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1485

COMMENT

FROM PIONEER TO PUNISHER: AMERICA’S QUEST TO FIND ITS JUVENILE JUSTICE

IDENTITY

TABLE OF CONTENTS

I. INTRODUCTION ..................................................................... 1486

II. THE UNITED STATES AS JUVENILE JUSTICE PIONEER ........ 1487

III. FORMALIZATION OF THE U.S. JUVENILE JUSTICE SYSTEM . 1492 A. Setting the Stage for Intervention ................................ 1492 B. The “Constitutional Domestication” of the Juvenile

Justice System .............................................................. 1495

IV. A PUNITIVE IMPERATIVE: THE DECADES AFTER GAULT ..... 1500 A. Public Opinion and the Media..................................... 1500 B. Legislative Response..................................................... 1502 C. Judicial Response ......................................................... 1504

V. BRIEF HISTORY OF THE JUVENILE DEATH PENALTY IN THE UNITED STATES ............................................................ 1506

I would like to thank my parents, Alan and Debbie, who have loved and encouraged me every step of the way. Additionally, I owe a debt of gratitude to Professor Ellen Marrus for her mentorship throughout law school and for challenging me to see this topic from a new perspective. I would also like to thank Shayna for her unwavering support, which, unlike the assertions in this Comment, needs no substantiation. Finally, I am tremendously grateful to the editors of the Houston Law Review for their hard work and attention to detail in preparing this Comment for publication.


1486 HOUSTON LAW REVIEW [51:5

VI. GETTING THE UNITED STATES BACK ON TRACK: ROPER, GRAHAM, AND MILLER ......................................................... 1507 A. Roper v. Simmons ........................................................ 1508 B. Graham v. Florida ........................................................ 1509 C. Miller v. Alabama ........................................................ 1511

VII. ELIMINATING JUVENILE LIFE WITHOUT PAROLE ................ 1513

VIII. CONCLUSION ...................................................................... 1516

I. INTRODUCTION

From its putative founding in 1899, the American juvenile justice system has struggled to find an identity.1 Initially, the system embraced benevolent ideals, recognizing the special situation of children and calling for a framework specifically crafted to address their needs.2 But as time progressed, the winds of juvenile justice began to shift in a completely different direction.3 The structural flaws of the institution became exposed, and the social climate of the times called for reform.4 This dramatic shift culminated in the U.S. Supreme Court’s landmark 1967 decision In re Gault,5 which began transforming the juvenile court into an institution noticeably different from the one envisioned by early reformers.6

In Parts II through IV, this Comment takes an in-depth look at the history of the American juvenile justice system. In doing so, it exposes the United States’ struggle to find its juvenile justice identity. This tension is particularly evident in America’s juvenile sentencing practices, which are discussed in Part V. For years, the United States lagged behind the rest of the world by continuing to sentence juveniles to death or life without parole.7

1. Compare infra Part II (describing how the early American juvenile justice system emphasized rehabilitation for youthful offenders), with infra Part IV (explaining the juvenile justice system’s adoption of a punitive philosophy). 2. See infra Part II (reviewing the early beginnings of the U.S. juvenile justice system). 3. See infra Part III (examining the formalization of the U.S. juvenile justice system). 4. See infra Part III.A (dissecting the influences leading up to the Supreme Court’s In re Gault decision). 5. In re Gault, 387 U.S. 1 (1967). 6. Barry C. Feld, The Transformation of the Juvenile Court, 75 MINN. L. REV. 691, 691 (1991). 7. See Executions of Juveniles Since 1990, AMNESTY INT’L, http://www.amnesty.org/ en/death-penalty/executions-of-child-offenders-since-1990 (last visited Apr. 14, 2014) (finding that since 1990, only the United States and eight other countries have executed juvenile offenders); see also Juvenile Life Without Parole, AMNESTY INT’L, http://www.amnestyusa.org/ our-work/issues/children-s-rights/juvenile-life-without-parole (last visited Apr. 14, 2014)


2014] FROM PIONEER TO PUNISHER 1487

But a string of U.S. Supreme Court decisions starting in 2005 has put the United States back on track in terms of juvenile sentencing.8 Part VI explores those cases. Finally, this Comment concludes by arguing that the United States should harness that judicial momentum, categorically abolish juvenile life without parole, and regain its status as a leader in juvenile justice.9

