I was recently asked to write a “white paper” draft for the California Catholic Bishops for possible voting on the issue of life-sentence without parole for juveniles. The United States Supreme Court, currently, is adjudicating two petitions from incarcerated prisoners from the State of Florida who were sentenced to life-sentences without parole when they were, respectively, thirteen and sixteen years old. Neither was guilty of homicide or a felony-murder crime, although they had committed armed robbery or rape. The Court will be determining whether life-sentence for a juvenile who has not committed a homicide or a felony-murder crime constitutes a disproportionately cruel and unusual punishment—by reason of age—under the Eighth Amendment to the United States Constitution. In 2005, a narrowly divided Court rules the death penalty for juveniles unconstitutional (Roper versus Simmons). In 2002, (Atkins versus Virginia), the Court also outlawed the death penalty for mentally disabled offenders.
Among the amici briefs in favor of the petitioners are supporting arguments against life-sentence without parole for juveniles from several Catholic organizations (The American Catholic Correctional Chaplains Association; the Archdiocese of Los Angeles—but, to my surprise, not from the U.S. Catholic Conference). Currently, 109 prisoners in the United States are serving life-sentences without parole for non-homicide offences, committed as juveniles. 77 of them are in Florida.
A number of states (Texas, Colorado) have, legislatively, recently rescinded life-sentence without parole for juveniles, even in cases which involved homicide or felony murder charges. In these two states, however, there are provisions for life sentence for juveniles which only allow a possible parole after 40 years in prison. A bill proposing a similar outlawing of life-sentence without parole for juveniles is now pending before the California Assembly. California has 239 prisoners who were sentenced to life-sentences without parole as juveniles. Nationally the number runs to 1, 755.
To some extent, the spike in life-sentences (for adults and juveniles) after the mid-1980’s (there are 140,610 prisoners presently serving life-sentences—41.095 without possibility of parole , compared to only 34,000 in 1984), came from a perceived rise in crime in the early 1990’s. States passed habitual offender laws (three or two strikes and you are out!), mandated mandatory minimum sentences which lessoned judicial discretion in sentencing and put sentencing decisions more in the hands of legislators and prosecutors. States passed laws which facilitated the transfer of juvenile offenders to adult courts.
Political rhetoric of the 1990’s, at times, referred to juvenile offenders as "super-predators" and mouthed slogans such as "adult crime, adult time." Every state permits life sentences for juveniles. Forty-five states allow life-sentences without parole for juveniles. In some cases of felony-murder, passive accomplices (e.g., "look-outs" in armed robberies) who had no idea a homicide was going to occur and did not directly wield any weapon have received life-sentences without parole.
Every other country has banned life-sentence without parole for juveniles. The argument against life-sentence without parole for juveniles parallels, closely, the argument of the majority in Roper versus Simmons. Conservative lawyers oppose extending Roper versus Simmons in a way which precludes life-sentence without parole for juveniles. They argue, “death” is different. But Roper versus Simmons also argued that children are different.
Juveniles have not developed in the same way as adults. They are more given to impulsivity, recklessness and are more susceptible to peer pressure. They are inherently less responsible—which does not mean entirely un-responsible! Neuroscientists have shown that brain regions and systems responsible for foresight, self-regulation, risk assessment, responsiveness to social influences continue to mature until early adulthood.
Minors need to be considered differently than adults in sentencing due to differences in brain development, emotional maturity and their greater capacity for rehabilitation. As Alison Parker, Deputy Director of the U.S. Program at Human Rights Watch has put it:
“Children are different than adults. They need to be punished for serious crimes but the punishment they receive needs to acknowledge their capacity for rehabilitation and life without parole does not do that."
Paradoxically, prisoners sentenced as juveniles to life-sentence without parole are actually less eligible for rehabilitation programs, for limited spaces in GED programs, substance abuse programs etc. A Human Rights Watch survey of California prisoners sentenced to life without a parole as juveniles and, at 18, sent to maximum security prisons, found 59% reported having undergone physical or sexual assault. Nearly half of those surveyed said that they could not attend various educational or rehabilitation programs offered in prison. They have a lower priority for inclusion in limited-space programs than prisoners who are eligible, eventually, for parole.
One such prisoner told Human Rights Watch interviewers: “It makes you feel that life is not worth living because nothing you do, good or bad, matters to anyone. You have nothing to gain, nothing to lose. You are given absolutely no incentive to improve yourself as a person. It is hopeless.” Without much doubt, many of the adolescents sentenced to life without parole have in common disturbing prior failures of their families, police, family courts, child protection agencies, foster-systems and health care providers to treat and protect them.
The Florida judge who sentenced 16 year old Terrance Graham to life-sentence without parole claimed that the youth was simply unredeemable, beyond rehabilitation or deterrence and, thus, incapacitation was the only option. Lawyers and criminologists have argued, however, that it is very difficult, if not impossible, in the case of juveniles, to discriminate between those who can turn their lives around and those who are, perhaps, not really open to treatment. As the US bishops noted in their thoughtful 2000 Pastoral Letter, Responsibility, Rehabilitation, Restoration: “Not all offenders are open to treatment but all deserve to be challenged to turn their lives around." In that same letter, the bishops noted a larger issue of failures in our penal system: “The status quo is not really working—victims are often ignored, offenders are often not rehabilitated. Many communities have lost their sense of security”. I was mindful of these failures as I prayed last week for a recent inmate at San Quentin Prison who hung himself his first day of incarceration. The Catholic chaplain asked our prayers for not only the young man but the failed system of prisons.
If I were going to make a prediction about the present case before the Supreme Court, I would predict a narrow 5-4 decision in favor of the Florida petitioners, although the Court has been chary about overturning state sentences not involving homicide (having only once clearly done so in its 1983 Solem decision). But even if the Court decides it is, technically, still constitutional, it remains inhumane and, in Catholic social thought, immoral.
John Coleman, S.J.