Why Does the U.S. Sentence Adolescents To Life Without Parole?

By SHERRY F. COLB
Monday, Oct. 29, 2007

Last year the United Nations voted on a resolution to abolish life imprisonment without the possibility of parole for children and young adolescent offenders. The vote was 185 to 1 in favor of abolition, and the United States was the lone dissenter. Until 2005, moreover, when the Supreme Court outlawed the juvenile death penalty under the Eighth Amendment in the case of Roper v. Simmons, twenty states had allowed the execution of murderers who committed their crimes before the age of 18.

In this column, I will explore ways of thinking about crime in the U.S. that might help explain this punitive approach to juvenile offenders.

The Law Treats Juveniles as Presumptively Impaired

Many critics of the juvenile death penalty, prior to Roper v. Simmons, argued that such harsh penalties for juvenile offenders are radically at odds with the way the law ordinarily treats adolescents. With a drinking age of 21 and a voting age of 18, our law otherwise appears to embody the view that minors are not capable of making choices and governing their actions in the way that adults are.

In addition, most states have "parental involvement" statutes that require a minor who wishes to obtain an abortion to notify, or obtain consent from, at least one of her parents first (with exceptions for various circumstances). If we believe that adolescents are impaired enough to justify an across-the-board ban on drinking and voting and a requirement for consultation with parents before an abortion, then why would we choose to visit draconian penalties upon them when they violate the criminal law against homicide?

One Possibility: Statistics versus Individuals

One possible explanation for this seeming inconsistency is the distinction between statistical classifications and individualized determinations. Laws that limit drinking, voting, and abortion are based on a generalization: Most (or even an overwhelming number of) adolescents are too immature to handle alcohol responsibly, too narcissistic to vote intelligently, and too lacking in judgment to decide whether to terminate an unplanned pregnancy without parental assistance.

No one, however, would dispute that some minors are highly mature, could handle the decision whether to drink or how to vote with grace, and would be as able as any adult woman to figure out how to address an unplanned pregnancy on their own. Indeed, for the last group, the Supreme Court mandates a judicial bypass procedure, through which a minor can prove to a judge that she is mature enough to make her choice without parental involvement.

In the case of executing or imprisoning juvenile offenders without parole, sentencing judgments are always made by reference to a particular individual, rather than a group. In other words, no law says that all juvenile murderers will be sentenced to life without parole. Instead, as is the case whenever a person is tried and sentenced for a crime, state laws permit the sentencing judge or jury to consider particular facts about the criminal defendant at issue before reaching a determination. Given that individualized determinations must take place, one could readily conclude that no punishment available to adults should be off the table for juveniles. The juvenile offender sentenced to life without parole might, on this theory, be quite distinct from most people in her age group. And this would also account for the relative infrequency with which juveniles are sentenced to life without parole.

Yet the very impulsivity, aggression, and utter self-absorption of adolescents would appear to account for both their inability to drink (or vote or choose abortion) responsibly and their disproportionate representation among violent offenders. To put it differently, it seems unlikely that we select particular juvenile offenders for the harshest punishment because they distinguish themselves as unusually mature, responsible, and self-possessed. Although teenage murderers are undoubtedly different in important respects from others in their age cohort, that difference would typically appear to reflect greater rather than lesser impairment relative to other teens.

Other Possibilities

People sometimes speak of teenagers who commit particularly heinous murders as "lost causes," and this phrase provides a clue to why some juveniles might receive the sentence of life without parole. What distinguishes them is not - as I hypothesized above - their greater capacity (and hence greater culpability for any misconduct) relative to other teens but the greater "evil" they are thought to harbor, as revealed by the details of their crimes.

Consider an analogy in criminal law. When a person is psychiatrically impaired to the point of being "insane" for legal purposes, her crimes - however outrageous - may be excused. Though what she has done is undoubtedly wrong, she is not considered criminally "responsible" for her actions. One mental condition that does not, however, provide an excuse for criminal behavior is antisocial personality disorder (known alternatively as "psychopathy" or "sociopathy").

To oversimplify a bit, a person who suffers from this condition lacks a "conscience" and is therefore unable to feel guilt or remorse in connection with his destructive and anti-social acts. As University of Pennsylvania Professor Stephen Morse aptly described such a person, he knows that some acts are forbidden, but the prohibitions do not make intuitive sense to him - he does not feel the wrongfulness of crimes that strike the rest of us as self-evidently bad.

It is no accident that psychopaths do not thereby receive an excuse under the law for their otherwise criminal actions. Their impairment, though clinically described in the current Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), amounts to what many people consider a quintessential "malevolent character." Good people are empathic and naturally inclined to do pro-social things and avoid hurting other people, while psychopaths can feel no empathy. Rather than excusing their behavior, however, this characteristic - when it manifests itself in cruel and harmful activity - itself damns them in the eyes of most people.

