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October 18, 2010

"Should kids be sentenced to life in prison?"

The title of this post is the headline of this article from Wisconsin which effectively review the latest from in the battle over juvenile offenders getting LWOP sentences.  Here are excerpts:

In 1998, Omer Ninham was an abused 14-year-old child of alcoholic parents. He was also a murderer. After throwing a 13-year-old boy to his death from the top of a hospital parking ramp, Ninham was sentenced to life in prison without parole — essentially condemned to die in prison.

Last week, the Wisconsin Supreme Court decided to review Ninham’s sentence in a case that could determine how age should factor into the sentencing of kids who are sent to adult court.

Ninham’s is one of a number of cases that have been taken up by the Montgomery, Ala.-based Equal Justice Initiative in an effort to turn back laws at both the state and federal level that allow kids to be sent away for life.  “We were very concerned about this community of very young kids who had been sentenced to life without parole and almost no one knew anything about them” says Bryan Stevenson, executive director of the group....

In 2004 the U.S. Supreme Court ruled that it is unconstitutional to impose capital punishment for offenders under the age of 18, which set in motion a number of legal challenges on behalf of children convicted of crimes in adult court.  Earlier this year, the high court again distinguished between adolescents and adults when it ruled that it was unconstitutional to permanently lock up adolescents who commit non-capital offenses.

Now, says Stevenson, courts need to make the same distinction between adults and children who commit capital crimes. And his group is making some headway.  Earlier this year the Iowa Supreme Court gave an Iowa woman, now 32, the right to challenge her life sentence as cruel and unusual punishment for a 1993 killing she committed when she was 14....

Stevenson says Wisconsin is one of 18 or so states that allow children to be sent away for life, and Ninham, now 26, is in a category by himself: the only inmate in a Wisconsin prison who committed a crime at 14 and has no hope of going free.

Generally, Stevenson says, legislatures didn’t intend to put kids away for life. Instead, they made it easier to put kids into the adult system and they also stiffened the punishments available for adults. “They’ve done a lot of things that are catching kids in ways that I think have not been carefully considered,” he says....

Wisconsin Attorney General J.B. Van Hollen, who has assigned an attorney from his department to argue against giving Ninham a chance at parole, would not comment on the Supreme Court’s acceptance of the case.  But after the appeals court decision last year he issued a statement saying, “For some juvenile offenders, a life sentence without parole is fair and just punishment.  Ninham was properly punished for a horrible crime.”

But Stevenson argues that like all adolescents, Ninham has changed as he has matured. Before the murder, he was abused and neglected.  He had never owned a toothbrush until he was sent to a group home at age 14.  His alcoholic parents allowed him to imbibe alcohol daily, and his father and brothers beat him.  Soon after he committed the murder, Ninham was placed in a center for at-risk Native American kids and started to make “extraordinary progress,” says Stevenson, adding, “We think he’s continued to make good progress.”

October 18, 2010 at 08:22 AM | Permalink


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Saddam Hussein murdered a man at age 10. He had a hot pistol under his pillow, when the police showed up. His abusive, alcoholic, step-father paid them off, and they left. Imagine the saving in lives and treasure if little Saddam had been executed for that murder.

The cruelty and lack of empathy that allowed the murder to happen, how have they changed in the above prisoner? How does on reliably measure that factor?

Posted by: Supremacy Claus | Oct 18, 2010 9:05:36 AM

"Should kids be sentenced to life in prison?"

Mostly, no. Sometimes, yes. It depends on the age of the kid (17 isn't 12), his maturity, the heinousness of the crime, the degree of caluclation and planning, and his criminal history, etc.

The wise course is not to look at categories; it's to look at facts.

Posted by: Bill Otis | Oct 18, 2010 10:44:45 AM

Children should NEVER be treated as adults, nor subjected to adult courts , nor given a life sentence. Every attempt should be made at rehabilitation within a properly resourced juvenile system, tasked with achieving the best possible result from professional help. Regular assessment of progress should be reported, and reviewed by a competent body to evaluate the need for continued detainment. If transfer to the adult system is deemed necessary after the age of 18, then the same objectives and support should accompany them.
Children are neither adults nor animals, and deserve a chance to prove their ability to learn and to reform whatever their crime.

