Saturday, July 25, 2015
When one considers controversy in the criminal justice system one of two issues immediately come to mind: 1) the death penalty, where effective arguments exist for both the pro and the con sides; 2) racism in the criminal justice system, where debate is typically over-emotional and illogical on both sides, especially from those complaining about the extent of racism; however, the widespread focus on these two issues draws attention away from other meaningful issues. One of these interesting issues that receive less attention is the question of justification for sentencing someone to life in prison without the possibility of parole.
Not surprisingly there are a number of people who believe the judicial system should not have the capacity to hand down a sentence of “life without parole” (lwop). An aspect of this argument has been bolstered by three separate United State Supreme Court rulings, Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, where it was held that it was not Constitutional to sentence juveniles to the death penalty or a mandatory life in prison without parole sentence regardless of the type of crime. Emboldened by this ruling a number of individuals have attempted to further advance this position to include eliminating lwop sentences all together or at least just expand the breadth of these ruling to young adults, arguing that a lwop sentence is a de facto death sentence.
Furthermore the argument goes that the general nature of a lwop sentence is not based on rehabilitation because the individual in question is never getting out of prison, it is a mixture of punishment and deterrence for other potential actors. However, the influence of this meaning is less relatable to juveniles and young adults due to their emotional and mental development. Proponents of the above position believe that time is the most relevant factor in “decriminalizing” individuals for the frontal lobes mature and, in men, testosterone levels decline reducing the probability of aggressive and impulsive behavior. Basically time is a superior method to reducing crime probability versus hoping young people view individuals similar to themselves incarcerated for the rest of their lives and come to the conclusion “I better not do that”.
In fact some may simply come to the conclusion “I better not get caught” suggesting a time old thought regarding crime, the probability for the certainty of punishment matters much more than probability for the severity if punished when considering the commission of a crime. Therefore, based on this reasoning these individuals argue that sentencing individuals, especially the young, to life in prison without parole does not serve either society or the individual in question.
Some have also argued that the deterrence factor does nothing significant to limit the occurrence of crime derived from passion for rarely do individuals calculate the benefits and consequences before engaging in an emotionally driven response. However, this argument is rather weak in its validity for most emotional actions do not typically produce a crime that will result in a lwop sentence upon conviction. Understand that lwop sentences rarely occur outside of homicides, most notably a Murder 1 conviction, which seldom have acute emotional components, even in felony murder cases. The general conditional pre-requisites for charging an individual with Murder 1 involves 1) premeditation; 2) willfulness; and 3) deliberation (typically with malice afterthought);
This above argument regarding passion and emotion creates concern in that the chief problem with attempting to expand the “lack of maturity” argument to lwop sentences is the nature of lwop crimes typically do not involve lack of maturity or emotional development as a meaningful factor. Basically regardless of the level of social, mental or emotional development, any individual without some form of brain damage should acknowledge that the elements involved in the crimes that warrant such a sentence (vicious and premeditated homicides or homicides in the course of committing other high level felonies like armed robbery, kidnapping, etc.) are against the law and consequences for their commission will be severe. One does not need to be a fully matured and emotionally stable 26 year-old to know that shooting someone in the chest with a .44 is not a good thing and will be harshly punished. One of the chief reasons for a differing stance between juvenile treatment with the death penalty and lwop sentences is the finality of the death penalty eliminates the ability to overturn mistakes in the judicial process.
Another aspect of weighing lwop sentences on young single count offenders is will the elimination of these sentences serve the concept of justice? For example if 20 year-old person A murders 20 year-old person B with all of the necessary elements to justify a Murder 1 conviction what type of sentence would represent justice? Realistically it can be argued that person B was robbed of at least 40 years of life, if not more, so should person A pay in a year for year context? If person A is only incarcerated for 20 years is that justice? Basically what type of punishment represents justice when one person blatantly takes the life of another?
Some would argue that keeping Person A in jail for the rest of his/her life is a miscarriage of justice because ending Person A’s life on de facto grounds does not serve the public interest or the interest of justice, it simply steals an additional life ruining two lives instead of one. However, the counterargument is that Person A can still have productive and positive experiences despite being in jail, something that Person B can no longer have at all.
It could be argued that the deterministic aspect of “without parole” is the problem for individuals who are sentenced to life with the possibility of parole are not guaranteed to acquire parole. Therefore, the elimination of this mandate would allow experts and individuals with intimate knowledge of specific prisoners to judge whether or not an individual remained a threat to society and if justice had been done. Individuals who favor judicial discretion in general would agree with this position for they are from similar molds.
