Saturday, November 14, 2009

The Young and the Reckless

The Young and the Reckless

by Elizabeth S. Scott & Laurence Steinberg
The New York Times
Friday, November 13, 2009

ON Monday, the United States Supreme Court heard oral arguments in two cases that ask whether sentencing a juvenile to life in prison without the possibility of parole is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.

Those who hope the court will ban this sort of sentencing point to the 2005 decision in Roper v. Simmons, in which the court abolished the juvenile death penalty. They believe that the logic the justices applied in Roper to exclude minors from capital punishment should extend to life without parole as well.

Those who hope the justices will retain life sentences for juveniles argue that “death is different,” and that the court should exercise restraint, as it typically does when reviewing non-capital sentencing decisions for fairness under the proportionality principle.

Certainly, death is different. But the sentence of life in prison without parole is also different from even lengthy conventional sentences; it is a judgment that an offender will never be fit to rejoin civil society, however long he lives. This punishment may be suitable for adults who have committed terrible crimes, but it is never a fair sentence for a juvenile, whose character is unformed and whose involvement in crime reflects the immature judgment of adolescence.

A crucial lesson of the Roper case is that the developmental differences between adolescents and adults are important under the Eighth Amendment, as they are in other areas of constitutional law. In deciding to end the juvenile death penalty, the court repeatedly emphasized the relative immaturity of minors, even at age 17, as compared to adults — a point that is well established in behavioral research and finds growing support in brain science.

Writing for the majority in Roper, Justice Anthony Kennedy observed that juveniles’ impulsivity, recklessness and susceptibility to peer pressure made them inherently less responsible than adults. Justice Kennedy also noted juveniles’ potential for rehabilitation, because their personality and character traits are less fixed than adults.

In the years since the Roper ruling, research on adolescent brain and behavioral development has provided additional support for Justice Kennedy’s observations. There is now a consensus among neuroscientists, for example, that brain regions and systems responsible for foresight, self-regulation, risk assessment and responsiveness to social influences continue to mature into young adulthood. This evidence that adolescents are psychologically and neurologically less mature than adults should be important in deciding how to punish their criminal acts.

In Monday’s oral argument, the justices did not question the proposition that juveniles generally are psychologically less mature than adults. The debate focused instead on whether the mitigating trait of immaturity justified a categorical exclusion of juveniles from the sentence of life without parole.

Some justices argued instead that age and maturity should be considered in sentencing on a case-by-case basis. But this approach was rejected by the court in Roper — and it should be rejected here as well. As Roper recognized, even psychological experts are unable to distinguish between the young person whose crime reflects transient immaturity and the rare juvenile offender who may deserve the harsh sentence of life without parole. If experts can’t reliably make this determination, then it seems unlikely that juries and judges would be able to do much better.

The two Florida offenders whose cases will be decided by the court differ in age and in their offenses: Terrance Graham was sentenced to life without parole for a probation violation involving a house break-in at age 17, while Joe Sullivan was convicted of sexual assault at age 13.

It is possible that the court will treat these two cases differently. But in both cases, the lower court decisions should be struck down. For a minor to be confined in prison for life with no possibility of ever having the opportunity to demonstrate that he should be allowed to rejoin society is an egregious violation of the Eighth Amendment, especially for a crime in which no life was lost.

Such a sentence offends “the evolving standards of decency that mark the progress of a maturing society,” the court’s announced standard for reviewing state punishment under the Eighth Amendment. Indeed, in our opinion, life without parole is never a fair sentence for a juvenile, even in a murder case.

There is no question that teenagers who commit serious crimes should be held accountable and punished, and that society must be protected from young people who are violent and dangerous. But studies show that the vast majority of juveniles who commit crimes — even very serious crimes — grow up to be law-abiding adults, and that it is impossible to predict which juvenile offenders will become career criminals.

Absent an ability to do this, and in light of what science tells us about the capacity for adolescents to change, it makes no sense to lock up any young offender and throw away the key.

