Fagan is a professor at Columbia's Law School and its Mailman School of Public Health and serves as co-director of the Center for Crime, Community and Law. He is an expert on the juvenile justice system and a member of the MacArthur Foundation Research Program on Adolescent Development and Juvenile Justice. Here he discusses the legal and social implications of sentencing juveniles to life without parole and the history of America's approach to young criminals. This is the edited transcript of an interview conducted Jan. 23, 2007.
What benefit do you see [in] juveniles [serving] life without parole?
I think it satisfies an urge for vengeance on the part of many people in the American public who think that now that juveniles are no longer eligible for execution, it is the only punishment that they believe matches the severity of a homicide.
Are you convinced?
As a normative matter I am. If I had to express a personal preference, I would prefer that juveniles not be subject to life without parole. But it's very hard for me to construct a logic based on social science, ... behavioral science, case law, jurisprudence. It doesn't add up easily to that decision. Normatively it does add up to that decision [in favor of life without parole].
What does science say about juveniles who commit murder?
One of the weaknesses of the scientific research that's been cited in the [Supreme Court] juvenile death penalty case [Roper v. Simmons (2005), which abolished the death penalty for offenders under 18] as well as in this debate is that it's not necessarily about murderers. The scientific evidence [that] has been accumulating has been generally about juveniles and adolescents and young adults, and trying to show that adolescent brains are developing over a fairly long period of time, well into the 20s. But none of this research has been done specifically on murderers or even specifically on individuals who have committed seriously violent acts. So whether or not this brain research applies equally to murderers as it does to your everyday kid in high school is a question that science hasn't yet answered.
Yes, but you said, and most people say, that one way or the other, ... kids do not think like adults.
... There's consistent social science evidence from developmental psychology and social psychology that kids think and act differently than adults. Their ability to resist the influence of peers is diminished; their ability to foresee the consequences of their acts is different; their ability to regulate and control their emotions and their impulses is different. All of which adds up to a very different kind of behavioral makeup than for adults. They would approach a situation, reason it out differently, and in most circumstances act differently.
[This difference is] taken for granted in most circumstances in life but suddenly not considered when it comes to crime? ...
It's true. American law and Americans culturally have very ambivalent feelings about children. First of all, most societies have always had a very ambivalent feeling about children. Most societies have actually feared their young quite a bit. This goes back centuries and across cultures. In American society we, on the one hand, are willing to punish juveniles very harshly for committing very serious crimes, and we see them as very dangerous and also as morally culpable, because the punishments that we give them suggest that they certainly are fully blameworthy or blameworthy at a level almost the same as we hold adults.
On the other hand, we're incredibly paternalistic towards children. There are many things we don't allow them to do. We don't allow them to drive until they reach 16 or older; we don't allow them to vote until the age of 18, and even that's a fairly recent development; we don't allow them to marry until 16 or older, depending on the state; sign contracts; consent to medical procedures; operate a motor vehicle while drinking at all.
So we obviously don't think that children have full capacity to engage in all ... decisions with the same competence that we assume that adults do. ... If they can't drink until they're 21, why should they be held responsible to go to prison? If we don't let them pick up a rifle and join the Army until they're age 18, why do we let them go to prison for life, something they do before the age of 18? We don't have a real clear vision about our feelings about adolescents as a culture.
We are afraid of them?
Yes, we are, and I think that's one of the reasons why we have broad, sweeping laws that allow them to be incarcerated, or certainly punished very seriously and harshly, as young as 13 and 14 years of age.
It didn't use to be. The history of juveniles in America was ... a good history.
... We created a juvenile court, which is a special court for children, because we believed that children were different. ... It was created in Chicago in 1899, and in [1903, another was created] in Denver. These courts were founded on the principle that we don't really care what the child did; we care why he got to court. We wanted to know the background of his life, his social circumstances, in some occasions his psychological circumstances, and the courts sought to bring to bear on this child's life and his family's life whatever resources they had available to correct this developmental deviation.
Somewhere in the 1970s this began to change as juvenile crime rates crept up. ... [In] 1978 we passed laws that were very harsh in New York that made children eligible for punishment as an adult as young as 13 for murder and as young as 14 for a series of other crimes: robbery, aggravated assault and so on. So we certainly have shifted culturally from worrying about why kids do what they did to what they did, and we focus our jurisprudence now and our laws now on the consequences of their act, much less so on our ability to determine their culpability or even their underlying motivations. We don't care.