Of course the counter-position is that there are a number of individuals who have received parole after committing violent crimes, i.e. been judged no longer a threat to society, and soon after their release committed similar or worse crimes resulting in their re-arrest and incarceration. Therefore, the issue of simply revoking the very idea of life without parole encompasses the idea of certainty. Should a population of prisoners who have “turned their lives around” be denied the possibility of parole to prevent another population of prisoners from manipulating such a system to acquire release and the ability to continue their criminal enterprise?
Another factor for consideration is how influential is the threat of a lwop sentence in “convincing” an individual to take a plea bargain, thus saving the state or Federal government money, time and other resources in not having to prosecute a murder case, which are frequently significant. If this influence is meaningful, then the loss of lwop sentences could result in a greater probability of delayed or even lost justice for the court system would have to deal with a greater influx of cases creating a backlog.
One of the more widely known important elements to supporting the elimination of “without parole” conditions on sentences is the belief that the prison system can produce sufficient rehabilitation potential. While existing track records are mixed in this regard, evidence does exist that prisons produce a means for individuals to “get it” and turn their lives around. Unfortunately for supporters of the various positions surrounding the elimination/reduction of sentences there is another important element in this process, which while receives lip service now and again, does not receive any significant level of public or political support: how to reincorporate criminals, especially those who have been incarcerated for a long period of time, back into the economic fabric of society?
This question is especially troublesome now for while it has almost always been difficult for criminals to re-acclimate themselves into society on some level, as society currently stands there are a number of individuals without criminal records have not been effectively incorporated into the economic framework who will be competing with these newly released criminals. Without the ability to incorporate newly released criminals, especially those serving long sentences for violent crimes, the probability of recidivism is high, regardless of age and emotional/mental maturity. Sadly this is a question that proponents of eliminating lwop sentences largely ignore kicking the proverbial can to the general “prison reform” crowd. This behavior is questionable because how can one in good conscious seek to eliminate “without parole” sentences whether for juveniles only or entirely without addressing this important question of economic incorporation? Some may argue that it is not fair to leave an individual in jail while this issue is addressed, but is it fair to society to release people that cannot be properly reintegrated?
The final major question regarding the elimination of “without parole” sentences is how to address the psychological impact of prison influencing an individual’s ability to live in general society? There is reason to believe that a number of inmates suffer from a form of institutionalization after a sufficient period of time in prison, which will negatively impact their ability to reintegrate themselves successfully back into society.
One particular change in psychology that could be significantly harmful to reintegration is the increased level of apathy, passivity, and isolation commonly seen from institutionalism.1 One of the more stereotypically, yet still true “rules” of prison life is stay invisible unless you are struggling for power; doing so means keeping your head down and your mouth shut. Unfortunately society has moved to a point where it almost exclusively prefers people be loud and expressive; in fact it appears, at least in the manner of public notoriety, that the motor-mouth arrogant frequently incorrect braggart is preferred over the stoic well-meaning fact-giver. Basically what is expected for “success” in prison life versus what is expected for “success” in “normal” life is largely contradictory. So how is this situation resolved? One could require inmates released after large incarceration periods psychological assistance from trained professionals, but who pays for this service?
Overall there are some important issues regarding the elimination of “without parole” qualifiers on sentences that go beyond simple age. The most noteworthy and important ones relate to the nature of justice, both in punishment and how such a change would influence courts, how long-term prisoners can be incorporated economically into a society that is leaving behind non-prisoners at ever increasing rates and how the potential psychological changes born from institutionalization influence reintegration? Until satisfactory answers can be produced for at least these three questions, notwithstanding other smaller more specific questions, the idea of eliminating “without parole” qualifiers in criminal sentencing seems inappropriate; remember individuals serving these sentences are not akin to those jailed for punching a guy in a bar for hitting on “his girl” or dealing small quantities of marijuana without a license in a state where it is legal by state law, but instead were convicted for very serious crimes that almost always involved the loss of at least one other life.
1. Johnson, M, and Rhodes, R. “Institutionalization: a theory of human behavior and the social environment.” Advances in Social Work. 2007. 8(1). 219-236.
