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CONSTITUTIONAL LINE DRAWING AT THE
INTERSECTION OF CHILDHOOD AND
CRIME
Beth A. Colgan†
INTRODUCTION ................................................................................................................. 79
I. THE LINE BETWEEN CHILDHOOD AND ADULTHOOD ............................................. 81
A. Social Constructs and Childhood Development ............................ 81
B. The Roberts Court’s Childhood/Adulthood Division ................. 85
C. A Proposed Solution to Remedy The Court’s
Contradictions Regarding the Line Between Childhood
and Adulthood......................................................................................... 90
II. THE HOMICIDE/NON-HOMICIDE LINE.................................................................... 93
A. Importation of the Homicide/Non-Homicide Distinction
Into the Juvenile Cases......................................................................... 93
1. The Exceptionalists .......................................................................... 93
2. Chief Justice Roberts ........................................................................ 96
3. The Uniformists .............................................................................. 101
B. A Proposed Solution to the Homicide/Non-Homicide
Problem .................................................................................................. 103
III. WHY THE COMPLEXITIES OF CHILDHOOD MATTER ......................................... 104
INTRODUCTION
As Justice Sotomayor has noted, even judges were children once.1 But this
common experience has not led the Roberts Court to a shared belief about what
it means to be a child and, most importantly, the extent to which the distinct
nature of childhood has constitutional ramifications.
Three cases have arisen in the first seven years of the Roberts Court in
† Beth A. Colgan is a Stanford Law Fellow. She wishes to thank Robert Weisberg,
Norman Spaulding, Andrew Gilden, William Baude, Kaipo Matsumura, Briana Rosenbaum,
Albertina Antognini, and Zachery Price for their thoughtful comments on early drafts of this
Article.
1. See J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403 (2011).
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which concepts of childhood have played a key role. First came Graham v.
Florida, a 2010 case in which the Court held that the Eighth Amendment’s
Cruel and Unusual Punishments Clause prohibited sentencing of juveniles to
life without parole for non-homicide offenses.2 Next was J.D.B. v. North
Carolina, a 2011 case in which the Court held that a juvenile’s age is a relevant
consideration when determining whether a reasonable person would believe he
was in custody for Miranda purposes.3 Finally, the Court decided Miller v.
Alabama, a 2012 case in which the Court held that the mandatory imposition of
life without parole in cases where juveniles were convicted of homicide was
cruel and unusual punishment because it precluded consideration of age and its
attendant consequences.4
Though at first glance these cases appear to be consistent—they each result
in some degree of enhanced constitutional protection for juveniles5—a closer
look reveals significant jurisprudential tension because the opinions are riddled
with contradictions. In this Article I explore those tensions and the need to
2. 130 S. Ct. 2011, 2034 (2010). Petitioner Terence Graham was a seventeen-year-old
who received a life without parole sentence for violating parole on an earlier conviction for
armed burglary with assault or battery and attempted armed robbery. Id. at 2018-20. The
parole violation involved allegations that Graham participated in a home invasion robbery,
id. at 2018-19, an inarguably serious charge. Graham was never convicted of the alleged
offense, but it formed the basis for the revocation of his probation, at which the sentencing
court found Graham guilty of the earlier armed burglary and attempted armed robbery
charges and imposed the maximum available penalty of life without the possibility of parole.
See id. at 2019-20.
3. 131 S. Ct. at 2406. This case arose from an incident in which police officers
removed thirteen-year-old J.D.B. from his seventh grade classroom in order to question him
about two break-ins. Id. at 2399. The officers, a vice principal, and an administrative
assistant questioned J.D.B. for thirty to forty-five minutes in a closed conference room; the
officers failed to Mirandize J.D.B. until after he confessed. Id. at 2399-40.
4. 132 S. Ct. 2455, 2475 (2012). Evan Miller was fourteen years old at the time he
committed a homicide offense, for which he received the mandatory minimum sentence of
life without the possibility of parole. Id. at 2460.
5. Throughout this Article I use the words “juvenile,” “child,” and “childhood” to refer
to people under the age of eighteen. With the exception of the discussion of scientific
advances related to the development of the adolescent brain, see infra Part I.A, however, I do
not use the term “adolescents” because very young children who have not yet reached
adolescence are subjected to adult criminal prosecution and custodial interrogations in the
United States, and therefore are included within the ambit of the constitutional issues
addressed by the Roberts Court, see, e.g., Steven A. Drizin & Beth A. Colgan, Let the
Cameras Roll: Mandatory Videotaping of Interrogations Is the Solution to Illinois’ Problem
of False Confessions, 32 LOY. U. CHI. L.J. 337, 349-53 (2001) (describing the custodial
interrogation of two boys, ages seven and eight, in relation to a planned prosecution of the
boys as adults). In the criminal arena, there is an unusually vigorous debate around the
correct terminology to use when referring to people under the age of eighteen. For example,
though technically correct, people who do not support increased constitutional protections
take umbrage to referring to people in this category as children, see, e.g., Miller, 132 S. Ct.
at 2489 (Alito, J., dissenting), presumably because the word conveys a sense of innocence.
This semantic debate is interesting but irrelevant for the purposes of this article.
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resolve them, focusing in particular on two major line-drawing problems that
have emerged in the juvenile cases. I begin in Part I by addressing issues
inherent to but largely ignored in these cases: whether and where to draw the
line between childhood and adulthood. In Part II, I turn to a line that is
judicially manufactured: the line between homicide and non-homicide offenses.
In both Parts I describe and critique the Court’s line drawing and offer
proposed solutions to remedy flaws in the Court’s reasoning. In Part III, I seek
to explain why the tension around the Court’s line drawing matters and why the
Court should not shy away from the complexities found at the intersection of
the Constitution, childhood, and crime.
I. THE LINE BETWEEN CHILDHOOD AND ADULTHOOD
In each of the three juvenile cases the Court treats childhood as
constitutionally relevant and defines “juvenile” as a person under the age of
eighteen, but the opinions pay surprisingly little attention to either
determination.6 To set the stage for the Court’s treatment of whether and where
to draw the line between childhood and adulthood, I begin by briefly describing
the traditional though varied social constructs that divide childhood and
adulthood, as well as the scientific advances that have revitalized the Court’s
juvenile jurisprudence. I then theorize as to why the Roberts Court’s factions
have largely avoided an in-depth discussion of childhood. Finally, I propose a
solution that justifies a division at eighteen in the criminal context that is in
keeping with the Court’s precedents, the social constructs evident in statutory
and common law, and advances regarding childhood development.
A. Social Constructs and Childhood Development
The concept of childhood as a legal distinction isn’t new—the law has long
recognized differences between juveniles and adults in a wide variety of areas.7
In the realm of statutory and common law, these divisions are social
constructions based on public perceptions regarding the maturity of juveniles to
engage in or be responsible for a given action. While setting the age of majority
at eighteen is widely used (for voting or military service, for example),
statutory restrictions are common where recognition of the decreased maturity
6. See Miller, 132 S. Ct. 2455; J.D.B., 131 S. Ct. 2394; Graham, 130 S. Ct. 2011.
7. See, e.g., infra notes 64-66 and accompanying text; Miller, 132 S. Ct. at 2470
(“Indeed, it is the odd legal rule that does not have some form of exception for children.”);
J.D.B., 131 S. Ct. at 2403 (citing 1 WILLIAM BLACKSTONE, COMMENTARIES *464-65 for the
proposition that the “law has historically reflected the same assumption that children
characteristically lack the capacity to exercise mature judgment and possess only an
incomplete ability to understand the world around them”); id. at 2403-04 (listing alienation
of property, contracts, and marriage as examples of areas of the law where youth are treated
differently than adults).
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of juveniles suggests that a lower age is appropriate in order to protect the
juvenile (contracting or driving, for example).8 Attitudes regarding these
divisions may change over time as public understanding of juvenile maturity
changes.9
Recognition of the division between childhood and adulthood has not been
a purely statutory exercise, however; courts have grappled with the
constitutionality of childhood as well, alternatively constraining and embracing
the social constructs employed legislatively. Beginning in the 1940s, the
Supreme Court has recognized both that juveniles enjoy a variety of enhanced
constitutional protections in certain areas and that the government may restrict
the actions of juveniles on the basis of their immaturity in other areas, both in
recognition of the unique nature of childhood.10
One result of these various legal determinations is that American children
are—for better or worse—dependent upon their legal guardians to determine
the quality of their environments. With very limited exceptions, children may
not of their own accord decide where to live, where to go to school and the like,
and in turn have little control over the people to whom and conditions to which
they are exposed.
In recent years scientific research regarding brain development and in the
study of psychosocial development has given the legal distinctions between
childhood and adulthood a new resonance in both judicial and legislative
arenas.11 Advances in brain imaging technology have allowed scientists to
reveal that the human brain, and the prefrontal cortex in particular, “continues
to mature, both structurally and functionally, throughout adolescence in regions
8. ELIZABETH S. SCOTT & LAURENCE STEINBERG, RETHINKING JUVENILE JUSTICE 70-73
(2008).
9. See, e.g., id. at 73-75 (regarding the policy push during the Vietnam War to decrease
the age of majority for voting from twenty-one to eighteen via the Twenty-Sixth
Amendment); cf. FRANK ZIMRING, THE CHANGING LEGAL WORLD OF ADOLESCENCE 3-4
(1982) (describing three changes to the legal drinking age in Michigan in less than ten
years).
10. Compare, e.g., Haley v. Ohio, 332 U.S. 596, 599 (1948) (plurality opinion)
(treating a juvenile suspect as uniquely susceptible to interrogation in holding that his
confession was obtained in violation of the Fourteenth Amendment), with, e.g., Ginsberg v.
New York, 390 U.S. 629, 636-43 (1968) (upholding statute that restricted sales of obscene
material to juveniles). See also infra Part 1.C.
