The Slow March to Justice for Children
By Barry Krisberg, The Crime Report
Why has it taken a century for America to mend the flaws in its juvenile justice system? In an exclusive commentary for The Crime Report, Barry Krisberg, one of America’s foremost experts on juvenile justice, calls this month’s Supreme Court decision on juvenile lifers in Graham v Florida a “small, but important, step” towards improving the way we deal with our most troubled children.
America’s foremost legal philosopher, Roscoe Pound (1870-1964), once observed that the American juvenile court was the greatest step forward in Anglo-American law since the Magna Carta. He was referring to an ideal of justice that was individualized, compassionate and infused with the value of human redemption. This was the vision of Jane Addams, Judge Ben Lindsey and the youth advocates who lobbied to create the juvenile court in Illinois and Colorado in 1899.
Sadly, this ennobling model of justice has been honored more in the breach than in reality.
The juvenile court system has never had the resources or widespread political support to achieve its goals. Moreover, some have sought to virtually eliminate the juvenile court by making it more like the failed criminal justice system.
Beginning in the mid 1970s and continuing over the next two decades, the core child protection provisions of the juvenile court have been weakened. Despite the rhetoric about how much America loves its children, this nation allowed juveniles as young as 12 years old to receive the death penalty, until the Thompson v. Oklahoma case (1988) limited the application of capital punishment to youngsters older than 16.
It took several more years for the U.S. Supreme Court, in Roper v. Simmons (2005), to ban the death penalty for youth under age 18. Before these decisions, the U.S was virtually the only civilized nation to put juveniles to death.
Despite the progress in limiting the death penalty for children, the legal system continued the practice of sentencing young people to Life without the Possibility of Parole (LWOP) or sending minors to prisons for long terms. The political pressure to seize the macho “get tough on crime” low ground was irresistible. It was as if we adults could scare off young criminals by showing them how mean and out-of-control we were. But there was no research supporting the theory that these draconian punishments produced lower juvenile crime rates.
In Roper, Justice Kennedy argued for a 5-4 majority that the juvenile death penalty was cruel and unusual based on a key notion of “evolving standards of decency.” He cited international legal standards that were contrary to this bizarre practice and relied on emerging neurological research suggesting that adolescent brains were not fully developed, and that adolescents possessed diminished capacity to judge the consequences of their actions. It was also shown that the application of the juvenile death penalty was used in a rare and arbitrary manner. The right-wing talk show hosts had a field day criticizing Justice Kennedy, implying that he was a traitor to America.
With Roper on the books, many of us assumed that a legal challenge to sentencing youth to LWOP would be next to succeed. The fundamental logic of Roper seems central to the constitutional challenge to LWOP for youth. It was not hard to see that putting a child in prison for the rest of their life, with no hope of mercy, was arguably as cruel as the death penalty.
With its May 17 decision in Graham v. Florida, the Court took a small but important step forward by banning the automatic use of LWOP for minors who had not committed a murder. The heirs to Jane Addams’ vision probably wondered why it took over a century to figure this out. The critics of Justice Kennedy and the Court howled again about the reliance on international opinion and standards as one basis of the decision. This time the Court was able to muster a 6-3 majority, with Justice Roberts offering a limited concurrence. But, Justices Thomas, Alito, and Scalia expressed their continued support for the harshest possible penalties.
The Next Step
It now remains to be seen if the logic of Roper and Graham will be further extended to practices of sending very young children to prisons for much extended terms. It is hard to see how the same basic legal and philosophic arguments do not apply to laws that allow minors to be tried in adult courts without careful consideration of their “fitness” for the juvenile justices system.
There is growing evidence that children placed in prisons and jails are more likely than adults to commit suicide, to be subject to rape, and that the minors spend more of their confinement time in segregation. Moreover, there are many juveniles sentenced to long prison terms for non-lethal behavior, such as conspiracy or alleged gang involvement. But there is no credible research supporting the theory that these harsh penalties increase public safety. The data also show that the vast majority of minors who are sent to prison are African American and Latino―a shocking indictment of America’s quest for racial fairness.
The slow march to justice for children that was spearheaded by Jane Addams and celebrated by Roscoe Pound has taken a modest step forward with Graham v. Florida. We can only hope that advocates for humane treatment for our children continue the struggle for justice.
Barry Krisberg, PhD., is currently a Distinguished Senior Fellow and Lecturer in Residence at the UC Berkeley School of Law, and a Visiting Scholar at John Jay College of Criminal Justice in New York.