This piece was published on March 9th at Vindy.com. A response to Mr. Mangino from Mary Ellen Johnson, Executive Director of the Pendulum Foundation is posted immediately following this article.
With the introduction of HR 4300, a call to end the Juvenile LWOP sentence nationally I suspect the dialogue surrounding this charged issue will be picking up. There are significant, legitimate concerns on both sides of this debate, but so far, positions appear to remain polarized. An attempt to find solutions that address public safety, the victims of the crimes, the age of the offenders at the time of the crimes, the circumstances surrounding the crimes and alternative approaches to rehabilitation do not seem to be a part of the larger discussion. Perhaps that will change. I would like to hope so.
Published:Sunday, March 9, 2008
Matthew T. Mangino
Handle juvenile lifers cautiously
There is a renewed urgency to abolish life without parole (LWOP) for juveniles. In the last several weeks The New York Times, among other outlets, have called for a halt in sending juveniles to prison for life with no hope of parole. With mounting public pressure, policymakers would do well to proceed with caution.
Life without parole is not unlike the death penalty. Paul Wright, a former lifer, told The New York Times, “It’s a death sentence by incarceration. You’re trading a slow form of death for a faster one.” Only three years ago the United States Supreme Court banned the execution of juveniles. The decision in Roper v. Simmons resulted in the commutation of 72 juvenile death penalties; a significant majority of those juvenile offenders were re-sentenced to LWOP.
When the U.S. Supreme Court made the landmark decisions in Roper as well as Atkins v. Virginia, banning the execution of the mentally retarded, the justices cited “evolving standards of decency.” In the analysis of evolving standards of decency the court considers the action of state lawmakers to establish a national consensus. When Atkins was argued, 30 states had banned the execution of the mentally retarded. When Roper was argued, the same number of states had banned the execution of juveniles. Today only eight states have banned LWOP for juveniles. California is considering a bill that would eliminate LWOP and limit juvenile sentences to 25 years to life. Michigan, Illinois, Nebraska and Florida are considering similar legislation, which would make a significant number but not a national consensus.
At the time of the Atkins and Roper decisions death penalty abolitionist argued that LWOP was an appropriate alternative sentence to the death penalty. Today, the same arguments made to abolish the death penalty are being incorporated into the argument against LWOP for juveniles.
Those who are advocating for the end of juvenile LWOP often cite research suggesting that the juvenile brain is not yet fully developed. Supreme Court Justice Anthony M. Kennedy wrote in Roper that juveniles are cognitively immature and therefore less culpable. The brain development argument is being used with more frequency in courtrooms across the country.
The juvenile criminal court system is distinctly different from the adult criminal court system. The juvenile system is not punitive. The focus is on rehabilitation and is oriented toward the treatment of young offenders. However, it has been suggested that some young offenders are not amenable to treatment and are so dangerous that only a lifetime of incarceration would protect the public.
Justice Kennedy wrote in Roper, “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.” He goes on to write that it is impermissible to render an opinion about antisocial disorders in offenders under age 18. That is precisely the point; the diagnosis should be made after the age of 18 with the ability to keep that rare offender with “irreparable corruption” from harming another innocent person.
LWOP for juveniles convicted of first degree murder should be an option for judges, not a mandatory requirement. Sentences, especially for juveniles charged as adults, should be specifically tailored for each individual offender. This could be effectuated by giving judges the discretion that legislatures rushed to take away when getting “tough on crime.”
A juvenile sentenced to LWOP need not be doomed to a lifetime of hopelessness. Governors across the country have the ability to grant clemency. The pardon is a long accepted method of invoking fairness and justice.
States would do well to follow the lead of Colorado and establish juvenile clemency boards. The board would be charged with reviewing antisocial disorders in offenders now over the age of 18 who were sentenced to LWOP as juveniles. The legislature could establish parameters for consideration and guidelines for recommending clemency to the governor.
The question is not whether some violent juvenile offenders deserve to be locked away for life, but rather, do law abiding citizens deserve the protection that total incapacitation of dangerous offenders affords. Policymakers should not blindly rush to abolish an appropriate sentencing option, without first considering judicial discretion and executive authority.
X Matthew T. Mangino is the former district attorney of Lawrence County. He is a featured columnist for the Pennsylvania Law Weekly. He can be reached at firstname.lastname@example.org) .
The following response was sent to Mr. Mangino by Mary Ellen Johnson, Executive Director of the Pendulum Foundation.
Subject: Response to your article: Handle JLWOPS Carefully
Just a few words in response to your thoughtful article. The Pendulum Foundation, the head of the CO DA’s council, and a CO legislator agreed on a juvenile clemency board in response to several years of bruising legislative battles dealing with kids serving life. The board will soon have its first two candidates (a juvenile can be serving less than life to apply.) Iremember at the time Governor Ritter signed the executive order that defense attorneys said, “Watch what he does. He NEVER has to grant a commutation but it sure makes him look good.” I thought the attorneys were being cynical.
In a few weeks two young prisoners will have their cases heard. Not being an attorney but merely an advocate, I have to admit I no longer have much faith in the system either. The board is stacked with law enforcement. The head of the board is a former prosecutor who testified against and prosecuted several of the young men and women who will be seeking a pardon or commutation. Despite the fact that Colorado ranks 5th in the disproportionate number of minorities serving juvenile LWOP, no African-American is represented. Even though The Pendulum Foundation conceived the very idea of the juvenile clemency board originally, we are not allowed to have any interaction with the board. We had hoped to be able to suggest a certain set of criteria most suited to juveniles.
Upon entering the system young offenders have MANY different problems from those who are incarcerated in their twenties or thirties. One major difference is gang involvement. Kids going into the adult system WILL join a gang for protection. Only after they’ve been inside for a while will they feel confident-and safe enough–to find their own friends. That involvement often sends them directly to a control unit. More than half of our kids have spent up to 8 years in our Super Max. They can’t apply for a commutation – and they can’t work their way back out into general population. The reality is so very different from the theory and from the tidy declarations of the board that the dominant emotion among many of us is simply despair.
The liaison between advocates and the board assures us that our voices will be heard via my emails and that we must give the board a chance. However, when we look beyond the board to the governor, we ask: If I were Governor Ritter, would I give ANY of these young men and women a clemency or commutation? No, not when they get no programs or therapy or any sort of rehabilitation. So The Pendulum Foundation has offered extensive cognitive behavior therapy, beginning with young LWOPS who are mandated by law to receive programs, to all Colorado prisoners.
Cost to the state: ZERO.
We’ve received lip service and no actual interest. So we wonder, does anyone really care about lowering recidivism? Does anyone really want to slow the growth in the three-quarters of a billion Colorado corrections budget? (With less than 3% of that budget going to any sort of programs.) IS the juvenile clemency board just for show? It’s too early to tell but you know that in the best of times, clemency and commutation are seldom granted. One CO governor granted 4 for battered women years ago. Needless to say, there is no such outcry on behalf of battered children – of whom we have two serving life sentences for killing their abusers. I will end this too long letter with another thank you for addressing this difficult issue. I suspect that we can both agree on one thing: the implementation or dismissal of a juvenile clemency board will not fix a very fundamental problem. The real problem is with the devolution of our justice system, and more deeply with the shifting in the American psyche away from redemption and rehabilitation to a mindless embrace of retribution.
Mary Ellen Johnson, Executive Director