In mid-October, the Equal Justice Initiative, an Alabama-based nonprofit law firm, gained widespread media attention when it released a shocking report on 13- and 14-year-olds serving life without parole (LWOP) in the United States.
“Imprisoning a child for the rest of his life violates standards of decency in this country, particularly in light of what we know about the unique vulnerability of young adolescents and about a child’s capacity for growth, change, and redemption,” the report stated. “These extreme punishments for children violate international standards which require protection and special consideration because they have not fully developed physically, mentally, or emotionally.”
Earlier this week I spoke at length with EJI executive director Bryan Stevenson about the report, his firm’s legal strategy on this issue and his hopes for abolishing LWOP for children. What follows is an edited transcript of our conversation:
How did you get started on this issue?
For many years we represented juveniles who had been sent to death by execution. Alabama had more juveniles on death row than any other state, and when the US Supreme Court struck down the death penalty for juveniles in Roper, we began working to get our clients off death row and back into the general population. But it still occurred to me that it wasn’t appropriate for them to serve a sentence of life without parole. Because we were right on the heels of a win on the death penalty, though, it was clear that we weren’t going to have much success making the case that life without parole wasn’t appropriate for any juvenile. At around that time we heard from Ashley Jones [who was sentenced to life without parole for helping her boyfriend kill her grandfather and aunt when she was 14], and we started working on her case. To make the challenge we had to document how many other kids faced similar sentences. So we began to look into it.
What did you find?
We were surprised to learn that there were seventy-three kids who were sentenced to die in prison at 13 or 14. That there were a number of 13-year-olds in the mix was a surprise. That so many cases involved mandatory sentences was also a surprise. It was less surprising that two-thirds were children of color, that the quality of representation in many of these cases was so bad. A lot of the lawyers we contacted didn’t remember that their clients were 13 at the time, and many didn’t appeal.
Now that you’ve taken on so many of these kids as clients, what is your legal strategy?
In the past year we’ve filed about twelve cases in eight states challenging the constitutionality of life without parole, and our plan is to continue filing as many as we can. We’re arguing that it violates the Eighth Amendment against cruel and unusual punishment.
What precedents will bolster your argument?
With so few sentences, 73, and so few states, 19, that puts this in the same context as executing the mentally retarded [see Atkins v. Virginia] or imposing the death penalty for rape. We are also arguing that it’s a violation of due process to be given this sentence in a mandatory way. That contradicts Roper [which recognized scientific and sociological research showing that juveniles are still developing and are thus less culpable than adults for their behavior]…. And twenty years before Roper there was Thompson v. Oklahoma [in which the US Supreme Court barred execution for offenders younger than 16].
What are your thoughts on Justice Kennedy’s ruling in Roper in which he acknowledged an international context when applying the “evolving standards of decency” test?
I think it’s important to acknowledge and recognize that what we’re doing is really out of step with the rest of the world. The US is the only country that’s known to sentence children so young to life without parole. It was very controversial when Kennedy contextualized Roper in this way. But the world is getting smaller; right now, for example, we’re engaged in all sorts of complex questions around extradition. We have to think more globally as a matter of law and procedure. On this issue, the fact that we are so at odds with the rest of the world is substantial.
Were you pleased with how the report was received?
We were very pleased with the response. It got a lot of positive attention. People had no idea there were 13- and 14-year-old kids who were sentenced to death in prison. So we were pleased to force people to think about this issue. Whenever you talk about people accused of violent crimes, there’s a predictable us-versus-them consciousness, and you start to hear a lot about the victims. Most of the children in these cases were horribly abused and subjected to terrible circumstances, so all of them are victims of abuse and trauma and the kind of violence we claim to want to protect children from. And the courts’ inability to acknowledge that is shocking.
What do you think of the emerging legislative strategy for eliminating LWOP?
We’re incredibly supportive of the legislative movement. There was some movement in Colorado, major movement in Michigan, California. We’re very enthusiastic about that. But it’s still a challenge. I mean, there are legislators who are trying to reintroduce the death penalty for juveniles. When the Roper decision came down, we had an Alabama Supreme Court Justice [Tom Parker] who said the decision was unconstitutional and criticized his colleagues for following it. That was the environment in which we were trying to get legal relief for our clients after Roper.
If you believe that LWOP sentences constitute cruel and unusual punishment for all juveniles, why is your campaign focused narrowly on 13- and 14-yr-olds?
LWOP is inherently cruel and unusual for all juveniles. I think a broader debate about the punishment is appropriate. But while it’s fine to engage in these conversations in backrooms or cocktail parties or whatever, as a litigation strategy this is not a complex question at all. The death penalty was an issue we won by 5 to 4. If it came a few years later, we might not have gotten that. So there has to be some strategic perspective on moving forward. What I’m more concerned about is getting any court anywhere to say that LWOP is unconstitutional.