Friday, December 4, 2009

American Children At Risk... from America?

The United States is a terribly dangerous country in which to be a child.

Lack of a proper welfare system or a genuine health care policy means that children or poor rural or inner city parents are frequently trapped in a world of poverty and crime from which there often appears to be no escape. The people who appear to get the most respect in the world in which these kids live are often drug dealers, pimps, and bookies. Crime appears to offer an easy escape from poverty and there are plenty of role models available. Speaking of his life in early 20th Century America, jazz clarinetist Artie Shaw once said:

"Coming from where I did, it was inevitable. I was going to pick up either a machine gun or an instrument. Fortunately for me, I found an instrument."

Though there have been ethnic changes among the youngest victims of urban poverty, the details are much the same now as they were in 1920. Drug Prohibition has neatly taken the place of the Volstead Act. The ethnic make-up of gangs and 'the mob' is no longer the same, but they still appear to be the quickest way to respect and economic freedom. There is one more temptation working against them, one their younger forebears never had to face.

I'm going to knock the media, but I'm not going to condemn violence on tv or the fictional glamorization of crime. These offer their own problems, but they are not new. Children's fiction has been tremendously violent since Cinderella's step-sisters cut off pieces of their feet to make the glass slipper fit. In many ways, kids were exposed to far more fictional violence in the past than they are today.

Rather, the media sends kids (and adults, but it is kids on whom I am focused now) a massive amount of information about how important it is to have money and buy things. What is more, American culture is extremely tolerant of criminal behavior from the wealthy and powerful. Every day corporations engage in activity that would be felonious if committed by an indidivual. The wealthy abuse drugs every bit as much as the poor, but where the poor go to prison the wealthy do not. Star athletes avoid serious prison time for killing other human beings. Political figures engage in corruption and repression of civil liberties and their political opponents are accused of 'vindictiveness' and corrupt motives for wishing to prosecute them for their crimes. Thus we send messages every day that in America, you can get away with anything.

Unfortunately, you can't if you are a kid. The United States processes more children through its criminal justice system (per capita, not just gross) than any other Western nation. Until 2005, the United States was the only country in the Western world to sentence children to death for crimes committed as children. The United States is still the only Western nation to sentence children to life in prisone, without the possibility of parole, for crimes committed as children.

It doesn't help that there are people who want more kids in prison, longer, just so they can make a buck.

Two cases currently before the Supreme Court seek to prevent the government from sending kids to prison for life and making it impossible for them to get out. The first arguments were heard early in November, and there are reasons to believe that both cases will be victories for the defense. Human rights advocates hope that this will lead to a complete ban on such sentences. Congressmen with their own law to ban such sentencing are waiting to see if the Supreme Court does it first, preferring not to pursue a legislative solution unless necessary.

The trouble is the very strong likelihood that, even if both defendants have their sentences overturned, no such declaration will be forthcoming.

The Supreme Court specifically chose to hear both cases separately because of very thinly, but distinctly, separate legal issues raised by each case. Chief Justice John Roberts has suggested that he believes juvenile offenders sentenced so harshly should be able to use their age when the crime was committed as grounds for appeal of sentence in individual cases, but that he does not support a complete ban.

So there is a chance that the Supreme Court will decide that some children can be sentenced to life without the possibility of parole but others shouldn't be, and the best way to answer the question of who should or should not be is after the fact.

The trouble with such individual distinctions in an issue like this one should be pretty clear: in a criminal justice system rife with economic, ethnic, and social inequity we wish to decide which children need to be protected from such a system after the fact. Does anyone else see the grave weakness in this statement?

If childhood and emotional/intellectual maturity are to be criteria for the voiding of even one sentence, it is much safer for the rights of Americans to make certain that those criteria are applied across the board. It may cost 'American taxpayers' more to send an adult offender to prison for life without parole after a life of juvenile crime, but 'American taxpayers' have children too.

Let us suppose that the argument of judicial independence is made: suppose we believe the judge should have discretion to sentence each individual according to the particulars of the individual case. What then?

I happen to believe that, myself, very strongly. I believe judicial discretion is a component part of the criminal justice system, coupled with judicial review. If we truly intend to argue for judicial discretion, however, then arguing against a ban on the sentencing of minors is the wrong argument. Instead we should be arguing against mandatory minimum sentences that force a judge to deliver sentences harsher than he believes appropriate to the case. If we banned mandatory minimums, it would be easier to truly judge each case on its own merits.

In the absence of such a ban, the rights of individual citizens demand equal attention to the maximum sentences handled down and the circumstances of such sentencing. A ban on sentencing children to life in prison without parole is the least we can do in that area.

The very least, at the risk of sounding radical, there is a lot more reform necessary.

No comments: