The practice of sentencing juvenile offenders of serious crimes to life in prison with no chance of parole is not effective and a different approach should be used, write the authors of a recent ACS Issue Brief. In "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole," Jody Kent, of the Campaign for the Fair Sentencing of Youth, and Beth Colgan, of the Institutions Project at Columbia Legal Services, write that no other country except America sentences juvenile offenders to life without the possibility of parole, a practice banned by the United Nations Convention for the Rights of the Child.

The authors cite the significance of research showing that juvenile offenders should be treated differently than adults:

Youth do not have adult levels of judgment, impulse control, or ability to assess risks. There is widespread agreement among child development researchers that young people who commit crimes are more likely to reform their behavior and have a better chance of rehabilitation than adults.

The U.S. Supreme Court is currently considering two cases involving the constitutionality of sentencing youth to life in prison without parole. Oral argument in Graham v. Florida and Sullivan v. Florida were heard in November and decisions in the cases are expected soon. For more on the constitutional issue in those cases, see a guest post from constitutional law expert Charles Ogletree here. 

[image via lawanddisorder.org]

 

Following a recent National Press Club event on criminal justice policy, the Open Society Institute's Senior Policy Analyst Nkechi Taifa talked with ACSblog about the timeliness for new approaches to dealing with crime. Taifa said that the typical tough-on-crime approaches have failed, and that a new "integrative" approach was needed. She said there is hope now for new criminal justice policies because of "courageous lawmakers," such as Sen. Jim Webb and Rep. Bobby Scott, who have introduced legislation that would advance new approaches to criminal justice.

"Prospects for reform are bright," Taifa said. "The political will is there." Webb and Scott both participated in the ACS event on criminal justice policy. A YouTube clip of Webb's comments is here and a portion of Scott's comments is here. Video of the entire event is available here. Watch Taifa's interview below or download it as a podcast here.

 

 

At a recent ACS event exploring criminal justice policy, Sen. Jim Webb and Rep. Robert C. Scott said the nation needs to confront shortcomings of the criminal justice system.

Below are two YouTube clips of the lawmakers' comments. Webb discussed legislation he is sponsoring, the National Criminal Justice Commission Act, and Rep. Scott said that tough-on-crime laws have proven ineffective and costly.

Webb said, "America's criminal justice system is broken and its inequities cut against the notion that we are a society founded on fundamental fairness. I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process."

Rep. Scott said, "Research clearly demonstrates that a comprehensive approach - a strategy of prevention, early intervention and rehabilitation will significantly reduce crime and usually save more money than you spend it the process." Video of the event, including the lawmakers' entire comments, is available here.

 

PTSD Defense via "Selective Empathy": ACS Board member Linda Greenhouse on the Supreme Court overturning a veteran's death sentence.

Huckabee & Clemmons' Clemency: The former governor's persistent defense of clemency for an apparent cop-killer.

Civil Disobedience or Epidemic?: Following the jailing of their colleague, 20 courthouse deputies call in sick.

Crime-fighting with Criminology: Cincinnati's "unusual" approach to combatting gang violence.

Re-Thinking the System: Sen. Jim Webb and other special guests join ACS for a major event on Wed. 12/9 to assess the shortcomings and opportunities in our country's approach to criminal justice.

[Image via Daniel Y. Go.]

The Supreme Court heard oral argument in two Florida cases involving whether life sentences for juveniles, with no chance of parole, violate the Constitution's ban on cruel and unusual punishment. The Associated Press reports that the justices appear "sharply divided" over the issue. The news service notes that Justice Ruth Bader Ginsburg said that "because of immaturity, you can't really judge a teenager at the point of sentencing," but that Justice Samuel Alito seemed to side with Florida, which is arguing that that the juveniles' punishment does not raise constitutional concerns.

In analysis for SCOTUSblog, Lyle Denniston writes that Chief Justice John Roberts "made a strong - and repeated - effort on Monday to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence." Denniston explains that Roberts' "alternative would apparently be a declaration that the Constitution's Eighth Amendment ban on cruel and unusual punishment required judges to take the offender's youth into account in setting any sentence for term of years, then judge whether that sentence was ‘proportional' both for an offender of that age and for the particular crime."

