My son is visiting Kauai from Cambodia where he works for the United Nations as a lawyer investigating former Khmer Rouge officials for the Extraordinary Chambers in the Courts of Cambodia. Whenever we visit, lively discussions of proportionality of punishment occur. The men and women he prosecutes are accused of thousands of murders, amounting to war crimes and genocide.
Though such criminals often receive many years in prison, many people believe they do not receive adequate punishment. During conversations with my son, juvenile justice policies in the United States often come up, as well as the changing global and domestic attitudes toward juvenile punishment, rehabilitation and reform.
Fortunately, the U.S. is waking from a fairly bleak period in its treatment of juvenile offenders. In 1996, Congress passed the Violent Predator Act of 1996 that stated as its number one finding, “Today, no population poses a larger threat to public safety than young adult criminals.”
Though most U.S. states consider 18 as the age when a child legally becomes an adult, the fear of the “child predator” resulted in states charging children as young as 14 as adults and sentencing them to life without parole.
For murder, states already had the right to charge minors aged 17 as adults and sentence them to the death penalty. In 2004, Texas had 29 of the 71 juvenile death row inmates held in the U.S. In 2002, Texas performed its last execution of a juvenile.
Then, in 2005, the U.S. Supreme Court ruled that juveniles cannot be sentenced to death. This left a sentence of life without parole as the harshest juvenile sentence. In 2012, the Supreme Court banned imposing life without parole on juveniles not convicted of homicide and found that mandatory life without parole sentences for juveniles violated the Eighth Amendment of the U.S. Constitution.
Last year, the Supreme Court ruled that this should be “applied retroactively nationwide and that juveniles sentenced to mandatory life without parole were entitled to resentencing,” and that considerations of “negative influences and outside pressures coming from peers, family members and the environment” could be weighed into the sentence.
The language of these rulings speaks easily to all of us, as they rely on “‘the evolving standards of decency that mark the progress of a maturing society’ to determine which punishments are so disproportionate as to be ‘cruel and unusual’.”
In other words, a grown up society adopts the standards of decency to prohibit unfair, cruel and unusual punishment even against its worst offenders. As Justice Kennedy wrote, “The concept of proportionality is central to the Eighth Amendment.” Thus, the harshest punishment was limited to the most serious crime: murder.
The Court emphasized that “adolescence is marked by transient rashness, proclivity for risk and inability to assess consequences,” finding that children “are constitutionally different from adults for sentencing purposes — their “‘lack of maturity’” and “‘underdeveloped sense of responsibility’” lead to recklessness, impulsivity, and heedless risk-taking.’”
As Teen Court Manager, I often receive referrals of children’s cases that appear not to have followed these guiding principles from our highest court on the treatment of juveniles. Why does a child get arrested and expelled for one year when he or she comes to school depressed, carrying a knife in her backpack to later use on herself, thinks better of it and turns the knife into the school office?
Chapter 19 of Hawaii’s school discipline regulations provides that anyone bringing a weapon to school shall be expelled for one year. An aggressive child brandishing a weapon to harm others is clearly different from a depressed child considering suicide and should be treated differently.
Surely our educators would admit to that. If a middle-school student who brings a water bottle filled with an inch of beer invites his bro’ into the bathroom and the boys sip from the bottle and throw it away “cause tastes like garbage” they are suspended from school for 92 days.
Then there’s the bully who finally elicits a response from a victim he’s been picking on for months and walks away while the child that defended himself gets suspended for 10 days.
Issues of proportionality are often ignored. Punishment for a crime in school often seeks a one-size-fits-all solution, rather than a graduated and proportioned approach to both the offender and the offended. We must ask, “Does the time fit the crime?”
At least twenty-seven states, including Hawaii have revised their laws to reduce the use of exclusionary discipline. Improving school climate by offering counseling, holding family conferences, offering conflict resolution training for students and teachers and implementing restorative justice practices has shown to improve behavior and learning.
It’s important to remember that “a child who has been suspended is more likely than his peers to fall behind in school, drop out of school and be incarcerated as an adult.”
We should also remember that not only the student is affected by suspensions and expulsions. Lengthy suspensions imposed by school administrators often result in serious personal, professional and financial disruption to the student’s family.
What are the benefits of stigmatizing children and punishing their families? Surely we need better solutions.
Hale `Opio Kaua’i convened a support group of adults in our Kaua’i community to “step into the corner” for our teens, to answer questions and give support to youth and their families on a wide variety of issues. Please email your questions or concerns facing our youth and families today to Esther Solomon at firstname.lastname@example.org For more information about Hale ‘Opio Kaua’i, please go to www.haleopio.org