This entry is written by an NOVJM volunteer. The views expressed here are hers rather than the views of NOVJM as an organization.
One of the main claims advocates of ending juvenile-life-without-parole (JLWOP) use to support their position is that juvenile offenders are “categorically less culpable” than adult offenders and that no juvenile offender, no matter how heinous their crime, is culpable enough to be sent to prison without ever having a chance to obtain release. But how accurate is this claim? Are all juvenile offenders less culpable than all adult offenders? Is there no juvenile who has the level of culpability observed in adult offenders? And even if a juvenile offender is less culpable, does that mean that life-without-parole (LWOP) is a cruel and unusual punishment to give them? Below I discuss the flaws in this argument. To summarize, scientific research does not show that juveniles are categorically less culpable than adults when it comes to very serious violent crimes. Rather, juveniles from the ages of 14-17 (almost all juvenile lifers were between these ages when they committed the crimes) are cognitively and morally capable of understanding the harm they cause when they commit serious violent crimes such as rape and murder. They are not forced to commit crimes by their teenage brains–they choose to commit crimes for their own enjoyment or benefit. Even though juveniles may have an increased propensity to commit crimes, criminal culpability is assessed at the level of consciousness and is not based on the underlying influences behind one’s criminal decisions. As with the underlying reasons for juvenile criminals’ decisions, the typical juvenile traits that advocates of ending JLWOP like to cite do not make them less culpable. These characteristics, such as impulsivity and immaturity, do not impair juvenile offenders’ abilities to understand the nature of their crimes. Even if typical teenage traits were to reduce culpability, they are not involved in all juveniles crimes. In fact, many crimes committed by juveniles are planned, calculated, and mature rather than impulsive, immature, and reckless. Furthermore, the research cited by advocates of juvenile criminals pertains to typical juveniles. Juveniles who rape, torture, and murder innocent people are not at all typical. It makes no sense to base decisions regarding the sentences given to highly abnormal and extremely violent teens on the behaviors of normal teens. A criminal’s sentence should be based on their specific actions, not the general actions and traits of other people in the same age group. And when one examines the specific actions of some juvenile criminals it becomes apparent that JLWOP is sometimes a necessary sentence. Contrary to the majority opinion in Roper v. Simmons, some criminals under 18 can reliably and without a doubt be considered among the worst offenders. If, for whatever reason, a juvenile offender, or an adult offender for that matter, is less culpable, that does not automatically mean LWOP is not an appropriate sentence.
Research Does Not Show That Juveniles Are Categorically Less Culpable
Scientific data regarding adolescent brains do not confirm that they are typically less culpable or responsible for crimes (Bower) (Morse 409) and the content of such data showing neurobiological abnormalities should not lead to the automatic conclusion of diminished culpability (Brooks 442). The tendency of anti-JLWOP advocates to assert the false claim that juveniles are less culpable than adults due to neurological differences is a symptom of what law professor Dr. Stephen Morse calls Brain Overclaim Syndrome (BOS). As explained by Dr. Morse in Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note, BOS results in brains being blamed for offenses and agency and responsibility disappearing from the legal landscape (Morse 397). Morse explains that to blame people’s behavior completely on their brains is erroneous, as “Brains do not commit crimes; people commit crimes” (Rosen). He further writes “Brains are not held responsible. Acting people are” (Morse 405).
Juveniles Are Cognitively And Morally Capable Of Understanding The Nature Of Serious Crimes
The work of many developmental psychologists shows that the thinking or cognitive function of most adolescents shifts from concrete to abstract between the ages of 12 and 15. According to Dr. James Farrow, associate professor of medicine and pediatrics at the University of Washington School of Medicine, director of the Division of Adolescent Medicine at the UW Medical Center, and director of Nathan Hale High School’s Teen Health Center, “That’s where a person becomes able to understand the consequences of their behavior or actions.” Though there is variation among individuals, Farrow says that one could make the case that juveniles over 14 should be thinking like adults (Gelernter).
There is widespread agreement that at age 16, adolescents generally have the same reasoning abilities and intelligence as adults, at least under ideal conditions (cold cognition) (Aronson 5). It is the case, however, that adolescents are not as capable of making sound decisions under stressful conditions and when peer pressure is strong (hot cognition) (Aronson 6). But when it comes to JLWOP, many offenders were not stressed out or experiencing peer pressure when they committed the crimes that earned them JLWOP. Even if their decision-making abilities were impaired, the aggravating circumstances of the crimes may still warrant LWOP sentences (discussed below). Note that very few criminals have gotten JLWOP for crimes committed under 16, and those who have demonstrated complete understanding of their actions.
Juvenile criminals who have the same cognitive abilities as adults (starting at around 14 – 16) are able to understand how serious violent crimes that result in life sentences are wrong and how they harm others. While being a teen may make one more impulsive, emotional, and immature, it does not impair one’s ability to understand the facts of a situation and how their actions influence that situation. Juveniles know that stabbing or shooting someone in the abdomen can kill them by destroying vital organs. Juveniles know that setting someone on fire can kill them. Juveniles know that shooting an infant in the head, as DeMarquise Elkins did to Antonio Santiago, kills them. Juveniles know that strangling or drowning someone, as Austin Sigg did to Jessica Ridgeway, kills them by preventing them from getting oxygen. Juveniles know that throwing someone out a 14th story window as Johnny Freeman did to Shavanna McCann kills them. Juveniles understand what dying means for the victims: they lose their lives and can no longer accomplish what they wanted or find happiness and enjoyment. Juveniles know how serious violent crimes physically and emotionally harm victims. They understand that having sex with someone who is unwilling (rape) is physically and emotionally painful. They understand that pointing a firearm at someone terrifies them. We don’t need scientific studies to show that teenage criminals understand the harm they cause when they commit these types of crimes. It’s simply common sense. And if, for whatever reason, a teen is less able to understand the crime, they still may be culpable enough for LWOP.
Teen felons who are developed enough to understand the nature of their crimes as well as adults are not less responsible for their actions because of their age ( although they may be less able to understand the nature of the crimes and therefore less responsible if they have some other mental condition). It isn’t the age, it’s the criminal who commits the crime. No one can reasonably believe that a 17 year old should be able to rape, torture, and murder multiple people and not be held fully responsible.
In addition to being cognitively capable of understanding the nature of serious violent crimes and knowing that they should not commit them, juveniles are morally capable of understanding those crimes. By around age six, children are developing an internal conscience and have a good sense of what they are not supposed to do. By about nine or ten they are aware that a society has rules so that its members can get along with one another. At around 14 or 15 they begin to look at the complexity of rightness and wrongness (Gelernter).
An adolescent offender between the ages of 14 and 17 (the ages of almost all offenders who earned JLWOP) is capable of understanding society’s basic rules–don’t steal other people’s belongings, don’t bully, harass, or hurt others, etc. They certainly are capable of knowing not to physically harm or murder innocent people to rob them, experience a thrill or sexual pleasure, or accomplish any other sinister goal that may lead one to commit these types of crimes. The brief filed by the American Medical Association and American Academy of Child and Adolescent Psychiatry in the Miller v. Alabama case admits this: “The difference
between adolescent and adult behavior, however, is not a function of adolescents’ inability to distinguish right from wrong or in their intellectual abilities per se, but rather from psychosocial limitations in their ability to consistently and reliably control their behavior”(American Medical Association & American Academy of Child and Adolescent Psychiatry Miller brief 6).
Furthermore, a much younger child can recognize that hurting people is wrong. Two-year-olds are capable of understanding that hitting their siblings or snatching a playmate’s toy without asking are wrong. The idea that a 17-year-old cannot understand that murder is wrong is absurd.
Propensity To Commit Crime Does Not Reduce Culpability
A person is deemed criminally responsible when they 1) act intentionally and 2) act with the appropriate mental state (mens rea) required by that offense. Even if these elements are present, a defendant may not be considered criminally responsible due to the presence of an affirmative defense such as duress (Morse 399). If the person meets the behavioral criteria for responsibility they should be held responsible (Morse 405). For some juvenile criminals, their age may have contributed to their decision to commit the crime. But the underlying influences of one’s decision to commit the crime do not reduce culpability as they do not make them less able to understand how the crime impacts the victims.
When one intentionally and with the appropriate mental state commits a serious crime, the underlying reasons why they are prone to criminal behavior shouldn’t result in leniency, so long as they understood the nature of the crime and made the choice to commit the crime for immoral or selfish reasons. They are not less blameworthy because they, for whatever reason, have a propensity towards criminal behavior. As stated by the U.S. Court of Appeals for the Third Circuit in United States v. Pohlot:
“Criminal responsibility must be judged at the level of consciousness. If a person thinks, plans and executes a plan at that level, the criminality of his act cannot be denied, wholly or partially, because, although he did not realize it, his conscious was influenced to think, to plan and execute the plan by unconscious influences which were the product of his genes and lifelong environment.” Pohlot, 827 F.2d at 906.
Causation is not an excuse. An offender’s youthful brain may very well have increased their likelihood of engaging in certain behavior. But the offender still chose to engage in that behavior, knowing how it would impact others. So while their young brain may have been a factor in their decision to commit the crime it does not render them less culpable or less deserving of a proportionate punishment. Their age did not force them to commit a serious violent crime. The offender made that choice.
Antisocial personality disorder (APD) makes people more likely to commit crimes. But no one that I am aware of is claiming that an offender’s APD diagnosis should excuse his criminal behavior. But should it? When an individual with APD intentionally commits a crime that he understands will harm others is he less responsible for his actions? There are many different factors that increase the likelihood of an individual committing crimes. But unless they impair one’s ability to understand the nature of the crime or form intent they do not render one less responsible. And this all assuming that age is a factor in the crime being examined. As explained below in detail, many crimes committed by juveniles have nothing to do with the offenders’ ages.
The underlying reasons behind criminal behavior are interesting, and should be studied, as understanding them may help us to prevent such it. But we should not allow ourselves to get too bogged down in asking why criminals do what they do. At some level the why really doesn’t matter. When a 12-year-old is being raped, beaten, and thrown in a river as was Danni Romig, the why doesn’t really matter. When a woman is being gang-raped, beaten, and burned alive as was Betty Marie Ilgenfritz Bradford, the why doesn’t really matter. When a five-year-old is being kidnapped and stabbed to death (and later eaten, according to the offender’s own journal) as was Jason Foreman, the why really doesn’t matter. The reasons behind a criminal’s choice to harm a victim don’t render the victim’s experience any less terrifying or painful. Rape is rape. Murder is murder. Violent crime is violent crime regardless of the reasons for the perpetrator’s propensity to commit crimes. People have been investigating the underlying reasons behind criminal behavior for hundreds of years and have yet to find conclusive answers. And we may continue to study this for another hundred years, and perhaps eventually find the answers we desire. But until then, we have to deal with the problem of violent crime. The violent criminal is just that, a violent criminal, regardless of the underlying genetic or environmental influences that contribute to their behavior. And as long as there are violent criminals who rape, torture, burn alive, and in other ways harm others, society deserves safety and victims deserve justice.
