One of humanity’s most important moral judgments was published in the Apostle Paul’s First Epistle to the Corinthians: “When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.”
What’s the judgment? Children are different from adults.
It is a judgment recognized in American law.
But, until a dozen years ago, a serious modification of this basic principle ruled in most American courts: even if you are a child who speaks like a child, understands like a child and thinks like a child, and you commit a heinous crime like murder, you can be judged, and sentenced, and even executed for your crimes like an adult.
Then, in 2005, in a case called Roper vs Simmons, the Supreme Court by a 5 to 4 vote changed that, ruling that a death penalty for crimes committed while the defendant was under the age of 18 is unconstitutional.
The majority decision written by Justice Anthony Kennedy cited recent scientific studies showing that the brains, not to mention the moral judgments, of children are still in development, and in most cases have, Justice Kennedy wrote, “[the] potential to attain a mature understanding of his own humanity.”
One argument against the death penalty is its finality. After an execution the possibility of freedom for those wrongly convicted, or those who show real contrition is, to use Justice Kennedy’s word, “extinguished.”
Over the past twelve years, in a series of decisions, most of them led by Anthony Kennedy, has applied that logic to another form of punishment of child criminals whose judgment is final: life without parole. A mandatory sentence that denies adult prisoners the possibility of parole for crimes they committed as children was also declared unconstitutional in 2 cases in 2012, and last year, that principle was extended retroactively to cases decided before the 2012 decisions.
So far, very few prisoners have been freed. How come? Well Justice Kennedy anticipated that. As he wrote in his decision in the original 2005 Roper death penalty decision: in many cases “the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe.”
Since 1803 and the Supreme Court decision, Marbury vs Madison, it has been a firm legal principle, what the Supreme Court decides defines the law.
But that definition can take hold slowly, often against resistance. So it has been on the Supreme Court decisions on child criminals. Not every court has rushed to give the now former-kids a second chance at freedom.
Sharon Cohen is a national correspondent for the Associated Press, based in Chicago. She led a national team of AP writers in covering the story of the disparate ways in which states have responded to the Supreme Court’s mandate to re-consider “life without parole” sentences handed out to juvenile offenders.