Week 6, Entry 3: Children doing life...

Should something that someone as young as 10 years old does be held against them for the rest of their lives? Should minors convicted of murder be kept in prison forever, with no possibility of their redemption and return to society? How about those convicted of rape or other violent crimes that are not homicides? As frightening as it may seem, many states have answered all of these questions with a resounding yes. Driven mostly by politicians with a political agenda, they have failed to recognize that as minors mature, they are more likely to change and be rehabilitated if given the opportunity. Incarceration for life without the possibility of parole denies these youngsters any ability to redeem themselves.

Fortunately, the Supreme Court ruled in May 2010 that life sentences for crimes other than murder are unconstitutional. This will invalidate laws in 37 states which allow life imprisonment for juveniles in non-homicide cases. It also recognizes the fact that life imprisonment could constitute cruel and unusual punishment when applied to those who haven’t really even begun in life. This decision will allow at least 109 juveniles throughout the country, including at least 77 in Florida alone to be eligible for release at some point.



As great as this decision is, what about kids that commit murder? Those who commit murder may still be imprisoned for life without the possibility of parole. The Supreme Court did not rule that murder sentences of life for juveniles were unconstitutional. Fortunately, some states and the federal government are beginning to reconsider condemning minors to life in prison and are allowing release to be an option at some point (although in many cases these minors will be middle aged or older before they could even be considered for release). I believe that this balances the obligation of the government to protect society from dangerous criminals, while allowing for redemption for a crime committed as a youth. While murder is the most serious crime one can commit, given that children are highly impressionable and their minds are not fully developed should be a mitigating factor.



The real problem that remains is that whether one is charged as an adult for a crime committed as a juvenile or whether one serves life in prison for a murder committed as a juvenile really depends on the state where the crime occurred. This can result in a wide disparity in sentencing for the same crimes-just as occurs in many adult criminal cases. Perhaps the only solution to this problem would be either a Federal Law or a Constitutional Amendment which defines the age at which juveniles can be tried as adults. That’s unlikely to happen, but it may be the only way to ensure justice for juveniles.

Week 6, Entry 2: Legally an adult?

When should a child be considered an adult? What does the law say? The first question can be debated to some degree and the second is unclear to say the least. At age 16, one can legally drive a car. At age 18, one can sign legally binding contracts, join the armed forces and vote. At age 21, one can legally drink alcohol. So, how can a 14 or 15 year old be tried as an adult when he/she is not considered under the law to be competent to do any of these things? And how can a 16 or 17 year old be tried as an adult when they’re still not considered to be competent to enter into a legally binding contract?

Many of the laws which prescribe a minimum age for responsibilities such as driving, voting and entering into contracts have a basis rooted in biology. Children are immature and their brains are still developing. In fact, it is believed that the human brain may not be fully developed until approximately age 25. Minors, having brains which are not fully developed-are considered to be incapable of making adult decisions and taking on adult responsibilities.

So, given that the law considers minors incapable of having a credit card or voting, how can they be held to an adult standard for crime? The juvenile justice system is based upon the fact that minors are generally not capable of making adult decisions and must be held to a lesser standard. This is why minors prosecuted in the juvenile courts are not entitled to a jury trial and generally are not imprisoned past their 18th birthday. It’s also why juvenile records are sealed. However, because of the lesser consequences available in the juvenile justice system, politicians have decided to pass laws to enable transfer of juveniles to the adult justice system at younger ages for certain crimes.

While a legitimate interest might be argued for the longer sentences for juveniles convicted of violent crimes (as I mentioned in my last post) it really does create a double standard, and it has raised some constitutional issues. Tomorrow I’ll discuss juveniles being given life sentences and the promising ruling in favor of justice handed down by the Supreme Court this year. Hopefully this trend will continue and the ability of politicians to deny justice for political gain will continue to erode.

Week 6, Entry 1: Trying juveniles as adults-The right thing to do?

While juveniles can commit many of the same crimes as adults, should they be tried as adults? If so, at what age should they be tried as adults and for what crimes? These questions are questions that states have been struggling with for quite some time. Unfortunately, as with many other issues related to justice, prejudices and politics come into play and unjust laws result.

In 2006, an estimated 200,000 juveniles ended up in the adult justice system in the United States. That number is a 200 percent increase over the numbers a decade earlier, and the increase is a direct result of laws passed in various states with the ever popular, but ambiguous stance of being “tough on crime.” While it may be logical to sentence the most dangerous juvenile criminals (such as those who commit murder) by adult standards, the 200,000 in the system were not all murderers or dangerous criminals. In fact, many states permit the trial of children as young as 10 years old as adults.

