Saturday, January 2, 2010

IN The News

November 9, 2009
Editorial from the NY Times

Imprisoning a Child for Life
The United States could be the only nation in the world where a 13-year-old child can be sentenced to life in prison without possibility of parole, even for crimes that do not include murder. This grim distinction should trouble Americans deeply, as should all of the barbaric sentencing policies for children that this country embraces but that most of the world has abandoned.
The Supreme Court must keep the international standard in mind when it hears arguments on Monday in Graham v. Florida and Sullivan v. Florida. The petitioners in both argue that sentencing children to life without the possibility of parole for a nonhomicide violates the Eighth Amendment prohibition against cruel and unusual punishment.
The court came down on the right side of this issue in 2005 when it ruled that children who commit crimes before the age of 18 should not be subject to the death penalty. The decision correctly pointed out that juveniles were less culpable because they lacked maturity, were vulnerable to peer pressure and had personalities that were still being formed.
Writing for the majority, Justice Anthony Kennedy said the practice of executing 16- and 17-year-olds violated the Eighth Amendment, conflicted with “evolving standards of decency” and isolated the United States from the rest of the world.
The Roper decision took scores of juveniles off death row. It also threw a spotlight onto state policies under which young juveniles were increasingly being tried in adult courts and sentenced to adult jails, often for nonviolent crimes.
The practice is even more troubling because it is arbitrary. Children who commit nonviolent crimes like theft and burglary are just as likely to be shipped off to adult courts as children who commit serious violent crimes. And the process is racially freighted, with black and Latino children more likely to be sent to adult courts than white children who commit comparable crimes.
The rush to try more and more children as adults began in the 1980s when the country was gripped by hysteria about an adolescent crime wave that never materialized. Joe Sullivan, the petitioner in Sullivan v. Florida, was sentenced to life without parole in 1989 — when he was just 13 — after a questionable sexual battery conviction. His two older accomplices testified against the younger, mentally impaired boy. They received short sentences, one of them as a juvenile.
The case of Terrance Graham has similar contours. A learning disabled child — born to crack-addicted parents — Mr. Graham was on probation in connection with a burglary committed when he was 16 when he participated in a home invasion. He, too, had older accomplices. He was never convicted of the actual crime but was given life without parole for violating the conditions of his probation.
These were two very troubled children in need of adult supervision and perhaps even time behind bars. But it is insupportable to conclude, as the courts did, that children who committed crimes when they were so young were beyond rehabilitation. The laws under which they were convicted violate current human rights standards and the Constitution.