Sullivan v. Florida involves the sentence of Joe Sullivan, who as 13 when the state sentenced him for life without parole for a sexual assault conviction. Graham v. Florida involves Terrance Graham who was sentenced at 17 after violating his probation. The Washington Post reports that nationwide more than 100 people "are serving life sentences without parole for crimes they committed as juveniles that did not result in a death ...."

In a guest post for ACSBlog, Harvard Law School Professor Charles Ogletree analyzed the cases and concluded, in part, that the Supreme Court should affirm its "reasoning put forth in Roper v. Simmons, which struck down capital punishment for juveniles. Roper established what every parent knows and what science confirms: adolescents are fundamentally different from adults in maturity and judgment." 

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By Charles Ogletree, Jesse Climenko Professor of Law & Director of the Charles Hamilton Houston Institute for Race and Justice at is Harvard Law School. Ogletree submitted an Amicus brief in support of Petitioners with the NAACP Legal Defense & Educational Fund and the National Association of Criminal Defense Lawyers.

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The United States Supreme Court will hold oral arguments on November 9 in two cases, Sullivan v. Florida and Graham v. Florida, which will determine whether it is cruel and unusual punishment under the Eighth Amendment to sentence an adolescent who committed a non-homicide offense to life in prison with no opportunity for release.

Petitioners Joe Sullivan and Terrance Graham were both sentenced to life imprisonment without parole for offenses that did not involve homicide in Florida. Sullivan was 13 years old when he was sentenced to spend the remainder of his natural life in prison. Graham received life without parole for a parole violation at 17 years old. He was sentenced without a trial.

Sullivan and Graham present an opportunity for the Court to affirm the reasoning put forth in Roper v. Simmons, which struck down capital punishment for juveniles. Roper established what every parent knows and what science confirms: adolescents are fundamentally different from adults in maturity and judgment.

The extensive body of research on adolescent development proves that adolescents have not reached the level of mental or emotional development that allows adults to make mature decisions, think through consequences, and control their impulses. This same developmental immaturity also makes adolescents the strongest candidates for rehabilitation as they grow older.

In Roper, the Court asserted that these significant developmental differences have direct bearing on the culpability of adolescents. The Court ruled that their immature judgment, impulsive decision-making, vulnerability to peer pressure, and inherent potential for rehabilitation reduce culpability such that sentencing them to death violates the Eighth Amendment.

These principles should be applied to the constitutionality of juvenile life-without-parole sentencing. The same transient qualities of adolescence that the Court relied upon in Roper make it similarly inappropriate to subject a teenager to a permanent punishment of life in prison without parole. It is cruel and inaccurate, as the Court has recognized, to pass a final and irreversible judgment on a person whose character is still forming and undergoing significant changes.

Every state acknowledges this relative immaturity of adolescents through civil laws mandating their differential treatment. States restrict adolescents from a wide range of activities that require more mature judgment, such as voting, driving, and consenting to sexual activity. In Florida, the State even restricts the age at which adolescents are allowed to get tattoos, operate golf carts, or attend professional boxing matches. Yet when it comes to criminal sanctions - such as those imposed on Sullivan and Graham - the State disregards this reasoning that young people are indeed categorically different.

The extreme rarity of the punishment shows that it is widely rejected by American society. Only six states are known to imprison juveniles for life without parole in non-homicide offenses. It has been eighteen years since any state sentenced a 13 year old to life without parole for a non-homicide offense. Sullivan is one of only two people in the entire country serving such a sentence. The total number of 13 and 14 year olds sentenced to life without parole for any offense over the last thirty years is 73. Florida is the only state nationwide with a first-time juvenile offender serving life without parole for armed burglary (Graham's offense). This kind of national repudiation has been recognized by the Court as a characteristic of cruel and unusual punishment prohibited by the Eighth Amendment. It should similarly be applied here.

