Lowering the bar for outrage

I received one of the most depressing pieces of mail I’ve ever encountered on Tuesday.

I should set the stage by mentioning that I’ve recently had occasion to think about prison reform in the US. I was invited to a meeting by Open Society Institute in New York which looked at some length at the problems of America’s criminal justice system: extremely high rates of incarceration, huge racial disparities in sentencing, and the fact that six of ten African-American high school dropouts ended up in prison by their 30s. Prison reform was a major focus for my father when he was a lawyer with the New York Legal Aid Society, where he primarily defended indigent defendents who had violated the terms of their parole.

I was reading the new study from the JFA Institute titled “Unlocking America“. (A warning – the study is available only as a badly formatted PDF, which lacks key graphs, totals 4.6mb for 40 pages of text, and doesn’t print on my printer. But hey, it’s still worth reading.) The study, authored by several professors of criminology, makes the argument that incarceration isn’t working in America, or at least, isn’t working the way we’d want it to be. Prison populations continue to grow dramatically despite the fact that crime rates have decreased since 1992. (The US is the world’s leader jailer, in both absolute and percentage terms, outdistancing stiff competition from China and Russia, and exceeding incarceration rates of Apartheid-era South Africa.) The study’s authors argue that the increase of prison population is due to a set of “tough on crime” laws passed in the 1970s and 80s that have reduced judge’s flexibility in sentencing and resulted in longer sentences and more court-mandated supervision after release.

While these measures, they argue, don’t meaningfully affect crime rates, they have enormous implications for communities where large numbers of people end up locked out of the workforce due to criminal records, lose the right to vote and have children raised in single-parent (or grandparent) households due to incarcerated parents. Furthermore, the huge costs of keeping indiciduals in prison reduces the amount of tax dollars available to improve life in high crime communities. (Projects like the Justice Mapping Center have done amazing work visualizing the incredible costs associated with incarceration in some neighborhoods and the strong correlation between high incarceration neighborhoods and inadequate social services.)

The report’s authors argue that reducing the massive US prison population requires reforms including:
– the reduction of the length of sentences
– the elimination of prison sentences for “technical offenses” in violating parole or probation. (More than half of all inmates in state prisons have violated parole. More than half of these have committed “technical violations”, which can include missing appointments with parole officers, failing drug tests or failing to pay supervision fees.)
– the reduction of time under parole or probation supervision
– decriminalization of victimless crimes like gambling, prostitution and recreational drug use
– improving prison conditions
– restoring voting rights for convicted felons.

All of which are likely great recommendations, but few of which I can imagine influencing policy debates in the US in the near future. Prison reform hasn’t been one of the hot talking points in the democratic primaries, and it’s hard to imagine Republican candidates who’ve expressed their desire to “double Guantanamo” having serious conversations about improving conditions in US prisons.

So this topic was on my mind when I opened my mail at Berkman and received the report “Cruel and Unusual: Sentencing 13- and 14-Year-Old Children to Die in Prison” from the Equal Justice Initiative, an Alabama-based human rights group led by the remarkable Bryan Stephenson, a law professor at NYU. Let’s quickly unpack the report’s title – the children in question aren’t sentenced to execution – they’re sentenced to life in prison without the possibility of parole. There’s aren’t a ton of them – EJI has documented 73 cases of children who are imprisoned until their death based on crimes they were convicted of committing when they were 13 or 14 years old. But the simple fact that children are imprisoned for life based on crimes committed when they were 14 years old or younger is difficult to process.

The EJI report does an excellent job of putting faces on statistics, telling the stories of the children who are now imprisoned for life. One in particular has stuck with me. Antonio Nuñez was 14 years old, drunk and high at a party, when he got into a car with two men who were nearly twice his age. The driver got into a car chase with police and fired shots; the other adult in the car claimed that he’d been kidnapped by the driver. While no one was injured in the chase, the State of California charged Nuñez with aggravated kidnapping, and sentenced him to life in prison without parole, the same sentence the 29-year old driver received.


Antonio Nuñez, right. The youngest person in the US to be sentenced to life in prison for a crime where no one was killed or injured.

Bad things happen to children when you put them in prison with adults. They get raped five times as often as they do in juvenile detention facilities. A substantial proportion of the 73 children documented in the JFI report have attempted suicide. Ian Manuel, sentenced to life in prison for a violent mugging he committed when he was 13, has spent the majority of his life in solitary confinement in a Florida prison. He attempted suicide five times last year.

