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Juvenile Justice: Charging Minors as Adults

close-up photograph of youth in handcuffs

Children should be treated differently from adults by the criminal justice system. They should be treated more leniently, and this includes how they are treated by the police, judged by the courts, and – most obviously – the punishments they are given.

I take it that most people believe this, at least to some extent. Nobody thinks that a five-year-old who steals a Mars bar deserves the same punishment as an adult. But when a child commits a heinous crime, we are often far too quick to abandon our commitment to treating kids fairly.

Just last week, another school shooting saw four children die in Michigan. The shooter, a fifteen-year-old boy, has been charged as an adult. Even though rates of children being charged as adults are falling, estimates say that 50,000 children a year are still charged as adults. Recently, in upstate New York, Eric Smith was released after 27 years in prison. Smith was charged in the juvenile courts, yet while headlines mentioned that he was a child killer, they failed to mention that he, too, was a child. If kids should be treated more leniently, then the reactions in these cases by the prosecutor and press are flawed.

One might think that sometimes crimes are so heinous that kids deserve to be tried as adults. Perhaps some crimes are so egregious that they deserve the strictest possible punishment, and perhaps the state needs to communicate that some crimes are hideous, or perhaps some crimes suggest someone is beyond rehabilitation. But I also suspect that, often, calls to punish kids as adults are based on a mistake: that because the act is heinous, it deserves the severest punishment. And I think we should push back against this. Let me try to explain, by exploring why we should be lenient to kids in the first place.

The obvious starting point is that the criminal justice system is part of the state, and the state treats kids differently from adults all the time. Thirteen-year-olds can’t drive, seventeen-year-olds can’t smoke, twenty-year-olds can’t drink (though, absurdly, they can give their lives for their country). And why are kids treated differently by the state in all these other domains? The obvious answer is: kids are less mature; they can’t be trusted to make informed decisions about the risks involved in smoking, drinking, and driving. They aren’t quite as able to see why what they are doing is wrong and they possess less self-control.

If kids are less mature – as they so often are – then shouldn’t they be treated more leniently for their crimes? If we think that, roughly, how much you should be blamed should match how responsible you were for the bad thing that you did, and if we think that kids are less mature and thus less responsible, the answer seems to be obvious: yes, of course kids should be treated more leniently.

We can nuance this argument further. One point worth discussing is that our brains do not mature until we are 25, so this might even suggest we should be lenient to people who are traditionally classed as adults. But we might want to allow for a cut-off, here: we might think that, although they are not fully mature, 23-year-olds have a suitable enough knowledge to be treated like adults. When is a kid mature enough to be punished as an adult? That’s a point for debate, and it might also be true that some kids should be punished more like adults than like kids. But I take it for granted here that if we have a distinction between punishing as a juvenile and punishing as an adult, we can roughly sort offenders into one of two camps.

It’s also worth noting that this argument does not – as is briefly discussed here – claim that kids do not know right from wrong. That would be absurd: kids clearly do sometimes know they are doing wrong. Yet kids might know something is wrong but not fully appreciate the wrongness, they might not quite grasp why it is wrong. And kids might know something is wrong but be less able to resist it than adults.

But what about if a kid is as mature as an adult? Gideon Yaffe thinks that we should start from the supposition that kids should be treated more leniently, yet the above argument fails since it allows for some kids not to be treated more leniently. For instance, if a kid is morally mature, according to this argument they should be punished just the same. (Yaffe’s answer is interesting: kids can’t vote, and he thinks criminal responsibility tracks how much say we have over the law. But that is too much to go into here.)

I don’t think I buy Yaffe’s argument. It seems plausible to me that if a particular kid is fully mature, then perhaps they should be punished like an adult. Though there is an argument that it might be too hard to discern if a kid is mature enough, and we should just always treat kids as though they are not mature enough for full criminal punishment. (And it is also worth noting that such a consideration does not apply to the cases we are discussing. The Michigan shooter was plausibly suffering from mental disorders, as was Eric Smith – so his lawyer argued. So charging either of those as adults seems flawed, especially when mental disorders also tend to require more lenient punishments.)

Yet even if there is an exception so that mature kids are punished like adults, there is no principled exception to say that kids who do awful things should be punished like adults.

But, the retort goes, what they did was so heinous they must be punished as strongly as possible. This rests on a mistake. Our argument does not turn around what was done but who did it. In one of the greatest pieces of modern moral philosophy, P.F. Strawson made this point. If you tread on my toe, the pain is the same, but the level of blame I give you will differ depending on whether you accidentally trod on me or whether you did it maliciously.

