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;
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.
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
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.
“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
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.
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.
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.
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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