The Journal of Gender, Race & Justice

Mikaela Shotwell, Student Writer, The Journal of Gender, Race & Justice

Every April, I think about an old friend of mine, Heather. It was a friendship characteristic of many for me at that early teen age—we were teammates; our interests overlapped on the softball field and we bonded over a shared love of David’s Ranch Sunflower Seeds.

In April 2001, at the age of 13, Heather participated in the murder of a man. The details of what happened aren’t particularly important, but you can read about it here. I remember Heather as bright, fun, energetic. I also remember her as immature for her age, with a tumultuous past and a truly unsettling relationship with her mother. Her mother, who was the mastermind of the murder, could barely be called such. She was verbally (and I suspected physically) abusive, more of a “friend” than a parent, and a psychological minefield all her own.

In January 2002, Heather was sentenced to 22 years for her role in the murder. She had been tried as an adult—for a crime she committed at 13. I was—and still am—appalled at the decision to try her as an adult. I know this topic has been extensively discussed and written on, but it still resonates with me, especially every April. I often hear sound-byte criticisms of the policy of trying some juveniles as adults: “They can’t vote, but we can try them as adults?” I remember saying to my dad at the time, “Dad, she can’t even be unsupervised in hotel hot tubs.”

And that’s why I have to ask: aren’t there just some ages that should be too young? Even if I were to concede (I’m not) that some juveniles should be tried as adults, isn’t there a point where we have to just say “No. Not that young.”? Every state permits juveniles to be tried as adults for certain crimes. In some states, transfer to adult court is mandated by statute for some crimes, in others, transfer is discretionary. More than half of the states currently have automatic transfer to adult court for commission of a violent felony by a 14 year-old.[1] Perhaps the automatic transfer is what’s most disturbing—there is no evaluation of the juvenile’s individual capacity to understand his actions; there is no foray into the juvenile’s susceptibility to the influence of responsible adults; there is no consideration that the juvenile could be quickly “rehabilitated.”

Despite the rational questioning I do about these policies (Does the research support their efficacy? Do they have racially discriminatory results?[2]), there is a kneejerk reaction I have to Heather’s sentence that will always control my stance on the issue. She’s just too young. Just months before the murder, the softball team had to sneak Heather into Miss Congeniality. Miss Congeniality. It was PG-13, you know.

Photo Credit: Dan DeLong/Seattle Post-Intelligencer

[1] This report is an excellent survey of the deterrent effects of transfers.

[2] For more on this concern and both sides of the issue, see this TIME article.

Michelle Wolf, Student Writer, The Journal of Gender, Race & Justice

This week, a grand jury found that a police officer should not be charged for the death of Pace University football player D.J. Henry, Jr.  The accounts of what happened on the night of Henry’s death differ.  What is undisputed is that Henry died as a result of shots fired by police.

Pleasantville and Mount Pleasant officers responded to a brawl outside of Finnegan’s Grill in Thornwood on the night of Henry’s death.  Henry was parked outside of the bar when an officer walked up to the vehicle and knocked on the window.  Some claim that Henry tried to drive away, while others say that he was only under the impression that the police wanted him to move his vehicle, because he was parked in the fire lane.

When Henry accelerated, the mirror on his car struck the officer, who fell onto the hood of the car.  After this happened, the officer shot at the driver, and an officer who was standing in front of the vehicle also began to shoot.

If the police account of the story is true—that Henry was trying to get away from police—their behavior still seems out of line, considering the standard used for excessive force by police.  Prosecutors may charge police officers for their use of force if that officer “uses more force than is reasonably necessary.”  “[T]he force that is beyond what would be considered reasonable is called excessive force.”  It is this finding of excessive force that can lead to criminal charges.

The Supreme Court has outlined when it is unreasonable to use excessive force—specifically deadly force.  It said, in Tennesee v. Garner, that using deadly force to prevent all suspects from escaping is constitutionally unreasonable.  The officers must be under in immediate danger or must have “probable cause to believe the suspect poses a threat of serious physical harm.”

