Save Cristian Fernandez

Cristian's next court hearing is January 3rd! Please continue to call the State Attorney and ask that the case be sent to juvenile court. Now is the time to call for Cristian. 904-630-2400.
@ Gloria Fernandez Suarez

vile calculus

by dandailey http://wp.me/pLwBV-2y8

I’m a little slow on the uptake sometimes.

It wasn’t until the middle of the night about a week ago that I finally had an eureka moment. I was asking myself why so many kids today are charged as adults in this country for all kinds of crimes… I was mad as hell thinking of James Prindle waiting for his day in court, languishing in jail for over a year so far, receiving no schooling and only minimal health care services… and then it hit me: It’s the money, stupid!

It costs the states and other jurisdictions more money to incarcerate children than it does to incarcerate adults. Much more money.

If a prosecutor charges a child as an adult—even if a child like James is wrongfully accused and not yet convicted of a crime—that child will be jailed in an adult facility where basic services normally afforded to children (like schooling) are withheld. In this way, even though they justify adult charges on the basis of the supposed seriousness of the crimes, unethical and heartless prosecutors lower the costs of warehousing kids.

In California, for example, it cost an average of $47,102 a year to incarcerate an adult inmate in state prison in 2009. In 2008, it cost an average of $216,081 to incarcerate a child for a year in juvenile detention (and more in 2009)— 4.6 times as much. By way of comparison, per-student spending at the University of California was $25,100 in 2009.

[http://www.urbanstrategies.org/programs/csj/documents/CostsofIncarcerationFlyer_08.06.07_BH.pdf]

If you apply this same multiplier to states that spend much less per adult inmate (state prison spending varied widely in 2005, from $45,000 a year in Rhode Island to $13,000 in Louisiana, with an overall average of $23,876 dollars per state prisoner), this same vile calculus should hold true. It goes a long way towards explaining why as many as 150,000 American children will be sent into adult incarceration this year.

Yesterday we learned that James Prindle’s case will not go to trial until May of 2012. Now remember, he was taken into custody on August 16, 2010, when he had just entered the ninth grade. This means that James will have missed two years of school because of his wrongful detention. How will he ever be able to make up for so much lost time? The State of Tennessee seems not to care. To the State of Tennessee, James is just another throw-away kid.

Well, we do care and regardless of whatever fiction the State of Tennessee may claim, we know that James is a child with potential who must be valued and nurtured. Yesterday Stephen and I talked and we decided that we must step into this vacuum of state cruelty, injustice, and neglect and take responsibility for James’ education while he awaits his coming day of presumed freedom. We will start our own virtual school and tutor James by mail while he is locked up. If the State of Tennessee won’t do right by James, we will.

It won’t cost so much. Showing him we care and helping James exercise his brain and build his self esteem will yield priceless results.

۞

Groove of the Day 

Listen to Crosby, Stills, Nash & Young performing “Find the Cost of Freedom”

Update on Blade

by Steve Sydebotham
On Friday, December 2nd, Blade was in an altercation with another boy, with whom he has
had trouble with in the past. This other boy threatened Blade with a Locksock, and then
lunged at him with it. Blade of course, tried to defend himself. Blade did throw some
punches, but only in self defense, and trying to protect himself from a severe beating or
potential severe injury. After the altercation was broken up, both Blade and the other boy
were written up and placed on lockdown until a hearing were to take place, deciding the
appropriate punishment for the offenses. Due to Blade's previous write-ups, there was
a strong possibility that he could have been sent to solitary confinement once again, even
though he was not the instigator of the above incident. Today I found out that he was not
going to be sent to CCU once again, but had some stringent sanctions placed upon him. If
Blade gets any more conduct related write-ups, he will be sent back to segregation, and
he would have to serve out all previous amount of time that he had been placed before and
new time. Blade had been in the CCU until April of 2011, and if had been made to spend the
total accrued time he was sent there for, he would have been in Solitary until June of
2013.

I am somewhat relieved,as he was not sent back to solitary this time but also still
concerned over Blade, as I find these sanctions unreasonable to say the least. Blade
is being held to a standard to that of a normal child, not one who is developmentally
disabled. To hold him to this standard, shows a complete lack of understanding and empathy
of Blade's emotional afflictions. Also with these sanctions, they are setting him up to
fail, not succeed.

