How to Stop Sentencing Children to Death by Incarceration
The Supreme Court in April handed down its decision in Jones v. Mississippi, a ruling that permits sentencing judges to condemn children to spend life in prison without the possibility of parole without entering a finding that the child is, in the court’s words, “permanently incorrigible.” This was wrong. Importantly, however, the case did not present the question of whether juvenile life without parole is constitutional at all. As a result, there is still a way for the Court to get that question right. To ensure it does, state legislatures and individual judges must continue recognizing what decades of brain science and generations of experience make clear: No child is irredeemable, and no child should be sentenced to “death by incarceration.”
Over the two decades leading up to Jones, the Supreme Court decided a number of cases—Roper (2005), Graham (2010), Miller (2012), andMontgomery (2016)—that explicitly and repeatedly acknowledge that criminal law must better accommodate and account for the fundamental differences between youth, as a class, and adults. These decisions recognize the role of adolescent development in sentencing, and together they render permanent punishment unconstitutional for most youth because of their immaturity, vulnerability, and capacity for change.
The evolution began in Roper, where the Court held that imposing the death penalty for crimes committed by youth under the age of 18 violates the Eighth Amendment’s prohibition on cruel and unusual punishment. It continued five years later in Graham, with the Court holding that life without parole is unconstitutional for youth convicted of non-homicide crimes. Then in Miller, the Court further confined the use of juvenile life without parole, holding that mandatory life without parole sentences are always unconstitutional for children. Montgomery later held that Miller applied retroactively, clarifying that not only did Miller invalidate mandatory life without parole sentences for youth, it also made juvenile life without parole unconstitutional for all children except “the rare juvenile offender whose crime reflects irreparable corruption.” Jones hits the brakes on that expansion.
Throughout the development of the Court’s youth sentencing jurisprudence, though, the question of whether all juvenile life without parole sentences are unconstitutional has stayed open. That question remains open after Jones—and states may provide the answer.
When the Supreme Court considers whether a particular sentence categorically violates the Eighth Amendment’s proscription of cruel and unusual punishment, it asks two questions. First, it examines whether there are legitimate “penological justifications for the sentencing practice.” Second, it surveys “objective indicia of national consensus” surrounding the practice. Sentences that serve no penological objective are cruel; sentences that controvert national consensus are unusual. Child psychology shows why sentencing children to death by incarceration is cruel. It’s up to states to render it unusual. If they do, the Court may finally be forced to recognize what parents, educators, and psychologists have been telling it for years: no child should be sentenced to death by incarceration.
With respect to “penological justifications,” the developmental psychology is clear: sentencing children to life without parole serves no penological purpose. The Court has identified four traditional purposes of punishment: retribution (punishment is the just response to morally blameworthy actions), deterrence (punishment prevents others from committing crimes), incapacitation (punishment removes dangerous people from society, promoting public safety), and rehabilitation (punishment reforms guilty people to reenter society in a productive way).
None of these purposes justifies sentencing a child to die in prison—regardless of their crime. Three pillars of adolescent development explain why.
First, children do not have a fully formed capacity for exercising mature judgment. Neuroscientists have known for decades that the prefrontal cortex, the region of the brain principally responsible for self-regulation, continues developing into the mid-twenties. An underdeveloped prefrontal cortex is less capable of controlling impulsive behavior, making children more likely to have rapid, ill-considered, or unconscious responses to stressful situations. This part of the brain is also responsible for anticipating and evaluating future consequences, meaning children’s abilities to appreciate the consequences of their actions is not fully formed. At the same time, the adolescent nucleus accumbens, the brain’s reward processing center, is more likely to overvalue rewards and underappreciate risks, making young people more likely to engage in risky behavior. All told, the adolescent brain cannot exercise judgment in the way the adult brain can, meaning children are not responsible for their actions in the same way adults are.
Second, children are more susceptible to external influences, like peer pressure. Reward processing is at play here too. The presence of peers puts a hand on the adolescent risk–reward balancing scale, increasing the perceived value of an immediate reward and making children more likely to take risks. Not only that, the adolescent brain is still involved in myelination, the neurodevelopmental process of strengthening connections between regions of the brain. To withstand peer pressure, youth not only need a developed prefrontal cortex, but they also need neurological tools to communicate between the prefrontal cortex and the brain’s other decision-making regions. Because they have neither a fully developed prefrontal cortex nor the complete integration of discrete neural regions that myelination facilitates, youth lack the neurological tools to withstand peer pressure. It is no wonder, then, that children most frequently break the law in group settings. This feature of adolescent development also weighs against holding youth permanently responsible for their actions because it shows children engage in behavior while they are young that they will avoid once they mature.
Third, a child’s identity is not fully formed. Adolescent lawbreaking typically results from experimentation. It, therefore, is not predictive of whether a child will engage in criminal activity as an adult. Indeed, “researchers have consistently concluded that behavior can be identical in adolescents” who continue to break the law as adults and those who do not. Because a young person’s identity is in a constant state of evolution, the Diagnostic and Statistical Manual of Mental Disorders (DSM 5) will not diagnose antisocial personality disorder in people under the age of 18, making it “the only personality disorder that is not diagnosable in childhood.” The scientific community, then, universally accepts that we are not the same people as children that we will become as adults.
This science shows why permanently punishing children fails to serve any penological purpose. Retribution is inappropriate because young people are not fully capable of controlling their actions or exercising mature judgment, making them less morally blameworthy. Deterrence is equally out of place because youth do not have the developmental maturity to control their behavior or resist peer influence and therefore cannot be effectively deterred. Incapacitation is similarly flawed because it requires predicting a child’s future dangerousness before their character is fully formed. Finally, rehabilitation cannot justify a life without parole sentence because the sentence inherently assumes that a child will never be sufficiently rehabilitated to reenter society.
The science shows why juvenile life without parole is “cruel,” but, unfortunately, it may not yet be “unusual” by Supreme Court standards. Today, nearly 1,500 people are serving life without parole sentences in 19 states for crimes they committed as children. By contrast, when the Court invalidated the juvenile death penalty in Roper, the practice was already banned in 30 states and unused in at least 14 more. Similarly, in Graham, the Court emphasized that although juvenile life without parole for non-homicide offenses was permitted in 26 states and Washington, D.C., only 123 people were serving such a sentence across 11 states. Measured against those precedents, youth life without parole sentences may still be too prevalent for a reluctant Supreme Court to intervene.
That’s where state legislatures and individual judges come in. Since Miller, a majority of jurisdictions across the country have recognized the cruelty of juvenile life without parole and ended the practice. Likewise, individual judges have looked to the rationale underlying Roper, Graham, and Miller to stop sentencing children to die in prison. They should continue to do so after Jones. If enough states eliminate the practice, the Supreme Court that finally considers the question of whether all juvenile life without parole sentences are cruel and unusual will, if it reads its precedent as “carefully” as the majority claimed to in Jones, have no choice but to end it for good.
Over fifteen years ago, the Supreme Court took the first steps toward ending life without parole for children. Jones is a deviation from, but not the final resting point on, that path. The mantle now passes to state judges and legislators to continue eradicating the practice. Because juvenile life without parole is cruel, they should. In doing so, they can render it unusual as well. Once they do, the Court may finally be forced to recognize what it should have understood all along—no child is irredeemable.
Orion de Nevers is a third-year law student at Georgetown University Law Center where he is a member of the Juvenile Justice Clinic and The Georgetown Law Journal. He has worked in the Special Litigation Section of the Department of Justice’s Civil Rights Division, and at the Texas Defender Service. His writing appears in Slate, the Take Care Blog, and the National Law Journal.