Eliminating Life Without Parole for Juveniles:

An Incremental and Principled Change

Written Testimony Submitted to the House Subcommittee on

Crime, Terrorism, and Homeland Security

June 9, 2009

Mark William Osler

Professor of Law
Baylor Law School
1114 S. University Parks Dr.
Waco TX 76798-7288
(254) 710-4917
[email protected]

  1
 My name is Mark Osler. I am a former federal prosecutor (E.D.
Mich.) and currently serve as Professor of Law at Baylor Law School in
Texas. My teaching and study concentrate on sentencing and questions of
faith related to criminal law. I welcome the chance to address the issue of
life without parole for juveniles. My testimony will focus on placing this
bill in context—both the larger context of broad changes in sentencing and
the idea that this bill is consistent with a principle that is a part of the faith of
most Americans.

I believe in punishment, and I believe that incarceration of the violent

and the dangerous is necessary to an ordered society. I am proud of much of
my work as a prosecutor, and that includes urging judges to impose many
long prison terms. My time as a prosecutor also allowed me insight into a
city with a particularly troubled legacy of violent children. In my hometown
of Detroit, that legacy was largely created in 1978. That summer, a drug
trafficking gang known as Young Boys Incorporated took over much of the
heroin trade on the streets of Detroit. Their tactics were particularly
heinous—as its name reflected, it relied on juveniles to do much of the hard
work, and the killing, related to drug trafficking. The template established
by Young Boys Incorporated was copied by drug gangs in that city for at
least two decades, resulting in a disheartening number of children accused of
very serious crimes. As a prosecutor in Detroit in the late 1990’s, I saw the
power of this legacy as young boys and girls were still commonly used in
the drug trade.
The bill under consideration would not allow children such as those
involved with Young Boys Incorporated to escape prosecution, or to avoid a
long prison sentence. It would, however, give them hope that someday,

  2
perhaps in middle age, they might see something other than the inside of a
prison. Life with the possibility of parole would be both a reasonable and a
principled incremental change.

I. The Context of Modern Sentencing

The changes proposed by H.R. 2289 are not sweeping. Rather, they
represent an adjustment that would affect relatively few cases, as compared
with the total criminal caseload. This is consistent with the current trend in
criminal law generally. We are not in a period of sweeping legal changes
but one of small steps taken to “right-size” the relationship between
retribution, rehabilitation, and relative culpability. I will first discuss this
broader context, and then contrast it with a period of genuine sweeping
change, 1984-1986.
In the federal and state criminal justice systems, we see similar
movement in many jurisdictions. The members of this committee are very
familiar with the changes at the federal level, as they are very often
considered here. Notably, these changes have been small and thoroughly
deliberated.
Most recently, for example, we have seen a reconsideration of the
federal sentences we impose for possessing and trafficking in crack cocaine.
Thus far, those changes have been driven by the Supreme Court and the
United States Sentencing Commission. The Supreme Court has ruled, in
Kimbrough v. United States1 and Spears v. United States,2 that sentencing
judges may reject the 100:1 ratio between powder and crack cocaine
contained in the federal sentencing guidelines. In turn, the Sentencing
                                                        
1   128 S. Ct. 558 (2007). 
2   129 S. Ct. 840 (2009). 

  3
Commission has lessened (but not eliminated) that disparity. Meanwhile,
members of this committee have authored bills which would entirely
eliminate the disparity between crack and powder. Though these changes
are significant, they only affect a fraction of drug cases, which in turn are
only a fraction of the total criminal caseload. Moreover, the changes to the
crack guidelines have been incremental and well-considered; for example,
these changes have found support in the massive 2007 study of crack
sentencing conducted by the Sentencing Commission itself.
In the realm of the death penalty, we are also in an era of incremental
change. In relation to this bill, for example, the Supreme Court’s 2005
decision in Roper v. Simmons3 did not radically change our use of the death
penalty, but rather eliminated a small group of defendants (children) from
eligibility for the sanction of death.
In the states, the movement is also towards incremental rather than
sweeping changes. In many states, such as Ohio, these changes are driven
by financial constraints as tax revenues dwindle. One of the more severe
financial crises affecting criminal law is in California, but even there we are
seeing a genuine reluctance to engage in wholesale change, an a deliberative
dialogue about incremental change has taken place.4 The mood overall is
not an atmosphere of dramatic or reckless transformation, but instead
reflects ideas (like this bill) which constitute a thoughtful re-evaluation of
narrow and specific aspects of sentencing and incarceration.

                                                        
3   543 U.S. 551 (2005). 
4   For more information on the California budget cuts and the changes that result, 

see the excellent California Correctional Crisis blog 
(http:Californiacorrectionscrisis.blogspot.com), which is maintained by students 
and faculty and students at U.C.‐Hastings Law School. 

