• HIGHLIGHTS
• How the United States compares to the rest of the world
• The change in Colorado law
• Imprisoning juveniles in supermax facilities
• Felony murder and juvenile offenders

How did the juvenile justice system start in the United States?

The United States was at one point a leader in juvenile justice. There's much about the history of juvenile justice in the United States that Americans have to be proud of. In fact, there was an understanding as the century changed in 1899 that juveniles should be treated differently than adults, that they actually were different from adults. They had the capacity to grow and to change, and therefore shouldn't be subject to exactly the same punishment as adult offenders. So in 1899 in Illinois, Cook County instituted the first juvenile court, and other states followed suit afterward. In fact, in 1900 the first juvenile court was established, in Denver, Colo.

When you look at the scene today, it's not the same, is it?

No. ... The United States has really changed 180 degrees in terms of the way that we treat juvenile offenders. We used to understand that children and adults were different, and that children should be treated in a juvenile justice system that embraced their capacity to grow up and change. Now what we've done is turned into a society that is in fact the most punitive in the world in terms of the sentences that we impose on juvenile offenders, in terms of our willingness to try children in adult courts, and in terms of our willingness to put them in adult prison for the rest of their lives.

Why?

There [was] a sense in the United States, particularly in the mid-1980s, that juvenile crime rates were very high, and this was true, in fact. There was a rise in the use of crack cocaine, and juvenile offenders were sometimes involved in crimes related to the crack cocaine markets. The use of firearms had also been on the rise, and there was a sense across the county that we needed to respond to these high juvenile crime rates.

What happened, in fact, was that those juvenile crime rates then declined as soon as the crack cocaine markets declined, as soon as children had more difficult times getting access to firearms. But the changes that were put in place immediately after the peak in juvenile crime stayed with us. ...

What is happening today, and are we being that punitive?

The United States has become very punitive against child offenders, mostly through a combination of two factors. One is that we made it more possible for children to receive very punitive sentences, like the life-without-the-possibility-of-parole sentence. We also made it more possible for prosecutors to try children in adult court and therefore make the sentence available. As a cumulative result of those two factors in combination, we now have 2,225 children serving life without parole.

The other obvious fact is that those child offenders never leave prison. So even though this more punitive nature has only been in place for the last 20 years, with each new child sentenced to life without parole, that number increases and will never change until that person dies in prison. ...

It's quite difficult to get data on juvenile offenders, isn't it?

When Human Rights Watch and Amnesty International embarked on the first-ever study of how many kids are serving life without parole in the United States, we thought it was a fairly easy question to answer. But what we found is that kids who are tried as adults, who are put into adult prison, are lost to the system. The fact that they were children when they committed their crimes is not counted, is not tracked by our criminal justice system.

So there's no national depository of this information. We had to go state by state and ask the state correctional systems to produce data for us that they didn't normally produce, to try to get a sense of how many kids there really are serving the sentence across the country. ...

How do we compare with the rest of the world?

... In 2004 Human Rights Watch did an investigation of sentencing policies in the rest of the world, and there we found that unequivocally the rest of the world does not sentence kids to life without parole. We found only 12 child offenders serving life without the possibility of parole in the rest of the world, and those 12 offenders are located in just three countries. So one has to compare 2,225 in the United States with 12 in the rest of the world.

Editor's Note: This number of juveniles serving life without parole outside the United States, calculated for the 2005 Human Rights Watch report The Rest of Their Lives: Life Without Parole for Child Offenders in the United States, includes four juvenile offenders in South Africa, one in Tanzania and between four and seven in Israel. It is based on self-reported cases found in these countries' reports to the U.N. International Convention on the Rights of the Child (CRC).

Did you figure out why it is?

For many countries, life without the possibility of parole is not a sentence that they have ever used; they don't use it against adults, and they don't use it against children. In fact, the history of the sentence comes from the United Kingdom, where there was a sentence known as "detention for the duration of Her Majesty's pleasure." So the countries that continue to have some form of life without parole on the books tend to be former colonies of the United Kingdom, but in 1996 a seminal decision in Europe caused the United Kingdom to stop sentencing children to the possibility of life without parole, and most other countries followed suit.

It's also true that the [U.N.] Convention on the Rights of the Child -- which is a human rights treaty that all of the countries of the world except for United States and Somalia have signed and ratified -- that treaty caused many countries to change their laws and eliminate the possibility of life without the possibility of parole for children, because the treaty prohibits it.

Where is the U.S., vis-à-vis treaties?

The United States is party to the International Covenant on Civil and Political Rights, which makes the basic point that kids and adults should be treated differently in criminal justice.

Meaning?

