Raising the Age: Is Texas Going “Soft on Crime?”

In the past decade, the Supreme Court has ruled that the death penalty and mandatory life without parole for crimes committed while under the age of eighteen amount to cruel and unusual and are therefore unconstitutional.[1] [2] The Court, or at least a majority of it, appears to believe eighteen is the appropriate age to treat someone as an adult. Justice Kennedy wrote that he based his decision on contemporary research that shows that young teens simply do not have the same decision-making skills as a middle-aged adult. However, many states, including Texas, use seventeen as the age of criminal responsibility. [3] While a high school junior might not be able to vote or buy cigarettes, she could be treated and perhaps more importantly, sentenced, as an adult. If the highest court in the US seems to be telling us the eighteen is the age where we should treat kids as adults, why do some states still have laws on the books that treat seventeen-year-old kids as adults?

As I was reading over two bills up for consideration in the Texas House of Representatives, HB330 and HB53, that would raise the age of criminal responsibility to eighteen, I couldn’t quite figure out a couple of things. First, why has it taken almost a decade after Roper to change these rules? And second, who would oppose this and why would they oppose it? I am not naive to the fact that raising the age could cost the state money. But from a philosophical or political viewpoint, as I read the bills, it seemed to be pretty straightforward. If SCOTUS and current research says the age where a state can inflict the ultimate punishment is eighteen, then the age of criminal responsibility should be eighteen as well.

However, I gained a different perspective following a conversation with a friend over drinks last weekend. We were discussing what we had been working on that week and I mentioned I had been reading the two bills mentioned above. My friend is not a lawyer and isn’t particularly politically active. After briefly summarizing the bills, my friend’s immediate reaction?

“So Texas is going softer on crime?”

He immediately connected the idea that treating more people as kids to going soft on crime. I was unprepared for such an immediate and strong reaction. As Justice Kennedy noted, kids should be treated as kids because they do not have the same capability as adults to make decisions. Treating them as such does not mean you are soft on crime. Instead, it reflects the reality of their capabilities. However, if my friend’s comment is reflective of a large segment of the public, then perhaps changing the Texas law could take even longer.

[1] Roper v. Simmons, 540 U.S. 1160 (2004).

[2] Miller v. Alabama, 132 S. Ct. 2455 (2012).

[3] State-By-State Legal Resource Guide- accessed Feb 9- http://www.usfca.edu/law/jlwop/resource_guide/

More Analysis on Today’s Alabama v. Miller Decision

Ellen Marrus is the George Butler Research Professor of Law at the University of Houston Law Center. Professor Marrus also serves as Director of UH’s Center for Children, Law & Policy and Director of the Southwest Juvenile Defender Center. She received her J.D. in 1990 from the University of San Francisco and her LL.M. from Georgetown University Law Center in 1992. She came to the University of Houston Law Center in 1995 after practicing as a public defender in California. Professor Marrus concentrates her scholarship in the areas of children’s rights, juvenile justice, and professionalism.

The United States Supreme Court today continued with its line of cases favoring children in the decisions of Miller v. Alabama and Jackson v. Hobbs. The Court announced that youth under the age of eighteen may not face a mandatory sentence of  life without parole, even in homicide cases. Read the Court’s opinion here. In a 5-4 decision, Justice Kagan stated that “such a scheme prevents those meting out punishment from considering a juvenile’s ‘lessened culpability’ and greater ‘capacity for change.’”

As the Court did in the previous cases of Roper and Graham, Justice Kagan relied on three major differences between children and adults – children’s immaturity, vulnerability, and the lack of a juvenile’s character being fully formed. The Court emphasized the need for courts to consider several factors prior to sentencing juveniles including “his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.”

The Court also recognized that juveniles react differently than adults to the legal process. If it was not for a child’s incompetencies such as not knowing how to deal with the police, prosecutors, and in many cases, even his own attorney, “he might have been charged and convicted of a lesser offense.

Some commentators, myself included, may feel that the Court did not go far enough in this decision and that life without possibility of parole should never be appropriate for juveniles. Although the Court did not yet reach this decision, the opinion did state, “given all we have said in Roper, Graham, and this decision about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” At this time, we remain the only country in the world where there is a possibility that a juvenile can be sentenced to die in prison. Hopefully this will change in the near future, and we will join the rest of the world in recognizing that children need to be treated differently than adults so they can demonstrate their ability to change, grow and mature.

Mandatory Life Without Parole for Juveniles Found Unconstitutional

Today, Justice Kagan’s opinion for the Supreme Court in Miller v. Alabama and Jackson v. Hobbs (Arkansas) was announced.  The Court held that the Eighth Amendment prohibits mandatory sentencing of life in prison without parole for juveniles.  This is a great step in understanding that children are different and less mature than adults and deserve punishment that acknowledges these differences.   This opinion could also be viewed as a baby step towards abolishing the death penalty for adults, as it is a rare defendant who has no mitigating circumstances that should be considered before sentencing to death or life without parole.

Miller v. Alabama follows the trend set by the monumental Roper v. Simmons, which held the death penalty unconstitutional for juveniles, and Graham v. Florida, which held juveniles cannot be given life without parole for non-homicide offenses.

Miller and Jackson were 14 years old when convicted of capital murder in Alabama and Arkansas, respectively. They were sentenced to life in prison without parole under mandatory laws that did not allow for consideration of mitigating circumstances, such as the boys’ age or home environment. About 2,500 people across the country are serving life without parole for crimes they committed when they were under 18 years old.

The second holding in this case is that defendants are entitled to individualized consideration when facing a punishment as severe as life without parole. This line of reasoning for Eighth Amendment interpretation may also be true for adults facing mandatory life without parole.

The decision was 5-4 with Justice Kagan joined by Justices Kennedy, Ginsburg, Breyer, and Sotomayor in the majority. Justice Breyer, joined by Justice Sotomayor, concurred separately. Three dissenting opinions were written, by the Chief Justice, Justice Thomas, and Justice Alito.

Find more coverage at SCOTUSblog. You can also read the case’s background and appellate briefs in one of our earlier posts. The full opinion can be found at the U.S. Supreme Court’s website.