Opinion: Cruel, unusual, and “freakishly rare.” *

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The Times published an editorial April 30 criticizing life sentences without parole for California juveniles as young as 14 and supporting a bill by state Sen. Leland Yee that would permit such inmates to eventually seek parole – after they’ve spent at least a quarter century in prison. The editorial cited the case of South Los Angeles resident Antonio DeJesus Nuñez, who may be the only person in the world sentenced to life without parole for a crime he committed as a minor in which no one died or was injured.

That’s not an overstatement. The New York-based Human Rights Watch asserts that the United States is the only nation in which minors are sentenced to life in prison without parole; we have 2,571.

A 2007 report from the University of San Francisco did find some youth outside the U.S. sentenced to life without parole: a grand total of seven of them, all in Israel. [*UPDATED: See below.]

The United Nations Convention on the Rights of the Child bans life without parole for youth, but the United States is one of only two U.N. member nations that have not signed it -- the other being Somalia.

Nuñez was 14 at the time of his arrest. He was convicted of a frightening and brutal crime – kidnapping a man for ransom. And, by the way, he shot at police officers when they gave chase. Prosecuting him made sense. Imprisoning him made sense. But life? With no chance of parole? For a crime he committed when he lacked the judgment and maturity, in society’s view, to drive a car, vote, honor a contract, marry without parental consent, join the military or go to an R-rated movie? Should he never get a second look, once he grows up and we can see whether he studied in prison, behaved, repented? Do we believe that some youths are simply irredeemable, and that in our wisdom we can look them over at age 14 and know which ones can be salvaged as adults and which can’t?

The same day the editorial ran, California’s Fourth District Court of Appeal granted Nuñez’s habeas corpus petition and threw out his life without parole (the legal jargon is LWOP) sentence, ruling that it violated constitutional strictures against cruel and unusual punishment and ordering the trial court to resentence the inmate, who is now 22. Read the court’s opinion here.

For those who believe it’s too costly, too cruel and just plain too bizarre to sentence a teenager to LWOP (more jargon – JLWOP, with the J standing for juvenile), the ruling was good news. But only sort of.

The court’s opinion flirts with alarm at the notion of a 14-year-old having no future but to live and eventually die in prison for an act done at an age before society generally expects a person to have a fully developed moral capacity. It cites Roper v. Simmons, the 2005 U.S. Supreme Court case that struck down the death penalty for perpetrators under 18, in part because of three basic differences between youth and adults:

‘First’ – quoting from the Nuñez court’s summary of Roper – ‘juveniles lack maturity and responsibility and are more reckless than adults. Second, juveniles are more vulnerable to outside influences because they have less control over their surroundings. And third, a juvenile’s character is not as fully formed as that of an adult.’

But in the end, the Nuñez opinion’s author – Justice Richard M. Aronson of the court’s Santa Ana-based Div. Three – made it clear that the boy’s sentence had to be overturned because of circumstances that are ‘freakishly rare,’ and may be of limited use to other inmates sentenced in their youth.

The freakishness is in the sentencing law; the statute governing kidnapping a man and putting him in mortal danger requires an LWOP sentence regardless of the perpetrator’s age. But the statute dealing with special circumstances murder, including kidnapping, for offenders under 16 allows only life with the possibility of parole. Put another way, Nuñez would have been better off if he had killed the person he was kidnapping. It’s only one prong of the court’s three-prong test for invalidating the sentence, but it’s the one that stands out.

So advocates for an end to JLWOP can accurately note a trend away from sentencing violent youths as though they were competent adults, with the Roper ruling invalidating execution and now the Nuñez case granting habeas in a life-without-parole sentence. But JLWOP supporters may try to frame the Nuñez case as the exception that proves the rule – that except for this freakishly rare circumstance, JLWOP generally is legal.

Now another shoe has dropped. Yesterday, the U.S. Supreme Court took review of two JLWOP cases in Florida. Joe Sullivan was 13 when he was sentenced to life without parole for rape of an elderly woman in West Pensacola. Terrance Graham was 17 when he drew LWOP for violating parole after an earlier home robbery conviction. Both crimes were brutal. Neither resulted in death.

More good news for advocates of ending LWOP? After all, this is the Roper v. Simmons court, the one that enumerated how youth are less culpable for their actions and then invalidated the death penalty for crimes committed by minors. But Roper was a 5-4 decision, and the court could just as easily go the other way because, after all, the sentence is life, not death. A ruling later this year that JLWOP gets by the Eighth Amendment prohibition on cruel and unusual punishment would be, to say the least, a setback.

Still, there is progress. More states are weighing laws to eliminate JLWOP. California’s Yee had such a bill last year, and the Times supported it. But it couldn’t get out of the Legislature. He’s back this year with a much more modest effort - to allow people in prison, sentenced for crimes they committed in youth, to ask a court to resentence them once 10 years have passed. The only sentence the court could substitute is 25-years-to life, so the inmate would still have to serve at least 25 years in prison for the crime -- and then all he or she could do is ask for parole. There is no obligation to grant it.

California has the second-highest population of inmates serving sentences of life without parole for crimes committed in their youth (Pennsylvania is number one). It has zoomed ahead since this map was created by the PBS program ‘Frontline’ in 2007.

Back to Antonio Nuñez. Does it matter that he had turned 16 by the time he was sentenced? Is he less deserving of a second chance in life (under Yee’s bill, it could come at the earliest in 2026, when he is 39) or if he looks dangerous (check out the Orange County Register photo)? Or that he was a member of the notorious 18th Street Gang, as the Register reported?

Perhaps it matters instead that in his South Los Angeles neighborhood he was shot, at age 13, while he was riding his bike. And that his brother came to his aid and was shot to death in front of him. Or that he left the gang and moved with his family to Nevada, but that he was required to return to his old neighborhood by the Probation Department, and then ended up participating in the crime at issue in the case that got him sent to prison forever. As we said in the editorial, Dickens would have a field day.

Once again, the question is not whether he should have been convicted, or punished, or sentenced to life. It’s merely whether he, and other people sentenced for reckless and violent action they took before they were adults, will ever get to even apply for parole.

Check out the Alabama-based Equal Justice Initiative, which is helping to lead the fight against JLWOP. Here’s its aptly named report, ‘Cruel and Unusual.’ There are many interesting blog threads on the Nuñez case, including this one. See the CNN story on JLWOP.

*UPDATE: I cited, above, a 2007 University of San Francisco report that said Israel is the only other nation with inmates in prison without a chance at parole for crimes they committed in youth. I missed the the authors’ follow-up report, which came in the form of a 2008 article in the USF law review: Israel now provides at least a hope for parole for its seven current or former convicted and imprisoned minors. See the third paragraph at this site, but note that the link there still takes you to the older report. Find the full law review article here, and go to page 986. And, if you’re still with me, go to footnote 14.