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VIII. Just Sentences for Youth: International Human Rights Law

Conviction for even a very serious crime does not extinguish a youth offender’s claim to just treatment at the hands of government, nor does it free a government to ignore fundamental rights when determining punishment. Nevertheless, by permitting the imposition of life imprisonment without parole on child offenders, forty-two U.S. states and the federal government threaten children’s basic rights. International human rights law flatly prohibits life without parole for those who commit their crimes before the age of eighteen, a prohibition that is recognized and respected by almost every country in the world. State public officials, no less than federal, are required to follow international human rights law when imposing criminal sentences.

International Human Rights Law

The international prohibition against life without parole sentences for children (as well as the death penalty) is one of the crucial human rights protections for youth who have broken the law. Children have many of the same fundamental rights as adults—e.g., the right not to be tortured and the right to a fair trial. They also have additional rights not afforded adults. Even before the drafting of the major human rights treaties in the second half of the twentieth century, states acknowledged special rights of children that reflect their unique vulnerabilities and needs and the concomitant responsibility of governments to protect them. The United States also played an early leadership role in establishing a separate system of criminal justice for youth. The state of Illinois was the first government in the world to decide that children accused of crimes should be tried in a juvenile court that was structured differently from the regular criminal courts.²⁶⁹

In November 1959, the United Nations General Assembly adopted the Declaration on the Rights of the Child, which recognized that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”²⁷⁰ The United States was one of the seventy-eight members of the U.N. General Assembly, which voted unanimously to adopt the Declaration. Since that time, the world’s governments, including the United States, have further elaborated the rights of children accused of crimes.

The International Covenant on Civil and Political Rights (ICCPR), to which the United States became a party in 1992, specifically acknowledges the need for special treatment of children in the criminal justice system and emphasizes the importance of their rehabilitation.²⁷¹ Article 10(3) requires the separation of child offenders from adults and the provision of treatment appropriate to their age and legal status. Article 14(4), which was co-sponsored by the United States,²⁷² mandates that criminal procedures for children charged with crimes “take account of the age and the desirability of promoting their rehabilitation.”²⁷³ The ICCPR requires states to respond to the offenses children commit by focusing on positive measures and education rather than punishment. ²⁷⁴  

There are several ways in which the United States is failing to uphold its obligations under the ICCPR. First, criminal laws allowing children to be tried and sentenced as adults violate the specific requirement contained in Article 14(4) that criminal procedures take account of the age of children.²⁷⁵ As discussed above in Chapter III, many states allow prosecutors to charge children directly in adult court, without any consideration of the particular needs of the child. Other states require children to undergo a hearing in juvenile court before transfer to adult court, yet these hearings may be little more than a rubber stamp of prosecutorial decisions to seek adult sentences. Moreover, when children are tried in adult courts, they are treated as adults rather than being given age-specific accommodations. Most importantly for the subject of this report, children are given sentences equivalent to those of adult offenders. Thus, for example, if life without parole is a mandatory sentence for first degree murder, it is mandatory whether the offender was fourteen or forty-five at the time of the crime.

Second, the sentence of life without parole for children also contradicts the explicit requirement in Article 14(4) of the ICCPR that imprisonment should promote rehabilitation. The sentence reflects a determination that there is nothing that can be done to render the child a fit member of society. It is a sentence of permanent banishment—not an expression of faith that hard work and time can promote positive change. Indeed, the sentence tells child offenders that U.S. society rejects out of hand any hope they may have to atone for their crimes and improve their lives.

Both the ICCPR and the Convention against Torture and Other, Cruel, Inhuman or Degrading Treatment or Punishment prohibit “cruel, inhuman or degrading treatment or punishment.”²⁷⁶ Excessive punishment becomes cruel, inhuman, or degrading if its severity or length is greatly disproportionate to the crime or to the culpability of the offender. The prohibition on cruel, inhuman or degrading punishments is complemented by the positive requirements of article 10 of the ICCPR, which stipulates: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”²⁷⁷ For treatment to be humane, it must be appropriate to age and legal status.²⁷⁸ The vulnerability and immaturity of juvenile offenders renders them more susceptible to cruel, inhuman, or degrading punishments, which will in turn have a much more profound impact on the body and mind of a developing child than an adult.

