Wednesday, 25 July 2012

Sentences for young offenders are too severe in the USA

 Some of the background behind the text is white. It has no significance with respect to the text as it is simply an anomaly in the printing.

In 1980, I was invited by the United Nations to speak at the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders as a criminologist in which the said Congress was held in Caracas, Venezuela during the last week of August and the first week of September.

 It was the year of the child so my second speech I gave at the Congress was on the need for the United Nations to create a bill of rights for young offenders. Since I was there only as a consultant to the Congress on the rights of children, I couldn`t personally bring in a resolution for the UN to create the bill of rights. I knew that would be left to the delegations representing the many nations attending the Congress.

 The American delegation upon hearing my speech was impressed enough to bring in the resolution the following day that was needed to start the ball rolling. The evening of the day I gave my speech, I was invited to meet with members of the America delegation in the Canadian ambassador’s home and discuss my views with respect to how their resolution should be drafted. The following morning, they brought the following resolution to the Congress. Their resolution in part read as follows;

 “Recognizing that a high degree of social attention should be paid to the ways in which juveniles are handled because of their early stage of development, standard minimum rules for the administration of juvenile justice are important in protecting the fundamental rights of juveniles that those standard minimum rules should reflect the following basic principles;” unquote 

 The resolution included various aspects of the rights of young offenders which I listed in my speech and others which time limitations weren’t available to me to add in my speech. (anyone addressing these Congresses has to limit his or her speech to only ten minutes)

 All the delegations voted in favour of the resolution so for the next five years, conferences were held around the world and the bill of rights for young offenders was finally drafted up in Beijing, China. In September 1985, it was discussed by the delegates in the Seventh Congress held in Milan in which I spoke at that one also on the proposed Rules and all the delegations approved of the final draft which was then referred to as the Beijing Rules. On November 29th of that year, it was passed by the General Assembly in New York also as the United Nations Standard Minimum Rules on the Administration of Juvenile Justice.

 When the Beijing Rules were being discussed by the General Assembly, the delegates who approved of the Convention, signed it and part 5 of the Rules stated that the UN—

 “Invites Member States to adapt, wherever this is necessary, their national legislation, policies and practices, particularly in training juvenile justice personnel, to the Beijing Rules and to bring the Rules to the attention of relevant authorities and the public in general.” unquote

 Because the United States has 50 individual legislatures, for the Beijing Rules to be applicable in the US, the individual legislatures have to also adopt it. I am not convinced that they all do. In fact, the US delegates at the UN couldn’t actually sign for each of the United States’ individual 50 states.

 Nevertheless, under the commentary portion of the Rules, specifically 22(a) it states that—

 “A juvenile is a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult;” unquote

 There isn’t any specific Rule that states that a juvenile can’t be sent to prison for the rest of his life but Rule 17.1(a) states;

The reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile as well as to the needs of the society.” unquote

In the Commentary it says in part;

Rule 17.1 (b) implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and the future of the young person.” unquote

 Further, there is nothing in the United Nations Rules for the Protection of Juveniles Deprived of their Liberty which was passed on December 14, 1990 by the General Assembly in New York referring to the time limit of imprisonment of juvenile offenders.

 Entering into force On September 2, 1990, the widely adopted United Nations Convention on the Rights of the Child (CRC) is the most important source of International law regarding juvenile justice. The United States and Somalia are the only UN member signatories who have not ratified that particular treaty. I can only presume that the reason why the US delegates at the UN didn’t ratify it is because they could ratify in on behalf of each of its 50 states.

 Article 37 of the CRC prevents states from imposing a death sentence or life without parole on people under age 18. It states;

 No child shall be subjected to torture or other cruel, inhuman, or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age.

For the purpose of the article, I am going to refer my readers to the sentencing practices of the American courts with respect to young offenders brought before them.

 The United States was founded on the principles of individual freedom, equality and due process in a democratic society, but in the area of the justice system, these principles have often been challenged. Nowhere are the principles of human rights and democratic society more at risk today than in the U.S. juvenile justice system.

Juveniles involved in violent crime have not been viewed as children able to benefit from rehabilitation, and the vocal public angered at violent crimes by young offenders sought to provide appropriate adult sanctions to these young criminals. State legislatures focused on violent juveniles and responded with an emphasis on law enforcement and punishment, impacting the entire juvenile justice system.

 The transfer of children to the adult criminal court represents an area where human rights standards are relevant to juvenile justice. Even with the creation of the juvenile court, some children were still processed in the adult criminal justice system. These cases were either transferred actively by the juvenile court judge or passively through direct filing in the adult court.

