Unilaterally Punitive

THE UNITED STATES IS UNIQUE in the world for its overzealous
love affair with life without parole sentences (LWOP).
It is one of the few western countries to have LWOP sentences
and the only country in North America to have
them. Even the other western countries that do have
LWOP sentences reserve them for only the most extreme
circumstances (e.g. acts of treason or serial murder). In
contrast the U.S. uses this sentence prolifically, currently
having almost 35,000 people serving LWOP. More embarrassing
is the fact that we are the lone, adamant, upholders
of the right to sentence juveniles to die in prison, which
the rest of the world views as barbaric.
There is a near universal consensus in the international
community that it is immoral and reprehensible to execute
or incarcerate a juvenile for life without parole. The U.S.
Supreme Court, acknowledging these views, finally abolished
the death penalty for those under 18. Unfortunately
we are still one of the last holdouts who currently have
juveniles sentenced to die in prison by way of LWOP.
According to a study by Human Rights Watch and
Amnesty International in October 2005, only 4 countries
have juveniles serving LWOP: Tanzania has one, South
Africa has four, Israel has seven, and the U. S. (the “land of
the free”) has over 2,200. Even this number is deceiving
though as it fails to take into account the thousands more
who have sentences so long that they constitute LWOP
(e.g. 100 years at 100 percent).
There are numerous calls to abolish LWOP sentences for
juveniles worldwide. The U.S. stands unabashed against
them all. In 1989 there was the United Nation’s Convention
on the Rights of the Child. Article 37(a) of this Convention
provides, “Neither capital punishment nor life imprisonment
without the possibility of release shall be imposed for offenses
committed by persons below eighteen years of age,” and
Article 37(b) states, “detention or imprisonment must be
used as a last resort and for the shortest appropriate period.”
Throughout history no other human rights treaty has been
ratified by so many so quickly. To date 191 out of 193 countries
have ratified it. The U.S. and that other stalwart protector
of human rights, Somalia, are the only two to refuse to do
so. In 1992 the United States became a party to the International
Covenant on Civil and Political Rights. This prohibits
LWOP sentences for juveniles. More recently the United
States was the lone opposition (176-1) against a resolution in
the U.N. General Assembly calling to “abolish by law, as soon
as possible, the death penalty and life imprisonment without
possibility for release for those under the age of 18 years at
the time of the commission of offense.”
In a 185 to 1 vote (again U.S. v. the World) in December
of 2006 the U.N. again took up a resolution calling to abolish
LWOP for juveniles. The U.S. State Department’s
defense of this position was that it’s mostly a matter of state
law and that the juveniles, some as
young as 13, were “hardened
criminals who had committed
gravely serious crimes.” Regardless
of the fact that brain research
has shown that a person’s brain
doesn’t fully mature until the
mid-twenties, how hardened of a
criminal can a 13 year-old be?
What was he doing, sticking his
mother up for breast milk as a
baby? Maybe robbing the cookie
jar as a toddler? The ignorance of
the State Department is astounding
when you consider that close
to 60% of these juveniles serving
LWOP have no prior convictions.
Approximately 10 percent of
the 73 kids age 13 or 14 who
were sentenced to die in prison
were sentenced for crimes where
no one even died. In one instance
no one was even injured. More
than a quarter of juvenile lifers were not the actual perpetrators
of the crimes, but were rather found guilty by way
of accountability or felony murder statutes, in the classic
“getaway driver is just as guilty” reasoning.
Rather than seeing a decline in the use of LWOP sentences
we’ve seen an expansion. LWOP sentences are more
prevalent overall and those for juvenile offenders are now
used three times more often than 15 years ago.
Part of this love affair with LWOP sentences is due to the
shortsightedness of the anti-death penalty movement. (The
death penalty is another issue the U.S. stands steadfast in
support of). In their rationalization of the lack of need for a
death penalty, they push LWOP as the “perfect alternative.”
A couple of decades ago only a handful of states had LWOP
sentences. Now almost all of them do. As has been shown
time and again, our criminal justice system is broken and
more than 100 people have been put on death row for
crimes they were later found to be innocent of. In Illinois,
more people were exonerated from death row than executed
when former Governor Ryan finally had enough and
called a moratorium. People sentenced to LWOP (there are
over 1,400 in Illinois alone) went through this same broken
system, but without the added safeguards afforded to people
sentenced with the death penalty. Thus it is much more
difficult for a lifer who was wrongly convicted to get his
conviction overturned; ergo many more innocent people
are almost definitely serving
LWOP sentences than were sentenced
to be executed. This is
especially so since there are many
more people sentenced to LWOP
than to death each year.
The courts have amazingly
decided that sentencing a juvenile
to LWOP does not violate the 8th
Amendment right against cruel
and unusual punishment. The
hypocrisy of many LWOP sentencing
schemes and court rulings
is glaring. Take Illinois as an
example again: Article 1, Section
11 of the Illinois Constitution
specifically states, “All penalties
shall be determined both according
to the seriousness of the
offense and with the objective of
restoring the offender to useful citizenship,”
and part (d) of the purposes
of the Illinois Code of Corrections
is likewise to “restore offenders to useful citizenship.”
Nevertheless, in 1978 the Illinois legislature passed a
law making all life sentences in Illinois LWOP. Prior to this a
life sentence allowed for parole eligibility after 11 years. The
Illinois Supreme Court has ruled that a LWOP sentence
does not violate the Illinois Constitution due to the “fact”
that an offender still has a chance (theoretically at least) to
get out of prison by way of clemency from the governor.
Unfortunately this is not realistic in today’s tough on crime
rhetoric, inflamed fear mongering, political world. No governor
with political aspirations (which is all of them) will
risk granting clemency and being painted as a bleeding
heart liberal, soft on crime, or even worse, be blamed for letting
someone out who reoffends upon release.
Compared with the rest of the world, the United States
incarcerates more of its citizens per capita than anyone else,
and for much longer than any other industrialized country.
An entrance requirement to the European
Union is that the death penalty be outlawed in
the joining country. Concerning life imprisonment,
the Council of Europe in 1995 stated,
“A crime prevention policy which accepts
keeping a prisoner for life even if he is no
longer a danger to society would be compatible
neither with modern principles on the
treatment of prisoners during the execution of
their sentence nor with the idea of reintegration
of offenders into society.” Both the European
Court of Human Rights as well as the
German Constitutional Court have held that a
term of life imprisonment must include the
possibility of release. Both Brazil and Portugal
have banned LWOP sentences. In Spain the
maximum sentence one can serve is 40 years.
While in Slovenia it’s 20 years.
The United States cannot continue to
demand compliance with human rights
principles and norms abroad while it refuses
to apply them here at home. We have an
obligation to implement humane principals
embraced by the rest of the world for
our own people if we are going to admonish
other nations about the inhumane practices
of dictators, despots, and others
(many of whom we all too often support).
In a country where three-fourths of the
population describe themselves as Christians,
it is astonishing how few seem to
believe in forgiveness and redemption,
and how many champion punishment
and retribution.
In the words of United States Supreme
Court Justice Anthony Kennedy, “Our
resources are misspent, our punishments
too severe, our sentences too long . . .
Courts may conclude the legislature is permitted
to choose long sentences, but that
does not mean long sentences are wise or
just . . . [A] people confident in its laws and
institutions should not be ashamed of
mercy.” Well said, too bad few are listening.