Best US Supreme Court Decision of 2012

In my view, the best U.S. Supreme Court decision of 2012 would probably be Miller v. Alabama.  This decision scored a big one for human rights of juveniles. There will be no more mandatory life-without-parole sentences for juvenile offenders.  This was a 5-4 decision of the Supreme Court back in June of 2012.  The majority opinion was penned by former Harvard Law School dean Elena Kagan.  Of course, international human rights law was not the basis for the decision, but rather the US Constitution's ban on cruel and unusual punishment.  

I have previously blogged about the issue of locking up our children and throwing away the key - see here and here.

BOSTON GLOBE ARTICLE Excerpt:

A divided US Supreme Court struck down mandatory life-without-parole sentences Monday for juveniles convicted of murder, ruling the widespread practice violated the Constitution’s ban on cruel and unusual punishment. 

The ruling will nullify Massachusetts law, legal specialists said, and throw into question the sentences of 61 prisoners who over the past four decades were ordered to spend the rest of their lives in jail. Nationally, about 2,500 prisoners are serving life sentences without parole for murders they committed before turning 18. 

In a 5-4 vote, the high court ruled that juvenile offenders younger than 18 have “diminished culpability and greater prospects for reform” and that judges should be able to consider the “mitigating qualities of youth” in sentencing, even when juveniles commit heinous crimes.

“Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it,” Justice Elena Kagan wrote in the majority opinion. “Under these schemes, every juvenile will receive the same sentence as every other — the 17-year-old and the 14-year-old, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one.”

It so far appears that Massachusetts has not moved quickly during the past half year since that SCOTUS decision to make the necessary corrections.   Let's hope our state will finally do so soon in 2013, and we'll thus complete one small but important step in furtherance of human rights rights here in our state.  


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Beyond Washington, Maryland and Maine: New Battleground States for Marriage Equality

Well, it indeed became official late last week that Washington state's referendum on marriage equality was in fact a win for marriage equality. Washington will thus be included with Maine and Maryland as the first three states to approve gay marriage by a popular vote, rather than strictly through legislative or judicial action.  They all did so in this November's elections. These three new states will now join the six other states (Massachusetts, Connecticut, New Hampshire, Vermont, New York and Iowa) and the District of Columbia as jurisdictions where gay and lesbian couples may marry.  New battleground states to watch, according to Queerty: New Jersey, Rhode Island, Illinois, Oregon, and Delaware.


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Voters in Maryland, Maine and Washington To Approve Gay Marriage

Well, it seems to have happened.  All three of the states - Maryland, Maine and Washington - where same-sex marriage ballot initiatives were voted on yesterday, appear to be creating the right of same-sex marriage.  They join six other states (Massachusetts, Connecticut, New Hampshire, Vermont, Iowa, and New York) for a new total of nine states, plus the District of Columbia, where gay and lesbian couples may now marry.

(The vote has not yet been officially announced in Washington state, but is expected to come soon.)

These new states will be the first to create marriage equality through a popular vote, rather than through judicial or legislative action.  Three states, including our own Massachusetts, as well as Connecticut and Iowa, have judicially-created gay marriage.  The other three states, Vermont, New Hampshire, and New York, have legislatively-created gay marriage.

No doubt popular support for gay marriage equality is growing.  I continue to hope that family law scholar Joanna Grossman was right when, early this year, she optimistically foresaw, as her article title itself (following link) suggested, "the beginning of the end of the anti-same sex movement."  Indeed, another hopeful sign, from yesterday, was that Minnesota's voters rejected the ballot initiative there which called for a state constitutional amendment limiting marriage to the traditional, heterosexual marriage between a man and a woman.

I fear, however, that I may also be right in my own more pessimistic response that although progress is real, it is likely to continue to be rather slow.  (Here I am reminded of one of my favorite George Orwell quotes: "Progress is not an illusion, it happens, but it is slow and invariably disappointing.") Just as there will be a few states moving in the direction of equality, I believe there will continue to be, for many years, a large majority of states where social conservatives stubbornly refuse to recognize gay marriage.  After all, we're still only up to 9 states plus D.C..  That leaves 41 states without gay marriage, many of which already have bans on gay marriages. And of course we are still living with the federal statute (the Defense of Marriage Act).

