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Note - “Be a Lie if I Told You that I Never Thought of Death”: Using Judicial Discretion to Consider Anticipated Early Death During Sentencing


Prevalent in “street” culture for generations, the idea that youth who are subject to daily violence internalize that chaos into an expectation of dying young is fairly new to social-legal settings. “Anticipated early death” has been advanced as a theory in recent years by researchers who argue that youth exposed to this violence and chaos early in their lives respond to these traumatic experiences by endorsing the belief that they will die early. As a result, youthful offenders who believe that they will die young are more likely to engage in risky and/or criminal behaviors both early in life and across their lifespan.

The juvenile legal system has been built upon the idea that youthful offenders are capable of change. This assumption is probably best exemplified by the line of cases surrounding the malleability of youth and the inappropriate nature of mandatory long-term punishments (i.e., the death penalty and life in prison without the possibility of parole) that do not acknowledge the potential for rehabilitation. Thus, juveniles are provided resources and presumptions not afforded to individuals in the adult system.

Youthful offenders who operate under the assumption that they will die young, however, may be over the age of eighteen and thus not eligible for these benefits. As such, judges should use their discretion to consider anticipated early death during sentencing for all youthful offenders. Furthermore, because anticipated early death can be conceptualized as a criminal thinking style—a way of thinking that increases one’s likelihood of engaging in criminal or risky behavior—it is something that can be targeted through therapeutic intervention with the purpose of reducing recidivism and promoting public safety.