Applying the prohibition on “cruel and unusual punishment” in U.S. law, the Nevada Supreme Court concluded that life without parole is a cruel and unusual sentence for a child offender. The Court stated, in part:

We do not question the right of society to some retribution against a child murderer, but given the undeniably lesser culpability of children for their bad actions, their capacity for growth and society’s special obligation to children, almost anyone will be prompted to ask whether Naovarath deserves the degree of retribution represented by the hopelessness of a life sentence without possibility of parole, even for the crime of murder. We conclude that as “just deserts,” for killing his sexual assailant, life without possibility of parole is excessive punishment for this thirteen-year-old boy.²⁷⁹

Imprisonment is the most coercive non-capital punishment lawfully imposed by criminal justice systems. Putting a person behind bars is so common in the United States, however, that public officials and the public at large seem to have lost sight of just how serious a punishment it is.

It is precisely because imprisonment is such an inherently severe sanction that governmental decisions to impose it are subject to human rights constraints. The ICCPR recognizes that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.²⁸⁰ Human Rights Watch and Amnesty International agree with the proposition advanced over thirty years ago at a U.N.-sponsored conference on human rights that punishments “prescribed by law and applied in fact should be humane and proportionate to the gravity of the offence.”²⁸¹ We believe that the best reading of three interrelated human rights principles make life without parole sentences for child offenders per se disproportionate: the inherent dignity of the individual, the prohibition on inhuman or degrading punishment, and the right to liberty. All are affirmed in international instruments which the United States has signed or ratified, including the Universal Declaration of Human Rights, the ICCPR and the Convention against Torture.

When the United States ratified the ICCPR, it attached a limiting reservation that stipulates:

That the policy and practice of the United States are generally in compliance with and supportive of the Covenant’s provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2 (b) and 3 of article 10 and paragraph 4 of article 14.²⁸²

The history of this reservation indicates that it was intended to permit—on an exceptional basis—the trial of children as adults and the incarceration of children and adults in the same prison facilities. The United State s, as a co-sponsor of Article 14, was keenly aware of the breadth and scope of its language. There is nothing in its reservation to suggest that the United States sought to reserve the right to sentence children as harshly as adults who commit similar crimes.

On the contrary, the reservation’s plain language and drafting history show that the United States sought to reserve the ability in “exceptional circumstance” to try children in adult courts and to require some of them to serve their sentences in adult prison. According to the United States Senate Committee on Foreign Relations, the reservation was included because, at times, juveniles were not separated from adults in prison due to their criminal backgrounds or the nature of their offenses.²⁸³ In other words, the reservation is not about the length or severity of sentences, only about the need to sometimes try children as adults and incarcerate them in adult prisons.

The Convention on the Rights of the Child (CRC) explicitly addresses the contradiction between the particular rights and needs of children and life without parole sentences.²⁸⁴ Underpinning several of the treaty’s provisions is the fundamental recognition of the child’s potential for rehabilitation. Recognizing the unacceptability of sentences that negate the potential of children to make changes for the better over time, the CRC flatly prohibits sentencing children to life sentences without parole or to the death penalty.²⁸⁵ Article 37(a) states:

Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.²⁸⁶

The CRC also requires that a State’s decision to incarcerate a child “shall be used only as a measure of last resort and for the shortest appropriate period of time.”²⁸⁷ A child who has committed a crime is to be treated in a manner that takes into account “the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”²⁸⁸ States are to use a variety of measures to address the situation of children in conflict with the law, including “care, guidance and supervision orders; counseling; probation; foster care; education and vocational training programmes and other alternatives to institutional care.” ²⁸⁹ The treaty also anticipates the need for regular and accessible procedures in which a child can “challenge the legality of the deprivation of his or her liberty.”²⁹⁰ Punishing a youth offender with the longest prison sentence possible, offering no hope of rejoining society, little motivation for rehabilitation, and scant opportunities for learning, violates each of these provisions.

