There. I've just saved the U.S. Supreme Court the trouble of deliberating about whether the practice -- which is singularly American, by the way -- of sentencing juvenile offenders to life without parole (LWOP) for non-lethal crimes violates the 8th amendment prohibition against cruel and unusual punishment.
At the risk of sounding flippant, it is genuinely inconceivable to me that this is even a debatable issue, let alone one that must be heard by the Supreme Court. What is more, not only will the constitutionality of juvenile LWOP sentences be debated by the High Court, this issue is already being heralded as an important test for newly-appointed Justice Sonia Sotomayor:
[Juvenile LWOP is] an American phenomenon, one the Supreme Court is set to reconsider in the fall term that opens Oct. 5. At issue is whether it is cruel and unusual punishment to imprison a minor until he or she dies when the crime does not involve murder....It is difficult for me to articulate how angry that last passage -- and its logical implications -- makes me. I often talk in my classes about how politically poisonous the "soft-on-crime" label is, and about the extent to which it is disproportionately applied to liberal and/or Democratic politicians, though I rarely have a concrete example of such alignment. Yet here we have the LA Times coming right out and equating conservatism with "tough-on-crime" measures and inferring that liberalism encompasses the opposite perspective (read: "soft-on-crime"). What infuriates me most about that false dichotomy is that we know based on sound empirical evidence that "tough-on-crime" measures (e.g., juvenile transfer, mandatory minimum sentences, three strikes, et al.) often are woefully ineffective (not to mention expensive and, in some cases, actually increase recidivism risk). But liberal (or any other) opposition to these policies is not labeled "sensible-about-crime," but instead gets hit with that deadly "soft-on-crime" label, so that what should be a serious debate about very serious policies devolves into a "good guys/bad guys" battle over who is actually for, you know, safer streets. (Hint: it's not the candy-ass, pinko lefties.)
The question will be an early test of whether Justice Sonia Sotomayor, a former prosecutor, will align herself with the court's tough-on-crime conservatives or join with its liberals to strike down prison policies perceived as going too far.
Just when I thought my anger had reached its crescendo, I kept reading:
Florida leads the nation in sending teenagers to prison for life with no possible parole for crimes such as burglary, assault or rape. It has at least 77 such inmates. California and six other states also have at least one.That's right. Screw kids' constitutional rights -- we want our tourism dollars.
"This is a hidden group. They don't get a lot of attention because there was no homicide," said Paolo Annino, a law professor at Florida State University who has compiled national data on these prisoners....
In defense of its life-in-prison policy, Florida's lawyers have pointed to several deadly attacks on European visitors carried out by young criminals.
These violent incidents were "threatening the state's bedrock tourism industry," Florida's lawyers said in the opening paragraph of their brief to the Supreme Court in the Graham case.
P.S. I want to be clear about one thing: I don't mean that the LA Times writer personally is equating conservatism with the "tough-on-crime" stance, but rather is reporting about that relationship as if it is commonly accepted, which I believe it is. Obviously the writer says nothing about liberalism being "soft-on-crime" -- in fact, he states that liberal opposition stems from policies that are perceived to "go to far" -- but the problem is that this is how the debate plays out in public discourse.
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I think an important issue to consider here which can't be divorced from the debate is whether one considers it "cruel and unusual punishment" to sentence a juvenile to LWOP for murder/homicide. As Gottfredson and Hirschi once pointed out, the difference between homicide and a lesser crime (like say robbery or aggravated assault)is often just that the criminal was not successful. So say a juvenile brutally beats, rapes, and shoots a victim and walks off thinking the victim is dead, but the victim survives. Is the intent in this case any different than homicide? I think not! The juvenile just wasn't successful in his/her intent. So the penalty should be consistent in such a case. If we believe that LWOP is an option for juveniles in homicide cases (and I do) then we have to make room for LWOP in cases such as the one I just described.
As far as the whole "tough on crime" vs. "soft on crime" dichotomy, two concerns that I take issue with for those who fall back on saying they're not "soft on crime" but instead "smart on crime" is that: (1) the evidence that they provide against "tough on crime" policies is often shaky, based on methodological nuances, and is not nearly as conclusive as is purported, and (2)ineffectiveness is often viewed in instrumental terms. Let me briefly expound upon the second point with an example. I think that the bulk of the evidence tends to lean towards the conclusion that the death penalty does not have a significant general deterrent effect, but I don't care. The debate over the death penalty is not one of instrumental purpose to me. It's a moral one. Obviously there are different moral perspectives. I personally view it as morally required for a state to uphold the death penalty, regardless of if it deters others or is a costly option. We have to be careful about mixing instrumental and moral concerns when it really is one or the other that is the issue at hand. It appears to me Dr. Huginkiss that the juvenile LWOP issue is a moral one to you. Try to think of it this way...would you change your mind on your view of juvenile LWOP if a careful review of the evidence revealed that it significantly and dramatically served as a general deterrent for others?
I think even us who make a career out of evidence, research, and science still believe in retribution as goal of our correctional system. We can debate the weight that retribution should be given, but we all still believe in it when it comes right down to it. The example I love to give is this. Suppose we discovered a 6 month treatment program that offered a 100% guaranteed cure for all criminals without exception. Would we as a society be satisfied with locking up murderers and rapists for only 6 months and then releasing them all after they completed this 6 month program? I doubt it. We want some retribution.
First, let me apologize to the Anonymous reader who posted the second comment yesterday. I accidentally deleted your comment while in the process of deleting a problematic comment from another Anonymous poster. My sincere apologies. : (
Thanks to both Bux and Anon for the insightful comments. I appreciate you taking the time to share your thoughts!
