Monday, May 10, 2010

Young and in Prison

Matthew T. Mangino
Pennsylvania Law Weekly
May 11, 2010

Lawrence County Judge Dominick Motto has given the green light to prosecutors who are pursuing a 12-year-old boy as an adult for the murder of his father's girlfriend.

Motto found that Jordan Brown would not be amenable to treatment within the nine years he would be under the jurisdiction of the juvenile courts if tried as a juvenile.

Brown was 11 years old when he allegedly shot his father's girlfriend. She was pregnant and asleep when she was shot in the head with a 20-gauge shotgun. In denying the defendant's request to transfer the case to juvenile court, Motto wrote, "(The) defendant ... killed his father's fiancée who was 8 1/2 months pregnant, by administering a shotgun blast to the head. The evidence further shows that the defendant acted alone and without provocation from the victim. Further a degree of sophistication was shown in concealing evidence of the commission of the crime."

Motto further wrote, "Experts from both the defendant and the commonwealth have agreed that in order for rehabilitation to occur in the juvenile court system, defendant must take responsibility for the offense and at this juncture, has failed to do so."

If convicted of first degree murder, Brown must be sentenced to life in prison without the possibility of parole. According to the Pittsburgh Post-Gazette, he would become the youngest person in the United States to serve a mandatory life sentence in prison without parole.

This case brings to the forefront a divisive issue that is not unique to Pennsylvania, although Pennsylvania has more offenders serving Life without parole for crimes committed as juveniles than any other state. The issue is so emotionally charged that opposing groups cannot even agree on the numbers. According to a report prepared by the University of San Francisco, Pennsylvania has at least 330 offenders who were sentenced to Life without parole as juveniles. Across the country there are approximately 2,381 offenders serving life sentences in adult prison for crimes committed as minors.

Juvenile Life without parole has generated a lot of attention since the 2005 United States Supreme Court decision in Roper v. Simmons, which outlawed the execution of juvenile killers pursuant to the Eighth Amendment's ban against cruel and unusual punishment.

In Roper, there was a clear consensus that state lawmakers were turning away from executing juveniles. The majority opinion, written by Justice Anthony M. Kennedy, also alluded to brain development and its potential impact on decision making among young offenders.

This argument has been appropriated by those who believe that juvenile Life without parole is also unconstitutionally cruel and unusual. Last fall, the U.S. Supreme Court heard arguments on whether sentencing a juvenile to life in prison without the possibility of parole, for a non-homicide offense, violates the Eighth Amendment.

Across the country, there are 109 non-homicide juvenile offenders serving life sentences, according to a September 2009 Florida State University study. Seventy-percent of those offenders are in the state of Florida, the study continued.

Appropriately, in the cases that have made their way to the U.S. Supreme Court — Graham v. Florida and Sullivan v. Florida — the litigants — Terrance Graham and Joe Sullivan — were both sentenced by Florida courts. Graham has argued that life without parole is nothing more than "a delayed or a disguised death sentence."

In Roper, the high court held that a national consensus was established against the death penalty for juveniles. Thirty of 36 states that permitted the death penalty had excluded juveniles from being sentenced to death, according to the opinion. The same argument was presented to the court in Graham and Sullivan. Only eight states have laws that permit the imposition of Life without parole for non-homicide juvenile offenders.

However, the same cannot be said when it comes to juvenile Life without parole for homicide.

According to an August 2009 Heritage Foundation report, 43 states have legislation that permits Life without parole for murder and 14 states allow a minor to be tried as an adult at any age.

The idea of locking a juvenile away for life has gotten the attention of lawmakers.

Last year, Congressman Bobby Scott, D-Va, proposed the Juvenile Justice Accountability and Improvement Act of 2009. The bill provides that states must enact laws to grant child offenders who are serving a life sentence a meaningful opportunity for parole at least once during their first 15 years of incarceration and at least once every three years thereafter. The bill has only three co-sponsors and has been stuck in committee since last May.

In California, lawmakers have proposed similar legislation — the Fair Sentencing for Youth Act — that would allow courts to review cases of juveniles sentenced to Life without parole after 10 years, potentially providing a new sentence of 25 years to life. A legislative committee on public safety approved the act in January.

And in Pennsylvania, state Rep. Kenyatta Johnson, D-Philadelphia, has proposed a bill that would abolish Life without parole for juveniles, allow current juvenile lifers to appeal their sentences and provide parole hearings at least once during the first 15 years of a life sentence and every three years thereafter.

If Jordan Brown were charged with any other offense but homicide, he could not be charged as an adult.

In fact, in Pennsylvania, a child under 10 cannot be charged with any crime but murder. A delinquent child, under Pennsylvania law, is defined as "a child ten years of age or older whom the court has found to have committed a delinquent act and is in need of treatment, supervision or rehabilitation."

Although Brown could end up the youngest person in the United States ever sentenced to Life without parole, he is not the youngest child to be charged with murder as an adult in Pennsylvania.

In 1989, 9-year-old Cameron Kocher was charged as an adult in Monroe County for the shooting death of a 7-year-old girl. Kocher later pleaded guilty to involuntary manslaughter.

Brown and his legal team have proclaimed his innocence. Brown is entitled to the presumption of innocence and his right to face his accusers and demand the Commonwealth prove its case beyond a reasonable doubt. The exercise of these rights has already played a significant role in not having his case transferred to juvenile court and may play a role in whether he spends the rest of his life in prison.

In order to avoid a clash between a child exercising his constitutional rights and the prospect of an 11-year-old offender spending life in prison without the possibility of parole, the Legislature must act.

Juveniles charged as adults should not be subject to mandatory sentencing. The U.S. Supreme Court has acknowledged that children should be treated differently, at least with regard to the death penalty. We'll soon find out about the court's position regarding Life without parole for non-homicide offenses.

This is not to suggest that child offenders should not be held accountable for their conduct, nor that the punishment should not be commensurate to the crime. But should children, who are literally not entitled to legally make any decisions on their own behalf, be held to the same standards as adults when it comes to meting out punishment?

The Legislature should act now and give judges the discretion to mold sentences for individual juveniles charged as adults. We elect judges to make those difficult decisions.

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