Not Just Kids Behaving Badly

"Forty-three states, the District of Columbia, and the federal government have set the maximum punishment for juvenile offenders at life without the possibility of parole" (LWOP). So begins a new publication from the Heritage Foundation, where author, former prosecutor and legal scholar Charles Stimson argues that juvenile offenders should do "Adult Time for Adult Crime."

In its landmark Roper decision, the United States Supreme Court forbade capital punishment of juveniles as a violation of the 8th amendment’s prohibition against cruel and unusual punishment. As is often the case when the SCOTUS sets a baseline standard, activists set out to make the states go even further, and ban LWOP too, as unjust punishment for young criminals. While Stimson concedes there’s "nothing wrong" with activists making their case, he objects to the use of false and misleading information to advance what he sees as an ideological agenda.  

In about 100 pages, Stimson makes a powerful argument that LWOP is an appropriate and just sentence for certain juvenile offenders, and he does a stellar job exposing and correcting the record on a surprisingly effective campaign of misinformation, disseminated by "anti-incarceration" activists and gobbled up by the media and policy-makers, without regard for the truth or apparent concern for the suffering of victims and the horrific nature of the violence perpetrated by juveniles in this country.

But calling them "anti-incarceration" activists may not be fair. Some of the people who argue against tough punishments for juveniles are fine with incarceration in general as a legitimate law enforcement response to crime, but they hold a sincere belief that kids really can change — and that the bad things they do are less the result of a juvenile’s free will than the product of a horrible lifestyle, lack of good parenting and the absence of meaningful and healthy adult relationships. In other words, they resist LWOP sentences not because they’re anti-incarceration so much as pro-hope for young offenders.

Whatever the nature of the group pushing the issue, their work should be rooted in facts, not mythical "feel-good" biases that exploit our human desire to believe that a sweet-faced 15 year-old, who looks like the girl or boy next door, is not capable of intentionally killing an innocent human being.  Interestingly, the same "types" who oppose tough sentences for juveniles will argue that teenage girls are "old enough" to have sex with adults and that we should "respect" their right to make adult decisions about sexuality. The ACLU, for example, makes this argument all the time in an attempt to pressure courts to lower the age of consent.  Stimson could have used the ACLU’s hypocrisy to further his point that the argument against LWOP for juveniles sometimes lacks genuine concern for the well-being of kids.

Stimson not only criticizes activists for their tactics; he includes solid research about juvenile offenders. For example, Stimson notes that it has widely been reported, and submitted in appellate briefs and legislative hearings, that the United States is "the only country in the world that sentences kids to life without parole."  The truth is at least 11 other countries provide the same punishment, and Stimson explains why the number is probably even greater — though hard to measure — because of the way policies on the issue are written and enforced.  

One of the most important parts of Stimson’s research is his expose of a shameful tactic where activists use pictures of very young children (apparently as young as eight-years old) to talk about the inhumanity of LWOP, even though the youngest person currently in prison under a LWOP sentence is 14 — and most are 17 or 18.  Even the toughest policy-makers have trouble accepting the idea of an 8 year-old in prison for life.  But because it’s a lie, those same policy-makers should resist such manipulative tactics with a vengeance.  Indeed, maybe policy-makers should assume that the use of such misleading information probably means the truth must not be persuasive.  

Stimson also makes a strong argument that even those who think juvenile crime don’t affect their lives should care about this issue because certain crimes are so horrific that the idea of a particular offender one day walking free poses too great a risk to civilized society.