With the prisons "No Tolerance" policies, simply raising your fists to defend yourself,
can be considered an aggressive act, and of course, subject to write ups and or other
punishments. I find that grossly unfair, and simply another way to destroy childrens lives
who were never meant to be in the prison system anyway.

We need your financial help, with Attorney's fees for Blade. Please consider a donation
http://redemptionforkids.org or

Blade Reed UGMA
P.O. Box 742
Spring Green, Wi. 53588

GROWING UP IN PRISON: JUVENILES SERVING LIFE WITHOUT PAROLE

A short documentary about juveniles sentenced to life in prison without parole.
Original short documentary made by Josh Sahib and Sydney Prather. The University of Alabama: Documenting Justice, 2010.

Remove State Attorney Angela Corey

Corey is morally bankrupt and should be held accountable for her actions as State Attorney of Florida. Particularly with regard to how she is going to the most unconscionable lengths to secure the conviction of twelve year old Cristian Fernandez.

By Stuart Faulks

Source: www.change.org

USA must halt life without parole sentences for children

In 1994, at the age of 16, Christi Cheramie was sentenced to life imprisonment without the possibility of parole. To impose this sentence on a person who was under 18 years old at the time of the crime violates international law. Christie Cheramie is now 33 years old and has spent more than half of her life in prison.

The USA is the only country apart from Somalia not to have ratified the UN Convention on the Rights of the Child, which states that no person under 18 at the time of the crime should be sentenced to life imprisonment without the possibility of release. However, as a signatory to the treaty, the USA is still bound under international law not to defeat its object and purpose. There are more than 2,500 people in the USA serving life imprisonment without the possibility of parole for crimes committed when they were under 18 years old.

February trial set for 12-year-old accused killer

 The youngest defendant ever to face a murder charge in Duval County is scheduled to stand trial in late February, Duval County Circuit Judge Mallory Cooper announces Monday.

Source: www.news4jax.com

Demand justice for 15 y/o Josh Young

Far too many people are wrongfully charged and convicted in the United States each year. One studyreported that as many as 10,000 people are wrongfully convicted every year. Once a wrongful conviction has occurred it can be extremely difficult to overturn. Despite this, the Innocence Project has exonerated 280 people based on solid DNA evidence. Society has an obligation to ensure that law enforcement on all levels apprehend the correct people and that convictions are based on solid evidence and not just circumstancial evidence that ignores other likely suspects.

And this is why 15 year old Josh Young needs your help. After he was indicted for murder, Josh'sdefender told the media that "the defense had a witness it wanted to present to the grand jury that indicted Young last week, but jurors chose not to hear the testimony 'for whatever reason." It is unfortunate they refused to hear all testimony pertaining to Josh because there is another person involved in this case with the motive, the opportunity, and the criminal background to suggest potential involvement...

Case Background

In May of 2011, 14 year old Trey Zwicker was murdered. He was found by a group of students in a ditch behind Liberty High School in Kentucky. Trey had reportedly been beaten to death, though it is unclear how long he was in the ditch or if he was actually murdered in that area.

15 year old Josh Young has been charged as an adult for the murder even though Josh's grandmother hasnamed her own son (the father of Josh Young and the stepfather of Trey) as Trey's real killer. She told the press that Josh's father "knows the whole truth about what happened that night" and has left "his son hanging" for the crime. She told the local news, "Big Josh told me at first he did it, and that's who they need to be looking at." She referred to her son as a "monster". Even Trey's own family believes that Josh's father was involved in the murder.

Despite suspicion from his mother and Trey's family, as well as an extensive criminal record that includes a kidnapping charge, assault, and a number of protective orders, the stepfather of Trey and biological father of the accused has not faced criminal charges in relation to the murder.

Instead, Josh Young was arrested after Trey's mother filed a protective order against Gouker (click here to read contents of that order) and he fled the area with his son. Before the two left, members of Trey's family contacted social services with concerns that Gouker would leave town with his son, Josh. Sure enough, the two did leave town and Gouker was subsequently arrested for kidnapping a woman and forcing her at gunpoint to drive for an hour and a half before dropping off Gouker, his son Josh, and Gouker's girlfriend. Shortly after Gouker's arrest, 15 year old Josh Young was arrested and charged with first degree murder and evidence tampering after the father implicated him in Trey's murder.

