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April 22, 2012

George Will urges SCOTUS to find juve LWOP unconstitutional in all cases

I am intrigued and pleased to see that George Will's latest column in the Washington Post adopts the same position as I have embraced in the two juve LWOP cases, Miller and Jackson, now before the Supreme Court.  Will's column is headlined "Cruel and unusual — a test case," and here are excerpts:

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 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....

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, although disposed to construe the Constitution’s terms as they were understood when ratified, 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.”

April 22, 2012 at 12:22 PM | Permalink


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The adolescent brain is different. It is superior in every way, including learning from punishment. That impulsivity? It is hypersonic processing speed.

But assume being an adolescent is a profound disability, you just cannot control your behavior, as if it were an epileptic seizure. You just have to commit 1000's of sex crimes a year, not because the law will do nothing about them but, because you are a poor handicapped person who cannot help it. Logic dictates that you do more time, not less time, to learn better, to keep the public safer.

Whether one believes the myth of less adolescent responsibility or not, either way, they need longer prison terms, not shorter one.

George Will has been in Washington for years. He has become acculturated to protecting and preserving the lawyer client. That is so the client can continue to commit crimes and provide lawyers jobs.

Posted by: Supremacy Claus | Apr 22, 2012 3:03:38 PM

Funny how easy it is to be nice when justice for others is on the line.

Posted by: federalist | Apr 22, 2012 5:43:59 PM

"But even the “originalist” Scalia, although disposed to construe the Constitution’s terms as they were understood when ratified, would today proscribe some late-18th-century punishments, such as public lashing and branding."

I am sure that is correct, Scalia would not allow lashes. They work. They're cheap. They are educational to the population contemplating crime. They put the lawyer out of business. And lawyer rent seeking trumps all ideologies, beliefs, and claims.

Posted by: Supremacy Claus | Apr 22, 2012 8:24:19 PM

Things like this underline how different criminal justice was since 1791. Justice Scalia himself noted this in a confrontation case and it is true writ large. Modern day police departments arose in the 19th Century. The mass incarceration of prisoners for long periods of time also took time to occur, penitentiaries themselves only in their infancy at the turn of the 19th Century.

Add modern understanding of the criminal mind (with implications in various areas), you start to see the limits of some simplified originalism. The lashes example is not a good example there really since a similar development is not the issue, since we can imagine lashes still present even with all that (e.g., corporal punishment in mid-20th Century prisons).

George Will's comments underline the openness of even your conservatives to change. Roberts and Alito shows this too and Roberts' vote in a past case of this type underlines they are not just obvious votes for the state.

Posted by: Joe | Apr 23, 2012 11:05:57 AM

New research and findings in adolescent brain development does not suggest that adolescents should not be held responsible for their crimes. It does not suggest adolescents do not know right from wrong. It does not suggest adolescents cannot control their behavior.

It only states, with data to back it up, that adolescent brain development is not complete until a child is in his early 20's. And, that the part of the brain that regulates impulsivity, risk-taking,and the ability to see cause and effect of one's actions (the frontal lobes) are not fully connected.

No one is saying that a teenager should not be held responsible for his/her crimes. Only that they not be given life without the possibility of parole. There are too many factors in juvenile crime to consider before throwing the child away and meting out the harshest punishment of all.

Most inmates doing LWOP (regardless of the age the crime was committed) will tell you LWOP is a slow death sentence. Few teenagers, even the ones committing the most heinous acts, grow up to have anti-social personality disorder (sociopathic). Most teenagers will mellow out given the opportunity. Some won't. Some, who were the victims of severe abuse and/or neglect may not be able to overcome their emotional deficit. And the chance of overcoming such damage lessens if the kid goes to adult prison with a life sentence.

Lifers in most states receive no schooling, are not allowed to work in anything other than the most menial and low-paying jobs, and receive no counseling or efforts to rehabilitate.They are simply warehoused.

I think our society can do better with and for our citizens than to simply toss our children into prison for life and chalk it up to "keeping citizens safe." Even a life sentence WITH the POSSIBILITY of parole (not a guarantee, just a possibility) would be a more just sentence. And, it would have the added benefit of keeping prisons safer, as in, the people who work at the prisons as well as the population.

Posted by: JLG | Apr 23, 2012 6:09:32 PM

Commentators should disclose if they have a government dependent job. That would justify dismissal of their pro-criminal views. I demand the rent seeking, worthless government workers utter the V word. It cannot be done. The rent seeker will choke and pass out. Adolescents outperform adults on all tests of intelligence, as they do on all other performance tests. There is no evidence of excessive impulsivity in the average teenager. I invite the readers of this left wing post to attend a high school sports event. Who is screaming, flinging objects to the ground, and running around the referees? Not the kids. Most of the charges are for planned murders in the course of felonies, as in the cases above. The references used by the lawyer traitors in Atkins and ABA documents came from Ivy league academics. It should be presumed to be left wing biased pretextual garbage science. Brain scans are so crude and unrelated to complex social function as to be unethical to use in policy decisions. Here is a solid fact. The 60 year old is more mature than the 40 year old. Evidence of maturity: fewer crimes by 60 year olds than by 40 year old's. Make 60 the age of adulthood.

123D. Start the count at 14, and no repeat violent criminal makes it to 18, the start of the peak of the crime career. That would end crime by attrition. It would also end massive fractions of lawyer employment, and cannot happen until the hierarchy of the profession has been arrested, tried, and executed. Then the public can get rid of the good lawyer client.

Assume, being a teen is a mentally crippling condition, even worse than attending law school. If the adolescent is that impaired, the death penalty gets greater justification since they are so dangerous for the social self-defense. Mental illness provides a greater justification for the death penalty not an excuse, except in the reversed Twilight Zone, upside down world of the lawyer rent seeker. In this world, the criminal gets protection, not the crime victim.

Posted by: Supremacy Claus | Apr 24, 2012 5:13:37 AM

If adolescents are so impaired, stupid and impulsive, the lawyer must explain.

Why do they have lower rates of crime, substance abuse, suicide, and accidents than people in their twenties, when connections to the frontal lobes have matured? Is it possible these connections have nothing to do with crime or poor judgment?

Posted by: Supremacy Claus | Apr 24, 2012 5:17:50 AM

"The 60 year old is more mature than the 40 year old. Evidence of maturity: fewer crimes by 60 year olds than by 40 year old's."

Are we to take that statement seriously? You don't want to consider that a male's testosterone levels are at their highest from late teens to mid 20's and decrease steadily from about age 30 onward? Think maybe that might account for a decrease in the crime rate of older men?

Again, there are so many variables that go into making a criminal that it is impossible to pinpoint one reason. But to ignore the data on adolescent brain development, to ignore the research and findings and to not even consider its implications is ignorant. It staggers the mind to know that the above commentator could be so dismissive of the science.

And no, I do not have a "government dependent job." I work for my daughter's ice cream company and I think you would agree that constitutes perhaps the polarized opposite of a Govt dependent job!

Posted by: JLG | Apr 30, 2012 6:12:53 PM

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