II. THE UNITED STATES AS JUVENILE JUSTICE PIONEER

The United States once stood as a pioneer in terms of juvenile justice, viewed as a “moral and legal model” for the rest of the world.10 Part of this reputation stemmed from America’s creation of a separate court exclusively for juvenile offenders, the first court of its kind found anywhere across the globe.11 Prior to the court’s creation, “juveniles were tried in criminal courts like everyone else, with their youth being most relevant on the question of criminal responsibility.”12 Under the common law doctrine of infancy, children younger than seven were immune from prosecution for their alleged criminal acts, and children between seven and fourteen had a rebuttable presumption of innocence.13 Youths fourteen and older, however, were treated in the same manner as adults for their criminal acts.14 Although the infancy defense sought to assuage the “harshness of trying and punishing children as adults . . . young children were still at times sentenced to prison and occasionally to death, and executed.”15 Adult institutions were hardly appropriate for

(stating that the United States is believed to be the only country that imposes life without parole sentences on juveniles). 8. See Miller v. Alabama, 132 S. Ct. 2455, 2466 (2012) (holding that mandatory life without parole sentences for juveniles violate the Eighth Amendment); Graham v. Florida, 560 U.S. 48, 71–73 (2010) (holding that juvenile life without parole sentences for nonhomicide offenses violate the Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 568–69 (2005) (holding that capital punishment for juveniles violates the Eighth Amendment). 9. See infra Part VII (arguing that juvenile life without parole is incompatible with the Eighth Amendment). 10. Paolo G. Annino, Children in Florida Adult Prisons: A Call for a Moratorium, 28 FLA. ST. U. L. REV. 471, 474 (2001). 11. Robert E. Shepherd, Jr., Juvenile Justice: A Birthday Cake or a Funeral Pyre—The Juvenile Court at 100 Years, JUV. & FAM. CT. J., Fall 1999, at 9, 9. But see Sanford J. Fox, Juvenile Justice Reform: An Historical Perspective, 22 STAN. L. REV. 1187, 1229–30 (1970) (arguing that the policies behind the law that established the first juvenile court could “hardly be described as a milestone of progress”). 12. Shepherd, supra note 11, at 9. 13. Id. 14. Id. 15. Id.



children,16 evidenced by one shocking example of a ten-year-old boy who died in 1876 at a Virginia penitentiary after “being scalded in a tub of boiling coffee.”17

Stronger reforms were needed to protect juveniles because the infancy defense was simply inadequate.18 One such reform was the creation of Houses of Refuge, the first of which was established in New York in 1825.19 The New York House of Refuge removed juvenile offenders from prison and “inculcat[ed] them with middle-class values—neatness, diligence, punctuality, and thrift.”20 It stressed “work, education, and morality,” encouraging reform by a “complex system of rewards and punishments.”21 The idea behind Houses of Refuge grew in popularity, and similar Houses began sprouting up in Philadelphia, Boston, and other cities.22

The Houses of Refuge eventually faced a constitutional challenge on the grounds that the state should not be allowed to commit a juvenile to an institution without due process rights.23 The Pennsylvania Supreme Court, however, rejected that argument.24 Relying on the concept of parens patriae,25 the court

16. See Annino, supra note 10, at 474 (noting that the adult prisons and jails were places where children were often “brutalized and killed by adult inmates and where hardened criminals became the children’s moral mentors”). 17. Shepherd, supra note 11, at 9. Virginia was not the only state experiencing these sorts of issues. Mrs. Joseph T. Bowen, The Early Days of the Juvenile Court, in THE

CHILD THE CLINIC AND THE COURT (New Republic 1925), reprinted in The First Juvenile Court in Chicago (Cook County), Illinois, 1899–1900, in JUVENILE OFFENDERS FOR A

THOUSAND YEARS 450 (Wiley B. Sanders ed., 1970); First Annual Report of the Board of Public Charities of North Carolina (1870), reprinted in Delinquent Children in North Carolina, 1869–1899, in JUVENILE OFFENDERS FOR A THOUSAND YEARS, supra at 410. For instance, Lucy L. Flower, one of the founders of the juvenile justice system, observed in Illinois “many pitiful cases of little children confined in the police stations or the jails and of one boy, in the former place, who had been bitten by rats.” Bowen, supra, at 450. 18. Shepherd, supra note 11, at 9. 19. Id. 20. ROBERT M. MENNEL, THORNS & THISTLES: JUVENILE DELINQUENTS IN THE

