ESSAY: Murder Most Human: A Case for a Categorical Ban of Life-Without-Parole Sentences for All Juvenile Offenders with Guidelines for Release Decisions for Former Juvenile Life-Without-Parole Cases

The Journal of Criminal Justice and Law is the official open access journal of the Law and Public Policy Section of the Academy of Criminal Justice Sciences. The journal is jointly published in collaboration with the University of Houston-Downtown.

Cite this article as: Johnson, R. (2017). Murder most human: A case for a categorical ban of life-without-parole sentences for all juvenile offenders with guidelines for release decisions for former juvenile life-without-parole cases. Journal of Criminal Justice and Law, 1(1), 56-65.

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The Supreme Court has made clear that there is a categorical ban of mandatory life without parole sentences for all juveniles. This ban of mandatory sentences necessarily includes juveniles convicted of the most heinous murders. However, juveniles convicted of murder can be sentenced to life without parole when the sentence is meted out on an individual basis, with due consideration given to the individuality of the offender and the unique circumstances surrounding the offense. As enunciated in Miller v. Alabama, “[a]lthough we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”1 Why no categorical ban of life without parole for all juveniles offenders? One impediment to a categorical ban of life without parole sentences for all juveniles, including juveniles convicted of murder, may be found in the Court’s understanding of the crime of murder and the character of offenders convicted of murder, which I will argue is misguided. An assessment of the interplay among murder dynamics, juvenile development, and crime desistance allows us to establish sentence length parameters that can be used to guide release decisions for juveniles serving life terms.

Murder is described in Graham as a uniquely serious offense that differs from all other crimes “in a moral sense,” inflicting a profound and irrevocable loss on the victim.2 It is telling that the Court in Graham used murder as a marker of moral depravity: “in terms of moral depravity,” the Court stated that even the most serious non-homicide crimes “cannot be compared to murder.”3 The implication is that some juveniles convicted of murder are depraved—corrupt or evil—and hence may be irredeemable. The research on homicide dynamics does not support this view.

Moral considerations pertaining to murder aside, research on homicide suggests that this crime is the result of fluid social transactions that unfold in emotionally laden encounters.4 Murder generally, and particularly murder by juveniles, is not the outcome of warped moral characters acting out pre-formed and unvarying malevolent intent, as is presumed, for example, in media depictions of homicide and implied in Graham.5 An extensive body of research on homicide by Miethe and Regoeczi lead them to state: “Our primary conclusion is that a more complete understanding of homicide involves conjunctive thinking and attention to the interaction between offenders and victims within particular situational contexts.”6 Their analysis of statistics on homicide patterns, together with their review of crime reports, highlights the interpersonal and cultural dynamics of homicides.7 Motivations for homicide are shaped by contextual forces that play on personal susceptibilities and cultural understandings, notable among which is the common view in high crime environments that one’s worth as a person is connected to one’s ability to use violence in daily life.8 The inner city is a case in point. Research by Anderson and others has been read to confirm that “all inner city adolescents, especially males, become versed in the ways of the street, including the need to defend oneself through displays of toughness or violence. Manners of handling interpersonal disputes are learned early in life and reinforced by the pervasiveness of violence and conflict in these communities. It is within this context that violence becomes a mechanism for acquiring respect.”9

A considerable body of evidence suggests that “the harsh conditions of life in urban ghettos may provide a context in which aggression and violence are fundamental to one’s survival,”10 particularly in light of the fact that there is a “profound lack of faith in the police and the judicial system, and in others who would champion one’s personal security.”11 That you are on your own, isolated from the larger society and responsible to protect yourself and maintain order in your world are violence-promoting lessons that are reinforced in juvenile confinement facilities, sometimes referred to as Gladiator Schools, a telling appellation, capturing the lessons in violence conveyed in such institutions.12 These institutions hold a disproportionate number of inner city youths.13 A substantial proportion of people serving life sentences for crimes committed as children come from impoverished, inner city areas of the country.14 A stint in juvenile confinement has “an enduring criminogenic effect”15 and is significantly associated with the commission of homicide later in the offender’s life.16

Mean streets, damaged and damaging families, devastating economic hardships, and cold institutions may promote terrible violence, but the agents of that violence are human beings managing hard lives, not evil or depraved creatures beyond reason or redemption. In fact, research on persons convicted of murder indicates that they are not, as a class, among the most obdurate and unregenerate offenders. Over the last several decades, large numbers of offenders convicted of capital murder, mostly adults but some juveniles as well, have been released from death row and placed in prisons, and some have earned release from prison and returned to society.17 These persons were mainly non-violent inmates; remarkably, lifers commit few prison rule violations of any kind, and are often described as a force for stability in the prison population.18 Those few who are released, after years of confinement, typically desist from crime. 19 In a recent study, fully 75% desisted from crime over the five-year study period, with only 7% (less than one in ten) committing acts of violence.20 John Irwin’s in-depth ethnographic research on lifers in California prisons clearly affirms the capacity for positive change among lifers eligible for parole – both while in prison and upon release into the free world, for the few prisoners that are ultimately paroled. 21 The crime of murder is uniquely serious, but the empirical fact, reflected in the research on murderers in prison and upon release, is that persons convicted of murder can and do change, can mature and come to see the tragic error of their ways, and can, when given the chance, live decently in civil society, many coming over time to develop remorse for their crimes. In Margaret Leigey’s study of older male inmates serving life without parole, almost all of those convicted of murder expressed guilt, shame, and contrition for taking another’s life and sympathy for the victim’s loved ones.22 Thus, a conviction for the crime of murder, in and of itself, is not a valid marker of moral depravity as the Court in Graham purports, and hence should not disqualify juveniles from the special consideration they are accorded for all other crimes as a result of their inherently immature, unformed characters.

