Last Monday the Supreme Court heard oral arguments in Graham v. Florida, a case in which a juvenile (age 16) was convicted of armed robbery and sentenced to life imprisonment without parole (“L-WOP”); he now asks the court to reduce his sentence on the grounds that such a punishment for a child who commits a non-homicide crime is “cruel and unusual punishment” (an 8th Amendment right).

What are these lawyers thinking?

I’m surprised that Graham’s attorneys decided to appeal his sentence on the grounds that it constituted cruel and unusual punishment. I can only assume they scoured the Constitution for a “peg” to hang their argument on, and this was the best they could do.

But as far as I know, the Supreme Court is not confined to considering Constitutional issues. They decide case-law issues and common law issues all the time. And, it seems to me, a non-lawyer, the problem of juvenile justice is about common law, not the U.S. Constitution.

It is common law, not constitutional law, that establishes an “age of reason” for minors, before which age they cannot be held fully culpable for their acts. (The Supremes questioned Mr. Gowdy about this issue.)

The Constitution establishes legal ages only for voter rights and elected officials. The Constitution does not establish separate adult and juvenile criminal courts. The states do this.

Mental Age

The law has recognized for centuries that at an early age children do not have the reasoning capabilities of adults. In Graham v. Florida, Attorney Gowdy cited “science” which, he claimed, can’t draw a line between “maturity and immaturity.” And under questioning he also said that the human brain is believed not to be fully mature until the mid-twenties.

Unfortunately, human development is so subtle and complex that no one can yet point to a bright line between childishness and maturity.  Not only do individuals mature at different rates, but some individuals decline in old age into a “second childhood,” which the law is completely inadequate to deal with.

However, the Supremes have established 17 as the age before which an individual can commit homicide without being subjected to the death penalty. The “age of informed consent” has been set by most states at 16. In Illinois, an individual may be raped at age 13 and not be considered a child under anti-pedophilia laws.

Does something sound wrong here?

Juvenile Justice

The states have set up juvenile justice systems to handle minors who commit crimes. In juvenile court, a judge hears the case: children are not entitled to a jury trial. If adjudged guilty by a juvenile-court judge, the juvenile is sentenced to a juvenile detention center—at most until he or she reaches age 18, at which time the juvenile must be released.

But in the past few decades, so many juveniles have committed heinous, violent crimes that most states now permit the system to try juveniles as adults and to sentence them as adults (as in Graham’s case).

It seems to me that this is the point at which the juvenile-justice system needs reform. It makes no sense to try a non-adult as an adult, because by definition an immature person is incapable of forming criminal intent or fully understanding the nature and consequences of his acts. An immature person—especially an uneducated child—cannot possibly be competent to assist in his own defense.

Yet adults must be sane (capable of forming criminal intent and of understanding the nature and consequences of their acts) and competent to stand trial, that is, able to assist in their own defense.

If an adult is insane or severely mentally impaired, he is held until he is competent. We’ve seen this recently in the Kathleen Hilton case: she was not found competent to stand trial for ten years following the arson homicides of which she was accused.

An Idea

If an adult can be held for 10 years before she is competent to stand trial, why can’t a minor aged 13 be held for 4 or 5 years before he is moved into the adult criminal justice system? Or a 16-year-old like Graham be held for 1 or 2 years?

If that had been done in the Graham case, as I understand it, he would never have been free on parole at age 16 to commit the home invasion and armed robbery for which he received the sentence of L-WOP. He would only have been arrested six months earlier for a first armed robbery and then held for 1 or 2 years before standing trial.

Tried as an adult at 18, he might have been sentenced to more than the 1 year he originally received, but he also would have been given credit for time served—and he would not have been free to commit the more serious crimes at all.