11. See, e.g., Act of May 13, 2005, ch. 437, § 1, 2005 Wash. Sess. Laws 1872 (“The
legislature finds that emerging research on brain development indicates that adolescent
brains, and thus adolescent intellectual and emotional capabilities, differ significantly from
those of mature adults. . . . The legislature further finds that applying mandatory minimum
sentences for juveniles tried as adults prevents trial court judges from taking these
differences into consideration in appropriate circumstances.”); Roper v. Simmons, 543 U.S.
551, 578 (2005) (relying in part on adolescent brain development research in holding that the
execution of juveniles violates the Eighth Amendment’s Cruel and Unusual Punishments
Clause).
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of the brain responsible for controlling thoughts, actions, and emotions.”12
As a result of this anatomical immaturity, juveniles are both more likely
than adults to act impulsively, without thinking through the consequences of
their actions,13 and more vulnerable than adults to peer pressure and other
stresses as they “operate on the adolescent mind differently and with special
force.”14 As explained by the American Medical Association and the American
Academy of Child and Adolescent Psychiatry:
When it comes to “response inhibition, emotional regulation, planning and
organization,” the so-called executive functions, a crucial part of the brain is
the prefrontal cortex. The prefrontal cortex is associated with a variety of
cognitive abilities, including those associated with voluntary behavior control
and inhibition such as risk assessment, evaluation of reward and punishment,
and impulse control. More generally, other functions associated with the
prefrontal cortex include decision-making, the ability to judge and evaluate
future consequences, recognizing deception, responses to positive and
15
negative feedback, working memory, and making moral judgments.
In essence, juveniles rely on areas of the brain that are associated with
risky behavior.16 This does not mean that juveniles are incapable of making
moral judgments, but instead that their ability to reliably control “emotional
response and impulsivity” is reduced as compared to adults.17
Though advances in brain science certainly have caught the attention of the
Court, the lessons from those advances regarding childhood impulsivity and
12. Brief for American Medical Association, et al. as Amici Curiae at 3-4, 13, 15, 18,
Graham, 130 S. Ct. 2011 (No. 08-7412), 2009 WL 2247127 [hereinafter AMA Brief]. For a
detailed description of pruning and mylenation, the processes by which the brain develops
throughout adolescence and into early adulthood, see id. at 19-26. The AMA and American
Association of Child and Adolescent Psychiatry appeared as neutral amici in Graham. Id. at
2 (explaining that the AMA and AACAP took no formal position on the constitutional issue
in Graham but supplied the brief “to describe the scientific findings of medical, psychiatric,
and psychological research relevant to this issue”). In addition, the American Psychological
Association, American Psychiatric Association, National Association of Social Workers, and
Mental Health America served as amici in support of petitioner Terrence Graham. See Brief
for American Psychiatric Association, et al. as Amici Curiae Supporting Petitioners,
Graham, 130 S. Ct. 2011 (No. 08-7412), 2009 WL 2236778 [hereinafter APA Brief].
13. AMA Brief, supra note 12, at 4-7.
14. Id. at 10-11; see also Roper, 543 U.S. at 569 (citing Eddings v. Oklahoma, 455
U.S. 104, 115 (1982); Steinberg & Scott, Less Guilty by Reason of Adolescence:
Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58
AM. PSYCHOLOGIST 1009, 1014 (2003)).
15. AMA Brief, supra note 12, at 16-17.
16. Id. at 4, 6-7, 10-11, 15.
17. Id. at 4, 21; see also id. at 6 (“The difference between adolescent and adult
behavior, however, is not a function of adolescents’ inability to distinguish right from wrong
or in their intellectual abilities per se, but rather from psychosocial limitations in their ability
to consistently and reliably control their behavior.”); id. at 8-9 (“The ability to control one’s
impulsive reactions to an event or problem is necessary to achieve adult levels of problem
solving ability, logical reasoning, and the consistent exercise of good judgment.”).
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capacity have long been the subject of psychosocial research. Psychosocial
research, which addresses both the cognitive limitations and the social and
emotional immaturity of children,18 mirrors the conclusions reached by
adolescent brain development researchers.19 It also provides insight into the
link between cognitive skills and emotional skills that are critical to
understanding adolescent development; even “older adolescents (aged 16-17)
might have logical reasoning skills that approximate those of adults, but
nonetheless lack the abilities to exercise self-restraint, to weigh risk and reward
appropriately, and to envision the future that are just as critical to mature
judgment.”20 Psychosocial research has also documented both that most youth
age out of antisocial activities as they move into adulthood and that it is
practically impossible to distinguish those youth who are incorrigible from
those who are not.21
The developmental transition from childhood to adulthood coincides with
the legal constructs that inhibit the ability of juveniles to shape their own
environments. In most cases, these constructs provide guidance and structure
for children as they develop and grow. But for those juveniles whose
environments are toxic, this also means that they have little ability to extricate
themselves from precarious situations during the very time they are most at risk
of succumbing to external pressures and least able to successfully navigate the
choices and consequences they face. 22
Both of these characteristics—a lack of control and susceptibility to outside
influence—are, by their nature, transitory. Because juveniles are still
developing anatomically and psychosocially, the type of person that they
ultimately could become is not set.23 While the research tells us that juveniles
are developmentally different than adults, it cannot provide a prediction about
how a juvenile’s character will evolve as he reaches full maturity. 24 As a result,
18. APA Brief, supra note 12, at 5, 13 n.23.
19. Id. at 3-4 (detailing that juveniles “are less able to restrain their impulses and
exercise self-control; less capable than adults of considering alternative courses of action and
maturely weighing risks and rewards; and less oriented to the future and thus less capable of
apprehending the consequences of their often-impulsive actions”).
20. Id. at 14-15.
21. Id. at 7-8 (describing studies showing that “[b]oth violent crimes and less serious
offenses ‘peak sharply’ in late adolescence—around age 17—and ‘drop precipitously in
young adulthood’”); id. at 20-22 (explaining that “[a]dolescent criminal conduct typically
results from normative experimentation with risky behavior and not from deep-seated moral
deficiency reflective of ‘bad’ character,” and therefore “[o]nly a small portion of adolescents
who experiment with illegal activities will develop an entrenched pattern of criminal
behavior that persists into adulthood”).
22. See infra notes 64-68 and accompanying text.
23. See APA Brief, supra note 12, passim (explaining that cognitive and emotional
development continues throughout childhood); AMA Brief, supra note 12, passim
(explaining that the anatomical development of the brain continues throughout childhood).
24. See supra note 21.
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a juvenile who seems incorrigible in his teens may go on to great success and
stability as an adult.25
The understanding of childhood development garnered through scientific
advances provides extraordinary insights into the developmental transformation
from childhood to adulthood. It does not, however, provide a precise answer to
when such a transformation is complete. For example, in the arena of brain
development, researchers have indicated that the frontal cortex of the brain is
not fully formed until a person reaches his mid-twenties.26 Yet the Roberts
Court has, without explanation, drawn the line between childhood and
adulthood precisely: at age eighteen.
B. The Roberts Court’s Childhood/Adulthood Division
These three juvenile cases reveal two distinct visions of childhood within
the Roberts Court. The first camp of “Exceptionalists,” made up of Justices
Breyer, Ginsburg, Kennedy, Kagan, and Sotomayor (and sometimes Chief
Justice Roberts), have embraced scientific advances in brain and psychosocial
development and reasoned that children are constitutionally exceptional. In
sharp contrast, the second camp, made up of Justices Alito, Scalia, and
Thomas, believe instead that the Constitution should be applied in a uniform
way regardless of age. For this group, which I refer to as the “Uniformists,” the
scientific advances related to childhood development may be accurate as a
general matter—an idea they refrain from embracing, but make only halfhearted attempts to dispute—but do not as a constitutional matter render
juveniles any different than adults.
These philosophical differences raise two threshold questions: whether
childhood is constitutionally significant and, if so, at what age does childhood
end. Despite the importance of these questions, the Court spends surprisingly
little time addressing them.
In support of their position that childhood is of constitutional magnitude,
the Exceptionalists and the Graham-era Chief Justice relied on a handful of the
Supreme Court’s past decisions in which the Court treated childhood status as
constitutionally significant.27 In J.D.B., for example, the Exceptionalists
pointed to cases in which enhanced protections were afforded to juveniles in
25. See, e.g., Brief of Former Child Offenders Charles S. Dutton et al. as Amici Curiae
in Support of Petitioners at 1-4, 31, Graham v. Florida, 130 S. Ct. 2011 (2010) (No. 087412), 2009 WL 2219302.
26. See AMA Brief, supra note 12, at 20-22 (explaining that the anatomical
development of the prefrontal cortex extends beyond adolescence and into early adulthood).
27. See, e.g., Miller v. Alabama, 132 S. Ct. 2455, 2464-67 (2012); J.D.B. v. North
Carolina, 131 S. Ct. 2394, 2403 (2011); Graham v. Florida, 130 S. Ct. 2011, 2026-27 (2010);
id. at 2040-42 (Roberts, C.J., concurring).
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the contexts of criminal sentencing and procedure,28 but also to Bellotti v.
Baird, a case in which more traditionally conservative members of the Court
determined that childhood status had constitutional relevance in determining
that pregnant minors had less protection than pregnant adults in the abortion
context.29 The discussion of whether childhood has constitutional significance
was less direct in both Graham and Miller, as the Exceptionalists presented
their position as part and parcel of the exercise of independent judgment that is
part of the cruel and unusual punishment analysis. In both Graham and Miller,
the Court explicated the constitutional relevance of the unique and transitory
nature of childhood to the four recognized penological purposes for
punishment: retribution, incapacitation, deterrence, and rehabilitation.30 Noting
that culpability was at “the heart of . . . retribution,” the Exceptionalists
reasoned that because juveniles have an inherently lower degree of culpability
than adults, the need for retribution is in turn diminished.31 The Exceptionalists
also saw decreased value to deterrence, the theory that presumes that the person
to be deterred has the capacity to reflect upon the potential consequences of his
actions, even in volatile situations,32 given that juveniles have a reduced
capacity to engage in such reflection.33 Further, given that developmental
research shows that it is impossible to determine at the outset that a juvenile is
incorrigible because his character is not set, the Exceptionalists determined that
28. See J.D.B., 131 S. Ct. at 2403 (citing, for example, Gallegos v. Colorado, 370 U.S.
49, 54 (1962)).