We don't care about this for a number of reasons. One is that we don't really think that these interventions are particularly successful. During the 1970s there was a fairly strong social movement among conservatives in the U.S. to claim that rehabilitation, both for adults and juveniles, was a failure; it didn't work. And without that justification, the raison d'etre of the juvenile court was seriously undermined. ... As each successive juvenile crime wave took hold, ... with the repetition of this cycle, ... laws were passed, and they piled up one on top of another, and there really wasn't any significant political opposition to this. ... The percentage of arrests and crimes committed by juveniles relative to adults really didn't change over this period of time, and yet the laws piled up, and they piled up more heavily against juveniles than they did against adults.
Because we were afraid; because juveniles were committing serious acts that got extraordinary publicity; ... because Americans had lost faith in the ability of correctional systems to do their job in punishing kids and then preparing them to return to the community; because we think that the character of adolescence itself had changed. Each one of these laws assumed that children were culpable at a younger and younger and younger age for serious acts, [for] which a generation earlier we had thought they weren't culpable. I don't think there was any evidence that the character or developmental capacity of juveniles had changed very much to merit these assumptions that these kids were any more culpable. The species had not mutated.
... I think there's another reason why the legislatures passed very harsh laws. There was a larger context to these laws, and the larger context was the incursion on the discretion of judges to mete out punishment. This was not confined to juveniles by any means. In the 1970s we passed determinant sentencing laws in three states; [in] the 1980s many other states followed suit. The federal government passed sentencing guidelines. There are many other instances of laws being passed which simply curtailed if not eliminated a large part of the discretion of judges to decide punishment. The reasons were that we thought that judges, from the perspective of the left, were being arbitrary and capricious in deciding who was eligible for harsh punishments and who wasn't. From the perspective of the right, we were worried that judges were being way too lenient and letting go serious offenders who committed terrible crimes because judges were soft-hearted and somehow saw some mitigating circumstance in their background and were emphasizing that mitigation. ...
Basically the idea now for a juvenile who commits a crime is punishment, punishment, punishment?
I think the predominant rationale with respect to punishing juveniles, whether in the juvenile court or the adult court, is now making sure that the punishment they receive is proportionate to the perceived severity of the crime that they commit. That's a reasonable assumption. But in many courts and in many legislatures, that's the only rationale for punishment. In the juvenile justice system there's been a strong movement over the past decade or so, maybe even a little bit more than that, to try and blend the perspectives of punishment and proportionality with the need to prepare juveniles for the life that they will resume once they leave incarceration. So there is now more of a "blended strategy," it's called in the juvenile courts. No such strategy exists in the criminal courts where most adolescents charged with [serious crimes are] adjudicated and convicted and sentenced.
What is the benefit of life without parole, and what is the real problem that society should be concerned with?
The rationales for punishment include retribution, deterrence and incapacitation. On the question of deterrence, there's almost no deterrent rationale from life without parole -- certainly no greater deterrent effect for life without parole compared to simply a sentence of life. We have no reason to believe that that extra 10 or 15 years of incarceration beyond the age of 45 or 50 years old is going to have any greater benefit in terms of convincing a juvenile not to commit a crime tomorrow than would simply a sentence of life. ... The reason is because kids simply are imperfect decision makers, and they don't foresee consequences. They're very present-oriented, as we say in psychology; ... they consider only the immediate cost and the immediate benefits. They're really not going to worry about punishment that's way down the road. They discount it, in other words. So there's very little deterrent effect of a life-without-parole sentence over and above the deterrent effect of a life sentence or even a 40-year sentence.
Retribution is hard if juveniles are imperfect decision makers. In the Roper case, the juvenile death penalty case, the Supreme Court said that retribution purposes probably aren't served by extremely harsh punishments, in part because juveniles are too young to perceive the moral cost of their act. ... So retributive purposes aren't really served by it.
Incapacitation? Of course kids are incapacitated for the rest of their lives. That's the definition of it. But incapacitation isn't well-served either, because the odds of a kid committing another serious crime beyond the age of 50 or 60 or even in their 40s is quite low. So I'm not sure that the benefit of incapacitation is really achieved in the sense that we're preventing any crimes from being committed that would be committed if this kid were free and on the street. ...
So what do we gain with life without parole?
