OP-ED: Texas Struggles to Enter the 20th Century

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John Lash

Texas legislators are once again taking up the debate on what to do with 17-year-olds convicted of murder. The issue was set to be debated a few weeks ago, right after the Senate addressed limiting abortion rights, but Wendy Davis’ 13-hour filibuster of the anti-abortion bill ran out the clock on the regular session. Gov. Rick Perry quickly scheduled a special session, however, and on Thursday the fate of these kids will be back in the hands of the Republicans. The outcome will not be good.

Kids who are 17 have fallen into a strange gap in Texas law. Adults convicted of murder face two clear options: life without parole or the death penalty. In 2005, the U.S. Supreme Court ruled in Roper v. Simmons that imposition of the death penalty for those under 18 was unconstitutional. Last year, in Miller v. Alabama, the court again limited the harshness of sentencing juveniles, finding that states could not statutorily impose life without parole without offering other options. So, with these two options off the table, what’s a conservative legislator to do?

An easy solution is to match the sentences of 17-year-olds with those of younger kids found guilty of the same crime. The 14-, 15- and 16-year-olds with murder convictions receive life with the possibility of parole after serving 40 years. These types of sentences have so far held up to court challenges, and this is the route that the legislature is expected to take. But is it truly just?

Take a moment to consider. These kids will be between 54 and 57 when they become eligible for parole. They will have spent a lifetime behind bars living in a cruel and destructive environment. A kid who gets that sentence today will have a chance to be free in 2053. Imagine yourself as a 17-year-old today, then walking into a totally different world 40 years later. There is no logic in this beyond the desire to punish, and no one will benefit.

No one denies that we want to see justice done, and I am not trying to minimize the damage that a lot of these kids have done. What, though, is the purpose of subjecting them to such a punishment? It goes against the growing consensus that kids are different, and that the kinds of punishments meted out to adults just doesn’t fit these cases. This awareness lies behind the court’s decisions. The only valid reason to keep them locked away is if they remain dangerous. A life sentence takes care of that. A parole board should be empowered to evaluate suitability for release, the needs of justice and to determine when mercy can be extended. Cases can be dealt with individually, as they should be. There is no need for the excessive mandatory minimums we are seeing in response to the Miller case.

The attempts of legislators around the country to subvert the intention of the court would be laughable if not for their sheer cruelty. The worst part though is that this kind of posturing is unlikely to be motivated by real moral considerations, but instead by looking for the political posture that makes them look tough on crime. Their desire to be elected, and re-elected, trumps real mercy and justice. Possibly, public opinion will lead to a change in policy, but I doubt it. More likely is that it will take the action of the courts to drag Texas and other recalcitrant states into the modern era.

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