We can grant that a murder is heinous, whilst still holding that children who perpetrate these acts are owed separate consideration. The thing they did was heinous, but their doing it was less heinous than if an adult had done it. To charge kids as adults requires more than just pointing to the fact that what they have done is awful. It requires showing that they deserve to be punished like adults, despite the prevailing assumption that they are less mature, and so a lesser punishment is appropriate.

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Cruel and Unusual Reasoning? Some Recent SCOTUS Decisions on the Eighth Amendment

Yellow and white corridor with metallic doors of cell rooms in old prison

Between October 2 and October 24, 2002, ten people were killed and three others injured by John Allen Muhammad and Lee Boyd Malvo. This series of attacks, referred to as the D.C. Sniper Attacks, were executed within the I-95 corridor around Northern Virginia, Baltimore, and Washington, D.C. While John Allen Muhammad was executed by lethal injection in 2009, Lee Boyd Malvo was sentenced to life without parole in Virginia and six life sentences in Maryland.

Malvo, however, is now appealing his Virginia life sentences in the Supreme Court of the United States (SCOTUS), relying on that court’s 2016 ruling that recent constitutional bans on mandatory life-without-parole sentences for juvenile offenders are to be applied retroactively. The constitutional ban on such sentences was itself enacted in 2012 as an extension of a 2010 ruling that found mandatory sentences of life without parole for juvenile offenders to be in violation of the Eight Amendment ban on cruel and unusual punishments.

The SCOTUS ruling that mandatory sentences of life without parole, as well as death sentences, constitute cruel and unusual punishment for juvenile offenders, but is not cruel and unusual in general, brings up an interesting question: What does the court consider cruel and unusual? We should also ask, regardless of the SCOTUS opinions on the matter: What do we consider cruel and unusual?

Death sentences are not generally held to be cruel and unusual by the SCOTUS, nor is a death sentence held to be cruel and unusual even in instances when the sentenced person may suffer tremendously. In Bucklew v. Prescythe the court ruled that Russell Bucklew could not demand his death sentence be executed via gas chamber instead of Missouri’s standard pentobarbital lethal injection. Bucklew requested an alternative means of execution due to a rare condition he has which could cause him to drown in his own blood during execution. However the majority opinion, delivered by Justice Neil Gorsuch, argued that the State of Missouri’s interest in concluding pronounced legal sentences in a timely manner outweighed Bucklew’s claims. More specifically, the court stated that Bucklew’s case did not meet the standard set by the so-called “Baze-Glossip test,” which requires that an appeal identifies an available and easy alternative execution method that is very likely to ameliorate what would otherwise be significant suffering.

The court struck a seemingly different tone in Hudson v. McMillian when they opined that a prisoner being beaten by a guard may count as cruel and unusual punishment, even when the prisoner does not suffer lasting injuries. Justice Sandra Day O’Connor, writing for the majority, stated that it was not only the extent of a prisoner’s injury and suffering that mattered, but also the attitude with which the punishment was inflicted by state agents. Despite the apparent differences between the decisions in Bucklew v. Prescythe and Hudson v. McMillian, there is a common thread. Writing for the majority in Bucklew, Justice Neil Gorsuch argued that the mere fact of significant suffering on the part of inmate did not automatically make a punishment cruel and unusual. Rather it is whether the inmate’s suffering is directly intended by the agents of the state. In two separate decisions the attitude of state agents was the predominating consideration over the extent of a prisoner’s suffering.

In the case of death sentences and mandatory life without parole for juveniles, however, the court’s reasoning is that such punishment is cruel and unusual. The 2010 decision in Graham v. Florida stated that sentencing juveniles to mandatory life without parole for non-homicide crimes is cruel and unusual because it doesn’t allow any possibility of releasing convicted people, even when they have demonstrated a commitment to their own rehabilitation. This reasoning was extended to juveniles convicted of homicide in the 2012 Miller v. Alabama ruling. Hence the state of SCOTUS opinion at present is that it is cruel and unusual to foreclose on the possibility that a juvenile offender may reform enough that they should be considered for parole; but that it is not cruel and unusual for an offender to be executed in a fashion that may cause extreme suffering; but that it is cruel and unusual for an offender to be beaten in a way that does not cause lasting injury. Can these views be squared with each other?

