JUVENILE LAW CENTER TESTIMONY ON JLWOP BEFORE HOUSE JUDICIARY COMMITTEE AUGUST 4, 2010 Presented by Robert G. Schwartz Executive Director Iuvenile Law Center REPRESENTATIVE CALTAGIRONE AND MEMBERS OF THE COMMITTEE: ‘Thank you for the invitation to address House Bill 1999 and Life Without Parole for juveniles (JLWOP) in Pennsylvania, Tcome before you this morning as someone who has represented offenders and victims for the past 35 years. Juvenile Law Center (JLC) is the oldest multi-issue public interest law firm for children and youth in the United States. Iwas a co-founder of JLC in 1975, and have been its Executive Director since 1982. Pennsylvania bas more people serving life sentences for crimes committed as juveniles than any other jurisdiction in the world. In 2010, there is no compelling public safety or public policy argument for keeping this sentence on the books, Juvenile Law Center believes that it is time for Pennsylvania to eliminate JLWOP. House Bill 1999 is straightforward. It does not provide a key to the jail house door. Rather, it gives juvenile lifers a chance (o make the argument, many years after the offense, that they are different now, and that neither public safety nor justice requires their continued incarceration. Under this scheme, some who were juveniles at the time of their crimes will stil end their lives in prison. ‘Thus, H.B. 1999 does not require choosing between punishment and leniency. Nor would the decision require choosing between valuing victims or minimizing theirloss. This is not about being soft or tough on crime. These are false dichotomies. Because of the harm they have done, youth who are convicted of murder will still be punished severely. Harm, however, is not the only consideration at sentencing, which addresses several public concerns. At the heart of the JLWOP debate is the question of blameworthiness, proportionate sentencing and youth’s capacity for rehabilitation and transformation. ILWOP is inconsistent with our modern understanding of adolescence. It neither advances the moral imperatives of the criminal law nor promotes “just deserts.” JLWOP adds little to public protection, It is inconsistent with international law and with ‘American Bar Association policy, It is a punishment that has no place in Pennsylvania's Crimes Code. 1. JLWOPis inconsistent with our modern understanding of adolescent development. JLWOP as it has been adopted in Pennsylvania sweeps with too broad a brush. While the harm is the same in every case, JLWOP is indiscriminate—it captures accomplices as well as youth who were directly implicated in the crime. Even in the latter cases, however, there is powerful science that suggests that these youth are less blameworthy than adults. When the United States Supreme Court ended the juvenile death penalty in Roper v, Simmons, 543 U.S. 551, 567 (2005), the Court relied on the research and writings of ‘Temple University's Dr. Laurence Steinberg, who co-authored with law professor Elizabeth Scott a seminal article, Less Guilty By Reason of Adolescence. The Supreme Court's examination of why teenagers are different relied on this article, and the researchupon which it rests. As you know, it found that capital punishment was unconstitutional when applied to those offenders who were under 18 at the time of their offenses, The Court in 2005 found that: © Youthful offenders are “categorically less culpable than the average criminal; © Youthful offenders have a tendency to conform, lack maturity, and have an underdeveloped sense of responsibility; © Youthful offenders are more vulnerable or susceptible to negative influences and outside pressures including peer pressure; and © The characters of youthful offenders are not as well formed and their personality traits are more transitory, less fixed. As aclass, the Roper Court noted, youth under 18 ae different. It said that there is "sufficient evidence that today our society views juveniles ... as ‘categorically less culpable than the average criminal.” ‘This past term, the Supreme Court underscored these findings about youthful offenders in Graham v. Florida, 560 U.S. __, 130 $.Ct. 2011, 176 L.Ed.2d 825 (2010), in which the Court rejected life without parole for juveniles in non-homicide cases as cruel and unusual punishment. The Graham Court reaffirmed its Roper conclusions about the nature of adolescents as a class: No recent data provide reason to reconsider the Court's observations in Roper about the nature of juveniles. As petitioner's amici point out, developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. ‘The Supreme Court in Graham built upon the literature on adolescent development when it also cited the last decade’s emerging research on the adolescent brain. Neuroscience, too, tells us what every parent knows: teens are different,‘The United States Supreme Court thus made clear in Graham that the bumper sticker slogan of the 1990’s—Adult Time for Adult Crime—makes no sense. These are not adult crimes. These offenders were not adults at the time of their crimes. Itis time that Pennsylvania law gives inmates who were teens at the time of their crimes an opportunity to have their sentences reviewed. 