A Second Chance at Life

Randi Levine is a Staff Attorney at Advocates for Children of New York and a former Eisendrath Legislative Assistant at the Religious Action Center.  All views expressed are her own.

When Ian arrived at the prison processing center, nobody could find a prison uniform that fit him. Thirteen-year-old Ian was so small that the prison had to cut off six inches from the pants of his uniform. Acting at the direction of two older gang members, Ian had participated in a botched robbery attempt and a nonfatal shooting. He turned himself in to the police, and, on his attorney’s recommendation, pleaded guilty. Despite Ian’s age and an extensive, tragic history of child abuse, the trial court sentenced him to the maximum sentence he could receive for this offense: life imprisonment without the possibility of parole. His attorney never withdrew the plea or requested an appeal. Although the state had decided that children as young as Ian did not have the capacity to drive or vote, the state decided that this child should be held responsible for his actions by never having the chance to reenter society.

I became familiar with Ian’s case through a multidisciplinary colloquium during law school focused on the plight of children sentenced to die in jail. At that time, the option for relief in court was essentially non-existent. As the judge had stated at Ian’s sentencing, “There is no second chance available.”

But there may now be a second chance for Ian and others sentenced to life without the possibility of parole for non-homicide offenses they committed when they were juveniles. On May 17, 2010, the Supreme Court issued its decision in the landmark case of Graham v. Florida, a case involving another juvenile, Terrance Graham, sentenced to life imprisonment with no possibility of parole in Florida. In a decision written by Justice Kennedy, the Supreme Court held that the Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who committed a non-homicide offense.

The case revolves around the meaning of the Eighth Amendment’s ban on “cruel and unusual punishments.” How do we determine what is cruel and unusual? The Constitution itself offers no guidance. In interpreting the clause, the Court, consistent with Eighth Amendment precedent, looked to “the evolving standards of decency that mark the progress of a maturing society.” In addition to looking at state legislation and practice with regard to imprisoning juveniles for life with no possibility of parole, the Court explained its obligation to interpret the Eighth Amendment by considering the “culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question.” The dissent is critical of this approach, arguing that this was not the original meaning of the Eighth Amendment.

This week, we celebrated the holiday of Shavuot, commemorating the giving of the Torah. As the Union for Reform Judaism explains, “Reform Jews accept the Torah as the foundation of Jewish life containing God’s ongoing revelation to our people and the record of our people’s ongoing relationship with God. We see the Torah as God inspired, a living document that enables us to confront the timeless and timely challenges of our everyday lives.”

One of the best arguments I have heard for the need to view law in light of our evolving society came from an episode of the West Wing. After a talk show host defended labeling homosexuality as an “abomination” by quoting Leviticus, President Bartlett replied, “My chief of staff, Leo McGarry, insists on working on the Sabbath. Exodus 35:2 clearly says he should be put to death. Am I morally obligated to kill him myself or is it okay to call the police?…Does the whole town really have to be together to stone my brother, John, for planting different crops side by side? Can I burn my mother in a small family gathering for wearing garments made from two different threads?” For the Torah to continue to be relevant to our lives, we must interpret it in light of current societal practices and values.

So too is the Constitution a living document. As Justice Stevens stated in a concurring opinion, “Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete.” As the views and practices of society change, we must be able to interpret the Constitution in light of those changes. As psychological research reveals more about the fundamental differences between juvenile and adult brains, we must be able to consider this new information in assessing and reassessing appropriate punishment.

On Christmas Eve the year after Ian was imprisoned, he was allowed to make one phone call. He called the woman he had shot to apologize for the suffering he had caused. The two began to correspond, and the woman asked prison officials to allow him to take the GED test and college courses. Her request was denied. In some prisons, children sentenced to life without the possibility of parole are not allowed to take part in educational or rehabilitation services with the justification that they do not need these services since they have no chance of leaving prison. The decision in Graham v. Florida does not guarantee that Ian or any other juveniles sentenced to life without parole will ever step outside the prison walls; it merely grants the possibility that they can get parole if they can demonstrate they are fit to reenter society. But this possibility may give them a reason to keep living, dreaming, repenting, and rehabilitating themselves, in the hope that they may someday get a second chance at life.