Imprisoning Children for Life

By Stephen Lendman

May 15, 2010

The University of San Francisco School of Law Center for Law and Global Justice and the Frank C. Newman International Human Rights Law Clinic, in association with the Berkeley-based Human Rights Advocates, work for global abolition of juvenile life without parole (LWOP) sentencing, calling it inappropriate for children and illegal.

In November 2007, they published a report titled, “Sentencing Our Children to Die in Prison,” making their case, saying:

— children given LWOP are “condemned to die in prison;”

— dispensed in adult courts, they ignore the “less(er) culpability of juvenile offenders; their ineptness at navigating the criminal justice system; their potential for rehabilitation, reintegration into society,” and known child development principles “established through national standards and international human rights law;”

— only two countries impose LWOP sentences – the United States and Israel, America having 99.9% of all cases; however, nine others permit them, but no known cases exist in – Australia, Antigua and Barbuda, Belize, Brunei, Cuba, Dominica, Saint Vincent and the Grenadines, the Solomon Islands, and Sri Lanka; two other countries, South Africa and Tanzania, abandoned the practice;

— Black children are ten times more likely to get LWOP than white ones, and in California it’s 20 – 1; in other words, the darker one’s skin, the greater the risk for harsh sentencing, and if rich, the chance is practically nil;

— LWOP “violates international human rights standards of juvenile justice;” Article 37 of the 1989 UN Convention on the Rights of the Child (CRC) prohibits sentencing children under 18 to LWOP or death; imprisoning them should be a last resort for “the shortest appropriate period of time;” all countries ratified it except Somalia and America;

— Article 24 of the International Covenant on Civil and Political Rights (ICCPR) requires children to be protected by their status as minors, and under the UN Convention Against Torture, LWOP amounts to cruel, unusual or degrading treatment.

Introduction

LWOP sentences condemn children to death behind bars, prevent their rehabilitation in society, and violate international laws and norms that prohibit treating them like adults. They’re less psychologically and neurologically developed, can’t make the same reasoned judgments, and don’t understand the long-term consequences of breaking the law.

In adult prisons, they’re more vulnerable to physical abuse. Yet many endure it for years “because they have no ‘prison experience’, friends, companions or social support.’ (They’re) five times more likely to be sexually assaulted in adult prisons than in juvenile facilities.”

One study showed they’ve been:

“physically and sexually abused, neglected, and abandoned; their parents are prostitutes, drug addicts, alcoholics, and crack dealers; they grew up in lethally violent, extremely poor areas where health and safety were luxuries their families could not afford.”

Hopelessness overwhelms them, extinguishing any motivation to develop and mature, reinforced by prison officials providing no education or life skills. As a result, juvenile LWOP is near universally condemned and prohibited, but not in America with at least 2,381 cases (including 149 from 2005 – 2007), and Israel with at least seven.

In both countries, reforms aren’t expected despite evidence showing LWOP doesn’t deter severe youth crimes, and it’s as true for juvenile death penalties. Moreover, the Supreme Court in Roper v. Simmons (2005), reasoned that:

“the absence of evidence of deterrent effect is of special concern because the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence.”

Yet US courts keep imposing inhumane, inappropriate and ineffective sentences against society’s most vulnerable victims.

Global LWOP Sentencing Practices – America

Few countries ever sentenced juveniles to LWOP. Overwhelmingly, America is the main offender. At least 135 have laws prohibiting the practice, and 185 have done so in the General Assembly. Ten others permit it, but only the US and Israel do it.

In America, the federal government and 44 states impose LWOP, but only 39, in fact, use it. A breakdown is as follows:

— states prohibiting LWOP include Alaska, Colorado, Kansas, Kentucky, New Mexico, Oregon and the District of Columbia;

— ones with no known cases include Maine, New Jersey, New York, Utah and Vermont;

— Indiana allows it from age 16;

— permitting it from age 15 are Louisiana and Washington;

— from age 14 are Alabama, Arizona, Arkansas, California, Connecticut, Iowa, Massachusetts, Minnesota, New Jersey, North Dakota, Ohio, Utah, and Virginia;

— from age 13 are Georgia, Hawaii, Illinois, Mississippi, New Hampshire, North Carolina, and Wyoming;

— from age 12 are Missouri and Montana;

— from age 10 are South Dakota and Wisconsin;

— Nevada allows it from age 8; and

— 13 states permit it at any age, including Delaware, Florida, Idaho, Maine, Maryland, Michigan, Nebraska, New York, Pennsylvania, Rhode Island, South Carolina, Tennessee and West Virginia.

Before the 1990s, LWOP sentences were rarely imposed. Thereafter, most states passed laws increasing juvenile punishments that treat kids like adults. Despite international law prohibitions, some children are sent to adult prisons, the percentage more than doubling from 1990 – 2004 even though crime rates declined.

Especially disturbing is the racial imbalance in LWOP sentences, black children being affected at 10 times the rate for white ones, and in California 20 times the rate. For Hispanics, the ratio is five to one. Also:

“there is a ‘cumulative’ disadvantage to minorities entering the justice system via arrest through the period of incarceration so that racial disparity actually increases as (youths are) arrested, processed, adjudicated, sentenced and incarcerated….”