November 10, 2009 from the NYTimes

Justices Consider the Role of Age in Life Sentences By ADAM LIPTAK

WASHINGTON — A majority of the justices at two Supreme Court arguments on Monday seemed inclined to find a way to take account of the age of young offenders in deciding whether they may be sentenced to life without the possibility of parole.
But there was disagreement among the justices about where to draw various lines and, indeed, over whether line-drawing or case-by-case determination was the right approach.
A lawyer for Joe Sullivan, who was sentenced to life without parole for raping a 72-year-old woman when he was 13, asked the court to say that the Eighth Amendment’s prohibition of cruel and unusual punishment forbids such sentences for youths under the age of 14 convicted of any crime, including murder.
“To say to any child of 13 that you are only fit to die in prison is cruel,” said Bryan Stevenson, Mr. Sullivan’s lawyer. “It can’t be reconciled with what we know about the nature of children.”
In a separate argument in a second case, a lawyer for Terrance Graham, sentenced to life for armed burglary at 16 and a probation violation at 17, said the line should be set at 18 but only for crimes that did not involve a killing.
The court has drawn bright lines in its capital jurisprudence, forbidding the execution of offenders under 18 in 2005 in Roper v. Simmons and of people of any age for crimes against individuals other than murder last year in Kennedy v. Louisiana. The question at Monday’s arguments was whether the logic of those decisions should be extended to cases outside the area of the death penalty.
Chief Justice John G. Roberts Jr. suggested a compromise approach that did not involve categorical distinctions but would instead require consideration of the offender’s age in deciding whether the sentence was proportional to the crime case by case.
“We know from Roper that death is different, and we know from Roper that juveniles are different,” the chief justice said. “Wouldn’t it make sense to incorporate the consideration of the juvenile status into the proportionality review?”
Outside the context of the death penalty, the court’s Eighth Amendment jurisprudence has not taken the offender’s age into consideration in deciding whether a sentence is proportional to the crime. Requiring sentencing judges to add age to the sentencing calculus would presumably make a difference in some but not all cases.
Bryan S. Gowdy, a lawyer for Mr. Graham, said a case-by-case approach at the time of sentencing cannot work because juveniles are still unformed.
“At that age we cannot make a determination about whether or not the adolescent will or will not reform,” Mr. Gowdy said.
Justice Samuel A. Alito Jr. seemed to join the chief justice in rejecting what he called a per se approach while remaining open to “proportionality challenges that take into account the particular circumstances of the juvenile in question.”
But Justice Alito added that some juvenile offenders deserve life without parole, describing cases “so horrible that I couldn’t have imagined them if I hadn’t actually seen them” — “raping an 8-year-old girl and burying her alive” and “raping a woman in front of her 12-year-old son and then forcing the son to engage in sexual conduct with the mother.”
Other justices noted that the law routinely makes distinctions based solely on age. “Think of the teenager who can’t drink, can’t drive, can’t marry,” said Justice Ruth Bader Ginsburg, adding that those legal lines were not drawn case by case. “They say no juvenile can drink — no juvenile.”
Mr. Stevenson said there are nine people serving life without parole sentences for crimes they committed at age 13. No juvenile younger than that is serving such a sentence. Two of the 13-year-olds did not commit murder. In 18 years, Mr. Stevenson said, no 13-year-old has seen sentenced to life without parole for a crime in which no one was killed.
Justice Stephen G. Breyer said the words of the Eighth Amendment might justify categorical distinctions, at least for the youngest offenders. “It’s pretty unusual to have this,” he said. And, at least for 13-year-olds, he continued, “it is a cruel thing to do to remove from that individual his entire life.”
Scott D. Makar, Florida’s solicitor general, said that was the wrong analysis.
“It’s a lawful sentence that can be imposed, but it’s rare,” he said. “And we should be proud of that.”

