A Loss For Juvenile Justice


seems an impossibility that the anti-death penalty movement would
share common ground with the Texas state legislature. Nevertheless,
in the state that executes more criminals than any other, such an
unlikely alliance has been forged. Governor Rick Perry’s signing
of legislation that would provide life without the possibility of
parole as a sentencing option in capital cases was taken by the
anti-death penalty movement as a victory, asserting that the existence
of such an option presents a more tenable alternative to the jury-sponsored
sanctioning of execution. 

this collaborative victory is a setback in the cause of juvenile
justice. The bill, SB60, did not possess an exception for offenders
who committed their capital crime prior to the age of 18. Supporters
of the bill, which takes effect September 1, say the new law will
provide juries in capital cases with a new sentencing option. But
in the case of juvenile offenders who are tried and convicted in
adult court, the law provides only one, slightly less draconian

past March the Supreme Court ruled, in

Roper v. Simmons,

it was unconstitutional to execute juveniles. In response, Texas
lawmakers passed legislation that requires juveniles convicted of
a capital crime to serve life in prison with no chance for parole.
While this has been classified by the public, with no small degree
of participation from the anti-death penalty movement, as an act
that was intended generally towards adult offenders, the primary
motivation behind the bill was to provide a stiffer brand of punishment
to a class of criminal who could no longer be executed by the state
of Texas. 

put on fast-track a legislative proposal by State Senator Eddie
Lucio to implement a life- without-parole sentencing option within
days of the Roper decision. A report from the

Austin Chronicle

stated that Lucio used the possibility of the 29 youth capital offenders
being released as a result of their sentence commutation to persuade
the legislature and the governor to pass the bill, leading the senator
to state that if they had passed the measure a few years prior,
“We wouldn’t have 29 [youthful offenders] now with the
possibility of parole in Texas.” 

to SB60 being passed into law, Texas prosecuted juvenile capital
offenders in one of two ways. Historically, most juveniles accused
of capital crimes were transferred to adult court where they were
subject to adult prosecution, adult sentencing, and, as seen in
the case of 13 youth offenders, execution by the state. The other
way has come about in the past 10 years, where youth offenders convicted
in a juvenile court are subject to a potential maximum of 40 years.
Nonetheless, as a result of Texas’s system of blended sentencing,
the convicted youth offenders split their incarceration time between
juvenile and adult facilities and offenders as young as 16 can be
moved into adult prisons. 

legislators have been eager to point out that the advent of determinate
sentencing has meant fewer juveniles being tried as adults. In 1994,
the year before determinate sentencing was extended to capital crimes,
158 homicide cases were transferred to adult court. In 2002, the
number dwindled to 18. However, in that same year, of the 48 dispositions
that resulted in prosecutions,  only 9 were conducted in juvenile
courts. The previous year, in 68 prosecutions, 10 were in juvenile
court and 34 were in criminal court with youths tried as adults.
This in spite of the fact that only 17 and 12 juveniles were charged
with capital murder in 2001 and 2002 respectively.  

what puts Senator Lucio’s advocacy into the realm of the demagogic
is the notoriously low rate at which paroles are approved within
the Lone Star State. At one point the jurisprudential history of
Texas had a fairly high parole approval rate, exceeding 79 percent.
But the “truth-in-sentencing” movement of the mid-1990s,
which was focused on increasing the amount of actual time served
by criminals, drastically modified the face of sentencing in the
state. The combination of the federal government attaching contingencies
of longer sentences to grant money and the Texas state legislature
taking on this endeavor with a certain verve created the current
reality: parole no longer resides in the world of probability, but
is firmly affixed in the finite area of infinitesimal possibility.
In 1996 the parole approval rate nationally was at 44 percent while
in Texas it was only 21 percent. Today, the parole approval rate
is 25 percent and the rate for violent offenders, which would include
capital offenders, is 22 percent. Additionally, a parolee within
this sliver would have served an average of 61 percent of his or
her sentence. Generally, violent offenders by the end of the 1990s
served just under 76 percent of their sentence with a projected
future figure of over 89 percent. 

this landscape, it is highly unlikely that those who were given
a reprieve from death would ever spend a day of their borrowed time
outside of prison, as Senator Lucio suggested. Perversely, the previous
sentence of life with the possibility of parole in 40 years coupled
with inordinately low parole approval rates almost entirely denied
the potential for separate, precise justice. Now as a result of
SB60 its denial is unequivocal. 

writing for the majority of the Supreme Court in


, Justice
Kennedy spoke to the difficulty that practitioners have in determining
the existence of anti-social, psychopathic tendencies in a youth
offender. Kennedy asserted that because of this difficulty doctors
typically do not make these diagnoses prior to the subject reaching
the age of 18. What is also relevant is the potential for such an
offense to occur as a result of an impulse control disorder, or
intermittent explosive disorder, which culminates in uncontrolled
acts of violence, possibly of an extreme nature, according to the
DSM-IV (Diagnostic and Statistical Manual of Mental Disorders).
The current sentencing law ignores these realities and regards an
offender with an undeveloped  mental capability the same as
one who exhibits psychopathic behavior—“the same, even,
as a rational adult.” 

Texas has done, in the past and now, is fall into the trap of allowing
the gravity of murder to overwhelm the notion that normally exists
with youth offenders; that they do not bear the same degree of culpability
that we expect from adults. This philosophy goes back to the genesis
of juvenile justice, the first juvenile court in Illinois in 1899,
and the theory that when addressing a youth offender the state should
not act as the ultimate purveyor of justice, rather as a surrogate
parent. In 1967 the Supreme Court substantiated this theory in

Re Gault

where the Court held that juveniles are subject to
the same constitutional rights in court even when they are tried
in a separate juvenile proceeding. 

where youth capital offenders are tried and summarily punished as
adults, the only way to ensure separate justice is through the application
of parole. When applied properly, parole is a tool that can separate
those who should remain in prison from those for whom this engenders
no benefit to the prisoner or society. 

it is not only the Texas legislature that has succumbed to this
perceptual trap. While only 34 percent of Texans polled were in
favor of the death penalty for juveniles, 78 percent of Texans favored
life without the possibility of parole as a sentencing option. This
statistic was utilized by Senator Lucio to argue in favor of SB60
and it likely provided a degree of political cover to ensure the
bill’s passage. 

reason that Texas was one of three states not to have the life-without-parole
option was to increase the prospect of a jury rendering execution
as the proper punishment. Based on the preeminent place that Texas
holds for state-sponsored executions, it was a fairly successful
method. Governor Perry and the legislature have effectively overturned
the Supreme Court’s ruling in


. Texas is now, with
the uncommon exception of commutations, completely unable to execute
precise justice where it is warranted, specifically for those who
committed their crimes as youths. For the anti-death penalty bloc,
this victory is akin to the slaying of the gorgon, a victory of
some mythic proportions. Conversely, for those who also look to
curtail the figurative death of youth offenders, this was a dramatic
loss. SB60 is a death warrant and, as of September 1, convicted
youth capital offenders are just as good as killed.


David Mikhail
teaches criminal justice and political science at Rutgers University
in New Jersey. He has worked with the Center for Constitutional Rights
in New York City and the U.S. Department of Justice in Washington,