Elizabeth S. Scott, a professor of law at Columbia, and Laurence Steinberg, a professor of psychology at Temple, are co-authors of “Rethinking Juvenile Justice.”


Tuesday, November 10, 2009

U.S. Supreme Court Hears Oral Arguments About Juvenile Life Without Parole (JLWOP) Sentences

Yesterday the U.S. Supreme Court heard oral arguments in the cases of Sullivan v. Florida, No. 08-7621 and Graham v. Florida, No. 08-7412. In both cases juveniles received sentences of life in prison without parole (LWOP).

Their attorneys argued that such a sentence unfairly condemned adolescents to die in prison and rejected any hope that they could change and could be rehabilitated.

You can read or download the oral arguments that were held in both cases by visiting the following two links.  If you know a prisoner who was sentenced to LWOP when s/he was a juvenile please print a copy of the transcripts and share it with them.

Sullivan v. Florida, No. 08-7621 Oral Argument Transcript 11-9-09

Graham v. Florida, No. 08-7412 Oral Argument Transcript 11-9-09

Monday, November 9, 2009

"Juvenile Life Without Parole: The Potential for Progress" by Nezua

Juvenile Life Without Parole: The Potential for Progress

By Nezua

The coming Supreme Court term may see the United States move closer to its ideals of justice, or remain stubbornly locked in last place in at least one area—how we treat the smallest and weakest among us. Of all nations in the world, the United States of America is the last to ban sentences that require children to die in prison for crimes committed while young. Additionally, aside from Somalia, the USA stands alone in refusing to ratify Article 37 of the U.N. Convention on the Rights of the Child (CRC). Were we to do so, the possibility of parole would have to be given to children.

On the 2008 campaign trail, when asked about the CRC, then-candidate Obama said, “It is embarrassing to find ourselves in the company of Somalia, a lawless land.” He went on to promise that “I will review this and other treaties and ensure that the United States resumes its global leadership in human rights.”

Two cases are currently before the Supreme Court that afford our nation the opportunity to right this wrong and join the modern world. Sullivan vs. Florida and Graham vs. Florida will require the Supreme Court to rule on whether life sentences for juveniles that preclude the possibility of parole (JLWOP) are, in fact, constitutional.

As a nation, we move forward bit by bit. At times we take large strides to correct a slow pace. The issue of Juvenile Life Without Parole is an area that now demands a second look. One day soon, the idea of sentencing children to die in prison without even the possibility to redeem themselves will seem as bizarre as those laws that barred women from voting.

In fact, it was only in 2005, in Roper vs. Simmons, that the Supreme Court finally ruled the juvenile death penalty was unconstitutional. In arguing, the text describes a paradigm that informs legal reasoning in US law and specifically the Eighth Amendment’s barring of cruel and unusual punishment. It does this by consulting “objective indicia of consensus,” or signs in society or practicing of law that certain punishments or rulings or situations are no longer deemed accepted by the social body. The court need not see a definite declaration of as much, it infers this from many indicators.

A simpler way to illustrate this dynamic would be to say given time, the human being grows and evolves. A society is nothing more than a collection of human beings, and as such, evolves. A wise law accounts for the progress a society is making by embodying its current morality or lean toward new mores.

We need only look to our recent past to see examples. What is reasonable at one time to a person, or a nation of people (e.g., child labor, women as property, right to own slaves) can later be understood to be (and have always been) unreasonable or unjust. In general, we forgive a society for being imperfect (as people are imperfect) though we demand it improve at all times.

All apparent indicators in our society today imply that people change over time. That the human condition is not sealed in childhood, but of a developing and transient state. We speak to the young often, reminding them they most likely will look back and see things very differently, such is the change that a human mind and heart travel on the path to adulthood. It makes sense that this understanding would be codified in the sentencing of minors.

Today, parole exists for adults. It is a given that a grown person can see the error of their ways and have changed over time, or simply grow to be something better than they were. Or at least merit a second chance. But aren’t children even more likely to change over time than an adult who has already grown through his or her most malleable and fluid phases of mental and emotional development? And who is more deserving of a second chance than a child? None of this is to say every child sentenced to life in prison would or should walk free. The possibility of parole is just that: possibility. The allowance that a person is not a static thing. A hope for a human being to hold on to while in the hell that prisons are. A reason for them to live, and live well.