Stay tuned.   The U.S. Supreme Court will surely weigh in soon on at least some of the issues presented by the laws for and against gay marriage.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

The President We Really Need

Dr. Jill Stein, Green Party Presidential Candidate, from Massachusetts, is the only Presidential candidate who is speaking the truth about Obamneycare and is talking about a real solution to the health care crisis: a single-payer system: Romneycare and Obamacare are class warfare and failures, says Stein; calls for "real solution" of Medicare for All.


She is the President we really need.  I am, however, about 100 percent sure we will instead get the one named Obamney.

Last election, my vote, and my campaign contribution, went to Obama.  This year, my contribution has already gone to Dr. Jill Stein and my vote will follow.   This year, I cannot bring myself to vote for the Demopublican over the Republicrat.   Each principal party candidate has now proven by his actions - despite what he may have said, or may now say, to get elected - that he is steadfastly in support of unnecessary and immoral wars, that he is shamelessly in favor of lavish corporate welfare and bailouts to the rich elite who regularly and legally steal from the rest of us, and that he will obsequiously kowtow to Wall Street and big corporations and continuously pretend to serve the public interest without actually doing so.

In this year, as in all national political election years, I am especially mindful of the eternal truth in George Orwell's statement that political language is "designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind."

Huffington Post on Health Care

More good stuff on the health insurance racket's attempt to prevent even the first step towards its own demise can be found in some recent articles in the Huffington Post. I have my doubts about the emasculated reform legislation that is pending, and am still quite angry that our supposed liberal, alleged representatives in Congress have refused to fight hard for a single-payer system, but if the currently pending health care reform bill, with a true public option, ever sees the light of day, there would indeed be a sliver of hope that eventually we will all have the single-payer system we need, and the health insurance racket would thus end up every bit as dead as the many patients who are now its daily victims.

It is interesting that a majority of doctors support a public option. Majority Of Doctors Back Public Option: New England Journal Of Medicine Study. Makes sense. And to that I say: Why can't we just take it one step further with a single-payer plan. We can't we just pay our doctors for care? Why do we have to pay the health insurance mafia as well?

Economist Dean Baker has predictably intelligent comments on the big government "conservatives" who serve the interests of the health insurance racket while pretending to do otherwise. Dean Baker: The Public Plan Option and the Big Government Conservatives

And finally, although not so recent (this one's from June) here's the following article, about the health insurance mafia. It's an oldie but goodie: Bob Cesca: The Health Insurance Mafia Deserves a Good Screwing

The Health Insurers Have Won Again - Of Course

Well, it seems pretty clear that the health-care "reform" bill will be a joke. Even if it were to have a public option, it would still be a joke, but without one, there will continue to be little to no hope that after several decades of struggle, paralleling the career of our late Senator Ted Kennedy, the good people of this country will ever have a humane and decent health care system.

Of course what we have needed for a long time is a single-payer system, privately delivered - by some of the best medical providers in the world - but publicly financed. It has been very interesting, and ironic, to see that some of the most vociferous supporters of the health insurance racket are in fact older individuals on medicare. All we need is to expand medicare to cover everyone - thus eliminating the waste, greed and inefficiency of the health insurance racket - and then we could join the ranks of the other rich, and not-so-rich, countries, that have long ago created humane health care systems.

But the writing was on the wall a long time ago. In early August, Business Week already reported that The Health Insurers Have Already Won ("The Health Insurers Have Already Won; How UnitedHealth and rival carriers, maneuvering behind the scenes in Washington, shaped health-care reform for their own benefit").

Our supposedly liberal Congressional "leaders" from Massachusetts, which has not a single Republican in Congress, were complete wimps and sounded like it when they wimped out on the issue of a single-payer system. "We don't have the votes," they said, in explaining why they would use their own votes, and clout, in a way to insure that we don't have the votes. Pathetic. Shame on you, Kerry, Frank et al. Your "efforts" should be chronicled in "Profiles in Cowardice."





With "liberal leaders" like these pretending to fight the cause for us, it is no wonder that we the people will once again lose to the health insurance racket, which continues to control Congress, along with all the other corporate lobbies. Whatever shitty bill is eventually passed will simply change our course in an insignificant manner, and the big problems will remain. We will continue to be plagued with an insane health insurance racket and the US will continue to be a place where barbaric social and economic inequality and injustice for the benefit of the rich will be the norm. Brave New Films tells the sad story:




For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Bush's Chauffeur Sentenced to "Time Served" For His Role in Aiding and Abetting Bush's War Crimes, But Will Be Held Indefinitely As Enemy Combatant

Just kidding.

No, that would be Osama Bin Laden's chauffeur, not George Bush's. See today's story about Bin Laden's chauffeur, Salim Hamdan, getting a sentence of 5 1/2 years. He's already served 5 years but don't expect him to get out in half a year with "time served" as he is expected to be held indefinitely as an "enemy combatant" despite the military jury verdict's acknowledgement, even in the kangaroo court in which our government had both of its thumbs on the scales, that he was just a bit player.

Remember, Bush told us he is the "decider". He gets to decide to kill innocent civilians in an illegal war and lie about that with impunity, but he also gets to redefine what a war crime is so that he can otherwise punish those he wants to punish, by labeling them war criminals and then locking them up indefinitely as "enemy combatants" even after their kangaroo court sentences are over.

But no, Bush's own crimes do not count. For more on that, see John Dean's discussion, at Findlaw's Writ, of the Kucinich impeachment resolution FindLaw's Writ - Dean: Congressman Kucinich's Impeachment Resolution, the Parallel to Nixon, and Why Even Nixon's Defenders Finally Abandoned Him.


When I studied international law in law school, and my international law professor Louis Sohn kept leaving for Washington to advise the Bush I regime on the first Iraq War (at a time when international law seemed to get some degree of respect and attention instead of creative disregard and blatant disrespect), I recall hearing that the most fundamental, actual rule of "international law" is "might makes right." If that was true then, it sure as hell is true now.

Well, God Bless America. And God Bless our Decider.

Getting Tough On Child Rape

Soon after the Massachusetts House passed a bill earlier this month that would be tougher on the crime of child rape, the US Supreme Court set a limit on just how tough any state can be, when on Wednesday it held capital punishment for child rape to be unconstitutional. For further background on the case, see my previous post: Supreme Court to Consider Whether Death Penalty Can Be Imposed for Child Rape.

EXCERPT FROM NEW YORK TIMES ARTICLE, BY LINDA GREENHOUSE, JUNE 26, 2008:

WASHINGTON — The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday.

The 5-to-4 decision overturned death penalty laws in Louisiana and five other states. The only two men in the country who have been sentenced to death for the crime of child rape, both in Louisiana, will receive new sentences of life without parole.

The court went beyond the question in the case to rule out the death penalty for any individual crime — as opposed to “offenses against the state,” such as treason or espionage — “where the victim’s life was not taken.”

Justice Anthony M. Kennedy, writing for the majority, said there was “a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons,” even such “devastating” crimes as the rape of a child, on the other.

The decision was the third in the last six years to place a categorical limitation on capital punishment. In 2002, the court barred the execution of mentally retarded defendants. In 2005, it ruled that the Constitution bars the death penalty for crimes committed before the age of 18.

....

For information about Massachusetts criminal law, see the criminal law page of my law firm website.

Habeas Corpus Survives

A bit of good news for the endangered US Constitution: A majority (five of nine) on the US Supreme Court ruled to uphold the constitutional protection of habeas corpus, even for the unpopular alleged "enemy combatants" at Guantanamo. For this we have to thank Justice Kennedy, who wrote the majority decision, joined of course by all four of the justices who actually deserve to sit on the Court (Souter, Breyer, Ginsburg, and Stevens). Although I cannot forgive Kennedy for Bush v. Gore and his other transgressions, I have to recognize that he at least did the right thing with this most recent decision. See the opinion here, and read more about it at the SCOTUS Blog.

