Justice Until Death: The Necessity of Swift and Good-Faithed Capital Punishment

Justin Murdock


There are two factions when it comes to the debate over capital punishment: one believes it is legitimate retribution for heinous criminal acts, while the other believes it is the epitome of archaic punishments which violate the principles of the Eighth Amendment. Capital punishment in the United States is limited to five main methods: lethal injection, electrocution, lethal gas, hanging, and firing squad. Lethal injection remains the most popular method of the death penalty. Consequently, in states that continue to employ lethal injection, cases of botched execution have long posed issues. One such example is the recent botched lethal injection of Kenneth Eugene Smith. I argue that given these instances of negligence in applications of capital punishment, more states should use newly-available alternative methods, such as nitrogen hypoxia, when administering capital punishment.


The case study of focus sparked one of the greatest, most drawn-out legal fights pertaining to capital punishment. Kenneth Eugene Smith was convicted of murder in 1989 by a jury vote of 10-2 and sentenced to death row for grotesquely killing Elizabeth Dorlene Sennett in a murder for hire. Smith appealed his case for a retrial through Kenneth Eugene Smith v. State (2000), which resulted in a jury vote of 11-1 to sentence him to life without parole. However, the judge invoked §13A-5-47(e) of the 1975 Alabama Code, which allowed him to overrule the jury’s recommendation, and sentenced Smith to death. In 2017, however, Alabama introduced a statute to abolish the ability for judges to override a jury’s decision. Nevertheless, the law was not retroactive, so when Smith appealed to the Federal Supreme Court, he was denied review.

Smith argued in the same appeal that the Alabama Department of Corrections violated his due process rights under the Fourteenth Amendment since he was not accordingly notified of a nitrogen hypoxia alternative when made available in 2018 in Alabama. Following his final unsuccessful objection to his capital sentence, Smith later had his execution administered. Smith was strapped into a gurney and not fully anesthetized, resulting in the jabs in his limbs and groin feelings “like a knife”. This execution was administered quite late, and since the death warrant restriction expired at midnight, the process had to be called off. Smith’s failed execution is just another piece in Alabama’s history of botched executions: the state also botched the executions of Alan Miller and Doyle Lee Ham, with officers sleeping on their jobs and the inmates suffering from delays and chemical burns resulting from improper injections. All these cases have been united in their application of the Eighth Amendment based on their grotesque execution.

The final court decision in Smith’s case accords with the national precedent on capital punishment but opens interesting nuances to the penal issue. The reigning District Judge R. Austin Huffaker Jr. dismissed the appeal, stating that the violations alleged against the Alabama Department of Corrections (ADOC) should not pose a constitutional issue according to the Eighth Amendment—specifically its prohibition on “cruel and unusual punishment.” Past plaintiffs such as Miller and Ham have also cited a violation according to the Eighth Amendment, showing that based on precedent, the negligence of ADOC raises the question of constitutionality of the method of capital punishment rather than the practice of capital punishment itself. Essentially, the intended punishment inherently is not deemed a constitutional violation, but the actual application raises questions into the viability of the action.

Given the facts of Smith’s case and prior cases demonstrating consistent problems of negligence and inefficiency, this article brings two claims about the motive behind capital punishment and the future regarding lethal injection practices. To clarify, this article is not intended to discuss the merits of the death penalty as a whole. This concept has been disputed many times in court, often siding with its federal legality, so arguing against it in this piece would be futile. Instead, this article breaks apart specific kinds of capital punishment. In particular, the death penalty should be administered both swiftly and in good faith. If the accessory pain associated with the method of capital punishment goes beyond and impairs the ability to administer a swift execution, it could rise to cruel and unusual punishment. Since lethal injections are prone to failures that can lead to violations of the Eighth Amendment, courts should instead open viable, convenient alternatives such as exploring the safer nitrogen hypoxia execution method to accomplish the motives of the death penalty.

Legal Bases

Two parts of two amendments are fundamental to determining the legality of the punishments Smith, and others like him, suffered: the Eighth Amendment’s prohibition on “cruel and unusual punishment” and the Fourteenth Amendment’s prohibition on the abridgement of “due process.” Especially when alternatives are available but not fully delineated to the defendant, like Smith, the Fourteenth Amendment is crucial in piecing together the defendant’s rights against government punishment. If the purpose of these amendments is to protect minorities and the vulnerable by ensuring equal rights for all, any mishandled implementation of this measure could be viewed as the government exceeding its due authority to administer fair punishment. Therefore, this shows that the administration of botched lethal injection procedures, at least by the ADOC, should search for viable alternatives to avoid remaining within the bounds of the Eighth and Fourteenth Amendments.

