March 8, 2008
There is a renewed urgency to abolish life without parole (LWOP) for juveniles. In the last several weeks The New York Times, among other outlets, have called for a halt in sending juveniles to prison for life with no hope of parole. With mounting public pressure, policymakers would do well to proceed with caution.
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 juvenile offenders were re-sentenced to LWOP.
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 action 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, the same number of states had banned the execution of juveniles. Today only eight states have banned LWOP for juveniles. California is considering a bill that would eliminate LWOP and limit juvenile sentences to 25 years to life. Michigan, Illinois, Nebraska and Florida are considering similar legislation, which would make a significant number but not a national consensus.
At the time of the Atkins and Roper decisions death penalty abolitionist argued that LWOP was an appropriate alternative sentence to the death penalty. Today, the same arguments made to abolish the death penalty are being incorporated into the argument against LWOP for juveniles.
Those who are advocating for the end of juvenile LWOP often cite research suggesting that the juvenile brain is not yet fully developed. Supreme Court Justice Anthony M. Kennedy wrote in Roper that juveniles are cognitively immature and therefore less culpable. The brain development argument is being used with more frequency in courtrooms across the country.
The juvenile criminal court system is distinctly different from the adult criminal court system. The juvenile system is not punitive. The focus is on rehabilitation and is oriented toward the treatment of young offenders. However, it has been suggested that some young offenders are not amenable to treatment and are so dangerous that only a lifetime of incarceration would protect the public.
Justice Kennedy wrote in Roper, “It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” He goes on to write that it is impermissible to render an opinion about antisocial disorders in offenders under age 18. That is precisely the point; the diagnosis should be made after the age of 18 with the ability to keep that rare offender with “irreparable corruption” from harming another innocent person.
LWOP for juveniles convicted of first degree murder should be an option for judges, not a mandatory requirement. Sentences, especially for juveniles charged as adults, should be specifically tailored for each individual offender. This could be effectuated by giving judges the discretion that legislatures rushed to take away when getting “tough on crime.”
A juvenile sentenced to LWOP need not be doomed to a lifetime of hopelessness. Governors across the country have the ability to grant clemency. The pardon is a long accepted method of invoking fairness and justice.
States would do well to follow the lead of Colorado and establish juvenile clemency boards. The board would be charged with reviewing antisocial disorders in offenders now over the age of 18 who were sentenced to LWOP as juveniles. The legislature could establish parameters for consideration and guidelines for recommending clemency to the governor.
The question is not 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. Policymakers should not blindly rush to abolish an appropriate sentencing option, without first considering judicial discretion and executive authority.
X Matthew T. Mangino is the former district attorney of Lawrence County. He is a featured columnist for the Pennsylvania Law Weekly. He can be reached at firstname.lastname@example.org)