To hold that juvenile life without parole sentences are just, one would also have to exclude children from this possibility of potential to change over time. To hold that juvenile life without parole sentences are fair, we also must consider those people—specifically young people—who break a law to be of a type of human unlike the perpetually law-abiding and thus subject to a separate morality. These types of notions on criminal nature was once prevalent in the US in the late nineteenth and early twentieth centuries, when doctors and scientists of the era went to great lengths to attempt a codification of forehead measurements or family histories to make a case for criminality being something that marked one apart from the rest of the species. It was a gross and unenlightened view that aided the concurrent eugenics practices of the day. Clearly we have moved beyond the thinking of those times.

Another troubling aspect of the lack of any possibility to redress a life sentence is how people of color are disproportionately affected by so many aspects of law, from who gets stopped more, searched more, and shot more, to sentencing. In the US, African American children are actually ten times more likely than white children to receive a life without parole sentence. In California, the ratio is even more striking, at an egregious 20 to 1. When it comes to Latinos, half of the inmates incarcerated in federal prison have no previous criminal record, are least likely to be both violent and nonviolent recidivists. At the same time, Latinos are less likely overall to be given parole or probation than non-Latinos! These facts all add up to a powerful and destructive form of institutionalized racism. Given we understand those iniquities in our justice system exist and have been documented, are we comfortable with a life sentence in prison for minors, without even the possibility of parole one day? Doesn’t this mechanism resemble a giant tax-payer-funded killing machine aimed at one part of the population?

Finally, what of those who are innocent of the crimes for which they have been accused, and wrongly convicted? A terrible nexus of race and law and injustice frame the case of Efrén Paredes, Jr, a Latino honor student wrongfully convicted at 15 years old of a murder and armed robbery that others have already plead guilty to being involved in. Paredes was convicted and given two life sentences on entirely circumstantial evidence in an one of the US’ top 25 most segregated towns by a nearly all-white police department, court, and jury. Parades’ innocence is maintained worldwide and an effort to free him has been enjoined by activists, authors and experts like world renowned wrongful convictions expert Paul Ciolino, as well as the National Lawyer’s Guild (NLG). Can we truly look at the horror that receiving such a sentence would be to an innocent person and yet insist it makes sense in 2009 to make the possibility of parole something one needs to grow into, like the right to drink? To offer it to adults, but to withhold it from children?

You can help push back against injustices like this. Please take a moment and sign the petition to show your support not only for Efrén’s release, but for the over 2,500 prisoners sentenced to life without parole when they were juveniles. In addition to the myriad holes in the case against Efrén, in September of this year the Berrien County prosecuter who defended the county’s case against Paredes claiming police do not commit misconduct has had to retract those words. Corruption has been exposed in the Berrien county police department’s Narcotics unit, and according to David Robinson, a former Detroit police officer turned attorney, “Someone was asleep at the switch in terms of administrative responsibility to operate the police department.” In his estimate, police misbehavior has gone on “over a significant period of time.”

Surely any reasonable mind understands when humans come together and interact in systems guided by even the most noble intent, injustices will occur. As a principle in general, this is inarguable. To drag out a rather stale cliché and apologize for waking it, “that’s why they put erasers on pencils.” And sometimes this means leaving room not only for the mistakes of the convicted, but for the mistakes that the system—being but system of imperfect persons working together—will inevitably make.

Giving children convicted of life sentences the possibility of parole is simply what a modern society provides itself so that it may maintain the belief that it would never purposefully and unjustly put a child to death in a big, locked box.

May the Supreme Court rule the same way.

Tuesday, November 3, 2009

"Don't Give Up On the Kids" by R. Dwayne Betts

Don't Give Up On the Kids

Supreme Court should reject life without parole for juveniles, says one who knows the system

by R. Dwayne Betts
The Baltimore Sun
November 1, 2009

A life sentence begins with Rashid's name.

