Wednesday, August 19, 2009

Juvenile Life Sentences and the Image of a Child

In my FindLaw column today, I write about the upcoming companion cases of Graham v. Florida and Sullivan v. Florida, which challenge the constitutionality of sentencing juvenile offenders to life imprisonment without the possibility of parole. In my column, I suggest that the case against such punishments, taken in isolation, is weak, although the broader argument against long prison sentences (for adults and juveniles alike) is far stronger.

I want here to explore the special feelings that juvenile imprisonment inspires. When we speak of sentencing a minor to life imprisonment, I think that part of what we find upsetting is the picture of a child in prison. To state it differently, when we see a picture of a 14-year-old and learn that he or she has been sentenced to life without parole, we feel a sense of sadness and empathy for the 14-year-old rather than for the adult that he or she will soon be. This poses a problem for advocates of abolishing life without parole for juveniles.

The problem with this sort of empathy is that youth passes. Interestingly, this fact forms the basis for some of the arguments against juvenile incarceration for life (including the capacity of young people to become very different sorts of adults). But it also means that the appeal of a youthful face is fleeting. Before long, the person serving the life-term is an adult with an adult face who looks very much like the other people in prison and accordingly less sympathetic.

Why does this matter? The arguments in the briefs do not rest at all on the fact that if we look at a minor's face, we likely feel some sense of loss in allowing the government to deprive that person of everything. Yet the emotional power of protecting children against an overbearing criminal justice system diminishes quickly in a way that it did not in the case of executing minors.

When opponents of the death penalty for minors argued their case, it was easy to feel a sense of outrage at the prospect of having the state kill a minor (an event that could, in theory, happen before the minor even reached adulthood). Life imprisonment, by contrast, is a sentence that is lived over time, and most of that time -- even if it begins at age 14, 15, or 16 -- will pass during the youth's adulthood.

This contrast in emotional resonance may, I think, make it more difficult to win this case, quite apart from the merits (which I discuss in my column). Though children can be attractive petitioners, their attraction -- and perhaps also, their pull on people's emotion, passes quickly into adulthood. And then, they have become adults whose violence began even earlier than the others'.

Posted by Sherry Colb