One of the more controversial trends in the criminal justice system today is the lobbying effort currently underway to abolish life-without-parole for juvenile offenders. Anti-incarceration activists seek to extend the Supreme Court’s ruling in Roper v. Simmons, which prohibited the death penalty in the cases for juveniles.

If they are successful, the “cruel and unusual punishment” analysis used in Roper will be applied to life-without-parole sentences. A panel of legal experts discussed this issue at the Heritage Foundation on August 17, 2009.

Paul Wallace, Chief of Appeals at the Delaware Department of Justice and former prosecutor, said that “there’s no statement in any public policy discussion that can chill that discussion more quickly than when someone, especially a lawyer, says [that something is] unconstitutional.”

Wallace says that advocates are mistaken when they claim that juveniles can never constitutionally be given life without parole, or that the constitution requires that a court take youth into consideration before it can be constitutionally imposed.

“It’s just not true,” he argued.

According to Wallace, historical common law precedent held that “anyone who had the mental ability to be criminally responsible was considered an adult and could be punished as an adult.”

He further explained that the Eighth Amendment’s “cruel and unusual punishment” clause was used to “ensure that there wasn’t torture,” adding that the clause was “meant to talk about the method of punishment. It ensured that the United States did not import into our jurisprudence things like [pillory], drawing and quartering, those types of things.”

The clause was never used to look at the length of a prison sentence until the Supreme Court ruling in the case of Weems v. United States in 1910. Even then, the Court only applied its analysis to decide whether the punishment was “proportionate” to the crime.

“The United States Supreme Court has always said that you don’t even look at the Eighth Amendment, unless in fact the sentence is grossly disproportionate, and grossly disproportionate to the crime,” Wallace said.

“The crimes we are speaking of, overwhelmingly in the juvenile context, are murder, but are also other crimes for which someone may get life imprisonment,” he added, citing rape and kidnapping as examples of those few crimes “where life [imprisonment without parole] is an option.”

Wallace further expressed his concerns that a court would have to set some “arbitrary rules” as to when a juvenile accused of such crimes has to get a parole hearing.

“The Eighth Amendment simply does not require that,” he said.

Charles Stimson, a Senior Legal Fellow for the Center for Legal and Judicial Studies at The Heritage Foundation, says that the effort to abolish life without parole for juveniles has been a “misleading lobbying campaign.”

Stimson pointed to reports, such as one from the Equal Justice Initiative, which portray the typical juvenile who is sentenced to life-without-parole as a young child between six to ten years old.

The reality, Stimson says, is quite different. “I knew as a criminal defense attorney and a prosecutor … [that] no state sentences 8 or 9 year olds … to life without parole for any crime they commit. They go into the juvenile justice system,” he said.

“Every State Supreme Court who has looked at life without the possibility of parole for juvenile killers and violent teens has found it to be constitutional. Every Federal Court who has looked at this broad question … has found it to be constitutional,” he said.

Currently, 43 states and the District of Columbia have authorized life-without-parole for juvenile offenders and violent teens. Activists claim that the United States is in violation of ICCPR and the Convention on the Rights of a Child (CRC), but Stimson notes that “they [activists] fail to mention that we’ve taken exceptions … to the provisions [in the ICCPR] that would hint at long sentences for juveniles.”

Furthermore, the United States has not ratified the Convention on the Rights of a Child. “Not only is it not customary international law, but … we have no obligation whatsoever to violate the will of the [American] people,” Stimson said.

It should be noted that while the text of the CRC does not specifically refer to corporal punishment, the unelected Committee which ratified the Convention regularly instructs U.N. member countries to prohibit by law all forms of corporal punishment of children, including mild spanking..

Daniel Horowitz, a Trial Attorney and Legal Commentator, had a wife, named Pamela Vitale, who was brutally murdered by a juvenile serial killer on October 15, 2005.

“When I came from home, what I found was my wife, lying on the floor, beaten, blood everywhere, sprayed on the walls,” Horowitz recalled, almost choking back tears.

Sixteen-year-old Scott Dyleski was charged and convicted of the crime and is currently serving a life sentence without parole.

“Who are these people, who want to allow someone like him to get released on parole, or at least the possibility of release?” Horowitz asked. “What they are doing is wrong.”

Horowitz described how Dyleski keeps in touch with certain advocates who have created websites for Dyleski proclaiming that Dyleski is innocent. At the hearing that will decide if Dyleksi will be allowed the possibility of parole, many witnesses will be there to vouch for Dyleski, but Horowitz says he will not be attending.

“I’m 54 years old,” Horowitz said. “Having gone through that time period with Pamela, my health is not the same as it was.”

The debate concerning juvenile offenders will center on how the United States can find justice for victims and hold juvenile offenders accountable. As one audience member noted, sometimes “being kind to the cruel is like being cruel to the kind.”

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