The Supreme Court Needs to Change the Way It Thinks About Justice for Children

There’s another obvious difference between children and adults.

A girl with her hands cuffed behind her back.
Photo illustration by Slate. Photo by Igor Vershinsky/iStock/Getty Images Plus.

Over the past 20 years, the Supreme Court has set significant limits on how severely juveniles can be punished for serious crimes. Wednesday, the court is hearing arguments in a case that will determine whether the trend toward leniency continues, as it should, or is cut short.

In recent years, the court has ruled that the Constitution bars not only death sentences for children who commit murder but also sentences of life without parole for terrible crimes that fall short of homicide. The court’s reasoning is uncomplicated: People younger than 18 are too immature to be fully responsible for their crimes. But there’s a flaw in that rationale that might provide an opening for the court’s conservatives to exploit.

The court’s 2012 step toward leniency, Miller v. Alabama, created some confusion. In Miller, the court ruled that a mandatory sentence of life without parole is unconstitutional for someone who was under 18 at the time of the offense—even if that offense was a horrific murder. This decision left unanswered questions: Was the court unhappy about the mandatory nature of the sentence—about denying judges the discretion to impose lighter penalties? Or did the court believe that a sentence of life without parole was excessive for any kid, whether or not the judge had a choice about imposing that sentence?

The new case will settle these questions, and it involves one of the most notorious murder sprees in our nation’s history. Lee Boyd Malvo, in thrall to a father figure named John Muhammad, participated in killing 17 people and severely injuring another 10 in a cross-country crime spree culminating in the so-called “Beltway sniper” attacks in October 2002. Unlike Muhammad, Malvo escaped execution thanks to his age: He was 17 at the time of the crimes. Although the judge had discretion to impose a lesser penalty, he instead chose to sentence Malvo to life without parole. The question before the Supreme Court now is whether Malvo’s discretionary sentence of life without parole is unconstitutional. The stakes are high for those hundreds of people who committed murder as kids and are now serving discretionary sentences of life without parole.

As a matter of conscience, nobody should favor a sentence of life without parole for a child, no matter what that child has done. As juvenile advocates often say, life without parole sentences a child to die in prison. That we continue to impose such punishments on children puts us at odds with every nation whose criminal justice policies we should emulate.

But an empirical fallacy mars the reasoning that has driven the Supreme Court toward leniency in juvenile sentencing: The psychology and neuroscience of adolescent development show that normal 17-year-olds are little different from a large percentage of people in their early 20s. No evidence at all suggests that Malvo was less mature when he committed his atrocious crimes than the average 18-year-old, who remains eligible for the harshest penalties. Add that those who commit murder in their early 20s tend to be much less mature than their agemates in the general population, and the maturity-based argument for leniency gets even shakier. If it is immaturity that warrants leniency, but 22-year-olds who commit heinous crimes are sufficiently mature to be given sentences of life without parole, then there is no reason to be lenient to a normal 17-year-old like Malvo. We run the risk of watching the court’s conservative majority follow this reasoning off the moral cliff and rule that Malvo’s sentence comports with the Constitution.

There is another way. The court should instead build its case for leniency on a bright-line difference between children and adults: Children lack the rights to political participation that adults enjoy. Children lack the vote, and their right to freedom of speech is severely curtailed. The same government that gives parents the right to prevent their children from attending political rallies aimed at shaping the law denies anyone the right to curtail adult participation in such events. Yet voting and speaking out are the two primary means of exerting influence over the law.

Children’s diminished political rights matter in criminal-sentencing decisions because criminal punishment is government work. In a democracy, the primary reason the government is allowed to make you do things you would prefer to avoid is that you have a say over what the government does. This idea undergirds the rallying cry, “No taxation without representation!” But children do not have a say. Our political system treats them as, literally, second-class citizens: They get some but not all of a first-class citizen’s rights to participation. But then it follows that they should get some but not all of a first-class citizen’s government-imposed burdens. Chief among these burdens is subjection to a full helping of punishment for criminal conduct.

Children are importantly different from other people denied the vote. Unlike visitors to our country, children have no other political home, and they did not choose to come here and make themselves subject to our laws. Unlike the severely mentally disabled, all but the youngest children can make voting decisions as competently as many adult voters do. It is true that many jurisdictions in our country deny the franchise to felons, as well. But that doesn’t mean we should treat children as we treat felons—holding both groups fully criminally responsible while simultaneously denying them the vote. The right remedy is to enfranchise felons.

None of this implies that immaturity is irrelevant to criminal responsibility. Where an offender was reduced in maturity and thus in culpability, a judge should be more lenient. But judges should not have the option of giving adult punishments to people denied an adult’s right to exert influence over the law—even if the judge believes that the person is well-equipped to exert such influence.

Malvo deserves a more lenient sentence than the one he received. There is room for both the left and the right wings of the court to unite in recognizing this simple conclusion, a conclusion grounded not in the psychological meaning of age but in its political meaning.