by Kevin Schofield

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This week’s long read is hot off the presses: a Washington State Supreme Court ruling from this past Thursday. By a 5-4 vote, the Court ruled that a state law requiring a mandatory sentence of life in prison without parole for any adult convicted of aggravated first degree murder is unconstitutional when applied to individuals aged 19 or 20, because it violates the Eighth Amendment’s ban on cruel and unusual punishment.

Underlying this case, and several that preceded it, are two ongoing societal debates: What makes a punishment “cruel,” and at what point does someone cross over from juvenile to adult?

The first question is a difficult one for courts, because as they have admitted in many past cases it relies on “evolving standards of decency that mark the progress of a maturing society.” Courts like rules and distinctions that will withstand the test of time; this is one that is guaranteed not to. The U.S. Supreme Court has wrestled with this problem for years:

“The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

Trop v. Dulles, 1958

The second question seems as though it ought to have a fixed answer, but as science teaches us more about human development, we have learned that there are few hard-and-fast rules about what a person is capable (and incapable) of doing at a given age. And yet legislators are forced to draw hard lines where they don’t exist: the legal drinking age, the age when one can get a driver’s license, the voting age, and of course the age at which one can be drafted into military service.

My favorite Supreme Court opinions to read are the 5-4 splits. A unanimous decision tends to be straightforward; given the diversity on the bench, it would need to be in order to convince all nine justices to sign on. An 8-1 decision is often a straightforward opinion with one dissent by a justice with a pet peeve. But the 5-4 splits are where the fierce debates happen: There are strong arguments on both sides and the justices battle it out, honing their arguments to try to build a large enough coalition to carry the day. So it is with this case.

There is an important nuance at play here. The issue before the court is not whether someone age 18 to 20 can be sentenced to life without parole; they can. Rather, the issue is whether the legislature may make such a sentence mandatory, without any consideration to the specific context of the defendant. A majority of the justices found that it may not be mandatory and that sentencing courts must be given the discretion and flexibility to consider other factors.

To reach that conclusion, the justices relied on neurological science to conclude that there is no clear, consistent difference between the brain of a 17-year-old (a juvenile) and that of an 18-year-old (an adult) — the kind of difference that would justify a harsh sentence to be applied to an 18-year-old without thought but not to a 17-year-old. The U.S. Supreme Court has previously ruled that a mandatory sentence of life without parole for juvenile offenders is unconstitutionally cruel; our state Supreme Court just extended that up to age 20.

Why 20? For the not particularly good reason that the defendants in this case were aged 19 and 20 at the time of their sentencing. The Court decided the specifics of the case in front of it but went no further; it was silent as to what it might mean for someone who is 21. The four dissenting judges, however, read the writing on the wall and asked the hard question: Is this the start of an endless set of cases that will try to ratchet the upper bound up one year at a time? Will the next case argue that there is no clear difference between the brain of a 20-year-old and that of a 21-year-old? This is a textbook “slippery slope,” and the Court is now sliding down it.

Between the majority opinion and the dissenting opinion in this case, there is some excellent philosophical and moral debate about how we should define adulthood for the purposes of holding a person accountable for their actions. It makes for great reading.

The defendants in this case will now get new sentencing hearings. Either or both may still end up imprisoned for life without the chance for parole, but at least now a judge must consider whether that is an appropriate sentence given their individual circumstances.

In re Personal Restraint of Monschke

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