Justice Thomas Calls Out Liberals for Distinguishing Incarceration from Pregnancy

Posted in: Criminal Law

In Jones v. Mississippi, the U.S. Supreme Court delivered a complicated holding that effectively cuts back on earlier complicated holdings in Miller v. Alabama and Montgomery v. Louisiana. The first of the earlier cases held that defendants who committed homicide as juveniles could not be subject to a mandatory sentence of life imprisonment without the possibility of parole (“LWOP”) and that only the rarest of juveniles would deserve such a sentence. The second held that the first applied retroactively on habeas corpus. In Jones, the petitioner asked the Court to say that in sentencing a juvenile offender (meaning an individual who committed the crime of conviction while under the age of 18), the sentencer had to demonstrate that it had considered whether the offender was in fact incorrigible. The Court, made up of several new Justices who might not have joined the decisions in Miller and Montgomery, rejected the petitioner’s claim.

In the course of broadening the category of youthful offenders subject to LWOP, the Court inspired some dissents that shared the views of the petitioner. The dissenting position was that if a person is under the age of 18, then we ought to recognize that he (because let’s face it, it is almost always a “he”) is not finished developing and might become a better person later, one who would never do what his youthful self did. Justice Thomas apparently found such talk triggering, and he pointed out an inconsistency he observed between how liberals talk about minors seeking an abortion and how liberals talk about minors committing homicide. Here is his gripe, in a footnote:

The Court’s language in this line of precedents is notable. When addressing juvenile murderers, this Court has stated that “’children are different’” and that courts must consider “a child’s lesser culpability.” [citation omitted] And yet, when assessing the Court-created right of an individual of the same age to seek an abortion, Members of this Court take pains to emphasize a ‘young woman’s right to choose.” [citations omitted] It is curious how the Court’s view of the maturity of minors ebbs and flows depending on the issue.

This observation strikes me as worthy of some analysis, quite apart from the Court’s decision in Jones v. Mississippi.

The Inconsistency

Justice Thomas observes in his footnote that when liberals (a shorthand for those opposing LWOP for juveniles) speak of the offenders they wish to spare the harshest sentence, liberals refer to “children,” a word that brings to mind a vulnerable and helpless kid who cannot be expected to conform his conduct to the dictates of the criminal law. A child should not have to spend the rest of his life in prison no matter how he might change as he develops into an adult. Who, after all, would want to send a “child” away to the penitentiary for 60, 70, or 80 years until the latter dies? That is, according to Justice Thomas, at least, the likely agenda behind use of the word “child” in characterizing a person convicted of murder and sentenced to LWOP without an express consideration of incorrigibility.

Justice Thomas points out, by contrast, that the same liberals who throw the word “child” around when a convicted murderer is at issue suddenly speak of a “woman” when a pregnant person under the age of 18 is involved and seeks to have an abortion. Such people seeking to terminate their pregnancies are “women” rather than “girls” or just “children.” If we thought of underage pregnant people as children, then we might be more inclined to delegate to an adult (like a parent, for instance) the power to make the decision whether or not the child ought to have an abortion.

In all fairness, Justice Thomas has a point here. Whether we refer to a person as a child or as an adult should not turn on whether we sympathize with what the person is seeking. Whether we are pro-life or pro-choice, we should refer to a minor who seeks an abortion in the same way because the minor is the same person. And whether we favor LWOP for minors or oppose it, we should refer to the person in question in the same way because, once again, the minor is the same person. Likewise, as Justice Thomas proposes, the same word perhaps ought to reference the defendant opposing LWOP and the person of the same age seeking an abortion. They are both children or they are both adults. Justice Thomas thus picks up on a real phenomenon in which two people looking at the same situation might see very different things, depending on their perspective, and many of us fail to empathize with people in circumstance A though we do empathize with similar people in circumstance B.

A Response

Notwithstanding my willingness to acknowledge the validity of the point that Justice Thomas makes, I do think one can distinguish between the two situations at issue in a way that makes the use of distinct terms legible as something other than hypocrisy. Consider the two minors at issue: a young person who commits a murder and a young person who becomes pregnant and wishes to terminate the pregnancy. Both of the people are minors, and we would accordingly extend some leeway to both of them if they were to make a bad decision, the sort of decision that would disqualify a similarly situated adult from being part of society. At the same time, we might deny to a minor the option of making the kind of decision that adults get to make all of the time.

The reason we do both of these things is that the brain of a person under the age of 25 has not fully developed yet, and the part of the brain that engages in impulse control in particular has yet to mature. Like people experiencing a diminished capacity due to illness, a minor is less responsible than a competent adult for the same behavior. We would view a thirteen-year-old who shoplifts a little differently from a forty-year-old who shoplifts. And because of this diminished capacity that minors have, we also take away some of the options that an adult might have, such as the option to stop attending school.

