Monday, November 9, 2009

No Rush to Judgment

The Pennsylvania Law Weekly
March 31, 2008

Only days into the New Year a 12 year-old Florida boy was arrested for the murder of his 17 month-old cousin. He beat the toddler to death with a baseball bat. The boy told police the victim, a little girl, was making noise while he watched a cartoon on television.

If the state’s attorney had decided to charge the boy as an adult and he was convicted of first degree murder the court would have been required to impose a sentence of life in prison without the possibility of parole (LWOP). Although the boy was not charged with first degree murder, the prospect of a 12 year-old boy being sentenced to LWOP has rekindled the debate about sentencing juveniles as adults.

Life without parole is not unlike the death penalty. Paul Wright, a former lifer, told the New York Times, “It’s a death sentence by incarceration. You’re trading a slow form of death for a faster one.” Only three years ago the United States Supreme Court banned the execution of juveniles. The decision in Roper v. Simmons resulted in the commutation of 72 juvenile death penalties; a significant majority of those juveniles on death row were re-sentenced to LWOP.

In the last several months, articles in the New York Times, Chicago Tribune, and Detroit Free Press have written about halting the practice of sending juveniles to prison for life with no hope of parole. The USA Today recently published an op-ed calling for reform in sentencing juveniles. With mounting public pressure, policy makers would do well to proceed with caution.

The surge in juvenile LWOP sentences is a relatively new phenomenon. Prior to 1980, juveniles sentenced to LWOP were extremely rare. As violent crime rates soared in the 1980’s the rallying cry in state legislatures across the country was “adult crime, adult time.” Criminologists warned of the “superpredators;” those uber-violent juveniles without remorse who kill at will.

Forty-two states authorize sentencing juveniles to LWOP. Fourteen states allow a minor to be tried as an adult at any age. Pennsylvania is one of those states and also leads the nation in juveniles serving LWOP. Pennsylvania has at least 330 offenders who were sentenced to LWOP as juveniles. Across the country more than 2,250 offenders are serving life sentences in adult prison for crimes committed as minors.

When the U.S. Supreme Court made the landmark decisions in Roper as well as Atkins v. Virginia, banning the execution of the mentally retarded, the justices cited “evolving standards of decency.” In the analysis of evolving standards of decency the court considers the acts of state lawmakers to establish a national consensus. When Atkins was argued, 30 states had banned the execution of the mentally retarded. When Roper was argued, 30 states had banned the execution of juveniles. Today, only eight states have banned LWOP for juveniles. In 2006, Colorado became the most recent state to repeal juvenile LWOP.

How did Pennsylvania become the nationwide leader in locking away juveniles for life? Following former Governor Tom Ridge’s special legislative session on crime in 1995, juvenile law changed dramatically. Most significant was the change in charging juveniles as adults. Prior to 1995, district attorneys had to request “certification” from the court to charge a juvenile as an adult. Today, district attorneys must charge a juvenile as an adult for specific offenses and the juvenile can request “decertification” to juvenile court.

According to the Pittsburgh Post-Gazette the number of juveniles committing murder nationwide dropped by nearly 55 percent between 1990 and 2000, yet the percentage of juveniles receiving LWOP increased by 216-percent. Fifty-nine percent of juveniles serving life had no previous criminal record and one in four were convicted of felony murder. The offender may have been a getaway driver, lookout or an accomplice in a robbery gone bad. Felony murder holds all offenders involved to the same level of responsibility as the primary perpetrator.

California has also been prodigious in imposing life sentences on juvenile offenders. A juvenile charged and convicted of murder as an adult with any of a long list of special circumstances can be sentenced to LWOP. There are currently 227juveniles serving LWOP in California. California is considering a bill that would eliminate LWOP and limit juvenile sentences to 25 years to life. California is not alone. Illinois, Florida, Nebraska and Michigan are also considering similar legislation, a significant number but not exactly a national consensus.

A case in Rhode Island points to the consequences of having inadequate options with regard to sentencing dangerous juvenile killers. In 1987, thirteen-year-old Craig Price murdered his neighbor. He stabbed her 58 times. Two years later, Craig stabbed and murdered Joan Heaton and her eight and ten-year-old daughters. At the time in Rhode Island children charged with a crime under 16-years-of-age could not be transferred to adult court.

Although Price nonchalantly confessed to the four murders he could not be held beyond the age of 21. Rhode Island had two juvenile lifers; both were over the age of 16 when they committed their offense. The law in Rhode Island has since been amended to address juveniles under the age of 16 who kill.

Many involved in Price’s prosecution argued that he was a dangerous serial killer and should be locked up for life. They fought to keep Price in prison where he remains today. The latest maneuver to keep Price in prison was a contempt of court sentence of 25 years for failure to submit to a court ordered psychiatric evaluation.

Lionel Tate was a twelve -year-old Florida boy who, in 1999, was convicted of first degree murder and sentenced to life in prison. Tate brutalized a six year-old girl, later arguing he accidentally caused her death while imitating wrestling moves. He spent five years in prison. In 2004, a Florida appellate court overturned his conviction on grounds that his competency had not been properly evaluated before his trial in 2001. He later pled guilty to second degree murder and was sentenced to 10 years probation. He was released to his mother four days before of his 17th birthday. According to The New York Times, Tate’s lawyer said the teenager “posed no risk of flight or danger.”

Within months Tate was cited for violating his probation. He was out after curfew and armed with a knife with an eight-inch blade. Fourteen months later, armed with a gun, Tate robbed a pizza delivery man. He received a 30 year sentence for his latest probation violation. He recently pled guilty to armed robbery. With all the notoriety and the outcry for Tate’s release, he could have ended up right where he started, and perhaps where he belongs, in prison for life.

Abolishing juvenile LWOP eliminates an appropriate sentencing option in some cases. In Pennsylvania, LWOP for juveniles convicted of first degree murder should be an option not a mandatory requirement.

Sentences, especially for juveniles sentenced as adults, should be specifically tailored for each individual offender. Judges in Pennsylvania should have discretion to sentence juveniles to something other than LWOP following a conviction of first degree murder. The idea in Pennsylvania that the juvenile lookout in a robbery gone badly should receive the same sentence as a juvenile serial killer doesn’t make good sense or good law.

A juvenile sentenced to LWOP need not be doomed to a lifetime of hopelessness. The governor has the ability to grant clemency. Pennsylvania should follow the lead of Colorado and establish a juvenile clemency board. The board would be charged with the unique process of reviewing offenders who were sentenced to LWOP as juveniles. The legislature could establish parameters for consideration and guidelines for recommending clemency to the governor.

A solid approach to reconsidering LWOP for juvenile killers would include due consideration of public safety. This is not just a question of whether some violent juvenile offenders deserve to be locked away for life, but rather, do law abiding citizens deserve the protection that total incapacitation of dangerous offenders affords? Policy makers should not abolish LWOP without first deliberating the merits of judicial discretion and executive authority as appropriate corrective measures.

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