The CRC has been accepted all but universally: as of 2005, 192 out of a total of 194 countries are parties. Notably, none of the state parties to the treaty has registered a reservation to the CRC’s prohibition on life imprisonment without release for children.²⁹¹ The United States and Somalia²⁹² are the only two countries in the world that have not ratified the CRC, although both have signed it.²⁹³ As a signatory to the CRC, the United States may not take actions that would defeat the convention’s object and purpose.²⁹⁴

The U.S. government has proclaimed its commitment to the CRC’s principles.²⁹⁵ When Ambassador Madeline Albright, as the U.S. Permanent Representative to the U.N., signed the CRC on behalf of the United States in 1995, she declared:

The convention is a comprehensive statement of international concern about the importance of improving the lives of the most vulnerable among us, our children. Its purpose is to increase awareness with the intention of ending the many abuses committed against children around the world. . . . United States participation in the Convention reflects the deep and long-standing commitment of the American people.²⁹⁶

The United States has reaffirmed this commitment on subsequent occasions. For example, in 1999 Ambassador Betty King, U.S. Representative on the U.N. Economic and Social Council stated:

Although the United States has not ratified the Convention on the Rights of the Child, our actions to protect and defend children both at home and abroad clearly demonstrate our commitment to the welfare of children. The international community can remain assured that we, as a nation, stand ready to assist in any way we can to enhance and protect the human rights of children wherever they may be.²⁹⁷

Case Study: Troy L.

Troy L. was fifteen both in this photo and when he committed his crime.
© 2005 Private.

Troy L. grew up with his family in Arkansas. Troy did not have a juvenile record but had been kicked out of one high school for selling marijuana. He explained to a researcher for this report that he used drugs such as marijuana and “crystal meth.” After Troy was suspended from the alternative school he was attending, his mother sent him to live with his father, who was an engineer in a nuclear power plant, so that Troy could attend another high school. Troy said that his father was physically and mentally abusive. He would not provide details about the abuse he had suffered at the hands of his father, explaining to a researcher for this report that he had promised his mother and sister that he would not to do so.

When asked what his new school had been like, Troy, who is now twenty-three years old, said: “I was doing a lot of drugs. I was real rebellious. I mean, like I said, I had problems going on at home and I’d take that to school and bring problems with me. And I didn’t do good at school. Ironically, though, I sort of liked it—I liked being around the people and . . . I just didn’t, you know teachers didn’t like me.”²⁹⁸

Troy was fifteen when he murdered his father and was sentenced to life without parole. He told a researcher for this report what his life was like at the time: “[M]e and my dad hadn’t gotten along real good since they got divorced and well we probably had never gotten along real good. We had a sort of abusive . . . he was kinda abusive, but I was too . . . I mean I see now that I probably should’ve just left. It just, it seemed like me and him were just at war with each other. I mean, I really felt like he hated me at the time. I don’t know how to explain that. It wasn’t right, though, I see that now . . . I think now . . . if he was still alive I would like to meet him, you know give him a chance to, I don’t know . . . And you know he was abusive, but like I said there’ve been a lot of parents who’ve been abusive . . . You can’t have every kid that’s abused killing their parents—it just ain’t gonna work. And I realize that now.”

An investigator in the case said that a friend had brought Troy a jacket a few minutes before the murder, “because it had some shotgun shells in it,” ²⁹⁹ which the prosecution introduced as evidence of premeditation. However, according to Troy, he and his father had “fought heatedly” that night. He claimed: “[T]he decision to kill him, as much as it was made, was made while we fought, the feeling I guess being that I had to end this.”³⁰⁰ He said, “[I] had been so angry and emotional at the time of the murder that I had been incapable of realizing the consequences of what I was doing, that I would not have a father anymore.”³⁰¹

The Supreme Court of Arkansas examined the case and found that the murder was pre-meditated, because “a sheriff’s deputy testified that a person had to make a conscious effort to pump the shotgun to fire it,” and Troy’s sister testified “that he had talked about killing their father for six months to a year.”³⁰² The Court also found that Troy shot his father three times, with two different kinds of ammunition, meaning he had to actually reload, not just pump the gun. The same court record indicated that Troy confessed to shooting his father because he was “mad at him.”³⁰³  

After he was interviewed for this report, Troy wrote to explain that despite the fact that he murdered his father, he has the support of his sister and mother. He wrote, “I have a surprising number of friends and family who have kindly offered that I may stay with them if I am released, despite the state’s fearful appraisal of me. . . . In spite of the insane thing that I did, I don’t know of a single entity, aside from the state . . . who wish for me to stay here. . . . I want to be able to show my appreciation and make amends to people I’ve hurt . . . I sap time, joy and money from anyone I come into contact with . . . I would more than anything like to be rid of this curse that, by afflicting me, afflicts everyone I care about.” ³⁰⁴  

In sharp contrast to the United States’ expressed intention to protect the human rights of children, federal law as well as the laws of forty-two individual states in the U.S. permit the sentence of life without parole for child offenders. Indeed, as of this writing, the U.S. Congress was contemplating a new federal law that would increase the number of crimes for which a youth might receive life without parole.³⁰⁵ Since 1989, no U.S. state that permits the sentence for child offenders has taken any significant steps to reduce or eliminate it.