 Each state can set the of age and offense criteria in its juvenile code that excludes its youth meeting those criteria from the jurisdiction of the juvenile court. This mechanism relies merely on the age and offense of a child as an indicator of adult responsibility, not a hearing where evidence can be presented about the circumstances of the youth and the offence committed. Under these provisions, prosecutors can make the decision without the necessity of a hearing by providing

prosecutors with ever increasing power in the juvenile courts. In United States v. Bland, the Court held that prosecutorial discretion provisions did not violate due process because prosecutors traditionally still held its discretion to make determinations concerning the charge and forum.

 For this reason, young offenders in the United States have been prosecuted as adults and dozens of 13 and 14-year-old children have been sentenced to life imprisonment with no possibility of parole after being prosecuted as adults. While the United States Supreme Court recently declared that death by execution is unconstitutional for juveniles, young children continue to be sentenced to die of old age in prison with very little scrutiny or review. An organization called Equal Justice Initiative has documented 73 cases where children 14 years of age or younger have been condemned to natural life in prison. Almost all of these kids currently lack proficient legal representation and in most of these cases the propriety and constitutionality of their extreme sentences has never been reviewed.

 Most of the sentences imposed on these children were mandatory: the court could not give any consideration to the child’s age or life history. Some of the crimes charged against these children do not involve homicide or even and injury to their victims. Many of these children were convicted for offenses where older teenagers or adults were involved and primarily responsible for the crime. Nearly two-thirds of these adolescents are children of color. I don’t know if that is because they are more prone to committing offences or the police and prosecutors are racists.

 Equal Justice Initiative lawyer Bryan Stevenson argued in two cases at the United States Supreme Court on March 20, 2012, that the life imprisonment without parole sentences imposed on Evan Miller and Kuntrell Jackson constituted cruel and unusual punishment that violates the Constitution. The U.S. Supreme Court on June 25, 2012 issued an historic ruling in Miller v. Alabama and Jackson v. Hobbs holding that mandatory life-without-parole sentences for all children 17 or younger convicted of homicide are unconstitutional. Kuntrell Jackson and Evan Miller, who were sentenced to life in prison without parole at 14, were then entitled to new sentencing hearings.

 Caril Ann Fugate, a 14-year-old girl had a 18-year-old boyfriend who involved her in a sensationalized series of murders in Nebraska in 1958. He was executed in the electric chair. Despite being sentenced to life in prison, Caril became a model prisoner and her sentence was commuted. She was released after serving 18 years, then worked as a medical aide, has never run afoul of the law, and is now a married retiree.

 In 1977, a 14-year-old mentally disabled girl was charged with second-degree murder after setting a fire that tragically killed two people in Chester, Pennsylvania. She was tried in adult court and sentenced to life in prison.

 Demarious Banyard was 13 when he was arrested and ultimately sentenced to die in prison. He was accused of being involved in a robbery-murder with an older man in a public housing project in Jackson, Mississippi. Equal Justice Initiative won a new trial for him in 2010. In June 2012, he was resentenced and should be released in the next several years.

 Equal Justice Initiative lawyers have won new sentences for children in Mississippi and Arkansas who were originally sentenced to life in prison for non-homicide offenses. Both of their clients are now eligible for parole.

 Equal Justice Initiative lawyers argued on March 8th in the U.S. Court of Appeals for the Sixth Circuit that the federal appeals court should uphold the lower court's ruling that granted a new trial to T.J. Tremble, who was sentenced to life imprisonment without parole for murder when he was just 14 years old.

 What follows is a case heard by the Court of Appeal of the State of California. The appellants were two juveniles—Victor Mendez and Luis Enrique Ramos. The case gives you some idea of how the system worked or didn’t work with respect to the sentencing of juvenile offenders in the United States.

 They were tried as adults and appealed from judgments entered following a jury trial that resulted in their convictions of one count of carjacking, one count of assault with a firearm, and seven counts of second degree robbery, including criminal street gang and firearm enhancements on each count. Mendez was age 16 at the time he committed the crimes and Ramos was 15 when he committed the crimes.  They committed their crimes in July 2007, and were convicted on April 24, 2009 when their jury returned its guilty verdicts against them.

 Mendez was sentenced to state prison by the Superior Court of Los Angeles County  for 84 years to life. Ramos was sentenced to state prison for 48 years and eight months.

 The court of appeal ruled that that Mendez‘s lengthy sentence—which was imposed on a juvenile who did not commit a homicide or inflict bodily injury and which makes him ineligible for parole until well beyond his life expectancy—constitutes cruel and unusual punishment and is therefore unconstitutional under the federal and state Constitutions.

 The Supreme Court ruled in another case that a state is not required to guarantee eventual freedom to a juvenile offender under 18 convicted of a non-homicide crime; however the Court does require that a state must give a juvenile some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.

