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Shame of the Nation: The Fight to Keep Children Locked Up for Life

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If 11-year-old Jordan Brown had yet had the opportunity in school to learn about the United Nations, it probably wouldn't have surprised him to also learn that the U.S. is one of only two nations on the globe that have refused to ratify the UN Convention on the Rights of the Child. In 2010 this Pennsylvania child found himself facing the possibility of being tried in adult court, as well as a life sentence without any chance for parole, for the shooting death of his stepmother.

Had Cortez R. Davis also managed to make it to high-school social studies, he too would have been unsurprised to learn about the U.S.'s unwillingness to sign this document. When this Michigan child was barely 16 years old, and even though he hadn't killed anyone, he had to stand trial as an adult and is today serving a juvenile life sentence without the possibility of parole (JLWOP).

And yet, in 2012, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory sentences such as Davis' are utterly unconstitutional. They violate the Eighth Amendment and its protection against cruel and unusual punishment.

As the court explained it, children's brains are not yet fully developed, and therefore they do not necessarily have the capacity to consider the consequences of their actions. What is more, it opined, children have "greater prospects for reform" than adults, and states therefore should not be allowed to automatically lock them up and throw away the key.

Although the Miller decision excited many, from the instant that jurists handed it down, and in no small part because their ruling did not say anything about mandatory JLWOP sentences that had already been rendered, state prosecutors across the nation have waged a most bitter fight against human rights groups, child-advocacy organizations, and individual appellants like Davis to ensure that the nearly 2,500 children whom they had previously locked up for life would in fact die behind bars.

Just a few weeks ago the state of Michigan succeeded in its battle to keep this state's juvenile lifers in prison forever. Not only will prosecutors in Michigan now be allowed to keep the children they sentenced to JLWOP locked up, but so will district attorneys in other states such as Louisiana, Minnesota, and Pennsylvania, thanks to their similar legal victories.

That Miller won't be made retroactive in Michigan and Pennsylvania is particularly noteworthy since, by 2012, these two states had imprisoned even more kids to JLWOP than had any other -- 358 and 475 children, respectively. The Supreme Court has declined to get involved in these state-level battles over retroactivity and re-sentencing.

Ending up here, however, with thousands of kids imprisoned for life, was by no means inevitable, or even predictable, when we look back in our nation's history.

In fact, for much of the last two centuries, very few would have accepted the idea that the legal system should treat children exactly like adults, or that a child who breaks the law, even egregiously so, is unredeemable. The truth is that more than 150 years ago reformers across the nation had already begun pointing out that young people simply did not have the same capacity as adults for understanding the long-term consequences of their short-term actions, or for making rational, clear-headed decisions when under pressure. Children, they argued, needed to be "saved" rather than abandoned to the adult system.

And so, by the 1860s, major cities across the nation had begun setting up facilities for juveniles who had run afoul of the law that were entirely separate from adult institutions precisely because they felt that children needed a different sort of intervention. In 1899 officials in Cook County, Illinois, opened the nation's first juveniles-only court system, which, as the next century unfolded, would, for good and ill, become a powerful model for other American cities and counties that also believed that children were different.

To be sure, the view that children should not be punished to the same degree as adults was always contested, and it was also seriously flawed in practice. Indeed, because juvenile-justice reformers had their own very deep class and race prejudices, throughout American history the mantle of inherent innocence never covered all children equally. Unlike white kids, for instance, black and brown children were too rarely given the benefit of the doubt in the juvenile system and were too regularly treated both brutally and similarly to adults despite the myriad justice reforms that had swept the nation by World War II.

And, of course, as author Nell Bernstein has shown so hauntingly, deciding that institutionalization was still the best way to address childhood wrongdoing then -- even if it was separated from adults -- was itself deeply problematic. Indeed, it would mean that over the next 100 years far too many kids would be removed from their families at a most vulnerable time in their development, only to suffer much pain and trauma in juvenile facilities that were also inhumane.

Still, by the middle of the 20th century, most Americans had come to accept that, as a rule of law, children were not adults and therefore deserved some sort of special consideration in the legal and justice systems. The law and the citizenry both understood that children were redeemable.