Federal and state governments’ policy of imposing life without parole sentences on youth offenders violates U.S. constitutional law, which requires both individual states and the federal government to uphold human rights treaties made under the authority of the United States. The U.S. Constitution states:

[A]ll treaties made, or which shall be made, under the authority of the United States shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Law of any State to the contrary notwithstanding.³⁰⁶

Upholding this constitutional principle, the U.S. Supreme Court has stated, “[I]nternational law is part of our law, and must be ascertained and administered by the courts of justice of the appropriate jurisdiction. . .”³⁰⁷ Treaties of the United States have been held to be binding on states independent of the will and power of state legislatures.³⁰⁸ Human rights treaties, like other treaty obligations of the U.S. government, are similarly binding on state governments.³⁰⁹ Apart from treaty obligations, international human rights principles are also “instructive” in determining appropriate punishments.³¹⁰ Therefore, not only should state officials adhere to the prohibition against life imprisonment without parole for youth offenders, but the federal government has an obligation to support those states, including through federal funding, that may choose to eliminate the sentence in the future.

Practices of Other Countries

The domestic laws and practice of governments worldwide provide a clear measure of global adherence to the CRC’s prohibition of the life without parole sentences for children.³¹¹ Out of 154 other countries for which Human Rights Watch was able to obtain data,³¹² only three currently have people serving life without parole for crimes they committed as children, and none of those four have more than a handful of cases. The paucity of countries that sentence children to life without parole is not due to their use of even harsher punishments (such as the death penalty) for child offenders. In fact, between 1990 and 2004, only eight countries (including the United States) have reportedly imposed the juvenile death penalty.³¹³

For example, not one of the original fifteen member states of the European Union allows children to be sentenced to life without parole.³¹⁴ On the African continent, thirty-one countries prohibit life without parole for children in their penal laws.³¹⁵ Six other African countries have decided that the sentence cannot be imposed on child offenders under sixteen.³¹⁶ In three additional African countries, the sentence is technically possible, but it is not used in practice.³¹⁷

Kenya and Tanzania are the only two countries in Africa where representatives of inter-governmental or non-governmental organizations reported that the sentence is still being imposed on offenders below the age of eighteen. But even these countries are working on improving their practices. Kenya is currently undergoing an extensive constitutional and law reform process, which may eliminate the sentence. In Tanzania, apparently the only recent life without parole sentence for a youth is that of a seventeen-year-old convicted in a highly controversial rape case. His conviction is currently under appeal.³¹⁸

Throughout the world, about fourteen countries have laws allowing for a life sentence to be imposed on youth offenders, although it is not clear in all of these cases whether life means life, or whether parole remains a possibility.³¹⁹  Outside of the United States, we have found only about a dozen child offenders serving such a sentence in three countries. South Africa reportedly has four child offenders serving life without parole sentences,³²⁰ Tanzania has one,³²¹ and to our knowledge, there are between four and seven youth offenders sentenced to life in prison in Israel as of 2005.³²² In addition, youth can technically receive the sentence under the penal laws of Antigua and Barbuda, Australia, Brunei, Dominica, Kenya, Saint Vincent and the Grenadines, Solomon Islands, and Sri Lanka, but it seems that the sentence is rarely if ever used. Finally, in Burkina Faso and Cuba, the sentence seems to be technically possible for individuals above the age of sixteen, but we know of no instances in which it has been used.³²³ Curiously, thirteen of the countries that allow for the sentence can trace their historical ties to the United Kingdom and the English common law tradition of sentencing “for the duration of Her Majesty’s pleasure.” Yet the source of this tradition, the United Kingdom, abolished the possibility of a life without parole sentence for youth offenders after a seminal decision by the European Court of Human Rights in 1996.³²⁴

