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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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