These laws have resulted in children as young as 14 or 15 being given adult sentences and being jailed along with hardened criminals. There is no evidence that these laws have reduced crime and there is some evidence that such standards create career criminals out of youths who might have been rehabilitated. Some states have recognized this have reconsidered or are reconsidering these laws. Even the Justice Department questions the effectiveness of such laws. In the coming posts this week, I’ll expand on this topic a bit and discuss life sentences for juveniles and how the law defines an adult. This is an area of our justice system that too often gets overlooked, but plays an important role in our future.

Week 5, Entry 3: The War on Drugs-a losing battle?

With the spreading use of medical marijuana and incidents of drug trafficking from Mexico making the news, most Americans are aware of the War on Drugs-and its lack of effectiveness. But many may not really know WHY it isn’t effective, and how it may inadvertently contribute to the disproportionate numbers of racial minorities in the prison system. This “war” has been going on for 37 years, since President Nixon created the Drug Enforcement Agency (DEA) in 1973. Since then many laws have been passed and many arrests made, but drug use and dealing is still rampant.

As long as profits can be made from dealing in illegal drugs, it will be impossible to stop it entirely and no reasonable person would expect the government to be able to stop drug use. However, considering the considerable amount of time and money the government has spent, one would expect drug use to at least to have declined. Unfortunately, according to the government’s own data that hasn’t happened-in fact the percentage of Americans of all ages who have ever used illicit drugs has increased by 10 percent between 1979 and 2001. Yet, we spend billions every year prosecuting this “war” which disproportionately impacts the poor and minorities.

It is known that those who are lacking in opportunities, such as minorities in poor urban areas are more prone to be drawn into criminal activity. Crack cocaine has devastated many such areas, including Washington DC. Many have been drawn into the use of and dealing in this deadly drug and have been sentenced to lengthy prison sentences for doing so. However, little has been done to cut off the supply of this drug and prosecute the source of the drug-the kingpins. Rather, most of those in prison are small time dealers and users-who might be better served by rehabilitation than incarceration. But because crimes involving crack often carry harsher penalties than other drugs, minorities are disproportionately affected by the prosecution of this “war.”

Some believe the answer to the drug problem is to make all drugs legal and have the government regulate them, but I don’t believe that this is the answer. Rather, if we truly want to achieve results, we must allocate resources and realign the laws to rehabilitate small time dealers and users of illicit drugs. Perhaps some drugs, such as marijuana could be made legal and regulated, but for those drugs that are illegal the penalties should be consistent. Making drug offenses related to certain illegal drugs more severe than others only invites injustice and usually it’s minorities that get the short end of the stick. There’s no doubt that the billions spent every year on the war on drugs in this country could be better spent and justice could be better served. If we fail to overhaul this “war” we can only expect the injustices related to it to increase.

Week 5, Entry 2: Minorities commit the majority of crimes?

Minorities commit the majority of crimes. Therefore they are the majority in jail/prison. This is essentially the argument of some when asked to explain the very disproportionate number of minorities incarcerated in the United States. Not only does such thinking indicative of racism, it indicates a real intellectual laziness. Such simple explanations will only satisfy the stupid and the bigoted, such as white supremacists. For the rest of us, it is apparent that there are issues that must be confronted if we truly seek justice in our justice system.

As I’ve discussed in previous posts, justice often goes to those who pay. Those who cannot afford an attorney and must rely on public defenders or court-appointed attorneys often receive harsher punishments. They are also more likely to plea bargain, sometimes even entering guilty pleas for crimes that they didn’t commit. Because black and Hispanic minorities have overall lower educational attainment and higher rates of poverty, they account for a large percentage of those receiving less than the best possible defense when accused of a crime.

While there is little doubt that increasing educational attainment would decrease the poverty rate to some extent, there has been and continues to be racism within the justice system. While the Civil Rights movement and The Civil Rights Act of 1964 made progress towards racial equality, there is still much work to be done. Racial profiling still exists, and the disparities in sentencing and the death penalty prove that justice is not truly blind. It is clear that the solution to these problems will have to be multi-faceted. We must confront racism in our society effectively, find ways to increase education among minorities and alleviate poverty if we really want justice to be blind.

While defeating racism, reducing poverty and getting people to increase their educational attainment are lofty goals, even some progress on these fronts could have a positive impact. We must also change the way the War on Drugs is prosecuted in this country, which I’ll discuss in tomorrow’s post. While I doubt we’ll ever live in a colorblind society, we should not rest until at the very minimum our criminal justice system is one in which all Americans are equal under the law.

