Clarence Thomas was right

May 21, 2010

Buried deep in his dissent of this week's Supreme Court opinion outlawing the practice of sentencing juveniles to prison without parole for crimes short of murder, Justice Clarence Thomas hit upon an indefensible flaw in the majority's reasoning. The five justices who signed on to the majority opinion determined that such a sentence violates the 8th Amendment's prohibition on cruel and unusual punishment because juveniles are not fully mature and cannot be held culpable in the same way as adults are. Because such offenders are still developing, the courts cannot justifiably determine that they are irredeemable and must at least entertain the possibility that they have been rehabilitated.

After pages of arguing about whether the framers of the constitution would have considered such sentences cruel and unusual and about whether such punishments — allowed in 37 states but only actually meted out in 129 cases in 10 states — are outside the norm, Justice Thomas got to a solid argument. What's the difference between a mentally immature juvenile who commits a heinous nonhomicide crime and a mentally immature juvenile who commits murder? "The Court is quite willing to accept that a 17-year-old who pulls the trigger on a firearm can demonstrate sufficient depravity and irredeemability to be denied reentry into society, but insists that a 17-year-old who rapes an 8-year-old and leaves her for dead does not," Justice Thomas wrote.

Indeed, there's often little difference between assault and homicide besides luck. It makes no sense to declare a punishment unconstitutional because the perpetrators can't be held fully accountable for their motives for an act but to throw out that protection based on the outcome of that act. Though he surely didn't intend it, Justice Thomas has provided a crucial basis for the court to one day rule that life without the possibility of parole is never appropriate for juveniles, which is what it should have decided in the first place.

There probably are some people who are so depraved even at a young age that they should never be allowed in society, but it is impossible to know with certainty that any given juvenile offender won't be rehabilitated decades down the road. States shouldn't be forced to grant parole, but youth offenders should at least have the right to one day make their case.

—Andrew A. Green

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