Published on Tuesday, November 10, 2009 by CommonDreams.org

Give Juveniles A Chance!

by Shamai Leibowitz

On Monday, the Supreme Court heard oral argument in a pair of cases from Florida, Graham v. Florida and Sullivan v. Florida, asking the court to  determine whether sentencing juvenile defendants to life in prison without parole is a cruel punishment to the extent that it violates the Eighth Amendment's proscription against "cruel and unusual punishment."    More than four years ago, a divided Supreme Court ruled by a 5-4 vote in Roper v. Simmons that executing those who committed murder as juveniles, that is under 18, is unconstitutional because it violates the Eighth Amendment's "cruel and unusual punishment" clause, made applicable to the states through the Fourteenth Amendment. Justice Anthony Kennedy, writing for the majority, explained:

The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character . . . . From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.

Now the court is asked to apply the same reasoning in examining the penultimate punishment for juveniles - life without parole (LWOP). In two separate cases, defendants Joe Sullivan and Terrance Graham were sentenced to life without parole for nonhomicide crimes at ages 13 and 17, respectively. The petitioners in both cases, joined by a myriad of non-profit organizations and experts in juvenile delinquency, argue that LWOP is almost the equivalent of death as it gives the juvenile offender no chance of relief or release or hope, and thus should be ruled unconstitutional.  

Sentencing minors who commit crimes to life without the possibility of parole is a grossly disproportionate punishment that flies in the face of basic considerations of justice and morality. While there is no doubt that when juveniles commit a heinous crime they deserve to be punished with the full force of the law, the sentence should be tailored to serve the following two goals: protecting society and achieving the rehabilitation of the offender. Denying juvenile offenders the possibility of ever going before a parole board means depriving them of the chance for repentance and rehabilitation. Locking up a child for a crime and throwing away the key is tantamount to treating him or her as "irreparably damaged goods." As the amicus briefs filed with the court argue, there is not a shred of evidence to support this approach. Indeed, based on scientific studies, the opposite is true. Research has shown that there are fundamental neurological, psychological and behavioral differences between children and adults, and there is no way to predict at the time of sentencing whether a young person will turn out "good" or "bad." Accordingly, LWOP serves no justifiable purpose, and is an overly harsh and punitive measure that should be prohibited by the Constitution. 

One of the more compelling amicus briefs that have been filed on behalf of Sullivan and Graham is by a group of former juvenile offenders who later achieved success, including actor Charles Dutton and former U.S. Senator (R-Wyoming) Alan K. Simpson. Dutton stabbed a person to death in a street fight at age 17, while Simpson committed arson on federal property, punched a cop, and--in his own words-- "was a monster." In their amici curiae brief, Dutton and Simpson describe how important it was for their rehabilitation to have the potential to regain their freedom, to know that society still believes in them. Knowing they had a chance, they used the time in prison to resolve to do things differently and to obtain skills - and eventually they made positive contributions to society.   

Imprisoning juveniles for LWOP not only offends basic notions of decency in a civilized society but is also contrary to the standards of a widely-accepted international treaty safeguarding the rights of children. Article 37(a) of the United Nations Convention on the Rights of the Child ("CRC") prohibits not only sentencing juveniles to death, but also sentencing juveniles to "life imprisonment without the possibility of release." The CRC has been ratified by 192 nations; only the United States and Somalia have not ratified it. It is high time the United States courts joined the rest of the civilized world, and applied a legal standard to youth offenders that is the binding norm in every civilized country on this planet.   

On a moral note, the Supreme Court must respect the humanity of children, and recognize that as young human beings they will always have the potential for change. Life without parole denies a fundamental truth - the glory of choice! Youth offenders -- no matter what crimes they committed -- are ingrained with the potential to repent, mend their ways and join society as law-abiding citizens. As John Steinbeck wrote so beautifully in East of Eden, a cat has no choice, a bee must make honey. There's no godliness there. But the potential for change is what makes human beings great, and gives them stature with the gods. For even in their weakness and filth and crimes, they have still the great choice. They can choose their course and fight it through and win. But juvenile offenders can only win if the US Supreme Court articulates a clear-cut rule banning this form of "cruel and unusual punishment," and gives our youth back their inalienable rights to repentance, rehabilitation and liberty.