Week 5, Entry 1: Race and the Criminal Justice System

Many of you have probably heard about the decision of the Justice Department not to prosecute members of the Black Panther Party who were accused of voter intimidation. For those of you who may not be aware, members of the Black Panther Party were accused of hurling racial slurs and one member was brandishing a nightstick outside of a polling location during the 2008 elections. The case was prosecuted and the government won a default judgment against those accused when they failed to show up for the court date. The Justice Department has since dismissed the charges after one member agreed not to carry a deadly weapon near a polling place until 2012. As a result of this decision, an attorney at the Justice Department has resigned in protest, accusing the Justice Department of racial bias by not prosecuting non-whites in voting intimidation cases.





If this accusation is substantiated, it would represent a definite departure from the overall trend in the justice system. As of 2009, the majority of inmates at local jails throughout the country were members of racial minorities. At least 55.4 percent were either black or hispanic, with 39.2 percent black and 16.2 percent hispanic. Blacks were incarcerated in the prison system in 2009 at a rate 6 times higher than the white non-hispanic population. The links provided with these statistics provide much more detailed information and I won’t bore you all with the details, but it definitely indicates a problem. If blacks only account for 12.8 percent of the population, how can they be 39.2 percent of the jail population and 35.4 percent of the prison population?

While there may be many explanations for racial disparities in the prison population, there is little doubt that prosecutors declining to prosecute non-whites (as the former Justice Department attorney alleges in the Black Panther case) is not a problem we’ve had in this country. In fact, the demographic data indicates a possible zeal on the part of prosecutors for the prosecution of racial minorities. Pair that with high poverty rates and lower educational achievement by some racial minorities and you have a recipe for injustice. In the next few posts, I’ll explore some of the issues which explain these disparities and ways in which we can ensure that all Americans are treated equally under the law, without regard to the color of their skin.

Week 4, Entry 3: Hate Crimes Laws-Delivering Justice or Division?

“All animals are equal, but some are more equal than others.” –George Orwell, Animal Farm.


‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” -The Fourteenth Amendment to the Constitution of the United States, Section 1.

Most of us are aware of the existence of Hate Crimes Laws. These exist at the federal level and many states also have these laws, and they provide enhanced penalties for those convicted of a violent crime where bias towards a protected class was a factor. Proponents of these laws say that they are necessary in order to ensure justice. Opponents say that they create “special protections” for protected classes and violate the 14th Amendment right to equal protection of the law.

In October, 2009 President Obama signed into law an enhanced federal hate crimes bill that adds sexual orientation and gender identity to the list of protected classes. This added fuel to the fire with many who oppose hate crime laws. Some opponents, mainly religious conservatives argue that these laws violate their 1st amendment right to free speech. They fear being prosecuted for “hate speech” if they were to espouse any personal or religious belief that is not supportive of those protected under hate crimes laws. However, those arguments lack real merit because the laws, as they are currently written do not deal with speech-rather they pertain to violent crimes for the most part. There is no such thing as “hate speech” in federal or state law as it currently exists. If there were, organizations such as the Aryan Nation, the KKK and the Nation of Islam would not be allowed to exist in this country.

Many racial minorities, homosexuals, transgender people and religious minorities have been assaulted and even murdered because of who they are-there is no denying that. It’s also an established fact that the perpetrators of these crimes have either not been prosecuted at all or given light sentences, especially in the Jim Crow South of the 1960s and before. The desire for laws which ensure justice is served is understandable. However, is the solution to disparities the creation of laws which mandate disparities in another direction? Hate crimes laws can result in much stiffer penalties that those in which hate crimes laws do not apply. This results in certain Americans being afforded more protection under the law than others and it is quite rational to conclude that this violates the equal protection clause of the 14th amendment. The U.S. Supreme Court has upheld the stiffer penalties given under hate crimes laws in 1993, but it will be interesting to see if that issue gets revisited in a future ruling.

In conclusion, we as Americans have the right to equal protection under the law. Creating stiffer penalties for crimes against protected classes creates unequal protection and is not the solution. Though I am personally opposed to mandatory sentencing guidelines as a general rule, perhaps the solution to the problem of violence against minorities is to enact mandatory minimum sentences for violent crimes. The injury, maiming or murder of any person is no less or more significant because of one’s race, color, sexual orientation or handicap. Our laws should reflect this and ensure that all violent crime is prosecuted properly. As a society of laws that aims for equality and fairness and that values life, we can do better than simply tipping the scales of justice in the opposite direction and hoping for the best, which is what Hate Crimes Laws do now. We can do better. We must do better.