What the United States and Somalia Have in Common

photo courtesy of: http://ioneglobalgrind.files.wordpress.com/2011/08/12.jpg?w=390

photo courtesy of: http://ioneglobalgrind.files.wordpress.com/2011/08/12.jpg?w=390

The United States is one of the only countries in the world that sentences people to die in prison for crimes they committed prior to their eighteenth birthday.  In other words, the United States is unique in that it allows, and in fact sometimes requires, our justice system to sentence individuals to life in prison without the possibility of parole for crimes they committed before turning eighteen years old.  The 1989 United Nations Convention on the Rights of the Child bans sentencing juveniles to life without the possibility of parole.  Besides the United States, Somalia is the only other country that has failed to ratify the treaty.  In many ways an innovative instrument, the convention is the first international treaty enacted to implement minimum standards for the protection of children’s rights, guaranteeing civil, political, economic, social, and cultural rights to children.  Focused on the four general principles, non-discrimination, best interests of the child, right to life, survival, and development, and views of the child, the treaty recognizes the special vulnerabilities of children and acknowledges their ever-evolving capabilities.  While the U.S. has failed to ratify the Convention, it has adopted two of its optional provisions, Involvement of Children in Armed Conflict, preventing governments from forcing children under the age of eighteen into compulsorily duty in the armed forces and Sale of Children, Child Prostitution, and Child Pornography, prohibiting the sale of children as well as child prostitution and pornography.  Additionally, in 1992, the U.S. ratified the International Covenant on Civil and Political Rights, which required rehabilitation to be the focus of juvenile punishment, however the U.S. has reserved the right to sentence juveniles to life without parole in extreme cases involving severe criminals and hardened crimes.

Utilizing the punishment much more often than anywhere else in the world, the practice gained the most support in the 1980s and 1990s when the country saw a spike in violent crimes committed by youth, garnering a wealth of media coverage, and causing politicians to adopt “tough on crime” policies in an attempt to quell public apprehensions.  According to a report by The Sentencing Project, there has been an increase in life sentences given across the board for all offenders, adults and youth alike, with individuals serving life sentences without the possibility of parole increasing by nearly 10,000 in just four years from 2008 to 2012.  By allowing individuals to be sentenced to life without the possibility of parole for crimes they committed prior to their eighteenth birthday, the United States is neglecting to account for the vast differences that exist between adult and youth offenders, including but not limited to poverty, childhood abuse, and youthfulness in general, all factors that can contribute to the crime committed.  Placing rehabilitation at the center of juvenile punishments acknowledges the notion that youth are still developing physically, mentally, and emotionally and because they are continually learning, expanding, and growing, they are capable of benefitting exceptionally from rehabilitation, rather than incarceration.

With about 2,500 youth offenders currently serving life sentences without the possibility of parole, a change in attitude toward juvenile crimes is definitely needed, but has America recognized this need?  Two recent Supreme Court cases, Graham v. Florida (2010) and Miller v. Alabama (2012), may lend support for an answer in the affirmative.  In Graham, the Court stated that because of the cognitive, behavioral, and emotional differences between juveniles and adults, individuals under the age of eighteen at the time of committing a crime cannot be given sentences of life without the possibility of parole unless charged with homicide.  The Court in Miller determined that states cannot imprison juveniles under laws that mandatorily impose life sentences without the possibility of parole as a penalty for homicide.  Viewing the imposition of mandatory life sentences without the possibility of parole on juveniles without considering age and other relevant factors as a violation of the eighth amendment’s prohibition against cruel and unusual punishment, Graham and Miller are steps in the right direction towards recognizing the extensive differences between juvenile and adult offenders. However, yet another question now surfaces.  Should the holding in Miller, with the potential of having life changing effects for thousands of already incarcerated offenders, be applied retroactively to the approximately 2,000 prisoners who are currently serving life sentences without the possibility of parole under statutes such as the one discussed in Miller?  Youth cannot be given life sentences unless their proceedings are transferred out of the juvenile justice system and into adult court, as no such sentence is available through the juvenile system.  To pose an even broader question, should juveniles ever be transferred to adult court in the first place?  With approximately 2,000 youth offenders convicted under statutes like those outlawed by Miller serving life sentences without the possibility of parole, many of them could potentially be given a second chance by applying the Miller holding retroactively or alternatively, could have benefitted from refusing the transfer of youth to the adult system in the first place.  Furthermore, as a nation, are there things we could be doing on the front end to reduce some of the societal indicators that have a tendency of being associated with youth committing crimes before they turn eighteen?  Some argue that by focusing energy and efforts towards the reduction of child poverty, protection from child abuse, expansion of access to mental health and other support services, and improvement in school quality youth might not end up in a courtroom confronting in a judge in the first place and therefore not have to face the possibility of one of the harshest sentences available, life without the possibility of parole.

Because of their age and continual ongoing development of their brains, youth, as a whole, are arguably more capable of maturing, changing, and growing through rehabilitative efforts than are adults.  Rather than automatically giving up on individuals who commit crimes prior to their eighteenth birthdays, when given the opportunity to rehabilitate by being guided through proper avenues, there is a likely chance that many youth offenders will be able to successfully reenter society.  In light of these notions, supporters of this view would likely advocate for the retroactive application of the Miller holding.  On the other hand, one might argue that the harm to society may be greater in general given the potential juveniles possess for high rates of recidivism.  Opponents and relatives of victims killed by juvenile offenders don’t believe that the youth deserve a second chance, in light of the fact that their victims aren’t afforded the same opportunity.  They would be hard pressed to argue that releasing any of the juveniles currently incarcerated and serving a life sentence without the possibility of parole would serve the overarching goal of protecting the public.

As you get older, your conscience and reasoning capabilities develop and mature, a concept that lends support to the notion that juvenile offenders can particularly benefit from rehabilitation efforts.  The state has a legitimate and compelling interest in protecting society and the juvenile offender alike.  Life sentences without the possibility of parole send a message to society that authorities are “tough on crime” and arguably, are utilized to act as a deterrent to prevent future crimes.  But considering that the prefrontal cortex, the part of the brain responsible for regulating impulse control and emotional response, doesn’t stop developing until one’s mid twenties, can juveniles really be held accountable for weighing short term risks and long term consequences in the same way adults are?  Juvenile offenders, like all offenders, must be held accountable for their behavior and must face consequences for their actions, but is condemning them to die in prison through life sentences without the possibility of parole the best way to handle it?

Alexandra Wolf

About Alexandra Wolf

Alex Wolf is a third year law student at the University of Houston Law Center. In 2010, she received a Bachelor of Arts in sociology from the University of Colorado at Boulder. Prior to attending law school, Alex worked as a paralegal at the Lanier Law Firm’s Los Angeles office. During college, Alex interned for Covenant House Texas, a shelter for at-risk youth as well as for Conscious Alliance, a non-profit organization dedicated to eradicating hunger for children and adults alike. Alex also served as an undergraduate research assistant analyzing deviant and suicidal tendencies and behaviors. This summer, Alex worked as a law clerk for Berg & Androphy, a firm specializing in white-collar defense and qui tam actions. Alex is on the Houston Journal of International Law and serves as secretary for the Immigration and Human Rights Law Society.

One thought on “What the United States and Somalia Have in Common

  1. David Samuel
    September 25, 2013 at 9:42 AM

    I couldn’t agree more about the inequity of punishing minors. People who are 18 and under have not had the proper brain development as their frontal lobes have not matured until their 20’s. The immature frontal lobes do not control impulsivity or proper thought processes as young people think they are invincible and do not consider the consequences. Very well written and thought out article.

    David Samuel

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