On February 11, 2014, The Harvard Federalist Society hosting an event titled “Adult Sentencing for Adult Crimes” featuring Charles D. Stimson. Mr. Stimson is a Senior Legal Fellow at the Heritage Foundation where his work focuses on a number of substantive legal areas including Juvenile Sentencing. In 2009, Mr. Stimson and his co-author Andrew Grossman published a short book, Adult Time for Adult Crime, with the Heritage Foundation arguing that sentencing juveniles to life without parole (“JLWOP”) for homicides and other violent crimes was Constitutional and occasionally warranted.
Mr. Stimson began his presentation by lamenting that he had no counterpoint against whom to engage in a collegial discussion. He nevertheless promised to attempt to present both sides—though definitively stating his confidence in his own conclusion. Instinctively moving forward to compensate for law students’ general reluctance to sit in the front row, Mr. Stimson read excerpts from his book, specifically, describing the heinous crimes committed by Ashley Jones, one of the several case studies contained in his report. Comparing this detailed description with a sanitized version of the facts in a report from the Equal Justice Initiative, Mr. Stimson explained that this imbalance led him to study JLWOP. The Equal Justice Initiative, Mr. Stimson hypothesized, was intent on completely doing away with JLWOP, and colored its information toward that end. Namely, its report featured pictures of children (7-8 year-olds) as opposed to the juveniles (teenagers) that JLWOP laws were actually affecting. Its studies on JLWOP used strong assumptions, creating hypothesized numbers, which were later cited authoritatively in court documents. It made arguments about international law that were either false or misleading. And it did not distinguish between juvenile murderers and petty criminals. Applauding the opposition’s efforts and acknowledging their rights to argue, Mr. Stimson emphasized that he wanted to balance out the informational playing field in the name of federalism.
The issue for Mr. Stimson was broader than Ashley Jones. He did not condemn her, but used her merely as an example. Citing an abnormally high violent crime rate, especially among juveniles, Mr. Stimson said that in 2009, 43 States and 90% of the American population had JLWOP statutes. To correct this issue, Mr. Stimson argued, the States have the prerogative to adopt sentencing schemes that incapacitate malicious teens and ensure that they will commit no more heinous crimes. He declined to go into further detail about the number of JLWOP sentences handed down, however because of bad record keeping in the States. Nevertheless, he emphasized that there are very few juveniles who are even eligible for the sentence, who receive it.
Simply put, Mr. Stimson argued that life without parole for juveniles may sometimes be warranted, and is certainly constitutional, so long as a State’s legislature adopts a statute authorizing the sentence. He noted that these statutes only authorize JLWOP for major crimes, like the ones committed by Ashley Jones. After Graham v. Florida, there could be no JLWOP for merely violent crimes, but murder remained a sufficient underlying crime. And following Miller v. Alabama, there could be no more mandatory JLWOP. But Mr. Stimson further suggested that the Court indicated sotto voce in Miller that it is now finished with JLWOP cases, unless a Teague issue arises—as it might since there are currently 1300 inmates on “LWOP row.” Thus, the law will remain as it stands: JLWOP is a Constitutional punishment for homicides as long as the sentence is not imposed mandatorily.
Despite the lack of formal opposition, the audience raised several incisive questions. First, it was asked whether Mr. Stimson believed that juveniles were incapable of rehabilitation, to which Mr. Stimson responded that he did not know—but the broader point remained that such a question was best posed to and answered by legislators. Next, Mr. Stimson was asked about founding-era sentencing structures. He replied that they were draconian, and usually required death, but noted that no one argues for the death penalty for juveniles. Originalism in Eighth Amendment jurisprudence, he noted, is very rare. Finally, Mr. Stimson was asked whether, if Ashley was abused, as the Equal Justice Initiative claims, and if she is capable of rehabilitation why she should still spend her life behind bars. Mr. Stimson answered that this was not the point. As an adoptive child, he acknowledged the tragedy and fact of child abuse, and he affirmed that such abuse could corrupt a child. Indeed, he even stated that during his time as a federal prosecutor, he never sought JLWOP. Still, he went on to point out that the court rejected Ashley’s abuse argument, and underlined that his point is not about social science or JLWOP policy. As befits a Federalist Society lunch event, Mr. Stimson underlined the federalism issue: It is for the States to decide how to punish juvenile murderers.
Full Disclosure: I worked for Mr. Stimson during the summer of 2012 in his capacity as a Senior Legal Fellow at the Heritage Foundation and as a trial judge for the Navy JAG. Together we wrote a research paper for the Heritage Foundation, which can be found here.