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
By ADAM LIPTAK
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

Editorial

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.