There are many problems with this case. First, Josh is being tried as an adult for Trey's murder and faces a maximum penalty of life in prison. Second, Trey's own stepfather has a criminal record, is suspected by multiple family members of being involved in the crime, and fled town after the murder. Why is a 15 year old child facing adult charges when the evidence suggests his father perpetrated the crime? If convicted in adult court, Josh could be sentenced to the maximum penalty of life in prison.

Josh Young has no criminal record. He had only been living with his father for a short time after his dad got out of prison when his stepbrother Trey was murdered. By existing accounts, Josh and Trey got along. There is no motive for him to have committed this crime and he has no history at all of violent behavior.

We, the undersigned, are asking for two things:

First, we ask that the prosecution drop their prosecution of Josh Young in adult criminal court. He is a 15 year old child without any history of violence. He is not an adult.

Second, we ask that Trey's stepfather (Josh's biological father) undergo a comprehensive investigation (click here to see past criminal charges on his record).

We also implore the state of Kentucky to avoid wrongfully prosecuting and convicting a minor child in adult court and to do everything in its power to ensure true justice for every person involved, including Trey Zwicker, Trey's family, and Josh Young.

To find out more about Josh's case and other cases involving juveniles charged in the adult criminal justice system please visit www.justice4juveniles.com.

Please share this petition on Facebook and Twitter. You may also share the Facebook page pertaining to this case: http://www.facebook.com/pages/Save-Joshua-Young/310548045640741

Ashley Smith - The Fifth Estate - Video the Canadian government didn't w...

Ashley Smith - The Video the Canadian government didn't want you to see

Ashley Smith prison video 2

The video depicts scenes, in chronological order over a four-month period, of Ashley Smith's detainment in a segregation cell at Grand Valley Institution for Women in Kitchener, Ont. The 19-year-old mentally ill teenager is at times enraged and at others, playful with her guards. But mostly, she is distressed. She is seen snatching a nurse's glasses through her narrow food slot and using them to cut her wrists, and, in a different incident, grabbing a corrections officer's shirt. The final scenes in the video, just a few days before her death, shows the young inmate tying herself to strips of cloth knotted to the window bars in her cell as guards watched. Ashley Smith's struggle in various correctional institutions culminated in her death on Oct. 19, 2007, when she choked herself with a strip of fabric.

System Failure (Part 3 of 4)

A groundbreaking documentary produced by the Ella Baker Center with our partner, WITNESS, "System Failure" exposes the horrific conditions and human rights violations in California's abusive youth prisons.

For more information -
ellabakercenter.org
ellabakercenter.org/bnb

Justice for Christy Clinton Phillips CDC# W-94100

Christy Phillips CDC# W-94100 is unjustly convicted and currrently housed at Central California Women Facility. Christy was convicted in 2002 of an elderly woman's murder that occurred in 2000,based on a coerced confession, and despite the lack of physical or forensic evidence and expert testimony of Christy"s multiple mental disabiblities, her age and the outrageous police misconduct against Christy during her confinement in the Rialto Police station and interrogation. Barely 15 years old Christy was taken by Rialto Police, held overnight against her will denied her constitutional right to remain silent and to have a parent present during her interrogation. The Rialto Police officers used intimidation and isolation as part of there tactic to manipulate and pressure Christy into making a confession to a crime she originally reported. Due to Christy's youth, mental disabilities the lack of experience with the criminal justice system, Christy was an easy victim of police manipulation. Christy's trial judge Gus Skorpos admitted Rialto Police Department violated Christy's rights under Welfare and Institution Codes 637(a). The Rialto Police Department also violated Christy's rights under the fifth amendment right to remain silent. Christy's sentence of life in prison is a direct violation of international law under article 37(a) and (article 6) the right tolife,survival and development (article 3) and (article 25) (article 40(1) of CRC) UNITED NATIONS, convention on the rights of the child, Forty-Fourth Sessions, Geneva 15 January-2 February-2007. Christy did not receive adequate representation at her trial. During a motion to supress the illegally obtained confession expert testimony was given by a clinical and forensic pyschologist testified about false confessions for the defense, but was forbidden by Christy's public defender to explain the extent of Christy's mental illnesses and her history of abuse to the jury...the role they played in Christy's coerced confession to Rialto Police. A full understanding of Christy's mental condition during her interrogation and confinement at the Rialto Police Department was crucial information that jury and judge needed to hear in order to make an informed decision, the trial judge erroneously determined that Christy fully understood her Miranda Rights, that the confession was legally obtained despite testimony from Christy herself that she did not understand what was happening. That she did not want to be interrogated and has asked for her mother all through the night while being confined in the "lounge area" at the Rialto Police Department. There was NO JUSTICE for Christy! Despite this outrageous injustice, Ms. Phillips who is now 26 years old has been rehabilitating herself by participating in groups, classes and workshops such as: Alternatives to Violence Project, CCCMS mental health delivery system, Child Abuse, Juvenile Offender Committee, Vocational Training and Church activities. Christy has completed bible school, and helps elderly and the disabled in her housing unit. Christy also studies law currently and wishes to help children upon her release. Allow Ms. Phillips day in court to present the overwhelming evidence of her innocence A.G. Kamala D. Harris. Thank you