FELONY MURDERS NO EXCEPTION

Even felony murders – murders committed in the course of a felony, among the most legally serious forms of homicide – are often much less cold-blooded than they appear at first blush.23 Most felony murders occur in complex situations that unfold rapidly and sometimes unpredictably, such as when a robbery or burglary goes bad and results in an unplanned homicide.24 At times, those convicted of felony murder were not active or even knowing participants in the crime at all, such as when they were acting as a driver of a getaway car and were unaware that a felony, much less a homicide, was about to occur.25 Analysis of crime report narratives reveals that felony murders typically are “chaotic and disorderly”26 and “haphazard,”27 the fruits of inept rather than methodical and planned undertakings. Juveniles have a limited capacity for planning and foresight, which makes it more likely they will fail to consider the consequences of the original offense, including the deadly sequence of events the original offense may put in motion.28 They are simply not thinking beyond the robbery or the burglary, or even, in many cases, beyond what it means to tag along with others who themselves may engage in risky or criminal behaviors.29

Impulse control problems common to juveniles are compounded when they engage in criminal activity with their peers, since juveniles are notoriously susceptible to peer pressure.30 Much of juvenile crime, including homicide, occurs in a group context31 and involves “elements of honor contests, masculine competitiveness, or issues of respect.”32 In many peer group situations, volatile emotions give rise to unplanned actions that escalate quickly, with little or no chance for individuals to retreat or disengage; normal adolescent impulsivity makes it difficult for juveniles to interpret these complex and often emotionally charged interactions.33 Juveniles are thus more likely than adults to react with unplanned violence under the extreme duress of a crime that goes awry – to fight rather than flee and lose face with their peers. As reported in one crime case file, relating to a robbery-homicide in which the offender could easily have retreated in the face of insults but did not, “[t]he suspect said he hated for people to think he was a joke.”34

The popular image of a felony murder is that of a coolly calculated crime in which the killing is undertaken with malice and premeditation to achieve a rational objective.35 For younger offenders, and especially juveniles, the evidence overwhelmingly indicates that it would be more accurate to see the vast majority of these crimes as situations that have gotten beyond their control and even full comprehension, as is evident in the following crime narrative rendered in the words of the offender:

I killed him. There’s no question about that. But I didn’t intentionally kill him. I didn’t go in there with murder on my mind… It was a robbery that went astray. Somebody walked in… I wind up shooting him and to this day I don’t know how it all happened. It happened. This kind of thing, at least for me, it happened in a haze, you know. One minute he is standing up. I’m saying, you know how it goes, stuff happens too quick, so fast, you’re on automation. The next thing you know, the man is shot.36

As a general matter, as I have noted, felony homicides are particularly “chaotic and disorderly” and “haphazard,” which makes these events both complicated and confusing for adults as well as juveniles.37 I argue that juveniles convicted of felony murder are, as a result of their susceptibility to peer pressure, impulsivity, and limited foresight, much less culpable than adults convicted of the same crime. These deficits were apparent to the Court in Miller as distinctive features of adolescent violence in general, and Kuntrell Jackson’s and Evan Miller’s adolescent violence, in particular; in both cases, the fluid and evolving situational dynamics of violence, embedded in lives suffused with damage wrought by violence in their formative years, were clearly in evidence.38 It is, then, not cold-blooded depravity but rather impulsive immaturity that drives juveniles to commit such crimes.

CONCLUSION

In thinking of homicide as a potential marker of depravity for at least some juveniles convicted of murder, the Court may have been indirectly influenced by the media, which regularly casts violent teens as heartless predators,39 or by the work of some social scientists, now widely discredited, who made unsubstantiated claims like “today’s bad boys are far worse than yesterday’s and tomorrow’s will be even worse than today’s.”40 Allegedly rooted in “moral poverty,” perhaps the social science equivalent of depravity as understood by the Court, some social scientists warned of a generation marked by character deficits that gave rise to wild and extraordinarily violent offenders. These offenders were said to comprise the “thickening ranks of juvenile ‘super-predators’ – radically impulsive, brutally remorseless youngsters, including even more pre-teenage boys, who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs, and create serious communal disorders.”41 These offenders, moreover, were presumed to be beyond the reach of punishment: “They do not fear the stigma of arrest, the pains of imprisonment or the pangs of conscience.”42 One might well imagine that such offenders, a kind of army of junior psychopaths in training, must be confined until death, since they are simply too dangerous to be at large in society.43 Arguably, a lonely and degrading death in a prison cell would seem a suitable if premature end to their depraved lives. However, as we have indicated, research simply does not support the existence of such super-predators. Rather, research tells us that juvenile homicide, like much of juvenile crime, is rooted in group pressures, impulsiveness, and short-sightedness—defining elements of adolescence—that give rise to misguided efforts to save face and establish respect.44