Speaking of juvenile offenders as “children,” then, is a way of emphasizing that they are not as capable of being responsible for their actions as adults and therefore should receive lighter sentences than adults as well. Advocates of juvenile leniency hope that if we can remember how incapacitated a person is simply in virtue of being under 18 (and really, under 25), then our conscience might rebel against the notion of locking up a juvenile offender for the rest of his natural life. Unlike an adult, a juvenile offender may be acting in an anti-social way because of his (transient) youth and not because of his (fixed) character. If so, wouldn’t it be a waste of humanity to incarcerate him without even being able to examine whether he has changed into a pro-social individual who could contribute to society or, at least, who might live and let live.

The goal with respect to teen pregnancy is quite different, for those who are pro-choice. We are no longer talking about a bad decision that we will punish less severely because of the offender’s age. We can probably all (or most) agree that the pregnant teenager has made at least one bad decision, and we can (hopefully) agree that the government has no business punishing the pregnant teen for the bad decision.

If we regard the teen as a “child,” then we might be tempted to take away the choice of whether to carry the pregnancy to term, on the theory that children do not get the freedom to make the same choices as adults do. Perhaps someone else should decide whether the “child” may have an abortion, with possibilities including the child’s parents and the father of the pregnancy. Pro-life advocates (like Justice Thomas) might take this approach and favor laws that move important choices like this away from a “child” who cannot bring to bear the capacities that an adult has for wise decision-making.

If I am correct about Justice Thomas (and I am, at least pending the gutting of Roe v. Wade), then he is guilty of the hypocrisy of which he accuses his ideological adversaries. He would be happy to call a pregnant minor a “child” as a way of depriving the person of the right to terminate a pregnancy, but he would be equally happy to call a juvenile offender an “adult” as a way of denying the person the possibility of parole at some point when he can demonstrate that he is no longer the violent teen that took another person’s life.

Liberals, on the other hand, are not hypocrites in this regard. They are not trying to steer attention away from a teen’s immaturity when they refer to a pregnant “woman” rather than to a pregnant child. They acknowledge that the minor is a child, but for purposes of deciding whether to carry a pregnancy to term, that minor would be bearing a burden that only adults should be bearing. This is at least one of the reasons why many parents would prefer that their children delay having sex as long as possible and why, in addition to urging abstinence (as the most religious parents do), many parents also ask their children to use contraception in the event that they do have sex as “children.” All of these lessons (which are perhaps honored in the breach) reflect the view that children are too young to have sex responsibly. That is the mindset that liberals also bring to the juvenile offender issue.

Once a teen is pregnant, however, we are no longer in a world in which there is one choice that only an adult should make and one choice that a child should make. Whether a person remains pregnant and gives birth or instead has an abortion, an important and adult decision has been made. Imagine what things would look like if we allowed parents to decide what should happen over their child’s veto. Some parents would want the child to have an abortion for any number of reasons, but the child might not want an abortion. Would Justice Thomas want the parents to force an abortion on their child? I think (hope) not. Likewise, if the parents wanted their child to take the pregnancy to term and the child preferred to terminate, would it be appropriate to force a child to remain pregnant and give birth against her will? No, it would not.

Forcing the child to remain pregnant would represent an enormous intrusion on bodily integrity (as would a forced abortion, though the pregnancy would arguably be worse), one that would drain the child of vital nutrients because the embryo and fetus (via the placenta) grab what they need even if the pregnant teen needs it too. Calling a pregnant teen an “adult” thus works to highlight the enormous intrusion and burden that interference with the teen’s choice would represent. The teen is, then, like an adult for purposes of this decision because no one should be able to force the choice on anyone else, even (and perhaps especially not) on a child.

Saying “no” to a teen seeking an abortion is, accordingly, quite different from saying no to a teen seeking a nose ring or a fancy car. Saying “no” to abortion inflicts months of unwanted internal occupation and discomfort followed by pain so notorious that the Bible calls it a curse on the descendants of Eve for disobeying God and eating from the Tree of Knowledge of good and evil.

How Abortion is Different From Incarceration

Justice Thomas’s juvenile offender is both similar to and different from the juvenile pregnant individual. The juvenile offender is responsible for his choices and may spend a lifetime in prison for those choices. But because his brain is not fully formed, his advocates ask for the possibility of parole, once he has served years of time and may be very different from what he was as a violent teenager.

The pregnant teen is also operating with a brain that has not fully developed, a reality that may (or may not) help explain the unwanted pregnancy. But pregnancy is as much or more of a burden on a teenager as/than it is on an adult, and if it is unwanted, then the parasitic relationship of a fetus on a pregnant individual is no better for a teen than it is for an adult. Likewise, a forced abortion is as violent for a teen as it would be for an adult.

Calling the pregnant teen a child could mislead the reader into thinking that parents should be able to force the child into reproductive service. It is to avoid that error—and not to bestow rights that should be limited to adults—that the phrase “pregnant woman” appears in the juvenile pregnancy cases.

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