It has been said, ““precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” [Weems v. United States]. However, punishment for a crime is not exclusive to the domain of incarceration. For most criminals there is the social stigma of being a criminal, which significantly limits their economic, political and societal power and influence. In the case of individuals convicted of sexual based offenses this stigma is typically enhanced. While nothing can be done about the subjective stigmas assigned to criminals by other individuals regardless of the type of offense, when one looks at the administrative burdens applied to individuals convicted of sex offenses versus other types of crimes, including murder, one wonders whether or not such exclusive and additional punishment is a violation of the Eighth Amendment of the Constitution.
After the period of incarceration for a sex offender has concluded the typical administrative burdens applied to that individual encompass restrictions on residency based on the surrounding area most notably they cannot reside within some fixed specified distance from common areas where children congregate like schools, daycare centers, parks, bus stops, etc; in some situations if such an area is constructed after the individual has established residency in a particular location the individual will be forced to move (some states have grandfather clauses that do not require a move some do not). In addition sex offenders must check in with local law enforcement when moving to a new address, changing employment, changing their legal name, etc., and depending on the state have to reaffirm these notifications after a certain period of time. Finally their names are listed on a public database for a period of time that may not be commensurate with their current relationship with their local environment. Basically their name could be on this list 8 years after the incident that resulted in their conviction and after moving to an entirely new community in which these individuals have lived without incident.
To understand these administrative requirements one must attempt to understand their philosophical origins. Most sexually based crimes illicit a guttural and emotional reaction typically leading to a characterization of repugnance, that strangely enough at times, exceed the disgust one feels towards murder or other higher level crimes. The original intent of the sex offender registration list appears born from at best a psychological compromise to provide a level of deterrence from recidivism by limiting the available opportunities that could lead the individual to repeat such criminal action or at worst as an additional punitive measure because it was not legally viable to incarcerate such an individual for a period of time typically demanded/anticipated by the public in reaction to the crime.
Unfortunately this compromise has evolved into a “one size fits all” punishment moving beyond the once applied standard judicial review and discretion. It tends to no longer take the nature of the sexual offense into consideration beyond broad “milestones”. For example all would agree that there is a significant difference between a 19 year-old male having sex with a consenting 16 year-old female and a 29 year-old male raping a 16 year-old female via a drugged beverage. While these differences are certainly reflected in the incarceration portion of the punishment they typically are not reflected in the administrative/societal portion of the punishment.
Basically while both individuals from the above example are technically sex offenders, the fact is that in most situations there is a tiered structure that is so broad in its administrative penalties that the level of judicial discretion is non-existent. In a sense the application of administrative punishment can be viewed as generally lazy, disinterested in determining the actual threat posed by the individual to the community instead labeling all as viable and credible threats.
There are two pertinent court cases pertaining to the issue of sex offense and the Eighth Amendment. First, in Graham vs. Florida the United States Supreme Court adopted the position that non-capital sentences for minors, adding to capital sentences held in Roper vs. Simmons, could be found unconstitutional under a proportionality review. This proportionality review can fall within two general classifications: 1) challenges to the length of a sentence dependent on the circumstances surround the case in question; 2) cases in which the Court implements the proportionality standard by certain categorical restrictions. The important element to Graham vs. Florida with regards to the above topic is that it set the precedence that categorical Eighth Amendment proportionality reviews could be applied to non-capital offenses, moving beyond the idea of “death is different”.1
Second, in Ohio v. Blankenship the defendant claimed that his classification as a Tier II sex offender pertaining to the crime of having a sexual relationship as a 21 year-old with a consenting 15 year-old with full knowledge of her age resulting in a conviction of a single count unlawful sexual conduct was cruel and unusual punishment. This claim was based on the administrative penalties associated with that classification (largely associated with having to register as a sex offender for 25 years) in contrast to the threat he provided as a possible future repeat offender.
The Ohio Court of Appeals ruled against Blankenship determining that existing legal remedies were not available because he was an adult when he committed the crime versus being a juvenile, thus a previous ruling (related to C.P., 131 concerning juveniles) was not applicable and that he was in fact a sex offender, thus the current legal structure in Ohio was applicable. Blankenship appealed to the Ohio Supreme Court, which held arguments in early March 2015; as of this posting it appears that no ruling has been made regarding this case, but a number of individuals believe that the ruling could go either way. So currently while it is legally and theoretically possible to find the administrative penalties associated with conviction as a sex offender unlawful via the 8th Amendment, no court has current done so.
