Miller dissents inconsistent with research

In companion cases Miller v. Alabama and Jackson v. Hobbs, No. 10-9646 (2012), the U.S. Supreme Court, opinion by Justice Elena Kagan, acknowledges the difference between juveniles and adults by holding that laws mandating life without the possibility of parole (LWOP) for juveniles under the age of 18 violate the Eighth Amendment (cruel and unusual punishment). Currently, 2500 prisoners in the U.S. who were under 18 at the time of the offense are serving LWOP sentences. Relying upon Roper v. Simmons, 543 U. S. 551 (2005), banning capital punishment for juveniles, and Graham v. Florida, No. 08-7412 (2010), banning LWOP in juvenile non-homicide crimes, the Supreme Court recognized that children are different than adults for sentencing purposes because of emotional, psychological and biological factors.

Justice Kagan delineated this difference: "Their 'lack of maturity' and 'underdeveloped sense of responsibility' lead to recklessness, impulsivity, and heedless risk-taking. They 'are more vulnerable ... to negative influences and outside pressures,' including from their family and peers; they have limited 'contro[l] over their own environment' and lack the ability to extricate themselves from horrific, crime-producing settings. And because a child's character is not as 'well formed' as an adult's, his traits are 'less fixed' and his actions are less likely to be 'evidence of irretrievabl[e] deprav[ity].'" (citations omitted).

Although the decision did not outlaw LWOP for juveniles, it is a major step forward for human rights. The real question is why does the U.S. lag behind the rest of the world on this issue? Somalia and the U.S. are the only two countries to not ratify the U.N.'s Convention on the Rights of the Child that bans LWOP and execution of children under 18 years old. Miller and Jackson should have been unanimous. Instead, the three dissents are inconsistent with all peer reviewed scientific research on brain development. The dissents are a throwback to archaic thinking.

Paintings through the early 17th century depict children as miniature adults. Take a look at Diego Velazquez's Prince Baltasar Carlos in Silver (1633) or Marcus Gheeraerts the Younger's Portrait of a Boy Aged two (1608). Painting techniques did not reflect accurate physical proportions of children because at the time no recognition existed of emotional and psychological development of human beings. It appears that the dissents have the above images permanently stamped in their collective brains. Scientific research has made it abundantly clear that children are not miniature adults. Recent scientific research has proven that children's brains, especially boys', develop at a much later age than originally thought.

All three dissents rehash the objections raised previously in Graham and Roper. Chief Justice John Roberts mentions, at least, that his dissent may be inconsistent with science. "Perhaps science and policy suggest society should show greater mercy to young killers, giving them a greater chance to reform themselves at the risk that they will kill again." An acknowledgement of scientific research regarding brain development is not found in the two additional dissents. Justice Clarence Thomas argues in his dissent that the precedent relied upon by the majority in the instant decision is inconsistent "with the original understanding of the Cruel and Unusual Punishments Clause." He takes issue with Roper and Graham. According to Justice Thomas, the majority's extension of these cases to forbid mandatory LWOP for offenders who committ murder under the age of 18 is placing damaged bricks on a faulty foundation.

In his dissent, Justice Samuel Alito argues that a 17-year-old who is a few months short of 18 should be treated no differently than an 18-year-old at sentencing. He complains that there is mischief in bringing these two cases before the court because the two juveniles sentenced to LWOP when they were 14 years old, which is not the typical age of juveniles who commit murder. "But no one should be confused by the particulars of the two cases before us. The category of murderers that the court delicately calls 'children' (murderers under the age of 18) consists overwhelmingly of young men who are fast approaching the legal age of adulthood. Evan Miller and Kuntrell Jackson are anomalies." Despite his feeling of "sympathy" for the two 14-year-olds, his dissent does not indicate, whatsoever, that if the typical age of juvenile murderers were 14 years old, he would he have joined the majority. The unifying thread running through the three dissents is that the importance of the states' right to sentence a juvenile criminal defendant, even if the law is arbitrary, without interference from the federal courts is far more important than anything else, including the life of that child. The fact that the state law lacks a rational scientific basis is irrelevant to the dissent.

The brain does not fully mature until much later than adolescence. Until maturity, the capacity for judgment, impulse control and reason is not fully formed. Blakemore & Choudhury's, (Development of the adolescent brain: implications for executive function and social cognition, 2006, Journal of Child Psychology and Psychiatry 47:3 (2006), pp. 296-312.) The majority recognizes these scientific facts in its opinion: "Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes." The traditional basis of criminal law assumes that human beings have behavorial options available and choose to commit crime. As an extension, they are responsible for their actions. Whether that is accurate or not for adults, it is certainly inaccurate for children as science has taught us.

The U.S. is almost consistent with the rest of the world on LWOP but the Supreme Court must go one step further and outlaw LWOP for juveniles, not just laws that make it mandatory. Perhaps the prestigious status we share with Somalia will come to an end soon. The next issue that needs to be addressed is the mandatory certification of juveniles to adult court, as young as age 14, for certain crimes, as in California. The legal community has the opportunity to use its power to have the state Legislature correct its draconian creation.