02.26.09

Does an 11-Year-Old Deserve Life in Prison?

Eleven-year-old Jordan Brown is accused of killing his father's pregnant fiancé with a hunting rifle. Does that means he belongs in an adult prison with rapists, murderers, and hardened criminals?

The funeral was held Tuesday, and the facts of the case are still unfolding, but police believe that before getting on the school bus last Friday, an 11-year-old named Jordan Anthony Brown shot his father’s pregnant fiancé, Kenzie Marie Houk, with a hunting rifle he’d gotten for Christmas.

Lawrence County, Pennsylvania, has charged Jordan with two counts of first-degree murder in the February 20 shooting, and placed the fifth grader behind bars. Jordan’s new home is the Lawrence County jail’s 8-by-10 suicide-watch cell. Why is a “super-juvenile” being held in something less like juvie and more like a “super-max”?

“That’s when I realized: Oh my goodness, I’m 15 years old,” said Joshua Phillips, serving a life sentence at a facility for adults.

In Pennsylvania, like in most states, a child over the age of ten can be charged and tried as an adult. Lawrence County District Attorney John Bongivengo theorizes that jealously over Houk, her pregnancy, and two young daughters led Jordan to commit premeditated murder, “callous, cold, and calculating.” Allegedly warning members of Houk’s family in December that he wanted to “pop” her in the head, Jordan is accused of shooting Houk precisely there. So he went to jail—not kiddie jail, but real jail.

Though sending an 11-year-old to live with rapists, bank robbers, and murderers might seem crazy, it happens, simply because America has no real system in place to deal with children accused of murder. Children kill, and when they do, they’re often charged as adults and sent to adult prisons to fend for themselves. We’re not talking about older kids who committed crimes just shy of their 18th birthdays—we’re talking about small children who are 13, 12, 11 years old.

The paradox of this issue is that child murderers are uncommon enough that little effort has gone into developing a mechanism for dealing with them. The homicide rate for US children under the age of 14 increased in the late ‘80s and ‘90s, but then fell to its lowest recorded levels after 2003. According to the FBI’s Uniform Crime Reports for 2007, ten children between the ages of 9 and 12 were convicted of murder, compared with 542 teens aged 13 to 16, and 1,966 teens aged 17 to 19.

Because of this, 11-year-old Jordan Brown is being treated the same way a 17-year-old would be, and could face a life sentence—Pennsylvania is one of the vast majority of states that allow juveniles to be sentenced to life without parole. In 2005, of the 2,200 juveniles serving life sentences without parole, 320 of them were 15 or younger when they offended. And though a few states do not allow life sentences without parole for preteens, ten states have no minimum-age limits.

Should Brown receive the maximum penalty, he would join a select fraternity, one that includes Eric Smith, who killed a 4-year-old friend when he was 13, and is now serving a sentence of nine-years-to-life in upstate New York. And Joshua Phillips, sentenced to life without parole at the age of 14 for killing his 8-year-old neighbor in 1998. Phillips began serving his sentence when he was 15 in the prison’s “general population,” sharing an open dorm with dozens of adult men. He recently recounted how young and exotic he felt in such an environment. “When I came out of the chow hall, I see this line of people… and they’re all old—60, 70 years old,” Phillips told the Florida Times-Union last November. “They’ve got canes and walkers and stuff like that. That’s when I realized: Oh my goodness, I’m 15 years old. It’s going to be 60 years before I look like them.”

This ignoble club also includes the nation’s most famous and most tragic preteen killer: Broward County, Florida’s Lionel Tate, who, at the age of 12, was convicted of felony murder and given a life sentence.

Tate was the youngest person in US history to be sentenced to life. He maintained that he had accidentally killed a six-year-old girl his mother was babysitting. The two were just playing, he said, and he was imitating television wrestlers who trounce their opponents. His badly bruised victim wound up with a ruptured spleen, a fractured skull, and a partially detached liver.

Giving a life sentence to a middle-school boy with an IQ of 90 for what might have been an accidental death provoked a public uproar. How could the judge be so harsh? Was this racism? (Tate is African-American; Jordan Brown, Joshua Phillips, and Eric Smith are white.) The judge said he had no sentencing discretion, given the felony-murder charge. Tate’s family and defense team were stunned; his mother had been so sure of an acquittal she’d advised Lionel to turn down a lenient plea bargain. Even the prosecutors were shocked, and, in a highly unusual move, offered to help Tate get his life sentence overturned.

As it turned out, Tate’s sentence was eventually overturned. There was a feeling that many key questions that should have been asked early on were not. For instance, the judge who overturned the sentence determined that Tate’s mental competence should have been evaluated prior to trial, but it wasn’t.

So even though no one knows exactly what happened at the Brown-Houk home last week, I hope everyone close to the case is asking the hard questions. Did the father keep the gun locked away? Why didn’t he act on statements Jordan allegedly made about wanting to “pop” Houk and her children? Did Jordan have a history of mental-health or behavioral problems? Was he abused, bullied, or neglected? Had Houk ever harmed or threatened Jordan? Law enforcement has to ask, too, whether someone else could have committed the crime, and whether the boy was set up—there have been cases in which adults have used juveniles to commit crimes on their behalf. The D.C. sniper case, in which teenager John Boyd Malvo killed while under the sway of adult John Allen Muhammad, is just one example.

As for fixing the process, the best solution that seems possible in our tough-on-crime culture is a “mixed” justice system in which children who commit violent homicides are neither thrown into the adult system nor sent to juvenile centers for a few years of rehab before being released. Ohio Northern University Law Professor C. Antoinette Clarke has identified a menu of possible “blended” systems of justice for youth, in which sentences could be custom-built, allowing children, for instance, to be incarcerated in facilities meant for their age group before being phased into the adult justice system as they grow older.

But one thing is clear: An 11-year-old does not, under any circumstances, belong in an adult prison among the tough guys one sees on cable lock-up shows. He may be totally innocent. He may be a good kid who made a once-in-a-lifetime mistake. Or, unfortunately, he may be a bad kid, headed for a life of criminal entanglements. This possibility must be entertained—we learned from Lionel Tate what happens when sentences for children are too lenient.

After Tate’s life sentence was thrown out in 2004, he was released on probation and one year’s house arrest. Nine months later, he was caught out of his house carrying a knife and given an additional five years' probation. Eight months after that, now 18, Tate held up a pizza deliveryman at gunpoint. He got 30 years for the probation-violating gun possession, and another 10 for holding up the deliveryman.

A man at last, and now a real criminal.

Anita L. Allen is the Henry R. Silverman professor of law and professor of philosophy at the University of Pennsylvania. She writes about everyday ethics, health, and the right to privacy for scholarly journals and the popular press.