Redeeming Irredeemable Youth

As Minister of Armaments for the Third Reich, Albert Speer kept Hitler’s war machine running and played a key role in the deaths of millions. He served 20 years in prison for war crimes and crimes against humanity.

Evan Miller was 14 years old when he and a friend robbed a passed-out neighbour of $300 after a night of drinking and drug use. The neighbour awoke and grabbed Miller by the throat, at which point the two boys beat him with a baseball bat, with Miller declaring at one point, “I am God, and I have come to take your life.” The boys later set fire to the neighbour’s trailer to cover up their crime. The neighbour, Cole Cannon, died of smoke inhalation along with his other injuries.

Miller was prosecuted as an adult under Alabama law and received a mandatory minimum sentence of life without parole.

Last week, a narrowly divided Supreme Court threw out Miller’s sentence, finding it unconstitutional for states or the federal government to mandate life sentences without parole for juvenile offenders. The court left open the possibility that judges can impose such sentences in individual circumstances.

I think the Supreme Court came to the right decision.

Three of the eight Nuremburg judges wanted to give Speer the death penalty, but the others were swayed by his acceptance of individual and collective responsibility for the actions of the Nazi leadership. Speer wrote several books while in prison, providing a valuable historical window into the working of Hitler’s inner circle, and lived peacefully for 15 years after his 1966 release before dying of natural causes.

The Nuremburg tribunal that convicted Speer sat in a very different time and place from 21st century Alabama, of course. Yet for the most part, we see ourselves and our era as the more enlightened. At least we aspire to see ourselves that way.

Youths are capable of heinous crimes, and such crimes sometimes demand the strictest punishment we can reasonably demand. But does this mean the law should deem an entire class of youthful offenders irredeemable based on the nature of their crimes? How could Speer, a professional architect who was also the architect of death for untold soldiers and civilians, be returned to society, while we today deem teens who commit murder in certain places to be incapable or unworthy of repair?

Miller v. Alabama was decided along with Jackson v. Hobbs. Kuntrell Jackson, also 14, was charged in Arkansas with capital felony murder. He was not directly responsible for the murder in question, but rather participated in the aggravated robbery that precipitated it. For both young men, neither the jury nor the judge could take any account of their ages or family circumstances in sentencing.

Justice Elena Kagan, writing for the 5-4 majority, explained that the court held that mandatory life without parole for those under 18 years old violates the Eighth Amendment’s ban on cruel and unusual punishment. The case relied mainly on the precedents of Roper v. Simmons, which barred capital punishment for offenses committed by minors, and Graham v. Florida, which prohibited outright the sentence of life without parole for minors who have committed non-homicide offenses. Kagan wrote that a mandatory sentence of life without parole in the cases before the court “contravenes Graham‘s (and also Roper‘s) foundational principle: that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.”

The majority opinion also made the point that life without parole effectively serves as a harsher sentence for a juvenile than for an adult, as a young offender would spend more years and a larger percentage of his or her life in prison.

Trying juveniles as adults in order to pursue stiffer penalties became common in the 1980s and early 1990s, amid a wave of violent crime. Rachel Aviv, in a New Yorker feature from January, noted that 46 states changed their laws to make it easier for minors to be tried as adults during this period. In many states, prosecutors can choose to try defendants older than 14 in adult court without a hearing or the possibility for appeal.

Kagan noted that, although the court has not banned life without parole for minors outright, “…we think appropriate occasions for sentencing juveniles to the harshest possible penalty will be uncommon.”

In large part, this change has to do with growing evidence about differences between the psychology of adults and children or adolescents. Marsha Levick, who co-founded the nonprofit Juvenile Law centre, told The New York Times, “What we are seeing is a very stark and important rethinking of how we treat juvenile offenders. For years we were trying convince the courts that kids have constitutional rights just like adults. Now we realise that to ensure that kids are protected, we have to recognise that they are actually different from adults.”

In her article, Aviv contended that only about half of the offenders under 18 who are tried as adults understand the Miranda warning fully and that juveniles tend to make poor witnesses, due to being more vulnerable to intimidation or misleading questions than an adult might be. She also reported that Martha Grace Duncan, a law professor at Emory University, “found that youths who failed to express their contrition promptly and appropriately, as adults would, were often penalised for showing ‘less grief than the system demands.'” Duncan found that courts tended to look for remorse in ways that did not fully account for the differing developmental stages of younger defendants. (Tellingly, Speer is sometimes remembered as “the Nazi who said ‘sorry.'”)

Even if judges and juries are informed about the differences in adolescent psychology, laws that mandate a life sentence mean such information can only be used in determining a verdict, and not to influence sentencing. Kagan wrote that such practice “ignores that [the defendant] might have been charged and convicted of a lesser offence if not for incompetencies associated with youth – for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys.”

The four dissenting justices argued that it is beyond the Supreme Court’s proper role to forbid such mandatory sentencing laws. Justice Antonin Scalia’s opinion went further, claiming the court “long ago abandoned the original meaning of the Eighth Amendment,” and that the Miller decision will inevitably lead to the eventual barring of all life without parole sentences for juveniles. Scalia may well be correct – and I don’t think that would be a bad thing, either.

Prohibiting life without parole for juveniles would not be as radical as Scalia implied. The United Nations Convention on the Rights of the Child is a treaty that forbids such life sentences, and has been ratified by 192 countries. The two countries that have not ratified it are Somalia and the United States.

More immediately, however, Miller v. Alabama enables judges to consider circumstances such as past offenses, family background and the age of the defendant when considering life sentences for juveniles. This is consistent with a concept of justice that allowed a Nazi war criminal to take responsibility for his actions and live out his final years in freedom. If Albert Speer could be redeemed, maybe Evan Miller can be too.

For more articles on financial, business, and other topics, view the Palisades Hudson newsletter, Sentinel, or subscribe to my daily opinion column, Current Commentary.

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