While justices have typically sided with the government in capital punishment cases, key insights have nevertheless been shed about the merits of certain procedures, such as Smith’s botched lethal injection. For instance, in a 7-2 decision in Baze v. Rees (2008), the Supreme Court addressed the constitutionality of a four-drug lethal injection. While the Court concluded that the lethal injection as a concept did not violate the Eighth Amendment, members of the Court suggested that if states consistently utilize methods without sufficient justification compared with better alternatives, that may amount to cruel and unusual punishment. Additionally, Bucklew v. Precythe (2018), decided 5-4, involved an appeal in which Bucklew argued that his pre-existing medical condition of blood-filled tumors subjected him to excessive pain when receiving a lethal injection, culminating in “cruel and unusual punishment.” Again, the Court did not find the death penalty to amount to an unconstitutional punishment. However, Justice Gorsuch’s remarks do hint at this article’s claims of swift and good-faithed execution practices. Saying that the punishment should not provide “superadd[ed] . . . terror, pain, or disgrace,” he wrote that the death penalty should ideally be quick, but is not guaranteed to be entirely pleasant or easy. While there will undoubtedly be some degree of pain associated with the highest level of punishment there is in the country, inmates do still have rights that are supposed to prevent the administration of that punishment from being unnecessarily painful. ADOC’s negligence, however, caused it to infringe upon these rights.


Given the history of repeated botches and potential alternatives, insights from concurring and dissenting opinions should be kept in mind when witnessing this persistent negligence in capital punishment. If developments in nitrogen hypoxia make it a reasonable alternative, like in Alabama in 2018, defendants should be informed of such rights. Even if this novel practice has just surfaced in the realm of capital punishment, it should still be explicitly available if the state deems it to be safe. Even if nitrogen hypoxia is not safe according to other states’ laws, it is still abundantly clear that the ADOC failed its procedure and demonstrated incapability in administering lethal injection. If states still stalwart this process and refuse to provide viable alternatives, as even Supreme Court justices have opined, states will unfortunately continue to find themselves in a flurry of contested Eighth and Fourteenth Amendment violations.

The Economic Impact of Prison Labor for Incarcerated Individuals and Taxpayers

Sarah Payne

  1. Introduction

            The United States’ prison population is currently the second highest globally, falling closely behind China at just over 1.5 million individuals incarcerated.[1] This means the United States accounts for approximately 25% of the world’s prison population, despite accounting for just 5% of the world’s population overall.[2] Furthermore, the average cost of incarceration in the United States of America sits at approximately $80 billion per year for the taxpayer,[3] while corporations within the private prison industry are estimated to bring in an estimated $374 million annually.[4] Given the disproportionate number of incarcerated individuals in the United States of America, the private prison industry is opportunely positioned to make a profit from cheap prison labor. The labor, however, is exploitative not only to incarcerated individuals, but also to taxpayers. At play within this legal situation is the profit of corporations complicit in the prison industry, the well-being of incarcerated individuals, and the financial implications for the taxpayer. This paper offers an alternative approach to the carceral system that deprioritizes corporate profit margins to better prioritize the incarcerated community and taxpayers.

  1. History and Previous Cases

While the Thirteenth Amendment outlawed slavery in United States, it did not eliminate the possibility of slavery does persist as a form of punishment for convicted criminals.[5][1]  Thus, despite the Thirteenth Amendment, slavery has since remained in the United States of America, in a roundabout fashion. Not only does the Thirteenth Amendment enable prison labor, but the Fair Labor Standards Act (FLSA) also enables prison labor through its definitions of ‘employees’ and ‘employers.’

