Published Saturday May 23, 2009

BY MICHAEL NELSEN

The writer, of Omaha, is a lawyer.

Most people would agree that a juvenile offender should not be sentenced to life in prison without parole for violating his probation.

But that is exactly what happened to 17-year-old Terrance Graham of Florida. His case will soon be heard by the U.S. Supreme Court (Graham v. Florida). The matter was reported on May 5 in the New York Times.

This case brings into sharp relief the sometimes hidden fact that quite often juveniles (those under 18) are sentenced to life without parole for offenses committed while under 18 (and sometimes as young as 13). Nebraska currently has such a law. Kansas has no such law. This situation is more prevalent than one might think. Recent studies show there are currently nationwide more than 2,000 juveniles serving life without parole. Michigan, for example, has 346 such cases. In one-third of those cases, the crime involved was a first offense. Recently, the Michigan Legislature has considered abolishing its statute, since it costs a fortune to warehouse a juvenile for the rest of his or her life.

In a survey done in 2005, Nebraska had 21 such cases. Nebraska now has 24. According to the Times article, the United States is the only country in the world to lock up juveniles for life without parole. One recent study showed that in a number of cases, the juveniles sentenced to life had been accessories or look-outs for the perpetrating adult criminals.

In no other area of the law are juveniles treated like adults. A juvenile cannot legally enter into a written contract. Nor can a juvenile sue in court in his or her own name. A juvenile cannot waive his or her rights to medical care.

The facts in Terrance Graham’s case are interesting. Graham had been previously convicted as a minor of armed robbery. He was put on probation. He later committed a home invasion robbery when he was 17. Without being convicted of the home invasion robbery itself, he was found in violation of his probation and sentenced to life without parole. He is now an adult.

His lawyer has been quoted as saying: “When our children make mistakes, are we going to lock them up and throw away the key for life?”

The Florida Appeals Court, which heard Graham’s in-state appeal, opined that “a true life sentence is typically reserved for juveniles guilty of more heinous crimes such as homicide.” But the court went on to say, Terrance Graham “rejected his second chances” and “chose to continue committing crimes at an escalating rate.”

Recently, the U.S. Supreme Court has cut back on the ability of states to punish juveniles. The Court ruled in Roper v. Simmons that those committing capital crimes while younger than 18 years old could not be put to death. The majority held that teenagers were immature and easily influenced by peer pressures. Justice Anthony Kennedy stated, “Even a heinous crime committed by a juvenile” is not “evidence of irretrievably depraved character.”

We will see if the Supreme Court applies the same principles to the Graham case.

Turning to Nebraska, there has been a recent effort in the Legislature to do away with life sentences like this. The proposed legislation would make the sentence 50 years to life for those 16 or 17 when the crime was committed. Juveniles would be parole-eligible after 25 years in prison. Those younger than 16 would face 40 years to life,and be parole-eligible after 20 years.

The legislation stands little chance of passing this year. The penalties would still be stiff, but at least there would be a possible end date.

The bottom-line question is: Do Nebraskans want to continue locking up juveniles for life, or are we content to wait until the U.S. Supreme Court tells us not to do it anymore?