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Anthony Barkow

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Every Child Deserves a Second Chance

Posted: 05/24/11 07:20 PM ET

Just one year ago in Graham v. Florida, the Supreme Court of the United States ruled that it is unconstitutional to sentence juveniles to life without the opportunity for parole for a non-homicide crime committed when they were under age 18. The Court concluded that these offenders should have an opportunity to have their sentences reviewed, and the logic of the Court's opinion extends to every young person convicted of a serious crime.

I was a prosecutor for 12 years. During that time, I prosecuted a wide variety of crimes, ranging from international terrorism to securities fraud, from domestic violence and sexual abuse to homicide. I prosecuted cases in which offenders received very substantial sentences. I am proud of my work as a prosecutor and I have no doubt that criminal punishment is critical to keeping communities safe.

One of the defendants I prosecuted committed murder when he was 17-years-old. He gunned down his victim and shot him 17 times in cold blood in broad daylight in the middle of a residential street. The same defendant had committed another murder before he turned 18. For these crimes, he was sentenced to consecutive terms of years that were so long as to be tantamount to life imprisonment, and he will never be released. And, in that case, that was a just result.

But at the same time, there are other youthful defendants who have been sentenced to unjust sentences of life without the opportunity for parole. For example, a 15-year-old boy in Chicago, "Peter A," on instructions from his older brother, helped steal a van so that his brother could drive to the home of two individuals who stole drugs and money from the brother's apartment. Peter stayed in the van while two others went inside. While Peter waited in the van, one of the men who had gone into the home shot and killed two people. Peter was sentenced to life without parole, even though the judge said at sentencing that he wished he could impose a lower sentence and described Peter as "a bright lad" with "rehabilitative potential." But the sentence was mandatory and the judge had no discretion or choice to sentence Peter otherwise. Peter is now 29 and has spent nearly half of his life in prison. During that time, he has obtained his G.E.D. and completed a correspondence paralegal course. He has an exemplary record in prison, receiving a disciplinary ticket only once in the past six years (for possessing an extra pillow and extra cereal in his cell). But no matter how much Peter changes in prison, he will serve the rest of his life in prison without having even the possibility of asking to be released, much less getting out.

That is the critical fact to keep in mind about those seeking to end life without parole for juveniles. No one is arguing that any particular individual should be let out of prison. Ending juvenile life without parole merely leaves open the possibility that a child who commits a crime can petition for release later in life, if he can demonstrate that he is remorseful, has rehabilitated, and will not reoffend. Parole authorities can and should be trusted to make informed, reasoned decisions regarding the release and continued incarceration of inmates petitioning for parole.

This approach makes sense as a matter of justice and economics. Juvenile offenders have diminished culpability: a view supported by science -- and common sense, as anyone can attest to who remembers his or her years as a teenager. Juvenile offenders also have increased potential for rehabilitation and, in fact, even without intervention, most offenders age out of crime commission. Thus, in certain instances, spending on extremely lengthy terms of incarceration on juveniles would be wasteful.

Extending the reasoning in Graham, so that it applies to every young person, will have no significant adverse impact on public safety and will allow for flexibility in juvenile sentencing. This will reduce incarceration costs and support the possibility for rehabilitation in young offenders. As a society we can no longer afford to declare youth worthless and sentence them to die in prison without giving them an opportunity to have their sentence reviewed. Before Graham's next anniversary, policy makers must implement reforms to end the practice of sentencing youth to life without parole.


Anthony S. Barkow is the Executive Director of the Center on the Administration of Criminal Law at New York University School of Law.