If the use of force in this case was not excessive, I am not sure what is.  There were 50 officers present at the scene, which makes me wonder how much of a threat one person, who was leaving the scene, was really posing.  Admittedly, I have not seen and heard all of the evidence.  Even if I believe the officers’ accounts of what happened on the night of Henry’s death, I believe these officers should be subjected to some kind of criminal charge, especially considering how they treated Henry after they had stopped him and taken him from the car.  Officers allegedly handcuffed him and left him laying face down on the ground for fifteen to twenty minutes, not checking for injuries, even though they had knowingly fired shots at him.

I wish I knew more about the circumstances surrounding this incident (because obviously my judgments would be sounder if I knew more facts).  I would like to know what you all think about this situation.  Should the standard for use of excessive force be stricter?  Should there be a special committee of prosecutors who investigate and prosecute police use of excessive force?

Sources:

http://www.nytimes.com/2010/10/19/nyregion/19pace.html

http://www.cnn.com/2011/CRIME/02/14/new.york.police.shooting/index.html

Judy Hails, Criminal Evidence 315 (6^th Ed., 2009)

Tennessee v. Garner, 471 U.S. 1 (1985).

Rachael Jensen, Student Writer, The Journal of Gender, Race & Justice

Earlier this month, an unusual story in the Des Moines Register caught my attention. A former grocery store employee, Gary Beals, was wielding a knife and running through the store.  The 911 caller who summoned the police to the store told the dispatcher, “ ‘He said he has HIV and he’s touching all the meat and he has a knife in his hand.’ ”[1] The incident ended when Beals was shot several times by police and killed. A later article offered some explanation of Beals’ strange behavior – that he had been suffering from a mental illness and struggling to find the correct medication (he did not, in fact, have HIV).[2] The article also raised concern about the use of deadly force, because some witnesses indicated Beals “wasn’t acting like he wanted to hurt anyone.”[3] State officials are investigating the incident and the officer’s actions.

Unfortunately, interactions between individuals with mental illness and police across the country are not uncommon. These incidents, like the one in Iowa, can have the potential to seriously escalate if not handled carefully.[4] Experts who have studied the problem indicate a two-pronged solution: 1) better training for police officers on how best to handle calls involving a person with mental illness and 2) improved education about mental illness and better access to services.[5]

It is important for police officers to receive training so that misperceptions or stereotypes don’t result in harmful outcomes. Diffusing a situation where someone is armed with a knife can be complicated by the fact that the person is behaving erratically or seems not to be in control. The U.S. Department of Justice has focused on research and case studies to improve the response of law enforcement officers.[6] In recent years, there has been increased emphasis on training, but is it enough? That is the question being asked in Iowa, where since 2008 seven police shootings have involved individuals with mental illness, and where officers receive only two hours of specialized training  on dealing with people who might have a mental illness.[7]

These efforts should in no way imply that everyone with a mental illness is dangerous or even likely to commit a crime. Notably, individuals with mental illness are more likely to be crime victims than perpetrators.[8] But it recognizes the reality that when law enforcement gets involved, different tactics are appropriate in different circumstances.

Better still, preventive services and access to counseling will help ensure that more people can successfully manage their mental illnesses. The National Alliance on Mental Illness (NAMI), a support, research and advocacy group, reports that nearly 10.6 million Americans are affected by serious mental illness.[9] NAMI also reports a national mental health care crisis: struggling service providers took a turn for the worse when the recent economic recession forced states to cut budgets.[10] Economic woes create a catch-22. With less government funding of programs to treat mental illness, fewer people will have access to the services they need. Further, company closings, stock market drops and widespread job loss (and along with it health insurance) have contributed to increased stress and pressure on families, and fewer resources to seek professional help.[11]

Even with treatment, learning to manage a mental illness is a difficult and continuous process. The Beals case tragically demonstrates this fact. But it also reiterates that increased effort from all sides is needed to minimize fatal outcomes.