Although not at issue before the Court, there is an appallingly disturbing component to these juvenile life-without-parole cases. Adolescents subjected to this punishment are disproportionately children of color. In fact, every single young person sentenced to life without parole for a non-homicide offense is a racial minority.

It is my hope that the Court follows its logic in Roper and acknowledges that these punishments must be tempered by an understanding that young people are categorically different in maturity and culpability.

Life-without-parole sentences were designed to deal with the most dangerous offenders who are beyond the pale of rehabilitation. Science, the Court's own precedents, and common sense all teach us that adolescents cannot reliably be categorized among the worst adult offenders. The Court ought to do away with this cruel and inappropriate sentence.

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By Maj. (Ret.) Eric Montalvo, Esq., Senior Litigation Counsel at Tully Rinckey PLLC in Washington, D.C. and former Marine Corps Judge Advocate (JAG). Eric currently specializes in national security law and military law. He is noteworthy for his work in securing the release of Mohammad Jawad, one of the youngest Guantanamo Bay detainees.

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Imagine for the moment you are walking along a sidewalk and suddenly you hear and feel an explosion. As you run for your life someone tackles you and gives you over to the police. Within hours you are hooded and handed over to a foreign power and a month later put on a plane to somewhere. The foreign power who has detained you continues to make allegations that you were somehow involved in the explosion which you repeatedly deny. The foreign power "invents" a legal process which is found to be inadequate, the second version is found inadequate as well, and they are now working on a third version. The judges, prosecutors, and most defense counsel have no experience as it relates to national security litigation and capital punishment. You are introduced and assigned to military defense counsels who wear the same uniform as the prosecutors. Men, some of whom may be totally innocent, awake every day to this indefinite detention. This is the reality of the Military Commissions system for detainees at Guantanamo Bay.

Trial by the Military Commissions does not present defendants with a meaningful opportunity to challenge the bases of their detention. Even a determination by the Commission that it does not have personal jurisdiction over a defendant, or, after trial, that the defendant should be acquitted, does not have a binding effect. The Bush Administration policy maintained a policy of indefinite detention regardless of the outcome as described by the Pentagon Press Secretary Geoff Morrell whereby he stated at a news conference, "even if he [the detainee] were acquitted of the charges that are before him, he would still be considered an enemy combatant and therefore would continue to be subjected to-subject to continued detention." It is a policy that is currently being followed by the Obama Administration and, in the meanwhile, detainees are held with no hope of release.

The primary purpose of drafting the Constitution was to limit government power. The Due Process guarantees found in the Bill of Rights were meant to empower individuals against arbitrary government action. This is a bedrock principle of American jurisprudence and is being completely ignored as a policy concern in relation to Guantanamo detainees.

Ironically strong notions of Due Process are embedded in the current version of the Rules for Military Commissions (R.C.M.). Pursuant to R.M.C. 707, "within 120 days of the service of charges, the military judge shall announce the assembly of the military commission, in accordance with R.M.C. 911." This is being completely ignored. For example, in the case against Mohammad Jawad charges were preferred in October, 2007. The charges were referred to trial on January 30, 2008, Mr. Jawad was arraigned in March, 2008 and trial on the merits was scheduled to commence on January 5, 2009. Pursuant to the President of the United States in Executive Order 13492, issued on January 22, 2009, the United States requested a 120-day delay in order to participate in the review of the status of Guantanamo Bay detainees, and military commission process. In May a second stay was requested which has since expired and we are currently in a third period of delay. Based upon the current state of things, Jawad would still have been waiting for his day in court almost two years later.

Luckily Jawad was able to secure relief through the habeas process after a protracted campaign of deflect and delay by the U.S. Government. He is the exception to the norm. What is remarkable is that Jawad was purportedly one of the easiest cases to dispose of. This was confirmed by the prosecution who chose the case for its ability to result in a quick clean conviction under the then newly established Military Commissions Act. One can only imagine how long the process will endure for some of the more complex cases still pending. Most disconcerting is the pool of detainees who have not even been charged and therefore no assessment has been made by a detainee proponent as to their innocence.

