The virtue of consistency

Charging children as adults is contradictory.

In Thompson v. Oklahoma, the Supreme Court of the United States (SCOTUS) overturned the death penalty for people under 16 years old. William Wayne Thompson was 15-years-old when he and three adults–– Anthony “Tony” James Mann, Richard Jones and Bobby Glass – murdered Thompson’s brother-in-law, Charles Keene.

In its decision, the court said that “informing the court today is the virtue of consistency” and ruled that “age alone mitigates the crime.”

In the 2010 case Graham v. Florida, SCOTUS ruled that mandatory life sentencing of juveniles for non-homicidal crimes is unconstitutional. Terrance Graham was 16-years-old when a judge sentenced him to mandatory life without the possibility of parole for committing two robberies. SCOTUS failed to base its ruling on the “virtue of consistency,” but instead settled for “new psychological developments on differences between juvenile and adult brains that supported the claim that discipline should be approached differently between the two.”

There is much to question about how a court can be informed by the “virtue of consistency” in one case and then 22 years later base its decision on scientific findings about the brain; this inconsistency deserves consideration.

Since science depends on such consistency, the purpose of introducing or requiring science to discontinue the practices of harsh treatments of juveniles is problematic, especially when the inconsistency of charging them as adults remains. Radley Balko addresses this in his Washington Post article, “There seems to be an inescapable tension between the fields of law and science. Law strives for consistency and finality, so courts tend to look to precedents for guidance. Science is always changing with new evidence and new research. But of course science is an important tool in the search for justice.”

Science, however, is no substitute for consistency.

It is important to note that, Balko’s article notwithstanding, new evidence and research that is changing science, is also science. And the glue that holds the evidence and research together, long enough to change science is consistency. When Thompson was decided, SCOTUS considered all of the 50 states’ laws in relation to a 15-year-old and found a consensus about the assumptions that are made about children under the age of 16. That consensus should have led SCOTUS to pass a categorical imperative against charging children as adults. There is nothing consistent about a child being an adult. Yet, SCOTUS focuses on remediating the consequences of the inconsistency, rather than eliminating the inconsistency itself. The Justices appear to be content with reasoning within the cause of the contradiction of a child being an adult while allowing cases to be argued on the effects of “cruel and unusual punishment.”

In her article “Should Juveniles Be Tried as Adults Pros and Cons,” Natalie Regoli demonstrates this in the following 11 examples:

1. It does not take into account the maturity of the child.
2. It does not usually offer an opportunity for rehabilitation.
3. It creates an element of risk for the child while they are in prison.
4. It reduces the number of options that are available for sentencing.
5. It creates more opportunities for youth to become repeat offenders.
6. It prevents a child from having a fresh start even after they make necessary changes.
7. It does not reflect the understanding of the children in question.
8. It does not always reflect a measure of culpability.
9. It does not provide them with youth-specific services.
10. It is a process which seems to disproportionately target minority demographics.
11. It does not give a defendant an opportunity to be tried by a “jury of their peers.”

This issue of arguing from a point of consistency is not trivial. Our due process clause is made up of two crucial components. Procedural components is one, which requires the government to follow a strict constitutional process when it deprives anyone of liberty. The second component is substantial, which denies the government the power to deprive liberty, regardless of the procedure they follow, if they act arbitrarily or capriciously. If the due process clause is generated from anything, it is consistency. When the government is required to act under prescribed and substantive rules, there is a presumption of strict adherence to established rules that cannot be under emphasized.

Furthermore, there is a concept known as “expressio unius est exclusio alterius” that is central to our constitutional construction of law. It means that the “express designation of one thing, may properly be construed as the exclusion of another.” It seems obvious that once something is designated, it has to retain its identity for it to be comprehensive.

The idea that the identity of children does not qualify under the same rules of consistency that allow our laws to promote and protect our society undermines everyone’s rights. The threat to our principles of democracy in charging children as adults should be the central argument placed before SCOTUS. To continue to consider mitigating factors, such as brain development, to reduce harsh sentences for juveniles is to allow for injustice while asking that the injustice be reduced, rather than removed.