Posted by: peter | Oct 18, 2010 12:55:04 PM

I would answer the posed question 'no', kids should not be sent away for life. However a 14 year old is not a 'kid'. While I would agree that the line is fuzzy, 8 or 9 would be much closer to the mark.

Posted by: Soronel Haetir | Oct 18, 2010 1:09:14 PM

Soronel --

A fully adult male who wants to tangle with a 17 year-old "boy" is asking for trouble.

I agree with you that one way of framing the question is to take a step back and ask: Who's a child, really?

I have run across a lot of teenagers in my life. Most of them, at age 17, were still what a normal person would think of as a child, or at least child-like in the ways relevant to criminal law. Some of them were virtually adults, however. As I said before, thinking categories doesn't help. Thinking individual facts helps.

Posted by: Bill Otis | Oct 18, 2010 1:23:38 PM

Peter is arguing for massive funding of government worker make work positions. The criminals among us are mostly known at age 3. Why? Because they act as they will at age 30. Certainly, they are all known by age 7. For all of human history, adulthood, including functioning adulthood, began at 14. The 60 year is more mature and calmer than the 40 year old. Should a 40 year criminal be given rehab services until he turns 60? That is the logic behind the pretextual, false arguments that 14 year olds should not be as accountable as 18 year olds. In the ghetto, most 14 year olds have seen more action than the 24 year olds in law school, and have been subjected to harsh sentences of death and torture by the criminal syndicates given those areas to rule by the biggest criminal syndicate of all, the lawyer profession.

Posted by: Supremacy Claus | Oct 18, 2010 11:18:42 PM

Unfortunately, Bill, leaving it up to fact-specific decisions at the trial level leads to wildly arbitrary results. For example, a disproportionate number of the 77 juvenile non-homicide LWOP sentences in Florida come from just a few counties, often from judges with well-earned "hanging judge" reputations. Because it is so hard to provide meaningful review of these kind of context-specific decisions on appeal (because appellate courts rightly give broad deference to trial court evaluations), the only effective way to avoid these kind of arbitrary outcomes is to make at least some minimum categorical rules (i.e., drawing a line at non-homicides, and also at some minimum age, such as 14 or 16).

Instructing judges simply to consider youth as an important sentencing calculation, for example, (which seemed to be CJ Roberts favored solution in Graham) is an illusory remedy. The good, careful judges *already* do that. The problem is coming from bad judges who sentence reflexively to the maximum on any violent crime. And they will continue to do that as long as they are allowed to, whether or not they are required along the way to give lip service to some heightened consideration of youth.

Posted by: Observer | Oct 19, 2010 1:41:10 PM

Observer --

"Unfortunately, Bill, leaving it up to fact-specific decisions at the trial level leads to wildly arbitrary results."

Adopting a one-size-fits-all rule for widely varying fact patterns will lead to MORE arbitrary results.

Posted by: Bill Otis | Oct 20, 2010 1:04:03 AM

For far too long we have accepted and nourished a culture that systematically devalues the importance of our children reaching their maximal development.

A culture that pretends to believe that our Nation's children will fulfill their potential in dilapidated, unsafe schools with out dated curriculum's and equipment. A culture that designed the minds, the ideas and the motives of two Pennsylvania Court Judges, Mark A. Ciavarella Jr., and Micheal T. Conahan, who in 2009 were found guilty of accepting bribes, "A finders fee" first for their help of getting Juvenile Detention Facilities built and then to keep them filled. A culture that is without a healthy dose of empathy, for the masses would be less inclined to tolerate dysfunctional and uninspiring schools if they believed that those kids were like their own kids, a CEO would be less inclined to strip their employees of vital pieces of their health care plan if he/she saw their employees as equals to themselves.

But yet, a culture with a long history of Citizens stepping out of the shadows, out of obscurity to raise vital issues to the light in an endeavor to perpetrate progressive societal reformations. The Children of this Nation are currently in dire need of the assistance of that freedom fighting spirit. For they are being discarded into Adult Penal Institutions at an alarming rate.