More On The Texas Polygamy Scare and The Civil Liberties Non-Scare

I have recently compared the troubling invasion by the Texas government of the polygamist sect near Eldorado, Texas, to our federal government's invasion of, and war on, the country of Iraq. I have yet another analogy. Yes, at the risk of creating confusion by making yet another comparison, sort of like mixing my metaphors, or similes, or whatever they are, I must say that this other related comparison comes to mind: Our relative silence and seeming disgregard or lack of concern for civil liberties, in the face of this polygamy and child abuse scare, reminds me of how our national fear of terrorism earlier permitted most of us to stand idly by while our Congress cowardly enacted the Patriot Act.

Thus I was rather encouraged upon finding, and listening to, the following, enlightening Lawyer to Lawyer radio show, hosted by Massachusetts lawyer, journalist and blogger Bob Ambrogi:

LegalTalkNetwork - Religion, Polygamy & the Law



In this discussion, it was great to hear the voice of lawyer and social critic Wendy Kaminer, and also that of a Texas lawyer involved in this case, Betsy Branch, who is one of a number of lawyers who has volunteered to represent, pro bono, some of the many adversely affected children. I'm glad to discover from this broadcast that Wendy Kaminer had already said, well before and much better than I did, in her April 21 blog post, The Free For All - Defending Mormon Polygamists: The ACLU Squeaks Up, that the ACLU really needs to speak up loudly and clearly, and that we all should be concerned about the huge civil liberties issues raised by this troubling case in Texas.

But in the radio interview, Wendy Kaminer goes even further. She says much more than the limited space permitted her to say on her blog, and she very well articulates many of the civil liberties concerns I think we all should have. It's really worth a listen, especially if, like me, you are not yet resigned to defeat in the never-ending struggle for restoration or preservation, if not expansion, of civil liberties and constitutional rights, even in this dark, post-Patriot Act era.

From Aluminum Tubes to Broken Bones: Texans, Lies and Statistics

Remember the Aluminum Tubes, Niger, and The Big Nuclear Threat from Iraq? These themes were brought to you by the Texan in the White House.

Well, now welcome to some new theatrical themes coming directly from Texas: Broken Bones and Teen Pregnancy Statistics. Texas officials are trying to put the spin on another questionable invasion, this invasion being merely that of an unpopular, religious sect rather than of a country.

For more on lies and statistics, media manipulation, and the current FLDS case in Texas, see the following:

Scott Henson, Dallas Morning News op-ed: Where's the evidence of abuse?

Grits for Breakfast: Lies and Statistics

The Volokh Conspiracy: More Statistics

Grits for Breakfast: Misleading PR initiative by DFPS muddies YFZ Ranch debate.


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Incarceration Nation

The New York Times yesterday published a good basic primer on a most embarrassing type of American Exceptionalism, i.e., America as Incarceration Nation: Inmate Count in U.S. Dwarfs Other Nations’ - New York Times. The first part of the article, written by Adam Liptak, is excerpted below:

"The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.

Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations.

Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences.

The United States has, for instance, 2.3 million criminals behind bars, more than any other nation, according to data maintained by the International Center for Prison Studies at King’s College London.

China, which is four times more populous than the United States, is a distant second, with 1.6 million people in prison....

...."

For information about Massachusetts criminal law, see the criminal law page of my law firm website.

States Reconsidering Life Sentences for Juveniles

The U.S. is the only nation in the world imposing life sentences on children. A majority of U.S. states do incarcerate juveniles for life without parole, and we currently have nearly 2400 such juvenile offenders serving life sentences throughout the country.

It may come as a surprise to many that Massachusetts is one of those states in the majority. But the good news is there are people both here in Massachusetts and throughout the country working to stop this practice. The Christian Science Monitor last week ran the following article on the movement in many states around the country to reform or abolish these sentencing laws: States Reconsider Life Behind Bars For Youth - Christian Science Monitor, by Amanda Paulson .

Current prospects for abolition are not great, but this article does give some hope. I have previously argued for a ban of such sentences on human rights grounds and have discussed this issue in these previous posts: Deadly Delinquents, Deadbeat Dads, and the Dangers of Demonization and Massachusetts Youthful Offender Law Challenged in Worcester.