In 1996, during Burleson v. the State of California, prison inmates attempted to receive federal minimum wage back-pay for work that took place within a California prison. At the conclusion of this case, the inmates did not receive the minimum wage compensation they sought, as they were not technically employees of the state according to the FLSA.[6] To fall under the definition of “employee,” individuals must pass the economic reality test, a legal test designed to determine the status of someone’s employee-employer relationship. More specifically, an employee, under the definition of the economic reality test, is someone who      “follows the usual path of an employee and is dependent upon the business which he or she serves.”[7] Because this prison labor is penological rather than pecuniary, these incarcerated individuals did not pass the economic reality test.[8] 

In 1992, incarcerated individuals in an Arizona state prison also sought to recover minimum wages from a plasma treatment center, which held a contract with the State Department of Corrections. The inmates failed to receive minimum wage retribution as the court this time held that neither the plasma treatment center nor the Department of Corrections fell within the Fair Labor and Standards Act’s  definition of an ‘employer,’ which is defined as, “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency but does not include any labor organization or anyone acting in the capacity of officer or agent of such labor organization.”[9]

  1. Understanding the Economic Implications

The nature of prison labor varies from institution to institution. For example, the California Penal Code requires, “of every able-bodied prisoner imprisoned in any state prison [to perform] as many hours of faithful labor in each day and every day during his or her term of imprisonment as shall be prescribed by the rules and regulations of the Director of Corrections.”[10] One firsthand account from a women’s prison details an eight-hour day participating in manual labor outside, without ample water sources or sunscreen.[11] Another formerly incarcerated individual, Dominique Morgan, recounts his experience working as a chef while incarcerated. His workday would start at 4 am during breakfast hour, and he would work through dinner time at his facility. He made $2.25 per day and did not receive sick days, despite being diagnosed with HIV.[12]

While subject to prison labor, incarcerated individuals within private prisons who do happen to receive pay are also subject to fees deductible from their wages. These fees include, but are not limited to, fees for room and board and other miscellaneous fees to offset the cost of incarceration. What is remarkable, however, is the fact that these fees are not a substitute for the federal funding these prisons receive. Rather, the private prisons can collect these fees in conjunction with federal funding from taxpayers.[13] These institutions are not only exploiting incarcerated individuals as laborers; they are also pocketing money from taxpayers. This double-dipping of resources ultimately creates a profit for the private prison industry at the expense of citizens and incarcerated individuals.

            In addition to these circumstances, private companies are also encouraged to utilize incarcerated individuals as laborers via tax credit.[14] The Work Opportunity Tax Credit (WOTC) is a tax credit for employers for hiring individuals of certain demographics, such as veterans, summer youth employees, and long-term unemployment recipients; also included within the WOTC are felons.[15] Thus, this legislation not only allows corporations to exploit incarcerated individuals with little to no wages but also incentivizes the usage of prison labor by providing tax credits to companies for using such labor. Yet again, this double-dipping of resources further increases profit margins for private prisons and corporations at the expense of exploited workers and taxpayers.

            Given these two presented methods of financial profit, it is evident the exploitation of incarcerated individuals not only impacts these workers directly, but it also displaces taxpayer dollars into the hands of corporations through subtle schemes. While the exploitation of the incarcerated workers here is rather blatant, the negative impacts on the taxpayer are much more subtle[2] . Private prisons, as previously mentioned, are able to receive federal funding, which ultimately is derived from taxes. It is possible that this federal funding may be derived from the creation of new dollars within the United States; however, this production and distribution of money would still create the unintended consequence of inflation for the average citizen. Regardless, the structure of the private prison system demands a constantly laboring incarcerated population, which cannot exist without the financial support of facilities. Private companies utilizing prison labor benefit from WOTC, cheap labor, and federal funding. Incarcerated individuals within this system continuously labor; they do not receive the chance to rehabilitate or receive education, processes that are later illustrated in this paper as crucial to reducing recidivism[3] . Thus, the legal structures surrounding prison labor not only allow the demand for prison labor but also perpetuate recidivism. The taxpayer, within this system, is left indirectly funding this cycle of exploitation by nature of the prisons receiving federal funding.

  1. Legal Argument

            To address the economic concerns of the situation at hand, a three-pronged approach is presented. First, this approach uses different definitions of “employee” and “employer” than the FLSA to ensure the fair pay and treatment of working incarcerated individuals. Second, the approach disincentivizes the double-dipping behavior of corporations to partially alleviate the financial burden the current carceral system places on taxpayers. Lastly, the approach calls for the replacing of prison labor with educational opportunities that will subsequently reduce the rate of recidivism and thereby further alleviate the cost of incarceration placed upon taxpayers. 