Thus, when a teenager commits an especially shocking murder, and she is not operating under a cognitive psychiatric impairment (such as a hallucination that her victim is attacking her), her behavior appears to announce something poisonous about her character. In turn, that announcement leads judges and juries to reach for the most punitive and lasting punishments available.

Ashley Jones: the Face of Life Without Parole

In a recent New York Times article about teenage "lifers," the lead story involved the case of a girl, Ashley Jones - pictured on the front page and looking painfully young and vulnerable. Ashley was one of the small number of convicted murderers in this country (reportedly 73) currently serving a sentence of life imprisonment without the possibility of parole for crimes committed when they were 13 or 14 years old.

At the age of 14, Ashley helped her boyfriend kill her grandfather and aunt, by stabbing and shooting them and then setting them on fire. Ashley also attempted to kill her 10-year-old sister and her grandmother, Mary Nalls, the latter of whom subsequently awoke from a 30-day coma to learn that her husband and her daughter were both dead. Mrs. Nalls and her husband had been married for fifty-three years when they took Ashley into their home.

Laura Poston, who prosecuted Ashley Jones, defends the sentence of life without parole, explaining that "I don't think there is a conscience in Ashley." This description fits the basic definition of a psychopath and thereby corresponds to the picture of evil that - at any age - appears, for some, to cry out for the greatest retribution and the refusal to look back.

Poston added, "I certainly think she is a threat to do something similar," identifying the danger that a person like Ashley Jones might pose to the population. In addition to retribution, criminal penalties also serve the function of incapacitating people who will likely offend again. It is difficult to trust a young woman who so brutally and cruelly ended the lives of two close relatives. And if she lacks a conscience, then what is to stop her from killing others once she is released?

The two qualities - lack of a conscience, and future dangerousness - appear to go hand in hand in explaining the desire to sentence a criminal like Ashley Jones to life imprisonment. Yet why not include the possibility of parole? After all, it is our individualized conviction and sentencing system that permits judges and juries to take into account the particular story of each defendant, rather than generalizing about the entire group of young offenders or robbers or murders. Why not allow a parole board to perform a similar, case-by-case review of each convict?

One answer is that in some cases, Americans appear to be prepared to rule out the possibility of change and accordingly, to rule out the possibility of parole. Some individuals commit an act so horrifying that they cannot, on this approach, subsequently become the sorts of people who can be trusted safely to rejoin society. To rule out the possibility of parole is to say that we want to tie our own hands. Though we anticipate being tempted in the future to accept a particular murderer's repentance, to believe that she is now changed and poses no further threat, we want to protect ourselves against succumbing to the temptation rather than explicitly welcome it.

The impulse to protect ourselves from our own, perhaps unwarranted, optimism would effectively explain why some states had hoped to retain the option of executing a juvenile offender. Execution altogether precludes the possibility of personal evolution and thereby rules out the risk of being misled into believing that such evolution has indeed taken place.

The U.S. Paradox

None of this explains, of course, why the U.S. is unique in its draconian approach to juvenile murder. Outside this country, long sentences for crimes are far more unusual than they are in the U.S.; no one executes juvenile offenders; and everyone believes juveniles should be spared life imprisonment without the possibility of parole. The New York Times article proposes that elsewhere, people focus more on rehabilitation whereas Americans emphasize individual responsibility. Perhaps that distinction plays a role. But the American approach may also reflect a clash between extreme optimism and a concomitant fear of that optimism. It is in the U.S., after all, that we nurture the belief that anyone, however poor or humble her beginnings, can grow up to lead the country or to discover a cure for cancer. Notwithstanding our optimism, though, we are aware that it might prove dangerous in the truly hopeless case.

We view children as a whole as non-responsible, as generally "innocent," and as needing parental guidance in making important life choices. A child is presumptively a tabula rasa who might become anything when she reaches adulthood. Yet we punish some children "as adults," even to the point of dismissing the very possibility of future redemption. It seems that we are inclined to treat individuals in a case-by-case fashion when it comes to criminal penalties. But once we find someone, in the course of that individualized inquiry, who appears to lack a conscience, we fear later becoming prey to the generalizations that ordinarily protect children - that they change and become better over time. Life without parole is, in that sense, tantamount to execution; it is a declaration that we have given up hope and that we refuse to take the risk involved in allowing for the resurrection of that hope in the future.


Sherry F. Colb, a FindLaw columnist, is a Visiting Professor at Columbia Law School. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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