29. See id. (citing Bellotti v. Baird, 443 U.S. 622, 635 (1979)).
30. See Graham, 130 S. Ct. at 2028-30. Youngjae Lee has posited that in Graham and
other cases in which the Court has analyzed the four legitimate penological purposes, it has
done so only half-heartedly, suggesting that the Court attempts to squeeze the categories to
match its separate determination regarding whether a particular defendant or group of
defendants has reduced culpability. Youngjae Lee, The Purposes of Punishment Test, 23
FED. SENT’G REP. 58, 58-59 (2010). He suggests that this perfunctory treatment stems from
the Court’s reluctance to tackle “deep philosophical issues about the purposes of punishment
and what limitations should be placed on it.” Id. at 59. He proposes that this problem could
be remedied either by recognizing the punishments test as superfluous or by employing a
framework that would allow a finding of unconstitutionality even where one or more of the
penological purposes for the punishment is legitimate. Id. at 59-60.
31. Miller, 132 S. Ct. at 2465; Graham, 130 S. Ct. at 2028; cf. Russel L. Christopher,
Deterring Retributivism: The Injustice of “Just” Punishment, 96 NW. U. L. REV. 843, 859-60
(2002) (discussing the theory of retribution).
32. See, e.g., Guy Ben-David, Cultural Background as a Mitigating Factor in
Sentencing in the Federal Law of the United States, 47 CRIM. L. BULL. 543, § 1-1.1 (2011)
[hereinafter Cultural Background].
33. Miller, 132 S. Ct. at 2464-65; Graham, 130 S. Ct. at 2028-29. The Graham Court
acknowledged that a few juveniles might be deterred by the knowledge that a consequence
of committing a crime would be a life without parole sentence, but reasoned that “in light of
juvenile non-homicide offenders’ diminished moral responsibility, any limited deterrent
effect provided by life without parole is not enough to justify the sentence.” 130 S. Ct at
2029.
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a need for lifelong incapacitation cannot be assessed at sentencing.34 Likewise,
juveniles’ capacity for change was also central to the Exceptionalists’ analysis
of the purpose of rehabilitation. As the Graham Court explained, the “penalty
[of life without the possibility of parole] forswears altogether the rehabilitative
ideal.”35
In sharp contrast, the Uniformists and the Miller-era Chief Justice make
plain that they believe that “moral” and “social” judgments regarding the
treatment of juveniles are matters of public policy that courts have no business
deciding. But beyond peppering their dissenting opinions in Miller and
Graham, though not J.D.B., with this concept,36 the various dissenting opinions
spend the majority of their time critiquing the Exceptionalists’ treatment of
state sentencing statutes,37 debating the applicability of capital cases,38 and for
Justices Thomas and Scalia, arguing that the original meaning of the Eighth
Amendment does not require proportionality review of non-capital sentences at
all.39 In other words, while the Exceptionalists treat the question of whether
childhood is constitutionally relevant as nearly a foregone conclusion, the
Uniformists treat the question as window dressing for broader complaints about
the Court’s Eighth Amendment jurisprudence beyond the context of the
juvenile cases.
The Court’s treatment of the second question—where to draw the line
between childhood and adulthood—received even shorter shrift. While the
question took up significant time in the Graham oral arguments, with both
34. See Graham, 130 S. Ct. at 2029; Miller, 132 S. Ct. at 2465. Incapacitation is
premised on the notion that incarceration of a defendant is necessary on an ongoing basis to
protect society from future harms. See Cultural Background, supra note 32, at § 1-2.1.
35. 130 S. Ct. at 2030; see also Miller, 132 S. Ct. at 2465.
36. Compare Miller, 132 S. Ct. at 2477 (Roberts, C.J., dissenting) (“Determining the
appropriate sentence for a teenager convicted of murder presents grave and challenging
questions of morality and social policy. Our role, however, is to apply the law, not to answer
such questions.”), and id. at 2490 (Alito, J., dissenting) (stating that the Eighth Amendment
requires some restrictions on sentencing but leaves the majority of sentencing decisions to
the states), and Graham, 130 S. Ct. at 2058 (Thomas, J., dissenting) (“The ultimate question
[is] to whom the Constitution assigns that decision.”), with J.D.B. v. North Carolina, 131 S.
Ct. 131 S. Ct. 2394, 2417 (Alito, J., dissenting) (stating that statutory treatment of juveniles
as unique does not equate to childhood having constitutional magnitude but refraining from
comment regarding Bellotti v. Baird and other cases relied on by the majority).
37. See, e.g., Miller, 132 S. Ct. at 2477-79 (Roberts, C.J., dissenting); id. at 2487-89
(Alito, J., dissenting); see also infra notes 104-09 and accompanying text.
38. See, e.g., Miller, 132 S. Ct. at 2480-82 (Roberts, C.J., dissenting); Graham, 130 S.
Ct. at 2046-47 (Thomas, J., dissenting).
39. See, e.g., Miller, 132 S. Ct. at 2482-86 (Thomas, J., dissenting); Graham, 130 S.
Ct. at 2044-46 (Thomas, J., dissenting). Justice Alito declined to join in this portion of
Justice Thomas’s Graham dissent, 130 S. Ct. at 2043 (Thomas, J., dissenting) (indicating
that Justice Alito joined only as to Parts I and III of the dissent), and explicitly stated that
original meaning no longer controls Eighth Amendment analysis in his Miller dissent, 132 S.
Ct. at 2487.
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Exceptionalists and Uniformists questioning petitioners and respondents on that
point,40 the question received very different treatment in the various Graham
opinions, and later in J.D.B. and Miller.
The Exceptionalists in Graham, for example, merely pointed off-handedly
to the Rehnquist Court’s 2005 opinion in Roper v. Simmons, in which the Court
held that the Eighth Amendment prohibited the execution of juveniles and
defined “juvenile” as a person under the age of eighteen because doing so
comported with traditional legal practices.41 The Exceptionalists also did not
touch the issue in J.D.B. or Miller.42 At no time did the Exceptionalists
acknowledge the tension between their adherence to scientific advances that
suggests the line should be drawn somewhere above eighteen in identifying the
unique characteristics of youth, but disregard of the same evidence when
drawing the line at eighteen. The Exceptionalists’ reluctance to tackle this issue
likely is because it is difficult, when scientific advances are considered in a
vacuum, to justify treating a seventeen-year-old differently than an eighteenyear-old.
At first glance, the Uniformists appear to have no line-drawing problem
because they believe that if a line should be drawn between childhood and
adulthood at all, it should be done by legislators, not the courts.43 Yet even the
Uniformists tread lightly around this question, only briefly questioning the
scientific evidence relied upon by the Exceptionalists44 and pointing to the fine
line between seventeen- and eighteen-year-olds.45 Most tellingly, they largely
avoid discussing the practical effect of their position; if there is no
constitutional division between childhood and adulthood, that means that there
is no lower bound. In other words, under the Uniformists’ approach, children of
40. See, e.g., Transcript of Oral Argument at 5, Graham, 130 S. Ct. 2011 (No. 087412) [hereinafter Graham Transcript] (Justice Scalia stating that he did not “see why [life
without parole is] any crueler to an adolescent than it is to—what—where do you draw the
line? At 21?”); id. at 14 (Chief Justice Roberts noting that science does not draw a line at
eighteen); id. at 25 (Justice Sotomayor questioning the difference between a month before
and a month after one’s eighteenth birthday); id. at 34 (Justice Sotomayor questioning
respondent’s counsel as to whether a ten-year-old could properly be sentenced to life without
parole); id. at 53 (Justice Alito questioning petitioner’s counsel regarding the idea that the
eighteenth birthday marks a “magical date”).
41. See Graham, 130 S. Ct. at 2030 (referencing Roper, 543 U.S. at 574).
42. See Miller, 132 S. Ct. 2455; J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011).
43. See supra note 36 and accompanying text.
44. See, e.g., Graham, 130 S. Ct. at 2054-55 (Thomas, J., dissenting) (stating that the
majority “misstates the [scientific and psychosocial] data upon which it relies” to reach its
conclusions about the transient qualities of youth). Although Justice Thomas pointed to two
articles that suggest that the relevant traits are not as transient as the majority believes, he did
not belabor the point, perhaps because of the overwhelming support for the majority’s
conclusion provided by amici. See supra note 36 and accompanying text.
45. See, e.g., Miller, 132 S. Ct. at 2477 (Roberts, C.J., dissenting); id. at 2487 (Alito, J.,
dissenting).
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even elementary age could be tried and sentenced as adults and even
executed.46
There may be varying levels of comfort within the Uniformists’ camp on
this point, as they explicitly recognized that their position entailed no lower
bounds only in passing or without full buy-in from all of the Uniformists. For
instance, in Graham, recognition that their position affords no lower limit is
evident only in a footnote in Justice Thomas’s dissent, where he noted that
prior to the ratification of the Eighth Amendment, even very young children
could be executed,47 an idea he pushed again in his Miller dissent;48 however,
both Justice Alito and Chief Justice Roberts declined to join him in taking this
position, leaving Justice Scalia as his only ally.
