Too young for a life sentence

April 22, 2012


— In the summer of 1787, just 94 years after the Salem witch trials, as paragons of the Enlightenment such as James Madison, George Washington and Benjamin Franklin deliberated in the Constitutional Convention in Philadelphia, a mob pelted and otherwise tormented to death a woman accused of being a witch. Prosecution of alleged witches, writes historian Edmund Morgan, had ceased in the colonies long before the English statute criminalizing witchcraft was repealed in 1736. Some popular sentiment, however, lagged.

Today, 221 years after the Bill of Rights was added to the Constitution, the Supreme Court is again pondering the Eighth Amendment’s proscription of “cruel and unusual punishments.” The case illustrates the complexity of construing some constitutional language in changing contexts of social science and brain science.

Evan Miller, whose five suicide attempts surely had something to do with the serious domestic abuse he suffered, was complicit in a brutal murder and in 2006 was sentenced to life in an Alabama prison without the possibility of parole. Kuntrell Jackson was involved in a video store robbery during which an accomplice fatally shot the store clerk. In 2003, Jackson was sentenced to life in an Arkansas prison without the possibility of parole. Miller and Jackson were 14 when they committed their crimes. Both were tried as adults before judges who had no discretion to impose any other sentence. Such mandatory sentences preclude judges weighing a consideration of Eighth Amendment jurisprudence — proportionality.

Before its June 26 recess, the Supreme Court will decide whether sentencing children to die in prison is cruel. It certainly is unusual: Although 2,300 current prisoners have been sentenced to life without parole for crimes committed as juveniles (age 17 or younger), just 79 prisoners in 18 states are serving sentences of life without parole for crimes committed when they were 13 or 14.

The court must consider not only what is society’s sense of cruelty, but also how that sense should be shaped by what some new technologies reveal about adolescent brain biology. Shakespeare’s shepherd in “The Winter’s Tale” did not need to see brain scans in order to wish that “there were no age between ten and three-and-twenty, or that youth would sleep out the rest; for there is nothing in the between but getting wenches with child, wronging the ancientry, stealing, fighting.”

And with age-related laws restricting the right to drink, drive, marry, serve on juries, etc., all American states have long acknowledged adolescents’ developmental shortcomings. Neuroscience, however, now helps explain why aspects of adolescents’ brains make young people susceptible to impulsive behavior, and to failing to anticipate and understand the consequences of it.

Without opening the floodgates to “excuse abuse,” the Supreme Court has accommodated what science teaches. In 2005, the court proscribed imposing the death penalty on someone who committed a murder as a juvenile, arguing that “the susceptibility of juveniles to immature and irresponsible behavior” can diminish the reprehensible nature of their crimes. In 2010, the court proscribed sentences of life without parole for juveniles convicted of a crime other than homicide, arguing that such sentences improperly deny juvenile offenders “a chance to demonstrate growth and maturity.”

In both cases, the sentences were judged cruel and unusual because they were disproportional to actual culpability.

In 1958, the court said: “The (Eighth) Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Justice Antonin Scalia has warned: “A society that adopts a bill of rights is skeptical that ‘evolving standards of decency’ always ‘mark progress,’ and that societies always ‘mature,’ as opposed to rot.” But even the “originalist” Scalia would today proscribe some late 18th-century punishments, such as public lashing and branding.

Denying juveniles even a chance for parole defeats the penal objective of rehabilitation. It deprives prisoners of the incentive to reform themselves. Some prisons withhold education, counseling and other rehabilitation programs from prisoners ineligible for parole. Denying these to adolescents in a period of life crucial to social and psychological growth stunts what the court in 2005 called the prisoner’s “potential to attain a mature understanding of his own humanity.” Which seems, in a word — actually, three words — “cruel and unusual.”

— George Will is a columnist for Washington Post Writers Group.    


Eybea Opiner 2 years, 11 months ago

The way I would see juveniles treated would be to try all of them as adults, give them whatever sentence an adult would receive with the caveat that upon reaching majority age, the sentence would be reviewed. Prison officials, psychiatrists, parole boards, and any other interested parties would evaluate whether or not rehabilitation had taken place, If so, the sentence would be commuted, with parole to last through the time of the original sentence.

ebyrdstarr 2 years, 11 months ago

Define juvenile. How young would you take this down to? Generally, children under a certain age don't get prosecuted at all but are dealt with as children in need of care. (The age varies, but is often around 10.) So you would be advocating punishing 11 and 12 year-olds as adults. At what age would you suggest housing them in adult prison? Would you apply adult prison rules as far as access to services because inmates facing long prison terms are usually at the end of the line for such services, or can't get them at all.

I don't think your suggestion is practical because you'd be setting all these juveniles up for failure. The rules just have to be different if we want to have any hope of actually rehabilitating these kids and turning them into people who can be productive and successful outside of prison.

yourworstnightmare 2 years, 11 months ago

This is a reasonable, thoughtful column by Will. He is correct in his conclusions.

Our society has long recognized that children do not have the developed sense of responsibility of adults (driving, voting, and drinking minimum ages), and modern neuroscience is supporting this idea.

tomatogrower 2 years, 11 months ago

Be careful, Will, the extreme right might think you are getting soft on crime.

I don't always agree with Mr. Will, but he is correct here. Few people are the same as they were when they were teenagers, and many people wouldn't go back to that age again. They need to be rehabilitated and given a second chance. Yes, there is always the risk that they will go back to the way they were, but there's also a chance they may make a good life.

Liberty275 2 years, 11 months ago

It seems that writing "leeway" for juveniles into the law is a violation of equal protection. It makes sense given the developing nature of an adolescent, but that grants them a special status in the eyes of the law, and I'm not sure I like that idea.

That doesn't mean juries shouldn't decide whether to factor in age when sentencing. Also, every prisoner, not just juveniles, should be housed with like inmates. That's the only way to square not putting 14 yo Ronny-Boy in with Big Bubba without again violating equal protection.

As for re-examining cases at 18 and possibly commuting them, those processes are already in place for everyone with parole hearings and possible commutation by the governor.

verity 2 years, 11 months ago

Juveniles already have special status under the law due to the fact that they are not adults.

tomatogrower 2 years, 11 months ago

Not if they are tried as an adult, which is what has happened. They started doing this in the 80's, because gangs were using those under 18 to do their killing, since those kids wouldn't have to serve a lot of time when caught. But it's too harsh, even for gang members. Try and turn these kids around.

verity 2 years, 11 months ago

You're absolutely correct---I was speaking in general.

ebyrdstarr 2 years, 11 months ago

There is no equal protection problem here at all. Age is not a suspect class, so to treat juveniles differently from adults, the state need show nothing more than a rational basis for the law. That's not a difficult thing to show at all here as there are plenty of rational reasons for treating juvenile offenders differently. The medical science regarding brain development alone is sufficient rational basis.

If you were right about equal protection posing a problem in separating out juveniles from adults, just think about the thousands upon thousands of laws and regulations that would be unconstitutional.

Mike Ford 2 years, 11 months ago

it's funny that Mr. Will probably aligns himself with the execute first Texans and writes something like this....

tbaker 2 years, 11 months ago

Bert Nash Community Mental Health Center 200 Maine Street, Lawrence, KS 66044

There are a lot of nice people there who can help with chronic narcissistic rage issues.

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