The travesty is that all of the discussion about closing Guantanamo and fixing the system has resulted in little or no movement regarding the disposition of these cases. The government continues to frustrate investigative efforts on the premise that the system will change and therefore any expenditure of effort is a waste of government resources.

The Muslim Chinese Uighers currently at Guantanamo are known to be innocent and releasable yet they continue to endure detention. The irony of depriving men of freedom out of concern for a country who has one of the worst documented human rights records in the world is disconcerting at best. As the Obama Administration's one-year countdown turns from months to days, a clear due process system needs to be in place to ensure that detainees can get out of legal limbo. It is in times of conflict that the Republic must hold tight the principles of the rule of law lest we spoil the very thing that we have sacrificed so many to protect.

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By Maha Jweied, Senior Attorney-Advisor, Office of the General Counsel, U.S. Commission on Civil Rights; former law clerk, Appeals Chamber, International Criminal Tribunal for the former Yugoslavia; 2009-2011, Young Lawyers Division Liaison, ABA Section of International Law; 2009 ACS Public Interest Fellow. The views expressed below are those of the author alone.

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I had the extraordinary opportunity of working on a juvenile death penalty case when the U.S. Supreme Court ruled the practice unconstitutional in the 2005 decision of Roper v. Simmons. With our client's 28th birthday just days away, there was no better gift than to let him know that as a result of this decision, his life would be spared. We felt victorious-although it was clear that the luck of timing had more to do with the good outcome than our lawyering skills.

While over four years have passed since that fateful day, the case remains meaningful to me for many reasons, not least of which was the opportunity to work with colleagues dedicated to securing justice for our client. But the case was also meaningful because our client was spared in good measure due to international law. In reaching its decision, the Court reviewed the status of the juvenile death penalty in other nations and stated that "[i]t is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty." As a student of U.S. civil rights law and public international law, I always knew that these two areas of law were interrelated. But I had not anticipated that a case with facts which were purely domestic in nature-a criminal case in rural Alabama-would be directly affected by a consideration of international state practice. I felt proud of the U.S. legal system and thought back to my classmates in London, where I studied public international law, and their criticism of the theory of American exceptionalism. Surely, their criticisms had to be checked. But of course, a countervailing set of criticisms from domestic jurists immediately surfaced. These criticisms-which appeared more like xenophobia than American exceptionalism-gave me pause. How could looking outward and considering other countries' practices be considered a weakness when we pride ourselves in being a country of immigrants?

More importantly, how was the use of international law in domestic civil rights matters not customary when in fact the two spheres of law have been intertwined for decades? Professor Bert Lockwood's critical review of the use of international human rights law, through the UN Charter, in the early years of the U.S. civil rights movement reminds us that the movement did not shy away from using international human rights principles in its arguments before domestic courts. And not only did they place these arguments before domestic courts, but before international bodies. In 1947, the NAACP took the case of race discrimination in the U.S. to the UN Commission on Human Rights-although ultimately the politics of the Cold War era stifled this effort.

But in addition to the use of international law in domestic courts and by national organizations in the international arena, it should be noted that much of the international framework to promote human rights was created and promoted by Americans. From Eleanor Roosevelt's service as the Chairman of the UN Commission on Human Rights when it was tasked with drafting the Universal Declaration of Human Rights to the creation and development of the modern international criminal legal regime, Americans have led in this field. At the International Criminal Tribunal for the former Yugoslavia (ICTY), the largest grouping of American attorneys can be found in the Office of the Prosecutor-recruited for their adversarial experience. Moreover, many aspects of the Tribunal's jurisprudence rely on American law: from U.S. criminal procedure to the substantive law as set by the twelve U.S. Nuremberg Military Tribunals. As a law clerk at the ICTY, almost all of my research while at the tribunal included a review of American law-primarily at the urging of non-Americans.

