IX. Conclusion: Life without Parole and the Purposes of Criminal Punishment

Criminal punishment in the United States can serve four goals: rehabilitation, retribution, deterrence, and incapacitation. The effectiveness of any punishment-whether life in prison or a week in jail-should be measured against the yardstick of these four goals and should accord with the widely accepted corollary that no punishment should be more severe than necessary to achieve these stated goals. Sentencing children to life without parole fails to measure up on all counts.

Recognizing that all human rights derive from the inherent dignity of the human being, international human rights law requires that the essential aim of all penal systems must be to allow, encourage, and facilitate rehabilitation.[340] The United States, after a few decades of ignoring this goal, is moving back to recognizing it as crucial to community safety.[341] However, life without parole not only does not further this goal, it negates it. The sentence sends an unequivocal message to youth offenders that they are banished from the community forever, no matter how they change or grow.

Reflecting on his prosecution of Lionel Tate, believed to be the youngest child offender ever to be sentenced in the U.S. to life imprisonment without the possibility of parole, prosecutor Ken Padowitz said: "What I think we should have in a civilized society for a twelve-year-old who is convicted of a heinous and horrible crime, such as the one here, is some hope of rehabilitation, to be able to come out into the community as a productive member of society."[342]

Life without parole discourages youth offenders from attempting to reform themselves in prison. But rehabilitation is also stymied by the special hardships inherent in the life without parole sentence. Youth wrestle with the anger and emotional turmoil of coming to grips with the knowledge they will die in prison. They are denied educational, vocational, and other programs to develop their minds and skills, because correctional authorities reserve these under-funded programs for prisoners who will someday be released. Not surprisingly, child offenders sentenced to life without parole believe that U.S. society has thrown them, and respect for human dignity, away.

When the focus is on rehabilitation, legislators do not face a choice between being "soft on crime" or supporting life without parole for youth offenders. They can save taxpayer dollars, protect community safety, and save youth. As Steve Geller, a Florida state senator who sponsored a bill to provide youth offenders with access to parole, notes, "At least [children] have a chance for redemption . . . They're kids, they have to have punishment and they have to have rehabilitation. But we don't need to ruin their lives forever."[343]

Nevertheless, proponents of harsh sentencing argue that the severity of children's crimes warrants the most punitive sentences possible. Texas Senator Edward Lucio, who authored a bill allowing child offenders to receive life without parole sentences, said:

With the law as it is right now . . . young persons who commit these crimes are guaranteed to be eligible for parole when they reach my age. With the law as it is right now, these offenders who pose a grave risk to the safety of us all can now walk the streets of our communities again . . . Life without parole is the only option in a capital case that provides certainty for the families of victims . . . there are no concerns about parole hearings or early release-it is final, definitive and certain![344]

Other proponents of life without parole believe the sentence is necessary in order to ensure that society mete out the worst punishment for the worst offenses. They look solely to the crime to determine retribution, ignoring the age and culpability of the offender.

Retribution is not, however, simple vengeance. Punishment serves a retributive purpose when it gives the offender his or her "just deserts"[345]-in other words, when the punishment fits the crime. As the Supreme Court has stated, "The heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender."[346] In order to achieve this goal of proportionality, both the nature of the offense and the culpability of the offender must be taken into account.

Children can commit the same acts as adults, but by virtue of their immaturity, they cannot be as blameworthy or as culpable. They do not have adults' developed abilities to think, to weigh consequences, to make sound decisions, to control their impulses, and to resist group pressures; their brains are anatomically different, still evolving into the brains of adults. These characteristics of children have long caused people to question whether youth offenders should ever be sentenced to life without parole. As the Supreme Court stated in Roper, the differences between youth and adults "render suspect any conclusion that a juvenile falls among the worst offenders."[347]

Deterrence of future crime is also ill-served by life without parole sentences. Supporters of the life without parole sentence claim that children who pause to consider the consequences before committing homicide will be deterred best if they face harsh sentences, such as life in prison without parole. But research has failed to show that the threat of any adult punishment deters adolescents from crime, given their limited abilities to think rationally or beyond the short-term.[348] Deterrence is also unlikely given that adolescents cannot really grasp the true significance of the sentence.

