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CrimeTalk

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Punishing juveniles in the USA: the death penalty and life without parole

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Here are some further comments and background regarding the new link on juvenile punishment here in CrimeTalk (under the tab Archive/Punishment http://www.deathpenaltyinfo.org/juveniles-and-death-penalty) and my August 31st tweet on juvenile life-without-parole sentences in California and Texas, https://twitter.com/#!/CJacksonJacobs/status/108945770736136192

In 2009, the US Supreme Court ruled that it was unconstitutional to sentence children to Life without the possibility of parole (LWOP)—except in cases of murder. Most states, however, have more lenient laws, forbidding LWOP sentences for children in any case.

One of the exceptions, surprisingly, is California – widely deemed the most “progressive” and “liberal” of the United States. Last week, California’s legislature failed to pass a bill that would have outlawed LWOP sentences for juvenile offenders. The vote was a tie, meaning that the bill could still pass. Another vote will likely be taken in the next few weeks, according to the San Francisco Examiner. That California did not pass the bill is a grim reminder of the extreme tendency to punitive policies in the American justice system, politics, and popular culture, relative to its global peers.

Meanwhile, the legislature of Texas – reputed to be the most punitive state in the US – called a halt to all LWOP sentences for juveniles in 2009 (i.e., a more lenient policy of punishment than allowed for by the US Supreme Court).

However, the topic is more complicated than it might appear, given the conflicting interests and claims of various levels of appellate courts and branches of government (i.e., state legislatures and governors). The bill was not retroactive, meaning there are still convicts serving LWOP sentences for crimes committed as youths. A Texas Court of Criminal Appeal ruled in 2010 that youths sentenced prior to the 2009 law did not have the right to have their LWOP sentences reduced (Meadoux v Texas). In 2011, the legislature voted not to make the 2009 law retroactive. Nonetheless, Texas’ juvenile-LWOP policy remains more lenient than California’s. 

This is, actually, a remarkable turnaround. Within the past decade, Texas was still one of twenty states sentencing children to death (though not actually executing children—if for no other reason than that the automatic appeals in a death penalty case take years to complete).

The US shares the dubious company of only Somalia in having refused to sign the 1989 United Nations Convention on the Rights of the Child, forbidding the death penalty for children. The same year, the US Supreme Court upheld the legality of capital punishment for children 16 years and older. Of course, many signatories have in fact carried out executions of children (see link above). Yet, officially, until 2005, the United States remained one of only two countries that permitted capital punishment for crimes committed by juveniles.

In practice, a relatively small number of Americans have been executed, at least in recent decades, for crimes committed while they were children. And, in all of these cases, the condemned were at least 23 years old by the time of their executions. Of the 22 executions recorded between 1976 (when the US Supreme Court ended a moratorium on executions) and 2005, 13 were carried out in Texas. In 2005 the US Supreme Court finally ruled capital punishment for juveniles “cruel and unusual,” and thus unconstitutional (Roper v Simmons, overturning an earlier 1989 decision).

Notably, Texas Governor Rick Perry, a Republican and vocal advocate of the death penalty, who could conceivably be the United States’ next President George W. Bush (under whom he served as Lt. Governor of Texas before becoming Governor himself), has denounced the courts for all these decisions, including the no-executions-for-juveniles decision by the US Supreme Court. In fact, he even criticized Bush himself for imposing a moratorium on executing Mexican nationals who hadn't been allowed consular contact—an issue of continuing tension with Mexico. This matter is a particular concern, since criminal justice coordination is central to both countries’ strategies to end the current wave of drug killings. Perry is publicly pleased, however, that he can still legally execute the mentally retarded in Texas.

Many Americans, in my experience, including a considerable portion of criminology/criminal justice students, are unaware of how harsh American judicial punishments are in comparison with other wealthy, administratively and technologically advanced nations. Many are shocked to learn that many countries do not impose life sentences at all, and that most courts in most countries tend to only impose sentences longer than 25 years in extreme cases.

As Michael Tonry (1999) has noted, Americans understand “justice” in a highly punitive manner. Rather than considering evidence about effective policies or what will reduce crime—much less calculations about what would be most beneficial to the society as a whole—decisions are made in a spirit of retribution and symbolic crusading. Crime must be punished, and the only punishment that “counts” is imprisonment. Mark Kleiman (2009) has taken the argument a step further, noting that Americans seem not to recognize that punishment is a cost (both human and financial) to society. That is, Americans seem to view punishment itself as a benefit, an end in itself.

The consequence has been a consistent increase in number of incarcerated Americans over the past several decades. The recent economic crisis seems, for the first time in over 30 years, to have provided a sufficient incentive to stabilize – or at least slow the growth of – local jail and state and federal prison populations, which have increased nearly five-fold since 1980 (from about 500,000 to nearly 2.5 million in 2009 [see Bureau of Justice Statistics, Total Correctional Populations, at http://bjs.ojp.usdoj.gov). As it stands now, about 1% of American adults are incarcerated on any given day. This includes large numbers of old men (and increasingly women) who are no longer a statistical threat, but have become medically costly burdens on the penal system.

Highly punitive policies that disregard any semblance of a cost-benefit analysis—25 years-to-life sentences for third-time offenders (“known as three strikes” policies), mandatory long-term sentences that eliminate judicial discretion, and life sentences for children—only serve to exacerbate this massive social cost.

Curtis Jackson-Jacobs, US correspondent and commissioning editor, CrimeTalk.

References:

Kleiman, Mark. 2009. When Brute Force Fails: How to Have Less Crime and Less Punishment. Princeton University Press.

Tonry, Michael. 1999. “Parochialism in U.S. Sentencing Policy.” Crime & Delinquency 45 (1): 48-65.

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