Global consensus against the sentence has become increasingly cohesive and firm. In April 2004, the Commission on Human Rights adopted a resolution “urg[ing] States to ensure that under their legislation and practice neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age.”³²⁵

The international rejection of life without parole (as well as the death penalty) for child offenders is so overwhelming that it may have attained the status of customary international law. Once a rule of customary international law is established, that rule becomes binding even on states that have not formally agreed to it.³²⁶ Under domestic U.S. law, customary international law is binding on the government of the United States.³²⁷

Establishing a rule of customary international law requires two elements: first, widespread and consistent governmental practice and second, a sense of legal obligation, or opinio juris accompanying the practice.³²⁸ The International Court of Justice has said that “a very widespread and representative participation in [a] convention might suffice of itself” to evidence the attainment of customary international law, provided it included participation from “States whose interests were specially affected.”³²⁹ As the previous discussion of widespread adherence to the CRC and consistent worldwide refusal to impose the sentence on children indicates, both of these elements exist.³³⁰ The United States, which historically was a leader in promoting juvenile justice reforms, now finds itself far behind the practice of the rest of the world.

The global rarity of life without parole for youth offenders may also be due to the ineffectiveness of the sentence. Harsh juvenile sentences such as life without parole do not appear to offer a deterrent effect to lower the prevalence of homicide offenses among youth. The prevalence of juvenile homicide in a particular country is due to a myriad of factors that are difficult to identify and even more challenging to compare across international boundaries. It is nevertheless the case that the harsh penalties for youth offenders in the U.S., such as life without parole sentences, have not given the United States significantly lower rates of youth crime. During 1999, 10 percent of all homicide offenders in the United States were below the age of eighteen, which means the United States had the third highest percentage in a comparison with twenty-eight European countries in 1999.³³¹ Ten years earlier, in 1989, children made up 11 percent of all homicide offenders in the United States. If harsh sentencing were the answer to deterring serious and violent juvenile crime, the United States should be among the countries with the lowest percentages of youth murderers, rather than having seen its total number of youth homicide offenders drop by just 1 percent.

Case Study: Kevin C.

Kevin C. was age sixteen in this photo and age seventeen when he committed his crime.
© 2005 Private.

Kevin C. grew up in a financially secure family in Colorado, and was seventeen at the time of his crime. He told a researcher for this report: “There were no problems at home. I lived with my dad, my parents were divorced . . . even though my parents are divorced, they get along.” ³³² Kevin had been arrested once before and charged as a juvenile for vandalism to a car. ³³³ According to his mother, he completed his community service satisfactorily. Kevin’s father told a researcher for this report what his son was like at the time of the crime, “I have the feeling he was going into the drugs and all that, he was a kid. But I always checked his car, there were never any weapons in there or drug stuff. . . . To kill somebody, to hurt somebody, especially a girl? No way.”³³⁴

His mother said: “He had dyed his hair blonde and just re-painted his bathroom. He was working hard at his job and he loved snowboarding and skiing. He kept a collection of beer cans from around the world. His father and I used to bring him back empty cans from Israel and other places we traveled. He kept the cans lined up on his bedroom window, like any teenage boy would. . . . They used that against him in court!”³³⁵

According to police investigations, Kevin was involved in the shooting of two Native American girls, one of whom subsequently died.³³⁶ Kevin told a researcher for this report that he and two friends were driving around town one night. They were interested in buying some drugs and needed some money. He told a researcher, “I just went along for the ride.” They eventually stopped two Native American girls who had just been given $2,000 “coming of age” money by their tribe.³³⁷ Kevin explained that a “situation” broke out. Some shots were fired. He said, “I never touched a weapon. I never handled a weapon . . . one girl ended up being murdered and the other was injured severely.” After his arrest, Kevin’s hands tested negative for gunshot residue.³³⁸ Kevin was convicted of felony murder and sentenced to life without parole. Kevin’s co-defendant was convicted of first-degree murder and was also sentenced to life without parole. ³³⁹

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.

From left to right: Paul T. was sixteen at the time of his crime and is pictured below his booking photos at age fifty-three; Daniel B. (rear left), now forty-five, was fifteen in this photo and at the time of his crime; Henry L., now thirty-seven, was fourteen in this photo and fifteen at the time of his crime. All photographs: © 2005 Private.

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.