America's Imprisoned Kids

There can only be a few issues where government policies in countries like Libya and Burma appear more progressive than those in the United States. Juvenile sentencing is one of them.

The United States currently imprisons 2,270 people who have life sentences without the chance for parole for crimes they committed when they were minors, according to both Human Rights Watch and Amnesty International; in all other nations on Earth, there are a combined total of only 12 such prisoners, HRW says. These are grim figures to prison reform advocates in the United States, who have long battled with the punitive, get-tough ethos that dominates American political discussion about criminal justice issues. But there are notable signs of a turn in the political winds.

Alison Parker, a researcher for HRW, has documented this kind of sentencing, and the United States is far behind the curve when it comes to the rights of child prisoners. The United Nation's Convention on the Rights of the Child provides that children may not receive life sentences without parole or the death penalty. All member states have ratified the CRC -- except Somalia and the United States. (Both have signed the treaty but have not ratified it.)

The reality, she maintains, is that most countries do not even contemplate sancitioning this kind of punishment. (This isn't to say that the rest of the world is perfect on the matter. "Israel, South Africa and Tanzania reported that they were in violation of the treaty," Parker says.) Domestically, what is just as disturbing for Parker is that her research has found that African American criminal youths in California receive life without parole at a rate 22 times that for their white counterparts.

For Babe Howell, a law professor at New York University and a former criminal defense attorney, this is a symptom of something larger in the United States. "I think we are so punitive in terms of juvenile sentencing for the same reasons why we are so punitive in terms of all other sentencing," she says. "The reason why we are so punitive otherwise is the harder question, although I think it may have to do with how diverse our society is and that criminal sentences generally fall on people regarded as 'other.' I also think that politics have a lot to do with it. Being soft on crime is untenable and voting for sentencing increases is just so easy."

Indeed, the trend in trying juveniles as adults started in earnest in the 1980s, when homicide rates in the nation started to soar. (Those rates have come down dramatically since.) By the late 1990s most states had made reforms to make the trial of juveniles as adults easier. And it was at this time that Senator Orrin Hatch of Utah introduced the get-tough Violent and Repeat Juvenile Offender Act, which passed in 1999. 

But there are some signs of a potential shift in that prevailing political culture. To take one of the most notable examples, a bill in the California Senate that would make it impossible for the state's judges to sentence criminals younger than 18 to life without the chance of parole is now moving forward. In April 2007 the California Senate Committee on Public Safety passed the Juvenile Life Without Parole Reform Act. The state senator behind it is Leland Yee, a Democrat who has a doctorate in child psychology. He says that the human brain is still maturing during adolescence, and therefore minors are more likely to rehabilitate. “We should always sentence kids a little differently,” says Adam Keigwin, a spokesperson for Sen. Yee.

A vote before the full state Senate should take place by mid-May. Some of the bill's supporters are hopeful about its eventual passage. In fact, Republican Governor Arnold Schwarzenegger has made at least some efforts to refocus the state's prison system towards rehabilitation. But Keigwin knows the supporters have to win over conservatives in the legislature, especially those allied with the Christian right. "The message of redemption is very important to them," Parker says. Meanwhile, to appeal to fiscally conservative lawmakers, Yee and the bill's supporters are arguing that it will cost the state $500 million to imprison the current population of minors sentenced without the chance of parole until their deaths..

But it remains the case that any such attempt to reform aspects of America's prison-industrial complex will involve tussling with powerful and entrenched interests. Moreover, the culture of excessive punishment pervades all parts of the American political spectrum.

For example, while the Supreme Court, in the 2005 case Roper v. Simmons, ended by a vote of 5-4 the practice of putting to death inmates for crimes committed when they were minors, the written dissents are telling. Sandra Day O'Connor, then the court's famed moderate, said that a difference in maturity levels was not a compelling enough reason to rob the state's ability of executing such convicts. Antonin Scalia scoffed at the majority opinion's comparison to what other countries do. "'Acknowledgement' of foreign approval has no place in the legal opinion of this Court," he wrote. Rhetoric like that is an attempt to neuter the ability of attorneys to use an international standard in charging that specific punishments are 'cruel and unusual' and thus unconstitutional.

While many are hopeful about Yee's proposed legislation in California, if it too fails to pass, it will serve as an all-too-typical illustration of the shame that is America's sentencing policy.

"Given current politics it is not clear to me that there are any promising arguments against these sentencing norms but human rights law," says Howell. "International embarrassment may someday put us in a position where life sentences for juveniles become as embarrassing as Jim Crow did in the 1950s and 1960s."