To probe this question it is helpful to look at two prominent theories of punishment: utilitarianism and retributivism. The utilitarian theory considers the advisability of punishing a particular offense, or type of offense, in terms of the balance of social benefit to social harm. Questions about whether a punishment will sufficiently deter, incapacitate, or rehabilitate an offender are balanced against the needfulness, efficiency, and cost of that punishment. A punishment may be considered cruel and unusual under such a theory if the social costs outweigh the benefits. For example, sentencing minor offenders to death would greatly erode general freedom and the populace’s acceptance of the legal system. Punishing thieves by chopping off their hands may be effective, and people might even accept it, but less harsh punishments could achieve the same effect. Marijuana possession may be against the law, but it may not be worth trying to deter people from obtaining and using the drug.

Retributivist theories, on the other hand, focus on the concepts of moral desert and fittingness. That is, ensuring that punishments are proportional to offenses. In such theories the concern is more that offenders get what’s coming to them, rather than balancing benefits and detriments to society. In the extreme a retributivist theory promotes the idea of “an eye for an eye.” Hence a person who has killed someone may themselves deserve to be killed. However pronouncing a death sentence for forgery or speeding is not fitting—not proportional—to the offense. Under a retributivist theory a punishment would be cruel and unusual if it were grossly out of proportion to the offense.

In the few cases noted above, clear signs of the utilitarian view are manifested in the state of SCOTUS opinion on capital punishment. In cases like Lee Boyd Malvo’s, the court brings to bear considerations of whether a sentence allows for the possibility of rehabilitation, even when that sentence clearly fulfills deterrent and incapacitating purposes. At the same time cases like Russell Bucklew’s show that the court is also concerned with cost and efficiency. Whether a punishment is cruel or unusual turns out to be a function of a calculation balancing numerous different values. If the final tally in the eye of the court seems out of balance, even grossly so, the example of weighing a variety of factors and decided on a case-by-case basis is a good one.

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Does the Fair Chance Act Live Up to Its Name?

close-up photograph of 'Help Wanted' sign in storefront window

With the US having one of the highest incarceration rates in the world, it is estimated that over 70 million Americans have some type of criminal record – that’s approximately one in three Americans. Regardless of how minor or major an individual’s offense is, having any kind of criminal record presents a series of obstacles to successfully reintegrating oneself back into society. The most pronounced of these is finding employment and housing – almost nine in ten employers perform background checks during the hiring process and four in five landlords do the same on prospective occupants. Research shows that employers are biased against citizens with criminal records even though they assert that this is not the case. While employers ostensibly indicate an inclination to hiring ex-convicts, evidence establishes that employer callback rates decrease by 50% for those with a criminal record. 

Crusading against such employment disparities are movements like Ban the Box, an American campaign that began in Hawaii in the late 1990s led by civil rights activists and advocates for ex-offenders, working towards removing the check box that inquires whether a job seeker has a criminal record. This campaign aims at allowing ex-convicts a better chance at employment by spotlighting their skills and qualifications in the recruitment process before being questioned about their criminal record, thereby preventing the stigma of an arrest record or a conviction ruling out their employment immediately. The basis of this campaign is that ex-convicts who struggle to find employment upon being released from prison are more likely to reoffend, which is, of course, damaging to society. 

The campaign gained momentum after the 2007-2009 recession, with activists for the campaign stating that it is necessary to remove the check box because an increasing number of Americans have criminal records as a result of harsh sentencing laws, especially for drug-related offenses and citizens are struggling to find work due to the compounded effect of high unemployment rates for ex-felons and background checks becoming more common since the 9/11 terror attacks. Moreover, marginalized communities like communities of color, sexual minorities and people with mental illnesses are disproportionately affected, with black men being six times more likely to be imprisoned than a white man and LGB (lesbian, gay and bisexual) people being three times more likely to be incarcerated than the general population.

As of 2019, 35 states and more than 150 counties and cities have implemented Ban the Box, also known as fair chance act in their hiring policies, all of which prohibit employers from asking applicants about their criminal history on a preliminary job application. Some Ban the Box laws are more elaborate, compelling employers to refrain from asking about the applicants’ criminal history until a job offer has been made or an interview has been conducted. 

Even though Ban the Box laws seem to be beneficial on the surface, some industry groups such as the National Retail Federation have openly criticized these policies for possibly exposing companies, employees, and customers to crime. The New Jersey Chamber of Commerce also condemned Ban the Box for putting employers at risk of being slapped with lawsuits from rejected applicants. Fair Chance laws put businesses in a vulnerable state, leaving them open to facing lawsuits for rejecting an ex-convict, while also having to deal with the possibility of facing negligent hiring lawsuits if an ex-convict employee reoffends at work. Moreover, businesses have found fault with Fair Chance laws for wasting the time and resources of both employers and applicants. Ban the Box laws could cause ex-convicts to waste their time applying for jobs that they will probably not get, when they could have spent their time working on applications and interviews for jobs that are known to recruit ex-offenders. Additionally, these laws would also be wasting employers’ time because if an ex-con is rejected towards the end of a hiring process after their criminal record is made known, applicants who didn’t have a criminal record but were turned away could have already found another job or could now be interested in other employment opportunities. 