[1]http://blogs.desmoinesregister.com/dmr/index.php/2010/10/26/boone-shooting-police-identify-officer-and-hy-vee-employee/

[2]http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=201011020359

[3]http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=201011020359

[4]http://www.npr.org/templates/story/story.php?storyId=104350808

[5]http://www.npr.org/templates/story/story.php?storyId=104350808

[6]See e.g., www.ojp.usdoj.gov/BJA/pdf/CSG_LE_Tailoring.pdf

[7]http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=201011150320

[8]http://pn.psychiatryonline.org/content/40/17/16.full

[9]http://www.nami.org/gtsTemplate09.cfm?Section=Overview1&Template=/ContentManagement/ContentDisplay.cfm&ContentID=75106

[10]http://www.nami.org/gtsTemplate09.cfm?Section=Grading_the_States_2009

[11]http://www.cnn.com/2010/HEALTH/11/10/job.loss.toll/index.html

Alexander Smith, Student Writer, The Journal of Gender, Race & Justice

The private prison industry has been frequently criticized in recent years due to numerous instances of mismanagement compared to government-run prisons. But perhaps the most shocking aspect of the private prison industry is the private prison industry’s lobbying efforts to achieve higher sentences. The private prison industry not only lobbied for the Arizona immigration law, they helped draft the bill. The private prison industry has even admitted that its financial future depends on incarceration rates and high sentencing laws. Harsh criminal laws benefit the private prison industry but numerous scholars have questioned whether higher mandatory sentences truly benefit society by reducing crime in any meaningful way.

Now, even more cynical motivations may be infecting even government-run prisons.

Legislators often want prisons to be built in their district because of the numerous jobs that are associated with prisons. Now they might want prisons because you can use a prison’s population to pad the size of a legislative district. Prison-based gerrymandering occurs because the Census counts prisoners as part of the district where they are incarcerated, and not as a part of the district where they usually reside. Only two states, Vermont and Maryland, allow felons to vote from prison, but these prisoner residents are counted as constituents. This has been dubbed prison-based gerrymandering, political redistricting using prison populations.

Numerous editorials have pointed out that there are serious problems with democracy when you count incarcerated inmates as citizens of the district where they are incarcerated. For example, in my home state of Iowa, there is a prison in Anamosa, a small town of about 5,500 people and the birthplace of famous painter Grant Wood. Before 2007, the city was divided into 4 wards of about equal population size, and each ward would elect a city councilmember. Except Ward 2 didn’t have a lot of voters. Most of the population of Ward 2 could not vote because they were currently residing in the Anamosa State Penitentiary. Which meant that the other three wards had 1 city councilmember for about 1,300 constituents, and the ward where the prison was had a city councilmember who only had 58 constituents.

The city of Anamosa has since abandoned the practice of wards and now elects their city councilmembers at-large, but prison-based gerrymandering continues to be a problem for state democracy and for local democracy across the nation. Prisoners tend to come from urban populations and are then relocated to rural districts where they increase the district’s political clout, and can even create new districts, which are then given new state legislators. Political power is being drawn from these prisoners even though the prisoners have no say whatsoever in how that political power will be used.

Besides these problems with democracy, prison-based gerrymandering creates the same suspect motivations that the private prison industry does. The private prison industry depends on incarceration rates for profit. The main goal behind the entire industry is not to secure justice, to protect society, or to care for their inmates. It is a selfish goal, and that’s dangerous in the criminal justice system. Prison-based gerrymandering creates cynical new motivations for our legislators, except instead of profit, they can now secure political power for themselves through more prisoners and higher incarceration rates. It’s perfectly reasonable for a legislator to support higher incarceration rates because they believe it will reduce crime. It becomes suspect when legislators have a direct personal benefit behind sentencing laws. I have no good scientific evidence to suggest that legislators from districts with prisons in them are more likely to vote for higher sentencing laws, nor can I show that their motivations are selfish even if they were more likely to vote for higher sentencing laws. But a system that will reward legislators for incarcerating more people can only lead to problems for the criminal justice system.

Sources and Further Reading:

Michael Tonry, The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings, 38 CRIME & JUST. 65, (2009).

Lucas Anderson, Kicking the National Habit: The Legal and Policy Arguments for Abolishing Private Prison Contracts, 39 PUB. CONT. L.J. 113 (2009).

http://dailycensored.com/2010/08/06/private-prison-industry-had-heavy-hand-in-drafting-and-passing-arizona%E2%80%99s-s-b-1070/

http://www.nytimes.com/2010/08/23/opinion/23mon3.html?_r=1

www.prisonersofthecensus.org

Sophie Doroba, Student Writer, The Journal of Gender, Race & Justice

Last week Virginia executed a woman for the first time in almost 100 years. Teresa Lewis, 41, was sentenced to death for arranging the murders of her husband and stepson in order to benefit from their life insurance. However, the actual murders were carried out by Matthew Shallenberger and Rodney Fuller. Both men were sentenced to life in prison, while Lewis was sentenced to death after pleading guilty to the crimes.

