Throw-Away Children

Earlier this week, the Supreme Court agreed to hear two different cases, both of which are predicated on the argument that sentencing minors—in both of the cases at hand, young teenagers—to lifetimes in prison without the possibility of parole constitutes precisely the kind of cruel and unusual punishment prohibited by the Eighth Amendment to the Constitution.

The background to the decision to hear these cases is instructive and has mostly to do with the 2010 Supreme Court ruling in the case known as Graham vs. Florida, in which the justices concluded that the clause prohibiting cruel and unusual punishment “does not permit a juvenile offender to be sentenced to life in prison without parole for a non-homicide crime.” In other words, the court held that sentencing a juvenile to die in prison—which is the more stark way of saying that someone is sentenced to life without the possibility of parole—is unconstitutional if the crime of which the young person in question was convicted was not murder. The number of juveniles convicted of the kind of non-homicide crimes that resulted in that kind of sentence—rape, armed robbery, and kidnapping—is about 130. Those, however, are the small minority of prisoners in our country who were convicted as minors and sentenced to death in prison: if you include those found guilty of some form of homicide, the number rises to over 2,000 prisoners. Moving incrementally forward, the Court has now agreed to hear cases deemed representative of the about seventy people (out of that 2,000 figure) who were under the age of fourteen when they committed the crime that led to them being convicted of some version of homicide and then given sentences of life-long incarceration. And the Court has, I assume intentionally, chosen to begin with two cases that involve minors who themselves did not actually kill, but whose deeds were deemed participatory in murder. (I should make it clear that the Court’s earlier ruling does not imply that any young people currently serving life sentences without the possibility of parole is necessarily going to be retried or resentenced, let alone have his or her conviction overturned. All it means is that the young people in this category must at some point be given some chance to show that they have matured enough while in prison to warrant being permitted “to rejoin society” rather than staying in prison for the rest of their lives. What is on the table now is the question of whether the homicide exclusion is constitutional.)

In one of the cases the Court has agreed to hear, Jackson vs. Hobbs, the defendant, a fourteen-year-old named Kuntrell Jackson, participated in the robbery of a video store in Arkansas in 1999 during the course of which one of the other robbers shot and killed the clerk working in the store. In the other case, one called Miller vs. Alabama, a fourteen-year-old named Evan Miller and an older friend, both of them drunk and high on marijuana, administered a beating to a neighbor in 2003. They then set his house on fire, as a result of which the neighbor died of smoke inhalation. These are horrific crimes that resulted in the death of innocents. Surely, society cannot look the other way when citizens are murdered in the places of employment or in their homes merely because the persons responsible for their deaths did not specifically set out that day to kill anyone. I can’t imagine anyone disagreeing with that thought, and yet I find myself strangely unsure about how I feel about the actual matter before the Court.

Just to provide a bit more background, the Supreme Court has already ruled that the death penalty may not be imposed on minors. (The original decision, making it illegal to sentence juveniles under sixteen years of age to death dates back to 1988. Then, in 2005, the Court determined that no one under eighteen may receive the death penalty.) But it is specifically not the death penalty that is under discussion here.

On the one hand, fourteen-year-olds are children. Our bar- and bat-mitzvah boys and girls are only slightly younger. Many need to stand on the box we keep on the bimah when they deliver their remarks so they can see over the lectern. They aren’t even in high school yet, and so it seems impossible to imagine them or other young people their age already beyond redemption, already so far beyond the pale of normal and rational behavior that the only reasonable way for society to deal with them is to lock them up forever and then to toss away the key. Would I feel differently if it was my brother who died in that house fire, or if it was my dad working in that video store? I’m sure I would, but that, of course, is precisely why we do not invite the brothers or sons of homicide victims to serve on the juries considering the fates of their relatives’ alleged murderers.

Where should Jewish people stand on an issue like this? On the one hand, our tradition is strongly in favor of using the justice system to make society safe. (And people—of any age—who participate in armed robbery or who set other people’s homes on fire are clearly dangerous and violent people who make society the precise opposite of safe.) On the other hand, our tradition is adamant that the gates of teshuvah, of repentance, are always open…and that there is no one at all who cannot turn around, who cannot renounce sin (and crime), and, through the sheer force of will and the power of faith, become a God-fearing person from whom society has nothing at all to fear. Of course, there is no way to know in advance who will choose that path and there are no guarantees, nor could there ever be, that even defendants who appear the most docile and chastened in the course of their trials will actually make the decision to abandon their evil ways and embrace goodness. If guarantees like that were possible, then that would make the administration of justice a whole lot simpler! Seen in that light, the question, really, before the court is not whether violent criminals are bad people, but whether we are prepared, as a society, to say that there simply are children—and fourteen-year-olds are children no matter how horrifically poorly they behave—of whom it can be reasonably said that there is no reasonable hope for them to grow past the badness of their earlier years and end up as law-abiding citizens from whom society needs to fear nothing at all. Isn’t that what we are saying to a fourteen-year-old to whom we deny even the possibility of parole: that there is no possibility of you ever growing past the out-of-controlledness of your youth and therefore no possibility of society ever no longer needing to incarcerate you. And, if that really is the case, then why shouldn’t we just say so out loud and save you from a lifetime of hoping in vain for mercy that will never come?