UNITED STATES 1825–1940, at 18 (1973). 21. JAMES C. HOWELL, JUVENILE JUSTICE & YOUTH VIOLENCE 7 (1997). 22. Id. 23. Ex parte Crouse, 4 Whart. 9, 10–11 (Pa. 1839) (per curiam); see also C. Antoinette Clarke, The Baby and the Bathwater: Adolescent Offending and Punitive Juvenile Justice Reform, 53 U. KAN. L. REV. 659, 665 (2005) (“It must be noted . . . that the initial innovation represented by the Houses of Refuge was not universally appreciated, largely due to the failure of the courts to use recognized due process principles when committing children to these institutions. Thus, constitutional challenges were quick to materialize.” (footnote omitted)). 24. Crouse, 4 Whart. at 11. 25. Parens patriae is a Latin phrase meaning “parent of his or her country.” BLACK’S LAW DICTIONARY 1221 (9th ed. 2009).



upheld the practice of the Houses of Refuge.26 This same parens patriae concept would later provide the legal basis for another critical reform in the juvenile justice system—the juvenile court.27

Illinois created the world’s first juvenile court in 1899 in Cook County, Illinois,28 pursuant to the Illinois Juvenile Court Act.29 The Act gave the court jurisdiction over “delinquent children under sixteen who committed criminal offenses.”30 Presided over by the Honorable R.S. Tuthill,

It [was] perhaps the first legal tribunal where law and science, especially the science of medicine and those sciences which deal with human behavior, such as biology, sociology, and psychology, work[ed] side by side. It recognize[d] the fact that the law unaided is incompetent to decide what is adequate treatment of delinquency and crime.31

The juvenile court sought to evaluate the needs of the juvenile offender and then, with those needs in mind, determine the best rehabilitative solution.32 To facilitate this process, the court often utilized the expertise of outside specialists, including “child psychologists and social workers.”33 In contrast to adult criminal courts, the juvenile courts took an understanding approach whereby judges placed less emphasis on the rigid rules of law and instead focused on a resolution that served both the

26. Crouse, 4 Whart. at 11. The doctrine of parens patriae has its roots in feudal England. HERBERT H. LOU, JUVENILE COURTS IN THE UNITED STATES 3 (1927). In feudal times, the crown “assumed supervision over the estates of minors in order to realize the fruits of tenure and of livery to the overlord.” Id. Eventually, that authority would rest with the court of chancery, “through which the king . . . in his capacity of parens patriae assumed the general protection not only of infant tenants but of all infants in his kingdom.” Id. With America’s independence and transplanting of English common law, the individual states now function as parens patriae of all minors. Id. at 4. But see In re Gault, 387 U.S. 1, 16 (1967) (explaining how the meaning of parens patriae is “murky and its historic credentials are of dubious relevance”). 27. HOWELL, supra note 21, at 7. 28. Clarke, supra note 23, at 667. Cook County includes the city of Chicago. Id. at 667 n.28. Cook County’s large population made it the only county under the Act to qualify for a separate court. Id. 29. DONALD J. SHOEMAKER & TIMOTHY W. WOLFE, JUVENILE JUSTICE 26–27 (2005). 30. NANCY E. MARION, CRIMINAL JUSTICE IN AMERICA: THE POLITICS BEHIND THE

SYSTEM 263 (2002). The court also exercised jurisdiction over a much wider array of situations, including children who were homeless, abandoned, neglected, or dependent upon the public for support. Id. 31. LOU, supra note 26, at 2; Julian W. Mack, The Juvenile Court, 23 HARV. L. REV. 104, 107 (1909). 32. Ira M. Schwartz, Neil Alan Weiner & Guy Enosh, Nine Lives and Then Some: Why the Juvenile Court Does Not Roll Over and Die, 33 WAKE FOREST L. REV. 533, 536 (1998). 33. Id.



child’s best interests and society’s goals.34 Breaking even further from the norm of traditional courts, the juvenile court employed procedures that were rather “brief and superficial,” often consisting of nothing more than the judge informally conversing with the juvenile, gaining his trust, and asking about the offense charged.35 In sum, the juvenile court approached its cases with an eye towards compassion and understanding, and it did so by eradicating the perceived impediments to justice that plagued traditional criminal courts.36

The Illinois Act marked a new era of juvenile justice.37 Besides creating a separate juvenile court, it shifted the focus within that court from punishment to rehabilitation.38 In order to minimize stigma associated with being labeled a criminal, the Act created a confidentiality policy for juvenile court records.39 Probation was mentioned for the first time.40 Moreover, the Act mandated that juveniles be separated from adults when placed in the same institution.41 Lastly, it barred placing children under age twelve in jails altogether.42

The juvenile justice reforms in the United States served as a model for the rest of the world.43 Not long after Illinois instituted

34. LOU, supra note 26, at 2. The rejection of the adult approach was so strong, in fact, that even “the vocabulary of the criminal system was discarded and replaced by more palatable terminology.” Lanes v. State, 767 S.W.2d 789, 791–92 (Tex. Crim. App. 1989) (en banc). For example, “[t]erms such as ‘trial,’ ‘criminal,’ and ‘imprisonment’ were replaced with the softer terms of ‘hearing,’ ‘juvenile delinquent’ . . . and ‘commitment.’” Id. 35. Shepherd, supra note 11, at 10; see also John J. Kenney, The Juvenile Court: Pioneer in Social Jurisprudence, 16 MARQ. L. REV. 184, 186 (1932) (describing the juvenile court procedure as “socialized and parental in nature”). This compassionate framework of juvenile courts stood in sharp contrast to adult criminal courts, which were “restrained by antiquated procedure [and] saturated in an atmosphere of hostility.” LOU, supra note 26, at 2. 36. LOU, supra note 26, at 2. 37. See Shepherd, supra note 11, at 10 (describing the Act’s reforms as “unique” in what they did). While this Comment favorably portrays the Illinois legislation and Chicago’s model court, a fair examination of history reveals that such achievements were far from “immaculate” and often took time to develop. David S. Tanenhaus, The Evolution of Juvenile Courts in the Early Twentieth Century: Beyond the Myth of Immaculate Construction, in A CENTURY OF

JUVENILE JUSTICE 42, 43 (Margaret K. Rosenheim et al. eds., 2002). For instance, the Illinois Act provided “no public funding for probation officers, for a detention home for children, or for a physical structure to house the new court.” Id. at 50. 38. Barry C. Feld, Bad Law Makes Hard Cases: Reflections on Teen-Aged Axe-Murderers, Judicial Activism, and Legislative Default, 8 LAW & INEQ. 1, 11 (1989); Shepherd, supra note 11, at 10. 39. Shepherd, supra note 11, at 10. 40. Fox, supra note 11, at 1229. 41. Shepherd, supra note 11, at 10. 42. Id. 43. Mack, supra note 31, at 107–08; see also Schwartz, Weiner & Enosh, supra note 32, at 535 (“[T]he juvenile court has spawned reproductions and lookalikes . . . in many countries throughout the world.”).



the first juvenile court, other U.S. jurisdictions created similar courts,44 as did Great Britain, Ireland, Canada, and Australia.45 By 1925, fourteen additional countries had created separate court systems for children.46 Even in places that did not establish separate juvenile courts, the principles underlying such courts were enforced through parliamentary or administrative measures.47

Great Britain provides an excellent illustration of the type of influence the early American juvenile justice reforms had worldwide.48 Great Britain traces the origins of its juvenile court system to the Children Act of 1908.49 Like the American reforms, this Act set forth lofty goals with hopes that “if local authorities efficiently discharge their duties under this Statute the cruel treatment and wilful neglect to which childlife has hitherto been exposed will henceforth be impossible.”50

This “Magna Charta of children”51 found roots in the same principles as those underlying the American system.52 For example, it recognized that “the juvenile offender is clearly distinguished from the adult criminal, and is treated on entirely different lines, viz. with a view to reformation rather than to punishment.”53 Accordingly, milder sentences like probation became acceptable punishments under the Act.54 Further, the Act recognized the dangers of placing children in prisons and therefore mandated that a “child offender is no longer to be sent

