Giving Up on Juveniles?

On Monday, the Supreme Court heard arguments in the juvenile life without parole cases, Graham and Sullivan. The question the Court is facing is whether LWOP sentences for juveniles are violative of the 8th Amendment’s prohibition of cruel and unusual punishment. I do not want to dwell on the legal aspect of this argument, except to say that I will be rather surprised if the Court does not hold that LWOP is unconstitutional. This would be in keeping with the Court’s recent jurisprudence, Roper and Atkins, which held that capital punishment for juveniles and the mentally retarded (respectively) were unconstitutional. [Editor’s note: I should have made clear that the LWOP sentences referenced were for  juveniles who did not kill.  I had presumed that readers were familiar with the cases. My apologies for any confusion.]

Rather, what I would like to do is to make the case for why LWOP is simply a bad policy choice for juvenile justice. A portion of that stance is driven by my larger concerns about LWOP in and of itself. I will not make that case here, but hope to come back to it at a later date. Without further ado…

The juvenile justice system is based on at least two different premises than the adult system. These two premises are somewhat complementary, though either one alone would provide sufficient grounding for the system. Juveniles are, by virtue of their age, considered to be incomplete moral agents. Related to, and to a large extent flowing from, that supposition is the view that juveniles are more readily rehabilitated than are adults.

Without going too deeply into psychology or human development, it ought to be obvious that juveniles have not fully developed. This is true for their intellectual development as well as their emotional and cognitive faculties. It takes a certain degree of development of these abilities before we can say that an individual is a moral actor. This is not to say that juveniles are incapable of knowing from right from wrong, if for no other reason that some of that ability is inherent in all humans (or so I would like to argue). Rather, my argument is that juveniles are unable to understand and appreciate the consequences of their actions. (Examples of this abound.)

Accepting this premise, it is problematic to then hold juveniles morally accountable. In order for someone to be a full moral agent, s/he must not only understand right and wrong, but also be capable of acting according to those principles, which entails understanding consequences. In this regard, we might think of juveniles being analogous to the mentally retarded. Or, in criminal parlance, juveniles lack the requisite cognitive abilities to form the required mens rea for legal culpability.

Proceeding from this notion of juveniles as not yet fully formed moral agents is the idea that they are more amenable to rehabilitation. Some of this is clearly intuitive (old dog, new tricks, etc.). As a society, we do not view the traits of a 15 or 16 year old as cast in stone. Since they are still not fully developed, appropriate interventions could result in mitigating or altering these traits.

Additionally, I would argue that society is simply not comfortable with giving up on a juvenile. Certainly, some will disagree and have no such qualms. But I think most Americans accept the premise of juvenile rehabilitation.

If we accept the proposition that juveniles are amenable to rehabilitation to a degree not possible with an adult population, then why would we want to sentence any of them to LWOP? I think that much (most?) of the support for juvenile LWOP springs from two founts- retribution and incapacitation. The first is the sense that some crimes are so heinous that the only fitting punishment is to be incarcerated for the rest of one’s life. Somewhat related is the thought that some people are so dangerous to society that we can never be safe without them incarcerated.

It is rather impossible to meet the former argument, as people’s perceptions of moral desert vary widely. Plus, there is a certain logic to punishing murder with lifetime incarceration. However, I do believe we can mount a counterargument to the latter source. And it is this- the decision to eliminate LWOP for juveniles does not lead to an outcome in which no juveniles ever spend the remainder of their natural lives in jail. It simply means that there will always be a possibility for parole, at some later date. The incarcerated person will have to convince the corrections system and a parole board that s/he is no longer a threat to society and has paid for their crime.

Going beyond that, there are also fiscal and systemic arguments to be made. It is incredibly costly to lock up a 15 year old kid for the next 60+ years. Do we really want to be pouring even more money into our penal system? Also, absent any chance for parole, what incentive does an inmate have conduct themselves in accordance with prison rules and regulations. Or, even more importantly, to seek rehabilitation. Managing a prison full of lifers is no easy task for the men and women who we employ in our correctional system.

I’ll close with this argument, a point I have made already. LWOP for juveniles is giving up on a child or teenager. Do we really want to do that in our society?

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