Meaning that children should be tried in a way that is sensitive to the fact that they may not understand all of the procedures in adult court, and that they should be subject to sentences that allow for their rehabilitation; meaning they should not be sentenced to life without the possibility of parole, because it is a permanent sentence. It's a sentence that says, "You are beyond redemption."

And the U.S. signed it?

The U.S. is party to the International Covenant on Civil and Political Rights; it is bound by its provisions.

So how do they explain what they're doing?

There was a hearing in July of 2006 in Geneva, Switzerland, where the U.S. was called to testify before the Human Rights Committee, which is the body that enforces the International Covenant on Civil and Political Rights. And there the U.S. had to explain its behavior: How is it that it can be party to this treaty and at the same time have 2,225 children serving life without the possibility of parole?

What the U.S. delegation told the Human Rights Committee is that the child offenders who received this sentence were the worst of the worst. ... The International Covenant on Civil and Political Rights allows for reservations to its provisions, and so the reason the United States claims that these children are the worst of the worst is that it's trying to fit the practice to a reservation it placed on the treaty, which is that it would only treat children as adults in exceptional circumstances.

But what we found at Human Rights Watch is that, first of all, there are 2,225 children serving the sentence, so it is dubious that this practice is used only in exceptional circumstances. We also found that, in fact, when one compares child murder offenders with adult murder offenders, the children are almost as likely, if not more likely, to receive a life-without-the-possibility-of-parole sentence than the adults. What that tells us is that this sentence is not used in exceptional circumstances; it's used all the time. ...

You go to those meetings, those conventions?

I traveled to Geneva in July of 2006.

What's your situation there?

It's actually very difficult, because I'm an American. My job, of course, has nothing to do with what my nationality is, but I have worked for two years on the sentencing of children to life without parole. I've traveled around the country interviewing these young offenders, seeing for myself that many of them are capable of rehabilitation -- perhaps not all, but that they should be afforded parole hearings so that at some point they could potentially rejoin society.

Yet I'm confronted by members of my own government in Geneva who are claiming that these children are hardened criminals who have been convicted of the gravest of offenses, that they are the worst of the worst, and that we use the sentence only in rare cases. And it's embarrassing. It's embarrassing for me as a human rights attorney, but it's also embarrassing for me as an American. ...

You told me before that children get punished in a harsher way than adults. [How so?]

Children who are serving life without the possibility of parole are punished, in some ways, more harshly than adult offenders. Why? Because they enter into a criminal justice system at a very vulnerable age. Many of the child offenders that I've interviewed across the country have suffered violence, have been forced to join gangs, have been raped, and of course in some cases also learn criminal tendencies in prison.

They also enter at an earlier point in their lives when they have not had access potentially to education or to the other things that can make life more meaningful. One of the things that I've discovered in criminal justice systems across the country is that these child offenders -- in fact, anyone serving life without parole -- is at the bottom of the list for educational programs, for vocational training. Why? Because these kids aren't ever going to re-enter society. There's no point in training them, in educating them, in helping them to develop skills that can make life more meaningful, and as a result, they really lead a life that is a mere existence. ...

But they also have to undergo a process of realization of what the sentence really means, and it takes a while for the finality of the sentence, for its truly punitive nature, to dawn on a young person. It actually can take up to 10 years. So their experience of the sentence is first entering this terrifying and punitive place, namely adult prison, and then maybe eight, maybe 10 years later, they have to go through a second punishment of actually grappling with what the sentence means, grappling with the fact that they've been banished from society forever. ...

[Is there a scientific basis for treating child offenders differently than adults?]

One of the reasons that governments around the world came together and signed human rights treaties ... was because we all understand that children and adults are different, but it was also because we're now seeing this understanding affirmed in neuroscience. Because of MRI, [magnetic] resonance imaging techniques, scientists have been able to study the brains of adolescents and adults, and what they have discovered are some very striking differences, most fundamentally that the part of the brain that controls reasoning -- that gives us as adults the capacity to think a bit before we act -- is underdeveloped in adolescents.

If we think about it, in our society, this is why we make the age of 18 an important threshold. People who are below the age of 18 cannot vote; they can't sign contracts; they can't sit on the very juries in courts that ultimately sentence children to life without the possibility of parole. And yet what we have decided to do in this one area of our law is to allow those under the age of 18 to receive this most punitive of sentences.

Tell me about what happened in Colorado in 2005, the change in the law.

When Human Rights Watch first began investigating children serving life without parole in 2004, there were 42 states that sentenced kids to life without the possibility of parole. In 2005 something very important happened: The state of Colorado took a first step away from this very punitive way of treating children and eliminated the life-without-parole sentence for child offenders.

What was it instead?

Instead of ... sentencing children to life without the possibility of parole, Colorado instituted a mandatory sentence of 40 years for a child offender who is convicted of first-degree murder.