The Court in Graham spared non-homicide juvenile offenders from life without parole, our other death penalty, but at least some juveniles convicted of murder are still eligible for this harsh sanction. Life without parole entails a permanent loss of hope and a grim, lonely, and degrading death.45 It is a cruel sanction for any young person and is used with juveniles virtually nowhere else in the world.46 In principle, a maximum sentence of life with the possibility of parole – and hence the hope of one day rejoining society – is punishment enough for any juvenile, even one convicted of the terrible crime of murder. The Court expressed concern about “the rare ju­venile offender whose crime reflects irreparable corruption.” Should such offenders exist, there would be no way to identify them while they are still developing adolescents since there is no way to reliably determine which attributes of their personalities are transitory and which are enduring elements of character. As adults, cumulative evidence of “irreparable corruption” may emerge in rare cases, at which point these offenders can be identified, monitored over time, and offered intensive rehabilitative services. These offenders would presumably be denied release unless and until they show evidence of profound character change.

In practice, lesser terms than life with parole for juveniles convicted of murder are possible and advisable. When these offenders reach the age range 35-39, for example, their risk of recidivism drops substantially: using national figures for arrests as a measure of recidivism, the drop ranges from a quarter to a half;47 using re-imprisonment as a measure, the drop is from a third to a half.48 These figures are illustrative of the fact that these prisoners, no longer young, are now at lower risk for recidivism; the lengthy prison terms they will have served by the time they reach the 35-39 age range are also associated with a low risk of recidivism.49

By age 35-39, moreover, individual prisoners will have had sufficient time to establish that they have evolved and matured, and hence are no longer the impulsive juveniles who committed the heinous crimes that landed them behind bars.50 Thus, I contend that prisoners sentenced to life terms as juveniles should be entitled to hearings to determine their eligibility for release at some point during this age interval. These hearings would be used to determine recidivism risk in individual cases. Significantly, the primary factor that underlies successful (that is, recidivism-free) reentry for lifers is “a change in the self” in the direction of self-efficacy.51 Self-efficacy is the product of maturation and development, which can be assessed in the review of individual cases at release or re-sentencing hearings.52

By age 50, recidivism is negligible; arrests are down by half or more (by one accounting, dropping by a robust 80%);53 re-imprisonment for a new crime drops by well over half, in some states (e.g., Virginia) dropping by over 90%.54 These figures are illustrative of “the criminological consensus” that age 50 is the point at which “recidivism in all crime categories plummets.”55 Given the reduced culpability of juveniles for their original crimes, the normal progression of maturity over the course of their imprisonment, and the dramatically reduced risk of returning to crime after age 50, life sentences for juvenile offenders should include a presumption of release at age 50. Absent unambiguous evidence of a continuing disposition to violence, offenders at age 50 should be released and permitted to reenter society.

In sum, it is my contention that eligibility for release starting at age 35, together with a presumption of release by age 50, would seem entirely appropriate for the vast majority of juvenile offenders whose life without parole sentences were overturned following Miller and are now up for reconsideration in many jurisdictions. To date, it would appear that only a handful of states have explicitly incorporated the factors articulated in the Miller decision into the language of parole statutes. Three states that do are California, Connecticut, and West Virginia, each of which requires parole boards to “consider factors such as age at the time of the offense, potential for rehabilitation, and increased maturity.”56 The framework proposed here would be of immediate value in the deliberations within these jurisdictions, giving benchmarks to guide release decisions.

Most jurisdictions, it would appear, have simply made juvenile offenders “eligible for release under existing and long-standing parole procedures,” which do not require parole boards to consider, or give guidance to how such boards might consider, the key Miller-related factors of age at the time of the offense in relation to reduced culpability, potential for rehabilitation, and increased maturity over the course of one’s confinement.57 The framework provided here may serve to encourage these jurisdictions to explicitly take into account the factors we have reviewed here when revisiting juvenile life-without-parole sentences—age and culpability at the time of the offense, prison adjustment and personal maturation over the course of the person’s confinement as a measure of rehabilitation, and an age-based assessment of recidivism risk at the time of release hearings.

Declaration of Conflicting Interests: The author declares no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding: The author received no financial support with respect to the research, authorship, and/or publication of this article.

Author

Robert Johnson is a professor of justice, law and criminology at American University, editor and publisher of BleakHouse Publishing, and an award-winning author of books and articles on crime and punishment, including works of social science, law, poetry, and fiction.  He has testified or provided expert affidavits in capital and other criminal cases in many venues, including US state and federal courts, the U.S. Congress, and the European Commission of Human Rights.  He is best known for his book, Death Work: A Study of the Modern Execution Process, which won the Outstanding Book Award of the Academy of Criminal Justice Sciences.  Johnson is a Distinguished Alumnus of the Nelson A. Rockefeller College of Public Affairs and Policy, University at Albany, State University of New York.