Letters of support: Christy Phillips W-94100 C.C.W.F. P.O.BOX 1508 505-3-4up Chowchilla, Ca.93610

http://www.change.org/petitions/justice-for-christy-clinton-phillips-cdc-w-94100?share_id=yodzKdYxfy&utm_source=share_petition&utm_medium=twitter via @change

Burping Kid Arrested

A kid in Albuquerque, New Mexico was arrested and sent to juvenile hall for burping in class. Cenk Uygur and Ana Kasparian discuss this ridiculous story and Ana demonstrates an arm pit fart. Was this punishment over the top tell us in the comment section below.

Subscribe to The Young Turks: http://bit.ly/eWuu5i

KRISTA MCDANIEL(16)LATEST APPEAL "DENIED"

KRISTA MCDANIEL(16)LATEST APPEAL "DENIED"

NO compassion, NO mercy. Juvenile law reform is "imperative" to help save our nation's youth. 30 yrs with NO chance of parole, is barbaric and inhumane and is destroying this child, ONE of many. This sentencing is cold, cruel, for a "mistake" made as a "child".
BEWARE, YOUR child "could" be next, to face such atrocities. Encourage ALL parents/guardians to get educated and involved in juvenile LAW REFORM"
WhoopAssForJustice.org

Source: www.whoopassforjustice.org

La Eme

Imperial Valley - The Mexican Mafia began life 50 years ago, created by a group of East Los Angeles gang members at a juvenile detention facility in Corona once called the Deuel Vocational Institute.

Others come forward after teen's death at a detention center

A teen who died in juvenile detention has inspired others to come forward with allegations of negligence and unfair treatment.

Inside Juvenile Detention | Meet Lonnie "Big L" Carr

Meet Big L, detention officer at Lake County Juvenile Justice Complex. More at http://www.calamariproductions.com.

Cradle To Jail: Part 6

Kymyada, a teen mother, is arrested on runaway charges after her mother can't locate her after a night of partying. Kevin served 99 days of what he thought was a 30-day detention. Now, he's at the end of his rope.
Category:

Cradle To Jail: Part 5

Kymyada, a teen mother, is arrested on runaway charges after her mother can't locate her after a night of partying. Kevin served 99 days of what he thought was a 30-day detention. Now, he's at the end of his rope.

Cruelty and Death in Juvenile Detention Centers

There have been numerous deaths and acts of cruelty in Juvenile Detention Centers that are often overlooked and under reported. We have uncovered various resources that show how dangerous these centers really are.

The song in the background is "Hello" - Evanescence.

Juvenile Detention Facility Being Looked At

The Bridge City Center for Youth, a juvenile detention center for male offenders, has raised concerns about safety for the detainees. Reports of fights and sexual misconduct have come to light.