  1. Definitions

            Redefining “employee” and “employer” to comprehensively include incarcerated individuals working for corporations while in federal and private prisons is the most direct approach to addressing the economic implications of cheap prison labor. Currently, the Fair Labor Standards Act encompasses niche demographics such as child laborers, agricultural workers, service members, and politicians;[16] however, it fails to directly encompass the demographic of incarcerated individuals. This exclusion of the prison population in the Fair Labor Standards Act is detrimental to the well-being of incarcerated individuals and taxpayers, as it facilitates the exploitation of those incarcerated. Without this comprehensive redefinition of employee and employer, there remains an incentive for mass incarceration for corporations, lobbyists, and politicians.[17] The burden upon the taxpayer is an unintended consequence of this incentivized mass incarceration, as the carceral system, from the court system to county jails to state penitentiaries, is ultimately funded by taxes. Enforcing a minimum wage by defining prisoners as employees will lessen the appeal of prison labor for corporations as a profit-increasing tactic. This, in turn, will subsequently lessen the annual cost of incarceration that falls upon the taxpayer.

  1. Disincentivizing Double-Dipping of Resources for Corporations to Better Prioritize a Reduction in Recidivism and Taxpayer Alleviation

            It is also necessary to eliminate the ability of corporations to receive a tax credit for utilizing prison labor under the Work Opportunity Tax Credit legislation. The incentivization of this labor use 1) perpetuates the economic demand for constant availability of a prison workforce, funded by taxpayers, 2) comes at the cost of taxpayers, and 3) disincentivizes providing rehabilitation programs for incarcerated individuals before reentry into American society. These education programs may have otherwise replaced the time demand of prison labor, and research suggests they reduce recidivism.[18] For example, one study proactive prison education significantly reduces the long-term costs of recidivism.[19] The reinforcement of the financial benefits to corporations via prison labor not only constantly demands the presence of a prison population, but it also is directly funded by taxpayers via the WOTC. Furthermore, in a long-term model, using the prison population as laborers inhibits any sense of rehabilitation for said individuals.

Limiting a private prison’s ability to charge incarcerated individuals fees for expenses taxpayers already pay for has the potential to limit the profit margins that make prison labor preferable for corporations. Furthermore, if incarcerated workers are genuinely presented with the opportunity to establish savings, their ability to establish themselves upon reentry into society may increase. This will, in turn, reduce the likelihood of poverty-related crimes that contribute to recidivism. Research suggests there is a strong correlation between poverty and incarceration. One study illustrates how men in the bottom ten percent of the United States’ income distribution are twenty times more likely to be incarcerated between the age of thirty and forty than those in the top decile.[20] Perhaps a more concerning revelation within this research, however, is the fact that within one year of release from prison, fewer than 20% of formerly incarcerated individuals earn more than $15,000.[21] As a result, formerly incarcerated individuals are extremely at risk of poverty-related recidivism immediately following their reintegration into society. Overall, without the ability to receive both rehabilitative education and accrue savings, research suggests rates of recidivism starkly increase, posing another long-term financial burden upon the taxpayer yet again.

  1. Education

            Research illustrates that recidivism decreases as education increases, and among prison populations, those with no GED are the most likely to become incarcerated more than once.[22] Furthermore, 19% of adult inmates are completely illiterate and 40% are functionally illiterate.[23] Prioritizing literacy and a GED education for incarcerated individuals will better rehabilitate them for the demands of society upon reentry and better situate them to later secure jobs. Together, these improvements will help lower rates of recidivism. A study by RAND suggests that for every $1 spent on prison education, $4-5 of recidivism costs are saved in the initial three years after release from prison.[24] Currently, there is a grant program established to facilitate education methods in the carceral system.[25] Refining this grant program to prioritize the most at-risk demographics in the carceral system, those who are illiterate and without a GED, can decrease the population of the carceral system in future years. This refinement is a long-term investment that requires incarcerated individuals to forego labor[4] , but research does offer optimistic results.

  1. Pros and Cons

            The most immediate threat these law reforms pose is one to the profit margins of corporations. As these profit margins decrease, there is a possibility that this prison labor is simply outsourced to other countries by corporations for a similarly low price. Thus, labor exploitation would simply shift from the exploitation of the United States’ incarcerated population to the exploitation of foreign workers. While this outcome is not necessarily desirable, the burden placed upon the taxpayer would remain relieved. Additionally, the timeframe of the legislative changes is also a possible pitfall. Although the long-term results are worthwhile, restructuring labor within the carceral system is sure to take years. Furthermore, implementing the proposed educational reforms to reduce rates of recidivism will also take years and come with an initial price tag. However, lower rates of crime after reentry into society and reduced prison populations associated with a decline in recidivism will later offset these initial investments.