With regard to the fourth purpose of criminal punishment, that of incapacitation, it clearly makes a direct contribution to public safety to the extent an incarcerated person cannot commit additional crimes in the community. But the need to protect public safety and to incapacitate a particular offender ends once he or she has been rehabilitated. There is no basis for believing that all or even many of the children who receive life without parole sentences would otherwise have engaged in a life of crime. Our research indicates that many child offenders received life without parole for their first offense. There is little in their histories to warrant the assumption that they would not grow up and be rehabilitated if they were spared a lifetime in prison. And even if incapacitation did have a measurable impact on rates of youth violence, this is not an argument for condemning a child offender to life without parole. A fifteen-year-old offender will clearly be a very different person by the time he or she has become a mature adult. Incapacitation as a justification for life without parole sentences falters, because child offenders have the potential to be rehabilitated and become productive members of society.

Teen Offenders Now in Their 50s, 40s, and 30s

Some proponents of harsh sentences for children believe such sentences have contributed to the marked decline in violent youth crime nationwide after 1994. Others, however, have noted that where juvenile justice systems have implemented regimes tending more towards rehabilitation than punishment, the fall in youth violence has been even more pronounced. In the District of Columbia, a concerted program of replacing locked detention with community-based alternatives brought real results, as compared with a more punitive policy adopted by the nearby state of Maryland. Under its reform program, the District of Columbia sharply reduced its juvenile detention rate (by 71 percent). During this same period, Maryland slightly increased its juvenile detention rate by 3 percent. Comparing the two different policies towards juvenile crime, D.C.'s violent juvenile crime rate declined by 55 percent-more than three times Maryland's 15 percent decline in its violent juvenile crime rate.[349]

When an individual of any age can be held responsible for his or her actions, failure to bring them to account would deny justice to the victims. However, any criminal action against a child offender should include all internationally accepted safeguards for bringing children to trial. These laws and guidelines recognize the special needs and vulnerabilities of children and place an emphasis on rehabilitation and the reintegration of the child into society, rather than on punishment alone. Child offenders must have an opportunity to evidence rehabilitation and gain parole. Giving youth offenders that second chance would align U.S. sentencing practices with the rest of the world and better protect the rights of its children.

The United States has long acknowledged the differences between the maturity of children and adults by requiring that children reach a given age before they may legally engage in certain activities. These laws use chronological age to set a bright line-no one under eighteen, for example, may vote, no matter how intelligent, responsible, and mature. The use of age as a marker reflects widely shared understandings about when, as a group, children should be deemed mature enough to engage in adult activities. It also reflects the inherent difficulty of determining for any given young person whether he or she is developmentally akin to a young adult, or still a child.

When grave sentences are at issue-such as life without parole-the use of a legislatively-established age line reflects the judgment that the differences "are too marked and well understood to risk allowing a youth [to be treated as an adult] despite insufficient culpability."[350] The risk is especially high if the crime at issue is violent or particularly brutal. Leaving a sentence determination entirely in the hands of the jury carries the "unacceptable likelihood" that "the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe."[351] Even the simple fact of youth, irrespective of the brutality of the crime, may unfairly influence decisions by the jury, as illustrated by the fact that in certain recent years, children who committed murder in the United States were more likely to be given life without parole sentences than adults.

Eighteen is a fair and practical age to set as the line between childhood and adulthood for purposes of criminal sentencing. Although from a biological standpoint, key parts of the brain (including the prefrontal cortex) have not fully reached maturity by that age, most youth of eighteen are well into the process of acquiring the full capacities of adulthood. There is national as well as international consensus that it is fair to hold an eighteen year old as accountable as an adult.[352] As several Supreme Court justices have noted:

Eighteen is the dividing line that society has generally drawn, the point at which it is thought reasonable to assume that persons have an ability to make, and a duty to bear responsibility for their judgments. Insofar as age 18 is a necessarily arbitrary social choice as a point at which to acknowledge a person's maturity and responsibility, given the different developmental rates of individuals, it is in fact a conservative estimate of the dividing line between adolescence and adulthood.[353]

Sentences for offenders who are children-a group society recognizes as uniquely vulnerable and in need of protection in many realms of life-should acknowledge the profound differences between childhood and adulthood. Eighteen should demarcate the age at which offenders may receive the harshest forms of criminal punishment society can impose.

U.S. federal and state governments have the responsibility of protecting public safety, and they use the criminal justice system to do so. Children can and should be held accountable for their crimes. But the government is also responsible for ensuring that justice is in fact served when a person is tried, convicted, and sentenced. Sentences passed on child offenders must reflect the gravity of the crimes they have committed, while acknowledging that they do not possess the maturity and judgment necessary to justify a punishment that brands them permanently irredeemable. Children have a special capacity for transformation. The denial of that possibility should not be part of a juvenile justice system based on human rights principles and standards.