I can't walk away from the first time I looked into his 15-year-old eyes, the eyes of someone close to my age, and knew he was sentenced to die in prison. When I met Rashid, his voice still carried the cracks and high notes that signaled adolescence, and his smooth face had never felt a razor. The same signs that belied my youth belied his. We were at the Southampton Receiving Center in Virginia, waiting on a bus to take us to prison.

R. Dwayne Betts served nine years in prison for his role in a carjacking. During that time, he became a voracious reader  and writer. His first book, A Question of Freedom, is drawing critical praise.No fewer than a dozen of us were Rashid's age, all with peers at home waiting on driver's licenses, graduations and proms - while we waited for the morning that would lead us to a prison cell. Rashid's time was legend: three life sentences with no chance for parole. It meant he awoke each morning knowing he would one day flatline within arm's reach of a cell.

I looked at him, and the judge's voice echoed in my head: "Are you aware your charges carry a life sentence?" Rashid wasn't old enough to drive, vote or serve on a jury of his peers - but he was old enough to walk out of a courtroom with a sentence that ends in a casket. After I met Rashid, my nine-year sentence for carjacking seemed like a gift.

Five years after my own release from prison - and months after delivering a commencement speech at the University of Maryland's graduation, speaking moments before CIA Director Leon Panetta - I found myself on an American Bar Association panel with lawyers and psychologists. A woman in the audience asked me what I thought should be done to a child who commits the kinds of crimes that end with life without the possibility of parole; I misheard her question and kept thinking that she had asked what I would do or say if the victim had been my family member.

As I began to answer her question, I thought about Rashid, and about how I couldn't escape the nightmare of being in a closed cell. I thought about my relatives, and how in my family tree there were both victims of violence and perpetrators. I thought about the judge reminding me of the life sentence I faced. And then I asked myself: What would I want if the victim were my daughter, or my sister? In my head there were two horrors, and I realized that the horror of life in prison and everything it means doesn't make right the horror of crimes I can't begin to imagine.

I told the woman that the justice system was not created to respond the way a family member would. We ask our justice system to do more than just act on impulse. We ask it to stand for more than vengeance. A system that didn't believe in the rehabilitation of young people would have left Alan K. Simpson a statistic and not given him room to mature to the point where he could become a United States senator. Charles S. Dutton wouldn't be a renowned actor. Many nameless men and women who are productive members of our society would still be in prison cells.

On Nov. 9, the U.S. Supreme Court will hear oral arguments in Sullivan v. Florida and Graham v. Florida, cases in which juveniles were sentenced to life without parole for non-homicide offenses. The court will decide whether such sentences are constitutional. I, along with a number of former juvenile offenders - including Mr. Simpson and Mr. Dutton - filed a friend-of-the-court brief urging the justices to give young offenders the opportunity to have their sentences reviewed later.

Sixteen years doesn't prepare you for much. Fifteen years prepares you for even less, and I remember what Rashid's eyes looked like the day he walked to my cell door asking who he should or shouldn't let be a friend to him. He was a boy in a jungle and I, only a year older, was playing at being a man. Fifteen years doesn't prepare you for prison, and it doesn't prepare you to understand just how lasting scars can be.

As teenagers, our lives were impulse and reaction. Our lives were filled with uncertainties and the insanity around us, and all we ever wanted people to know, after we'd walked out of a courtroom, was that we could be more than our crimes, one day - that rehabilitation is real. All we wanted was to believe that our lives could be more than a series of cell doors.

R. Dwayne Betts lives in Prince George's County and is the author of "A Question of Freedom." His e-mail is


Updated November 13, 2009

New CNN video about Dwayne Betts.  In "What Matters", Fredricka Whitfield reports on a former prison inmate, Dwayne Betts, and the positive changes he is making in his community.