In fact, it wasn't until the latter third of the 20th century that a legitimate desire to clarify exactly what rights juveniles in fact had in the system, and how that system should operate, led to a series of legal decisions that unwittingly made the juvenile system much more formal and, in the process, much more like the adult criminal-justice system.

However, nothing served to blur the lines between the justice systems of children and adults more than when America embraced a national and newly punitive war on crime in the wake of the civil-rights '60s. As all of America's criminal laws and sentences were completely overhauled and made far harsher, by the 1980s kids, even kids as young as 11 years old, found themselves facing penalties tougher than ever had been rendered before in the history of this nation. As importantly, they found themselves tried, in record numbers, as adults within the adult criminal-justice system no matter how young they were. And, in keeping with earlier history, the children who most often faced this harsh reception in the system were kids of color.

By the 1990s too many state prosecutors had decided that their job was not to help America's children who had broken the law become better adults -- particularly its black and brown kids, whom they had decided were super-predators -- but to punish them most severely.

This dramatic post-1960s shift in law, policy, and ideology had vast consequences for American children. By 2012 the United States had earned the dubious distinction of having more kids serving a life sentence without any chance of parole than any other country in the world. In most of these cases, kids had received these sentences because they were mandatory; in other words, state legislatures had decided that no mitigating circumstances should prevent a child from a life sentence. Often that crime was murder, but by no means was this the only offense that could land a child in prison forever.

And then, in 2012, we got Miller v. Alabama, which suggested that draconian JLWOP sentences would be, from then on, an unfortunate relic of a most backward past.

But yet here we are today, in 2014, with our nation's kids still at the mercy of politicians who pride themselves on being tough on crime, because, in short, nothing in the Miller decision said prosecutors couldn't sentence kids to JLWOP. It just said they couldn't do it automatically.

So what about everything that scholars and scientists know from their data about kids and how they develop? What about the myriad facts about children and decision making that the Supreme Court noted in the Miller decision? And what about all that we know simply from having raised our own kids, which makes it abundantly clear that they are in no way adults? Of course, this is why our nation does not allow children to stay out all night, to live on their own, to vote, to drink alcohol, to buy property, to get married, or to sign contracts.

And we actually know a lot more than all of this. We also know that children, in time, simply age out of the majority of the stupid, dangerous, and even criminal behaviors that they may engage in. Whereas we all were easily swayed by our peers to do dumb and illegal things in our youth, as grownups we are much less easily led astray.

What is more, we know that so many of our nation's kids who land behind bars were themselves, and first, crime victims. Indeed, had we as a nation really been worried about public safety and really been concerned about protecting those who need protection, there simply wouldn't be this many children so neglected, so abused, and so traumatized that they, almost inevitably, ended up in the juvenile- or adult-justice system.

Take, for example, Evan Miller, the Alabama boy whose case was at the heart of Miller v. Alabama. Evan was only 14 when he received his JLWOP sentence, but by that year he had already suffered so much brutality in his own life that he had "tried to kill himself six times, the first time when he was 5 years old."

Just as the nation's embrace of draconian tough-on-crime policies ended up blurring the lines between our nation's juvenile-justice system and its adult-criminal-justice system in alarming ways, so has it made unnaturally rigid the line ostensibly separating victims and offenders. And yet, here again, the data is clear: The overwhelming majority of the children who are now sitting in prison with life sentences were first themselves victims of unspeakable violence.

What in fact does it say about us as a society if we decide that only some victims of crime are worthy of being heard, or that only some acts of violence are worthy of being called a crime? What does it say about us that we now think it "just" for the state to lock a child who has done something wrong -- even something terribly wrong -- in a 5-by-8-foot cell from the time they are 11 or 14 or even 16 until they the day they die? Of course, if we were caught punishing our own children in this way -- if we locked them up in a small room of our house for years on end -- we would be seen as abusive. All understand that such treatment terrifies children and scars them permanently. We would be viewed as inhumane.

So the Supreme Court must again weigh in on our nation's justice system. The problems it should consider are myriad, ranging from specific prison practices such as holding human beings in solitary confinement for years on end to the very racial and class disproportionality of the penal system itself. However, the justices can start by following the logic of the arguments they have already made in Miller v. Alabama. If JLWOP sentences are unconstitutional because children are not yet formed and can still be redeemed, then every one of these existing sentences should be overturned. Immediately.