Mr Rocap, Lewis’s attorney, argued that she was actually the one manipulated in the murder. He stated that Lewis’s borderline intellectual disability and dependency issues made her a perfect target for manipulation. He claimed that Matthew Shallenberger, with whom Lewis was having a relationship, staged the entire relationship to use Lewis as a pawn the the murders. Shallenberger, who committed suicide in prison, allegedly admitted to masterminding the murders. However, this evidence was not enough to stop her execution.

The Governor of Virginia rejected Lewis’s plea for clemency after deciding that there was not enough evidence to establish her mental disability. The Supreme Court then denied the writ of certiorari blocking Lewis’s execution. The only two members of the court to rule in favor of the stay were Justice Ginsburg and Justice Sotomayor, notably two of the three women on the Court.

So what is it about this case that has drawn so much attention? Is it the simple fact that Teresa Lewis is a woman? Is it her low IQ?  Or is it the execution itself?

A very compelling argument can be made that Lewis’s gender brings extra attention to the case. After all, Virginia has not executed a woman in nearly 100 years. Why start now? It may be that women in Virginia are just not committing the types of crimes that are considered to warrant the death penalty. However, there seem to be two different approaches to her gender. There is the argument that she received the death penalty because she was a woman. The reasoning behind this idea is that society holds females, wives and mothers in particular, to a higher moral standard than males and in turn views their criminals acts as more depraved. Here Lewis was sentenced to death while the two trigger men were given life sentences. Did the court view them differently because of their genders? On the flip-side, this is the first execution of a woman in Virginia in a century. It’s possible that women have not received the death-penalty simply because of their gender, suggesting an odd type of chivalry in the criminal justice system. Perhaps Lewis’s case is just a sign that this suggested chivalry is ending?

Maybe it wasn’t Lewis’s gender at all, but her low IQ that has attracted so much attention? Lewis’s attorney has repeatedly argued that her IQ score qualifies her as borderline intellectually disabled (she scored 72 on the administered IQ test and 70 is considered disabled). The prosecution in the case questioned the accuracy of the test, claiming that she had every incentive to perform poorly. The Governor of Virginia also did not consider the test to be enough evidence to grant her clemency. Was this the right call? Teresa Lewis was 2 IQ points away from being exempt from execution (Atkins v. Virginia, 2002). Bright line rules exist to aid in the application of statutes and rules, however when 2 points are the difference between life and death it seems like the issue should be explored in great depth. Lewis may have been above the level of intellectual disability qualifying her execution as cruel and unusual punishment, but the uncertainty seems to have brought a lot of attention and disagreement.

Finally, the attention given to her case may just be because executions garner a lot of attention. Capital punishment is a controversial issue in our country, and around the world, and whenever a person is executed all eyes are on them. Whether it was because of her gender, her low IQ, or the use of capital punishment, it was clear that all eyes were on Teresa Lewis as she was put to death last Thursday.

Scott Lyon, Student Writer, The Journal of Gender, Race & Justice

            In the 2003 movie The Life of David Gale, Kevin Spacey portrays the titular character, an archetypal if not slightly clichéd professor of philosophy, who is also a prominent anti-death penalty activist.  The film makes multiple chronological jumps to tell the story surrounding Gale’s murder conviction and death sentence, but one early scene stands out.  In it, Gale is engaged in a televised debate on capital punishment with the governor of Texas, and handily embarrasses him by tricking him into agreeing with a quote by Adolf Hitler.  Furious, the governor issues a blunt challenge to Gale: Demonstrate that the state of Texas has executed just one innocent person, and he will order an immediate moratorium on executions.  Unable to do so, Gale loses the debate.