Which means?

Which means that the child offender must remain in prison for 40 years and then becomes eligible for a parole hearing. ...

The elimination of the life-without-parole sentence for child offenders in Colorado was a very important first step, and it does open the road for further reforms in Colorado, because it shows that the state of Colorado understands that children who commit crimes, while they should be punished, do deserve some chance at rehabilitation and some chance to earn their freedom. As such, as a first step, it does show the road for further reforms in the state. ...

You've done research in Colorado. Why did it happen?

There are a number of forces that converged to make the reform in Colorado possible. The first is that there were a number of parents of people who had been sentenced to life without parole who came together to try to change the laws, not only for their children, but for future generations of child offenders, who these parents believe should not be thrown away permanently from society. They came together and created an organization called the Pendulum Foundation which has worked very hard in the state to reform the sentencing laws.

Another factor is that there was an important legislative leader [Lynn Hefley] who actually came from a conservative Christian tradition, who believed that the sentence wasn't consonant with the notion of redemption; it sent a message to the children that they were banished from society forever and that they were beyond repair. She believed that children should receive a different message, a message of hope and a message of redemption, and therefore she became a real champion for reforming Colorado's laws.

What is the problem in the law in Colorado? It didn't go all the way, did it?

The sentencing reforms that Colorado passed were an important first step, but they didn't go as far as they needed to. In the first place, a minimum sentence of 40 years is still a very punitive sentence for a child offender. Secondly, the laws were not made to be retroactive. That means there are still 45 child offenders in the state of Colorado who have been sentenced to life without the possibility of parole, a sentence that now the state has decided is inappropriate for people who were below the age of 18 when they committed their crimes. Yet these 45 remain without hope, serving a sentence that requires them to die of violence or illness or old age in Colorado's prisons. ...

Why wasn't it made retroactive, as far as you can figure it out?

The prosecutors in the state of Colorado opposed making the law retroactive because as prosecutors they had made promises to the families of the victims. They said this young offender will never return to society; he or she will die in prison. So together with the lobbying efforts of the victims' family members, the prosecutors managed to oppose making the law retroactive.

Is there anything [else in] particular about Colorado [in terms of how they punish juvenile offenders]?

The state of Colorado really brings about a double whammy in terms of its treatment of child offenders -- that is, of course, before it changed the law. It allows prosecutors to file directly against children in adult court, which means there's no opportunity for a juvenile justice judge to determine through a transfer hearing whether or not a juvenile should be kept in the juvenile justice system or be transferred to the adult system.

So that direct file capacity is the first very punitive response in Colorado, and the second, which until recently was the additional factor, is the fact that the sentence of life without parole is mandatory in Colorado. So until they changed the laws, children in Colorado were really caught by these two factors, and it meant that the rate at which juveniles received life without parole in Colorado, Colorado was in the top 10 in the nation. ...

In Colorado many of the children serving life without the possibility of parole spend much of their time in maximum-security confinement, which is an additionally harsh way to treat these child offenders. Supermax means 23 hours of lockdown; it means no human contact unless by accident the person who passes the food tray through the slot in the door touches the hand of the young offender on the other side of the door. And that treatment, over the course of months and even years, adds an additional burden to these young offenders, who are also contemplating the fact that they will die in prison.

Could you ever find out why [these inmates you studied] were there?

The use of supermaximum-security confinement is supposed to be prison for prisoners. It's supposed to be a response to violent behavior, aggressive behavior, dangerous behavior by prison inmates. In some cases the state of Colorado had accused these people of being in gangs, being involved in some kind of violent altercation in prison.

And there may be some truth to those allegations. What I found across the country is that child offenders who enter adult prison do all kinds of things, in some cases to be able to protect themselves from the violence and the gangs that they find there. One of the ways that they try to do that is by responding with violence or by joining a gang themselves.

But the notion should be that the child offender -- or really any offender subject to supermaximum confinement -- spends some legitimate period of time there but then is brought back out into the regular prison environment. What I found in terms of the child offenders serving life without parole in Colorado is that many spent not months but years in supermax confinement, which is an extraordinary response by the state of Colorado.

The other factor that child offenders serving life without parole in Colorado have to grapple with is a rule on the part of the Department of Corrections in Colorado that individuals serving sentences in the system can only receive visits from people they knew before they entered the prison system. In the case of a child offender, this means that while he can still receive visits from lawyers and priests or social workers, he could not receive a visit from a concerned member of the community, from someone who wanted to develop a relationship with him or her, to perhaps educate him or her or come in to learn more about his or her situation. What the child offender then has, in terms of the people he can receive visits from, is perhaps a fifth-grade yearbook. These are the people that these child offenders can know for the rest of their lives.