  1. Conclusion

            Given the financial appeals of prison labor, it is no surprise corporations have taken full advantage of this possible asset. However, the multimillion-dollar annual profit of the prison industry comes at the cost of the exploitation of incarcerated individuals and taxpayers. Redefining incarcerated individuals as employees in an employee-employer relationship, disincentivizing prison labor for corporations, and prioritizing education within the carceral system can address these concerns. While incarcerated individuals are often referred to as forgotten members of society, their incarceration and exploitation continue to have an impact upon all of society.


29 U.S.C.A. § 203, 29 USCA § 203 29 U.S.C.A. § 203 (West) § (2018).

34 U.S.C.A. § 10741, 34 USCA § 10741 34 U.S.C.A. § 10741 (West) § (2018).

Burleson v. State of California, 83 F.3d 311 (9th Cir. 1996).

Center on Crime. “Education as Crime Prevention: Providing Education to Prisoners.” The Center on Crime, Communities, and Culture Research Brief Occasional Paper Series No. 2 (September 2, 1997).

“Employment Relationship Under the Fair Labor Standards Act.” United States Department of Labor. Wage and Hour Division United States Department of Labor, March 2022. https://www.dol.gov/agencies/whd/fact-sheets/13-flsa-employment-relationship#:~:text=An%20employment%20relationship%20under%20the,be%20subject%20to%20the%20Act.

Gilbreath v. Cutter Biological, Inc. 931 F.2d 1320 (9th Cir. 1991).

Hammad, Neveen. “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities.” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

Hendricks, Cindy, James E. Hendricks, and Susie Kauffman. “Literacy, Criminal Activity, and Recidivism ,” n.d.

Looney, Adam, and Nicholas Turner. “Work and Opportunity Before and After Incarceration.” Economic Studies at Brookings, March 2018.

McCormack, Simon. “Prison Labor Booms Despite High Unemployment.” HuffPost, December 10, 2012. https://www.huffpost.com/entry/prison-labor_n_2272036.

“Prison Population Total.” Prison Studies. World Prison Brief. Accessed December 8, 2022. https://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All.

“Public Policy Impacts of Rand’s Correctional Education Research.” RAND. RAND Social and Economic Well-Being, n.d. https://www.rand.org/well-being/justice-policy/portfolios/correctional-education/policy-impact.html.

Rafieyan, Darius, and Cardiff Garcia. “The Uncounted Workforce.” Episode. The Indicator From Planet Money. National Public Radio, June 29, 2020. https://www.npr.org/2020/06/29/884989263/the-uncounted-workforce.

Sloan, Bob, and Mike Elk. “The Hidden History of Alec and Prison Labor.” The Nation. The Nation, June 29, 2015. https://www.thenation.com/article/archive/hidden-history-alec-and-prison-labor/.

U.S.C.A. Const. Amend. XIII, § 1, USCA CONST Amend. XIII, § 1

Wagner, Peter, and Bernadette Rabuy. “Following the Money of Mass Incarceration.” Prison Policy. Prison Policy Initiative, January 25, 2017. https://www.prisonpolicy.org/reports/money.html.

West’s Ann. Cal. Penal Code § 2700, CA PENAL § 2700 Cal. Penal Code § 2700 (West) § (n.d.).

“Work Opportunity Tax Credit.” Internal Revenue Service. Internal Revenue Service. Accessed December 8, 2022. https://www.irs.gov/businesses/small-businesses-self-employed/work-opportunity-tax-credit.

[1] “Prison Population Total,” Prison Studies (World Prison Brief), accessed December 8, 2022, https://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All.

[2] Neveen Hammad, “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities,” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

[3] Neveen Hammad, “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities,” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

[4] Peter Wagner and Bernadette Rabuy, “Following the Money of Mass Incarceration,” Prison Policy (Prison Policy Initiative, January 25, 2017), https://www.prisonpolicy.org/reports/money.html.

[5] U.S.C.A. Const. Amend. XIII, § 1, USCA CONST Amend. XIII, § 1

[6] Burleson v. State of California, 83 F.3d 311 (9th Cir. 1996).