            The issue of innocent persons on death row never plays out in real life with the kind of cinematic reveals of David Gale (I won’t ruin the movie for those who haven’t seen it).  And though no sane person could support a system that inflicts the ultimate punishment on someone wholly innocent of the crime charged, the possibility of proof that the state has put to death a person wrongly convicted remains, as journalist David Grann wrote last year, a “grisly Holy Grail” for death penalty abolitionists.  If such an egregious failure of the system could be conclusively shown to have occurred, such knowledge would certainly cause widespread ripples in the criminal justice community, and mandate re-examination of the death penalty as an acceptable form of punishment.      

 The tragic story of Cameron Todd Willingham might well end up being that case which sways public support for the death penalty.  Willingham was executed in Texas in 2004, after having spent 12 years on death row for setting the house fire that killed his three young daughters.  Less than a year after his death, a Chicago Tribune investigative report called into question the accuracy of the forensic evidence that was the basis for his conviction, and accused Governor Rick Perry of ignoring the reports from an independent fire investigator that showed Willingham’s innocence.  The case has since been taken up by the anti-death penalty group The Innocence Project, and has been lingering before Texas’ Forensic Science Commission, which last month acknowledged the use of “flawed science” by the two fire investigators in charge of investigating the scene, but denied that misconduct or negligence could  be shown.  This latest bittersweet victory for Willingham’s relatives, who continue to proclaim his innocence, was blunted in the same meeting when the commission announced that it would push further discussion of the case to no sooner than mid-October, when it will determine whether or not to conduct a complete investigation.

            It has been argued that the release of death row inmates upon exoneration is evidence that the system is working to ensure the innocent are not executed.  However, the mere conviction of innocent persons concretely illustrates what most of us already know—the justice system is fallible.  We try to account for this fallibility by way of high standards of proof required to deprive persons of their liberty, and we tacitly acknowledge it in the oft-repeated Blackstone quotation: “Better that ten guilty persons escape than that one innocent suffer.”  Cameron Todd Willingham has suffered irreversibly, and an alarming amount of evidence seems to show that he was innocent.  If this is true, then systemic flaws have resulted in the state-sanctioned murder of an innocent person, and we must ask ourselves if faith in the use of the death penalty is faith misplaced.

(Willingham and daughter)

Eric Taubel, Executive Editor, Minnesota Journal of Law, Science & Technology (http://mjlst.umn.edu/ and http://twitter.com/mjlst)

In 2002, famed singer and gay anthem belting diva Whitney Houston, during an interview with ABC’s Diane Sawyer, gave America all the advice it would ever need on the issue of crack cocaine, “Crack is wack.”  I like to think that Houston was issuing a stunning critique of the 100-1 sentencing disparity between crack and powder cocaine.  In declaring crack wack, Houston no doubt was suggesting that relative low weight needed to garner a lengthy sentence made using crack a risky, or wack, decision.  Additionally, I think that her utterance might also have been a biting commentary on the policy rationales underpinning such an outrageous disparity in the weight needed to trigger mandatory minimums. 

This imbalance in sentences for crack versus powder cocaine has been one of the great players in the tragedy that is the American judicial system’s systematic war on black men.  The use of crack versus powder cocaine neatly mapped onto racial lines.  White people used powder cocaine.  Black people used crack.  A cursory glance at pop-culture confirms this shorthand (compare Cruel Intentions with New Jack City).  However, examination of actual data shows that only half the stereotype is true. In 2009 79% of federal crack offenders were Black (9.8% White/10.3 Hispanic).  Compare that with powder cocaine: 17.1 White/28.0 Black/53.2 Other (Source: United States Sentencing Commission Annual Report, 2009, Table 34 http://www.ussc.gov/ANNRPT/2009/Table34.pdf).

President Obama made ending this disparity a talking point of his presidential bid. Like most of his aggressive and progressive agenda, the President was able to accomplish the goal, sort of. Earlier this month, Congress passed and President Obama signed into law The Fair Sentencing Act, which attempts to end the disparity in sentencing between crack versus powder cocaine offenders.  It does so by raising the amount of crack that triggers a 5-year mandatory minimum from 5 grams to 28 grams, and a 10-year mandatory minimum from 50 grams to 280 grams.  The act leaves untouched the powder cocaine triggers, which require 500 grams for a 5-year mandatory minimum and 5 kilograms for a 10-year mandatory minimum.