Typical Juvenile Traits Do Not Reduce Culpability
One is competent to make decisions if they demonstrate sufficient capacity to understand facts and manipulate information (Brooke 478). As described above, juveniles have that ability starting at around 14-16. Juveniles’ underdeveloped prefrontal cortexes mean that they generally are more strongly motivated by the possibility of reward, have a more difficult time controlling impulses, and have a harder time recognizing and regulating emotional responses. But none of these impairments relate to understanding and manipulation of information (Brooks 479). None of these traits prevent juvenile criminals from understanding the negative impact their actions have on others. Despite all these characteristics a juvenile offender’s actions are still voluntary and they have no diminished awareness of what they are doing (Brooks 482). The diminished capacities of juveniles are motivational and mild executive deficiencies. They are not rational impairments (Brooks 477). Therefore, juveniles do not have diminished capacity in terms of understanding the nature or morality of their conduct (Brooks 479). For example, they are as able as adults to recognize their action of killing an innocent person as murder, and to understand that murder is illegal and goes against society’s moral expectations. A juvenile who forcibly penetrates a woman against her will knows that he is committing the crime of rape, and that this crime is both illegal and socially unacceptable. As explained by Dr. Morse in Brain Overclaim Syndrome “crimes committed impulsively, for example, are still committed consciously and intentionally” (Morse 406). The same can be said in regards to other typical teenage traits, such as susceptibility to peer pressure and other outside pressures, recklessness, immaturity, and less formed characters.
Let’s say that we have two rapists, rapist A and rapist B. Rapist A goes to the park without any intent to commit a felony. All he wants to do is walk around. During his walk he sees a woman jogging and impulsively decides to rape her. Rapist B plans out his crime. He goes to the park with the intention of raping a female jogger. He goes to a secluded area and waits behind the trees for a victim to jog by. When a woman comes by he attacks and rapes her. Other than the degree of planning the crimes are exactly the same. Both men understand the nature of the crime in the same way. And the impact on the victim is the same. Is rapist A less culpable than rapist B? No–both are equally culpable because they had the same level of understanding. Furthermore, the harm inflicted upon the victim of rapist A is not automatically diminished because of the crime’s impulsive nature. Rape is rape, whether it was planned out for weeks or minutes. In this scenario rapist A does not deserve a lesser punishment than rapist B, and is not less culpable because 1 he had the same degree of understanding of the crime and 2 because he caused the same amount of suffering for the victim. If you or someone you knew were brutally attacked and raped by rapist A would you really feel better knowing that he did so impulsively?
Let’s use another example. Let’s say a 17-year-old is strongly motivated by the possibility of getting money and this motivation leads him to impulsively attempt to rob a woman and her baby. When the mother does not comply, he gets angry and is less able to regulate that anger. He decides to murder the baby. This decision may be impulsive, but was still thought out and decided. In this scenario, which is based on the murder of Antonio Santiago, the murderer understood the situation and the harm he would cause when he murdered the baby. The decision to murder may perhaps be guided by some twisted reasoning that this will make the mother give him money. He uses logical systematic methods to conclude this. (Note that I am not sure that Elkins displayed these traits during his crime, and I am not sure what his reasoning was. This is just an example). So even though his juvenile characteristics played a part in his decision, he still intentionally committed the crime while knowing full-well the harm he would cause. It would be inaccurate to conclude that this murderer is less culpable and less deserving of LWOP.
Consider an offender who displays any of the typical juvenile traits: susceptibility to peer pressure and other outside pressures, poor risk assessment; recklessness, immaturity, impulsivity, and less formed characters. So long as they understand the nature of their crime, none of these traits diminish culpability. Let’s say we have a group of juvenile males. They impulsive decide to kidnap and rob a young woman for fun. They are aware of the consequences for the victim but they don’t think about the risk of the crime escalating or what the consequences of that escalation would be. They are all experiencing peer pressure and want to show their buddies that they are tough enough to commit this crime.
After robbing and terrorizing the young woman the teens impulsively decide to gang-rape her. They are aware of the physical and emotional pain they are inflicting by forcibly penetration the victim. But they don’t consider the harm she may suffer beyond this pain, such as getting AIDS or bleeding profusely. They also don’t consider the possibility that she may have mental health problems that could exacerbate the emotional trauma she faces. They also don’t consider any of the risks they themselves could face by getting caught, should the victim scream loudly enough or should anyone happen to come upon the crime scene. And again, there is peer pressure to preform sexually. When the does victim scream loudly, the gang-rapists impulsivity and recklessly decide to beat her with a pipe to quiet her down. They only think they are shutting her up and don’t consider the risks of seriously harming or even killing her. Some of the rapists experience more peer pressure, in that they don’t want their buddies to get in trouble and then blame them.
Let’s stop here. The crime so far has all the traits we are told mitigate crimes committed by youth–immaturity, impulsivity, riskiness, recklessness, not thinking of consequences, poorer risk assessment, bad judgment, peer pressure. But does that really mitigate the crime or make any offenders less culpable? Let’s say one of the gang rapists has been convicted and wants to get a lighter sentence. He claims that he isn’t fully responsible. He impulsively decided to kidnap and rob the girl because he liked the feeling of taking risks. And then he impulsively and recklessly decided to rape her and beat her to stop her from screaming. He was aware that the kidnapping and robbery would cause serious emotional trauma. And he was aware that the rape and beating would as well. He was also aware that the girl would be physically harmed. But the girls emotional and physical injuries are far worse than what he expected–the offenders gave her AIDS, made her unable to have children, gave her a traumatic brain injury and damaged other organs by beating her. He did not consider those risks. And he was influenced by peer pressure.
