Cruel and unusual punishment

By Stephen Lendman

The Constitution's Eighth Amendment prohibits "cruel and unusual punishment." The legal dictionary defines it as:

"any cruel and degrading punishment not known to the Common Law, or any fine, penalty, confinement, or treatment that is so disproportionate to the offense as to shock the moral sense of the community."

Sentencing minors to life without parole qualifies. The ACLU says American children as young as 13 "are sentenced to spend the rest of their lives in prison without any opportunity for release." In fact, some as young as 11 are affected.

Around 2,570 are sentenced to juvenile life without parole (JLWOP). America treats them like adults regardless of age or circumstances.

In 2005, the Supreme Court ruled in Roper V. Simmons that sentencing juveniles to death was cruel and unusual punishment under the Eighth Amendment.

In 2010, the ACLU and its Michigan affiliate sued (in Hill v. Synder) on behalf of nine Michigan inmates sentenced to life without parole while minors. They argued that doing so constitutes cruel and unusual punishment. It also violates international law prohibiting JLWOP. On July 15, 2011, the judge allowed the case to proceed.

On May 17, 2010, the Supreme Court ruled in Graham v. Florida that juvenile offenders can't be sentenced to life without parole for non-homicide offenses committed before age 18. Although the Court held states needn't guarantee eventual release, they must provide a realistic chance. 

Calling the practice "cruel and unusual" punishment, the decision stated:

"Life in prison without the possibility of parole give no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope."

"A young person who knows that he or she has no chance to leave prison before life's end has little incentive to become a responsible individual."

It also said America "adheres to a sentencing practice rejected the world over."

In December 2006, a UN resolution calling for JLWOP's abolition passed 185 to 1. America alone dissented. Few countries ever adopted it. At least 135 expressly rejected it in domestic laws, and 185 did so in General Assembly votes. 

Israel, South Africa and Tanzania once sentenced children to life without parole. They later adopted legislation permitting juvenile parole. Although laws in some countries theoretically allow JLWOP, none use them. America's the world's only offender.

Although the Supreme Court Graham ruling broke new ground, it excluded 93% of juveniles convicted of homicide, including attempted and accomplice murder. Juvenile justice demands better. JLWOP abolishionists continue seeking state and federal legislative relief.

In 2009, Texas legislation eliminated it. However, it limits parole consideration to imprisonment after 40 years. Perhaps other states may follow and do better.

In November 2011, the Supreme Court agreed to hear two cases involving 14-year old juveniles sentenced to life without parole for homicide. The Equal Justice Initiative (EJI) challenged the constitutionality of Jackson v. Hobbs (an Arkansas juvenile death sentence case) and Miller v. Alabama (a JLWOP one). More on EJI below. 

Both sentences were mandatory without consideration of age or juvenile status. On March 20, 2012, arguments will be heard.

On October 14, 2011, the High Court upheld the Florida Court of Appeal's decision that juveniles convicted of attempted murder cannot receive life without parole. Doing so denied Florida Attorney General's request to review the case in question (Ian Manuel v. State of Florida).

The American Law Institute (ALI)  

Its members include 4,000 lawyers, judges and law professors. Their research, scholarship and education influence legal developments. On October 12, they called for abolishing JLWOP. Its new Model Penal Code requires consideration of juvenile ages and reduced sentences for those prosecuted in adult courts.

It recognizes that children "should be judged less blameworthy for their criminal acts than older offenders - and age-based mitigation should increase in correspondence with the youthfulness of individual defendants."

It urged states make all long-term juvenile offenders eligible for mitigation after 10 years. It said 10,000 were incarcerated in adult prisons and jails in 2009 on any given day. As a result, they're vulnerable to "victimization, psychological harm, and suicide."

The Code explicitly prohibits placing children in adult prisons.

The Equal Justice Initiative (EJI) provides pro bono legal representation for poor defendants and prisoners denied judicial fairness. 

It litigates for "condemned prisoners, juvenile offenders, people wrongly convicted or charged with violent crimes, poor people denied effective representation, and others whose trials are marked by racial bias or prosecutorial misconduct."

It also works with impoverished communities, and unequivocally believes "no child should be sentenced to die in prison." As a result, it initiated litigation challenging juvenile "death-in-prison" sentences.

Congressional JLWOP Legislation

Historically, Congress paid scant attention to juvenile justice. However, JLWOP abolishionists hope current legislation bears fruit. On November 1, 2011, HR 3305: Juvenile Justice Accountability and Improvement Act of 2011 was introduced and referred to committee. So far, no further action was taken.