SCOTUS Stops Calling Teen Criminals “Children,” For Now

“What’s in a name? That which we call a rose by any other name would smell as sweet.” Quite a lot is in a name, as “Juliet and her Romeo” tragically found out in the end. More on point, George Orwell demonstrated the pernicious exploitation of language for propaganda purposes in his famous dystopian novel 1984.

Some years back, advocates for lenient treatment of adolescents who commit horrible crimes of violence began exploiting an ambiguity in the word “children” as a propaganda tool. In 2012, the United States Supreme Court jumped on this Orwellian bandwagon. Yesterday it jumped off, at least for the time being.

A series of Supreme Court decisions beginning in 2005 have involved juveniles facing the two most severe punishments known to our law: death and life without parole (LWOP). All of the perpetrators in these Supreme Court cases have been adolescents, not pre-pubescent children. Such children rarely commit the kinds of crimes that would draw these punishments. In many states they are not eligible for transfer to adult criminal court even when they do, and even where they are such an action is rare.

With that in mind, consider the definition of “child” from the American Heritage Dictionary:

1.

a. A person between birth and puberty.

b. A person who has not attained maturity or the age of legal majority.

2.

a. An unborn infant; a fetus.

b. An infant; a baby.

3. One who is childish or immature.

4. Someone to whom a specified person is a parent.

5. A member of a tribe; descendant: children of Abraham.

6.

a. An individual regarded as strongly affected by another or by a specified time, place, or circumstance: a child of nature; a child of the Sixties.

b. A product or result of something specified: “Times Square is a child of the 20th century” (Richard F. Shepard).

The various senses of the word are listed “with the central and often the most commonly sought meaning first.” Although “child” has many meanings, the central and most common meaning of the word is “a person between birth and puberty.” The second sense, embracing teenagers also, is less common.

The more common terms for people below the age of legal majority are “juvenile” and “minor.” Why would anyone use the ambiguous word “child” in its less common sense rather than these unambiguous words? The pure and simple reason is to mislead readers who may not be familiar with the realities of juvenile justice. People who think the discussion is about pre-pubescent children rather than adolescents will be much more sympathetic to reduced penalties.

In Roper v. Simmons (2015), Justice Kennedy’s opinion for the Court used the term “juvenile” while holding that juveniles cannot be sentenced to death no matter how heinous their crimes. Simmons’s crime, as described by Justice O’Connor in dissent, went like this:

Simmons and his 15-year-old accomplice broke into Mrs. Crook’s home in the middle of the night, forced her from her bed, bound her, and drove her to a state park. There, they walked her to a railroad trestle spanning a river, “hog-tied” her with electrical cable, bound her face completely with duct tape, and pushed her, still alive, from the trestle. She drowned in the water below. Id., at 4. One can scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death.

And this was just for the thrill of it. Simmons was sure he could get away with it because he was a minor. He was at least partly right, thanks to the Supreme Court.

Five years later, in Graham v. Florida (2010), Justice Kennedy again referred to “juvenile offenders” in holding that they could not be sentenced to LWOP for crimes less than homicide. (As a matter of policy I agree with the rule. The punishment for committing a crime and killing the victim should always be greater than for committing the same crime and letting the victim live. That is for the victim’s sake, not the perpetrator’s. But it’s not in the Constitution.)

Then in 2012, the Court decided in Miller v. Alabama that LWOP for juveniles could not be a mandatory sentence but could only be imposed by a sentencer with discretion to choose a lesser sentence. (Again, I agree with that rule as a matter of policy, but it’s not in the Constitution.) This time the opinion was written by Justice Kagan, and without explanation she changed the term to “children,” adopting the deceptive ambiguity of the advocates.

The Miller opinion goes on for several paragraphs about how “children” are different from adults, something that “any parent knows.” This whole discussion glosses over how actual children are different from adolescents. That difference is also apparent to all parents, sometimes painfully so. A discussion of age-related differences that intentionally chooses an ambiguous word to obscure an even greater age-related difference is so bizarre that it is almost painful to read.

Four years later, Justice Kennedy had the author’s pen back, and he wrote the opinion of the Court in Montgomery v. Louisiana. This is one of the most dishonest opinions in modern Supreme Court history. (See Justice Scalia’s dissent in Montgomery, Justice Thomas’s concurrence in Jones v. Mississippi, and Part II of CJLF’s brief in Jones.) Along with declaring that Miller held something that Miller itself stated in words clear beyond question that it did not hold, the Montgomery opinion adopted Miller‘s misuse of the word “child” to infantilize murdering adolescents.

In Jones, the National Organization of Victims of Juvenile Murderers and Arizona Voice for Victims filed an amicus brief calling attention to the effect of victims’ families of the turmoil created by the Miller and Montgomery decisions and the repeated resentencings of murderers that they had been assured were put away for good. In addition, the brief, written by CJLF Attorney Kymberlee Stapleton, called attention to problematic use of the term “children.” This is part III of the brief, beginning on page 26.

The Jones decision is most important, of course, for the substance of the opinion. Yet it is also heartening to see that the Court has dropped the “children” terminology. That word is used only in quotations from Miller and Montgomery. Where the opinion speaks for itself, it refers to the perpetrators as “individuals under 18,” “offenders under 18,” or, most precisely and appropriately “murderers under 18.” That is exactly what they are, and we should never forget it.

Let us hope that we never again see the United States Supreme Court referring to adolescent murderers as “children.”