Absolutely No Excuse
Diary of a Mad Law Professor
November 18, 2009
On November 9 the Supreme Court heard arguments in Graham v. Florida and Sullivan v. Florida, a pair of cases asking whether the Eighth Amendment’s proscription against cruel and unusual punishment is violated by sentencing juveniles to life imprisonment with no possibility of parole. No other nation has sentenced juveniles to life. But in the United States there are approximately 2,500 lifers charged while under 18. Of those, 109 are children who committed offenses that did not involve murder; all of them are kids of color—84 percent black. Seventy-three of those chilren were 14 or younger when they committed their crimes. And seventy-seven of those 109 were sentenced in Florida.
One of the named plaintiffs is Joe Sullivan, who was 13 when he was convicted of sexual battery. Terrance Graham, the other named plaintiff, was convicted of robbery when he was 16. He was released on parole, and then given life for a parole violation when he was 17. Sullivan and Graham are imprisoned in Florida, where according to Bill McCollum, the state’s attorney general, there has been a push to crack down hard on youth crime because, after a string of attacks on foreign tourists in the 1990s, the “problem was…threatening the state’s bedrock tourism industry.”
While the definition of “cruel and unusual” is the thrust of what the Court must decide, the racial and geographic makeup of this particular population of juvenile lifers is quite remarkable. Toss in the State of Florida’s conflation of crime and commercial interest, and it adds up to a very large, very cruel and most unusual elephant in the room. But the legal debate has not and will not openly acknowledge race as a factor. Rather, the Court is deeply divided along ideologically colorblind lines, which nonetheless have philosophical underpinnings that allow such inequities to remain uninterrogated.
At the heart of any criminal case is the determination of a defendant’s intentionality, which depends on some consideration of state of mind, or mens rea. There are two ways of expressing the query. On the one hand, we could ask if the act was intentional in a narrow sense: was the crime physically performed by the named defendant without radical chemical imbalances or physical coercion? This way of thinking places great emphasis on the act itself. On the other hand, we could frame the question in such a way that foregrounds the actor and his motives, an approach that requires more examination of the defendant and his thinking about consequences–that is, about meaning, relation, capacity.
Most of us recognize that there is a difference between (a) meaning to put one’s car into reverse; and (b) meaning to put the car into reverse while carelessly failing to check carefully behind it; and (c) meaning to put the car into reverse with the specific purpose of running over one’s cheating spouse. Situations (b) and (c) more or less illustrate the difference between first-degree murder and manslaughter. What the Eighth Amendment was crafted to patrol is punishment based on the bare schematic set out in situation (a)–where there is no possibility of mercy, no adjustment for intended outcome, no consideration of the state of mind of the actor, no tempering based on circumstance. Yet that, unfortunately, has been the direction toward which much of our law-and-order jurisprudence has been moving in recent years: not just trying juveniles as adults but also determinate sentencing in all categories. This is a move toward harsher and more fundamentalist outcomes. It relies on a philosophical equation, ancient as Parmenides, of morality as a pre-existing absolute. It is the reasoning behind such terminology as “the bad seed” or “born bad” or “beyond redemption.”
But that is not the standard by which the Anglo-American justice system operates–at least not since the days when we burned witches. The thought of reducing all guilt or innocence, all probation or prison into a soulless system of automation has been thought of as unjust for at least two centuries. To convict or sentence or execute someone based on resolutely mechanistic determinants is the very definition of unconscionable. Indeed, a system based on the word of the law alone doesn’t really need judges.
Juveniles have always presented a stronger case for mitigation because they are, well, juveniles. We make exceptions for them based on their immaturity, as both a biological and psychological presumption. We know that the prefrontal cortex, which governs executive function, does not fully develop until the early 20s. We know that juveniles are impulsive and are not sufficiently forward-thinking to calculate all the consequences of their behavior. As a legal matter, we take for granted that minors may not drink alcohol, get an unrestricted driver’s license or make a binding contract.
But in an extremely mechanistic view of humans as innately good or evil, social circumstance–including age–means nothing. In the cases now before the Supreme Court, the Eighth Amendment challenge to that way of thinking must also involve conscious consideration of who it is we categorically value as “innately good,” for their heinous acts will not define them ultimately, and who it is we are disposed to see as innately bad, for they will burn in hell. It is manifestly barbarous that children, who by definition are immature and unformed, should be tossed away for life, with no chance for rehabilitation or recognition of the possibility of change. And it is manifestly barbarous that there is such enormous disparity in the racial composition of these particular child defendants. It is barbarous that they are–particularly and glaringly in Florida–consistently and disproportionately deemed so incorrigible as to be throwaways, forever. In a civilized society, we must be able to see the difference between “making excuses” for deadly or criminal behavior and taking such factors as extreme youth into account as a mitigating factor for those who are still becoming legal agents.