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A Loss For Juvenile Justice
I t seems an impossibility that the anti-death penalty movement would share common ground with the Texas state legislature. Nevertheless, in the state that executes more criminals than any other, such an unlikely alliance has been forged. Governor Rick Perry’s signing of legislation that would provide life without the possibility of parole as a sentencing option in capital cases was taken by the anti-death penalty movement as a victory, asserting that the existence of such an option presents a more tenable alternative to the jury-sponsored sanctioning of execution.
However, this collaborative victory is a setback in the cause of juvenile justice. The bill, SB60, did not possess an exception for offenders who committed their capital crime prior to the age of 18. Supporters of the bill, which takes effect September 1, say the new law will provide juries in capital cases with a new sentencing option. But in the case of juvenile offenders who are tried and convicted in adult court, the law provides only one, slightly less draconian penalty.
This past March the Supreme Court ruled, in Roper v. Simmons, that it was unconstitutional to execute juveniles. In response, Texas lawmakers passed legislation that requires juveniles convicted of a capital crime to serve life in prison with no chance for parole. While this has been classified by the public, with no small degree of participation from the anti-death penalty movement, as an act that was intended generally towards adult offenders, the primary motivation behind the bill was to provide a stiffer brand of punishment to a class of criminal who could no longer be executed by the state of Texas.
Perry put on fast-track a legislative proposal by State Senator Eddie Lucio to implement a life- without-parole sentencing option within days of the Roper decision. A report from the Austin Chronicle stated that Lucio used the possibility of the 29 youth capital offenders being released as a result of their sentence commutation to persuade the legislature and the governor to pass the bill, leading the senator to state that if they had passed the measure a few years prior, “We wouldn’t have 29 [youthful offenders] now with the possibility of parole in Texas.”
Prior to SB60 being passed into law, Texas prosecuted juvenile capital offenders in one of two ways. Historically, most juveniles accused of capital crimes were transferred to adult court where they were subject to adult prosecution, adult sentencing, and, as seen in the case of 13 youth offenders, execution by the state. The other way has come about in the past 10 years, where youth offenders convicted in a juvenile court are subject to a potential maximum of 40 years. Nonetheless, as a result of Texas’s system of blended sentencing, the convicted youth offenders split their incarceration time between juvenile and adult facilities and offenders as young as 16 can be moved into adult prisons.
Texas legislators have been eager to point out that the advent of determinate sentencing has meant fewer juveniles being tried as adults. In 1994, the year before determinate sentencing was extended to capital crimes, 158 homicide cases were transferred to adult court. In 2002, the number dwindled to 18. However, in that same year, of the 48 dispositions that resulted in prosecutions, only 9 were conducted in juvenile courts. The previous year, in 68 prosecutions, 10 were in juvenile court and 34 were in criminal court with youths tried as adults. This in spite of the fact that only 17 and 12 juveniles were charged with capital murder in 2001 and 2002 respectively.
But what puts Senator Lucio’s advocacy into the realm of the demagogic is the notoriously low rate at which paroles are approved within the Lone Star State. At one point the jurisprudential history of Texas had a fairly high parole approval rate, exceeding 79 percent. But the “truth-in-sentencing” movement of the mid-1990s, which was focused on increasing the amount of actual time served by criminals, drastically modified the face of sentencing in the state. The combination of the federal government attaching contingencies of longer sentences to grant money and the Texas state legislature taking on this endeavor with a certain verve created the current reality: parole no longer resides in the world of probability, but is firmly affixed in the finite area of infinitesimal possibility. In 1996 the parole approval rate nationally was at 44 percent while in Texas it was only 21 percent. Today, the parole approval rate is 25 percent and the rate for violent offenders, which would include capital offenders, is 22 percent. Additionally, a parolee within this sliver would have served an average of 61 percent of his or her sentence. Generally, violent offenders by the end of the 1990s served just under 76 percent of their sentence with a projected future figure of over 89 percent.
In this landscape, it is highly unlikely that those who were given a reprieve from death would ever spend a day of their borrowed time outside of prison, as Senator Lucio suggested. Perversely, the previous sentence of life with the possibility of parole in 40 years coupled with inordinately low parole approval rates almost entirely denied the potential for separate, precise justice. Now as a result of SB60 its denial is unequivocal.
