by Phillip Torsrud

In Roper V. Williams (2005), the Supreme Court ruled that it was unconstitutional to execute children.  For all America's lip service to human rights, we were at the end of the line when it came to how our system treated juvenile offenders.  "Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty,"  Roper.

In fairness to the dissenters on the Court, this is not the best way to determine our laws.  However, because so many State legislatures abdicated their responsibility in addressing this issue, the Supreme Court was in the awkward position of either acknowledging a wrongful practice, and be labeled judicial activists, or allow the United States to be discredited as a moral authority and appear ridiculously cruel.

We must commend those State legislatures that condemned executing juveniles prior to the Court's decision, for that legislation played a role in the Court's conclusion that the practice was cruel and unusual punishment:

[1]  The prohibition against "cruel and unusual punishments," like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design.  To implement this framework we have established the propriety and affirmed the necessity of referring to the "evolving standards of decency that mark the progress of a maturing society" to determine which punishments are so disproportionate as to be cruel and unusual.  Trop V. Dulles

Just as those State legislatures brave enough to condemn executing juveniles were used in Roper as precedent to demonstrate an evolving standard of decency, they were also used in Atkins to justify condemning the execution of the mentally retarded.

"We held that standards of decency have evolved since Penry and now demonstrate that the execution of the mentally retarded is cruel and unusual punishment.  The Court noted that objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions of the mentally retarded.  When Atkins was decided only a minority of States permitted the practice, and even in those States it was rare.  On the basis of these indicia the Court determined that executing mentally retarded offenders "has become truly unusual, and it is fair to say a national consensus has developed against it."

It is clear that the Supreme Court does not like stepping on the toes of State legislatures when it comes to how they punish people, no matter how wrongful the conduct.  "In general we leave to legislatures the assessment of the efficacy of various criminal penalty schemes,"  Harmelin V. Michigan.  Have State legislatures been motivated by Roper to finally get on the ball with respect to how they treat juvenile offenders?

As it now stands, only juveniles who commit the most heinous crimes, that would be considered for capital punishment, have their age considered as a mitigation defense.  What implications should Roper V. Williams have on the rest of juvenile offenders?  If as a class juveniles must receive a lesser punishment due to a diminished degree of culpability, then being a juvenile is no longer a mitigating factor but a mitigating defense.

A mitigating factor is something to be considered when passing sentence.  Prior to the death penalty for juveniles being overturned, the jury was required to consider "mitigating arguments related to youth on a case-by-case basis,"  Roper.  This was an argument used against overturning the death penalty for juveniles.  However, merely considering someone's status as a juvenile as a mitigating factor was insufficient since:

It is  difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.  As we understand it, this difficulty underlies the rule forbidding psychiatrists from diagnosing any patient under 18 as having antisocial personality disorder, a disorder also referred to as psychopathy or sociopathy, and which is characterized by callousness, cynicism, and contempt for the feelings, rights, and suffering of others. 

Yet, our legal system relies on various psychological evaluations to determine the nature of each juvenile on a case-by-case basis.  This is true for waiver into adult court, defenses to criminal liability including mitigation defenses, and sentencing.  If psychiatrists acknowledge the difficulty in accurately diagnosing juveniles because their brains are not fully developed, how then do we fully rely on their assessments regarding specific juvenile defendants as a reliable basis for a decision.  How can a defense attorney use a psychological defense for their juvenile defendant, when there is no criteria that allows a psychiatrist to evaluate their client the same way they would an adult.  The conclusions are categorically unreliable.  Therefore, equal protection requires that the protection granted juvenile capital offenders as a result of their diminished culpability, be extended to the rest of juvenile offenders.  "Today our society views juveniles, in the words Atkins used respecting the mentally retarded, as "categorically less culpable than the average criminal."

The Court uses a number of arguments that apply not only to juveniles facing the death penalty, but are true for all juvenile offenders.

Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders.  Juveniles' susceptibility to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult."  Thompson V. Oklahoma.  "Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment,"  Stanford V. Kentucky.  "The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character,"  Thompson.

How can State legislatures apply these facts to juvenile offenders who don't commit capital crimes?  State legislatures should pass a law requiring that juveniles waived into adult court be sentences by the guidelines for the felony one class below that for which they are convicted of.  it should be retroactive and juveniles sentenced before the evidence used in Roper, showing that the juvenile brain is different, should be re-sentenced as a result of this new factor.

Under our current system, juveniles convicted of the same class felony as adults often get harsher sentences.  Requiring a juvenile convicted of a class B felony to be sentenced under class C felony guidelines, allows the law to acknowledge the difference between juvenile and adult offenders.  This takes public safety into consideration by allowing the case to be handled in adult court due to the severity of the crime.  Being a juvenile would then be properly acknowledged as a mitigation defense for the rest of juvenile offenders:

From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.  Indeed, "the relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient;  as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside," Johnson.

When will State Legislatures apply new facts to the law?  Probably never because juveniles have no lobbying power.  In Wisconsin, the Tavern League is a powerful lobbying group that has a heavy influence on the State's lax drunk driving laws.  The havoc created by drunk drivers on Wisconsin roads in injuries, deaths and property damage, is far more significant than the crimes the State's juveniles commit.  Yet, one must accrue five drunk driving citations to attain a felony.  This, while juveniles are buried in prisons for life, and adults who commit similar or worse crimes get plea bargains and walk out of prison after a couple of years.  When science tells us juveniles have a greater potential to change than adults, why wouldn't we design a system that takes advantage of that?

Please write your Congressman and ask, and refer them to this blog.  For more information on our legal system and how it can be changed, please go to www.crimeandculture.com and read my other blogs as well as my books that are posted there.  Essays of a Penitentiary Philosopher breaks down the failings of our system and Preemptive Strike is a novel on human trafficking.