Does this perpetrator deserve a lighter sentence because of all those youthful traits? Most people would say no. He may have been impulsive but he still committed the crime intentionally. He may have experienced peer pressure but it was still his choice to impress his friends by participating in a gang rape. And he knew the victim would have painful mental and physical injuries even if he didn’t bother considering how bad they would be. And all this pain that he did not intend was the result of him and his friends committing a crime, that he knew was terribly wrong and immoral. The crime was horribly evil even without the additional injuries he didn’t consider. Most people would rightfully say that the perpetrator’s attempt, along with any attempts of his fellow gang rapists, to get off because of “characteristics of youth” is morally absurd.
Unfortunately, this offender would not be eligible for LWOP due to the Graham v. Florida SCOTUS decision. A juvenile criminal must have a chance to be released form prison unless they commit murder. But let’s say that the victim dies from her injuries and this becomes a murder case. Or the offenders impulsively but intentionally decide to kill her by strangling and beating her to eliminate her as a witness. And maybe a man has heard the victim’s screams and finds them–he must be permanently silenced as well. They are fully aware that they are ending the victims’ lives but they don’t fully consider the trauma this will cause for the victims’ families. Again, some of the killers were partially pressured to help kill the victims by their friends who didn’t want to get caught. The crime escalated from kidnapping and robbery to two seriously aggravated murders. Had the perpetrators been a couple months and years older they could get the death penalty.
I am not a psychologist or a medical doctor so the scenario might not be completely realistic. But overall, I think the point is made. We have a horrific crime involving two aggravated murders. A girl was robbed, kidnapped and raped and then brutally strangled and beaten to death to prevent her from telling the police about the crime. Another innocent man was killed for trying to help the girl. The emotional and physical pain experienced by the victims is horrific. The surviving victims are scared for life. But the crime involved many characteristics of youth including impulsivity, riskiness, recklessness, not thinking of consequences, poorer risk assessment, bad judgment, and peer pressure. Despite the perpetrators’ ages and less developed brains, the vast majority of people would say that their youth ultimately does not mitigate the crime nor does it make them less culpable. Most people would say that the perps understood enough regarding the nature of the crime to be held fully responsible and that JLWOP is not cruel or unusual, even considering the youthful traits.
There are many classes of criminals who are deemed by law to be fully responsible but who have similar diminished capacities as the criminals in our scenario (Brooks 493). Many adult offenders are no less amenable to treatment than these criminals and other juvenile criminals (O’Hear). Yet when they commit LWOP warranting crimes, they are sentenced to LWOP.
“Minors are treated differently. They can’t drive or drink etc. Therefore they should be treated differently when they commit crimes.”
Advocates of freeing juvenile criminals from prison often make the erroneous claim that because juveniles are not considered old enough to do a variety of things they are not old enough to go to prison for life even when they commit terrible crimes. The ACLU writes: “Each year in the United States, children as young as thirteen are sentenced to die in prison. It’s called life without parole. It is estimated that thousands of children have been sentenced to life without the possibility of parole (LWOP) for crimes committed at an age when they are not considered responsible enough to live away from their parents, drive, make decisions related to their education or medical treatment, vote, leave school, or sign a contract. Children under the age of eighteen cannot legally use alcohol, serve on juries, or be drafted, because they are presumed not to have the capacity to handle adult responsibilities. These differences between childhood and adulthood are recognized throughout the world, and incorporated in international human rights documents” (“Second Chances: Juveniles Serving Life Without Parole In Michigan Prisons“). Equal Justice Initiative founder Bryan Stevenson writes in Just Mercy “we emphasized the incongruity of not allowing children to smoke, drink, vote, drive without restrictions, give blood, buy guns, and a range of other behaviors because of their well-recognized lack of maturity and judgment while simultaneously treating some of the most at-risk, neglected, and impaired children exactly the same as full grown adults in the criminal justice system” (Stevenson 270). Now, Mr. Stevenson and EJI have done great work. They have gotten innocent people out of prison, they have have fought against dangerous prison conditions, and more. The ACLU has also done good work. But when it comes to the issue of JLWOP and juvenile culpability, EJI and the ACLU are completely wrong, along with any other organizations that make this argument. Serious crimes such as murder are not anywhere near the same as drinking alcohol, driving a car, smoking or any of the other behaviors mentioned, and should not be compared to them.
We ban minors under 16 from driving because they are not mature enough to operate a car. We ban minors from buying guns because guns are deadly weapons and we do not believe they are mature enough to be responsible for such weapons. We ban minors from engaging in all the other behaviors cited, not because they are inherently harmful like serious violent crimes are, but mainly because society does not believe they are mature enough to do them. We allow minors to engage in those behaviors once they reach a certain age and are deemed mature enough. Murder isn’t the same. Minors are not banned from committing murder because they are not mature enough–they are banned from committing murder because everyone is banned from committing it and everyone is banned from it because it is severely harmful and morally wrong.