[7] “Employment Relationship Under the Fair Labor Standards Act,” United States Department of Labor (Wage and Hour Division United States Department of Labor, March 2022), https://www.dol.gov/agencies/whd/fact-sheets/13-flsa-employment-relationship#:~:text=An%20employment%20relationship%20under%20the,be%20subject%20to%20the%20Act.

[8] Burleson v. State of California, 83 F.3d 311 (9th Cir. 1996).

[9] Gilbreath v. Cutter Biological, Inc. 931 F.2d 1320 (9th Cir. 1991).

[10] West’s Ann. Cal. Penal Code § 2700, CA PENAL § 2700.

[11] Simon McCormack, “Prison Labor Booms Despite High Unemployment” (HuffPost, December 10, 2012), https://www.huffpost.com/entry/prison-labor_n_2272036.

[12] “The Uncounted Workforce,” The Indicator From Planet Money (National Public Radio, June 29, 2020), https://www.npr.org/2020/06/29/884989263/the-uncounted-workforce.

[13] Neveen Hammad, “Shackled to Economic Appeal: How Prison Labor Facilitates Modern Slavery While Perpetuating Poverty in Black Communities,” Virginia Journal of Social Policy and the Law, no. Summer 2019 (2019).

[14] “Work Opportunity Tax Credit,” Internal Revenue Service (Internal Revenue Service), accessed December 8, 2022, https://www.irs.gov/businesses/small-businesses-self-employed/work-opportunity-tax-credit.

[15] “Work Opportunity Tax Credit,” Internal Revenue Service (Internal Revenue Service), accessed December 8, 2022, https://www.irs.gov/businesses/small-businesses-self-employed/work-opportunity-tax-credit.

[16] 29 U.S.C.A. § 203, 29 USCA § 203 29 U.S.C.A. § 203 (West) § (2018).

[17] Bob Sloan and Mike Elk, “The Hidden History of Alec and Prison Labor,” The Nation (The Nation, June 29, 2015), https://www.thenation.com/article/archive/hidden-history-alec-and-prison-labor/.

[18] Center on Crime, “Education as Crime Prevention: Providing Education to Prisoners,” The Center on Crime, Communities, and Culture Research Brief Occasional Paper Series No. 2 (September 2, 1997).

[19] “Public Policy Impacts of Rand’s Correctional Education Research,” RAND (RAND Social and Economic Well-Being), https://www.rand.org/well-being/justice-policy/portfolios/correctional-education/policy-impact.html.

[20] Adam Looney and Nicholas Turner, “Work and Opportunity Before and After Incarceration,” Economic Studies at Brookings, March 2018.

[21] Adam Looney and Nicholas Turner, “Work and Opportunity Before and After Incarceration,” Economic Studies at Brookings, March 2018.

[22] Cindy Hendricks, James E. Hendricks, and Susie Kauffman, “Literacy, Criminal Activity, and Recidivism.”

[23] Center on Crime, “Education as Crime Prevention: Providing Education to Prisoners,” The Center on Crime, Communities, and Culture Research Brief Occasional Paper Series No. 2 (September 2, 1997).

[24] “Public Policy Impacts of Rand’s Correctional Education Research,” RAND (RAND Social and Economic Well-Being), https://www.rand.org/well-being/justice-policy/portfolios/correctional-education/policy-impact.html.

[25] 34 U.S.C.A. § 10741, 34 USCA § 10741 34 U.S.C.A. § 10741 (West) § (2018).

The U.S. Criminal Justice System Needs to Start Treating Children Like Children

by Bianca Ortiz-Miskimen

On any given day, tens of thousands of incarcerated children are forced to eat, sleep, and learn in juvenile detention centers and adult prisons across the United States. 

News stories of children being charged for harmless behaviors have become increasingly publicized, with examples ranging from not completing homework and participating in cafeteria food fights to stealing 25-cent candy. While there are child offenders who commit more serious crimes, they all deserve fair trials and sentences that take into account their young age.  

Research from Stanford University shows that children have difficulty understanding the long-term consequences of their decisions and lack cognitive control during emotional situations. Experts also link moral conscience to the prefrontal cortex, which does not fully develop until adulthood and is often delayed in children who experience trauma as a result of being victimized early in life.

When a child is charged with a crime, a court will decide whether they will be tried as a child or an adult based largely on the severity of the crime. Those with less serious offenses are treated as children and have their cases heard by juvenile judges that have the power to remand them to a juvenile detention center while those treated as adults may be remanded to an adult prison with protective custody.