44. Clarke, supra note 23, at 667. “Wisconsin and New York quickly followed [Illinois’s lead] with similar juvenile courts in 1901 . . . .” Id. “Ohio and Maryland created [their courts] in 1902. . . . [and] Arkansas implemented its juvenile system in 1911.” Id. “By 1925, juvenile courts existed in all but two states, Maine and Wyoming.” Id. 45. Mack, supra note 31, at 107. 46. Vincent Schiraldi & Steven A. Drizin, 100 Years of the Children’s Court—Giving Kids the Chance to Make Better Choices, CORRECTIONS TODAY, Dec. 1999, at 24, 24. Those countries included Argentina, Austria, Belgium, Brazil, Croatia, France, Germany, Hungary, India, Japan, Madagascar, the Netherlands, Spain, and Switzerland. Id. 47. Mack, supra note 31, at 107–08. 48. See infra text accompanying notes 50–57 (describing the underlying principles of the American juvenile justice system that Great Britain drew upon in its own juvenile justice reformation). 49. Children Act of 1908, 8 Edw. 7, c. 67 (Eng.); Anthony Bottoms & James Dignan, Youth Justice in Great Britain, in 31 YOUTH CRIME AND YOUTH JUSTICE: COMPARATIVE

AND CROSS-NATIONAL PERSPECTIVES 21, 22 (Michael Tonry & Anthony N. Doob eds., 2004). 50. L.A. ATHERLEY JONES & HUGH H.L. BELLOT, THE LAW OF CHILDREN AND YOUNG

PERSONS viii (1909). 51. Id. at vii. 52. See id. at 283–84 (noting how the Act acknowledged that children differed from adult offenders and that rehabilitation, not punishment, should be the primary objective). 53. Id. at 283. 54. Id. at 284.



to prison, to become a gaol-bird before he is even tried.”55 Instead, the law required release on bail for any child involved in minor offenses.56 If the situation necessitated pretrial detention, the juvenile offenders were held in a place of detention provided especially for them, so as to prevent any association with adult criminals.57

The reforms in Great Britain, however, did not completely mirror those in the United States.58 One notable difference pertains to the way in which Great Britain instituted special courts for juvenile offenders.59 Where the American juvenile courts softened their procedural components, the special courts in Great Britain remained “criminal courts of due process.”60 Besides the requirement that judges hold juvenile hearings “in a separate building or at a different time from adult courts,” there was little to distinguish these courts from other lower courts.61 Despite this observation, the institution of special courts for juveniles was still considered one of the greatest reforms to come out of the Children Act of 1908.62 And even though noticeable differences existed between the American and British juvenile justice models, both appear to share fundamental underlying principles.63

III. FORMALIZATION OF THE U.S. JUVENILE JUSTICE SYSTEM

A. Setting the Stage for Intervention

The juvenile justice reforms of the early twentieth century recognized that children were uniquely situated.64 At the same time, the juvenile court provided a vehicle through which to expand the state’s power as parens patriae, in effect allowing the

55. Id. at 283. 56. Id. 57. Id. Even after trial and sentencing, a child could not be sent to prison “unless the court certifie[d] that he [was] of such unruly or depraved a character that he [could not] be detained in a place of detention.” Id. at 284. 58. Bottoms & Dignan, supra note 49, at 22. 59. Id. at 22–23. 60. Id. 61. Id. at 23. 62. JONES & BELLOT, supra note 50, at 285. 63. See supra text accompanying notes 50–57 (observing that the early juvenile justice reforms in both the United States and Britain embraced the notion that juvenile offenders differed from adult criminals and that greater emphasis should be placed on rehabilitation). 64. See BARRY C. FELD, BAD KIDS: RACE AND THE TRANSFORMATION OF THE

JUVENILE COURT 79 (1999) (noting how the “Progressive juvenile court embodied the idea of childhood vulnerability”).



court to assert greater “social control over young people’s lives in their ‘best interests.’”65 Despite these significant powers held by the juvenile court, “few people questioned the idea of the juvenile court as a judicialized welfare system or as a therapeutic agency of social control for the first two-thirds of the twentieth century.”66 It was not until the 1960s that the cultural and legal foundations of the juvenile court were critically reexamined, culminating in the landmark In re Gault decision in 1967.67 But in order to fully appreciate the magnitude of Gault and its progeny, it is important to investigate the weaknesses of the juvenile justice system in the decades preceding Gault, along with the social climate that provided the impetus for change.