For the most part, we hold older juveniles to the same standards as adults in regards to serious violent crimes because they are old enough to understand the wrongfulness of those crimes as well as adults. Just because juveniles may not be mature enough to operate cars or to drink alcohol does not mean they are not mature enough to know not to commit rape and murder. The criteria for criminal culpability are are not impacted by the inability to drive properly or live away from one’s parents. It’s more obvious that serious violent crimes are wrong than it is obvious how to drive or vote smartly. And because serious violent crimes are so obviously harmful we expect people to know not to do them earlier. We expect more people (pretty much everyone except genuinely insane people who don’t understand their actions) not to do them. We expect everyone who can understand their wrongness not to do them. That includes juveniles.
Understanding that murder is wrong and knowing how to responsibly drive a car, drink alcohol, vote, or serve on a jury are not equivalent. Rape, torture, murder and other serious violent crimes are evil. Irresponsibly drinking, driving, voting etc. aren’t. There is a big difference between evilness and immaturity.
When it comes to emerging adults and even adults in their 30s, society recognizes that the ability to responsibly engage in various behaviors reserved for older adults does not affect criminal culpability. We do not consider 24-year-old adults to be responsible enough to rent cars or become congressmen and congresswomen but we still recognize that they are completely culpable and hold them fully responsible in criminal matters–they are eligible for the death penalty, automatic LWOP, LWOP for non-homicide crimes etc. Our country even places age-based restrictions on the actions of much older people. A 34-year-old, for example, cannot run for president. If we were to use the same logic as anti-JLWOP advocates when determining sentences, no one under 35 would be able to get LWOP. It is perfectly reasonable to not allow minors to drink, drive, vote etc. and to not treat them the same as adults in those regards but to treat them the same as adults in regards to serious crimes.
Keep in mind that laws banning minors from voting and drinking are geared towards typical teens, not the highly atypical teens who rape and kill. Not allowing a normal teenager to drive has nothing to do with sentencing an abnormally malicious one for aggravated murder.
Juvenile Characteristics And Other “Mitigating Factors” Are Not Involved In All Juveniles Crimes
Many people assume that juvenile crime always stems from sympathetic reasons such as childhood trauma. But this is not always true. Many juvenile criminals commit crimes, not because of some tragic experience, but because they are just bad seeds. Rather than coming from disadvantaged, impoverished, and traumatic backgrounds, they grew up wealthy and privileged. Many juvenile criminals have psychopathy, a genetic disorder. Even if the offender has a poor background, the evilness of the crime may override it.
Another mistake advocates of juvenile criminals make it assuming that all juvenile crimes are caused by or related to the offenders’ ages and involve the typical characteristics of youth–impulsivity, failure to appreciate consequences, riskiness, peer pressure, poor judgment, and so on. This is not true either. Just because an adolescent commits a crime doesn’t mean their age or less developed brain contributed to their decision to commit the crime. The factors that cause juvenile criminals to commit crimes are not always related to age. In some cases, the offenders’ young age and adolescent traits may have contributed to their decision to commit the crime but were not the main reasons for it. In other cases, the offenders’ age had absolutely no impact on their criminal choices. In these cases the criminal may have had typical teen traits that did not play a role in their choice to commit the crime. In other cases the offender does not even possess those youthful characteristics at all in regards to the crime or in regards to any aspect of their lives. Remember that juveniles are not all the same. Just because most or many juveniles are impulsive, susceptible to peer pressure and so on does not mean they all are. In regards to the criminals whose crimes do not reflect teenage characteristics, we must remember that they would still have committed the crimes had they been adults. They just happened to be under 18 at the time.
Juveniles Who Commit Serious Crimes Are Not Average
The studies and research about adolescent development that advocates of juvenile criminals like to cite pertain to juveniles on average. Not all teens are the same in terms of development. Just because teens at a certain age generally have brains at certain levels of development and have certain personality traits doesn’t mean that all teens at that age have those traits and have brains at that level of development. Studies about the average teenage brain cannot tell you about the brain of a specific teen individual who has been convicted of or plead guilty to a crime and is now being sentenced. That specific individual may be different than the average person his age. In addition to using research to promote the idea that all juvenile criminals should have a chance at freedom, anti-JLWOP advocates also like to use anecdotal evidence. They claim that we all know teenagers are different and should be treated differently because we all know teenagers and have them in our lives and we all were teenagers once. For example, Bryan Stevenson writes in Just Mercy “these biological and psychosocial developments explain what is obvious to parents, teachers, and any adult who reflects on his or her own teenage years” (Stevenson 268). This is not accurate. Just because most teenagers you know have certain characteristics doesn’t mean that a specific juvenile offender has them as well. Just because you yourself had these characteristics doesn’t mean all teenagers do. And all this assumes that juveniles who receive LWOP or long sentences are typical juveniles (Lerner 332). Spoiler alert. They’re not.
Why should decisions about juveniles who commit extremely violent crimes be based on studies of average juveniles who would never commit those crimes? Juvenile murderers, rapists and other extremely violent criminals are not average. And why should we compare these teenage miscreants to teenagers in our lives? Saying things like “every parent knows that teens are different and should be treated more leniently” is an attempt to normalize depraved and severely violent juveniles and make people think of them as being similar to the people we know and to our former selves. But these twisted teens are nothing like the people you and I know. They are nothing like the people you and I once were when we were juveniles. Take, for example, Johnny Freeman, who, at 17 and nine months, raped a five-year-old girl and threw her out of a 14th story window. Or consider Jose Arredondo, who, at 16, kidnapped, raped, and beat and strangled to death a two-year-old girl. These offenders are nothing like your son, nephew, grandson, cousin, or brother. They are nothing like you when you were 16 or 17. Our observations regarding teenage sons, daughters, nieces, nephews, grandchildren, students, and friends and our reflections on our teenage years should not dictate how we treat juveniles who commit serious crimes.