While it is clear that the use of international law in promoting domestic civil rights and the use of American law in promoting international human rights are intertwined, it is striking how these fields are perceived as separate. Undoubtedly, the academic community understands the link, but practitioners in both fields do not necessarily recognize their connection. Over the course of the last year, there have been noteworthy recommendations by new and longstanding organizations to link domestic civil rights with human rights in a more aggressive manner. Such recommendations have been met with skepticism and resistance. Unfortunately, due to this resistance, it is unclear to me what form these recommendations may eventually take. But what is certain is that the arguments to strengthen the United States' position vis-à-vis international law must start with a clear historical understanding of its use domestically and a recognition of the United States' prominent role in the creation of the modern international legal regime.

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By Kamala Harris, San Francisco District Attorney

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States across our country are facing budget deficits. California is projected to begin next fiscal year with a deficit of nearly 25 billion dollars, equaling one fourth of the state's entire general fund. Over 10 billion of that general fund supports corrections and law enforcement. In this fiscal crisis, there is no denying the facts: tough budget times are here for public safety agencies. As the District Attorney for the City and County of San Francisco, I am personally familiar with the difficult circumstances we face. Without a significant shift in local and state practices, we can predict that shrinking law enforcement and corrections funding will result in higher crime rates, less support for victims, and fewer offenders being held accountable. If ever there was a time to think outside the box and break with the failed approaches of the past, the time is now. We need to do something different.

In San Francisco, I have developed a smart on crime approach: we must be tough on serious and violent offenders while we get just as tough on the root causes of crime. In my office, we have raised felony conviction rates and sent more violent offenders to state prison, at the same time we have launched innovative, cost effective approaches to reduce recidivism, truancy, and childhood trauma. With a genuine investment in breaking cycles of crime, we can improve public safety at the same time that we save precious public resources.

Reentry: Why it Matters to Law Enforcement

Over the last thirty years, our prison population has soared. In 1980, California had a prison population of about 24,000 in a state of 24 million. Today we have an inmate population of 172,000 out of 36 million people. This means that since 1980, our population has grown by 50 % while our prison population has grown 617%.

Today, the majority of those inmates are not first-time offenders. Each year, approximately 70 percent of those released from California prisons commit another offense, resulting in the highest recidivism rate in the nation. These repeat offenses are preventable crimes that claim more victims and harm communities' quality of life. It costs an estimated $10,000 to prosecute just one felony case, and about $47,000 per year to house just one inmate in prison. Every time an inmate is released and commits a new crime, local and state jurisdictions pay those costs over and over again. To keep our communities safe and use public money wisely, we must ensure that people coming out of the criminal justice system become productive citizens and stay out.

Four years ago my office pioneered a model reentry initiative called "Back on Track" to reduce recidivism among nonviolent offenders. Back on Track combines accountability with opportunity to ensure that first-time nonviolent drug offenders are held accountable, stop committing crime and become self-sufficient. In Back on Track, offenders plead guilty and commit to strict court supervision as they complete an intensive personal responsibility program. They get trained for a job, go back to school, get current with child support, enroll in parenting classes, and become positive contributors in their communities. The program encompasses swift sanctions for making bad choices and clear incentives for good ones. As a result, less than 10 percent of Back on Track graduates have re-offended compared to a 54 percent recidivism rate statewide for the same population of offenders. We have achieved this success at a fraction of the cost of traditional corrections approaches. Back on Track costs about $5,000 annually per participant, compared to $35,000 to 47,000 for jail or prison.

To graduate, Back on Track participants must be employed or in school. The program has been selected as a national model by the National District Attorney's Association and at least two jurisdictions have replicated the initiative. Back on Track demonstrates that preventing recidivism is both viable and cost-effective.

Truancy: Keeping Children in School Means Keeping Our Streets Safe

In 2007, after another year of high homicide rates in San Francisco, I asked my staff to review the victims' histories to assess trends. We found that over the prior four years, 94% of homicide victims under the age of 25 were high school drop outs. We then reviewed SF public schools data and found that over 5,000 students were habitually or chronically truant each year, and nearly half of those kids were in elementary school. These are the kids on route to becoming high school drop outs.

