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Mark Osler

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Kagan's Elegant Principle: Children Are Different

Posted: 07/10/2012 11:59 am

The end of this year's term in the Supreme Court was a legal, moral and political thrill ride. The Affordable Care Act decision, of course, sucked most of the air out of the room. Beneath, and slightly before that decision, though, was the announcement of an opinion that resonated with a core truth -- one of those moments that shows the role of the Court at its best. In Miller v. Alabama, while striking down some harsh sentencing schemes, the Court articulated again that children are distinct, different and important in our society. That principle now has to be extended into action.

There is no ambiguity: Within criminal law, juveniles are a special category of people. As Justice Kagan wrote for the Miller majority, "Children are constitutionally different than adults for the purposes of sentencing." This principle cuts against the modern impulse to lump bad children in with bad adults as beyond redemption, yet remains consistent with the way we treat children in every other area of life -- as underdeveloped and lacking maturity.

We recognize in relation to voting, military service, drinking, and every other area that children lack judgment not through force of evil, but simply because they are immature as a matter of definition. As Justice Kagan put it, children tend to show traits of "recklessness, impulsivity, and heedless risk-taking" because they are... children.

Miller, like other cases before it, requires that the rest of society now put this principle into practice in a consistent way, as the Constitution requires. States will have to amend their statutes to allow for the bare fact of childhood to be up for consideration at sentencing. Courts will have to figure out how to deal with people already serving juvenile life without parole sentences under mandatory systems. The Supreme Court itself will likely have to revisit the area again, on questions about mandatory transfers to adult status, and the constitutionality of juvenile life without parole sentence where there is discretion to consider another sentence.

With all that, we are not done working with that simple principle: That children are different than adults. Within those past and future struggles, what is the opposing principle? At some level, it is usually this: That some children are so bad, so evil, that society must have the ability to lock them away forever when they are as young as 14 (which was Evan Miller's age when he committed his crime). That is, and should be, a troubling conclusion for what is usually and optimistic and hopeful nation. It reflects a dangerous certainty, too -- that we somehow know which children will be a danger in 30, 40 or 50 years. Perhaps most importantly, it runs against the beliefs of a faithful nation. Not only Christianity but other faiths rest on a belief in redemption and potential, for the youngest amongst us most of all.

The idea that we can look at a 14-year-old and know that he will be evil his entire life is, most damningly, an act of arrogance. It may be that we seek that certainty because, as a society, we have failed children in so many ways. We have failed at public education, at public health, at responsible parenting, but somehow it is easy to find certainty in judging a child of 14 to be irrevocably evil.

As we move beyond Miller, we will wrestle with something larger than just a group of juvenile offenders. In play is nothing less than our notion of childhood. We, and the Court, should continue to resolve those questions with the simple truth that children are different than adults.

 

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