Justices Thomas and Scalia aside, for even the most adamant retributivists,
the idea of sentencing very young children to life without parole is reason to
pause. Even counsel for the State of Florida in Graham expressed hesitation at
the suggestion that a child of any age could receive a life without parole
sentence. After explaining that Florida law created no lower bound, Justice
Sotomayor asked whether that meant a five-year-old could receive such a
sentence; he replied, “[w]e would hope that the system would not allow that to
occur” and suggested that the Eighth Amendment’s proportionality principles
would be violated in such a case.49
The application of proportionality review—whereby the court weighs the
severity of the crime against the defendant’s culpability to determine the
constitutional validity of the sentence—is at the heart of what is perhaps the
most interesting treatment of the line between childhood and adulthood: that of
Chief Justice Roberts. In his questioning at the Graham oral argument, he
pushed both petitioners and respondents to acknowledge that proportionality
review eliminates the need to draw any line between childhood and adulthood,
as it would allow consideration of age as part of the standard proportionality
analysis.50 Later, in his Graham concurrence, he explicitly agreed with the
majority that the transitory qualities of youth identified through scientific
advances were a relevant consideration in assessing the proportionality of a
juvenile’s sentence and limited his proposed solution of requiring
proportionality review to cases involving defendants under the age of
eighteen.51 The Chief Justice changed course, however, joining the
46. See, e.g., Graham, 130 S. Ct. at 2036 (Stevens, J., concurring) (noting that Justice
Thomas “would apparently not rule out a death sentence for a $50 theft by a 7-year-old”).
47. See Graham, 130 S. Ct. at 2049 n.6 (Thomas, J., dissenting) (arguing that age is
irrelevant to the Eighth Amendment because the Cruel and Unusual Punishments Clause
only prohibits methods of punishment, rather than disproportionate punishment).
48. See Miller, 132 S. Ct. at 2483 (Thomas, J., dissenting).
49. See Graham Transcript, supra note 40, at 37.
50. See id. at 13.
51. See Graham, 130 S. Ct. at 2038-39 (Roberts C.J., concurring).
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Uniformists’ camp in Miller. In doing so, the Chief Justice rejected the use of
proportionality review in homicide cases and with it the concept that age and its
consequences are constitutionally relevant considerations in sentencing,52 the
very position he took in Graham.
C. A Proposed Solution to Remedy The Court’s Contradictions Regarding the
Line Between Childhood and Adulthood
The idea that childhood has constitutional import did not originate with the
Roberts Court. While the earliest constitutional cases involving juveniles to
reach the Supreme Court either involved protection of children via the rights of
their parents53 or recognition of rights co-extensive to the rights of adults,54
beginning in the mid-1900s the Court has recognized childhood in and of itself
as constitutionally significant.
The Court’s rationale in these early cases mirrors the scientific advances in
development that served as the basis for the majority opinions in the three
Roberts Court cases. For example, in Haley v. Ohio, a 1948 case regarding the
admissibility of a confession resulting from the custodial interrogation of a
fifteen-year-old, the Court directed that in cases involving juveniles, courts
must take “special care” in assessing the constitutionality of the interrogation.55
The Court reasoned that a juvenile “cannot be judged by the more exacting
standards of maturity . . . [where an interrogation occurs during] the period of
great instability which the crisis of adolescence produces.”56 This sentiment
was echoed again in Gallegos v. Colorado, a 1962 case in which the
interrogation of a fourteen-year-old was at issue.57 Rejecting the State’s
contention that the boy’s youth was immaterial as a “callous disregard of this
boy’s constitutional rights,” the Court reasoned that he “cannot be compared
with an adult in full possession of his senses and knowledgeable of the
consequences of his admissions.”58 These same concerns about the unique
characteristics of children also served as the basis of the Court’s determinations
to restrict rather than enhance the constitutional rights of juveniles by limiting
the procedural protections afforded in juvenile courts.59
52. See Miller, 132 S. Ct. at 2477, 2480-81 (Roberts, C.J., dissenting).
53. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (striking down a
compulsory education law because it conflicted with the constitutional right held by parents
to choose how to educate their children).
54. See, e.g., Powell v. Alabama, 287 U.S. 45, 71 (1932) (interpreting the Sixth
Amendment to require meaningful access to counsel to juveniles and adults charged with
capital offenses).
55. 332 U.S. 596, 599 (1948).
56. Id.
57. 370 U.S. 49, 49, 55 (1962).
58. Id. at 54.
59. McKeiver v. Pennsylvania, 403 U.S. 528, 531-34, 550-51 (1971) (relying on six
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The tenet inherent to each of these cases—that the limited maturity of
juveniles should be linked to specialized constitutional protection—has not
been limited to questions of criminal law. For example, in Ginsberg v. New
York, a 1968 case in which the Court addressed a First Amendment challenge
to a New York statute that prohibited the sale of obscene materials to minors,
the Court determined that the interest in protecting developing children was a
sufficiently rational basis to uphold the statute, even though it would be
unconstitutional if applied to adults.60 The use of the unique nature of
childhood to justify specialized, though restricted, constitutional protections for
children has also been in play in the Court’s abortion jurisprudence.61 In
Bellotti v. Baird, the hallmark case in this line (and a case relied upon by
Justice Sotomayor in the J.D.B. majority opinion),62 Justice Powell noted that
the Court had previously held that States may limit the rights of children,
writing, “[t]hese rulings have been grounded in the recognition that, during the
formative years of childhood and adolescence, minors often lack the
experience, perspective, and judgment to recognize and avoid choices that
could be detrimental to them.”63
Taken as a whole, there are more than six decades of Supreme Court
precedent—opinions written by both liberal and conservative justices—that
support the tenet that childhood is constitutionally significant. While the
scientific evidence the Roberts Court’s majorities have relied on was
unavailable for the great majority of these cases, the basic developmental
concepts upon which they rely are consistent throughout. I posit that the Court
should adhere to this precedent and continue its course of providing specialized
protections tethered to the unique characteristics of childhood.
prior rulings regarding procedural rights in juvenile court to determine that while juveniles
should be afforded some procedural protections required in adult proceedings, they were not
entitled to jury trials in delinquency proceedings).
60. Ginsberg v. New York, 390 U.S. 629, 636-43 (1968); see also id. at 649-50
(Stewart, J., concurring) (“[A]t least in some precisely delineated areas, a child-like someone
in a captive audience is not possessed of that full capacity for individual choice which is the
presupposition of First Amendment guarantees. It is only upon such a premise, I should
suppose, that a State may deprive children of other rights—the right to marry, for example,
or the right to vote—deprivations that would be constitutionally intolerable for adults.”).
61. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 899 (1992)
(holding that states may require parental consent for a minor to obtain an abortion so long as
there is an alternative means to obtain authorization for the procedure); Bellotti v Baird, 443
U.S. 622, 643 (1979) (same); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 75
(1976) (striking down a parental consent provision but recognizing that a minor’s
constitutional right to obtain an abortion may be subject to greater restrictions than an
adult’s).
62. See supra note 29 and accompanying text.
63. Bellotti, 443 U.S. at 635; see also id. at 640 (“As immature minors often lack the
ability to make fully informed choices that take account of both immediate and long-range
consequences, a State reasonably may determine that parental consultation often is desirable
and in the best interest of the minor.”).
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The recognition of this longstanding precedent does not, however, resolve
the question of where to draw the line between childhood and adulthood. The
first step to addressing this question, would be acknowledging that the
scientific advances apply beyond the age of eighteen. Doing so would lend a
degree of candor to both the Chief Justice’s Graham position and the
Exceptionalists’ overall position that is currently missing.
The second step requires consideration of the social and legal realities of
childhood, and particularly that one of the consequences of childhood is that
children are largely unable to control their environments and influences.
Statutory restrictions on the independence of children, including limitations on
the ability to move,64 establish a residence,65 and maintain employment,66 are in
keeping with social mores regarding the need to protect children, but also
exacerbate the developmental limitations on a juvenile’s ability to extricate
himself from a risky situation. The Exceptionalists referenced this reality in
expressing concern regarding the extraordinarily “brutal or dysfunctional”
home lives of many juveniles involved in the criminal system.67 For instance,
when describing the familial background of Evan Miller, the Court noted:
And if ever a pathological background might have contributed to a 14year-old’s commission of a crime, it is here. Miller’s stepfather physically
abused him; his alcoholic and drug-addicted mother neglected him; he had
been in and out of foster care as a result; and he had tried to kill himself four
68
times, the first when he should have been in kindergarten.
What the Exceptionalists missed an opportunity to do was to link the
concept of forced environmental and influential circumstances to their decision
64. In the majority of states, juveniles who attempt to leave their homes (whether
familial or foster homes) are treated as delinquent and may be incarcerated for doing so. See
Sonia R. Kedia, Creating an Adolescent Criminal Class: Juvenile Court Jurisdiction Over
Status Offenders, 5 CARDOZO PUB. L. POL’Y & ETHICS 543, passim (2007). The
criminalization of juveniles who leave home is allowable under federal law. See 28 C.F.R. §
31.304(h) (2012) (defining a “status offender” as a “juvenile offender who has been charged
with or adjudicated for conduct which would not, under the law of the jurisdiction in which
the offense was committed, be a crime if committed by an adult.”).
65. Even emancipated minors are subject to restrictions on the ability to contract,
including leases and rental agreements. See Sarah Katz, When the Child Is a Parent:
Effective Advocacy for Teen Parents in the Child Welfare System, 79 TEMP. L. REV. 535, 544
(2006).
66. The Fair Labor Standards Act restricts the number of hours children may work and
the forms of employment they may hold. 29 U.S.C. § 203(l) (2011).
67. Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012); see also Thompson v. Oklahoma,
487 U.S. 815, 835 n.42 (1988) (plurality opinion) (citing Dorothy Otnow Lewis, et al.,
Neuropsychiatric, Psychoeducational and Family Characteristics of 14 Juveniles
Condemned to Death in the United States, 145 AM. J. PSYCHIATRY 584, (1988)).
68. Miller, 132 S. Ct. at 2469.
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to draw the line at eighteen. Had they done so, they could have justified the line
by reasoning that, unlike one who has reached the age of majority, juveniles
largely cannot control where they live, where they attend school, their exposure
to crime and abuse, and the like. Because that lack of control places juveniles in
circumstances where their developmental limitations are likely to come into
play—in contrast to a person over eighteen who may have similar
developmental limitations but who has the legal ability to extricate himself
from such circumstances—there is a distinction that could justify enhanced
constitutional protections for those below the line. Acknowledging this reality
has the benefit of justifying the distinction between juveniles under the age of
eighteen and adults over the age of eighteen in a manner that comports with the
social constructs established in statutory and common law and scientific
advances regarding juvenile development.