In response, I joined with the San Francisco Unified School District to launch a citywide truancy initiative focused on getting elementary and middle school kids back in school. As the city's chief prosecutor, I sent every parent in the district a letter explaining that I was prepared to prosecute parents if they broke the law by keeping their children out of school. I was surprised to discover that many parents didn't know that California law makes education mandatory for children under the age of 18. Thousands of parents attended informational meetings on truancy after receiving the letter, and we fielded hundreds of calls from parents who had questions or needed help.

We also held face-to-face "D.A. Mediation" meetings with over 2,000 parents. Suddenly, the principals didn't need to work so hard to convince parents to take seriously the consequences of keeping their child from school because a prosecutor was in the room. Through these mediations, we met parents in need of help to get their kids in school. One mother of three, for example, was homeless and holding down two jobs. We connected her to services so she could do what she wanted to do - be a good mother and put her children in school.

Mediations resulted in significant progress for most of the parents. Still, some continued to fail. In these cases, my office filed criminal charges. The children of these parents, some as young as six years old, had missed as many as 80 days of school out of a 180 day school year. Once we filed criminal charges, things started to change. Those parents report to a Truancy Court that combines consequences and support services to make sure that parents get their children in school.

Since we started this initiative, truancy rates for elementary school kids in San Francisco have dropped by 23 percent. And it did not take millions of dollars, bureaucratic red tape, or a decade to see results. It only took genuine commitment and a willingness to shake up the status quo.

What starts out as chronic truancy makes a child far more likely to end up dropping out of school, becoming a victim, or getting arrested. Taking swift corrective action now will reduce the likelihood of harmful and costly consequences later.

Childhood Trauma: Breaking the Silence to Help Children and Youth

Last year in San Francisco, a teenage boy was gunned down while waiting outside a school for a ride. His senseless murder was witnessed by dozens of young students who were outside at the time. Months later, many of these youth had not accessed mental health support to recover from what they saw. Worse still, for some, it was likely not the first time they had witnessed violence. Some young people come from homes where violence is the norm, while others see violence in their neighborhoods far too frequently. The impact of repeated exposure to violence on children is enormous: they can't concentrate in school, they're detached, or they act-up and misbehave.

Like soldiers at war, children are highly likely to suffer from trauma from repeated exposure to violence. And like soldiers coming home, they often suffer from Post Traumatic Stress Disorder (PTSD). Unfortunately, many of these children go undiagnosed or are misdiagnosed and thereby not treated appropriately. Worse still, children repeatedly traumatized by violence at an early age are more likely to fall through the cracks and become either victims or perpetrators of violence later in life.

Studies have shown that up to 35 percent of children and youth exposed to community violence develop PTSD. Exposure to community violence affects everything from a child's sleep, to their school success, to the physical development of their brains.

In the District Attorney's Office, we often see the needs of children from distressed families or neighborhoods go untreated. To address these unmet needs, last year we joined with California State Senator Mark Leno to craft ground-breaking legislation to provide funding for mental health counseling for traumatized children and youth. Signed into law last year, our bill allows children who witness community violence to access up to $5,000 for therapy and mental health support.

When we look at children growing up in tough environments, we need to see them through a prism instead of a plate glass window. Left unaddressed, their complex and difficult surroundings can overwhelm their minds and harm their chances for future success. If we can recognize their needs and get timely help, we can substantially increase life prospects for these children before it's too late.

What Needs to Happen Can Happen

These are just a few examples of what can be done to improve public safety and break the cycle of crime. Being smart on crime requires changing our thinking. Albert Einstein once said, "The significant problems we face cannot be solved at the same level of thinking we were at when we created them." The State of California is at an economic crossroads that demands new approaches. I am confident that we can meet that demand through a long-term strategy of responsive, preventative and evidence-based "smart on crime" approaches, thereby ensuring a better and safer future for all of us.