Saturday, November 14, 2009

Jail deBait

In a narrow 5-4 decision (Ropers vs. Simmons), in 2005 the United States Supreme Court held that the “Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.” The Supreme Court faces the next “cruel and unusual punishment” issue involving sentencing children in a pair of cases heard before the Court on November 9thSullivan v. Florida and Graham v. Florida. All of the 100 juveniles on earth sentenced to life in prison without the possibility of parole for a crime not involving a killing are in the United States; more than three quarters of those are in the Sunshine State – Florida.

The cases, covering the very serious crimes of rape and robbery, stir the passions of those on both sides of this uncomfortable issue. The incarcerated juveniles were 13-years-old and a 17-years-old when they committed the crimes for which they were sentenced; Joe Sullivan is now 33, and Terrance Graham is now 22. The goal of these appeals is to have a court reexamine the sentences themselves (in a new hearing) and perhaps reduce them or at least allow for the possibility of rehabilitation and parole.

The November 4th Newsweek notes that American practices allowing children to be sentenced to life imprisonment is unique to this country: “There are about 2,500 juveniles (ranging in age from 13 to 17) currently sentenced to life in prison in the United States. No other country in the world currently has adolescents serving this sentence, reports the Frank C. Newman International Human Rights Law Clinic.”

What could possibly justify such harsh treatment? The November 7th New York Times: “The state’s attorney general, Bill McCollum, explained the roots of the state’s approach in the first paragraph of his brief in Mr. Graham’s case...‘By the 1990s, violent juvenile crime rates had reached unprecedented high levels throughout the nation,’ Mr. McCollum wrote. ‘Florida’s problem was particularly dire, compromising the safety of residents, visitors and international tourists, and threatening the state’s bedrock tourism industry.’ Nine foreign tourists were killed over 11 months in 1992 and 1993, one of them by a 14-year-old… [State Representative William D. Snyder, a Republican who is chairman of the House’s Criminal and Civil Justice Policy Council], put it this way: ‘Instead of the Sunshine State, it was the Gun-shine State.’”

Snyder believes that “it would be wrong for the Supreme Court to say that it was patently illegal or improper to send a youthful offender to life without parole. At a certain point, juveniles cross the line, and they have to be treated as adults and punished as adults.” The Times. But as the only country on earth with such drastic sentences, is the United States completely out of step with the notion of “human rights” it seems to proselytize in international circles?

When the Court heard arguments on November 9th, the tea leaves suggest a split along ideological lines. The November 10th Washington Post provided these observations and excerpts from statements from the bench from both conservative and liberal factions:

Conservative: Chief Justice John Roberts “‘There is certainly nothing in the Eighth Amendment that suggests there is a difference between 16 and 17.’ He also compared the Ropers decision (noted above) saying that ‘death is different’… Rather than having rigid rules based on age, he said it would be better to require judges to consider the defendant's age when imposing harsh sentences, and then having courts review whether they are disproportionate to the crime.” The Post added this observation: “…Antonin Scalia and Samuel A. Alito Jr. said that retribution is also part of the equation, and that society has a right to punish severely for heinous crimes, even those by juveniles… Alito recounted a string of juvenile offenses in Florida ‘so horrible that I couldn't have imagined them if I hadn't actually seen them.’ Scalia added: ‘One of the purposes is retribution, punishment for just perfectly horrible actions. And I don't know why that value of retribution diminishes to the point of zero when it's a person who's, you know, 17 years, 9 months old.’”

Liberal: “Justice Ruth Bader Ginsburg said Roberts's idea would not solve the basic problem: that juveniles are still developing and are not fully culpable for their actions. Decisions about whether they have reformed can be made only later. The question is, ‘Has this person overcome those youthful disabilities?’ she said… Justice Sonia Sotomayor pressed [Florida Solicitor General Scott D.] Makar on the minimum age at which a child in Florida could be subjected to the circumstances that could lead to a sentence of life without parole. He said there is no minimum. ‘So a 5-year-old could be put away for life?’ she asked… ‘That is, theoretically,’ Makar answered. ‘We would hope that the system would not allow that.’”

Or are our children clearly the worst on earth? To give you an idea of how other nations impose sentences, Germany won’t impose a sentence on a juvenile of more than ten years, and Italy caps out at twenty-four years. Clearly, a life sentence is not just a question of mental capacity and responsibility; it is also a factor of age, fairness and hope. We anxiously await the Court’s final decision.

I’m Peter Dekom, and I approve this message.

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