Despite growing racial discrimination, Washington has done little to stem the practice beyond passing the 2002 Juvenile Justice and Delinquency Act, a measure it doesn’t enforce. In addition, the federal government doesn’t collect, monitor or analyze state discriminatory actions, so nothing is done to curb them. As a result, America is in violation of the UN Convention on the Elimination of Racial Discrimination (CERD).

Israel

Israel has an estimated seven children serving LWOP sentences, its government identifying four, not indicating if parole is possible, saying:

The High Court of Justice (HCJ) “held, in a majority decision, that the court has the discretion to review each case on its merits; should it reach the conclusion that the appropriate punishment is life imprisonment, and should it consider that this punishment is just and necessary, it may sentence a minor to life imprisonment.”

Under Israeli law, life sentences may be reviewed after 30 years in prison, unless juveniles are sentenced by military courts where Palestinians are tried. If given LWOP sentences, commutation doesn’t apply under British Mandate government 1945 Defense Emergency Regulations, incorporated by Israel in 1948 under section 11 of the Government and Law Arrangements Ordinance.

They were never abolished and apply in the Occupied Territories to impose LWOP sentences for adults and minors as well as detain thousands of Palestinians (including youths) administratively without charge, demolish their homes, seize their property, deport them, impose curfews, and virtually anything else to harass, deter and punish.

Countries No Longer Imposing LWOP Sentences

South Africa, Tanzania, Burkina Faso and Kenya once imposed them but now prohibit the practice. Tanzania says no youth under 18 gets LWOP sentences. A child welfare department and parole review board monitor children in custody, so when “satisfied that the child has been rehabilitated,” they initiate a process for release.

South Africa also prohibits the practice, but its 1977 Criminal Procedure Act 51, pertaining to life sentences, mandated parole eligibility after a minimum of 25 years or age 65 was reached, provided 15 years were served. No parallel clause benefited juvenile offenders.

Burkina Faso and Kenya once allowed LWOP sentences, but now adhere to international law standards banning the practice. In Burkina Faso, however, youths after age 16 potentially may be tried as adults, but the government says it abides by Convention on the Rights of the Child (CRC) provisions protecting them.

Kenya also complies, having passed a law banning LWOP sentences for youths under age 18.

Nine other countries have laws permitting juvenile life sentences, but it’s not clear whether parole is allowed. Yet international law is clear and unequivocal prohibiting them for juveniles.

America’s common law heritage provides for “a separate punishment structure on children,” prohibiting LWOP sentences. In England, the Children Act of 1908 required they be treated differently from adults, including “leniency in view of the age of the offender at the time of the offense.” Globally, imposing LWOP sentences evolved largely since the 1990s, only by a small minority of countries treating youths the same as adults.

The 1989 Convention on the Rights of the Child (ratified by all countries except America and Somalia) prohibits LWOP sentences. In 2007, its implementation authority, the Committee on the Rights of the Child, specifically stated:

“The death penalty and a life sentence without the possibility of parole are explicitly prohibited in (CRC’s) article 37(a).”

The Committee recommended that global nations “abolish all forms of life imprisonment for offences committed by persons under the age of 18” to effectively prohibit courts from trying youths as adults.

Article 7 of the 1976 International Covenant on Civil and Political Rights (ICCPR) bans cruel, unusual and degrading treatment and punishment. It applies to youth LWOP sentences that also violate Article 10(3) stating:

the “penitentiary system shall (afford) prisoners….their reformation and social rehabilition. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.”

Under Article 24(1), children have:

“the right to such measures of protection as are required by (their) status as a minor, on the part of (their) family, society and the State.”

America is a serial offender. In 1992, it ratified ICCPR, but never complied. “The extraordinary breadth and rapid development in the United States of sentencing child offenders to LWOP since (ICCPR’s ratification) contradicts the assertion that the United States has applied this sentence only in exceptional circumstances,” given the near 2,400 youths affected, many, in fact, first-offenders, others wrongfully convicted.

The Committee Against Torture, the 1984 UN Convention Against Torture, Cruel, Inhuman or Degrading Treatment or Punishment’s official oversight body, stated that imprisoning children for life “could constitute cruel, inhuman or degrading treatment or punishment,” and that America has done nothing to deter the practice or reduce the discrimination against children of color.

On December 6, 2006, General Assembly Resolution 61/146 (Promotion and protection of the rights of children) passed 185 – 1 (America voting no), calling on states to:

“abolish by law, as soon as possible, the death penalty and life imprisonment without possibility of release for those under the age of 18 years at the time of the commission of the offence.”

Earlier in 1985, the General Assembly (GA) adopted the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), affirming the main purpose of juvenile justice is ensuring youth well-being, using confinement as a last resort consideration for the shortest period possible.

Then in 1990, the GA passed two resolutions protecting imprisoned youths – the UN Rules for the Protection of Juveniles Deprived of Their Liberty and the UN Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines). They recognize how prison subjects children to “harsh or degrading correction or punishment,” so should be imposed as a last resort no longer than necessary.

