Life Without Parole - Cruel and Unusual for Minors

by Marshall Dayan, capital defense attorney, one of the nation's leading authorities on the death penalty, advisor to JSPAN's Death Penalty Policy Center and JSPAN Board member. On November 9, 2009, the Supreme Court of the United States will hear oral arguments in two cases from Florida – Graham v. Florida and Sullivan v. Florida. Both cases involve the issue of whether the ban on cruel and unusual punishments contained in the Eighth Amendment of the Bill of Rights is violated by the imposition of a life sentence in prison, without the possibility of parole, on a juvenile who has not committed a murder. Few people realize how prevalent such sentences have become in the United States. According to a July 22, 2009 story in USA Today citing a study by a Washington, D.C.-based criminal justice think tank, The Sentencing Project, Pennsylvania leads the nation with 345 juveniles sentenced to life without parole (hereafter LWOP). That same article says that The Sentencing Project’s report finds that, nationally, 77% of all juveniles sentence to LWOP are non-white. Such harsh sentences often seem appropriate for the commission of brutal and senseless crimes, whether or not committed by juveniles. But there are reasons why such harsh sentences are not appropriate for juveniles, irrespective of the nature of the crimes committed. In 2005, in Roper v. Simmons, the Court concluded that imposition of the death penalty for those who commit murder when they are juveniles violates the Eighth Amendment’s ban on cruel and unusual punishments. The Supreme Court found three relevant and critical differences between juveniles and adults when it comes to their culpability for crimes. First, youths tend to lack maturity and have an underdeveloped sense of responsibility as compared to adults, and "[t]hese qualities often result in impetuous and ill-considered actions and decisions." Second, according to the Court, juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure, than are adults. This is true, in part, because juveniles have far less control over their own environments. And finally, "the personality traits of juveniles are more transitory, less fixed." That is, as common sesne would suggest, juveniles are still developing – their personalities are still developing, their brains are still developing, their bodies are still developing. They are, by definition, not fully formed human beings. According to the Court, it is difficult to conclude that a juvenile, no matter the nature of his or her criminal conduct, can be considered among the most culpable, and therefore among the worst, of offenders. There are other penological reasons why the Court held that juveniles should not be sentenced to death. For any punishment to be constitutional, it must advance legitimate penological goals. Those goals, the Court has often held, are deterrence and retribution. But for the same reasons that juveniles are less morally culpable, they are likewise less likely to be deterred by the threat of punishment. The Court noted, "the likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually non-existent." As for retribution, the Court reasoned that “from a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” While the United States Supreme Court has often said that the penalty of death is different not only in degree but in kind from any other kind of punishment, it cannot be gainsaid that the above reasoning, which led the Court to conclude that the death penalty for juveniles, even those who commit murder, is cruel and unusual, is not equally applicable to the imposition of LWOP to juveniles who commit barbarous but non-homicidal crimes. The same concerns expressed by the Court about the penological goals of deterrence and retribution being advanced by the death penalty for juveniles is equally applicable to the penalty of LWOP. It denies the fundamental nature of the juvenile – that he or she is not a fully formed human being whose character or brain will certainly change as an adult. The LWOP sentences leaves no room for such change. The Talmudic rabbis understood that minors were not, and could not be, fully culpable, and therefore were not responsible for their crimes. According to Samuel Mendelsohn, The Criminal Jurisprudence of the Jews, one was not answerable to the criminal law until he or she had reached the age of twenty, repeatedly quoting the following: "Heaven visits no punishment on man for sins committed before the age of twenty." Our tradition has, in many ways, been a beacon for the future. So, too, in this case, the Court should find the wisdom of our Sages instructive, and conclude that LWOP is cruel and unusual punishment, in violation of the Eighth Amendment, as applied to juveniles. LWOP should be rejected for juveniles.