Our Torah, towards the end of Deuteronomy considers the case of the rebellious son. In my own translation, the passage reads as follows: “If someone should have a violent and rebellious son who does not listen to his father’s instructions or to his mother’s, then, assuming they have attempted to discipline him and he still refuses to obey, his father and mother should seize him and bring him…to the gates of their hometown. And there shall they say to the elders of his city, ‘This son of ours is violent and rebellious, he does not listen to our instructions, and he is a glutton and a sot.’ All the inhabitants of his city shall then stone him with stones until he dies, and thus shall you eradicate evil from your midst so that all Israel hear and become chastened” (Deuteronomy 21:18-21). That sounds gruesome enough and, indeed, all those people who can’t find enough reason to hate religion and mock its teachings naturally can’t get enough of this passage. But for us, the question isn’t really what the Torah says, but what it means. And that requires considering the oral traditions that go along with a passage like this, traditions generally ignored entirely by people eager for any pretext to heap abuse on the Bible.

The most convenient place to find the laws relating to the rebellious son catalogued is in Maimonides’ Mishneh Torah. (The more precise place to find them in that encyclopedic work is in the seventh and final chapter of the section called Hilkhot Mamrim, the Laws Pertaining to the Rebellious.) And there we find the beginning of our answer regarding the proper Jewish response to the matter before the Supreme Court. For one thing, the laws pertaining to this rebellious son are so restrictive that it’s easy to understand where Rabbi Simeon was coming from when he declared that this law was never actually used to convict anyone at all and that it appears in Scripture merely to teach a profound lesson about the importance of obedience towards one’s parents. (His opinion is found in Tractate Sanhedrin on page 71a.) The son in question, for example, cannot be a minor—he must already have reached the age of commandments—but he also can’t be a full-fledged adult (because then why would the Torah reference him as a “son”?) So he must be thirteen, but not yet fully physically mature—and no boy exists in that state, so Rambam, for more than three months. On top of that, tradition declares that he must actually have stolen money from his parents and used the stolen funds to purchase meat and wine. (Not that many twelve year olds have a taste for wine, so that law represents a serious narrowing of the law’s applicability. But the Torah specifically requires that his parents condemn him as a glutton and a drunkard!) If such a precocious lad is located, then he must have eaten the meat and drunk the wine outside of his father’s house, but not by himself either. Instead, he has to have consumed the goods purchased with stolen funds in the company of hooligans and ruffians. The meat itself must be eaten raw, but not entirely raw—thus slightly cooked—and the wine must have been thinned with water before being drunk. If the meat wasn’t kosher, the law doesn’t apply. If he consumed the forbidden feast on a fast day, the law doesn’t apply. If he consumed the food at a feast connected somehow with the performance of the commandments, for example at the feast following a bris or at a wedding, the law doesn’t apply. If the value of the food is less than fifty dinarim, or if the meat alone was not worth that much, the law does not apply. If his parents forgive him, the law does not apply. Nor does the law apply in any way to daughters.

You get the picture. No wonder Rabbi Simeon wondered how anyone could ever be convicted! To be fair, a different rabbi, Rabbi Jonathan, is cited in that same passage as mentioning that he himself once visited the grave of such a boy. But, realistically speaking, how many such children could ever have been executed. My guess is none at all. Or the one whose grave Rabbi Jonathan came across and no more. The bottom line is that, despite the unimpeachable sanctity and authority of Scripture, the rabbis could not imagine that the simple meaning of the text—that inveterately rebellious children should be given up on and suitably and permanently punished—could be the whole story. They accepted the text as sacred. But, by focusing the law through the prism of their own moral consciousness, they found the courage to take the text as hyperbole intended solely to warn the faithful against taking a cavalier attitude towards the respect and obedience we owe our parents. In other words, they simply could not imagine that a boy of thirteen and a few months could possibly be so irretrievably bad that the only rational response to his poor behavior would be to end it violently and permanently by taking his life. And these were hardly people, our ancient sages, who treated the words of the Torah lightly!

I think the Supreme Court is on the right track. So were our ancient sages. Executing children is barbaric and wrong. But throwing them into prison and supposing that nothing—no amount of counseling, no amount of maturing, no amount of teaching, no amount of exposure to positive, moral role models, nothing at all—could ever help a troubled, violent boy or girl turn into the kind of adult who could live constructively and peacefully in the world, that seems to me to be as wrong an idea as anyone ever had. Would I feel differently if it was my dad who got shot in that video store? I’m sure I would. But I would be wrong. There are no children worth throwing away.