Monday, November 2, 2009

"Myths of Get-Tough Law" by Professor Jeffrey Fagan

Myths of Get-Tough Law

by Jeffrey Fagan
St. Petersburg Times
Monday, November 2, 2009

Florida Attorney General Bill McCollum is defending the state's life without possibility of parole sentences for 13- and 16-year-olds against constitutional attack. But this isn't the first time McCollum has made history in the politics of juvenile justice. As a member of Congress in the 1990s, he promised the United States a "coming storm" of superpredators as a result of a population surge of kids from fatherless homes.

His 1996 warning was a world-class mistake. Juvenile homicide arrests promptly dropped in the United States by half. Yet anyone who thinks that a catastrophic statistical error like a phony crime wave would slow down McCollum needs to think again. In his brief before the Supreme Court in Graham vs. Florida, a constitutional challenge to laws permitting life sentences without the possibility of parole for very young minors, the attorney general now asserts that Florida's 30 years of get-tough legislation are the reason juvenile crime rates have fallen since the mid 1990s.

But this month's claim for deterrence is as phony as last decade's crime scare.

After mentioning a wide variety of Florida legislation after 1980, McCollum's brief says "these deliberative and focused strategies worked: violent crime rates plummeted from their 1990s highs both nationwide and in Florida." The statistical case he presents for cause and effect is that "serious violent offenses committed by juveniles aged 12-17 declined 61 percent from 1993 to 2005 nationwide" while "the rate of juvenile crime in Florida fell 30 percent from 1994 to 2004."

On its face, McCollum's claim suggests that youth crime in Florida declined more slowly than it did elsewhere. This is an odd endorsement for the state's tough juvenile sentencing laws.

The next thing that is remarkable about the state's position is that it presents no evidence that sentencing policies produced fewer crimes in the Sunshine State or anywhere else. The post-1980 legislation in Florida that McCollum embraces was also in place when Florida homicide rates shot up in the late 1990s, but his brief makes no assumptions that the harsh laws were the cause of Florida's bad news in that decade. Why, then, assume that any decline that happens at any time after the new laws passed was evidence that the laws worked?

Indeed, the Florida brief provides evidence that the state's legislative frenzy may actually be slowing down efforts at crime control. By McCollum's own calculations, the 30 percent juvenile crime decline in Florida is only half the more than 60 percent drop in the rest of the country. If these statistics are genuine indications of the impact of legislation, the "deliberative and focused strategies" in Florida have caused the state's juvenile crime reduction to badly trail the national average during the same time period. Using McCollum's data the way he is trying to use them, the real question is what is Florida doing so badly that its crime trends are only half as good the rest of the country?

Of course, tracing aggregate crime trends over long periods with no controls for other influences on crime is a silly way to test the impact of a particular sentencing policy. Real evidence requires sensitive measurements of the specific provisions of a criminal punishment. In the case before the Supreme Court, the policy McCollum is defending is a law that allows young teens to be sentenced to life imprisonment without possibility of parole after criminal convictions. The true test of the effectiveness of this kind of law is whether states that provide this eternal imprisonment for juveniles experience lower proportions of violent crime among very young offenders than states that do not allow juveniles to suffer life without parole.

Our search of FBI crime totals for the distinctive patterns that would happen if the prospect of life without parole scared off juveniles not deterred by standard life sentences comes up empty. We find no evidence that any of the get-tough laws such as Florida's law produced significant crime declines among young teenagers in Florida or anywhere else. The young groups that Florida locks up forever do not make up a smaller proportion of violent crime in Florida and the other life without parole states than in the states that don't use life without parole for juveniles. This is where the tell-tale fingerprints of life without parole deterrence would be visible, but it doesn't happen. As extra prevention, juvenile life without parole is useless.

In a way, McCollum should be relieved that our careful analysis shows the life without parole policy has no effect. Taking the statistics presented in his brief seriously would suggest that Florida's celebrated crackdowns were reducing the crime decline benefits that other states are enjoying. The only bad effects we can demonstrate from Florida's brief in the Graham case are on legal argument and statistical logic.

Jeffrey Fagan is a professor of law and public health and director of the Center for Crime, Community and Law at Columbia Law School. Franklin E. Zimring is a professor of law at the University of California, Berkeley School of Law.