We should not assume that juveniles who commit crimes serious enough to result in JLWOP will usually have typical teen traits and be at the level of development typical for their age. Additionally, these extremely violent teens are completely different from the vast majority of juvenile delinquents and criminals, who engage in crime but never commit crimes so horrific.
One might argue that if we cannot use evidence about typical juvenile traits to make decisions about the sentences juvenile criminals receive, we should not use evidence about their reasoning abilities and intelligence (as laid out in the Juveniles Are Cognitively And Morally Capable Of Understanding The Nature Of Serious Crimes section) to make those decisions. There is no evidence that extremely violent juveniles are generally less able to understand the nature of their crimes than regular juveniles. If anything, many may be more mature than average juveniles as explained below. On the other hand, there is evidence that many do not possess the traits typically associated with adolescence or at least do not display these traits during their crimes.
Are Juvenile Criminals More Mature?
One possibility, laid out in an excellent article by by George Mason University law professor Craig S. Lerner in the Tulane Law Review is that juvenile violent criminals are generally more mature than other juveniles. One study found that 12-18-year-old juveniles who engage in dangerous behavior have more mature frontal white matter tracts than their age-group peers (Berns, Moore, and Capra). Another study found “There is virtually no direct evidence to support a relation between natural maturation in brain structure during adolescence and impulsive behavior” (Romer 270). Many teen criminals who act in an impulsive and reckless manner may not be behaving in such a way because of immature brains as anti JLWOP advocates claim.
Many crimes committed by juveniles don’t even involve impulsivity or recklessness or any typical juvenile traits at all. These crimes are carefully planned out rather than impulsive. Rather than having an offender who had poor judgment and did not think of the consequences and the impact of the crime, the offenders fully understood the impact the crimes would have on the victims and didn’t care–or they did care about the impact on the victims but in the wrong way, as they committed the crimes because they wanted to impose suffering and found pleasure in doing so. The same can be said about risk assessment. They did not fail to assess risks, but chose to commit the crimes because of those risks and the amusement it gave them. These crimes also did not involve peer pressure, as the offenders were alone, or if they were with peers, they were the leader.
Take the example of David Biro. When Biro was 16 he broke into the home of Nancy Bishop Langert, the sister of NOVJM founder Jennifer Bishop-Jenkins, and Nancy’s husband Richard Langert. Biro waited for the couple to come home, and then brutally murdered him. He first shot Richard in the head. Nancy, who was three months pregnant, cowered in the corner of the basement, begging for Biro not to kill her baby. Biro killed her anyway, shooting her in her pregnant belly. He later admitted that he committed the murders to see what it would feel like.
Biro was not impulsive or immature–he planned the murder out for weeks. Biro did not fail to foresee consequences or risks–he committed the crime because of those consequences and risks as he found enjoyment in them. He was not affected by peer pressure–he committed the crime alone. He was not impaired by mental illness or drug use. And he was not from a socially disadvantaged background. In fact, he came from a privileged upbringing. Biro’s murder of Nancy and Richard Langert and their unborn child had nothing to do with his age, his less developed brain, or any juvenile trait cited by advocates of juvenile criminals. He was a psychopathic serial killer in the making, who murdered people for fun, and had he not been caught, would have killed many other people.
Another example of a juvenile murderer whose crime was not impacted by the typical traits of youth that anti-JLWOP advocates like to cite is Christopher Simmons. Ironically, it was Simmons’s death sentence and appeals from that sentence that led SCOTUS to ban the juvenile death penalty in Roper v. Simmons, citing the very teenage characteristics that were not present in this crime. Simmons was 17 when he decided he “wanted to murder someone” (Criminal Justice Legal Foundation Malvo brief 6). He found younger conspirators and formed a plan to burglarize a house, tie up the victim, and murder her. Another ironic twist is that Simmons bragged to the younger conspirators that they would “get away with it because they were minors” (Lerner 362).
On the night of September 9, 1993, Simmons and his accomplice broke into the home of 46-year-old Shirley Crook in Jefferson County, Missouri. Simmons used duct tape to bind and gag the terrified victim (Lerner 362) (Criminal Justice Legal Foundation Malvo brief 7). The assailants then stole her minivan and drove her to the Castlewood State Park. There, they covered her head with a towel and walked her to a railroad trestle that ran above a river. They tied her hands and feet with electric wire, wrapped duct tape around her face and threw her into the river. Shirley drowned and was later found by fisherman (Criminal Justice Legal Foundation Malvo brief 7).
Simmons decided he wanted to murder someone. He planned it out. After coming up with the crime he got other teenage accomplices and led the pack. He knew the risks but committed the crime anyways because he found it entertaining. He was not impulsive or under peer pressure. He did not fail to appreciate risks. He knew what he was doing when he restrained Shirley and threw her into a river. That’s what he wanted. To brutally torture and murder someone.
Decisions in the criminal justice system are very individualistic–we spend months and even years preparing for trials to determine if specific defendants are guilty or innocent. The trials themselves may take months. Plea deals also involve a considerable amount of planning and insight into the individual offenders and their crimes. To spend all this time and energy dealing with the specifics of a case but then base the criminal’s sentence on group averages that may not even apply to them is ridiculous. The sentence an offender gets should be based on their culpability, their mens rea (criminal state of mind or intent), and their actions, not on the common traits and characteristics of others their age.