November 8, 2009 from the NYTimes

Weighing Life in Prison for Youths Who Didn’t Kill
TALLAHASSEE, Fla. — There are just over 100 people in the world serving sentences of life without the possibility of parole for crimes they committed as juveniles in which no one was killed. All are in the United States. And 77 of them are here in Florida.
On Monday, the Supreme Court will hear appeals from two such juvenile offenders: Joe Sullivan, who raped a woman when he was 13, and Terrance Graham, who committed armed burglary at 16. They claim that the Eighth Amendment’s ban on cruel and unusual punishment forbids sentencing them to die in prison for crimes other than homicide.
Outside the context of the death penalty, the Supreme Court has generally allowed states to decide for themselves what punishments fit what crimes. But the court barred the execution of juvenile offenders in 2005 by a vote of 5 to 4, saying that people under 18 are immature, irresponsible, susceptible to peer pressure and often capable of change.
A ruling extending that reasoning beyond capital cases “could be the Brown v. Board of Education of juvenile law,” said Paolo G. Annino, the director of the Children’s Advocacy Clinic at Florida State University’s law school. Judges, legislators and prosecutors in Florida agree that the state takes an exceptionally tough line on juvenile crime.
But they are deeply divided about when sentences of life without the possibility of release are warranted.
“Sometimes a 15-year-old has a tremendous appreciation for right and wrong,” said State Representative William D. Snyder, a Republican who is chairman of the House’s Criminal and Civil Justice Policy Council. “I think it would be wrong for the Supreme Court to say that it was patently illegal or improper to send a youthful offender to life without parole. At a certain point, juveniles cross the line, and they have to be treated as adults and punished as adults.”
A retired Florida appeals court judge, John R. Blue, did not see it that way. “To lock them up forever seems a little barbaric to me,” Judge Blue said. “You ought to leave them some hope.”
Several factors in combination — some legal, some historical, some cultural — help account for the disproportionate number of juvenile lifers in Florida.
The state’s attorney general, Bill McCollum, explained the roots of the state’s approach in the first paragraph of his brief in Mr. Graham’s case.
“By the 1990s, violent juvenile crime rates had reached unprecedented high levels throughout the nation,” Mr. McCollum wrote. “Florida’s problem was particularly dire, compromising the safety of residents, visitors and international tourists, and threatening the state’s bedrock tourism industry.” Nine foreign tourists were killed over 11 months in 1992 and 1993, one by a 14-year-old.
Mr. Snyder, the state legislator, put it this way: “Instead of the Sunshine State, it was the Gun-shine State.”
In response, the state moved more juveniles into adult courts, increased sentences and eliminated parole for capital crimes.
Thomas K. Petersen, a semi-retired judge in Miami who spent a decade hearing cases in juvenile court, said that the state’s reaction was out of proportion and that it has lately failed to take account of changed circumstances.
“Back in the 1990s, there were dire predictions about teenage super-predators, particularly in Florida,” Judge Petersen said. “Florida, probably more than other places because of that rash of crimes, overreacted. It was a hysterical reaction.”
“People still go around saying things have never been worse,” he added. “But violent juvenile crime has gone down even as the juvenile population has grown.”
The state’s brief in Mr. Graham’s case said juvenile crime fell 30 percent in the decade ended in 2004. It attributed the drop to its tough approach.
Shay Bilchik, who served as a state prosecutor in Miami from 1977 to 1993 and is now the director of the Center for Juvenile Justice Reform at Georgetown, said the state took a wrong turn. “We were pretty aggressive in those years in transferring kids into criminal court,” he said.
He said later research convinced him that his office’s approach was much too aggressive and had not served to deter crime. “My biggest regret,” he said, “is that during the time I was in the prosecutor’s office, we were under the false impression that we were insuring greater public safety when we were not.”
Mr. Sullivan, 34, had committed a string of crimes by the time he was charged with raping a 72-year-old woman after a burglary in 1989 in Pensacola. Mr. Graham, 22, was sentenced to a year in jail and three years’ probation for a 2003 robbery of a Jacksonville restaurant, during which an accomplice beat the manager with a steel bar. Mr. Graham was sentenced to life in 2005 for violating probation by committing a home invasion robbery when he was 17.
Concern about tourism continues to drive crime policy in the state, said Kathleen M. Heide, a professor of criminology at the University of South Florida. “We’re at the more extreme level,” she said, “because our economy is so tied up with people coming here on vacation and feeling safe. And older people want to live out their retirements here and be safe.”
Florida is one of eight states with juvenile offenders serving life sentences without the possibility of parole for nonhomicide crimes, according to a report prepared by Professor Annino and two colleagues at Florida State. Louisiana has 17 such prisoners; California, Delaware, Iowa, Mississippi, Nebraska and South Carolina have the rest.
The number of such sentences in Florida was greater in the decade that ended in 2008 than in the decade before. The state sentenced nine juvenile offenders for nonhomicide crimes to life without parole in 2005 alone. “We’re just so far out from everyone else,” Professor Annino said.
Mr. Snyder said finding the right balance in addressing juvenile crime was difficult but should be left to the states. “People do things at 16 and 17 that they wouldn’t do at 37, but they spend a lifetime paying for it,” he said. “But we have to create an environment where our children are safe and our elderly are safe.”

New York Times
December 17, 2009


De-Criminalizing Children

As many as 150,000 children are sent to adult jails in this country every year — often in connection with nonviolent offenses or arrests that do not lead to conviction. That places them at risk of being raped or battered and increases the chance they will end up as career criminals.

