By Heidi Schumann, ACLR Featured Blogger

A 2013 article published in the Ohio State Journal of Criminal Law was written by an offender who at the age of fourteen was sentenced to life without the possibility of parole.1 The author, Jeremiah Bourgeois, has served over 20 years in prison after being found guilty of the brutal murder of a witness who testified against his brother.2 Throughout his time in prison he studied the law, earned a paralegal certificate, and took classes toward a bachelor’s degree.3 His article is of similar quality to the many that are published in law journals around the country, and one of Bourgeois’s teachers stated that, “[Bourgeois’s] mind has blown me away in classes.”4 In 2012, the Supreme Court decided Miller v. Alabama, which invalidated the sentencing scheme under which Bourgeois was sentenced, and will potentially result in his freedom.5 As Bourgeios wrote in a blog post shortly after the Supreme Court decision was released,

“I might actually complete my final year of undergraduate study on a college campus instead of through the mail. I might live with the woman I love instead of have our relationship circumscribed by my confinement. I might be mentoring at-risk youth to prevent them from coming to prison instead of mentoring young men who are already imprisoned. I might be working as a legal assistant making a decent salary instead of helping prisoners resolve their legal problems for free.”6

Miller v. Alabama held that mandatory sentences of life without the possibility of parole, like the scheme under which Bourgeois was sentenced,7 are unconstitutional for juveniles.8 The change in the person that Bourgeois was at the age of fourteen to the person demonstrated in his article and in his blog post personalizes the Supreme Court’s underlying rationale for its ruling. Furthermore, this change represents why the protection afforded children in Miller is just. Children are different than adults. As will be explored below, the impact of these differences means that children are less culpable for their crimes than adults, and their character, not yet fully developed, has a greater propensity for change. Therefore, Miller correctly recognizes and establishes that consideration of the effects of the youthfulness on a child’s actions must be considered in sentencing.  

The court in Miller reiterated what it had earlier stated in Roper v. Simmons9 and Graham v. Florida10: that children are different.11 In its opinion, the court states that imposing mandatory sentences of life without the possibility of parole for juvenile offenders overlooks the effects of youthfulness on the commission of the crime, which include a youth’s “immaturity, impetuosity, and failure to appreciate risks and consequences,”12 a youth’s inability to escape his or her environment, the influence of peer pressure on his or her decisions, and finally the fact that a child’s character is not fully formed at this age, which results in a greater possibility for reform.13 The court in Graham and Roper examined and accepted scientific evidence of neurological development as well as observational evidence in determining that children are different.14  

The characteristics of youth clearly impact a child’s decision to act, and are particularly apparent in circumstances involving criminal activity.15 The evidence discussed below supports the determination that in the case of children, the justifications for punishment are reduced and the justifications of mandatory sentencing schemes are in many cases not applicable. Children are less culpable for their crimes, and because they do not process the risk or think through their actions in the way adults do, they are less likely to be deterred by sentencing enhancements.

 Scientific studies demonstrate the difference in the brain and experience of juveniles when compared to adults in their twenties and upwards. These differences affect how children process and react to circumstances, which can lead to criminal activity.16 The three areas research suggests are developmentally different in juveniles are “temperance, as determined by impulse control and the suppression of aggression; perspective, as determined by consideration of others and future orientation; and responsibility, as determined by one's resistance to peer influence and sense of personal responsibility for one's actions.”17 The developmental differences in children often mean that a juvenile does not refuse to process information in such a way to avoid missteps with the law. Instead, he or she is incapable of processing information in this way.18

Teenage risk taking is well documented both observationally and through studies of the brain chemistry.19 In early to mid adolescence, juveniles experience a greater sensation-seeking urge mixed with impulsivity.20 A self-reported study demonstrates that criminal activity in juveniles at this age is actually the norm rather than a departure.21 Concededly, the statistics do not indicate that these crimes are usually punishable by life in prison without the possibility of parole. However, it does suggest that childhood criminal activity is common and traceable to the developmental stage of the child’s brain. Importantly, the developmental phenomena change as a child progresses into late adolescence and adulthood. The risky behavior declines and the study reports that the frequency of both violent and non-violent crime decreases as a child matures into young adulthood.22

A youth’s perspective and sense of responsibility also differ significantly from those of adults.23 Observationally, we as adults can look to our years in middle school and high school. In varying degrees we all likely felt the peer pressure and desire to “fit in” with our peers. We also likely felt a greater desire to associate more with our peers than our parents. We can remember how these desires created conflicts, perhaps with the law, perhaps with our parents, or perhaps just within ourselves.  Additionally, a youth has had significantly less life experience than an adult. At eighteen, many young adults gain a wealth of new experience as both legal and societal boundaries are opened. An eighteen-year-old is able to vote for the first time. In many cases, he or she will move out on their own, attend college or other additional schooling, and will be financially self-reliant for the first time. At eighteen, in many states a person is also presumed legally culpable for his or her actions for the first time.24 This creates a quickly evolving and dramatically different perspective. This differing perspective, which results from exposure to new life experience, and even just the passage of time, affects the youth’s ability to look forward and plan for the future, which is helpful in risk assessment.25

A recent article, which argues for a similar ban for mandatory gang association sentencing increases highlights how influential peers and peer pressure are during adolescent development. The research shows that both cultural exposure and social pressure play an enormous role during this unique period of development. It further states that gang initiations thrive on this particular period because of that vulnerability.26 The factors present in gang recruitment, such as the brain chemistry, cultural pressure, peer influence, and other aspects of the external environment are applicable in other crime recruitment. In fact, many of these factors were directly present in the cases that make up Miller, itself.27

The factors influencing the extent of a youth’s responsibility for their actions are functions of both the environment and the developing brain.28 As a result of all of the developmental differences between juveniles and adults, they are less culpable for their crimes, their characters are still in development, and the deterrent effect of sentencing is less likely to dissuade others from committing crime. As is so poignantly demonstrated through the life of Bourgeois, the actions of a child, acting as a child, should not presumptively limit their entire life as an adult. That would be cruel to both the individual and to society by ridding each of the potential positive impact of a contributing member of society.