  4
 Not every era is this way. In contrast, from 1984-1986, federal
criminal law was drastically changed, often with little deliberation or debate.
The Sentencing Reform Act of 1984 abruptly abolished parole and created
the United States Sentencing Commission to establish strict and mandatory
guidelines to restrict judicial discretion in sentencing. The same year, the
Bail Reform Act of 1984 created broad presumptions in favor of detention
before trial, which was a radical change from prior practice. Subsequently,
the Anti-Drug Abuse Act of 1986 mandated harsh mandatory minimum
sentences for drug crimes, despite the fact that no hearings whatsoever were
held on this change which may have been the most significant of all.5
Getting rid of parole entirely, largely rejecting presumptive bail, and
sharply limiting judicial discretion in nearly all criminal cases—that is
drastic change, and in stark contrast to the relatively minor, incremental, and
well-substantiated modifications contained in this bill.
The fact that these are small changes on a large body of existing law is
also important context in relation to the federalism concerns that some
members of this committee have expressed. The bill would withdraw some
funding from states which continue to impose sentences of life without
parole on those who committed their crimes as juveniles, and there can be no
doubt that this implicates questions of federalism. This bill would, certainly,
use federal money to direct state decisions. However, the funds would be
withheld under the provisions of the Edward Byrne Memorial Justice
Assistance Grant Program, which already directs state decisions in a startling
number of ways. That program presently contains well over 60 specific

                                                        
5   Those mandatory minimums are codified at 21 U.S.C. § 841(a) .  For a compelling 

discussion of this process see Eric E. Sterling’s Drug Laws and Snitching:  A Primer, 
available at http://www.pbs.org/wgbh/pages/frontline/shows/snitch/primer/. 

  5
directives to the states on what they must (or must not) do to receive federal
funding.6 While this bill would add one additional condition to the use of
this money, a challenge to federalism cannot be properly viewed in isolation.
If the harm perceived in this bill is that the federal government is granting
money in order to achieve federal (not state) policy goals, that pattern is
already established by the grant program itself, and will not change whether
or not this bill becomes law.

II. The Principle of Balance

The present trend towards incremental changes in which we back
away from the most retributive parts of our criminal justice scheme is not
only consistent across jurisdictions, but echoes the traditional religious value
of seeking a balance between the virtues of justice and mercy.
In what has become one of the best-known scriptural passages in this
nation, Micah 6:8 advises the people of Israel thus: “And what does the
Lord require of you? To act justly and to love mercy and to walk humbly
with your God.” To those in criminal law, the passage presents a challenge.
If justice means to treat people equally and with a sense of punishment, and
mercy means to offer an unearned chance for redemption, the two are in
tension.
This tension reveals at least two truths: That we are to be humble in
considering the question, and that our justice systems must incorporate some
elements of both justice and mercy.
This requirement of balance between justice and mercy speaks
directly to the bill at issue, which does stake out territory somewhere
between purely retributive justice (life without parole) and mercy (release or
                                                        
6    42 U.S.C. §§ 3743‐ 3797. 

  6
a short sentence), and neatly incorporates aspects of both. The bill allows
for retributive sentences, even of life in prison, but also offers the hope of
redemption in the form of parole. Notably, this hope is different than the
promise of a shorter sentence, and is tied to the behavior of the prisoner
himself, as parole will more likely be granted to those who have turned away
from violence and drugs.
The child sentenced to life with the possibility of parole is still likely
to perceive the weight of a nearly overwhelming punishment. The position
of such a convict is perhaps best described in Lamentations 3:27-29: “It is
good for a man to bear the yoke while he is young. Let him sit alone in
silence, for the Lord has laid it on him. Let him bury his face in the dust—
there may yet be hope.”
Life with the possibility of parole for a child will encompass precisely
this balance between values Americans treasure.

III. Conclusion
I cannot pretend that this is an easy issue. As a child, our family was
close with our next-door neighbors on Harvard Road in Detroit. The
children played in the yards as the parents sat on porches and laughed. We
remained close as the families moved and the children grew. In 1990 the
father in that family, Benjamin Gravel, was shot and killed by a group of
fifteen-year-old and sixteen-year-old children who were trying to steal his
car. Two of the defendants received life without parole sentences for killing
the man I had run to with skinned knees or important news. I saw directly
the righteous pain and anger of his wife and children.
Though the issue is difficult for those of us who have known or been
victims, we should not look away. There is something very deep running

  7
through a discussion of imprisoning children for their natural life, because
the crimes of our children reveal so much about the nature of our society as a
whole: the children who killed Mr. Gravel were a part of my community. I
fear that part of what we do when we lock up a child forever is absolve
ourselves, the adults. So long as the crime is the result of a child’s evil alone
(and thus merits giving up on that child for his natural life), we bear no
responsibility as a society, as adult political actors. Yet, an examination of
the lives of child offenders reveals something different— what we would
like to see as pure evil is too often a product of what we have tolerated in our
community of adults. The shocking thing about Young Boys Incorporated
is not that children committed murders and sold drugs on the command of
adults, but that they were made to do that for the eight years that the
organization thrived in plain sight. For eight years we tolerated an
organization that did such harm, and addressed it largely by sweeping up
those very children at the center of the evil.
Addressing the societal forces that mold felon-children raises complex
societal questions that run into thorny issues of economics, culture, the role
of government, and free speech. The easy answer is to ignore those
questions and push all of the evil onto the child, but to do so is wrong. To
lock up a child forever is against our good and present impulse to back away
from the most severe retributive sentences. It also is against a faith
imperative, the balance between justice and mercy, which informs
Americans when we are at our best.

  8