A broader study, carried out by he University of San Francisco’s Center for Law & Global Justice found 2,387 serving life without parole across the US. 51% of these youth were first-time offenders. 13 states allow youth to be sentenced to life without parole at any age – other states set minimums from age 8 to 14. The US is the only country that allows a 13-year old to be sentenced to life in prison – the punishment is forbidden by the Convention on the Rights of the Child (ratified by all nations except the US and Somalia) forbids it.

In many cases, judges don’t want to impose these sentences – they are required to by mandatory minimum sentence laws. In a large number of cases, the children were represented by deeply incompetent counsel, including counsel who failed to appeal convictions.

The reason this report was so horrific wasn’t the realization that there are 73 people who will die in prison for crimes committed as children. It was the realization that EJI was focusing the campaign on these 73 kids because they belive it might be winnable. In other words, a broader campaign to advocate for all 2,387 sentenced to life in prison while juveniles probably wouldn’t be winnable. And a campaign against the idea of life without parole certainly wouldn’t be winnable in a country where the death penalty is authorized in 38 states and the sentence is offered as a less punitive measure.

The realization that sent me reeling was that EJI’s campaign on this issue is likely to be an uphill battle. The state of Pennsylvania has sentenced 18 children to life in prison for crimes committed when the offender was 13 or 14 – it’s an issue that’s surely been considered in that state’s criminal justice community previously. While it seems impossible for me to find arguments that imprisoning a 13 year old for life is a good idea, I know that people are willing to make these arguments (and perhaps someone will make them in the comments thread.)

While fighting for a reform in sentencing that offers the possibility of parole for people convicted of crimes when they were 14 or under is a battle worth fighting, I’m having a hard time believing that it’s a battle we have to fight. And I wonder what the odds of winning the sorts of reforms advocated in the Unlocking America report are if it’s a battle to fight for the rights of young and badly disadvantaged children who’ve committed crimes.

Then again, it’s very hard to believe that the “debate” on torture in the US has descended to the point where major media outlets won’t call waterboarding “torture”. Or that Amnesty International believes (correctly, I suspect) that they need to show us a performance artist holding the stress positions authorized in CIA interrogation manuals to remind us that stress positions are torture. They do. And EJI needs to force Americans to wrestle with the idea that we imprison 13 year-olds for life before we can wrestle with the implications of imprisoning nearly 1% of our citizens.

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9 Responses to Lowering the bar for outrage

  1. Hanan Cohen says:

    I am close to a group of people in Israel who try to fight prisons privatization.

    One of the claims this group makes is that business gains might make the prisons owners to have more “clients” and lobby for harsher sentencing.

    I haven’t seen privatization mentioned in this post and in the report (ctrl+f).

    Do you think privatization is related to what they and you write?

  2. Henok says:

    “six of ten African-American high school dropouts ended up in prison by their 30s.” This is every scary.

    I think high schools need to educate student the important of life and education. so that we can save the society.

  3. Nathan Kurz says:

    > While it seems impossible for me to find arguments that
    > imprisoning a 13 year old for life is a good idea, I know that
    > people are willing to make these arguments (and perhaps
    > someone will make them in the comments thread.)

    Sure, I’ll take a stab at that argument, although I’ll preface it with a couple disclaimers. First, the question isn’t whether life without parole is a good idea for anyone, but whether it’s better than the alternatives. The alternatives currently possible in the US seem to be sentencing within the juvenile system, short sentencing as an adult, long sentences as an adult, and execution. Second, the question isn’t whether the imprisonment is best for the prisoner (it’s not), but whether it is best for society as a whole. The prisoner’s needs can be weighted within this, but society’s needs receive the majority of the weight.

    Starting from the top, executing juveniles doesn’t seem doesn’t seem like it would be an improvement. It’s expensive, repulsive to many, and isn’t fault tolerant. While I believe there are some individuals, including juveniles, who are truly incorrigible and a menace to society (a very small percentage even of the prison population) the difficulty of properly identifying these individuals makes execution a poor choice.