Corporate concerns aside, recent research shows that Ban the Box laws have cultivated an unforeseen impediment to the very objective of the campaign. Researchers have suggested that implementing Fair Chance policies may ultimately be disadvantageous to society as a whole by decreasing chances of employment for low-skilled racial minorities. If prevented from looking into an applicant’s criminal history, employers could recourse to stereotypical assumptions based on the individual’s race or gender to extrapolate on whether or not an individual has a criminal record, which would exacerbate gender and racial disparities in the application pool. 

Ban the Box does better ex-offenders’ chances of finding employment, but on the flip side, minorities seeking employment have to bear the brunt of enhanced racial discrimination both in spite of, and because of, the Fair Chance Act. Activism like Ban the Box can and should be used to make positive social changes and challenge the status quo but at the same time, in light of recent research, must be re-evaluated.

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Determinism and Punishment

photograph of an open cell block

One summer evening, a friend and I tackled the question of free will and all that it entails. Do we have free will? If we do, how do we know do? If we do not, what are the implications for social and legal norms? My friend, who argued against the existence of free will, posited a scenario in which he was “molecule for molecule” a violent criminal, asking me if he could have chosen to act differently than the violent criminal.

The immediate reaction might be, “No.” How could he have? But this rhetorical device, used by Sam Harris to disprove the existence of free will, is not entirely helpful. It does not prove that we cannot freely choose; it merely shows that if you were “molecule for molecule” someone else you would make the same choice that they made, which is self-evident. It reveals nothing about what you could have done, nor anything about the choices available to you and your ability to choose.

But suppose my friend is correct and we do not have free will. This view coincides with the philosophical doctrine of determinism. Writing for the Stanford Encyclopedia of Philosophy, Carl Hoefer defines determinism as the philosophical belief that “given a specified way things are at a time t, the way things go thereafter is fixed as a matter of natural law.” In other words, a violent criminal such as Davis Bradley Waldroup, Jr.  could not have acted differently.

Waldroup engaged in acts of undeniable brutality. An article in The New Statesman describes how he shot his wife’s friend eight times with a rifle before attacking his wife. Waldroup shot her, maimed her, bludgeoned her with a shovel and a machete, and attempted to rape her before she managed to escape. Yet Waldroup was only found guilty of voluntary manslaughter, kidnapping, and attempted murder, partly because his defense team successfully argued that Waldroup possessed a genetic predisposition to violence, preventing him from engaging in the judgment and reflection required for premeditated crimes (for a similar case see Meredith McFadden’s “‘It Wasn’t Me’: Neurological Causation and Punishment“).

Warranted outrage followed from the families of the victims when he was sentenced to a mere 32 years in prison. Waldroup’s wife said the sentence “was not justice.” Many would agree that the punishment was not equivalent to the severity of his wrongdoing; it was not the punishment he deserved. But if Waldroup did indeed possess a violence gene and thus, no free will in this situation, how can we even conceptualize what he deserves? Determinism renders the sentiment “He did not get what he deserved” meaningless and irrelevant. And that is not all. 

The most fundamental structures in our daily lives are based on the belief that we are free to choose how to act. While we seek and discover external factors (be they biological or environmental) that influence a person’s decision or even the external factors that brought the individual to a moment of choosing, these explanations do not contradict our conception responsibility.  Without the foundation of free will, even the relevance of morality becomes suspect. Either morality cannot exist because people cannot choose to do something right or wrong OR it is already determined that one person will act morally good or morally bad. 

Adopting the view that free will does not exist would require a near-revolutionary reform of our justice system. As Luis E. Chiesa of Pace Law School notes, “It is because of this uniquely human capacity to choose to do otherwise that humans can and should be blamed for their crimes.” Our current system, for all of its failings and imperfections in practice, is based on a consort of factors: rehabilitation, deterrence, public protection, retribution, and proportionality of the punishment to the crime. A new justice system capable of accommodating determinism would need to be based not on retribution or what the lawbreakers deserve, but rather solely on concern for public safety, deterrence, and rehabilitation. 