II. THE HOMICIDE/NON-HOMICIDE LINE
The Roberts Court’s second line-drawing problem is of the Court’s own
making: the judicially-created distinction between homicide and non-homicide
offenses. As with line drawing regarding the distinction between childhood and
adulthood, the positions taken by the Exceptionalists, the Chief Justice, and the
Uniformists are peppered with internal inconsistencies and contradictions. I
began this Part with a discussion of how the various camps within the Roberts
Court have treated this distinction, and conclude with a proposed solution on
this point.
A. Importation of the Homicide/Non-Homicide Distinction Into the Juvenile
Cases
1. The Exceptionalists
The Exceptionalists’ vision of childhood is one in which juveniles are not
just “miniature adults”;69 rather, childhood is inherently distinct from
adulthood, particularly in how juveniles experience and respond to the world,
something that should be “self-evident to anyone who was a child once himself,
including any . . . judge.”70 But rather than use the unique characteristics of
childhood as a basis for defining enhanced constitutional protections for
juveniles, the Exceptionalists instead imported from the Court’s capital
jurisprudence the concept that the scope of constitutional protection is
dependent upon the nature of the crime charged.
The Supreme Court began drawing a line between homicide and non69. J.D.B. v. North Carolina, 131 S. Ct. 2394, 2397 (2011).
70. Id. at 2403.
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homicide offenses in the mid-1970s in analyzing whether the punishment of
death could be justified.71 But before Graham, in non-capital sentencing cases
the Court treated the severity of the crime of conviction as irrelevant in
establishing the scope of constitutional protection—set as a prohibition against
disproportionate sentences—and only relevant as one of the considerations
taken into account in determining whether a sentence was, in fact,
proportional.72 In other areas of constitutional criminal procedure, such as the
degree of protection afforded suspects during custodial interrogation, the nature
of the offense was entirely irrelevant to either the scope or application of the
protection.73 By ignoring the traditional treatment of the crime as irrelevant in
non-capital contexts, the Exceptionalists locked themselves into an interpretive
scheme that resulted in varied constitutional protections for juveniles that are at
times inconsistent with the very theory of childhood upon which they
simultaneously relied.
Nowhere is the problem with the Exceptionalists’ reliance on the
homicide/non-homicide division more obvious than in the vastly different
remedies afforded in Graham and Miller: fully categorical protection against a
life without parole sentence in non-homicide cases on the one hand, and mere
protection against the mandatory imposition of such sentences in homicide
cases on the other. In justifying the need for a categorical ban against life
without parole sentences in Graham, the Exceptionalists articulated three
reasons justifying the enhanced protection. First, even if sentencing judges
were required to consider age as a mitigator in assessing the proportionality of
the sentence, the transitory characteristics of youth are such that the sentencer
could not “with sufficient accuracy distinguish the few incorrigible juvenile
offenders from the many that have the capacity for change.”74 Second, the
impulsiveness and decreased ability to assess long-term consequences that are
part and parcel of childhood put juveniles at “a significant disadvantage” in
aiding in their own defense, which in turn could lead a sentencer to
71. See Kennedy v. Louisiana, 554 U.S. 407, 446 (2008) (invalidating a statute that
allowed imposition of the death penalty for rape of a child); Tison v Arizona, 481 U.S. 137,
157-58 (1987) (holding that the death penalty is not unconstitutional in felony murder cases
where the defendant substantially participated in the crime and acted with reckless
indifference); Enmund v. Florida, 458 U.S. 782, 801 (1982) (finding the death penalty
unconstitutional in a felony murder case where there was no proof that the defendant killed,
attempted to kill, or intended that the victims be killed); Coker v. Georgia, 433 U.S. 584, 598
(1977) (reasoning that the rape of an adult woman “does not compare with murder” and
therefore imposing capital punishment for rape was unconstitutional).
72. See, e.g., Solem v. Helm, 463 U.S. 277, 284-90 (1983) (explaining the basis for the
scope of the Eighth Amendment test of proportionality review without reference to the crime
of conviction).
73. See, e.g., Yarborough v. Alvarado, 541 U.S. 652, 660-64 (2004) (explaining the
basis for the reasonable person standard applied in custodial interrogation cases without
reference to the crime of conviction).
74. 130 S. Ct. 2011, 2031-32 (2010).
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“erroneously conclude” that a juvenile was deserving of life without the
possibility of parole.75 Third, life without parole “gives no chance for
fulfillment outside prison walls, no chance for reconciliation with society, no
hope,” and as such is inappropriate given juveniles’ unique capacity for
rehabilitation.76
Each of the three concerns voiced by the Exceptionalists in Graham were
based on the unique and transitory characteristics of childhood; the crime
charged was totally irrelevant. Indeed, in Miller, the Exceptionalists explicitly
stated that “none of what [Graham] said about children—about their distinctive
(and transitory) mental traits and environmental vulnerabilities—is crimespecific.”77 Further, the Miller Court once again noted the decreased ability of
juveniles to assist in their own defense and the import of juveniles’ capacity for
rehabilitation.78 Yet in Miller the Exceptionalists held that sentencing a juvenile
to life without parole was permissible, for now at least, so long as the sentencer
engaged in the same consideration of age and its attendant consequences that
was the subject of the Graham Court’s concern.79
The Exceptionalists tepidly justified the different results in the cases by
pointing to the homicide/non-homicide division.80 But while an increased
culpability in homicide cases may very well exist, that does not render a
sentencer somehow more capable of considering the complexities of childhood.
If anything the nature of the homicide offense is likely to make it more difficult
for a sentencer to give weight to a juvenile’s age and its consequences in a
meaningful way, not less. As the Exceptionalists noted in Graham, in homicide
cases there exists “an unacceptable likelihood . . . that the brutality or coldblooded nature of any particular crime would overpower mitigating arguments
based on youth as a matter of course .”81 Likewise, a charge of homicide does
not render juveniles more capable of assisting in their defense, nor does it
change the psychosocial developmental realities or anatomical differences in
the brain that make juveniles uniquely capable of rehabilitation as their
development continues. The complexities of childhood exist no matter the
crime of conviction.
A possible, though ultimately unsatisfactory, way to explain this
75.
76.
77.
78.
Id. at 2032.
Id. at 2032-33.
132 S. Ct. 2455, 2465 (2012).
Id. at 2468 (noting that a mandatory sentence “ignores that [the juvenile] might
have been charged and convicted of a lesser offense if not for incompetencies associated
with youth—for example, his inability to deal with police officers or prosecutors (including
on a plea agreement) or his incapacity to assist his own attorneys” and “disregards the
possibility of rehabilitation”).
79. Id. at 2475.
80. Id. at 2465.
81. Graham, 130 S. Ct. at 2032 (quoting Roper v. Simmons, 543 U.S. 551, 573 (2005))
(internal quotation marks omitted).
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inconsistency may be found in the concept of judicial minimalism. The
narrowest question that would provide relief to petitioners Miller and Jackson
was whether the mandatory nature of the sentence was constitutionally
permissible, and the Exceptionalists took pains to explicitly state they were
answering only that discrete question.82 Indeed, the Court’s post-Miller remand
for reconsideration of a California case in which the court imposed a
presumptive, though discretionary life without parole sentence on a juvenile,
supports the notion that the Exceptionalists do not see Miller as the end of the
story.83 Yet, even if Miller was extended to preclude presumptive sentences,
such a result still would not account for the three concerns expressed in
Graham. If it is impossible for a sentencer to differentiate the minority of
juveniles who are incorrigible from those who may be rehabilitated,84 if
juveniles are uniquely disadvantaged in criminal proceedings, and if a denial of
any chance at release does not comport with juveniles’ unique capacity to
reform, then a life without parole sentence is, by the Exceptionalists own
rationale, impermissible no matter the offense.
2. Chief Justice Roberts
In Chief Justice Roberts’s Miller dissent, he accused the Exceptionalists of
engaging in a “classic bait and switch.”85 Yet it is the Chief Justice’s own
opinions that may best be categorized as such. His Graham bait was that the
relevant line of consideration was between childhood and adulthood; he
embraced the constitutional significance of the unique and transitory qualities
of childhood (albeit requiring a more limited enhanced protection than the
Graham majority would allow).86 His Miller switch was that the relevant line
82. Miller, 132 S. Ct. at 2469. Though there was no such statement in J.D.B., the
requirement that age be considered in assessing custody was also the most limited holding to
afford J.D.B. Arguably, the Court could have prohibited the custodial interrogation of
juveniles in its entirety or under conditions that would rectify the vulnerabilities created by
age.
Normally, the conservative wing of the Court heralds judicial minimalism, but in the
juvenile cases, they have chastised the limited nature of the opinions. Compare, e.g.,
Graham, 130 S. Ct. at 2018 (“The issue before the Court is whether the Constitution permits
a juvenile offender to be sentenced to life in prison without parole for a non-homicide
crime.”), with id. at 2052 n.11 (Thomas, J., dissenting) (“[I]t seems odd that the Court counts
only those juveniles sentenced to life without parole and excludes from its analysis all
juveniles sentenced to lengthy term-of-years sentences (e.g., over 70 or 80 years’
imprisonment).”).
83. Mauricio v. California, 133 S. Ct. 524 (2012); see also Lyle Deniston, A Puzzle on
Juvenile
Sentencing,
SCOTUSBLOG
(Nov.
16,
2012,
5:20
p.m.),
http://www.scotusblog.com/2012/11/a-puzzle-on-juvenile-sentencing/.
84. See Graham, 130 S. Ct. at 2029.
85. 132 S. Ct. at 2481 (Roberts, C.J., dissenting).
86. 130 S. Ct. at 2039 (Roberts, C.J., concurring).