If there is a factor that will lead to one getting a lighter sentence it should have been a reason or one of the reasons why they decided to commit the act for which they are being sentenced. No one should receive a more lenient sentence because of a factor that didn’t contribute to their decision to commit the crime for which they are being sentenced, but that just happened to apply to them at the time. It’s unfair to deny justice because the offender happened to be a certain age at the time when that wasn’t a reason why they did it and when they would have done it had they been older. Banning life sentences for all juveniles because most have certain traits even though many don’t and commit crimes regardless of those teen traits is nonsensical. It is just as absurd as banning women offenders from getting certain sentences due to the personality traits displayed by women on average. Sentences should be based on the specific criminal actions of specific individuals, not on the general actions of others in the same age category.
Can Juveniles Ever Be Classified As Among The Worst Offenders?
In Roper v. Simmons SCOTUS ruled that juvenile criminals could not receive the death penalty, as they “cannot with reliability be classified as among the worst offenders” due to three general differences between them and adults: a lack of maturity and underdeveloped sense of responsibility; vulnerability or susceptibility to negative influences and outside pressures, including peer pressure; and characters that are less formed. I am not going to argue for or against the juvenile death penalty as NOVJM takes no position on it. What I will say is that the Court’s assertion that no juvenile criminal can ever be considered among the worst offenders no matter what they do is absurd. Here are some examples that illustrate the point.
Murder of the Bojorquez family (Arizona)
16-year-old Ralph Cruz Jr. confronted Lucila Bojorquez and her two children, Brandon, six, and Jenny, seven, in a parking lot and demanded their car at gunpoint. When the mother did not comply he shot and killed her and took the car with the children still inside, kidnapping them. He later shot and killed the children.
Murder of Katherine Cardenas (Texas)
Jose Arredondo, 16, kidnapped two-year-old Katherine and raped her and beat and strangled her to death.
Murder of Raechale Elton (Utah)
17-and-a-half-year-old Robert Houston, who was living at a group home for juvenile sex offenders, brutally raped and murdered Raechale, a 22-year-old employee at the group home. After raping her at knife-point Houston slit her throat, tried to rip out her trachea, and stabbed her multiple times.
Murder of Jason Foreman (Rhode Island)
16-year-old Michael Woodmansee kidnapped five-year-old Jason Foreman. After stabbing the boy to death, he shellacked his bones and stored them on his dresser. He also admitted in a journal that he ate some of Jason’s flesh.
Murder of the Godt family (Deleware)
14-year-old Donald Torres broke into the Godt family’s home and spread kerosene around it and set it on fire. Harry and Jennifer Godt and their two children, four-year-old Jon and one -and-a-half-year-old Jennifer all perished. Torres later admitted that he knew the family was inside when he set it on fire and that he watched it burn.
Murder of Shavanna McCann (Illinois)
Johnny Freeman, who was 17-and-nine-months-old, lured five-year-old Shavanna to a vacant apartment on the 14th floor of a housing project. He raped her and shoved her out the 14 story window. Shavanna managed to hang on and screamed for her mother. He shoved her again and she fell to her death.
Murder of Jessica Ridgeway (Colorado)
16-year-old Austin Sigg kidnapped ten-year-old Jessica and raped her with a wooden cross. He tried to kill her by strangling her but that didn’t work so he filled a bath tub and pushed her face into it, drowning her. Sigg dismembered the girl’s body with a saw and razor blade.
Murder of Antonio Santiago (Georgia)
17-year-old De’Marquise Elkins confronted Sherri West as she was strolling her 13-month-old son Antonio. He pointed a gun at her and demanded her purse. When the mother did not comply he intentionally shot baby Antonio in between the eyes and killed him.
Some Juvenile Criminals Are Among The Worst Offenders
To say that these criminals cannot be considered among the worst offenders is morally and intellectually asinine. The offenders described, as well as many other juvenile offenders, can and should be classified as among the worst offenders. These criminals understood how they were harming the victims as well as an adult would (as explained above). Even if, for whatever reason, they didn’t understand the nature of their crimes as well as an adult would, they still may have understood enough to be classified as the worst offenders. The fact that they were under 18 when they committed these crimes does not make the crimes any less heinous or in any way diminish the awareness offenders had. The chronological ages also did not make the victims’ experiences any less painful or frightening. And their ages do not diminish the pain experienced by the victims’ families. Accordingly, surviving victims would disagree with the assertion that those who raped, tortured, or other ways terrorized and murdered their loved ones are not among the worst criminals. The direct victims who were murdered would disagree as well, if they had survived their ordeals.
Furthermore, the three differences the Court cited are general differences–they do not apply to all juveniles. How is a juvenile who displays none of those three characteristics automatically less culpable and deserving of the death penalty? If a juvenile offender 1) commits the crime in a mature and planned-out fashion and is completely aware of what they are doing 2) is not impacted by negative influences or outside pressures and 3) has a hardened and developed personality is he less deserving of a harsher punishment simply because most people his age have those traits? It would be one thing to say that juveniles who display those three characteristics cannot be classified as among the worst offenders. But to assume that all juvenile criminals have those characteristics is asinine. And even if a juvenile displays these characteristics can they be considered among the worst offenders? As explained above in detail, immaturity and susceptibility to peer pressure and other outside pressures and negative influences do not render one less culpable as they do not diminish an offender’s awareness of their actions. The third general difference cited, which is the less formed characters of juveniles, does not diminish awareness of one’s actions either.
For even more examples of heinous crimes committed by juveniles see my other entry.