Campaign for Youth Justice - News of Youth -- NAPS-TV

IN AN EFFORT TO CUT JUVENILE CRIME AND IMPROVE PUBLIC SAFETY, FIFTEEN STATES HAVE PASSED LEGISLATION REMOVING YOUTH FROM THE ADULT CRIMINAL JUSTICE SYSTEM. THATʼS ACCORDING TO A NEW REPORT, "STATE TRENDS:
LEGISLATIVE CHANGES FROM 2005 TO 2010," BY THE CAMPAIGN FOR YOUTH JUSTICE.
ACCORDING TO "STATE TRENDS"ʼS AUTHOR, NEELUM ARYA, THE REPORT EXAMINES THE MAJOR PROBLEM OF TRYING KIDS AS ADULTS AND FOCUSES ON TWO DOZEN STATES THAT ARE CHANGING THEIR POLICIES.

ONE STATE THAT WAS SUCCESSFUL IN RAISING THE AGE OF JUVENILE COURT JURISDICTION WAS CONNECTICUT. STATE REPRESENTATIVE TONI WALKER WAS INSTRUMENTAL IN THIS EFFORT.

"RAISE THE AGE HAS SAVED OUR STATE MILLIONS OF DOLLARS BECAUSE IT HAS ALLOWED US TO TAKE THE CHILDREN OUT OF THE PATH TO INCARCERATION AND PUT THEM INTO THE PATH OF EDUCATION."

AN ESTIMATED QUARTER-MILLION CHILDREN ARE PROSECUTED AS ADULTS EACH YEAR IN THE US. IN SOME STATES, CHILDREN AS YOUNG AS SEVEN CAN BE PROSECUTED AS ADULTS.

TO LEARN MORE OR SEE THE REPORT, VISIT CAMPAIGNFORYOUTHJUSTICE.ORG

Jabria Hannie discusses her experience in an adult faciity

Jabria Hannie, member of the Core Allince of Youth Leadership with the Just Kids Partnership, talks about her experience in an adult facility as a 16 year old and the emotions the film brought up in her.

Dwayne Betts' reaction to "Young Kids, Hard Time"

Author Dwayne Betts discusses pain of looking back at his time in an adult facility and his observations of the audience's reaction to the film. He notes his ability, and the ability of other young people, to deny the difficulty of their situation and expresses his hope and belief that others who have seen the film will take action to end the practice of treating children as adults.

The U.S. Supreme Court Takes Up The Eighth Amendment and Juvenile Killers: Is Life Without Parole Too Severe?

http://verdict.justia.com/2011/11/30/the-u-s-supreme-court-takes-up-the-eighth-amendment-and-juvenile-killers
SHERRY F. COLB

©iStockphoto.com/CraigRJD

Last month, the U.S. Supreme Court granted review in Miller v. Alabamaand Jackson v. Hobbs, two cases that together raise the following question:  Does the Eighth Amendment’s cruel and unusual punishments ban prohibit mandatory sentences of life imprisonment without the possibility of parole (LWOP) for homicide offenses committed by fourteen-year-olds?

Prior Supreme Court precedents have not expressly addressed this question, which calls on the Justices to examine the relationships among three relevant factors:  (1) the capacity of an offender to behave morally; (2) the wrongfulness of the offender’s behavior; and (3) the harmful consequences of the offender’s actions.  In this column, I shall consider the likely role of these three factors in resolving Miller and Jackson.

The Two Cases the Supreme Court Will Consider

Both Evan Miller and Kuntrell Jackson were convicted of committing capital murder, a designation reserved for crimes carrying the most severe punishments (sometimes including the death penalty).

Miller evidently beat his neighbor Cole Cannon with a baseball bat until Cannon was unable to move and then set fire to Cannon’s trailer, which Miller promptly exited as Cannon pleaded helplessly, “Why are y’all doing this to me?”  Cannon thereafter died of smoke inhalation.

Jackson joined his older friend and cousin in the robbery of a video store.  When the robbery victim, Laurie Troup, claimed that she had no money, one of Jackson’s two accomplices shot her to death.  (The doctrine of “felony murder” allows the fatal shooting to be imputed to Jackson because he took part in the robbery.)

In each of the two cases, the trial court lacked the discretion to impose a less severe sentence than life without parole.

Both Miller and Jackson were fourteen years old at the time of their respective crimes.  Miller had for years suffered physical abuse and neglect, as well as extreme poverty.  Unable to cope, he required mental health intervention by the age of eight.