Vengeance. Vengeance is a very powerful motivator. We get vengeance, extreme vengeance, for kids who have committed serious crimes. ... Life without parole for a juvenile is a bit like being buried alive. They can no longer see the future, and if they do see the future, it's essentially a horribly bleak future. ... Their entire lives are before them, and it's being locked up in very harsh conditions, very dangerous conditions often, with no hope that at any point before they die that they will resume a life of any meaning. This is a very, very harsh punishment. Retribution in this case is supplanted by vengeance, and I don't think in the U.S. we really have constructed our legal framework of punishment, our theories of punishment or practices of punishment, to allow for that kind of extreme vengeance. Vengeance is not justice. Vengeance is vengeance.
Are we aware of what happens to children when they go to jail?
We're just starting to get a picture of what an entire generation of young people experience when they're sentenced to life without parole. We're just starting now to get a feel for what they're thinking and feeling. We know what the families of the victims of their crimes feel as well, but we're now just starting to get a sense of the feeling of juveniles. So we can try and weigh the loss of families, which is quite horrible, against the level of punishment and the severity of punishment of juveniles and make a decision societally about whether we're achieving the goals of justice, retribution or any other component of punishment relative to what this punishment really is like when it's experienced.
... It's hard to do research in prisons. ... In fact, funding for prison research is extremely limited -- [there are] very few opportunities to go into prison and do these studies. We've done studies on the impact on families of incarcerated prisoners, but we have no idea about how kids themselves experience it, and we don't have a specific view about incarcerating adolescents for the rest of their lives, and I think that information would actually be quite helpful in shaping this debate in a kind of rational way.
Do you have any idea why there are over 2,000 [juveniles] serving life without parole [in the U.S.] as opposed to 12 in all rest of the world?
Editor's Note: The figure of 12 juveniles serving life without parole in the rest of the world is based on numbers reported by individual nations to the United Nations' Convention on the Rights of the Child.
Well, there are a few reasons. ... The U.S. punishes more harshly and often than other countries; we know this across the board in criminal justice. But we also have structured laws in a way that creates a fairly wide space in which kids become eligible for lifetime incarceration, permanent incarceration. Often they come in under the felony murder rule, which is a fairly broad set of laws which allows for incarceration for participation at almost any level of a homicide. Even if you were driving the car or if you bought the gasoline that filled up the car that was then driven to the homicide event, in some states that would get you eligible for life without parole.
But we also have a number of statutes -- for example, three-strike statutes or even two-strike statutes in some states -- that allow kids to be incarcerated [for] life without parole for having committed a second drug-dealing offense. So it's a very broad set of laws which have a very elastic and expansive definition of extreme societal harm, [which] is often the rationale for using these kinds of punishments. ...
We love kids. We adore kids. What is this switch, this craziness?
Well, we love kids who do well, and we want to protect them from harm, but we don't love kids who do badly. And we have less and less forgiveness as a society for kids who do bad things or who even do very bad things. Perhaps we're trying to satisfy our natural instinct for protection; perhaps we're trying to satisfy an instinct for retribution and punishment, which ... [is] perhaps stronger here than in other countries. Perhaps we're using such harsh punishments to compensate for the weaknesses of our legal system and our policing regimes, which often are challenged to be able to solve crimes and even to prevent crimes. ... [In] the U.S. we tend to lean very heavily on the legal system to do the work that in other countries is done by the social welfare systems, by cultural mechanisms, by societal cohesion. ...
Let's talk a little bit about Colorado. I know that you don't know all that much about it, but we know that the law has been changed from life without parole to now 40 years and you're eligible. What does it mean?
Colorado is one of the few states -- perhaps the only state, at least thus far -- that has reversed their life-without-parole statute for juveniles. Now, a bit of context is important here. After almost three decades of fairly tough laws, many states now are rethinking those tough laws about juveniles. So states like New Hampshire, Connecticut, Colorado, now North Carolina, other states, are now considering raising the ages of eligibility for the criminal courts and for such harsh punishments. They're thinking of restoring the juvenile court ideology, or at least partially restoring it, and strengthening it. So there's a general feeling that we perhaps have gone a little bit too far. ...
Colorado is a complicated state, as many other states are, with differing philosophies at play in the Legislature. But in Colorado, the power of the media was shown, because ... the media developed very rich stories, very thick descriptions, as we say in anthropology, which allowed people to understand the conflicting dynamics between the interests of the victims, the interests of the state, the interests of the kids, and the difficulties of the courts and of the Legislature. Created a space in which a new dialogue could emerge. And out of that new dialogue came a more balanced and temperate law. There are lessons there about the power of information, perspective, calmer debate.