In writing for the majority of the Supreme Court in Roper , Justice Kennedy spoke to the difficulty that practitioners have in determining the existence of anti-social, psychopathic tendencies in a youth offender. Kennedy asserted that because of this difficulty doctors typically do not make these diagnoses prior to the subject reaching the age of 18. What is also relevant is the potential for such an offense to occur as a result of an impulse control disorder, or intermittent explosive disorder, which culminates in uncontrolled acts of violence, possibly of an extreme nature, according to the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders). The current sentencing law ignores these realities and regards an offender with an undeveloped mental capability the same as one who exhibits psychopathic behavior—“the same, even, as a rational adult.”
What Texas has done, in the past and now, is fall into the trap of allowing the gravity of murder to overwhelm the notion that normally exists with youth offenders; that they do not bear the same degree of culpability that we expect from adults. This philosophy goes back to the genesis of juvenile justice, the first juvenile court in Illinois in 1899, and the theory that when addressing a youth offender the state should not act as the ultimate purveyor of justice, rather as a surrogate parent. In 1967 the Supreme Court substantiated this theory in In Re Gault where the Court held that juveniles are subject to the same constitutional rights in court even when they are tried in a separate juvenile proceeding.
However, where youth capital offenders are tried and summarily punished as adults, the only way to ensure separate justice is through the application of parole. When applied properly, parole is a tool that can separate those who should remain in prison from those for whom this engenders no benefit to the prisoner or society.
But it is not only the Texas legislature that has succumbed to this perceptual trap. While only 34 percent of Texans polled were in favor of the death penalty for juveniles, 78 percent of Texans favored life without the possibility of parole as a sentencing option. This statistic was utilized by Senator Lucio to argue in favor of SB60 and it likely provided a degree of political cover to ensure the bill’s passage.
The reason that Texas was one of three states not to have the life-without-parole option was to increase the prospect of a jury rendering execution as the proper punishment. Based on the preeminent place that Texas holds for state-sponsored executions, it was a fairly successful method. Governor Perry and the legislature have effectively overturned the Supreme Court’s ruling in Roper . Texas is now, with the uncommon exception of commutations, completely unable to execute precise justice where it is warranted, specifically for those who committed their crimes as youths. For the anti-death penalty bloc, this victory is akin to the slaying of the gorgon, a victory of some mythic proportions. Conversely, for those who also look to curtail the figurative death of youth offenders, this was a dramatic loss. SB60 is a death warrant and, as of September 1, convicted youth capital offenders are just as good as killed.
David Mikhail teaches criminal justice and political science at Rutgers University in New Jersey. He has worked with the Center for Constitutional Rights in New York City and the U.S. Department of Justice in Washington, DC.
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AnnouncementsLABOR - May 1 is May Day. Workers of the world will celebrate the 124th anniversary of International Worker’s Day. Born out of a call for an 8-hour workday in the United States, this day is an opportunity for all workers to show their solidarity with one another, as well as to renew the call for labor rights.
FARM CONFERENCE - The Farm Conference on Community and Sustainability will be held May 24-26 in Summertown, TN, in partnership with the Fellowship of Intentional Communities. Tour green homes, see sustainable food production, learn about solar installations, alternative education, midwifery, and more.
Contact: Douglas@thefarmcommunity.com; http://www.thefarmcommunity.com/.
PALESTINE - The Conference of the Palestinian Shatat in North American will be held June 3-5 in Vancouver. The conference will examine the future of the Palestinian liberation movement.
Contact: email@example.com; http://www.palestinianconference.org/.
LABOR - The Pacific Northwest Labor History Association’s 45th annual conference will be held May 3-5, in Portland, OR. This year’s theme is Labor Under Attack: Learning from the Past and Preparing for the Future. A call for presentations, workshops and papers is currently underway.
Contact: PNLHA, 27920 68th Ave. East, Graham, WA 98338; 206-406-2604; PNLHA1@aol.com; http://www3.telus.net.
MARIJUANA - On the first Saturday of May marijuana legalization activists will hold informational and educational events, rallies and marches in over 300 cities around the world.
ECONOMICS - The Union For Radical Political Economics will hold its 39th annual conference May 9-11 in New York City.
RECLAIM THE DREAM - The 2013 Poor People’s Campaign & March from Baltimore to Washington D.C. will be May 11. Communities, schools and unions interested in participating are encouraged to contact the Baltimore People’s Assembly.
Contact: 410-500-2168; 410-218-4835; BaltimorePeoplesAssembly@gmail.com; Southern Christian Leadership Conference of Baltimore and the Baltimore Peoples Power Assembly, 2011 N. Charles St., Baltimore, MD 21218.
MOTHER’S DAY - The 17th Annual Mother’s Day Walk For Peace will be May 12th, in Dorchester, MA. The walk began in 1996 for families who had lost children to violence. The day has become a way for thousands of people to financially support the work of the Louis Brown Peace Institute.