Jackson appears to have learned that his accomplice was carrying a shotgun only after the three were on their way to the video store to commit the robbery.  And, as noted above, he did not directly participate in the killing itself.

One Possible Mitigating Factor:  Evan Miller’s and Kuntrell Jackson’s Youth

The above facts represent what, in the death penalty context, would be considered “mitigating factors,” factors that diminish the culpability of the offenders and thus may call for leniency in sentencing.

As a rule, people under the age of 18 are demonstrably less able to control their impulses than adults are, and teens are also highly receptive to the influence of their peers.  Young teens appear to be especially ill-equipped to exercise moral self-restraint and to take into account the future consequences of their actions, for them and for others.

The youth of both Evan Miller and Kuntrell Jackson may thus mitigate the respective culpability of each of the two offenders at the time of his crime, because, in each case, it impeded the perpetrator’s capacity to behave morally, relative to the capacity of an adult to do the same.

Another Mitigating Factor for Evan Miller:  A History of Child Abuse

In Evan Miller’s case, another mitigating factor is his history of enduring child abuse.  Children who suffer physical abuse have an increased likelihood of later becoming violent themselves.  Witnessing and experiencing continual violence may accordingly make it difficult for a young teen to resist his own violent impulses.  Miller’s impoverished early years thus seem to offer a reason to extend mercy to this offender.

These first two mitigating factors—youth and a history of abuse—have to do with the capacities and attributes of the offender.  With a diminished capacity and few role models to show the young person how to behave morally, his actions may be less culpable than the same actions by an offender with a greater capacity for self-control and moral deliberation and a more supportive upbringing.  Given Miller’s early experiences, as well as his youth, it seems plausible to contend, as he does, that a sentence of LWOP is unduly harsh punishment, even for the depraved and horrifying crime that he committed.

Another Possible Mitigating Factor for Kuntrell Jackson:  His Lesser Role in the Offense

A different dimension along which the defense might offer mitigating circumstances in a capital case is the minor role of the offender in committing the murder.  For Evan Miller, this factor would not appear to count in his favor, because he was actively involved in the brutalization and ultimate murder of Cole Cannon.  Kuntrell Jackson, by contrast, did not play the primary role in the killing of Laurie Troup.

More specifically, Kuntrell Jackson did not bring the shotgun to the store, and he learned of the gun’s possession by one of his accomplices only after he was already on his way, with the others, to commit the robbery.  And Jackson was not the “trigger-man.”  He did not personally kill the victim, and he did not participate in planning or soliciting her murder.  Thus, though Jackson was certainly not “innocent” in the death of the victim, he was also not a primary culprit, and can therefore be said to deserve something less than LWOP as a punishment.

Proportionality and Discretion: Two Key Sentencing Concepts

If these had been death-penalty cases, the Eighth Amendment’s ban on cruel and unusual punishments would have required that each sentencing body have had the opportunity to take mitigating factors into account in deciding whether or not to sentence the respective defendants to death.  But these were not death penalty cases, and neither Miller nor Jackson was able to ask his respective judge to consider mitigation evidence. Under the law, a sentence of LWOP was mandatory for each of them, given the factual determination of guilt.

Under state law, the trial courts were legally bound to send the two perpetrators to life in prison without the possibility of parole, no matter what the judges might have thought about the youth of the fourteen-year-old convicts, Miller’s history of child abuse, or Jackson’s peripheral role in the robbery that led up to murder by his accomplice.

On a theory that Miller and Jackson were entitled to individualized sentencing, they were denied the opportunity to argue the relevance of these mitigating factors to their proper punishment in an attempt to persuade their judges that the sentence of LWOP was too harsh.

The lack of judicial discretion to consider mitigation is important here, because it helps create a two-part argument that the penalties constituted cruel and unusual punishments under the Eighth and Fourteenth Amendments.

