Unilaterally Punitive


The following essay received an Achievement Award in the PEN 2009 Prison Writing Contest. Mr. Dole has allowed us to share his work.

The United States is unique in the world for its overzealous love affair with life without parole sentences (LWOP). It is one of the few western countries to have LWOP sentences and the only country in North America to have them. Even the other western countries that do have LWOP sentences reserve them for only the most extreme circumstances (e.g. acts of treason or serial murder). In contrast the U.S. uses this sentence prolifically, currently having almost 35,000 people serving LWOP. More embarrassing is the fact that we are the lone, adamant, upholders of the right to sentence juveniles to die in prison, which the rest of the world views as barbaric.

There is a near universal consensus in the international community that it is immoral and reprehensible to execute or incarcerate a juvenile for life without parole. The U.S. Supreme Court acknowledging these views finally abolished the death penalty for those under 18. Unfortunately we are still one of the last holdouts who currently have juveniles sentenced to die in prison by way of LWOP. According to a study by Human Rights Watch and Amnesty International in October 2005, only 4 countries have juveniles serving LWOP: Tanzania has one, South Africa has four, Israel has seven, and the U. S. (the “land of the free”) has over 2,200. Even this number is deceiving though as it fails to take into account the thousands more who have sentences so long that they constitute LWOP (e.g. 100 years at 100 percent).

There are numerous calls to abolish LWOP sentences for juveniles worldwide. The U.S. stands unabashed against them all. In 1989 there was the United Nation's Convention on the Rights of the Child. Article 37(a) of this Convention provides, “Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offenses committed by persons below eighteen years of age,” and Article 37(b) states, “detention or imprisonment must be used as a last resort and for the shortest appropriate period.” Throughout history no other human rights treaty has been ratified by so many so quickly. To date 191 out of 193 countries have ratified it. The U.S. and that other stalwart protector of human rights, Somalia, are the only two to refuse to do so. In 1992 the United States became a party to the International Covenant on Civil and Political Rights. This prohibits LWOP sentences for juveniles. More recently the United States was the lone opposition (176-1) against a resolution in the U.N. General Assembly calling to “abolish by law, as soon as possible, the death penalty and life imprisonment without possibility for release for those under the age of 18 years at the time of the commission of offense.”

In a 185 to 1 vote (again U.S. v. World) in December of 2006 the U.N. again took up a resolution calling to abolish LWOP for juveniles. The U.S. State Department's defense of this position was that it's mostly a matter of state law and that the juveniles, some as young as 13, were “hardened criminals who had committed gravely serious crimes.” Regardless of the fact that brain research has shown that a person's brain doesn't fully mature until the mid-twenties, how hardened of a criminal can a 13 year-old be? What was he doing, sticking his mother up for breast milk as a baby? Maybe robbing the cookie jar as a toddler? The ignorance of the State Department is astounding when you consider that close to 60% of these juveniles serving LWOP have no prior convictions.

Approximately 10 percent of the 73 kids age 13 or 14 who were sentenced to die in prison were sentenced for crimes where no one even died. In one instance no one was even injured. More than a quarter of juvenile lifers were not the actual perpetrators of the crimes, but were rather found guilty by way of accountability or felony murder statutes, in the classic “getaway driver is just as guilty” reasoning.

Rather than seeing a decline in the use of LWOP sentences we've seen an expansion. LWOP sentences are more prevalent overall and those for juvenile offenders are now used three times more often than 15 years ago.

Part of this love affair with LWOP sentences is due to the shortsightedness of the anti-death penalty movement. (The death penalty is another issue the U.S. stands steadfast in support of). In their rationalization of the lack of need for a death penalty, they push LWOP as the “perfect alternative.” A couple of decades ago only a handful of states had LWOP sentences. Now almost all of them do. As has been shown time and again, our criminal justice system is broken and more than 100 people have been put on death row for crimes they were later found to be innocent of. In Illinois more people were exonerated from death row than executed when former Governor Ryan finally had enough and called a moratorium. People sentenced to LWOP (there are over 1,400 in Illinois alone) went through this same broken system, but without the added safeguards afforded to people sentenced with the death penalty. Thus it is much more difficult for a lifer who was wrongly convicted to get his conviction overturned; ergo many more innocent people are almost definitely serving LWOP sentences than were sentenced to be executed. Especially when considering there are many more people sentenced to LWOP than to death each year.

The courts have amazingly decided that sentencing a juvenile to LWOP does not violate the 8th Amendment right against cruel and unusual punishment. The hypocrisy of many LWOP sentencing schemes and court rulings is glaring. Take Illinois as an example again: Article 1, Section 11 of the Illinois Constitution specifically states, “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship,” and part (d) of the purposes of the Illinois Code of Corrections is likewise to “restore offenders to useful citizenship.” Nevertheless, in 1978 the Illinois legislature passed a law making all life sentences in Illinois LWOP. Prior to this a life sentence allowed for parole eligibility after 11 years. The Illinois Supreme Court has ruled that a LWOP sentence does not violate the Illinois Constitution due to the “fact” that an offender still has a chance (theoretically at least) to get out of prison by way of clemency from the governor. Unfortunately this is not realistic in today's tough on crime rhetoric, inflamed fear mongering, political world. No governor with political aspirations (which is all of them) will risk granting clemency and being painted as a bleeding heart liberal, soft on crime, or even worse, be blamed for letting someone out who re-offends upon release.

Compared with the rest of the world the United States incarcerates more of its citizens per capita than anyone else, and for much longer than any other industrialized country. An entrance requirement to the European Union is that the death penalty be outlawed in the joining country. Concerning life imprisonment, the Council of Europe in 1995 stated, “A crime prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of reintegration of offenders into society.” Both the European Court of Human Rights as well as the German Constitutional Court have held that a term of life imprisonment must include the possibility of release. Both Brazil and Portugal have banned LWOP sentences. In Spain the maximum sentence one can serve is 40 years. While in Slovenia it's 20 years.

The United States cannot continue to demand compliance with human rights principles and norms abroad while it refuses to apply them here at home. We have an obligation to implement humane principals embraced by the rest of the world for our own people if we are going to admonish other nations about the inhumane practices of dictators, despots, and others (many of whom we all too often support).

In a country where three-fourths of the population describe themselves as Christians, it is astonishing how few seem to believe in forgiveness and redemption, and how many champion punishment and retribution.

In the words of United States Supreme Court Justice Anthony Kennedy, “Our resources are misspent, our punishments too severe, our sentences too long . . . Courts may conclude the legislature is permitted to choose long sentences, but that does not mean long sentences are wise or just . . . [A] people confident in its laws and institutions should not be ashamed of mercy.” Well said, too bad few are listening.

Mr. Dole is serving a life sentence in Tamms Correctional Facility in Illinois.

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