Dear Walter and Judge Posner,
A brief thought on “children” and “brain science” in response to Judge Posner’s thoughts of last night. I agree that both phrases are tossed around rather sloppily in the Eighth Amendment cases. We are far too sentimental in our deployment of the word “children” and strangely rigid about what we deem appropriate “brain science.” Emily made the point that Justice Kagan also engaged in a bit of stunt-counting about the number of states that provide for mandatory life without parole for juveniles—something that justifiably infuriated the dissenters. And children can commit unspeakable murders, knowingly and cruelly.
That said, one thing struck me at oral argument in Miller and Jackson, beyond just the reduced culpability of youthful murderers. Bryan Stevenson, arguing on behalf of the two 14-year-old murderers reminded the court that youth isn’t just about brain science. It’s also about being absolutely trapped. Stevenson put it this way: “It's not just their inherent internal attributes. It's also the external circumstances that they find themselves in. Kuntrell Jackson was born in a household where there was nothing but violence and guns and people shooting at each other. His grandmother shot his uncle. His mother shot a neighbor. His brother shot someone. They were all put to jail. But, unlike an adult, these children don't have the ability to escape.” Evan Miller, the other 14-year-old defendant, was so brutalized as a child he attempted suicide four times: the first time came when he should have been in kindergarten.
This isn’t just liberal weepiness. I agree that the brain science evidence is squishy, and that arguments about diminished moral reasoning, susceptibility to influence, and impulse control also map readily onto defendants who are older than 18. It all looks like a smoke bomb to deflect from what the justices are really trying to do: Draw a moral line around childhood for sentencing purposes. But one striking thing about Miller and Jackson is the extent to which they were completely trapped by the horrible circumstances of their own lives. They went, in effect, from one life sentence to another. This argument may also be unmoored from logic, but it’s at least candid, and I found it quite persuasive.
I suppose we should spend the rest of the day speculating about the health care cases with no actual facts from which to work. I confess that reading tea leaves isn’t all that interesting to me. I don’t even like tea.