Ever since the institution began, and certainly since the 1970s, the American death penalty has been an object of insatiable scrutiny in the criminal justice system of the West. Europe is appalled that we still have it. The Middle East is appalled that we don’t use it more frequently. In some states it’s non-existent, others it’s little more than a myth, and there are still some that can’t seem to get enough of it. (Yes, I’m looking at you, Texas.) So the debate will go on until the unlikely day when the federal government abolishes executions altogether.
Yet even while the fires of the capital punishment debate show no signs of cooling, a recent Supreme Court ruling has started afresh a new debate, rooted in the same constitutional criticism as execution-abolition. With executions on the decline while recidivism has been inching its way up the charts over nearly three decades, those lovable lefties have taken up the faithful arms of that pesky Eighth Amendment once more in order to propel the next Great Debate: life imprisonment for minors.
The Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines be imposed, nor cruel and unusual punishments inflicted.” That’s it. Seventeen simple, highly interpretable words, upon which universalists, liberals, and abolitionists have stood tall and proud on ethical, moral and political soapboxes to proclaim all that is wrong with the punitive branch of our justice system, particularly when it comes to the death penalty. For some, execution of any sort is seen as cruel and unusual, though it is, ironically, one of the most consistent forms of punishment throughout history, which surely excludes it from being unusual. Then there are the conditionalists who insist that only some forms of execution are cruel and unusual, as though we might be able to convince the condemned — or even ourselves — that we really do care for their well-being if we poison them instead of bludgeoning them to death; firing squads are mean, but hanging is okay; gas chambers leave a bad political aftertaste, but electrocution gets a majority thumbs-up. Still yet there are the legalists who rightly point out that the certainty of someone’s guilt is rarely substantial enough to take his or her life — perhaps the most tolerable and certainly the most logical of the arguments. And then at the farthest liberal end, the place where idealism trumps truth, there are those whose only wobbly leg to stand on is the one that says everyone deserves a second chance. But while an unstable footing may be enough to prop up the Eighth Amendment against death, it only touts social idealism and naivety when positioned against the argument of life in prison.
The case highlighted here is that of Graham v. Florida in which Terrence Graham, a minor at the time, was given a plea deal to avoid a guilty judgment in an alleged armed robbery. One of the terms of that deal was a probationary period, which he allegedly violated, sending him back to court for adjudication for the original robbery. At that time he was found guilty and sentenced to life in prison.
The argument, which the Supreme Court upheld, was rooted in the Eighth Amendment’s prohibition of cruel and unusual punishment, and cites a series of other cases in both recent and not-so-recent history which have set precedent to define what is “cruel and unusual”. Without getting into the nitty gritty, the Court’s majority opinion is summed up by Justice Kennedy, who argues that a minor should have an opportunity to change. He writes, “Life in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” This, he says, makes the punishment both cruel and unusual.
But Justice Kennedy is operating on an idealist principle which says that the prison system is designed for reform rather than the truth, which is that prison has much more to do with punishment. For years the criminal justice system has been trumpeting to the media about incarceration’s rehabilitative qualities– how it shouldn’t be seen as an entirely punitive measure, that there is much more to it than locking them up and throwing away the key. Sadly, Justice Kennedy, a would-be conservative who can’t seem to stop drinking the liberal draught, has enthusiastically pledged to sing along.
The truth is, though, that no matter how many educational programs, social workers, religious institutions, or other rehabilitative measures are put into place within prison walls, the system itself will continue to keep itself in business as long as it continues to put the problem children together on the playground without supervision. Indeed, such a metaphor breeds a sense of irony because it is exactly in the school system where we see a similar sociological phenomenon. Take children even from well-to-do families and put them in the best educational institutions around, but the ones who have a penchant for trouble will not only find it, but they will find each other, and from these associations they will often go on to break more rules than they would have had they never met.
Prison is exponentially worse because it only houses the troublesome ones; strictly speaking, there are no “good” social influences. There is frequently street or even gang mentality in prison: demand respect by instilling fear even if it means resorting to violence; the weak will cling to the strong in order to protect themselves, and any opposition perpetually risks life and limb.
Even outside of violence, in the regular day-to-day of prison life, social interactions will, if innocently in the beginning, veer down the wrong path. Inmates will surely make small talk as humans are wont to do, except unlike the world outside prison walls, no one is going to start a conversation with, “So, what do you do for work?” Clearly, nothing anymore. The more natural icebreaker becomes the Hollywood favorite, “So, what are you in for?”
I bring up the obvious to point out the subtle: inmates frequently talk about crime. For a few, it’s all they know. And given the choice between slowly muddling through high school equivalent education or anger management courses, teaching inmates theories with little hope of opportunity for application, or learning from one another about how to get further, faster, the majority tend to sway towards the latter, thus perpetuating the very criminal mentality the system claims to be reforming. So when the “second chance” comes around, ex-offenders become re-offenders, recidivism rates hover at a staggering two-thirds for re-arrest and fifty percent for re-incarceration (so much for rehabilitation), and criminals find themselves right back in the over-crowded system that has already failed them once.
Herein lies the true violation of the Eighth Amendment. To merely prohibit life imprisonment for a minor only looks good politically. But practically, when that minor is released from prison in twenty or even ten years, he’s still going to have a long, uncertain — and yes, frightening — road ahead of him. He has learned only how to function in a unique population subset with no real understanding of how the world outside is working. (Think how much society changes in ten years, let alone twenty or more.) To send him back out into that now-unknown world with fifty dollars, no identification, and a list of homeless shelters to be turned away from is far crueler (though I’m afraid not very unusual) than to keep him in prison for the rest of his life. Even in the cases of ex-offenders being released to family and friends, to do so without further guidance than a weekly tousling with parole officers (who, often times, are ill-equipped themselves to deal with the trials of the parolee’s societal reintegration) is to set them up for failure. Well-intentioned as family and friends often are, they are just as often unable to shoulder the burden reintegration presents, and perhaps more often become part of the problem.
In fairness, it isn’t the High Court’s job to create new laws, only to uphold or strike down the rulings of lower courts. But as long as legal precedent will be the result of the Court’s decision, it would behoove the system to take further action. If Justice Kennedy and his liberal cronies want to make a real difference in the justice system, they should have a few conversations with their buddies in legislation about how we can provide the rehabilitative services offered in prison post-incarceration, rather than piously denouncing one punishment as unconstitutional while the alternative is hardly better and possibly worse. With the billions of dollars the federal government pumps into policies governing education for those who already have it, money for those who should share more of it, and wars that should be dwindling down instead of revving up, surely there can be some reallocation towards reintegration, among other things. Then, and only then, will we be able to adhere to the principles and intentions of the Eighth Amendment while simultaneously moving one step closer to providing some of those in need with a second chance that may actually have the sustenance to bear the fruit the system presently pretends to grow.