I don't think this debate could have taken place at the peak of the juvenile crime wave. It certainly couldn't have taken place 10 years ago, when juvenile homicides were far higher than they are today. But juvenile homicides are lower today, and so there is a political space in which this kind of debate can take place. And this debate can only take place when ... rich, detailed, balanced information can be put ... before the public.
When you're 15, that 40 years in prison is not a very attractive prospect. ...
Forty years is tough, but they can look around and see other people who serve 40 years and who leave prison and resume at least some parts of a normal life. They can begin to reattach with families; they can become members of communities; they can become parts of church, neighborhood, family; they can become employed. They can resume, at least for a period of time in their lives, a productive life among a different group of individuals than they would face for the rest of their lives in prison.
Is it also a point of departure for further reform?
That's a good question. I don't know how much more reform there will be. I think there will be general reforms in the juvenile justice system. I don't know that there will be reforms at the deep end of the juvenile justice system, that end of the system where we adjudicate and punish very serious crimes by juveniles.
Colorado, when it passed that law, did not make it retroactive. What do you make of that?
... I think the decision not to make it retroactive was probably a compromise, perhaps a political deal. Why? Well, the change in the law itself was created within a political space. The political space happened because the Legislature had information on the table. There was not a sense of urgency because the juvenile crime rates were lower than they had been 10 years ago or 15 years ago. But also, in this political space the families of victims are very powerful advocates, and one could certainly argue that if you were to make this law retroactive and re-sentence these juveniles to something less than life without parole, that you were taking something away from the families of victims: What they felt was a sentence that reflected a justice, perhaps a vengeance that they felt they deserved because of the loss that they suffered. I can certainly understand the politics of such a thing, of such a deal.
Do you understand the justice of such a deal?
Well, that's a very good question. I don't know that I understand the justice of such a deal. I think the politics of criminal punishment in the U.S. often trump issues of justice, so I'll understand it better as a political question than as a justice question.
[It's] very sad when you see these kids and what their life is like. ...
Following Roper v. Simmons, every kid on death row, every person on death row who had committed a homicide below the age of 18, was then re-sentenced to some other sentence. I think all of them have received sentences of life without parole. So it's not hard to see the strength of the political force operating in cases when serious crimes have been committed.
But Roper, it was retroactive.
Roper was retroactive and not without controversy. ... Don't forget, the courts think about questions of punishment other than death very, very differently. The jurisprudence of the death penalty says that death is different and the rules are different. The Supreme Court and federal circuit courts have often ruled in cases involving juveniles and life without parole that because we're not talking about death, we really don't have to consider the proportionality issues of extraordinary punishments for juveniles -- punishments that are like being buried alive. The courts have generally decided not to do that. I don't think this issue is going to be settled in the courts for that reason. I think this will be settled in the state legislatures. And the story of Colorado is an interesting story that will continue to unfold, but I would imagine at a fairly slow pace over time.
... I think the course of action that was taken in Colorado, which was to work through the Legislature rather than the courts, is probably the one that will be the most persuasive to the U.S. Supreme Court, as well as to state courts and lower federal courts, when challenges to these laws come up. I don't know that we're going to see the big Roper-type grand-slam Supreme Court decision that's going to invalidate this law. I think this is going to be more of a slow accretion and buildup of state-by-state sentiment opposing this.
[How does the issue of felony murder rules come into play?]
Felony murder rules will [lead to life-without-parole sentences for juveniles] probably on balance more than for adults for a simple reason: Kids do crimes in groups. This is a criminological fact as old as time, since we've been doing criminology. They understand that kids are more likely to commit crimes with other juveniles in their presence than adults. ... Because of the structure of the felony murder law -- which assigns and distributes culpability across everybody involved in a particular crime -- [and] because kids do crimes more in groups, just simply as a matter of ... the simple pattern of facts, kids are more often going to be exposed to this than others.
... We care about what kids do and the consequences of their acts. We socialize kids to think about the consequences of their acts. So the felony murder rule punishes people for the consequences of their acts and diminishes the importance that we assign to the reasons why they do it. One of the reasons for passing this law is that if we were to go back to the old system and worry more about why kids did these crimes, we'd be putting our faith in the hands of judges, social workers, psychologists and others to accurately divine the state of mind of a kid at the time a crime was committed, their capacity for moral reasoning in that particular case involving that particular kid. And [we'd have] to develop a punishment scheme that would reflect where we saw their culpability.
