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© Richard Ross. Cell of a 15 year old boy on the mental health wing of King County Youth Service Center, Seattle, WA. Many of the children on the wing here are on psychotropic medication. He didn’t leave his house for three years; he hasn’t gone to school in three years. He is locked up because he assaulted his mother and his mother doesn’t want him. Placement will be difficult. The first step will be reconciliation with his mother. Alternatives to Secure Detention (A.S.D). He is under 24-hour observation and checked on every 15 minutes.

“The U.S. Supreme Court hears arguments Tuesday in two homicide cases testing whether it is unconstitutionally cruel and unusual punishment to sentence a 14-year-old to life in prison without the possibility of parole,” says Nina Totenberg (Do Juvenile Killers Deserve To Be Executed)  for NPR. “There are currently 79 of these juvenile killers who will die in prison.”

Much of the coverage on JLWOP, an undeniably emotive issue, can be skewed. Totenberg, however, deals with the facts very evenhandedly (as she always does when reporting on the labyrinthine legal SCOTUS cases).

She gets to the heart of the matter, which is to ask ‘Are 14-year-old killers always killers who either can never – or do not deserve – to be rehabilitated?’ Essentially, in the 18 states where JLWOP has been handed down, the law believes that is the case.

It is Bryan Stevenson (whose TED appearance I mentioned last week) that is representing the two boys in this case. He argues that it is cruel and unusual to lock up until death a child who does not have the developmental capacity to appreciate his or her actions nor the ability to fully grasp consequence.

“We’re not saying that juvenile offenders who commit homicide can’t be punished severely,” Stevenson says. “They may even end up spending the rest of their lives in prison. But it’s premature, excessive and unfair to say we know this juvenile will never be rehabilitated.”

The problem is that law prohibits the consideration of an individual’s history or the circumstances of the crime in sentencing.

“Judges can’t consider it. Juries can’t consider it. No one can consider it,” says Stevenson.

Totenberg offers the example of Kuntrell Jackson a 14-year-old who robbed a video store with two others. An employee was shot dead but Jackson was not the gunman. “Under Arkansas’ felony-murder law, Jackson was deemed just as responsible as the triggerman. He was tried as an adult for aggravated murder and, under state law, received a mandatory sentence of life without parole,” explains Totenberg.

Sadhbh Walshe has just written (What JLWOP means: life without parole for kids) about a similar case in Pennsylvania. Robert Holbrook was look out for a drugs deal in which a female was killed.

Also in the Guardian, Ed Pilkington video interviews Quantel Lotts who murdered his step-brother in a fight aged 14 (Jailed for Life at 14: US supreme court to consider juvenile sentences). Lotts is in Missouri.

Pilkington puts it to Lotts that he might be a different person now as a 26-year-old. Lotts characterises his childhood – during which he was told violence solved everything – as a “phase.”

As I said in my last post, retribution cannot be eternal. We cannot justify it and we can only tolerate it if we make it invisible.

I close by repeating the words of an adult I met who had served three decades in prison on a LWOP sentence before winning a governor’s clemency against all odds. He said, “LWOP means you’re dying inside. It’s no different to a death sentence. It IS a death sentence.”

UPDATE: 06/27/2012 – The Prison Law Office (PLO), Berkeley represented the prisoners of California. PLO pointed me in the direction of this full gallery of images that were available to defense and prosecution teams.

On May 23rd, the Supreme Court of the United States (SCOTUS) affirmed – with a 5-4 majority – a federal court order requiring California to reduce its prison population to 137.5% of design capacity. California has two years to shrink the number of prisoners by more than 33,000. California currently has 143,335 prisoners, which is still significantly less than the 166,000+ the state housed at its peak five years ago.

Brown vs. Plata (formerly Schwarzenegger vs. Plata) was a landmark case in U.S. legal history and, I would hesitate a guess, the largest release program of convicted individuals ever enacted. And it is the right decision.

You can download the full SCOTUS decision as well as other documents from the case at SCOTUSblog.

I want to draw attention to one particular aspect of the ruling: Justice Kennedy’s inclusion of photographs in the appendix.