There are a number of problems with the approach taken in the Fair Sentencing Act.  The obvious problem is that it does not solve the problem of racial imbalances in sentencing due to disparate usage patterns of particular drugs (e.g. 79% of crack offenders will likely still be black). The Fair Sentencing Act has only changed the extent to which the system is racially biased.  In the end analysis, cocaine is cocaine. If the purpose of the Fair Sentencing Act is to recognize this self-evident truth then dropping the disparity to 18:1 from 100:1 is nonsensical.  The real solution would be to drop the ratio to 1:1.

Second, the Fair Sentencing Act does nothing to change the disparity with which crack offenders (vis-à-vis powder and other drug offenders) are able avail themselves of so-called ‘safety-valve’ provisions.  These statutes allow person facing a mandatory minimum to avert (or lessen) prison time so long as they meet specific criteria (usually that the crime charged did not involve a gun or weapon, and that the defendant has no prior criminal history). In 34% of cases where a powder cocaine conviction is subject to a mandatory minimum the defendant will be eligible for a safety valve, and will not have to serve the full sentence.  For heroin and meth the percentages are 32.1 and 28.8 respectively.  Compare that with the 10.1% of those offenders convicted of crack offenses that trigger a mandatory minimum who are subject to the safety valve statutes (Source: United States Sentencing Commission Annual Report, 2009, Table 44).

Thus, the Fair Sentencing Act will do little to cure the current imbalance (and injustice) in the American penal system.  The fact is that less crack still engenders longer prison sentences than powder cocaine, and that those sentences are less likely to be departed from do to mitigating factors and ‘safety valves.’ Even with the passage of The Fair Sentencing Act, the American justice system will continue to disproportionately send black men to prison and for longer sentences than their white counterparts.  Which is all to suggest, that crack remains wack.

A prisoner on death row in Utah recently got the country talking again about the death penalty when he made an unlikely choice. Rodney Lee Gardner, sentenced to death in 1985 and now scheduled to die on June 18, was given a choice under Utah law, to die by firing squad or lethal injection. He chose the firing squad.

What may seem like an absurd choice was quite possibly well reasoned. As found by Amnesty International, lethal injection is an extremely cruel and unusual form of punishment. Lethal injection involves a three-drug cocktail: one to knock the prisoner out, one to paralyze the prisoner, and one, excruciatingly painful chemical, to induce cardiac arrest. The drug causing paralysis renders it impossible for us to know if the prisoner is in pain, and, if so, the extent of that pain.

California has experienced the depth of this issue. In 2006 two anesthesiologists who were to monitor the lethal injection of Michael Morales backed out at the last minute. Afterwards, the legality of the practice was challenged in two courts. U.S. District Judge, Jeremy Fogel, ruled that it posed a risk of cruel and unusual punishment.

Since then the process has gone through multiple revisions and rejections, including a rejection earlier this week. The next revision is due October 6^th. Until the process can be found constitutional in federal court, none of the 702 inmates on death row will be put to death.

North Carolina has also run into legal issues related to lethal injection. However, instead of constitutional questions, these issues relate to the role of the doctor. In order to avoid the possibility of an inmate experiencing the pain described above, in 2006 a federal judge allowed an execution to go forward only as long as a doctor was present, tracking the inmate’s consciousness.

In January of 2007, the North Carolina Medical Board adopted a policy which said that their physician’s code of ethics would be violated by a doctor taking part in an execution. Doctors in violation of the code of ethics subsequently have their medical licenses revoked. This policy thus, put all executions in the state on hold. By passing this policy, the North Carolina Medical Board became the only known state board expressing an interest in disciplining a doctor for participating in an execution.

In May of 2009, the Supreme Court of North Carolina sided with the Department of Correction, against the Medical Board, ruling that the Medical Board was attempting to exercise powers that it did not have. Executions, however, are still stayed because of a different suit.

Even with the state Supreme Court’s ruling however, the Catch-22 still exists: Can doctors participate in lethal injections?

-Aundreia Cameron, JGRJ Student Writer 2009-10

Wednesday, March 03, 2010

About a year ago this month, an eleven-year-old boy, Jordan Brown, was charged with murdering his dad’s fiancé, Kenzie Houk, who was with child. He currently resides in the Edmund L. Thomas Adolescent Detention Center where he has spent his birthday and Christmas. Originally, authorities placed Brown in the Lawrence County Jail for adults, but they removed him after his attorneys successfully argued that the jail could not accommodate an eleven-year-old. Brown has pleaded not guilty and awaits his trial.