Let me respond briefly to points you both raise.
You are right, Bux, that in some cases (especially those involving severe physical assault) there is not much separating lethal from non-lethal violence. However, in my view LWOP sentences should NOT be applied to juvenile offenders ever, even in cases of homicide. As I see it, sentencing a juvenile offender to LWOP (or, for that matter, waiving youthful offenders to adult court, regardless of the sentence outcome) shatters any internal consistency in our collective logic about adolescents. We impose age restrictions on adolescents for a number of other behaviors (driving, voting, smoking, drinking, enlisting in the military, dropping out of high school, etc.) that we believe require "adult" reasoning and developmental abilities. Yet when these same youths -- whom we deem intellectually, emotionally, and/or cognitively incapable of making the "adult" decisions I listed above -- commit serious crimes, we suddenly find them in possession of those mature capacities that we previously believed them to lack. This makes no sense to me, and also I believe is fundamentally unfair. While I appreciate and understand the desire to severely punish adolescent offenders who commit heinous crimes (like these teens in Chicago who savagely beat another teen to death), I don’t understand how imposing adult sentences can logically be defended. So they are not old enough to understand the potential consequences of alcohol or tobacco use, or of making decisions that would affect our nation’s political future, but they are old enough to fully appreciate the consequences of beating or shooting another person? It is a fundamental logical error, which is why I oppose adult sanctions – including LWOP – for juveniles.
While I suppose there is a moral component to my opposition, in general I'd categorize my position as being driven more by other concerns (logical, theoretical, empirical, etc.) instead.
Aha! Anon, I found the e-mail message containing your comment. Here it is:
"I think the "tough on crime" label can still be applicable and justified. The punishments are tough on crime. Those same punishments may not be effective in rehabilitation, but they remain tough on crime.
I have some issues with "tough on crime" legislation (3 strikes, for example), but it is accurate. If you do not favor harsher penalties, you are softer on crime. You may feel the softer approach is justified because of X, Y, and Z, but you are softer on crime. I am softer on certain crimes because I feel 3 strikes ties judges hands when what we need are better judges. "
I'd also point out this article written by Barry Feld: "A Slower Form of Death: Implications of Roper v. Simmons for Juveniles Sentenced to Life Without Parole," 22 Notre Dame Journal of Law, Ethics, & Public Policy 9 - 65 (2008).
Feld is a leading proponent for humane treatment of juveniles. I could probably write the longest post in the history of blogging on his contributions (but I won't).
I remember when I first read Feld's argument that the juvenile justice system should be abolished - I thought, this guy is crazy! The more you read about the real threat of real punishment in the JJ system the more his arguments make sense.
I general, I support the sentiments that juveniles should NOT be sentenced to life without the possibility of parole. I will only add this...Two key things we have not adequately dealt with in terms of this discussion:
1.) The concept of "juvenile" is pretty vague. We like to identify a firm legal age to this as if when you turn 18 you magically develop some capacity to understand the implications of action. This is a very naive understanding of tremendous amounts of research. Development does not stop and start in discrete points in time but continues to evolve over the lifecourse. I strongly believe academics and researchers fail to acknowledge many teenagers do have a very good sense of long consequences. As liberal academics we like to remind ourselves that MOST low SES people in MOST communities do not commit serious crime in any real way. We use that to demonstrate support our ideological stances on many issues. Well, similarly – MOST juveniles do not commit serious, heinous crime. Because they are not tempted too or do not see the value in killing someone for an ipod? No, because they fully grasp the consequences, value of human life, etc. Not trying to open this can of worms, just saying the "juvenile" legal status is not quite clear. After saying that, 12 or 13 is certainly "juvenile" to me.
2. There simply are some 17-20 years old who are lost. Simply speaking...they might be lost causes. As liberal academics we don't like to consider that anyone needs to be locked in a cage for incredibly long periods of time - maybe for life. The fact is, that is just not the case in my opinion. When we fail to accept that, and because WE ARE NOT DIRECTLY ACCOUNTABLE TO THE PUBLIC FOR THEIR WELL-BEING, our sometimes intentional "head in the sand" (or other places....) approach puts communities at risk.
In the end, it is not the community who looks to us for their safety. That is a tremendous burden and responsibility that most of us never consider. There are real consequences to these decisions. Can you even begin to imagine being the Parole Board who releases someone who then goes on to rape and murder a child? I know I cannot. We speak of these as if they are purely politically motivated. While always a possibility, I do not think they are in most cases. These are often real people trying to make very consequential decisions that may put someone’s life at risk. Wow, academics doesn’t look that bad all of a sudden!
Your points are well taken, Scoob.
I agree that, in general, it is more difficult to assert that a 17-year old lacks "adult" reasoning capacities than, say, a 13-year old. And that's one of the cases the Supreme Court Justices face as they reconvene today:
"In the criminal law field, two cases from Florida test whether it is unconstitutionally cruel and unusual punishment to sentence a minor to life in prison without parole for crimes that do not involve a death.
One case involves a 13-year-old sentenced to life in prison without parole for sexual battery. The other case involves a 17-year-old sentenced to life after violating his probation for an earlier armed robbery."
A THIRTEEN YEAR-OLD. In prison for the REST OF HIS LIFE with NO CHANCE at being released. Can you even wrap your brains around that? As a criminologist AND as a parent, I just can't.
Also, Scoob, I think you're absolutely right that it's far easier to lob criticism at CJ decision-makers from our academic perches, where we are not directly influencing any system outcomes. That's a point I try to hammer home in my policy classes: it's one thing to use empirical data to critique bad CJ policies -- that's easy. The hard part is offering viable alternatives...
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