 Although the Supreme Court did not define what constitutes a meaningful‖ opportunity for parole, leaving it up to the State to define in the first instance so that it can explore the means and mechanisms for compliance with the Supreme Court’s ruling. Common sense dictates that a juvenile who is sentenced at the age of 18 and who is not eligible for parole until after he is expected to die does not have a meaningful, or as the Court also put it ―a realistic opportunity of being release before he dies of old age.

 Mendez‘s current sentence essentially guarantees he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager are not representative of his true character, even if he spends the next half century attempting to atone for his crimes and learn from his mistakes.

 The Supreme Court was careful to note that some juveniles who committed truly horrifying crimes may in fact turn out to be irredeemable‖ and thus deserving of incarceration for the duration of their lives. But the Court ruled that such an assessment may not be made at the outset because it denies the juvenile offender a chance to demonstrate growth and maturity.

 One is forced to ask what was on the mind of the sentencing judge when he sentenced Mendez to life in prison. During the sentencing, he said;

 “You know, when I was a young attorney, I used to appear in front of a judge who used to use the term ‘sociopath’. He overused the term, because he used it for everyone who came before him who was sentenced on a serious case. I haven‘t used that term, either as an attorney or much as a judge. Then, I opened Mr. Mendez‘s probation report, and I looked at his juvenile record since age ten, and I saw that he was sent to the Youth Authority for robbery at age twelve in Los Angeles County. Then I saw the crime spree that I witnessed this defendant do. I‘m totally convinced that this particular defendant has no conscience, has no conscience for society or other people‘s lives and property. He just doesn‘t understand the importance of being a law-abiding member of society, not at all, and he‘s proven that since age ten.”  unquote

 The judge then proceeded to impose consecutive sentences, rather than 19 concurrent sentences, for what it characterized as Mendez‘s independent acts of violence against all separate victims.

 The trial court may turn out to be correct in its implied assessment that Mendez is a sociopath, or at the very least that Mendez should be separated from society for the duration of his life, but the Graham decision makes clear that a sentence based on such a judgment at the outset is unconstitutional.

 There is no doubt in my mind that anyone who commits a crime against another person has no empathy for others in society but that doesn’t mean that as an adult, such an offender can’t later change and grow up as a responsible citizen even while in a prison setting.

 There is no question that Mendez‘s crimes are serious crimes deserving serious punishment. He confronted his victims at night with other known gang members, usually outnumbering the victims; he brandished a loaded gun at several victims, thus increasing the risk of death or injury; and he demanded and took their personal belongings. But Mendez did not personally inflict physical injury on any of his victims or discharge his firearm. Certainly, his crimes are less serious than other crimes such as murder or rape. When compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability and that should be taken into consideration when determining the sentence.  Certainly his age youth is relevant because the harshness of the penalty must be evaluated in relation to the particular characteristics of the offender.

 Juveniles have a lack of maturity and an underdeveloped sense of responsibility. They are more vulnerable or susceptible to negative influence and outside pressures, including peer pressure and further, their characters are not as well formed as those in adults. The relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; because as individuals mature, the impetuousness and recklessness that may dominate them in their younger years may and probably will in most of the youth of today subside enough to a degree that they will not commit crimes as adults.

 The court of appeal dealing with the appeal of Mendez said,

 “Additionally, we cannot ignore that co-defendant Ramos received a sentence nearly half as long as Mendez‘s. The People argue this is because Ramos‘s lack of personal use of a firearm made him ineligible for the gang enhancement, and thus for a life term on count 1 of carjacking.  But Ramos, not Mendez, was the only defendant who physically injured a victim. The fact that the defendant‘s actions in committing the crime did not result in physical injury reflects on his culpability and, in turn, serves as some measure for the harshness of the sentence imposed. We conclude that Mendez‘s youth and the absence of injury or death to any victim raise the strong inference that Mendez‘s de facto ‘life without parole’ sentence is grossly disproportionate to his crimes and culpability.” unquote  

 California‘s sentencing scheme has a perverse distinction between juvenile offenders under 16 years old in which it provides harsher punishment for those who do not harm a victim kidnapped for ransom than for those who commit murder with special circumstances.

 The decision with respects to Mendez’s appeal was that his case was remanded to the trial court for reconsideration of his sentence in light of the principles discussed in the appeal court’s opinion.

In conclusion, I wish to say that although there are some juvenile offenders who are clearly sociopaths and should be imprisoned for as long as is necessary to protect the wellbeing of the general public, such sentences shouldn’t apply for offenders who have committed lessor crimes and are not sociopaths. Unless it can be established that a juvenile offender who has been convicted of a non-homicidal crime, and isn’t a sociopath, that juvenile should not be sent to prison for the rest of his or her life. To submit such a person to such a high degree of punishment is a slap in the face of those who believe that justice is paramount in the affairs of human beings.

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