2. ILWOP neither advances the moral imperatives of the criminal law nor promotes “just deserts.” Ideally, the criminal law punishes people for the harm they cause in proportion to their culpability, For example, accidents can cause great harm, but are treated differently than intentional crimes that cause the same harm, As another example, children under seven who cause great harm have historically not been considered culpable at all by the criminal law, even if they caused enormous harm. These points have been made succinctly by Berkeley Law School Professor Franklin Zimring: We punish because we believe such [punishment] ... is morally deserved by a particular individual for a particular act. To do this, the criminal law needs to make sense as a language of moral desert, and punishing the range of variously guilty offenders it apprehends in an order that reflects, their relative blameworthiness. Of course the perfect satisfaction of these standards is always beyond human capacity, but the legitimacy of a system of criminal punishment depends on recognizing the moral obligations of penal proportionality and attempting to meet them, JLWOP in Pennsylvania fails this standard in three ways. First, it is mandatory, and as such it is guaranteed to lead to a mismatch between individual culpability and punishment, Second, it treats teenagers as though they were fully formed adults. Third, because JLWOP is required in cases of 2" degree murder, it applies to offenders whose culpability is a legal construct, e.g., teens who are charged with accomplice ability or with felony murder.3. ILWOP adds little to public protection. In Graham, the Supreme Court declared that “A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.” The Court found no penological justification for JLWOP in non-homicide cases. The same is true here: there is no penological justification for the statute that H.B. 1999 will fix. ‘As Herbert Packer wrote 40 years ago in his classic book, The Limits of the Criminal Sanction, sentencing rests on several familiar pillars: specific deterrence, general deterrence, retribution, rehabilitation and incapacitation. Each pillar supports, public safety in different ways, and each works differently when applied to teenagers. Deterrence—-which is intended to have a direct impact on public safety-~ obviously operates differently on adolescents. As the Roper Court observed, deterrence involves cost-benefit analysis; it involves planning for the future; and it applies less to teens, whoare as a class more impetuous and reckless. Retribution is, at its core, about an offender’s blameworthiness; it has an attenuated relationship to public safety. (A first-time murderer may deserve a long, sentence even if he or she represents little risk to the public.) The Graham Court observed that “Retribution is a legitimate reason to punish, but it cannot support the sentence at issue here. Society is entitled to impose severe sanctions on a juvenile nonhomicide offender to express its condemnation of the crime and to seek restoration of the moral imbalance caused by the offense. But ‘{tJhe heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.”Rehabilitation is very much tied to public safety, and one consideration for sentencing and for parole will be the likelihood of rehabilitation in the first instance, and whether rehabilitation has occurred in the second. Because youthful offenders are not fully formed, as a class they have a high probability of rehabilitation. The Roper Court made this point when it found the juvenile death penalty unconstitutional. In Graham, the Court said flatly that a sentence of life without parole is “simply at odds” with the rehabilitative ideal. ‘At the end of the day, JLWOP is about incapacitation. Of course, incapacitation promotes public safety, because as long as youth are incarcerated they will not be able to offend in public. Nevertheless, adolescents’ changeability suggests that sentencing. children to die in prison far exceeds the public’s actual need for protection, and that the duration of confinement should be subject to review. As the Supreme Court stated in Graham, To justify life without parole on the assumption that the juvenile offender forever will be a danger to society requires the sentencer to make a judgment that the juvenile is incorrigible. ‘The characteristics of juveniles make that judgment questionable..., Even if the State’s judgment that Graham was incorrigible was later corroborated by prison misbehavior or failure to mature, the sentence was still disproportionate becanse that judgment was made at the outset. A life without parole sentence denies the juvenile offender a chance to demonstrate growth and maturity. Incapacitation cannot override all other considerations, lest the Eighth Amendment's rule against disproportionate sentences be a nullity. The Roper Court also held that there is a connection between youths’ capacities for change, rebabilitation, and the need for incapacitation. If a youth is indeed rehabilitated, the need for incapacitation for public safety reasons disappears, In Roper the Supreme Court observed: Indeed, "[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals‘mature, the impetuousness and recklessness that may dominate in younger years can subside." Johnson, supra, at 368, 125 L., Ed. 2d 290, 113 S. CL 2658; sce also Steinberg & Scott 1014 ("For most teens, frisky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood") ‘And the Court added in Graham, “[flrom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” 4, JLWOP is inconsistent with intemational law and with American Bar Association policy. ‘The international community has found that it can respond to youth crime, and punish appropriately, without resorting to JLWOP. Indeed, the international community is unanimous in its rejection of JLWOP; the rest of the world refuses to impose it. This consensus is instructive; itis evidence that no other nation believes that JLWOP is necessary or appropriate to serve the purposes of criminal law. ‘The United States accounts for 100% percent of all JLWOP sentences world- wide. Pennsylvania now has the dubious distinction of having more youth serving JLWOP than any other state, and any other country — there are roughly 450 juvenile lifers (in part because Pennsylvania has always treated murder by an offender of any age as an adult offense, and in part because Pennsylvania has no lower age limit for the imposition of JLWOP and includes 2" degree murder within its reach). International consensus emerges most clearly through the United Nations Convention on the Rights of the Child (CRC). Adopted in 1989, the CRC prohibits the use of JLWOP. In 1995, the United States signed the CRC without reservation. One hundred ninety-three countries have ratified the CRC, making it the most widelysupported human rights treaty in the world. Additionally, the International Covenant on Civil and Political Rights, to which the U.S. is a party, prohibits the use of JLWOP. (The ‘Committee on Human Rights, which is vested with the authority to oversee compliance with the ICCPR, concluded in 2006 that the U.S. is in violation of its treaty obligations hased on its use of SLWOP).. ‘The United Nations General Assembly has consistently and emphatically urged the global community to prohibit the use of JLWOP. In 2006, the General Assembly passed a resolution by a vote of 185 to 1 (with only the United States in opposition), urging states to outlaw JLWOP as soon as possible. In addition, the American Bar Association (ABA) has adopted policies against ILWOP, mandatory sentencing, and disproportionate sentences for youth tried in the ‘criminal justice system. The ABA has a rigorous process for adopting policies. The process requires the involvement and consideration of judges, prosecutors, defense attorneys and academics, as well as other members of the legal profession. In 1991, the ABA adopted policy endorsing the U.N. Convention on the Rights of the Child, which prohibits LWOP. In 2002, the ABA adopted as policy guiding principles on the way youth in the criminal justice system should be treated, These principles included the following: * Youth are developmentally different from adults, and these developmental differences need to be taken into account at all stages and in all aspects of the adult criminal justice system. © Judges in the adult criminal justice system should consider the individual characteristics of the youth during sentencing. In 2008, the ABA adopted a policy on sentence mitigation for youths tried as adults, Recognizing that the mere fact of transfer does not create equivalencyof youth and adults, the newly adopted policy declared: RESOLVED, That the American Bar Association urges federal, state, tribal, local and territorial governments to authorize and implement sentencing laws and procedures that both protect public safety and appropriately recognize the mitigating considerations of age and maturity of youthful offenders (ie., those under age 18 at the time of their offense who are subject to adult penalties upon conviction) based on the following principles: 1. Sentences for youthful offenders should generally be less punitive than sentences for those age 18 and older who have committed comparable offenses; 2. Sentences for youthful offenders should recognize key mitigating considerations particularly relevant to their youthful status, including those found by the United States Supreme Court in Roper v. Simmons, 543 U.S. 551, 567-570 (2005), as well as the seriousness of the offense and the delinquent and criminal history of the offender; and 3. Youthful offenders should generally be eligible for parole or other early release consideration at a reasonable point during their sentence; and, if denied, should be reconsidered for parole or early release periodically thereafter. ABA policy isn’t binding, of course, but it shows how lawyers with different perspectives found common ground. They recognized that, while youth is never an excuse, it should be considered as a mitigator, even for the most serious crimes. (Last week the Philadelphia Bar Association also passed a resolution opposing juvenile life without parole in cases of first and second degree murder.) nelusion In 2005 the United States Supreme Court reversed its earlier decisions allowing juveniles to be sentenced to death. The Court made clear this year that ils 2005 decision ‘was less about the death penalty than it was about having penalties fit the offender as well as the offense. The Court’s abolition of the juvenile death penalty and of life without parole in nonhomicide cases rested on evolving standards of decency that took accountnot only of changes in state law, but of unambiguous research and modem notions of adolescence. While Pennsylvania is a national leader on juvenile justice issues, on JLWOP it is at the back of the line ~ and no one is following. As the Supreme Court looks to the states to shape the moral dialogue of this country, Pennsylvania must not only take its place in the conversation, it should demonstrate the same strong and consistent leadership it has demonstrated on all other issues involving juvenile offenders. Kids are different, Their punishments should be different, too. H.B. 1999, as you know, will not open the prison gates. It will simply allow for a review of sentences, ‘many years after the offense. This will increase the chances that sentences are humane, and that they are responsive to settled research and compelled by reason. We can modify our law without showing disrespect for victims and their families, without minimizing their loss, or the anguish they have endured. Giving judges, juries and parole boards the discretion to apply their collective wisdom and experience to assess youths” blameworthiness, to punish accordingly, and to review their continuing risk to the public, will enable Pennsylvania to take its place in a maturing and just society. 10