In rejecting several attributes of traditional criminal courts, the “juvenile court system had been designed [as] an informal, rehabilitative alternative to criminal court[s].”68 The juvenile court was rooted in the notion that by eliminating the rigidities of the adult system, it could create an informal and open environment that would facilitate a more efficient, personalized resolution of the case.69 While such an ideal was noble in theory, it had the practical effect of denying juveniles a number of constitutional and procedural rights, especially due process.70 “Because the system was designed to help rather than punish and all were charged with acting in the child’s best interests, the procedural and constitutional rights inherent in the adult system were deemed unnecessary, and, in fact, counter to the juvenile system’s goals.”71

The procedural guarantees normally afforded to adults were considered detrimental to the juvenile system’s cornerstones of “flexibility, swiftness, openness, honesty and simplicity.”72 In addition to the procedural deficiencies, juvenile courts in many states were not subject to appellate review and few records of their

65. Id. 66. Id. 67. Id. 68. Daniel A. Ross, Note, Rethinking the Road to Gault: Limiting Social Control in the Juvenile Court, 1957–1972, 98 VA. L. REV. 425, 426 (2012) (citing ELLEN RYERSON, THE BEST-LAID PLANS: AMERICA’S JUVENILE COURT EXPERIMENT 150, 153 (1978)). 69. Lanes v. State, 767 S.W.2d 789, 792 (Tex. Crim. App. 1989) (en banc). 70. Id.; see also Jeffrey A. Butts & Daniel P. Mears, Reviving Juvenile Justice in a Get-Tough Era, 33 YOUTH & SOC’Y 169, 173–74 (2001) (“The informality and individualization that was so highly valued by social reformers and youth advocates in the early 1900s made the juvenile court vulnerable from a due process perspective.”). 71. Lanes, 767 S.W.2d at 792; accord In re Winship, 397 U.S. 358, 375 (1970) (Harlan, J., concurring) (“It is of great importance . . . that procedural strictures not be constitutionally imposed that jeopardize the essential elements of the State’s purpose in creating juvenile courts. . . .” (internal quotation marks omitted)). 72. Lanes, 767 S.W.2d at 792–93.



proceedings were kept.73 As a result, the juvenile justice system went unchecked for decades.74

The juvenile justice system possessed a number of inherent flaws that needed to be addressed.75 But along with these institutional defects came a social climate that helped shape the reforms of the juvenile system.76 Juvenile delinquency became an important public issue in the early 1940s, evidenced by a rise in juvenile crime starting in 1941.77 Additionally, juvenile experts predicted an even larger crime wave in the future.78 The nation had experienced “a wave of adolescent misbehavior” during the years following World War I, and a similar spike was expected after World War II.79 Sensational journalism exacerbated the issue by giving the impression that young Americans “were running wild in the streets.”80

Juvenile delinquency, now viewed as a national problem, drew attention from the country’s highest leaders.81 For example, Florida Senator Claude Pepper headed a Senate subcommittee that investigated the causes of delinquency.82 After the war, U.S. Attorney General Tom Clark directed much of his attention to curbing the perceived growing problem of delinquency.83 Clark established an Attorney General’s Panel on Juvenile Problems and persuaded President Harry Truman

73. See, e.g., In re Gault, 387 U.S. 1, 10 (1967); Weissenberg v. Bradley, 229 N.W. 205, 209 (Iowa 1930); In re Santillanes, 138 P.2d 503, 511 (N.M. 1943); see also Ross, supra note 68, at 426 (noting that many states lacked records and appellate review). 74. In re Gault, 387 U.S. at 10; FELD, supra note 64, at 79. 75. See supra text accompanying notes 70–74 (discussing the shortcomings of juvenile courts); see also Ellen Marrus, “That Isn’t Fair, Judge”: The Costs of Using Prior Juvenile Delinquency Adjudications in Criminal Court Sentencing, 40 HOUS. L. REV. 1323, 1330 (2004) (“Prior to 1966, the juvenile courts were constitutionally unrestrained.”). 76. See infra notes 86–90 and accompanying text (identifying a number of social factors that provided an impetus for juvenile justice reform). 77. JAMES GILBERT, A CYCLE OF OUTRAGE: AMERICA’S REACTION TO THE JUVENILE

DELINQUENT IN THE 1950S, at 25 (1986). While there is agreement that at least some increase in juvenile crime occurred during and after WWII, the magnitude of such increase is largely debatable due to the “notoriously imprecise” crime reporting statistics of the era. Id. at 26. Despite this imprecision, the public remained convinced that delinquency posed a major threat to domestic tranquility. Id. 78. Id. at 26–28. 79. Id. at 27. The nation expected a rise in juvenile crime because delinquency was a problem rooted in the family structure. Id. Thus, as war disrupted families, children were increasingly “subjected to pressures that in theory . . . would lead them to misbehave.” Id. at 28. 80. Id. at 26, 29. 81. Id. at 26. 82. Id. 83. Id. at 37.