Some may wonder how rehabilitation could be retained under this reformed justice system. Is it possible to rehabilitate someone’s behavior if it is determined? It is a worthy criticism. Yet it is possible that some determinists could argue that just as an animal, whose behavior is determined by their nature, can be trained to act in a certain way, a human can be rehabilitated, or trained to behave in a less dangerous way. 

Forms of incapacitation, such as incarceration, would exist merely as a means of protecting the public from violent criminals. Lawbreakers who are not violent, such as those who evade taxes, for example, would not need to go to prison as they pose no threat to the safety of the public. Instead, they would need to, if possible, rehabilitate their evasive ways so that they refrain from committing the act again. The only purpose of any other form of legal punishment would be to deter individuals from breaking the law. 

Suppose Waldroup’s violent behavior was altered after one day of rehabilitating in prison and he would never again attempt to brutalize another human being. Should he be punished further than the one day in prison for his previous acts of murder and assault? Troubling as it may be, the determinist would say, “No.”

Why should he? His behavior has been changed, he no longer poses a threat. Like a dog who has learned not to pee inside, Waldroup has been trained to no longer behave in that unacceptable and dangerous way. And given that he did not freely choose to kill one woman and severely injure another, the purpose of punishing him is nullified. He deserves nothing because he controls none of his decisions. 

Even the well-known determinist Sam Harris points out, “Without free will, sinners and criminals would be nothing more than poorly calibrated clockwork, and any conception of justice that emphasized punishing them (rather than deterring, rehabilitating, or merely containing them) would appear utterly incongruous.”

If free will is an illusion, although I am inclined to believe it is not, there is demonstrable value to living under that illusion. The idea that you and I have control over our actions affects the way we behave and structures the nature of our interactions and relationships. We expect and hope for certain behaviors to be exhibited by the people in our lives. We express disappointment in others when they have done worse than they should have because we believe they could have done better. Just as we express pride or happiness in others when they have done better than they should have because we believe they could have done worse. But blame and praise is utterly irrelevant if you believe others could not have done anything other than what they did. 

Let me live under the illusion that I freely chose to write this op-ed and I will let you live under the illusion that you freely chose to read it. And we can both go back to agreeing that some people do not receive the punishment they deserve.

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California Debates Parole for a Member of the Manson Family

On the night of August 9, 1969, several young people crept into the Los Angeles home of Leno and Rosemary LaBianca.  At the behest of cult leader Charles Manson, they stabbed the couple to death. Cult member Leslie Van Houten stabbed Rosemary LaBianca fourteen times. The group wrote messages on the wall in the victims’ blood. After she played her part in the murder, Van Houten took a shower, put on one of Rosemary LaBianca’s dresses, and ate some food from the refrigerator.

Continue reading “California Debates Parole for a Member of the Manson Family”

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Does America Believe in Rehabilitation for the Incarcerated?

A low-angle photo of barbed wire at a prison.

Michelle Jones wasn’t the only applicant to be rejected from Harvard University this year. However, hers is in many ways a special case. While she was initially accepted by the history department of Harvard’s Graduate School of Arts and Sciences, her acceptance was ultimately overturned by Harvard’s administration. This move was in connection to the most interesting part of her case: Ms. Jones was only released in August of this year from the Indiana Women’s Prison after serving 20 years of a 50-year sentence for homicide. Although the legal system considered her sentence to be served in full, Harvard University—an elite academic institution—considered her past conviction as grounds for rejection. What does this say about the notion of reform and rehabilitation in the United States?

Continue reading “Does America Believe in Rehabilitation for the Incarcerated?”

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Taking Stock of Solitary Confinement’s Mental Toll

In prisons throughout the United States, a total of somewhere around 80,000 prisoners are isolated from human contact for 22 to 24 hours a day. These prisoners are kept in very small cells—spaces of roughly 80 square feet.  In the cell is a bed, a toilet, and very little else.  Prisoners in solitary are fed three meals a day and are often allowed outside every day for an hour, with no contact with other prisoners.  The practice, commonly known as “solitary confinement” has come to be known by a number of euphemisms, including “restrictive housing” and “segregation.”

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Alternatives to Incarceration: The Impact of Prison on the Black Community

Bruce Western’s introductory video to Ta-Nehisi Coates’ article in the Atlantic titled “The Black Family in the Age of Mass Incarceration” highlights startling statistics concerning the still booming rate of incarceration in the United States. Between the years of 1940 and 1980, every 100 in 100,000 Americans were incarcerated. Continue reading “Alternatives to Incarceration: The Impact of Prison on the Black Community”