Under the Constitution’s Article VI, Clause 2, (the Supremacy Clause), agreed to international laws and treaties become “the supreme Law of the land; and the Judges in every State shall be bound thereby….”

In Roper v. Simmons (2005), the Supreme Court ruled capital punishment for minors under age 18 unconstitutional. It also “referred to the laws of other countries and to international authorities” in interpreting the Eighth Amendment’s prohibition of cruel and unusual punishment. For juveniles, it stated:

“It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” If trained professionals can’t do it, “we conclude that States should refrain from asking jurors to issue a far graver condemnation – that a juvenile offender merits the death penalty.”

Children given LWOP sentences are effectively condemned to die in prison. The near universal condemnation of the practice elevates it to a jus cogens (peremptory or compelling) norm, binding all nations to comply, “including those that have not formally ratified it themselves.”

The International Court of Justice (ICJ) has stated that “a very widespread and representative participation in (a) practice might suffice of itself” to elevate it to customary international law, provided it includes participation from “States whose interests were specifically affected.”

Under Article 53 of the 1969 Vienna Convention on the Law of Treaties:

“a norm (is) accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

The UN’s National Law Commission affirmed this principle saying:

state “obligations arise from those substantive rules of conduct that prohibit what has come to be seen as intolerable because of the threat it presents to the survival of states and their people and the most basic human values.”

Juvenile justice and rehabilitation models are instructive in nations like Germany. In the 1970s, its Juvenile Justice Act (JJA) adopted alternative measures for suspensions, probation, community service, and a day-fine system. From 1982 – 1990, its youth incarceration rate decreased by over 50%. In 1990, its JJA was amended to include alternatives to incarceration, including education, disciplinary measures and special sanctions.

Only if unsuccessful is imprisonment with the possibility of suspension and probation used. It’s considered a measure of last resort. For youths aged 14 – 17, minimum sentences are six months and maximum ones five years. For serious crimes, no more than 10 years are imposed, with no possibility of LWOP or death sentences. Germany’s low juvenile recidivism is testimony to the system’s success.

Other models also work well, including in New Zealand and the Georgia Justice Project’s (GJP) approach to reduce crime in Atlanta. A privately-funded NGO, it’s recidivism rate is 18.8% (compared to the national 50 – 60% average) through counseling, treatment, employment and education. These measures help child offenders rebuild their lives to effectively reintegrate into society successfully.

The Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative program (JDAI) operates at 75 sites in 19 states, using eight “core strategies” to minimize youth delinquency and facilitate rehabilitation. They include:

— encouraging collaboration between juvenile justice agencies and community organizations;

— alternatives to detention, such as electronic monitoring;

— efforts to reduce custody rates and racial discrimination; and

— measures to correct deviant behavior.

The Santa Cruz, CA program is considered a model, offering health and drug abuse counseling, resume writing, computer classes, meditation, and adult mentoring. It’s seen the per day number of detained children decline from 50 to 16 on average, saving millions of dollars and helping youths get on with their lives productively. Counties in other states have their own success stories, sharply reducing detention and crime rates. They show alternative measures work. Juvenile justice is possible, and young people can benefit to become productive members of society.

America’s Gulag Prison System

Despite effective alternative ways, America’s criminal justice system is shameful, cruel, degrading, bulging, and counterproductive, resulting in the world’s largest prison population at over 2.4 million at yearend 2008. It includes inmates in federal and state facilities, local jails, Indian, juvenile, and military ones, US territories, and numbers held by Immigration and Customs Enforcement (ICE).

In addition, another 7.3 million are under correctional supervision, and 13 million pass through US jails annually. Since 1970, the population exploded eight-fold to become a prison-industrial complex exceeding $60 billion annually plus another $100 billion for private security.

In the 1980s and 90s, about 1,000 new prisons and jails were built, creating a racially imbalanced system that doesn’t deter crime, exploits people for profit, punishes and doesn’t rehabilitate, treats children like adults, and lets politicians look tough on crime. It punishes juveniles in shamefully high numbers, many tens of thousands at any time, including nearly 2,400 receiving LWOP sentences.

Most are arrested for minor, nonviolent crimes, yet are prosecuted, sentenced, and incarcerated in the adult criminal justice system, in violation of international law by imposing cruel, unusual, and inhumane treatment, mostly against children of color.

Constitutional rights are denied, and wrongful convictions are common because due process and judicial fairness are absent. Worst of all, it affects children, society’s most vulnerable. Short of fundamental reform, America’s criminal justice system will stay broken and corrupted, but profitable to a thriving, growing industry, preying on human beings as commodities, including kids never getting a chance to become productive adult citizens.

Stephen Lendman is a Research Associate of the Centre for Research on Globalization. He lives in Chicago and can be reached at lendmanstephen@sbcglobal.net. Also visit his blog site at sjlendman.blogspot.com and listen to The Global Research News Hour on RepublicBroadcasting.org Monday through Friday at 10am US Central time for cutting-edge discussions with distinguished guests on world and national topics. All programs are archived for easy listening.