Nearly every report, newspaper article, editorial, and court brief on this topic states that there are 2,225 juvenile offenders serving life-without-parole sentences in the United States. Both the origin of that number and the way it has been used raise great concerns about the veracity of the facts supplied by activists seeking to put an end to the sentence.
Most sources cite the number to a 2005 Amnesty International/Human Rights Watch report. (One exception is the University of San Francisco Law School’s 2007 report, which states categorically that there are 2,381 juveniles serving life without parole. ) An investigation into the source of the AI/HRW number reveals serious flaws.
The beginning of an answer to the question of where this number originated can be found in Appendix B to the 2005 AI/HRW report. The report explains accurately that the Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and DOJ’s Office of Juvenile Justice and Delinquency Prevention (JJ) do not collect data on the number of juvenile offenders in the adult criminal justice system.
The report goes on to explain that most states tend to “lose” the fact that “an offender was a child at the time of his or her crime once he or she is admitted to adult prison.” As a result, many state reports on incarcerated populations give the impression “that there are no youth offenders in adult prison and do not offer information about a particular inmate’s age at the time of his or her offense.”
Because there were no good federal government data on the incidence of life-without-parole sentences for juvenile offenders, AI/HRW set about drawing data from other sources and, when that proved fruitless, gathering data itself. Initially, AI/HRW turned to the National Corrections Reporting Program (NCRP) within the U.S. Department of Justice. A division of the United States Bureau of Justice Statistics within DOJ’s Office of Justice Programs, NCRP was the logical place to turn to, since the Bureau of Justice Statistics’ mission is to collect, analyze, and publish data relating to crime in the United States.
However, AI/HRW quickly found that the NCRP was “not a comprehensive source for the data we sought.” First, the NCRP data included only juvenile offenders serving LWOPs in 23 states, despite the fact that the sentence is available and used in many other states. But rather than use the NCRP data as a starting point, AI/HRW rejected them entirely even as it concluded that it had “no basis for believing that the data available in the NCRP is skewed in any particular way that would cause such analyses to be inaccurate.”
In late 2003, Human Rights Watch began to assemble its own data set by writing letters to the departments of corrections in the 41 states that had sentenced juvenile offenders to life without parole at the time of their research. The group also sent letters to all 50 states asking for data on juveniles who committed crimes that resulted in life-without-parole sentences or very long sentences, which it defined as “life plus years.” Discovering that “life plus years” varies in meaning from state to state (and in practice could mean a relatively short sentence), the group eliminated most of those sentences from its analysis, though some may still remain from states that conflated the requests.
That is not the only quirk in the AI/HRW methodology. As the AI/HRW report explains, many state departments of corrections do not keep records on an inmate’s age “at the time he or she committed an offense but only record an individual’s age at the time of admission to the prison.” Rather than collect the data on prisoners’ ages at the time of their offenses—an arduous practice—AI/HRW instead chose an arbitrary cutoff, including within its sample prisoners younger than age 20 and serving life without parole. It described this “as a way to capture all inmates that likely committed crimes before the age of eighteen,” based on two stated assumptions.
First, the report assumes “that a person would spend as little as 13 months in the arrest-to-sentencing stage before entering prison.”
Second, it assumes that there is “between one and two years between a seventeen-year-old’s commission of a crime and his or her arrest, trial, possible subsequent trial (as a result of a hung jury or a mistrial), sentencing, and ultimate admission to prison.”
Those assumptions, however, are problematic. First, the time between arrest and sentencing is often far shorter than 13 months. The vast majority of criminal charges result in a plea bargain, avoiding the delay of a trial, and even trials can be accomplished in less time, particularly when the facts of the crime are relatively straightforward. This is especially true since Roper eliminated the death penalty as a possible punishment for juvenile killers. The second assumption, focusing on the time between the commission of a crime and arrest, is also suspect for the same reasons. Most of the offenders whose cases are recounted in this study were arrested shortly after the commission of their offenses, frequently the same day or the following day.
Taken together, these assumptions inflate the count considerably, given that, among juveniles, the number sentenced to life without parole increases significantly with age. Thus, including those who are 18 and 19—and adults in the eyes of the law—is likely to have a disproportionate impact, pushing the final count significantly upwards.
AI/HRW’s count of juveniles serving life-without-parole sentences shrinks considerably when it does not rely on these unrealistic assumptions. Counting only the offenders that AI/HRW was able to determine were younger than 18 at the time of their offenses, the top-line number shrinks from 2,225 to just 1,291. That number may include the bulk of juveniles serving life-without-parole sentences, since it is based on data from 35 states (out of the 45 that allowed the sentence at the time) and the federal government.
Much of the state data used throughout the AI/HRW report appear to be unreliable. With respect to data from the states of Alabama (15), Idaho (data missing), and Virginia (48), the report notes that the states were not able to gather the statistics “because of staffing limitations and prohibitive costs.” Rather than accept NCRP data (including numbers for Alabama and Virginia), AI/HRW opted to obtain the data “through other measures.”
With respect to Virginia, AI/HRW used a “statistical extract from the reports made by the state of Virginia to the National Corrections Reporting Program between the years 1993 and 2000 to gather a rough number of individuals serving the sentence in the state.” The report does not explain its methodology for Alabama or any attempt to gather information from Idaho.
The states of Michigan (306) and Illinois (103) did not respond to the AI/HRW letters requesting information. After calls and letters to officials in those states yielded nothing, AI/HRW used data from the ACLU Juvenile Life Without Parole Initiative in Michigan, which had previously requested and received such data from the states. These requests, according to the AI/HRW report, employed “criteria very similar to those used by Human Rights Watch,” but any differences in methodologies (e.g., counting 19-year-olds or those serving “life-plus” sentences) are not noted.
Finally, some states flat-out reject AI/HRW’s tally of the number of juveniles in their prisons who are serving life without parole. The Department of the Attorney General of the State of Rhode Island, for example, maintains that “there have not been any cases within the last twenty-six years that we are aware of where a sentence of life without parole was imposed” on juveniles. Further, the records-keeper for the state’s Adult Correctional Institution “confirmed that there were not any juveniles [currently] serving life without the possibility of parole.” Nonetheless, AI/HRW claims that Rhode Island has two juveniles behind bars serving life-without-parole sentences.
These deficiencies cast serious doubt on AI/HRW’s methodology, data, and estimates. They also point to the conclusion that, based on existing data, calculating the number of juvenile offenders currently serving life without parole is highly speculative. Any nationwide statistic is at best a very rough estimate, and a more precise figure, based on the data, can be no more than a guess. The 2,225 number is certainly not—as it has been presented to courts, legislators, and the public—a fact.
The great confusion and false certainty over the most basic factual component of this debate demonstrate how little serious study and research the issue had received.
Charles D. Stimson is Senior Legal Fellow and Andrew M. Grossman is Senior Legal Policy Analyst in the Center for Legal and Judicial Studies at The Heritage Foundation.