Contact: http://www.ldbpeaceinstitute.org/; http://mothersdaywalk4peace.org/.
NATO 5 - An International Week of Solidarity with the NATO 5 has been called for May 16-21. Supports call on supporters to raise awareness of the NATO 5 and support funds for the defendants on the one-year anniversary of their preemptive arrests.
Contact: firstname.lastname@example.org; https://nato5support.wordpress.com.
MOUNTAINTOP - The 2013 Mountain Justice Summer Activist Training Camp will be held May 19-27 in Damascus, VA. It will be a week of workshops, field trips to view Mountain Top Removal coal mines, direct actions, and service project.
FEMINIST SCI-FI - The feminist science fiction convention WisCon 37 is scheduled for May 24-27 in Madison, WI.
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ANARCHY FEST - A month-long Festival of Anarchy is scheduled for May in Montreal. The festival includes The Montreal Anarchist Bookfair (May 19-20).
Contact: http://www.anarchistbookfair.ca/; http://www.radicalmontreal.com/.
LABOR - The International Labor Rights Forum will present: Down the Supply Chain, Driving Corporate Accountability, on May 22 in Washington, DC. The Labor Rights Awards Ceremony and Reception will honor pioneers in supply chain worker organizing, working solidarity and international labor rights policy.
MULTICULTURE - The 26th annual National Conference on Race & Ethnicity in American Higher Education (NCORE) will take place May 28-June 1, in New Orleans.
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MEDIA - The 2013 Alliance for Community Media Annual Conference will be held May 29-31, in San Francisco, CA. Participants will include educators, community leaders, media professionals, journalists, nonprofit leaders, policymakers and students.
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BRADLEY MANNING - On June 1, a rally will be held at Fort Meade in support of Bradley Manning.
BIKES - Bikes Not Bombs is holding its 24th annual Bike-A-Thon and Green Roots Festival in Boston, MA on June 3, with several bike rides scheduled, music, exhibitors and more.
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LEFT FORUM - The 2013 Left Forum will be held June 7-9, at Pace University in New York City.
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VEGAN FEST - Mad City Vegan Fest will be held in Madison, WI, June 8. The annual event features food, speakers, and exhibitors.
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ADC CONFERENCE - The American-Arab Anti-Discrimination Committee (ADC) holds its annual conference June 13-16, in Washington, DC, with panel discussions and workshops on civil rights, media and other topics.
Contact: 1990 M Street, Suite 610, Washington, DC, 20036; 202-244-2990; firstname.lastname@example.org http://convention.adc.org/.
CUBA/SOCIALISM - A Cuban-North American Dialog on Socialist Renewal and Global Capitalist Crisis will be held in Havana, Cuba, June 16-30. There will be a 5 day Seminar at University of Havana, plus visits to a cooperative, urban garden, community development project, social research centers, and educational & medical institutions.
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NETROOTS - The 8th Annual Netroots Nation conference will take place June 20-23 in San Jose, CA. The event features panels, trainings, networking, screenings, and keynotes.
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MEDIA - The 15th annual Allied Media Conference will be held June 20-23, in Detroit.
Contact: 4126 Third Street, Detroit, MI 48201; http://alliedmedia.org/.
GRASSROOTS - The United We Stand Festival will be hosted by Free & Equal, June 22 in Little Rock, Arkansas. The festival aims to reform the electoral process throughout the U.S.
SOCIALISM - The Socialism 2013 Conference is scheduled for June 27-30 in Chicago, featuring talks and panel discussions.
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LITERACY - The National Association for Media Literacy Education (NAMLE) will hold its conference July 12-13 in Los Angeles under the heading, Intersections: Teaching and Learning Across Media.
Contact: 10 Laurel Hill Drive, Cherry Hill, NJ 08003; http://namle.net/conference/.
IWW - The North American Work People’s College will take place July 12-16 at Mesaba Co-op Park in northern Minnesota. The event will bring together Wobblies from branches across the continent to learn new skills and build One Big Union.
PEACESTOCK - On July 13th, the 11th Annual Peacestock: A Gathering for Peace, will take place at Windbeam Farm in Hager City, WI. The event is a mixture of music, speakers and community for peace. Sponsored by Veterans for Peace.
Contact: Bill Habedank, 1913 Grandview Ave., Red Wing, MN 55066; 651-388-7733; firstname.lastname@example.org; http://www.peacestockvfp.org.