For example, a 16 year old named Ralph David Cruz, Jr. wanted to steal a car when he saw a young mother driving home with her 6 year old son and 7 year old daughter in 2001.  When she refused, he shot her in the head and chest, then ran over her dead body with the car as he drove away with her kids in the back seat. 30 minutes later, both kids were found dead, execution style, with gunshot wounds to the head. And then there’s the story of a 14-year-old offender named Ashley Jones, who anti-LWOP activists have written about by saying she "tried to escape the violence and abuse [in her life] by running away with an older boyfriend who shot and killed her grandfather and aunt."  Stimson provides a more enlightening version of the case by quoting the judge who handled Jones’ prosecution:  "When Ashley realized her aunt was still breathing, she hit her in the head with a heater, stabbed her in the chest [and] attempted to set her room on fire… As [Ashley’s ten-year old sister] attempted to run, Ashley grabbed her and began hitting her. [Ashley’s boyfriend] put the gun in [the little girl’s face] and told her that was how she would die. Ashley intervened and said ‘No, let me do it," and proceeded to stab her little sister fourteen times."

Raise your hand if you EVER want Mr. Cruz or Ms. Jones living in your neighborhood.

Stimson’s other case studies make this point over and over again. It’s hard to read, actually, but there’s no other way to fairly decide whether LWOP is appropriate for certain juveniles without knowing exactly what they did wrong.  It isn’t an abstract law school question and these are not just "kids" behaving badly.  Real human beings lost their lives to grotesque violence at the hands of people who, irrespective of their age, had no capacity to care about human life.  Maybe there’s an explanation for how they got that way — and we should absolutely spend money understanding the reasons why juveniles kill.  But future prevention of other juveniles’ violence is not furthered by inadequate response to the violence that’s already been done.

Though full of valuable data, Stimson’s statistics aren’t always clear. For example, he says juveniles in the United States "lead the western world" in juvenile crime and in one recent year committed as many violent crimes as juveniles in the next seven highest countries combined.  This may all well be true, but he didn’t give out a comparative "per capita" number.

Stimson does include a reference to the U.S. being 14th in murders per capita "committed by youths." And he notes that when it comes to crime "rates," the U.S. ranks highly in every category, including juvenile crime. Stimson also notes a recent uptick in severity of juvenile violence in the U.S. which has prompted states across the country to lower the age at which juveniles can be transferred to adult court for prosecution.  This uptick followed a long period of time during which criminal justice policy centered around a presumption that rehabilitation and not punishment should be the goal of juvenile justice. It would have been helpful to see some data on the relationship between LWOP punishments and a reduction in juvenile violence.   

Other data is also relevant — though confusing. For example, Stimson points out that anti-LWOP activists consistently claim that over 2200 juveniles are serving life without parole sentences in this country, but he says that prison officials claim this is a manufactured statistic because it is a virtually impossible number to measure. Even if it’s true, is 2200 too many? Stimson doesn’t say.

Most of us have a soft spot for kids — even when they commit horrible crimes. The younger a child is, the more willing we are to blame the adults around them for the bad things they do.  But a soft spot isn’t the same as a pass — and when juveniles commit especially violent crimes, the last thing they need is legal system that sends a message that it’s "no big deal."

Stimson’s work dares to say what everyone already knows: too much money is wasted trying to "save" dangerous young people who will never stop hurting others. And while it may seem cynical to have a criminal justice policy that puts this idea in st one, the real challenge is not to abandon LWOP but to find a way to better identify those young offenders who are truly capable of changing their lives.

If we spend precious tax dollars on futile efforts, the kids who really can become productive members of society won’t get sufficient resources because there won’t be enough money left.  We know what sociopathy looks like — in adults and juveniles — and we know it isn’t a "fixable" disease. Without the option of LWOP for some juveniles, the criminal justice system will be forced to let even the most dangerous among us kill and kill again, propped up by the romantic and decidedly unscientific hope that change is always possible.

Stimson’s final argument about international law is powerful — and should easily prevail against any claim that the United States is somehow legally compelled by laws involving other countries not to impose LWOP sentences against juveniles. The United States Constitution, the constitutions of the various states, and federal and state criminal codes are the only laws that matter.  

Stimson’s work should be mandatory reading for anyone considering the propriety of LWOP punishments for young criminals.  It doesn’t matter whether he’s right — it’s enough that the other side is so wrong.