To fix this problem, Congress needs to properly reauthorize the Juvenile Justice Delinquency and Prevention Act of 1974, under which states agreed to humanize juvenile justice policies in exchange for more federal aid. This act was largely bypassed in the 1990s when unfounded fears of an adolescent crime wave reached hysterical levels.

When it reauthorizes the law — it is already three years late — Congress should make it illegal for states to place children in adult prisons, perhaps with the exception of truly heinous criminals.

The House has yet to introduce a new bill; in the Senate, an updated version has yet to be voted out of the Judiciary Committee. The Senate bill is less than ideal, but it does encourage the states to de-emphasize the practice of detaining children in adult jails before trial and requires them to better protect young people who end up there. Several states have begun to reform their systems: housing young people in juvenile facilities — where they are better protected and can get mental health treatment — even if they have been convicted in adult courts. The current version of the law threatens states with loss of federal aid if they make that decision. The Senate bill would do away with that language.

The bill also would require states to phase out policies under which children are detained in either juvenile or adult facilities for offenses like violating curfew or smoking. These children should be dealt with through community-based counseling or family intervention programs, which are better for the child and for taxpayers.

In addition, the bill increases financing for mentoring, drug treatment, mental health care and other programs that have been shown to keep children out of custody in the first place. And it would require states to closely monitor — and address — racial inequities in their system. Studies show that black and Hispanic children get harsher treatment at all levels of the juvenile justice system than white children.

The Senate bill is not perfect. But it represents a welcome step away from the cruel and self-defeating policies that subject children to irreparable harm at the hands of the state and puts them on a path that too often leads to a lifetime spent behind bars.

Locked Away Forever, A Growing campaign against Juvenile life sentences

The Case Against Juvenile Life Without Parole
By Pat Arthur and Brittany Star Armstrong
At 16, Sara was tried as an adult and sentenced to the rest of her life in prison, even though the California Youth Authority (CYA) determined that she was "amenable to the training and treatment" they offered.

Sara Kruzan received a sentence of life without parole when she was 16. She is now 28

There are more than 2,000 child offenders serving life without pa­role (LWOP) sentences in United States prisons for crimes committed before the age of 18. The United States is one of only a few countries in the world that permits children who commit crimes to be sentenced to prison forever, without any possibility of release.2 Only eight states in this country — Alaska, Colorado, Kansas, Kentucky, Maine, New Mexico, New York, and West Virginia - and the District of Colum­bia prohibit life without parole for youthful offenders.

Unfortunately, adolescents. like adults, commit horrible crimes and make terrible mistakes. And, like adults, they should be held account­able — but in accordance with their age, stage of development, and great­er capacity for rehabilitation. A sen­tence of life in prison is excessively harsh for such young people, many of whom were themselves victims of abuse or neglect.
An estimated 26 percent of ju­veniles sentenced to prison for life were convicted of a felony murder, that is, for participating in a rob­bery or burglary during which a co-participant committed murder, in some cases without the knowledge of the teen.3 Fifty-nine percent of youth sentenced to LWOP are serv­ing time for a first-time offense.4 In 26 states, the sentence of life with-out parole is mandatory for anyone, even a juvenile, who is found guilty of committing first degree murder.

The disproportionate use of this sentence on youth of color is extreme. Nationwide, black youth are sentenced to LWOP at a rate 10 times greater than white youth. In California, 158 of the 180 people serving LWOP for crimes commit­ted before the age of 18 are youth of color.6 Black youth in California are 22.5 times more likely to receive a life without parole sentence than white youth.