Some could argue that there is an important distinction in statutory rape cases between an individual who has accurate knowledge of the age of his/her sexual partner versus having inaccurate knowledge through deception or misinformation. On this issue the point of willing culpability is irrelevant. For example there is no meaningful difference between a 19 year-old having sex with a 15 year-old where both parties are fully aware of the age of the other versus a 19 year-old having sex with a 15 year-old who has lied to the 19 year-old claiming an age of consent (18 year-old).
Such consideration would be akin to facilitating punishment based on whether or not an individual was aware that he/she was speeding. Whether or not the individual knows he/she is speeding is irrelevant to the fact that the individuals was speeding and violating that particular law. Furthermore the issue is not whether or not an individual who commits statutory rape or a similar low level sex-based crime is a sex offender. By law the individual is a sex offender, the issue is the assigning the appropriate punishment for the committed crime in all aspects, i.e. is it appropriate that an individual convicted of sexting receives the same administrative punishment as an individual convicted of rape?
An interesting point of fact pertaining to the validity of the administrative penalties associated with non-violent sex offenders is that the general recidivism rate for sex offenders has been demonstrated numerous times to be lower than any other crime except murder.2-3 An interesting point of contention could be made regarding this data between parties that agree with board mandatory classifications and parties that disagree.
Proponents of the administrative penalties could argue that this lack of recidivism is due to the harsh administrative restrictions placed on sex offenders heavily reducing the temptations and opportunities for recidivism. Opponents of these penalties could counter-argue that this lack of recidivism is because most sex offenders are not sexual predators, but simply do something stupid early in their lives that get them labeled and convicted as a sex offender through some basic non-violent sex-related crime like sexting a consenting individual or statutory rape with a consenting partner. While the truth is unknown, opponents are more likely correct than proponents because the data encompasses a time frame for some of these analyses where the harsher administrative penalties were not entirely applicable.
An important element to whether or not the 8th Amendment can be applied on this particular issue, especially with regards to the sex offender registry is whether the registration is viewed as punitive or civil; a characterization as punitive should increase the probability of relevance in applying the 8th Amendment versus a civil characterization. In most cases it is difficult to argue that the registry is not punitive in nature with the administrative hurdles that are assigned to those on the list, especially concerning the living restrictions. It stands to reason that if the only demand of the list was public access and an accurate name and address then it would be more civil in nature; however that is currently not the case.
Based on existing information it is difficult to argue that the sex offender registry serves an important role in protecting society from a large number of individuals convicted of sex offenses because those individuals are not a threat to society. Furthermore the additional elements of societal stigma and restrictions of freedom produced through association with the list could constitute a disproportional punitive response to the crime, especially when that association is not subject to judicial review, but mandated by a state or the Federal government. For example it could be argued successfully that for a vast majority of individuals who are convicted for the first time on a single count of a non-violent sexual-based crime, registration as a sex offender is not appropriate, therefore could be appropriately challenged as a violation of the 8th Amendment.
An interesting side note is that defining mandatory registration as a sex offender as a violation of the 8th Amendment may be necessary to properly apply justice even if it not legally appropriate. In short associating this scale of punishment to the 8th Amendment may be the only way to give politicians the political cover they need to continue to publicly assert their “tough stance” against sex offenders of all shapes and sizes, but also have appropriate punitive punishment based on the type of sexual offense. Basically while applying an analytical system of judgment regarding the threat potential of a sexual offender to “relapse” is logical and compliant with justice, forcing such a system on states through association with the 8th Amendment may be necessary due to political concerns.
However, while the courts have almost always been at the forefront for social change, would it be appropriate to make this association even if it were not valid? What type of slippery slope would that produce? On an even larger scale what can be done in a democracy when the majority is not interested in changing its opinion regardless of any arguments counter to their opinion? Overall when thinking from a non-emotional logical perspective mandatory registration for most single count sex offenders appears inappropriate, not surprisingly producing a path to properly appreciate that viewpoint legally is the more difficult problem.
1. Shepard, R. “Does the punishment fit the crime? Applying eighth amendment proportionality analysis to Georgia’s sex offender registration statute and residency and employment restrictions for juvenile offenders”. Georgia State University Law Review. 2011. 28(2) Article 7. 529-557.
2. BOJ Recidivism of Sex Offenders Released from Prison in 1994, November 2003 http://bjs.ojp.usdoj.gov/content/pub/pdf/rsorp94.pdf
3. U.S. Department of Justice Criminal Offenders Statistics: Recidivism, statistical information from the late 1990s and very early 2000s.