That's too much work?
I think it's a fair question to ask whether judges have the capacity to make those kinds of calls. One of the reasons why we have determinate sentencing and sentencing guidelines in this country, why the legislatures have voted little faith in judges to make those kinds of calls, was because they committed a particular kind of error, and that was the error of the false negative. In crime and justice [American society doesn't] worry much about false positives. We're willing to lock people up at a lower level of culpability, or even perhaps if they're innocent. We know that there are now many ... cases [that] result in wrongful incarceration. We're willing to tolerate those errors because we are less willing to tolerate an error where we let a guilty person go free. ... Now, that's a kind of one-sided view, because of course if we incarcerate innocent people, then the real offenders are still out there committing crimes. ...
This is a dramatic reversal of [the] American judicial and normative philosophy ... that we cherish the freedom of individuals, and we desperately wanted in the past to avoid wrongful incarceration of somebody who was actually innocent. Now things have changed. ... Felony murder rules suggest that we aren't to worry about why the kid was driving the car; we certainly are going to punish the kid for driving the car because we worry that he might drive it for the next time. ...
[Felony murder] is a very broad, sweeping law that often results in severe punishment for people whose culpability probably is not at a level sufficient to merit that severity of punishment. In other words, felony murder rules expose people to very harsh punishment, assuming they're fully culpable; often they're not fully culpable. ... They may not have even known that the gas was being used to fuel the car that was going to the crime scene; they just bought the gas. ... Or they supplied the gun, or they drove the car, or they loaned the car to the people who were going to go do the crime, or they unwittingly brought the victim to the crime scene. All of these things can make somebody eligible for punishment under felony murder. The fact that kids do crimes in groups disproportionately creates liability for kids.
I think it's terribly unjust, and I think it doesn't make sense, which is worse.
Imagine that you're in a small town in the Southwest and a judge has been appointed who's an old friend of the state legislator, and the judge has a court staff who are responsible for interviewing the families of the kid who's been incarcerated, who has been charged with this crime, and psychologists from third-rate universities who are practicing in small, out-of-the-way places rather than in larger population centers. Imagine that you are going to trust that group of people to divine the culpability and state of mind of a kid who participated in a murder. I don't trust that judge to make that call in either side of the error scale.
So when in doubt, lock them up.
No. When you doubt, you don't lock them up. When you doubt, you have a metric of punishment that is more accurately structured and indexed to the severity of the crime and the person's role in that crime. The person drove the car, he's less culpable than the person who pulled the trigger.
But [under current law] he's going to get the same punishment.
Well, we might want to think about indexing the punishment for the driver differently than the shooter.
Like I said, it's not just.
It's not proportional.
[Life without parole as a] punishment is extremely harsh.
Assume that you're locked up at the age of 16 for life. You have no ability to develop any social ties, meaningful social relationships, meaning emotional relationships to anyone who you don't already know at the time you enter prison other than the people who you meet in prison. So this has a number of consequences. One, if 16 to 22, 24, 25 are really critical, formative years, then these kids are being socialized by other convicts, many of whom have done terrible things. So their socialization trajectory is really going to be fairly predictable. Second, to the extent that they do grow up and reach 40 and 50 years of age, all those people who they knew when they were younger will go by the wayside; many will die; family members will die. It's unlikely that their ties to younger cousins or neighbors are going to sustain over such a long period of time, so by the age of 40, they're in there by themselves for the long run.
... This is a very skewed emotional and social life, which will have very severe developmental consequences for kids who are locked up at very young ages with no hope of getting out. The ability to develop and sustain ties to a very broad range of people who will give them both good influence and bad influence -- people who will give them perspective, people who will share their own personal human and emotional and psychological capital with them -- is very unlikely to happen for kids who are facing extremely long sentences.
In a way, kids are punished more?
Kids are punished more if they're locked up before the age of 18 permanently than if they're locked up, say, at the age of 21, 22, 25 permanently. A 19-year-old is punished pretty permanently as well, but society draws lines, and ... I think Americans are very comfortable with the idea of adulthood beginning at 18. Why we think adulthood with respect to criminal activity begins before 18, whereas adulthood with respect to, say, drinking alcohol or voting doesn't begin until 18, is beyond me.