EXCERPTS FROM CHRISTIAN SCIENCE MONITOR ARTICLE:

Chicago - How should a society treat its youngest criminal offenders? And the families of victims of those offenders?

Half a dozen states are now weighing these questions anew, as they consider whether to ban life sentences for juveniles that don't include a option for parole – and whether those now serving such sentences should have a retroactive shot at parole.

Here in Illinois, proposed legislation would give 103 people – most convicted of unusually brutal crimes – a chance at parole hearings, while outlawing the sentence for future young perpetrators.

The proposal has victims' families up in arms, angry that killers they had been told were in prison for life might be given a shot at release and that they'd need to regularly attend hearings in the future, reliving old traumas, to try to ensure that these criminals remain behind bars.

Advocates of legislation, meanwhile, both in Illinois and elsewhere, note that the US is the only country in the world with anyone – nearly 2,400 across the nation – serving such a severe sentence for a crime committed as a juvenile. They criticize the fact that the sentence is often mandatory, part of a system devoid of leniency for a teenager's lack of judgment, or hope that youth can be reformed.

....

The current legislation in Illinois is unlikely to go anywhere, with its key sponsor backing away last week and saying more time is needed to dialogue with victims. Reform advocates hope to have new legislation introduced in the near future. Colorado outlawed juvenile life without parole in 2006, and legislation is pending in Michigan, Florida, Nebraska, and California, while a few other states are experiencing grass-roots efforts.

Some activists against the sentence say they hope they can work with victims' families to take their concerns into account even as they do away with the sentence. In Michigan, where a set of bills is before both the Senate and the House, activists have had some success building dialogue with victims, says Deborah LaBelle, a human rights attorney based in Ann Arbor and director of the ACLU's Juvenile Life Without Parole Initiative.

"We need to allow both voices to be heard," says Ms. LaBelle. But she feels strongly that the sentence is inappropriate for youth. "As every parent knows and as every social scientist understands, this is a time of ill-thought-out, impulsive lack of judgment, problematic years… To throw them away and say you're irredeemable as a child is a disturbing social concept."

For information and links related to Massachusetts criminal law see the criminal defense page of my law firm website.

Supreme Court to Consider Whether Death Penalty Can Be Imposed for Child Rape

Louisiana, one of only five states that has laws on the book permitting the death penalty to be applied not just for murder but also for child rape, is the first state actually to have sentenced anyone to death for anything besides murder in over forty years, and now has a man on death row who was convicted not for murder, but for the rape of his 8-year-old stepdaughter. After Louisiana's highest court narrowly upheld the constitutionality of that man's sentence, the US Supreme Court has now accepted the case for review, and will most likely hear arguments in the case in April.

Despite the Louisiana court's majority opinion that death sentences for child rape will protect children, the possibility of such death sentences may actually make children far less safe, as children who are rape victims would more likely be killed by their abusers, as the National Association of Social Workers (see the article below), has pointed out. Read the Washington Post article below to see yet more reasons, suggested by critics in the article, why child rape is not a crime that should get the death penalty.

Furthermore, if the US Supreme Court permits any state to carry out such sentences, it will further tarnish the human rights record of our country, which should instead be moving toward the abolition of capital punishment. Throughout the civilized world, capital punishment is recognized as a human rights violation. I'm with the civilized world on this one. But let's be realistic. Let's hope we can get at least five justices on the Supreme Court to do the right thing this time, and continue to reserve the death penalty for the crime of murder.

Justices to Consider Death Penalty Issue -Legality in Case of Child Rape at Stake, by Robert Barnes, Washington Post, January 5, 2008

"[....]

A divided Louisiana Supreme Court upheld the state's law allowing the death penalty for someone who rapes a child under the age of 13, with the majority saying they could not think of a 'non-homicide crime more deserving.'

'Since children cannot protect themselves, the state is given the responsibility to protect them,' the opinion said.

Kennedy was convicted after he reported to police in 1998 that his stepdaughter had been raped. The girl at first told police that she was assaulted by two boys in her garage in suburban New Orleans while sorting Girl Scout cookies.