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of consideration was the division between homicide and non-homicide cases,
relegating considerations of childhood to a matter of mere public policy.87
The foundation of the Chief Justice’s Graham concurrence was an
understanding of two lines of precedential cases: the first requiring the
consideration of the individual culpability to ensure sentences are proportional
in non-capital cases and the second requiring enhanced constitutional
protection of juveniles resulting in a prohibition against imposition of capital
sentences.88 Regarding the non-capital cases, the Chief Justice relied on cases
involving non-homicide crimes.89 But the capital cases on which he relied both
involved juveniles convicted of homicide offenses: Thompson v. Oklahoma90
and Roper v. Simmons,91 in which the Court first determined that the execution
of the youngest, and ultimately all juveniles, was unconstitutional. Marrying
the two lines of precedent, the Chief Justice explained his position:
[T]he fact that Roper does not support a categorical rule barring life sentences
for all juveniles does not mean that a criminal defendant’s age is irrelevant to
those sentences. On the contrary, our cases establish that the “narrow
proportionality” review applicable to noncapital cases itself takes the personal
“culpability of the offender” into account in examining whether a given
punishment is proportionate to the crime. There is no reason why an
offender’s juvenile status should be excluded from the analysis. Indeed, given
Roper’s conclusion that juveniles are typically less blameworthy than adults,
92
an offender’s juvenile status can play a central role in the inquiry.
The relevant link between Graham’s sentence and the capital sentences in
87. 132 S. Ct. at 2478-81 (Roberts, C.J., dissenting). The inconsistencies between the
Chief Justice’s Graham concurrence and Miller dissent were not lost on the Miller majority.
See id. at 2466 n.6 (“Indeed, THE CHIEF JUSTICE ignores the points made in his own
concurring opinion.”). Justice Kagan’s critique is not the first time the Chief Justice has been
chastised for mistreating precedent. Commentators have likened the ability of the
conservative branch of the Roberts Court to overrule precedent while maintaining that they
were leaving the prior decision untouched to the illusion performed by escape artists. See
Barry Friedman & Dahlia Lithwick, Watch as We Make This Law Disappear: How the
Roberts
Court
Disguises
Its
Conservativism,
SLATE
(Oct.
4,
2010),
http://www.slate.com/articles/news_and_politics/jurisprudence/2010/10/watch_as_we_make
_this_law_disappear.single.html (noting that “[t]his trick has been used so frequently that
conservatives and liberals alike came up with a name for it: ‘stealth overruling.’”).
88. Graham, 130 S. Ct. at 2037-38 (Roberts, C.J., concurring).
89. Id. (citing Harmelin v. Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S.
277 (1983)).
90. 487 U.S. 815 (1988) (holding that execution of juveniles under the age of sixteen
violates the Eighth and Fourteenth Amendments).
91. 543 U.S. 551 (2005) (holding that the execution of juveniles under the age of
eighteen violates the Eighth Amendment).
92. Graham, 130 S. Ct. at 2039 (Roberts, C.J., concurring) (emphasis added) (citations
omitted).
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Thompson and Roper, in other words, was the juvenile defendants’ transitory
qualities of youth: a lack of maturity, susceptibility to outside influences, and a
greater capacity for rehabilitation.93
In fact, in his Graham concurrence, when discussing the nature of the
crime of conviction he pointedly did not draw a line between homicide and
non-homicide cases. Instead, to the extent he suggested a line could be drawn it
would be between sex crimes and homicides on one hand and other nonhomicide crimes on the other. And he still determined that crimes on both sides
of his line required proportionality review that included consideration of age
and its attendant consequences. For example, in applying his proposed
proportionality review to Terrence Graham’s case, he paid particular attention
to how the alleged crime leading to Graham’s probation violation and
subsequent life without parole sentence was “certainly less serious than other
crimes, such as murder or rape,”94 but also stated that he would mandate that
proportionality review be available for all non-homicide offenses (including
sex crimes).95 Indeed, at oral argument in Graham and its companion case,
Sullivan v. Florida, the Chief Justice suggested that the distinction between
homicide and non-homicide cases was negligible.96
Yet, when the Miller majority largely co-opted the Chief Justice’s Graham
concurrence,97 Chief Justice Roberts’ support for the constitutionally unique
93. Id. at 2038.
94. Id. at 2039-40 (Roberts, C.J., concurring) (emphasis added); see also id. at 2040
(differentiating between Graham’s probation violation and crimes committed by “murderers
and rapists”). The Uniformists noted this distinction with disapproval. Id. at 2057 (Thomas,
J., dissenting) (“[The concurrence] recoils only from the prospect that the Court would
extend the same presumption to a juvenile who commits a sex crime. I simply cannot accept
that these subjective judgments of proportionality are ones the Eighth Amendment
authorizes us to make.” (citations omitted)).
95. Id. at 2039 (Roberts, C.J., concurring).
96. See Graham Transcript, supra note 40, at 13 (“Wouldn’t it make sense to
incorporate the consideration of the juvenile status into the proportionality review? So that if
you do have a case where it’s the 17-year-old who is one week shy of his 18th birthday and
it is the most grievous crime spree you can imagine, you can determine in that case life
without parole may not be disproportionate. But if . . . it’s a less grievous crime and there is,
for example, a younger defendant involved, then in that case maybe it is disproportionate.”
(emphasis added)); Transcript of Oral Argument at 18, Sullivan v. Florida, 130 S. Ct. 2059
(2010) (No. 08-7621) (stating that he believed proportionality review to be an appropriate
approach despite the fact that he believed Sullivan’s non-homicide offense to be
“horrendously violent”); cf. Graham, 130 S. Ct. at 2042 (Roberts, C.J., concurring) (“The
Court is of course correct that judges will never have perfect foresight—or perfect wisdom—
in making sentencing decisions . . . . It is also true when they sentence juveniles who commit
murder no less than when they sentence juveniles who commit other crimes.”).
97. Miller v, Alabama, 132 S. Ct. 2455, 2463-64, 2467 (2012). Justice Kagan’s
majority opinion quoted Chief Justice Robert’s Graham concurrence liberally. See id. at
2466 (quoting Roberts’ discussion in his Graham concurrence regarding the central role age
should play in proportionality review); see also id. at 2470 (quoting Roberts’ Graham
concurrence as distinguishing Harmelin from cases involving juveniles).
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nature of childhood evaporated. Though in Graham he stated that the capital
context was irrelevant because the import of the cases was the distinction
drawn between juveniles and adults,98 in Miller he declined to apply Roper
because it “invok[ed] ‘special’ Eighth Amendment analysis for death penalty
cases.”99 Instead, the distinction between homicide and non-homicide offenses
became paramount, with the Chief Justice reasoning that the division meant
Graham lacked precedential value in any case involving a homicide.100
Focused now on distinguishing homicide from non-homicide cases, the
Chief Justice concentrated his efforts on addressing the extent to which the
imposition of life without parole sentences was or was not unusual in each type
of case.101 To show that such sentences were not unusual in homicide cases,
and therefore not “cruel and unusual,” Chief Justice Roberts grounded his
argument in comparing homicide and non-homicide statistics related to the
number of states that authorize the sentence and the number of times the
sentence is imposed as compared to arrests for each type of offense.102 His use
of these “objective criteria,”103 however, ultimately does not support his
98. Graham, 130 S. Ct. at 2038 (Roberts, C.J., concurring).
99. 132 S. Ct. at 2481 (Roberts, C.J., dissenting). The Chief Justice went on to argue
that Roper rested on the presumption that “the death penalty was not needed to deter juvenile
murderers in part because ‘life imprisonment without the possibility of parole’ was
available,” so the application of Roper in a homicide case was “a classic bait and switch.” Id.
Had Roper been limited to homicide cases, this distinction may have carried some weight,
but it was not. Although Donald Roper had been convicted of a homicide, nowhere in the
Roper opinion did the Court limit its holding to homicide convictions, see 543 U.S. 551, and
at the time the Roper decision was announced certain forms of felony murder where the
defendant did not commit nor intend the homicide and some sex offenses were still deatheligible crimes, see Kennedy v. Louisiana, 554 U.S. 407 (2008) (holding that the imposition
of the death penalty for the crime of child rape violates the Eighth Amendment); Tison v.
Arizona, 481 U.S. 137, 157-58 (1987) (upholding the death sentence of two defendants
convicted of felony murder).
100. Miller, 132 S. Ct. at 2481 (Roberts, C.J., dissenting). Pointing to the line drawn in
Graham between homicide and non-homicide cases, the Chief Justice remarked, “[a] case
that expressly puts an issue in a different category from its own subject, draws a line
between the two, and states that the two should not be compared, cannot fairly be said to
control that issue.” Id. This is an overstatement of Graham, which treated the two types of
offenses as qualitatively different and asserted that juveniles who commit homicides are
more culpable than juveniles who commit non-homicides, but the Graham Court did not go
so far as to say that a homicide offense raises the level of culpability beyond constitutional
protection. See 130 S. Ct. at 2027.
101. Compare Graham, 130 S. Ct. at 2038 (Roberts, C.J., concurring), with Miller, 132
S. Ct. at 2478-79 (Roberts, C.J., dissenting).
102. Miller, 132 S. Ct. at 2479 (Roberts, C.J., dissenting).
103. Despite the moniker, the use of these statistics is not objective, whether used by
the Chief Justice, the Exceptionalists, or the Uniformists. The Justices make subjective
determinations regarding which of the two types of statistics really matter in a given case. In
Graham, for example, the Exceptionalists (and by extension the Chief Justice)
acknowledged that thirty-nine jurisdictions allowed life without parole to be imposed against
juveniles convicted of non-homicides, but discounted that statistic by noting that the actual
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conclusion that the sentencing of juveniles to life without the possibility of
parole in homicide cases is a normal, rather than unusual, occurrence.