The first argument is that no fourteen-year-old may be sentenced to LWOP, given a fourteen-year-old’s biologically diminished capacity.  This argument calls for the sort of ruling that the Court issued in Roper v. Simmons, holding that the Eighth and Fourteenth Amendments bar the execution of criminals who commit their crimes before reaching the age of 18.  The Court, moreover, issued another potentially supportive ruling in Graham v. Florida, holding that the Eighth and Fourteenth Amendments prohibit a sentence of LWOP for a non-homicide offense committed by an offender under the age of 18.  These rulings are both categorical, because theypreclude the relevant sentence for everyone within the category, without regard to the presence or absence of additional mitigating or aggravating factors.

The second argument against the sentences in these cases is that even if the Supreme Court concludes that LWOP is sometimes a permissible sentence for a fourteen-year-old homicide offender, the Eighth and Fourteenth Amendments demands that the sentencing judge at least have the opportunity to take the age of the offender into account in deciding whether to impose the sentence.  Like mental retardation prior toAtkins v. Virginia, and juvenile status prior to Simmons, the condition of youth might not (yet) be categorically disqualifying, but might nonetheless demand the sort of weighing process that was completely precluded by the mandatory sentencing of Miller and Jackson.

Two Possible Obstacles to a Victory for Juvenile Offenders Facing LWOP: The Supreme Court’s Rulings that “Death Is Different”

The petitioners, Miller and Jackson, face two primary obstacles as they seek to convince the Supreme Court to accept their Eighth Amendment arguments.  The Court has long held that “Death is Different,” a notion that has one intended and one inadvertent consequence for this case.

The intended meaning of “Death is Different” is that when a State (or the federal government) seeks to execute a prisoner for his or her crime, the Eighth and Fourteenth Amendments impose more stringent requirements than would otherwise apply.

One example, announced by the Court in Kelly v. South Carolina, is the defendant’s right, in a capital case in which the jury is considering whether to impose a death sentence, to inform the jury of the fact (if it is indeed a fact) that a sentence of life imprisonment means life without parole.  The reason the Court saw fit to recognize this right is that it allows a jury inclined toward mercy but worried about a defendant’s future dangerousness to feel assured that a life sentence will accomplish the incapacitation that it seeks.  Perhaps ironically, given the question that is now before the Court, having to tell the jury about the unavailability of parole for people sentenced to life imprisonment can therefore serve as a humane “nudge” away from a sentence of death.

Another more important example of the Court’s “Death is Different” approach is its consistent requirement that a defendant who is urging the jury to spare his life must have the opportunity to present mitigating evidence to the jury.  Mandatory death sentences (whereby a defendant convicted of murder must be sentenced to death) are accordingly unconstitutional on the ground that they remove the jury’s discretion to exercise mercy in an individual case.  The Court has never, however, held that a sentencing body must have a chance to consider mitigating evidence before imposing a prison term on a convict.

Many offenses carry mandatory prison terms, and the Court has not raised constitutional objections to the lack of sentencing discretion when it comes to the imposition of these terms.

Indeed, in its 2003 decision in Ewing v. California, the Court upheld a “three strikes” sentencing scheme under which a third-time convicted felon must be sentenced to an indeterminate term of life imprisonment, even if his crime is a non-violent property offense.  The case arose after Gary Albert Ewing received a mandatory sentence of 25-years-to-life for stealing three golf clubs (after having been convicted of two prior offenses).  Ewing would seem to stand for two propositions regarding prison sentences and the Eighth and Fourteenth Amendments:  (1) a good measure of disproportion between the punishment and the crime is constitutionally permissible; and (2) mandating highly punitive mandatory prison sentences—which prevent a sentencing judge or jury from even considering mitigating facts about the defendant—is also constitutionally permissible.

It accordingly appears that a defendant facing a prison term is entitled to neither finely-tuned proportionality nor jury discretion in sentencing.

In response to the contention that the Court’s own precedents seem to rule out a claim of a right to precise proportionality in prison sentencing, one can point to a recent exception:  The Supreme Court held less than two years ago, in Graham v. Florida, that a sentence of LWOP is cruel and unusual punishment for a non-homicide crime committed by a juvenile offender.  Under this ruling, a sentence of LWOP is categorically impermissible if imposed upon a juvenile offender whose crime did not result in a person’s death.