Justice Kennedy wrote for the majority, joined by justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Scalia wrote a dissent joined by Justice Thomas, and Justice Alito wrote a dissent joined by Chief Justice Roberts.

Two of the photographs Kennedy included show prisoners being housed in a gymnasium. These are open dorms and clearly unsuitable for such numbers. The lawsuit however, was centred on standards of medical care; it was stresses of overcrowding that led to the drop in healthcare standards to the point of “cruel and unusual punishment” and the associated violation of the Eighth Amendment.

Justice Kennedy in a sincere way was trying to illustrate a point. An editorial at The New York Times is on board:

Looking at the photos, there should be no doubt that the conditions violate the Constitution’s ban on cruel and unusual punishment.

That’s a bit prescriptive for me but I’ll forgo that.

The images are quite unremarkable inasmuch as they are the norm. News media has shown images from California prisons like these for years. So much so, the California Department of Corrections provided a gallery of official “Prison Overcrowding Photos” (now with added fisheye lens!)

In 2006, Max Whittaker photographed overcrowded gymnasiums at Folsom prison. In 2007, Justin Sullivan went to Mule Creek State Prison. After the verdict, Gary Friedman‘s photo gallery ran in the LA Times.

The third picture (below) shows something a little different. It depicts the apparatus of inadequate care. According to the Court’s opinion: ‘Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets. A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had “‘no place to put him.’”

It’s impossible to say what sort of reaction publication and underlining of these three images means for anyone reading-up on the case. Dahlia Lithwick for Slate asks Do photographs of California’s overcrowded prisons belong in a Supreme Court decision about those prisons?:

“Whether those photos will change anyone’s mind about the morality of prison overcrowding is open to debate. Whether they should may be the more important, and more interesting, question.” Lithwick wonders, “Should the court be using visual aids to prompt emotional responses or be inviting citizen fact-finding in the first place?” The weakness of this question is in its presumption that it is only through an emotional reaction that a viewer will conclude make-shift open dormitories and cages are unacceptable. Surely, logic dictates that these are not beneficial management strategies, let alone conducive to rehabilitation.

Photographs of overcrowded prisons in California have been available for a long time for anyone who cared to search. These three are representative of the failed system, and quite honesty Kennedy had thousands to choose from.

For a full round up of the ruling visit the phenomenal Prison Law Blog.

UPDATED: 06.12.2011

Previously, I was under the impression that only three photographs were used in the Brown vs. Plata deliberations, but according to Mother Jones, the two images below were also items of the appendix.

Governing Through Crime recently noted that photographs more than legalese may have swayed the opinion of Justice Breyer during December’s SCOTUS discussion of Schwarzenegger vs. Plata.


Breyer saw the photos in an amicus brief submitted by a coalition of religious group (PDF) in support of the plaintiff:

“It’s a big record. What I did was I – it refers to on-line evidence – I went and looked at the pictures, and the pictures are pretty horrendous to me. And I would say Page 10 of the religious group’s brief (PDF), for example, shows you one of them. And what [the religious groups] are saying is obvious. Just look at it. In conditions such as these, you cannot have mental health facilities that will stop people from killing themselves, and you cannot have medical facilities that will stop staph and tubercular infection.”

Schwarzenegger v. Plata is a federal class-action suit challenging health care conditions in the California prisons. In 2009, a California-based three-judge federal court found that massive overcrowding in the state’s prisons contributed to untreated mental illness, suicides and other preventable deaths of inmates. The overcrowding, the judges ruled, violated the Eighth Amendment rights of prisoners to be free from cruel and unusual punishment.

The three judge panel ordered the release of 35,000 – 45,000 prisoners to ease overcrowding and restore constitutional rights. Schwarzenegger and the CDCr authroities immediately appealed. SCOTUS are currently deciding if the three judge panel was within jurisdiction to order the mass release of prisoners; AND if overcrowding does directly cause poor medical and mental health-care.

Commentators have noted the apparent empathy of many Justices. It is common knowledge that California’s prison policy has been tumorous and it is no surprise it has come to the most drastic court ordered release of prisoners in US history to solve the problem. The Atlanta Post reports California Sheds Light On The Need for Criminal Justice Reform.

Thanks to John Malsbary for the tip.


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