CHILDREN’S DEFENSE - July 15-19, join clergy, seminarians, Christian educators, young adult leaders and other faith-based advocates for children at CDF Haley Farm in Clinton, Tennessee, for five days of spiritual renewal, networking, movement building workshops, and continuing education about the urgent needs of children at the 19th annual Proctor Institute for Child Advocacy Ministry.
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ACTIVIST CAMP - Youth Empowered Action (YEA) Camp will have sessions in July and August in Ben Lomond, CA; Portland, OR; Charlton, MA. YEA Camp is designed for activists 12-17 years old who want to make a difference in the world.
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LA RAZA - The annual National Council of La Raza (NCLR) Conference is scheduled for July 18-19 in New Orleans, with workshops, presentations and panel discussions.
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LABOR - The Eastern Conference For Workplace Democracy: Growing Our Cooperatives, Growing Our Communities, will be held at Drexel University in Philadelphia, PA, July 26-28.
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WOMEN/LYNNE STEWART- Radical Women is asking for support letters and cards to be sent to Lynne Stewart. Stewart is a civil rights attorney and political prisoner who is currently in jail. She has breast cancer and authorities have denied her request for transfer from her Texas prison to the New York City hospital where she received medical attention during a prior bout of breast cancer. Send messages and cards to: Lynne Stewart 53504-054, Federal Medical Center Carswell, P.O. Box 27137, Fort Worth, TX 76127.
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HAITI/WOMEN - Haiti’s government is considering a legal reform measure that would prohibit and punish all sexual assault, including marital rape. MADRE and the International Campaign to Stop Rape & Gender Violence in Conflict are launching a petition to raise international support for this push to address violence against women in Haiti.
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SYRIA/MIDDLE EAST - The Middle East Children’s Alliance (MECA) is currently seeking funds to assist more than 200,000 refugees fleeing violence in Syria.
FOLK FESTIVAL - The Falcon Ridge Folk Festival will be held August 2-4, in the Berkshires, NY.
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WAR RESISTERS - The War Resisters League will hold its 90th anniversary conference, Revolutionary Nonviolence: Building Bridges Across Generations and Communities, August 1-4, at Georgetown University. The event will focus on the U.S.’ long history of antimilitarism.
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POPULAR ECONOMICS - The Center for Popular Economics is holding its 2013 Summer Institute August 4-9 at Hampshire College in Amherst, MA. No background in economics is needed for this intensive training. This year’s theme is, The Care Economy: Building a Just Economy with a Heart.
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VETERANS - Veterans for Peace is holding the 28th annual convention August 6-11 in Madison, WI. This year’s theme is, Power To The Peaceful.
DEMOCRACY - The Democracy Convention will take place August 7-11 in Madison, WI. The convention brings together nine conferences including topics such as media, education, defense, race, environment and others.
MEN - The 38th National Conference on Men & Masculinity: Forging Justice: Creating Safe, Equal and Accountable Communities, presented in partnership with HAVEN, will be held in Detroit, MI, August 8-10.
Contact: firstname.lastname@example.org; http://www.nomas.org/.
OCCUPY - An Occupy National Gathering will be held in Kalamazoo, MI, August 21-25.
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COMMUNITIES - The Communities Conference is a networking and learning opportunity for co-operative or communal lifestyles, with workshops, events and entertainment; scheduled for August 30-September 2 at the Twin Oaks Community in Louisa, Virginia.
LABOR DAY - The 29th annual Bread and Roses Festival, a celebration of the ethnic diversity and labor history of Lawrence, MA, will be held September 2, in honor of the 1912 Bread and Roses Strike. There will be music, dance, poetry, drama, ethnic food, historical demonstrations, walking & trolley tours.
Contact: PO Box 1137, Lawrence, MA 01842; 978-794-1655; http://www.breadandrosesheritage.org/.
OCCUPY WALL STREET - September 17 is the two-year anniversary of the Occupy Wall Street movement. Events are planned in New York City and worldwide.
TEACHERS - The 13th Annual Conference, “Teaching for Social Justice: The Politics of Pedagogy,” will be held October 12 in San Francisco, CA. The free event features workshops, resources, and free childcare.
Contact: 415-676-7844; firstname.lastname@example.org; http://www.t4sj.org/.
HAITI - International Action, which brings clean water and chlorinators to Haiti, seeks office space capable of housing up to six people and their office equipment.
Contact: Zach Bremer, Zbrehmer@haitiwater.org; 202-488-0735; http://www.haitiwater.org/.
MEDIA - The Union for Democratic Communications and Project Censored are sponsoring a joint conference on media democracy, media activism and social justice to be held November 1-3 at the University of San Francisco. Proposals for presentations, workshops and panels from activists and critical scholars are invited.