But police arrested Kennedy when they found a trail of blood in the house. Still, 20 months passed before the girl identified her stepfather as her attacker. He was convicted in 2003.

The National Association of Criminal Defense Lawyers filed a brief urging the court to take the case because it said capital punishment was not fitting for a crime whose prosecution usually depended on the testimony of a young child.

'Such testimony is often unreliable because many children are susceptible to suggestion; they may confuse the suggestions of others with authentic memories; their stories may change dramatically depending upon when and by whom they are interviewed; and they recant their allegations -- whether those stories inculpate or exculpate the defendant -- at alarmingly high rates,' the brief said.

The National Association of Social Workers also asked the court to take the case, saying such laws do not protect children. In a brief the association said the statute 'will likely have exactly the wrong effect,' since offenders, knowing they will face execution whether or not they kill their victim, may decide it is worth it to get rid of a witness.

The case was among six that the court added to its docket yesterday. Cases accepted by the court at this time of year generally are argued in April, which is usually the last month the court hears arguments before it adjourns, typically at the end of June."

For information about Massachusetts criminal law, and children and the law, see Law Offices of Steven Ballard.

The Bush Regime: Human Rights Violator & Home Wrecker

“Families is where
our nation finds hope,
where wings take dream.”
George W. Bush, Oct. 18, 2000




Another great article by Human Rights Watch attorney Joanne Mariner appeared today, this one on the current, open question of whether our US Supreme Court will do the right thing, six years too late, for some of the unjustly imprisoned at Gitmo, in her findlaw article The Supreme Court Faces the Kangaroo Courts.

Also today, one example of our government's sad moral failure at Gitmo is chronicled in the Boston Globe opinion piece of Boston attorney Sabin Willett, who describes how the Bush administration, and our federal court system, have played the role of homewrecker in the case of one particular family man, whom our government will not release from incarceration even though our military has repeatedly admitted he is innocent. Consequently, this poor innocent man, who is concluding he will never be allowed to leave Guantanamo to return to his family, has decided to "release" his wife. 'I will never leave Guantanamo' (Op-Ed Piece in today's Boston Globe, by Sabin Willett).

Kids, the moral of this story is: It's hard to practice family values when you're violating human rights.

Massachusetts Youthful Offender Law Challenged in Worcester

The Massachusetts "Youthful Offender Law," passed in 1996, under which children between the ages of 14 and 17 charged with first or second degree murder are automatically tried as adults in Superior Court and face the same sentences as adults, including mandatory life in prison without parole for first degree murder, is being challenged as violative of the US and state constitutions in Worcester Superior Court in a case involving a 16-year-old recently charged with murder in the first degree. The law is being challenged, according to the article in the Worcester Telegram and Gazette (Worcester Telegram & Gazette News: "Adult trial law challenged/ Milford teen faces life sentence in fatal stabbing By Gary V. Murray TELEGRAM & GAZETTE STAFF gmurray@telegram.com") , as violative of constitutional prohibitions against cruel and unusual punishment and on due process grounds.

As mentioned in my recent post Deadly Delinquents, Deadbeat Dads, and the Dangers of Demonization, there is also international human rights law support available to challenge such laws. Unfortunately, state and federal courts all the way up to the US Supreme Court often do not show the appropriate respect for, or even attention to, international law. But I say pile it on. This looks to be an interesting challenge to a bad law, one that in my opinion is violative of human rights law and of US and state constitutional law.

"WORCESTER— Lawyers for a Milford teenager charged in a fatal stabbing are challenging the constitutionality of a state law requiring that juvenile murder suspects between the ages of 14 and 17 be tried as adults. Lawyers John G. Swomley and Kenneth J. King, who represent Patrick I. Powell, contend in a motion to dismiss the murder charge pending against Mr. Powell in Worcester Superior Court that subjecting their client to a mandatory sentence of life imprisonment if he is convicted would expose him to cruel and unusual punishment under the state and federal constitutions and deny him due process. Mr. Powell was 16 when he was charged with murder in the Jan. 6, 2006, stabbing death of 21-year-old Daniel Columbo during an altercation outside Mr. Columbo’s home at 26 Carroll St. in Milford. Mr. Columbo died as a result of a stab wound to the chest allegedly inflicted by Mr. Powell.....
....