The Chief Justice pointed out that in non-homicide cases, although thirtynine of the states allowed the life without parole sentence to be imposed, when
compared to arrests, the actual imposition of the sentence was extremely
rare.104 By contrast, in homicide cases, though only twenty-nine states allowed
the mandatory imposition of life without parole sentences, the sentence was
imposed at a rate per arrest approximately 5000 times higher than life without
parole in non-homicide cases.105
Assume, as the Chief Justice does, that both the ratio of sentences to arrests
rather than the number of states allowing the sentence was the proper factor
and that the arrest statistics are an accurate denominator.106 Utilizing the Chief
Justice’s figures, the mandatory imposition of life without parole sentences
imposition of the sentence is exceedingly rare, particularly when contrasted with the number
of juveniles arrested each year for non-homicide offenses. 130 S. Ct. at 2023-25. In Miller,
the Exceptionalists reversed the degree of importance, relying heavily on the fact that only
twenty-nine states authorized mandatory sentences of life without parole in homicide cases
despite a higher imposition to arrest ratio. 132 S. Ct. at 2471-72. The Uniformists,
unsurprisingly, came to the opposite conclusion in each case regarding the importance of the
two types of statistics. Id. at 2478-79 (Roberts, C.J., dissenting); 130 S. Ct. at 2049-52
(Thomas, J., dissenting). Though the math is arguably objective, the manner by which the
Justices use the data is not.
104. Miller, 132 S. Ct. at 2478-79 (Roberts, C.J., dissenting).
105. Id. at 2479.
106. Even if the use of the statistics could be objectively employed, the Justice’s
reliance on arrest data to draw their conclusions undermines its value. Because arrest
statistics do not report either the number of juveniles arrested or the number of crimes
committed, the statistics may under or over report the number of juveniles in the relevant
cohort. CHARLES PUZZENCHARA & BENJAMIN ADAMS, U.S. DEP’T OF JUSTICE, OFFICE OF
JUVENILE JUSTICE & DELINQUENCY PREVENTION, JUVENILE ARRESTS 2009, at 2 (2011). In
particular, the statistics do not represent the number of crimes committed because a single
person who is arrested for multiple offenses is counted once (which could result in under
reporting) and a group of people arrested for a single crime—a common occurrence with
juveniles—is counted once for each member of the group (which could result in over
reporting). Id.; see also APA Brief, supra note 12, at 17-18 (“Juvenile crime is significantly
correlated with exposure to delinquent peers. Not surprisingly, therefore, adolescents are
much more likely than adults to commit crimes in groups.”). Due to these deficiencies in the
data, there is no way of knowing whether the data can be used to accurately reveal the
frequency by which life without parole sentences are imposed.
Arrest data is also problematic because it does not account for changes in arrest rates
over time. The Chief Justice presumed, for example, that arrests remained consistent over the
approximately forty years during which juveniles have been sentenced to life without parole.
See Miller, 132 S. Ct. at 2478-79 (Roberts, C.J., dissenting). However, arrest rates for
homicides committed by juveniles have fluctuated over time and are lower in recent years
than in the past. PUZZENCHARA & ADAMS, supra, at 4-5. Unless the imposition of life without
parole sentences on juveniles has fluctuated in the same way—a data point that is not
currently available—the use of the data is limited because it does not accurately convey
whether there is an upward or downward trend in imposing the sentence.
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occurs in less than 4.5% of cases.107 The interpretation of such a low level of
frequency as normal is suspect. As Douglas Berman has noted, “the text of the
Eighth Amendment does not demand that a punishment be ‘very unusual’ to be
unconstitutional, it only demands that a punishment be ‘unusual.’”108 In other
words, even if the homicide/non-homicide distinction rather than the
childhood/adulthood distinction were the proper measure, the constitutionality
of imposing a life without parole sentence on a juvenile convicted of homicide
is dubious.
3. The Uniformists
The Uniformists’ treatment of the homicide/non-homicide distinction fares
no better under scrutiny than that of the Chief Justice or the Exceptionalists.
The evidence they rely on for the purpose of showing that no juvenile,
regardless of conviction, should be afforded special constitutional protections
actually supports both the elimination of the division between homicide and
non-homicide offenses and the conclusion that juveniles are constitutionally
exceptional.
When a non-homicide case was in front of the Court in Graham, the
Uniformists repeatedly emphasized just how close to homicides many nonhomicides are, thereby seeking to invalidate any distinction between the
offenses.109 For example, in dissent the Uniformists described, in excruciating
detail, the rape and violent assault of a seventeen-year-old girl by a teenage boy
in Oklahoma.110 Likewise, during oral argument Justice Alito stressed how
similar non-homicide and homicide offenses are. In particular, he referenced
two examples of violent sex offenses committed by youth in Florida, pointedly
107. To reach this figure I accept as true the Chief Justice’s determination that there are
2000 people serving life without parole sentences for crimes committed as juveniles, Miller,
132 S. Ct. at 2479 n.1, and the presumption that the number of such sentences imposed was
consistent over the approximately forty years during which such sentences have been
imposed. This results in a numerator of fifty. I also use as the denominator the 1170 juvenile
arrests for homicide in 2009 relied upon by the Chief Justice. See id.
108. Douglas A. Berman, Questioning Forceful (but Suspect) Claims by the Varied
Miller Dissents: The Roberts/Textualism Numbers, SENTENCING LAW & POLICY (June 26,
2012), http://sentencing.typepad.com.
109. The Uniformists’ argument that culpability was not dependent on offense was
absent in the Miller dissent. Instead, the Uniformists emphasized just how heinous a murder
(albeit a hypothetical one) might be. For example, Justice Alito writing for the dissent
complained that “[e]ven a 17 ½-year-old who sets off a bomb in a crowded mall or guns
down a dozen students and teachers is a ‘child’ and must be given a chance to persuade a
judge to permit his release into society.” Miller, 132 S. Ct. at 2487 (Alito, J., dissenting). See
also Transcript of Oral Argument at 10-11, Miller, 132 S. Ct. 2455 (No. 10-9646)
[hereinafter Miller Transcript].
110. Graham, 130 S. Ct. at 2051 (Thomas, J., dissenting).
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questioning Graham’s counsel as to whether he was aware of the cases.111 In
essence, the Uniformists argued that that the difference between homicide and
non-homicide cases is negligible, and may occur by chance rather than design,
and therefore a juvenile whose victim survives is no less—and therefore no
more—culpable than one whose victim does not.
The Uniformists’ emphasis on the similarities between homicide and nonhomicide offenses is nowhere to be seen, however, in the three Miller dissents.
While each dissent notes the tension in the Exceptionalists’ treatment of
homicides and non-homicides,112 the Uniformists focus their attention on
drawing distinctions within the cohort of juveniles convicted of homicide. In
particular, the Uniformists attempt to cast the fourteen-year-old petitioners in
Miller and its companion case as “carefully selected”113 outliers that are
distinguishable from older juveniles who make up the majority of juveniles
convicted of homicide offenses.114 In Justice Alito’s dissent, for example, he
directed that:
[N]o one should be confused by the particulars of the two cases before us. The
category of murderers that the Court delicately calls “children” (murderers
under the age of 18) consists overwhelmingly of young men who are fast
approaching the legal age of adulthood. Evan Miller and Kuntrell Jackson are
anomalies; much more typical are murderers like Donald Roper, who
115
committed a brutal thrill-killing just nine months shy of his 18th birthday.
This tactic of distinguishing between older, and purportedly more
criminalistic juveniles,116 and younger, arguably more sympathetic juveniles,
does little to ameliorate the Uniformists’ argument in Graham that there is no
difference in culpability between juveniles who commit homicide and non111. Graham Transcript, supra note 40, at 17-18.
112. See Miller, 132 S. Ct. at 2478-80 (Roberts, C.J., dissenting); id. at 2482-84
(Thomas, J., dissenting); id. at 2489-90 (Alito, J., dissenting).
113. Miller, 132 S. Ct. at 2489 (Alito, J., dissenting).
114. See, e.g., J.D.B. v. North Carolina, 131 S. Ct. 2394, 2409 (2011) (Alito, J.,
dissenting) (“[M]any minors subject to police interrogation are near the age of majority, and
for these suspects the one-size-fits-all Miranda custody rule may not be a bad fit”); Miller,
132 S. Ct. at 2489 n.1 (Thomas, J., dissenting) (referencing Department of Justice statistics
regarding murder rates among seventeen-year-olds); Miller Transcript, supra note 109, at
10-11; Graham Transcript, supra note 40, at 13.
115. Miller, 132 S. Ct. at 2489 (Alito, J., dissenting). Justice Alito used a similar
technique in J.D.B. At oral argument, he sought to distance the thirteen-year-old petitioner
from older teens. Transcript of Oral Argument at 13, J.D.B. v. North Carolina, 131 S. Ct.
2394 (2011) (No. 09-11121) (“Well, sympathetic cases can make bad law. So take the same
set of facts and let’s hypothesize that this is a 15-year-old. Would the 15-year-old appreciate
that he could go? Or make him 16. Or make him a street-wise 17-year-old.”).
116. The Uniformists attempt to link age and severity of homicide is suspect, as it is
supported only by a few anecdotes and hypotheticals. See Miller, 132 S. Ct. at 2489 (Alito,
J., dissenting). While homicide rates are highest among older youth, available studies of
crime rates make no attempt to assess the nature of homicides. See, e.g., Puzzenchara &
Adams, supra note 106.
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homicide offenses, a position that could very well justify a full extension of the
Graham categorical ban to homicide offenses. What is more, the focus on older
juveniles actually lends credence to the notion that there are juveniles for whom
a sentence of life without the possibility of parole is disproportionate and
therefore unconstitutional,117 an idea which is in direct competition with the
Uniformists’ position that the Constitution would not require recognition of
some lower bound of age.118 If the goal of focusing on outliers is to prove that
juveniles are not unique, emphasizing what is unique about younger juveniles is
illogical.119 As even Justice Alito acknowledged, regardless of the nature of the
offense, it is “hard not to feel sympathy for a 14-year-old sentenced to life
without the possibility of release.”120
B. A Proposed Solution to the Homicide/Non-Homicide Problem
In each of the Supreme Court’s prior decisions in which the constitutional
rights of children were either enhanced or restricted, the rationale employed by
the Court to define the scope of those specialized rights was the unique nature
of childhood.121 Further, within the Court’s non-capital sentencing
117. Cf. Wendy Kaminer, Juvenile Sentencing: Alito’s Misguided Dissent, ATLANTIC
(June
27,
2012,
9:35
AM
EST),
http://www.theatlantic.com/national/archive/2012/06/juvenile-sentencing-alitos-misguideddissent/259007. (“But if some members of the juvenile murder category are atypical and
inappropriate candidates for LWOP, that, Alito suggested, is their misfortune. In his view,
8th Amendment strictures against cruel and unusual punishment do not bar states from
imposing excessively harsh sentences on a few juveniles who may not deserve them in order
to facilitate their imposition on many teenagers who do.”).