    A long sentence in a federal prison (I’ll define long as 10 years plus) seems unlikely to produce an individual who is a benefit to society. Take a young person who has already started down a path of crime and put them in a facility where they are surrounded by criminals and constantly mistreated (by both the system and the other inmates), and I’ll bet they’ll come out with with some significantly antisocial traits. I have trouble coming up with a better way to create career criminals than this.[1]

    A short sentence seems like it might be a better choice, and most other civilized countries follow this model. However, Table 7 from the JFA report suggests that about half the prisoners released from jail will be reconvicted within 3 years, and Table 9 suggests that this rate is highest for those who serve short sentences. There’s not hard data in the report for juveniles, but I’d guess that age upon release has a lot to do with recidivism rate.[2] Are the (statistical) crimes likely to be committed something we want to bear? How much are we willing to pay to prevent a murder or a rape?

    Keeping juvenile offenders within the juvenile system seems appealing, but so far as I know the system just isn’t set up to accommodate violent offenders. You run into the same problem as putting the drunk drivers in with the rapists in the adult system.[3] It wouldn’t be fair to put the non-violent juveniles, and I have similar doubts as the the recidivism rates as for shorter adult sentences. And what happens for second violent convictions? Try again and hope it turns out differently? I don’t think the age of the offender can be the primary factor in deciding the style of incarceration.

    So within these options, I fear that keeping some particularly violent thirteen-year-olds locked up for the rest of their lives may be best option we have. Emotionally worse, while this might not have been the best option initially, once they’ve been mistreated and malformed by the prison system for a number of years, it may be the best option in the current situation. So while I’m against mandatory sentencing, and while some of the offenders highlighted by EJI might do fine with release, I don’t think one wants to rule out life imprisonment for juveniles unless one has a better solution.

    What would you suggest as an alternative?

    [1] Compare Guantanamo and terrorists. While those going in may not have been actively and violently anti-American, it’s hard to believe those coming out (if they ever do) will not be.

    [2] Anecdotally, I had an interesting conversation with a hitchhiker I picked up in rural South Dakota, in which he proposed that his 6-month prison sentence for burglary was the best thing that ever happened to him, as it made it very clear to him that he never wanted to spend time there again.

    [3] http://www.hrw.org/reports/2001/prison/report.html#_1_2
    An earlier and perhaps even more depressing report about the state of our prisons.

  4. Ethan says:

    Nate, I appreciate the pushback, but I think you’re presenting unusually weak arguments here, not up to your usual calibre.

    The core of your argument appears to be that the prison system is so dangerous and corrupting that an individual exposed to it is likely to be corrupted permanently, especially one brought into it at a young age. I don’t deny that this may be the case – we evidently gave up on the rehabilitative nature of prison sentences years ago and now focus on retribution and the security that comes from isolating convicted criminals from the larger population. One response to this would be to attempt to reform the justice system so that it doesn’t have this negative effect on convicts – the logical extension of your argument, as I read it, is that people who have long sentences are likely to be damaged by imprisonment and therefore might need to be imprisoned permanently. That seems like a recipe to create a vastly larger prison system than currently exists, something with fearsome fiscal and societal implications. (If you want to talk about social costs, think about the implications of raising generations of children with one or no parents influencing their development.)

    I read the chart in the JFA study differently than you did – I read it as a critique of parole and probation laws that make it extremely likely that offenders will have a “technical violation” – a repeated failure to meet a parole officer, for instance. I watched my father defend convicts who were re-imprisoned due to these violations for 13 years. There’s an amazing array of stupid ways you can violate parole and end up – technically – as a recidivist. What that chart doesn’t show is strong evidence that released prisoners are responsible for a large number of crimes. Table 4 in that same report shows data from seven states and demonstrates that only 5% of total arrests in those states are from released prisoners, and only 1% of total arrests were of released prisoners for violent crimes.

    Your anecdote about the South Dakota hitchhiker is the sort of argument frequently offered by tough-on-crime politicians and advocates. But what the heck do you expect that hitchhiker to say to you – “Gee, now that I’m out, I can’t wait to burgle again?” Seems unlikely to create a pleasant driving experience for either of you. Basically, the argument you’re putting forth in that story is for career criminals being scared straight. A large focus of that JFA study is the debunking of the idea of the career criminal, suggesting it’s a much smaller group than we’re led to believe.

    I would question whether the juvenile system is as ill-equipped to deal with violent offenders as you think. My preference in these 73 cases would be for children to be imprisoned until 18 in the juvenile system, then face a review of whether it’s advisable to release to the general population, or whether some combination of limited prison sentence and post-release supervision is most appropriate. For some reason, that seems to work in the rest of the developed world without creating packs of feral child-murderers.

    Anyway, will give us something to argue about later this week…

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