Mr. Swomley, who was appointed to represent Mr. Powell, now 18, and Mr. King, who is affiliated with the Suffolk University Law School’s Juvenile Justice Center, argue in their motion to dismiss that a juvenile offender is less culpable than an adult who engages in similar misconduct because of 'psychological and cognitive immaturity.'

'Recent advances in neuroscience explain that a juvenile’s lack of impulse control, inability to consider consequences of actions or foresee alternative courses of action and propensity to take risks that an adult would not take are products of the juvenile’s incomplete cognitive development,' according to their motion. Mr. Swomley and Mr. King are seeking to introduce expert testimony at a Jan. 16 hearing on their motion, contending 'that when a juvenile’s incomplete development is understood, it becomes apparent that juveniles are sufficiently different from adults that they cannot constitutionally be subjected to the same mandatory penalties as adults. That is, a life without parole sentence implies a determination that a juvenile offender is as culpable as an adult who commits similar acts and is irredeemable. Evidence from neuroscience demonstrates that neither premise can withstand scrutiny,' the lawyers wrote."

Disturbing Stats in "A Guantanamo Index" - From Human Rights Watch Lawyer Joanne Mariner

FindLaw's Writ - Mariner: A Guantanamo Index: "A Guantanamo Index" By Joanne Mariner, Findlaw.com, November 7, 2007

Disturbing stats on Gitmo from Human Rights Watch lawyer Joanne Mariner.

Deadly Delinquents, Deadbeat Dads, and the Dangers of Demonization

In handling a very sad case in court today (a case I am sure I "won" but which brought no joy or triumph), I had a bright moment early on when I had the opportunity to speak at some length with a wonderful psychologist who works regularly with children, and spends a lot of time in juvenile court trying to help children to recover and to rebound from truly horrific circumstances. The optimism of this wonderful man cheered me up somewhat. When I complained about how depressing the juvenile cases often are, he told me he rather enjoys his role in helping to protect these children in court, and nurture these children through therapy.

DEADLY DELINQUENTS

It is easy for most of us to forget that just as children are resilient as victims, they also are capable of redemption and rehabilitation as offenders. If they can overcome the trauma of abuse, and other horrible experiences, and go on nonetheless to lead healthy adult lives, as so many do, they can also redeem themselves and be rehabilitated, even when they themselves have committed horrific acts. But we are all too quick to demonize and discard them just as we do adult perpetrators.

In some circumstances, for example when children engage in inappropriate sexual contact with other children, contact that would be considered abuse if initiated by older individuals, we don't actually label these child actors "perpetrators" but instead treat all the children in the situation, both the actors and the acted upon, as the unfortunate "victims." But there is a line that can't be crossed, it seems. If a child's crime is too horrific, these days we just give up on the child, forever, and lock him up and throw away the key, just as we would do with an adult perpetrator of such a crime. Our favorite way to rationalize this approach is to pretend that the child is actually an adult.

There recently appeared an excellent article by Sherry Colb, in a Findlaw Column on October 29, 2007, exploring the question of why we are now so quick to lock children up and throw away the key: Why Does the U.S. Sentence Adolescents To Life Without Parole? As Colb points out in her article, we did not always have this harsh approach, and our attitude seems somewhat dissonant with our basic sense of optimism. She postulates that we are somehow afraid of our own optimism, and lock up the children out of a sense of fear of that optimism. I am not exactly sure I agree with this theory, if I even understand it correctly, but it may be right. But I think there may be a simpler explanation for our harsh policy toward deadly delinquents. It is in our entire criminal justice system, that is, in our system for actual adults (not just the adolescents whom we selectively and inconsistently treat as adults), that we have become less forgiving, more punitive, and more willing to give up on people. Demonize. Discard.