Juveniles sentenced to LWOP frequently receive ineffective assis­tance of counsel during pre-trial and plea proceedings, and at trial and sentencing. For example, a federal district court judge in Washington state found that Donald Lambert, who at the age of 16 plead guilty to aggravated first degree murder and received a mandatory life sentence, was not provided constitutionally adequate representation. Never­theless, Lambert is serving life with­out parole at the Walla Wall State Penitentiary in Washington state. The Ninth Circuit Court of Appeals rejected on technical grounds the grant of habeas corpus relief by the district court. A juvenile sentenced to LWOP in Michigan in 1989 for felony murder describes his representation this way:
" I did not see my attorney at all. I called his office and no one accepted the calls. He never vis­ ited me. I never had any kind of interview about the crime, I never even talked to him about the crimes. I seen him one time at a hearing that lasted about 5 minutes, then I seen him twice IN THE COURT ROOM at trial that was a two day trial and then I seen him moments before I was to be sentenced. When I seen him before the sentence it was in the bullpen behind the courtroom and he told me there that Id be getting natural life. I kept asking him when I'd be going home, but another inmate explained it all to me. He never asked me if I even did the crime. I didn't know anything about the law or that he was supposed to come and see me during the trial. I went through a murder trial at the age of 15 with out ever talking to my attorney.”

In other legal contexts, youth are not treated as having the same capacity as adults. For example, they are not considered responsible enough to en­ter into contracts, to vote, to marry.
or to leave school. Yet, in most states, they are presumed as fully respon­sible as an adult for purposes of the criminal process - they can plead guilty, go through complicated legal proceedings, and be sent to prison to die - without regard to their age and diminished capacity.

A Growing Campaign to Stop Sentencing Juveniles to Life Without Parole
In light of the recent recognition by the U.S. Supreme Court that juve­niles should not be held to the same standard of criminal culpability as adults 12, the elimination of juvenile life without parole sentences is be­coming an increasingly important subject of juvenile justice reform. Children's advocates, faith-based groups, human rights advocates, ju­venile justice experts, families of ju­veniles serving LWOP sentences, and even the victims of serious crimes have joined together in voicing their disagreement with the use of LWOP to punish youth who "are not yet the persons they will become."14 The ad­vocacy is supported by growing pub­lic opposition to the use of LWOP on juveniles. A poll conducted of Ameri­cans on the West Coast found that 86 percent disagree with the idea that children who commit crimes are so beyond redemption that they should be locked up for the rest of their lives without any opportunity to ever earn their release.

Litigation and legislative efforts to eliminate juvenile LWOP sen­tences are underway and in various stages of planning in several states, including Michigan. Illinois, Penn­sylvania. Louisiana. California and Washington state. The Colorado legislature just recently enacted a law that eliminates the future use of LWOP sentences on juveniles.. In Mississippi and Washington, the NAACP Legal Defense & Educa­tional Fund. Inc. is focusing advo­cacy and research efforts on the ra­cial disparities in LWOP sentencing. The Juvenile -Justice Committee of the Criminal -Justice Section of the American Bar Association is working on a proposed Bar Resolution regard­ing juvenile LWOP.

The media are paying greater attention to this unfair sentencing practice. Media coverage is provid­ing more complete portraits of the juveniles who have been sent to pris­on for life.1'''
Internationally, many are work­ing to call attention to the use of LWOP sentences to punish juveniles in the United States, a practice that violates the Convention on the Rights of the Child, the International Bill of Rights, and the International Cov­enant on Civil and Political Rights. The sentencing of youth to life with­out parole was included in a juvenile justice resolution adopted by the Hu­man Rights Commission in Geneva in 2005. Human Rights Watch has made submissions calling for the elimination life without parole sen­tences for juveniles to the Committee against Torture, the Human Rights Committee, and to the UN Secretary-General's Study on Violence against Children. A petition has been sub­mitted on behalf of child offenders sentenced to life without parole to the United States Inter-American Court on Human Rights showing how this cruel sentencing practice of violates principles of international law.18.
All involved in the campaign to stop the sentencing of children to die in prison are deeply motivated by the life stories of these truly discarded children and believe deeply in their capacity for rehabilitation.

Pat Arthur is a senior attorney at NCYL, specializing in juvenile justice reform. Brittany Starr Armstrong interned at NCYL in summer 2006 as an Arthur Liman Public Interest Fellow. She is in her first year of law school at University of San Francisco Law School.