Are Crimes Committed During Adolescence Less Likely To Be Evidence Of Bad Character?
An argument commonly made by anti-JLWOP advocates is that crimes committed during adolescence are less likely to be evidence of bad character as the perpetrators’ brains and characters are not completely formed. That seems to make sense at first. (Even if adolescents who commit terrible crimes don’t have characters as corrupt as adults who commit those crimes, it is fair to say that the juveniles crimes reflect depraved characters to some extent. If one rapes, tortures, terrorizes, and murders their character has to be someone what corrupt).
But what if the advocates have it wrong? What if the opposite is true and serious crimes committed during adolescence are more likely to be evidence of depraved characters? I came across this argument when reading a Tulane Law Review article mentioned above.
The article, titled, Juvenile Criminal Responsibility: Can Malice Supply the Want of Years? makes a compelling argument. It’s one of those ideas that one doesn’t think of themselves but when they hear it it seems so obvious that you think “of course I can’t believe I didn’t think of that before!”
Let’s first create a scenario not relating to juvenile crime. Let’s say that you have two people who take the math SAT for the first time. They both score 800. One of the test takers was 18, meaning his 800 score is three standard deviations of the mean when compared to others his age. The other test taker is 13, meaning her score puts her five standard deviations above the mean. The 18-year-old, though good at math, could not have gotten an 800 score when he was 13. With everything else being equal, who would you say is better at math and is more likely to have a future as a mathematician? The obvious answer is the 13-year-old who 1) developed the mathematical ability that allowed her to get an 800 score faster than the 18-year-old and 2) performed better when compared to others her age than did the 18-year-old (Lerner 361-362).
Now let’s take another example involving juvenile crime. Obviously, math abilities and violence are not the same but this example still makes sense. The peak age for violent crime is 18 and a half (Lerner 362). Let’s say we have two violent criminals, the older one being 18 and the younger one being 15. The 15-year-old started committing violent crimes at age 14 and the 18-year-old began at 18. The offenders commit the same types of crimes, and other than age, there is no difference between them. If all things were equal one could say that the actions of the older criminal are more likely to be evidence of his bad character as he is a legal adult and is much older than his counterpart, who is not even allowed to drive. But consider that the difference between the younger criminal and those in his age group in terms of violence is much greater than the difference between the 18-year-old and others of his age in terms of violence. And consider that the younger offender reached the same level of criminality faster and earlier than the older criminal. Wouldn’t it then make sense to conclude that, all things being equal, the younger criminal’s actions are more likely to be evidence of bad character?
Juveniles sentenced to JLWOP are more violent and cruel than others in the same age group. The difference between these teenage criminals and others of the same age is greater than the difference between most adult criminals and other adults of the same age. Furthermore, these criminals developed a taste for cruelty and violence faster than average. It may be fair to conclude that, all things being equal, extremely violent and viscous crimes committed by juveniles may sometimes be more likely to be evidence of criminally inclined characters. And if we assume that the violence committed by these juvenile criminals will peak at age 18 and a half, that begs the following question: If they are already raping, kidnapping, terrorizing and murdering at the young ages of 14-17 what will they be like when they hit the peak of violence at 18 and a half? What will they be like as young adults? If the vicious crimes they are already committing aren’t even the most severe they will be capable of in their criminal careers then do we really want to give them a chance to show us how violent they can be?
Diminished Culpability Does Not Mean LWOP Cannot Be Warranted
There are offenders of various ages who, for whatever reason, are less able to understand the nature of the crimes they committed. But just because an offender is less culpable does not mean an LWOP sentence is not appropriate. As stated by Chief Justice Roberts in his concurring opinion in Graham v. Florida “Those under 18 years old may as a general matter have diminished culpability relative to adults who commit the same crimes, but that DOES NOT mean their culpability is always insufficient to justify a life sentence.”
Take the example of Johnny Freeman who is mentioned above. When Freeman was 17 and nine months old he lured five-year-old Shavanna McCann to a vacant apartment on the 14th floor of a housing project. He raped the girl and threw her out the 14th floor window. When she managed to hold on, he shoved her again and she fell to her death. Or lets consider Donald Torres, who intentionally burned alive Harry and Jennifer Godt and their two children, four-year-old Jon and one-and-a-half-year-old Jennifer. Let’s say that, for whatever reason, Freeman and Torres have diminished culpability. Wouldn’t it be fair to say that the highly aggravating circumstances of the crimes override that diminished culpability? Wouldn’t it be fair to say that they are culpable enough to get LWOP?
Juvenile criminals are not categorically less culpable than adult offenders. They have the ability to recognize and understand the wrongfulness of the types of serious violent crimes that earn them LWOP sentences. The young brains and the youthful traits they may posses do not impair this ability and, when present, should not result in more lenient treatment. Even if the traits associated with youth such as impulsivity and recklessness made offenders less culpable, this would be irrelevant when determining the sentences for many teen offenders. Many crimes committed by juvenile offenders, such as the murder of Shirley Crook by Christopher Simmons from Roper v. Simmons do not reflect these typical youthful traits. And why should they? These are the typical teenage traits–and juveniles who kidnap people and throw them into rivers as Simmons did are not typical. With that being said, it really makes no sense to use studies about average teenagers to determine the treatment of highly abnormal severely violent teenagers. It certainly makes no sense to base a criminal’s sentence on the general behavior of others their age rather than on their specific behavior. And finally, if a juvenile offender is less culpable for whatever reason, that should not mean they are not culpable enough to go to prison for life.
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