I'm not sure that we should blame our harsh penal approach on any fear of our own optimism. I think there is something more distasteful at work here. It is fear, Colb is right, but it is a kind of fear that is making us lose our humanity. The U.S., in permitting its states to lock up children for life without parole (and Massachusetts is one among the vast majority of US states that presently do this), is quite arguably in violation of international human rights law. In 2005, the U.S. Supreme Court finally outlawed, in Roper v. Simmons, capital punishment for juvenile offenders, but that hardly brings the U.S. in compliance with human rights law, as I understand it.

Colb in her article provides a history of the developments in international law on the specific issue of life without parole for children. For more information about the issues of juvenile justice and human rights law, see the Human Rights Watch report of 2005 http://hrw.org/reports/2005/us1005/. We have moved away from state-sanctioned killing of juvenile offenders, but we are still guilty of a lesser international human rights law violation by locking up children and throwing away the key. That is because we let our anger cloud our minds and we allow ourselves to demonize these children. We inevitably lose some of our own humanity when we do so. (Just as we do when we lock up "enemy combatants" as we did in Guantanamo. Just as we do when we commit acts of torture....but I digress.)

DEADBEAT DADS

I have witnessed a lack of humanity in many prosecutors, who often find it easiest to view perpetrators, of whatever age, as purely evil, subhuman creatures for whom no punishment is too great. This inhumane, simplistic prosecutorial attitude was bizarrely evident in a recent guest article, on October 13, 2007, in the Washington Post by Wisconsin "deadbeat dad" prosecutor Mary Wagner - LINK to Washington Post article, Mary T. Wagner - Corralling Deadbeat Dads - washingtonpost.com, which is a tale about her experience prosecuting deadbeat dads.

Wagner seems to take delight in demonizing and punishing these men (I say men because we do not hear about the prosecution of any deadbeat moms in this article), and appears to lose all perspective. Particularly troubling for me was the following passage:

"The case is never about whether the deadbeat dad failed to make any payments for 120 consecutive days, earning himself up to a year and a half of 'maximum confinement' in prison and two additional years of 'extended supervision' reporting to a probation agent. It's about how the parent who stayed with the children had to work two jobs, never caught a break and sometimes had to take government assistance, and how the kids in the middle of it all felt abandoned -- how their world fell apart when Dad left.

Sometimes it's about a 10-year-old child coming to court with Mom, smiling but nervous with anticipation, wondering if the father who's been gone for years will recognize her in the gallery as he sits on a bench up front, wearing an orange jumpsuit and chains, waiting for our dance to begin. Those scenes never end well...."

It is terrible, Wagner says, that this dad has not paid child support. Yes, absolutely. But why not object to the sad fact that this child has been brought into the courtroom to witness her father in an orange jump suit and chains. The child, despite the child support arrears, apparently was fed and clothed while sitting in court, but how was that child feeling? It is horrible that the father doesn't know this child, agreed. But is it not also horrible that this mother brought her child into court to see her father in this circumstance? Have we all been desensitized by Jerry Springer?

I'm bothered that while Wagner can so easily demonize this dad, and discard him as a useless, evil deadbeat, there is not even the hint of the possibility that he might be worthy of some respect, and that after he finally gets out of jail, he might actually pay child support and even spend some time with his child.

There is a strong correlation between the payment of support by noncustodial parents and the degree of contact they have with their children. If we're really concerned about both support and parenting time, about the best interests of children, we should have a broader perspective. Sometimes there are deadbeat dads, and deadbeat moms as well, and sometimes they truly are demonic. Sometimes they never come around. But parents, and prosecutors, and judges, should always leave room for redemption, at least as long as these children are still children.

I'm reminded of a wonderful adult-like line of Lisa Simpson on an episode of the Simpsons, when her Aunt Patty was criticizing Homer in front of Lisa and Aunt Patty admitted she was "just trashing your father."

"I wish you wouldn't," said Lisa, "because aside from the fact that he has the same frailties of all human beings, he is my only model of manhood, and my estimation of him will govern the prospects of my adult relationships. So I hope you bear in mind that any knock at him is a knock at me, and I'm far too young to defend myself against such onslaughts."

Well said, Lisa.