The United States has long been a standout in our willingness to punish children. We are, for example, one of only four countries that still has no minimum age for arresting and convicting children (alongside Cuba, Malaysia for terrorism, and Sudan for drugs). We also embraced the practice of executing children far longer than all but a handful of countries — Iran and Saudi Arabia being two.
In the 2000s, however, the Supreme Court slowly reined in the worst excesses of our treatment of children. It abolished their execution in 2005 and the imposition of life without parole for non-homicide crimes in 2010.
In the 2012 case Miller v. Alabama, the court took one more step, invalidating state laws that mandated life-without-parole sentences for children convicted of homicide. But the opinion wavered, holding that judges could still be given the option to impose such sentences. Importantly, the court suggested that judges should do so only in those rare cases where the crime reflected “irreparable corruption,” but it did not explicitly limit life without parole to that situation.
Thursday’s 6-to-3 decision resolved that ambiguity. Judges, the six conservative justices held, do not need to make any special finding of irredeemability before condemning a child convicted of homicide to die in prison. Unsurprisingly, the three liberal judges dissented, claiming that Miller did indeed require judges to find a child “irreparably corrupt” before imposing life without parole.
Brett Jones, then, who stabbed his grandfather to death as they argued over the boy’s girlfriend when he was 15, will spend the rest of his life in prison.
While the outcome itself is horrific, the very debate in Jones is also terrible, both as policy and morality. To debate whether we need a finding of irredeemability presupposes that such findings are possible.
They are not.
The popular view of violence, which comfortably defines some people as “violent offenders,” dangerously mischaracterizes violence as a fundamental personality trait. In doing so, it ignores the significant role played by situational and environmental factors. Even more relevant to the issue in Jones, it ignores that violence is far more a phase than a state. It is not that people either “are” or “are not” violent. For a host of reasons, ranging from shifting hormone levels to neurological growth to social factors like getting a job or starting a family, studies from around the world consistently show that people — boys and young men in particular — start “aging into” violence in their teens, and then almost always “age out” sometime in their 20s to 40s.
It’s true that some people are more prone to violence than others at every stage — but most still follow the same rough trajectory. And it’s also true that some children who commit crimes will engage in violence, even serious violence, much later in life. But the fraction of such children who persistently engage in violence through adulthood is extremely low. For example, a study of 174 children given life-without-parole sentences for homicide in Philadelphia, and then resentenced and released in response to several Supreme Court opinions, found that only six were later arrested and two convicted, with the more serious conviction being just for robbery.
Moreover, it remains nearly impossible to predict who among a group of children, even those who have committed serious acts of violence, will continue to be violent for years to come. Even children with extensive records often suddenly stop engaging in problematic behavior in adulthood. (Jones himself has shown extensive growth, maturation and contrition while in prison.)
Stunningly, the opinion in Jones acknowledges this, quoting an earlier opinion’s statement that even experts struggle to distinguish between children whose violence reflects transitory issues vs. something “irreparable” (perhaps because the idea of irreparability is itself irreparably flawed). Yet, infuriatingly, the court invokes this difficulty to justify imposing fewer limits on judges sending children to die in prison.
Even if we were to accept the idea that some children are “irreparably corrupt” — and, to be absolutely clear, to do so is to reject wide swaths of medical and psychological evidence — that would seem to advocate for treatment, not punishment. If a 15-year-old boy is already “beyond reform,” it is surely because of forces far beyond his personal control. Jones himself, now 31, had suffered horrific abuse his entire short life, and he committed his crime in a moment of intense strain. To justify locking up such a child is to say, quite simply, that we just don’t care, that it is easier to literally lock him away forever than to address his issues, much less take any responsibility as a society for them.
Jones is not just a failure of policy, but also a deep and tragic failure of morality.
It is striking that Justice Brett M. Kavanaugh wrote this opinion. His contentious 2018 confirmation hearings centered on credible allegations that he had sexually assaulted Christine Blasey Ford when he was 17, and his defenders frequently asked why something allegedly done when 17, even if true, should disqualify him from being a justice at 54. Kavanaugh should be uniquely sensitive to the claim that children mature. Instead, he made it easier to condemn children to prison forever. His opinion, though, actually condemns all of us as a society, and our remarkable willingness to turn our backs to science, to turn from our responsibilities as adults to raise up our nation’s children, and to throw lives away, before they even have a chance to grow out of violence and into mature adulthood.