My prayers go out to Houk and her family, and I sympathize greatly with their lost. I also sympathize with Brown and his family. He is very young and not strongly aware of the situation at hand. My main concern is not with labeling Brown as guilty or not guilty, but instead focusing on the ramifications of putting a child in prison for his entire life. Even if the jury found Brown guilty of murder, sentencing him to life in prison without the possibility of parole defeats the purpose of rehabilitating criminals. Since he is young, there is great potential for a rehabilitation program to help him change the state of mind that may have brought him to murder Houk.

I would venture to ask what lesson Houk would learn by serving a life sentence beginning at the age of twelve. I can accept that courts are in place to facilitate the punishment of young people who commit the most heinous of crimes. However, the system should not permit prosecutors to charge children as adults because children’s brains are not fully developed. Instead of sentencing and housing Brown with adults, the penal system would best serve Brown by putting him in jail with children his own age and teaching him why his actions were wrong through a rehabilitation program—if he did indeed murder Houk. A child could learn how to reroute his or her anger through rehabilitation, but not through overly severe punishments, which the child may not even fully understand.

The courts should not use the prison system to house children for a lifetime without a strong focus on rehabilitation. The fact that Brown, if convicted, will not even have the option of parole sends the message that he does not have the capacity to improve his life and positively contribute to society. If paroled, Brown could possibly help other young people who may have struggled with similar issues and prevent those children from going down the same path as he did. As horrible as it is that Houk and her child are no longer here, Brown could be of more help to society by working diligently in rehabilitation programs than spending the next sixty years behind bars. Children need to understand that if they commit an offense, they can redeem themselves by being a blessing to someone else. The way to help Brown become a better person is to give him a reason to improve his life. That reason is a less severe sentence with the possibility of parole.

-Maxine Nash, JGRJ Student Writer 2009-10

Tuesday, November 24, 2009

Recently, the Supreme Court heard oral arguments on two cases before this term considering the issue of sentencing juveniles to life imprisonment without the possibility of parole. The two cases are both from Florida, and have to do with juveniles who were sentenced to life in prison without parole for non-homicidal charges. The question before the court is whether or not incarcerating juveniles for a life term without the possibility of parole constitutes cruel and unusual punishment under the Eighth Amendment.

I chose the topic for a Journal Note, because quite frankly I was astounded the first time I learned that it was even possible in the United States to incarcerate a juvenile for the rest of his or her natural life, with no hope of release. As I’ve researched the subject, I’ve discovered that the sentence is available in 44 states and is mandatory in many states (under mandatory sentencing guidelines). There are currently 2,574 juveniles in the United States serving such sentences as reported by Human Rights Watch.

Most of the scholarly literature on the subject advocates a ban on the sentence. One main reason given by advocates for banning the practice is the fact that juveniles have less culpability given their physical, mental and emotional immaturity. The advocates point to a wealth of medical and psychosocial data on the subject, but it hardly seems necessary given what we intuitively and experientially know to be true about children. Another reason that surfaces quickly is that it has become a standard of international law not to use this type of sentence for children. The United States is alone in the world in utilizing juvenile life without parole sentencing.

As I researched, I tried to keep a balanced view and to logically reason out why the sentence is or is not unconstitutional. However, no matter how much I reasoned, and even though my reasoning indicated that, because of the vagueness of the language in the Eighth Amendment, and because of the Court’s precedent, this constitutional challenge may fail, sentencing juveniles to life in prison without parole still feels fundamentally wrong. In reading the transcripts of the oral arguments for the cases, it’s apparent that there is the same uneasiness among some of the justices.

During oral arguments, the Court indicated it might prefer these cases be individually adjudicated on a proportionality basis, making a categorical ban unnecessary. Some justices feared the slippery slope of future challenges to the Eighth Amendment’s cruel and unusual punishment clause. While the slippery slope may be real, it is the duty of the Court to help bring the Constitution to life by struggling with the meaning when the words aren’t clear.