In States all over the Nation Juvenile offenders are being sentenced to very lengthy terms of Incarceration. In virtually all of these States Judges aren't statutorily required to consider Juvenile's youth at sentencing. Over the past fifteen years there has been an explosion in the amount of children in adult jails and prisons, over 200% increase. A trend that began in the 'get tough on crime' era when many State Legislators passed Laws that automatically bypassed the Juvenile Justice System, of which put children s fate into the hands of State Legislators and Prosecutors, without protection for youth. In three States, If you are sixteen, you can automatically be moved to the Adult system, Ten States do it at seventeen. In the State of Wisconsin a 14 year old child is eligible to be waived into the adult system, though myopically the relevant factors to be considered at sentencing only include the following:

(1) Protection of the public

(2) Gravity of the Offense.

(3) Rehabilitative needs of the defendant, 973.017 (2) Wis. Stats.

In State V. Davis, 281 Wis. 2d 118 the State of Wisconsin further neglects it's responsibility to it's children when it stated, "A defendant's age is a secondary factor that the trial court may, but is not required to consider in fashioning an appropriate sentence. The Trial Court, if it considers age, determines whether it should carry any weight". In other words, a Judge has the sole discretion to determine whether or not a child's age is relevant at sentencing.

But recent developments in brain research make it abundantly clear that a defendant's age, in the case of a Juvenile is extremely relevant.

Researchers at UCLA, Harvard Medical School and the National Institute of Mental Health have traced the development of the adolescent mind. What they have discovered is that the Adolescent brain goes through a growth process well into the early 20's. The area not fully developed in the adolescent mind is called the Pre frontal Cortex. A small area of the Frontal Lobe and the largest section of the brain, the Pre frontal Cortex is responsible for complex thinking. This area allows the mind to organize, think in the abstract, prioritize, anticipate consequences and control impulses. Therefore, the underdevelopment of the Pre frontal Cortex is the physical source of immature decision making in adolescents.

The Scientific research makes clear that adolescents do not think and behave the same way as adults and therefore, should not be legally treated the same way. In so much that the lengthy sentences imposed without consideration of this mitigating factor violate the cruel and unusual punishment clause of the 8th Amendment of the United States Constitution.

Recognition of the decision-making limitations of the immature mind underlines legal requirements for Voting, drinking, Marriage, entering into Contracts and Military Service. Despite these Legal protections instances of Inner City Violence have shifted Public perception on the needs of the youth involved with the Law, from rehabilitation to deterrence and retribution. This shift has resulted in the Legislative enactment of harsher penalties for youthful offenders and longer sentences for Incarceration.

The most recent evolution in theories for competence evaluation for youthful offenders considers developmental immaturity. Consideration of developmental immaturity stems from recognition of the naturally impaired decisional competence of youths. Study of adolescent decision making evaluates the cognitive abilities and psycho- Social traits that allow for good use of the available cognitive tools. The Psycho-Social traits that are a factor in adolescent decision making are comprised of Maturity of Judgment' which has three elements: Responsibility, Perspective and Temperance.

Responsibility is defined as healthy self-Identity and Autonomy

Perspective is the ability to appreciate complexity of a situation and see the big picture

Temperance deals with the ability to limit impulsive and emotional decision making, to think before acting, and avoid decision making extremes.

The elements of maturity predispose a young person to act in certain ways but are not fixed abilities or competencies. The difference in adult and adolescent decision making stems from a different appreciation in priorities. Adolescents put less importance on long term consequences, but rather, put greater emphasis on the novelty and intensity of a situation. Although adolescents lack maturity based on their priorities.

I find it odd and grandly contradictory that our level of sophistication has reached such an advanced stage that we can create the technology that sends man to the moon, yet we haven't created a system that responsibly adjudicates our troubled children.

A system that seeks to rehabilitate and progressively mold their minds instead of using the most vulnerable sector of the population as political ponds. It's time we take heed to the cutting edge science and use it within the construction of a system that is dedicated to helping children reach their maximal development, use it to construct a legal foundation that outlaws the waiver of children into the Adult Judicial System and making it a requirement for Judges to consider age (of Juveniles) at sentencing.

"One of the most effective ways of measuring the quality of an era is by watching the ways in which they treat their children" - Dante Cottingham

Dante Cottingham #259241
Green Bay Corr Inst.
P.O. Box 19033
Green Bay

Posted by: Dant'e Cottingham #259241 | Dec 10, 2010 11:44:11 AM

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