supra note 68, at 681–82; Feld, supra note 68, at 372–74. In 2017, for example, fifty-four percent of the children transferred to adult court were Black, even though Black youth made up only thirty-seven percent of all delinquency cases.72×72. Press Release, Wendy Sawyer, Prison Pol’y Initiative, Youth Confinement: The Whole Pie 2019 (Dec. 19, 2019), https://www.prisonpolicy.org/reports/youth2019.html [https://perma.cc/4ZXP-ERUT]. Additionally, Black children are ten times more likely to be sentenced to LWOP than white children.73×73. Amnesty Int’l & Hum. Rts. Watch, supra note 69, at 39. The superpredator myth likely contributed to these disparities: in the 1990s, the number of Black children admitted to adult prison increased, while that number decreased for white children. Id. at 15–16. Like Belcher’s counsel, lawyers representing nonwhite people convicted as children should assess if racialized characterizations of the defendant influenced sentencing. When characterizations suggest that the defendant was more culpable due to their youth, the Belcher strategy could help get the sentence reversed.
Although the strategy taken in Belcher could be replicated, the facts of the case may pose limitations. The sentencing judge explicitly stated that Belcher was a superpredator and that he believed Belcher had no remorse. In cases where the racial animus is less obvious, it could be more difficult to demonstrate how the stereotypes contravene Supreme Court juvenile sentencing doctrine. Furthermore, the basis of the term superpredator has been resoundingly debunked. In other situations, a court may reject the challenges if there is not strong enough evidence to demonstrate that comments in question are “materially false.”
Still, the criminalization of Black and Brown youth remains prevalent. Some commentators have described a “new” superpredator myth as Black youth are criminalized based on their alleged connection to gangs.74×74. See Alice Speri, New York Schools Gang Unit Pushes the Criminalization of Children, The Intercept (Feb. 13, 2020, 12:45 PM), https://theintercept.com/2020/02/13/new-york-city-schools-gang-law-enforcement [https://perma.cc/5L3W-JF5M]; Alex S. Vitale, Opinion, The New “Superpredator” Myth, N.Y. Times (Mar. 23, 2018), https://www.nytimes.com/2018/03/23/opinion/superpredator-myth.html [https://perma.cc/M89H-47HR]. This is analogous to the superpredator myth if youth are characterized as criminal because of their relation to their peers, as peer pressure is meant to be a mitigating factor in youth sentencing.75×75. The Illinois Appellate Court has considered gang affiliation when determining a youth’s influence from peers in LWOP cases. See People v. Perez, 162 N.E.3d 1007, 1018 (Ill. App. Ct. 2020); People v. Thompson, No. 1-18-0297, 2021 WL 321896, at *5 (Ill. App. Ct. Feb. 1, 2021). If a sentencing court uses gang affiliation as an aggravating factor when sentencing youth — even when the sentence leaves the possibility for parole — using the Belcher strategy may be helpful. Plus, the effects of the superpredator myth and the tendency to erroneously see Black children as more dangerous than white children are enduring.76×76. See Kim Taylor-Thompson, Opinion, Why America Is Still Living with the Damage Done by the “Superpredator” Lie, L.A. Times (Nov. 27, 2020, 4:00 AM), https://www.latimes.com/opinion/story/2020-11-27/racism-criminal-justice-superpredators [https://perma.cc/9G6A-T5UE]; The Editorial Bd., supra note 50. Given these new and ongoing stereotypes of Black youth, the Belcher strategy — explaining that a stereotype is materially false and contravenes the values espoused in Roper, Graham, and Miller — likely has a place in challenging racially discriminatory sentences.