118. See supra notes 36-39, 43-46 and accompanying text.
119. The Uniformists’ position in J.D.B suffers from a similar lack of logic. There they
do not dispute that the transient qualities of youth render juveniles less likely than a
“reasonable” adult to understand that they may refuse to participate in an interrogation.
Instead, they attempt to show that childhood is unexceptional because it is one of several
characteristics that disadvantage individuals subjected to the criminal system. J.D.B., 131 S.
Ct. at 2414-15 (Alito, J., dissenting) (“Why, for example, is age different from intelligence? .
. . How about the suspect’s cultural background? Suppose police learn . . . that a suspect they
wish to question is a recent immigrant from a country in which dire consequences often
befall a person who dares to attempt to cut short any meeting with the police. Is this really
less relevant than the fact that a suspect is a month or so away from his 18th birthday? The
defendant’s education is another personal characteristic that may generate ‘conclusions about
behavior and perception.’”). In doing so, the Uniformists make an interesting case for
arguing that, just as its application to juveniles is unfair, the “reasonable person” standard
may be unjustly applied to adults with unique characteristics that are generalizable to all
adults in a class and that render them unable to understand that they may leave an
interrogation. Cf. Atkins v. Virginia, 536 U.S. 304, 306-07, 318-20 (2002) (basing the
prohibition against executing people with mental retardation on arguments similar to those
utilized by the Roper Court to reach its holding that executing juveniles was
unconstitutional).
120. Miller, 132 S. Ct. at 2489 (Alito, J., dissenting).
121. See supra Part I.C.
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jurisprudence preceding Graham, the nature of the constitutional right afforded
was applicable across categories of offense, rather than dependent upon the
crime of conviction.122 Likewise, in other areas of criminal procedure, the
crime alleged is irrelevant to the scope of the constitutional protection, just as it
was in J.D.B.123
To adhere to these lines of precedent, the scope of enhanced rights of
juveniles in the criminal system should be based on the unique transitory
qualities of youth and applied with equal vigor to all children. As such, the
severity of the crime alleged should be relevant only as appropriate, such as in
assessing proportionality in sentencing, whereas the scope of the enhanced
protection should be tethered to the transitory characteristics that make
juveniles unique.
III. WHY THE COMPLEXITIES OF CHILDHOOD MATTER
The tensions in the positions taken by the Exceptionalists, the Chief
Justice, and the Uniformists reveal the intricacies of line drawing at the
intersection of the Constitution, childhood, and crime. Addressing these
complexities matters both because the contradictions in these cases may result
in confusion on related issues and because they call into question the legitimacy
of the Roberts Court’s ability to make reasoned determinations in this arena.
The three juvenile cases do not exist in a vacuum. The Court’s failure to
express a rationale for drawing the line between childhood and adulthood at
eighteen, for example, leaves the lower courts in limbo regarding how to treat
evidence of developmental immaturity in defendants between eighteen-years of
age and their mid-twenties and, as such, are neither juveniles by the Court’s
definition nor fully developmentally mature. Though the Supreme Court has
repeatedly held that age and its attendant consequences must be considered as a
mitigating factor in proportionality review,124 the Roberts Court’s cases could
be read to suggest that advances regarding childhood development are only
relevant to defendants under eighteen. My proposed explanation for that line—
122. See supra notes 72-73 and accompanying text.
123. See supra note 74 and accompanying text.
124. See, e.g., Johnson v. Texas, 509 U.S. 350, 367 (1993) (ruling that sentencers must
consider the “mitigating qualities of youth”); Eddings v. Oklahoma, 455 U.S. 104, 115-17
(1982) (overturning death sentence imposed on a sixteen-year-old because the judge failed to
consider the corrosive family circumstances experienced by the juvenile); cf. Solem v. Helm,
463 U.S. 277, 292-94, 303 (1983) (describing proportionality review in the context of life
without parole sentences to require a review of the culpability of the individual defendant);
Roberts v. Louisiana, 428 U.S. 325, 333-36 (1976) (plurality opinion) (holding that
consideration of mitigating factors was constitutionally required in determining whether
death penalty would be imposed); Woodson v. North Carolina, 428 U.S. 280, 304-05
(plurality opinion) (1976) (invalidating a death penalty statute that did not allow
consideration of the defendant’s characteristics).
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which incorporates both advances in our understanding of childhood
development and legal constructions that inhibit juveniles’ ability to extricate
themselves from risky environments—makes plain that enhanced constitutional
protections are limited to juveniles under eighteen without undermining the
relevance of scientific evidence in the individual culpability determinations of
defendants slightly above that age restriction.
Likewise, the Roberts Court’s homicide/non-homicide distinction provides
insufficient guidance to the lower courts. A comparison of the ease of applying
J.D.B., in which the distinction did not exist, and Graham and Miller, in which
it did, exemplifies this point. The J.D.B. Court’s employment of a reasonable
juvenile standard in the custodial interrogation context—a holding that is not
hampered by the artificial homicide/non-homicide distinction—provides a
strong basis by which lower courts may assess whether considerations of
childhood play a role in other areas of criminal law where a “reasonable
person” standard is traditionally employed, such as in analyses of duress and
provocation.125 In sharp contrast, because each contingent within the Court
relied on and then at least partially abandoned the homicide/non-homicide
distinction, the question of how lower courts and legislatures should treat
felony murder, which is on the threshold between homicide and non-homicide,
remains uncertain.126 My proposal to provide enhanced protections based on
the unique characteristics of childhood rather than on the crime charged, would
resolve that problem.
But even if one does not agree with my proposed solutions, the
inconsistencies in the Roberts Court’s treatment of childhood should be of
concern. Public confidence in the Court’s ability to issue legally sound
decisions consistent with the rule of law is arguably at an all-time low.127 The
failure of all factions of the Roberts Court to address these juvenile cases in a
consistent, coherent, and candid manner can only serve to exacerbate the
public’s concerns.
The need to exhibit a reasoned ability to engage in complex line drawing at
the intersection of the constitution, childhood, and crime is likely to come to a
head again soon given that the decisions raised but did not answer additional
125. For an analysis of the way the Court’s reasoning in J.D.B. could be extended to
other “reasonable person” contexts, see Marsha L. Levick & Elizabeth-Ann Tierney, The
United States Supreme Court Adopts a Reasonable Juvenile Standard in J.D.B. v. North
Carolina, for the Purposes of the Miranda Custody Analysis: Can a More Reasoned Justice
System for Juveniles Be Far Behind?, 47 HARV. C.R.-C.L. L. REV. 501, 505-06, 517-26
(2012).
126. Justices Breyer and Sotomayor have suggested that felony murder should be
treated as a non-homicide offense. See Miller v. Alabama, 132 S. Ct. 2455, 2475-77 (2012)
(Breyer, J., concurring).
127. See, e.g., Tom Cohen, No Matter What It Does, High Court Is Seen as Political,
CNN (June 28, 2012, 9:40 PM), http://www.cnn.com/2012/06/28/politics/supreme-courtpublic-confidence/index.html.
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line-drawing questions. For example, it is unclear whether a lengthy term of
years sentence falls within “life without the possibility of parole,” and the
lower courts have reached mixed conclusions on that point. The California
Supreme Court, for example, has determined that a term of years sentence of
110 years to life for a non-homicide offense violated the categorical prohibition
against life without parole sentences established in Graham,128 whereas the
Sixth Circuit has held that an eighty-nine year sentence does not.129 The
Roberts Court will undoubtedly be confronted with the need to draw a line
between what is and is not a “life” sentence. The Court also will likely be faced
with the question of where to draw the line teed up by Graham between a
meaningful and meaningless opportunity for release.130
Given the rapidity with which questions related to the Robert Court’s
treatment of childhood are moving through the lower courts, the Court may
have a chance to remedy the line-drawing deficiencies I have identified here as
early as the 2012-2013 session;131 it should take the opportunity to do so.
128. See People v. Caballero, 55 Cal. 4th 262, 265 (2012).
129. See, e.g., Joe Palazzolo, The Next Big Juvenile Sentencing Case?, WALL ST. J. L.
BLOG, (July 6, 2012, 10:43 AM), http://blogs.wsj.com/law/2012/07/06/the-next-big-juvenilesentencing-case (describing plans to file a writ of certiorari in a Sixth Circuit term of years
case in which the Sixth Circuit held that a sentence of eighty-nine years applied to a sixteenyear-old was not the equivalent of life without the possibility of parole).
130. See, e.g., Graham v. Florida, 130 S. Ct. 2011, 2030 (2010) (“A State’s rejection of
rehabilitation, moreover, goes beyond a mere expressive judgment. As one amicus notes,
defendants serving life without parole sentences are often denied access to vocational
training and other rehabilitative services that are available to other inmates.”). Other
questions related to the requirement of a “meaningful opportunity” for release include how
early and often the opportunity should be afforded and the reliability of any parole or
resentencing process employed. See, e.g., Graham Transcript, supra note 40, at 7-8 (Chief
Justice Roberts noting that if, for example, a review did not occur until after fifty years had
been served and only one in twenty candidates were granted release: “I think it suggests that
the line you would draw is—is pretty artificial—or certainly suggests that the next case we
will get is somebody with life with parole after 50 years.”).
131 See Palazzolo, supra note 129.