I found that a very shocking fact, and in fact some of the people I interviewed who are serving the sentence found that to be just the most punitive part of the sentence that they had received, because it really had no sensitivity to the fact that they were children when they entered prison and they were children when they committed their crimes.

At Human Rights Watch, did you ever ask the supermax [authorities] when they'd get out?

We wrote, in the cases of some of the child offenders who are serving life without parole who are confined in the supermax, to find out more about the allegations against them, but it was very difficult for us to get information about the allegations. There is a kind of mini-trial that these offenders have before they're transferred, and the allegations about whether the facts are true, all of that is not subject to public review, so it was very difficult for us to know whether in fact the people serving life without parole did in fact join a gang, were in fact involved with violent behavior.

Another allegation that is very common is that they have been involved in the use of drugs. And it's understandable that prison systems would want to control that kind of behavior within a prison. But again, at Human Rights Watch, for us to get more information about whether or not those allegations were true was impossible.

And when will they get out?

Knowing when these child offenders serving life without parole would get out of the supermax was also very difficult to learn, because there was no defined time. For example, it made logical sense, if an individual was found to have some kind of drug in his cell, that he would receive a term of months in the supermax, but there was no defined sentence to the supermax. It seemed to go on and on, without limit, and the logic for keeping some of these young offenders who are serving life without parole in that situation for years on end, it made no sense. ...

You know some of [these inmates]. Did you find them the worst of the worst?

I interviewed and corresponded with hundreds of child offenders across the country serving life without parole. They come from all walks of life. They come from wealthy suburbs; they come from poor urban communities; one out of every 10 is African American. And yet I did not find them to be the worst of the worst.

What we actually found by examining a sample of child offenders across the country is that 26 percent of them are serving life without the possibility of parole for felony murder crimes. That means that they may have intended to commit a robbery or some felony but had no intention necessarily of committing murder. Someone else in their group pulled the trigger, committed a murder, and they are held accountable as if they had pulled the trigger. Those 26 percent are serving life without the possibility of parole for such crimes. That is not, by definition, the worst of the worst.

In addition, the United States government claimed to the Human Rights Committee that the sentence was reserved only for the most hardened of criminals; that means someone with a long record of violent crime. What we found when we examined the 2,225 serving the sentence is that 59 percent will spend the rest of their lives in prison for their first offense of any sort. They had no juvenile record; they had no adult record. This was their first-ever crime, and yet society has thrown them away.

Let's talk separately about felony murder for children: ... Why is it, in a way, I think unfair in tilting more toward children than adults?

When we examined child offenders serving life without the possibility of parole in the U.S., we discovered through sampling that 26 percent are serving the sentence for felony murder crimes. What does this mean? We wanted to know. Why would 26 percent be sentenced to life without parole for felony murder? In addition to that, when we look at murder offenses committed by children and committed by adults, why would children be just as likely -- and in some cases even more likely across the years that we examined -- to receive life without parole?

I think the answer to both of those questions comes in combination. The first is that children are likely to commit crimes in groups, and what that means is that they are more likely to be found guilty of felony murder. They're more likely to go in a group to rob a convenience store and perhaps for one of the young people or perhaps even an adult in the group to bring a firearm along and to commit murder in the course of the robbery.

We also, I think, see with the use of the felony murder statute something that has been a real friend of prosecutors. Prosecutors are there to prosecute crimes, and felony murder is something that is very easy to add to the charge sheet if it seems that perhaps the individual wasn't responsible for first-degree murder, deliberate and intentional murder. ...

What we see in the conviction rates for youth is that adults who may also be charged with felony murder are better able to plea-bargain; they're better able to trade on information; they're more sophisticated criminal defendants. Young people -- people who are below the age of 18 -- are not as sophisticated. They don't have as much information, and they end up actually receiving life without the possibility of parole at the same rates, or in some cases more often, than adult murder defendants. That's really a shocking commentary on just how punitive we have become against the youth of the United States.

Do you think that felony murder is really charged as a punitive charge, because basically it's so broad? ...

When we think about criminal justice, we want sentences to match both the intention of the criminal as well as who that criminal is. And felony murder, when it's imposed on a child offender, does neither. It catches up a child in a broad net that doesn't reflect what he or she intended to do. Plus, it subjects him or her, in 26 states, to a mandatory sentence of life without the possibility of parole, which doesn't take into account ... the differences between children and adults. ...

To cap it all, how do you feel personally [about this issue]?

As an American and as a human rights attorney, I'm embarrassed by the use of life without parole against child offenders in the United States. I'm embarrassed by the audacity of the United States to impose this punitive and final sentence on children, to not give them a second chance. It's a practice that the United States engages in, almost thumbing its nose at the rest of the world, and this has really made us a pariah in the international community, and it's something that I'm very embarrassed about.