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SCOTUS Tackles the Impact of Three Strikes Law on Child Offenders

Oct. 18, 2021, 8:01 AM

Too little attention has been paid to the most vulnerable casualties of mass incarceration in America—our children.

In the late 1980s states began passing laws making it easier to transfer children into the adult criminal legal system, which exposed them to the same harsh mandatory minimum sentences and mandatory sentencing enhancements as adults. This practice eventually caught the attention of our nation’s highest court when defense attorneys began challenging extreme punishments like the death penalty and life without parole sentences for youth.

Between 2005 and 2016, the U.S. Supreme Court issued rulings that found the imposition of such sentences on children to be a violation of the Eighth Amendment’s ban on cruel and unusual punishments. These decisions have been rightly heralded as watershed moments for the advancement of children’s rights in the U.S.

Few people realize, however, that because every state in the nation and the federal government allow children to be tried as adults, every single criminal case the Supreme Court takes up necessarily implicates children’s rights.

Complexities of the ‘Different Occasions’ Standard

On Oct. 4, the court heard oral argument in Wooden v. United States, a case addressing the mandatory sentencing enhancement provisions of the Armed Career Criminal Act (ACCA), more colloquially known as a “three strikes law.”

At issue in Wooden is the test used to determine whether previously committed offenses satisfy the statute’s “different occasions” standard. Wooden argued that the Sixth Circuit’s holding that multiple convictions arising from a single criminal opportunity satisfy the standard, is overly expansive and violates the plain meaning of the statute.

In his case, prosecutors stacked multiple charges of burglary against him when he broke into a building that housed multiple storage units. Each unit he burglarized, prosecutors claim, counted as a separate crime under the statute. In other words, there is no attenuation in time needed between one crime and the next in order to be deemed a “career criminal” under the statute.

At oral argument, a few justices seemed sympathetic to Wooden’s argument, with Justice Neil Gorsuch suggesting at one point that the rule of lenity might be implicated as there was ambiguity as to what exactly Congress meant by crimes being committed on “occasions different from one another.” The hypotheticals proffered by the justices illustrated the complexity for the court in crafting a workable test that would result in consistent outcomes.

Wooden argued for a qualitative assessment that looked at all of the surrounding circumstances to determine if a “clean break” in the criminal episode had taken place whereby the intervening time between multiple criminal acts was but one consideration.

The government, on the other hand, argued that the “different occasions” element was satisfied so long as it showed an attenuation in time—however slight—between the elements of each offense.

The government’s position is particularly concerning for child defendants. A string of hypotheticals by Justice Samuel Alito and Chief Justice John Roberts brought to mind the Houston-Sconiers case from the state of Washington that we mentioned in our amicus brief.

In that case, two teenage boys spent Halloween night robbing other children of their candy. While no one was hurt during the criminal episode, prosecutors charged the boys with, among other crimes, seven counts of robbery with nine firearm enhancements.

Despite the robberies occurring within hours of each other on the same evening where the defendants netted mostly Halloween candy, the government would treat each robbery as a separate occasion under the ACCA, triggering the mandatory minimums under the statute.

The title of the statute itself, addressing “Career Criminals,” should render non-sensical any interpretation of sequential actions occurring during a single criminal opportunity, as evidence of a truly habitual offender whose conduct the statute was designed to address.

The government’s position and the lower court’s erroneous interpretation of the ACCA’s “different occasions” standard not only contravenes legislative intent, but when applied to child offenders, further affronts the Constitution’s requirement of proportionality in sentencing under the Eighth Amendment.

ACCA Policy Labels Children as ‘Career Criminals’

The policy has another terrible consequence: labeling children convicted of offenses arising out of a single incident as “career criminals.” Permitting the imposition of harsh mandatory minimums on child offenders, which would follow from such a designation, is incompatible with the statute’s plain language, as well as everything we know about children who come into conflict with the law.

It is now well-settled that children’s underdeveloped brains often result in poor decision-making. This is exacerbated by trauma which negatively impacts brain development and is a primary reason behind why so many children become system involved. The Supreme Court has consistently acknowledged the circumstances leading to juvenile crime are transient, not permanent, and as such are inconsistent with labeling a child an “irredeemable, career criminal.”

The ACCA was enacted to protect the public from long-time violent criminals, not children, regardless of the severity of the crimes they have committed during one day or night of intemperate behavior. Equating an individual’s poor judgment on a single occasion with perpetual and irredeemable criminality is unjustified when applied to adults, and unconscionable when applied to children.

Since the U.S. allows children to be tried as adults, courts would do well to remember the impact of their decisions on child offenders, and Congress would do well to remove children from the reach of such harsh mandatory minimums altogether.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Tony W. Torain II is a shareholder in the Washington, D.C., office of Polsinelli P.C. He also serves on the board of directors of Human Rights for Kids, a non-profit organization dedicated to the promotion and protection of human rights for children.

Suzanne S. La Pierre is an attorney involved in anti-human trafficking work and the protection of fundamental human rights, including the self-determination of peoples. She is the chair of Human Rights for Kids.

The authors submitted an amicus brief for Human Rights for Kids in the Wooden v. United States case.

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