Meanwhile, parents of child offenders are forced to foot the bill for nightly housing in juvenile detention centers. Laws requiring these parental payments were meant to avoid burdening taxpayers and to encourage parents to keep their children out of trouble. However, the reality is that most of these parents are low-income and incapable of paying. Although some states have decided to end this practice, laws about charging parents are highly decentralized and can vary from county to county, creating large disparities.

To combat the stress of incarceration on young children and their parents, both New York and New Jersey have recently passed legislation to raise the age at which children may be tried in court as adults. However, the fact remains that in 22 states, there are no minimum age requirements for transferring a child into adult criminal courts, meaning that a child of any age in those states could end up in an adult prison for the rest of their life.

The U.S. Supreme Court has acknowledged the issue of excessive sentencing for child offenders in landmark cases Roper v. Simmons (2005) and Graham v. Florida (2009), in which the Court reversed decisions to impose the death penalty on a juvenile offender and to sentence a minor to life without parole for a non-homicidal offense, respectively. The Supreme Court opinions to reverse these prior holdings were made on the grounds that the childrens’ original sentences violated the U.S. Constitution’s Eighth Amendment prohibition on “cruel and unusual punishment.”

Rights for juvenile offenders were expanded further by the Supreme Court in Miller v. Alabama (2012) and Montgomery v. Louisiana (2016). In Miller v. Alabama, Miller appealed his sentence of life in prison without parole for a homicidal offense on the grounds that punishing a 14-year-old for the rest of his life was cruel and unusual. In a 5-4 decision, the Supreme Court reversed his sentence, with the majority opinion concluding that life without parole is a disproportionate punishment for a juvenile, thus affirming that sentencing for child offenders must be treated as constitutionally different from adult offenders.

This decision was reaffirmed in Montgomery v. Louisiana, in which Miller v. Alabama was used as precedent to assert that sentencing schemes that impose mandatory life sentences onto juvenile offenders are unconstitutional. The Court held a 6-3 decision in favor of Montgomery, stating that the Miller decision applied retroactively to Montgomery’s case. 

In the majority opinion, Justice Kennedy wrote, “In light of what this Court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, […] prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.”

Montgomery, who is 73 years old but was just 17 years old at the time of his crime, is now eligible to be considered for parole. His case has also opened the door for other cases of child offender sentencing decisions to be re-evaluated based on this new standard. Thus far, Montgomery v. Louisiana has allowed more than 500 offenders to be released on parole. 

However, the Supreme Court ought to recognize the capacity for rehabilitation of child offenders beyond the scope of life sentences. Even short stays in juvenile centers can have a profound negative impact on children due to harsh living conditions. For example, two juvenile correctional facilities in Wisconsin were recently hit with a class-action lawsuit in J.J. v. Litscher (2017) for keeping children in solitary confinement, spraying them with mace, and denying them therapeutic programs. 

Confinement in juvenile centers has become particularly harmful during the COVID-19 pandemic, which has caused centers to cut visits from families and friends to prevent the spread of the virus, leaving thousands of incarcerated young people feeling extremely isolated.

Despite clear issues, some have argued that punishing minors will serve a positive long-term function by teaching children at a young age that their actions have consequences. The problem is that not all children are subject to the same punishments. 

While white children make up the largest share of juvenile detainees in 45 of 50 states in the U.S. as of 2019, children of color — particularly African American children — are disproportionately represented in juvenile detention centers and are referred to juvenile courts at a higher rate than their white peers. This can be attributed to a number of factors, the most troubling of which include racial bias from judges and prosecutors.

In 2018, the Senate reauthorized the Juvenile Justice and Delinquency Protection Act to update national standards on the judicial treatment of minors. The bill, introduced by Senators Chuck Grassley (R-IO) and Sheldon Whitehouse (D-RI) aims to create restrictions on locking children up for statute offenses (eg. skipping school or running away from home), reduce racial disparities in the juvenile justice system, and support alternatives to incarceration for nonviolent offenders. Proposed alternatives include behavior management programs, problem-solving courts, street and home-based services, and drug abuse prevention and education services.

Experts in the fields of psychology and constitutional law have made steps towards affirming that children are not as capable as adults of understanding the consequences of their actions. Now, federal, state, and local laws must reflect this truth and discontinue practices that are overly punitive and insufficiently rehabilitative towards child offenders who cannot yet fully appreciate the weight of their transgressions.