Though this ruling may give some hope to the petitioners, though, it does remind us of a second way in which “Death is Different.”  The Court has long held that the crime of homicide is categorically worse than any other crime against a person.  This principle has meant that even though a government may constitutionally execute a murderer, it may not execute a rapist (under Coker v. Georgia), and it may not execute a child molester (under Kennedy v. Louisiana), despite the violence and cruelty inherent in sexual assaults.

And in Graham itself, a case on which petitioners rely, the Court explicitly held LWOP to be unconstitutionally disproportionate for juvenile offenders convicted of non-homicide crimes.

Rejecting the more nuanced approach of Chief Justice Roberts in his concurring opinion in Graham—in which he suggested that non-homicide offenses differ from one another in their seriousness and therefore in whether LWOP is unconstitutionally disproportionate—the majority embraced the notion that homicide is “different” from non-homicide, no matter what the particulars of the crime might be.

Though the Graham ruling thus helps offenders who commit unspeakable crimes, and whose victims miraculously survive, it just as surely hurts offenders like Kuntrell Jackson, whose crime was not especially vicious or deliberate, but it did bring about the death of his victim.

Is Death Truly “Different”?

We can, perhaps, readily understand why the Supreme Court has ruled out the death penalty for non-homicide offenses.  When the consequence of a crime—however depraved the offense and however culpable the offender—leaves a surviving victim, the community may be relieved and grateful that no one died.  It may accordingly judge the seriousness of the crime in part by its consequences—even in the case where the offender did everything in his power to bring about a much worse consequence.  Harm matters to people, and many of us are angrier and in greater need of retribution when an offender has not only acted in an evil fashion but has brought about a loss of life in the process as well.

Even if the death of a victim is “different” from a grave injury, however, it is not as clear that the death penalty is so different from LWOP.  As opponents of LWOP have said, the punishment they criticize condemns a person to “death in prison.”  At the same time, even people sentenced to death spend many years living in prison before they are executed.

One difference between death and life, of course, is the possibility of freedom.  Someday, the offender can hope, a parole board may examine his conduct while behind bars and decide that he is fit to leave and try to build a new life on the outside.  Like death, however, a sentence of LWOP rules out that possibility.  Like a person on death row, a person sentenced to LWOP whose appeals fail and who is not cleared of his crime will leave prison alive under only one highly unlikely scenario:  a governor’s decision to grant clemency.  Thus, as the Court said in Graham, a sentence of LWOP signifies a loss of hope.

When the offender in question is a juvenile, it seems premature to banish hope.  Though consequences matter, culpability matters as well.  A juvenile offender is categorically less able to behave morally than an adult is.  A boy of fourteen is categorically less able to behave morally than a boy of 16 or 17.  This disability reduces the culpability of an offender, even when he has committed a vicious and ugly offense that results in the death of a victim.  We can hope—though the hope may be slim—that someday, the cruel and vicious, homicidal child will grow up to be different.

The Court may conclude that some criminals truly are beyond hope, even if they are only fourteen years old.  Perhaps an offender’s actions betrayed such a callous indifference to others or even a sadistic pleasure in others’ suffering, that we simply cannot entertain the possibility of rehabilitation.  (One might argue that this was the case with Evan Miller; but one might also point to Miller’s own history of abuse in mitigation.)

If the Court draws this conclusion, however, then surely it ought to permit a jury or a judge to consider the individual circumstances of an offender and his crime.  How can we know—if we can ever know—that a case is hopeless, unless we can consider mitigating circumstances that reflect on the culpability of the offender and of the offense?

As Chief Justice Roberts said in Graham, “our cases establish that the ‘narrow proportionality’ review applicable to noncapital cases itself takes the personal ‘culpability of the offender’ into account in examining whether a given punishment is proportionate to the crime. There is no reason why an offender’s juvenile status should be excluded from the analysis. Indeed, given Roper’s conclusion that juveniles are typically less blameworthy than adults, an offender’s juvenile status can play a central role in the inquiry.”

If Chief Justice Roberts still believes this to be true, then he might consider writing for a majority of the Court that a State may not impose a mandatory, across-the-board sentence of LWOP on everyone who is convicted of homicide.  Instead, at least with respect to juvenile offenders, the judge or jury must have the opportunity to look closely at each crime and each offender before ruling out the possibility of rehabilitation and thus imposing on a defendant the most severe penalty constitutionally available for a juvenile offender.