Thursday, November 12, 2009

Religion-Based Arguments in Juvenile Life Without Parole Cases -- Sightings

There may be separation of church and state, but out faith values influence our public values. The question then is, what do these values say to our current situation when it comes to the criminal justice system. What do we say to a system that seems unjust?

Joan Gottschall, a judge in her own right, lifts up the response from a diverse cross-section of the religious community to the issue of life sentences without parole meted out to juveniles for non-homicidal cases. This possibility is being challenged on the basis of the 8th Amendment, but also on religious principles of healing, forgiveness, and mercy.

If, as so many suggest, there is an influence of Jewish and Christian principles in our society -- then where do we see this present in matters such as this? I invite you to read the judge's thoughts and offer your own comments.


Sightings 11/12/09

Religion-Based Arguments in Juvenile Life Without Parole Cases

-- Joan Gottschall

Those interested in the intersection of religious values and public policy, and particularly criminal justice policy, should take note of a brief filed this past summer in the Supreme Court of the United States in the joined cases of Graham v. Florida, No. 08-7412, and Sullivan v. Florida, No. 08-7621, on behalf of approximately twenty religious organizations as amici curiae or friends of the Court (see endnotes for a full list of organizations). These two cases present the issue of whether the Eighth Amendment to the Constitution’s ban on cruel and unusual punishment proscribes the sentencing of juveniles convicted of non-homicide offenses to life imprisonment without the possibility of parole, as occurred in these two cases. Oral argument for the cases took place on Monday, November 9.

The brief is noteworthy for a number of reasons. First, it represents an effort by the diverse religious groups involved to speak in one voice on a matter of faith and conviction. Second, the brief locates as central to each of these faith traditions the values of mercy, forgiveness and compassion, and the link between these values and concepts of justice and charity: “In short,” the brief states, “religious texts make clear that each of these three values–mercy, forgiveness, and compassion–must guide interpersonal and societal relations, and are to serve as the bedrock principles for a just and fair society.” Third, amici make the claim, rarely heard in contemporary culture, that the duty of a judge, and of a society imposing judgment, is to make adequate provision for these values.

The legal position advanced by the brief is also remarkable, for amici argue that their shared religious values require the Supreme Court to reverse the Florida judgments and to hold that it is a violation of the Eighth Amendment to sentence juveniles convicted of non-homicide offenses to life without the possibility of parole. The brief reasons as follows: First, it reviews traditional religious recognition of the distinction between children and adults, both in religious teachings regarding crime and punishment and in other aspects of religious law. It then summarizes the growing scientific support for this distinction and reviews the widespread cultural recognition that “the physical and mental immaturity of youth requires special treatment.” Third, it argues that ignoring the special status of youth and condemning juveniles to die in prison contravenes the fundamental religious values of mercy, forgiveness, and compassion. The brief points out that all individuals are entitled to these, but that the weak and vulnerable (such as children) have a special entitlement to compassionate treatment. Indeed, it states that “[J]uveniles who commit serious crimes often come from disadvantaged backgrounds: many are poor, and frequently they have been the victims of abuse and neglect. These are exactly the type of children the amici’s faith traditions stress are most deserving of kindness and compassion.”

Finally, the brief discusses the religious problem posed by a natural life sentence imposed on a juvenile offender. Such a sentence is unjust, the brief argues, because it fails to recognize the potential of juveniles to grow, develop, and be rehabilitated; it thus contravenes the foundational concept of rehabilitation within each of the amici’s faith traditions. The brief quotes the Florida judge who sentenced Terrance Jamar Graham (sixteen years old when he committed the crime for which he was sentenced) to life imprisonment without the possibility of parole. The judge noted Graham’s “escalating pattern of criminal conduct,” and concluded, “[T]here is nothing we can do for you.” This “nihilistic view,” the brief argues, “is antithetical to the perspectives of amici’s faith traditions and of American society at large.”

The amici observe that their religious traditions recognize that “just punishment must allow for the offender to be rehabilitated and restored to the community when possible.” Each of their traditions, they write, embraces the principle of “restorative justice,” which involves establishing a system of justice that, in the words of Michael L. Hadley, “moves from punishment to reconciliation, and from vengeance against offenders to healing for victims, from alienation and harshness to community and wholeness, from negativity and destructiveness to healing, forgiveness, and mercy.” The brief describes with detailed examples how the concept of restorative justice is rooted in the faith traditions of the amici.

Anyone who has read the news of the last several months is aware of the controversy ignited by the President’s remark that among his criteria in selecting judges was empathy. As the pundits are fond of pointing out, on this issue, even his Supreme Court nominee “threw him under the bus.” In the context of our contemporary public discourse, the importance of the argument of these amici curiae cannot be overstated. Their insistence on the religious centrality of mercy, forgiveness, compassion, and rehabilitation, and the relevance of these values to our system of justice, is a message rarely heard.


Quotations come from the Brief of Amici Curiae, and from Michael L. Hadley, “Multifaith Reflection on Criminal Justice”, introduction to The Spiritual Roots of Restorative Justice, ed. Michael L. Hadley (SUNY Press, 2001).

The religious organizations joining in the amicus curiae brief include the American Association of Jewish Lawyers and Jurists, the American Catholic Correctional Chaplains Association, the American Friends Service Committee, the Buddhist Peace Fellowship, the Engaged Zen Foundation, the General Synod of the United Church of Christ, the Islamic Shura Council of Southern California, the Mormons for Equality and Social Justice, the National Council of the Churches of Christ in the United States of America, the Office of Restorative Justice of the Archdiocese of Los Angeles, Prison Fellowship Ministries, and the General Board of Church and Society of the United Methodist Church, among others. The brief was prepared by lawyers at the law firm of Fried, Frank, Harris, Shriver & Jacobson, LLP, led by Michael B. deLeeuw.

Joan Gottschall is a United States District Judge for the Northern District of Illinois, a member of the Visiting Committee to the University of Chicago Divinity School, and a member of the Martin Marty Center Advisory Board.


In this month’s edition of the Religion and Culture Web Forum, Andre C. Willis of Yale Divinity School explores recent work by three major thinkers who both find inspiration in the pragmatic tradition and take religion seriously in their investigations of democracy—Jeffrey Stout, Roberto Unger, and Cornel West. He seeks to develop a conceptual grounding for his own move toward a pragmatism, rooted in social practice, which also bears a theological sensibility suitable for addressing those contingencies that are, in fact, the existential consequences of political realities. With invited responses from Eddie Glaude (Princeton University), Corey D. B. Walker (Brown University), and others.

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

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