National Coalition to Ban Life Without Parole for Youth Offenders

National Center for Youth Law (NCYL) Senior Attorney Pat Arthur is Working with Human Rights Watch, private law firms and a number of organizations to end the practice of sentencing Child offenders to life without t parole.

As part of this initiative, NCYL and other advocacy organizations are working to eliminate life without the possibility of parole as a sentencing option in California and Washington State for youth who commit a crime while under the age of 18.

NCYL is also part of an effort to create a national collation for coordinating advocacy to ban this sentencing around the country. The advocates in this coalition take heart in the U.S. Supreme Court’s decision in Roper v. Simmons, 543 U.S> 551 (2004) because it acknowledges fundamental differences between adults and children that make egregiously harsh sentencing disproportionate and unnecessary.

1 The Rest of Their Lives: Life without Parole for Child Offenders in the United States. Human Rights Watch and Am­nesty International, October, 2005, p.l, available at:
2 Id. at 5.
3 Id. at 27.
4 Id. at 28.
5 Id. at 2.
6 National Center for Youth Law inter­view with Alison Parker (Human Rights Watch author of The Rest of Their Lives), March 2, 2006.
7 The Rest of Their Lives, at 40.
8 See e.g. Miles Moffeit and Kevin Simp-son. Judges in Both Cases Troubled by End Results, Denver Post, Feb. 21. 2006: Ken Armstrong, Florangela Davila. Justin Mayo, "For Some, Free Counsel Comes at High Cost, Seattle Times. April 4, 2004. available at: http://seattletimes.
9 Lambert v. Blodgett. 248 F.Supp. 2d 988 (E.D. Wash. 2003). affd in part, rev'rj in part. 393 F. 3d 943 (9th Cir. 2004). cert.dened. 126 S. Ct. 484 (2005).
10 Lambert v. Blodgett. 393 F.3rd 943 (9thC ir.2004)
11 Second Chances: Juveniles Serving Life without Parole in Michigan Prisons (ACLU of Michigan, 2004), p. 16, avail­able at:
12 Roper v. Simmons. 543 U.S. 551 (2005) (juvenile deatn penalty violates the Eighth Amendment's prohibition against cruel and unusual punishment).
13 Relying on neurosctence and psycho­logical research, the Court in ffoperfound that youth tend to make "impetuous and ill-considered decisions," they have "sus­ceptibility to negative influences and out­side pressures," and the nature of their character traits is "transitory," making their capacity for rehabilitation greater than that of adults. Id. at 569-570.
National Center for Youth Law
14 Naovarath v. State, 779 P.2d 944, 944 (Nev. 1989), cited in Nina Chernoff and Marsha Levick. "Beyond the Death Penalty: Implications of Adolescent De­velopment Research for the Prosecution. Defense, and Sanctioning of Youthful Of­fenders. Clearinghouse REVIEW Journal of Poverty Law and Policy, July-August 2005, at.212.
15 National Center for Youth Law inter­view with Alison Parker (Human Rights Watch author of The Rest of Their Lives), March 2, 2006.
16 206 Colo. Leg:s. Ch. 228 (West).
17 For example, the Denver Post ran an in-depth series highlighting the extreme physical, emotional, and sexual aouse suffered during childhood of many juveniles serving LWOP sentences. Miles Moffeit and Kevin Simoson, "Teen Crime, Adult Time." Denver Post. Feb. 17, 2006, available at: http^/www. See also: hUp:/ /www ,' ar t ic le/ht ml/fragments/print .article. jsp?articie=3636564.
18 Petition \s available from National, Center for Youth Law.
Litigation and legislative efforts. to eliminate juvenile LWOP sentences are underway and in various stages of planning in several states.

The disproportionate use of this sentence on youth of color is extreme. Nationwide, black youth are sentenced to life without parole at a rate 10 times greater than white youth.