to issue a proclamation urging the nation’s governors and mayors to hold delinquency conferences in their respective states and cities.84

Even the American Bar Association, not normally an activist organization, initiated its own investigations into the causes of delinquency.85 These measures, along with the continuing coverage of delinquency by radio, television, magazines, and newspapers, kept the spotlight on juvenile delinquency well into the 1950s, causing great alarm to the public.86 Following the 1950s, the 1960s witnessed heightened race issues,87 a demographic bulge created by the baby-boom generation,88 the emergence of a youth culture heavily influenced by mass media,89 and a dramatic increase in youth crime90—all of which contributed to the need for juvenile justice reform.91

B. The “Constitutional Domestication” of the Juvenile Justice System

An inherently flawed design devoid of due process, a perceived post-war rise in juvenile delinquency, and escalating social turmoil paved the way for significant reforms to the juvenile justice system. Beginning in the 1960s, “the legal foundations of the . . . juvenile justice system began to unravel completely.”92 The “legitimacy of state benevolence, the goal of rehabilitation, and the efficacy of coerced treatment” were all called into question.93 Legal activists also began to challenge the seemingly unbridled discretion of juvenile court judges.94

Public criticism of the juvenile courts intensified as the courts started to display many negative attributes of traditional criminal courts.95 For instance, the caseloads of juvenile courts

84. Id. at 37, 48. 85. Id. at 64. 86. Id. at 63. One poll taken in 1959 even “suggested that delinquency was viewed more seriously than open-air testing of atomic weapons or school segregation or political corruption.” Id. 87. FELD, supra note 64, at 83. 88. Id. at 82. “In absolute numbers the youth population grew . . . from 27 million in 1960 to 42 million in 1971.” Id. 89. Id. at 82–83. 90. Id. at 83 (“As the children of the baby boom reached their crime-prone teenage years beginning in the mid-1960s, the rates of serious violent and property crimes increased more than 75 percent . . . .”). 91. See id. at 80–83 (discussing the factors that influenced juvenile justice reform). 92. Butts & Mears, supra note 70, at 173. 93. FELD, supra note 64, at 79. 94. Butts & Mears, supra note 70, at 174. 95. Id.



grew to the point of overwhelming judges and their staffs.96 The courtrooms themselves “fell into disrepair.”97 Moreover, the professional status associated with a juvenile court appointment declined among judges, and lawmakers displayed more and more skepticism about the sustainability of the juvenile justice ideal.98

With the woes of the juvenile justice system coming to a head, the Supreme Court finally intervened in 1967 with In re Gault.99 The Court’s opinion criticized the juvenile system and its courts for their unsatisfactory results.100 “Juvenile Court history,” Justice Fortas proclaimed, “has again demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.”101 The Court noted how the absence of procedural rules, which were originally believed to inhibit juvenile justice,102 served only to produce unfairness and arbitrariness that amounted to denial of due process.103 And, as the Court explained, “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”104

In order to mend the procedural deficiencies that plagued the juvenile system and its “kangaroo” courts,105 the Court

96. Id. 97. Id. 98. Id. 99. FELD, supra note 64, at 79. While Gault generally marks the most significant turning point in the history of the juvenile justice system, it cannot be considered the first case to address procedural issues in the juvenile system. See FELD, supra note 64, at 98–99 (noting that Gault “inaugurated the due process revolution of the juvenile court”); see also Kent v. United States, 383 U.S. 541, 561–62 (1966) (holding, one year prior to Gault, that juvenile courts must conduct a hearing before a juvenile is transferred to an adult criminal court for a criminal trial). 100. In re Gault, 387 U.S. 1, 17–19 (1967). 101. Id. at 18. 102. See supra note 71 and accompanying text (noting that the procedural guarantees in the adult system were perceived to be at odds with the goals of the juvenile system); see also Monrad G. Paulsen, The Constitutional Domestication of the Juvenile Court, 1967 SUP. CT. REV. 233, 239 (“The historic leaders of the juvenile court movement firmly believed that formal procedure in the court was, at best, excess baggage and, at worst, positively harmful.”). 103. In re Gault, 387 U.S. at 18–19; see also Paulsen, supra note 102, at 240 (“The [Gault] opinion asserts that failure to observe due process has resulted in instances of unfairness and of inaccurate findings of fact.”). The facts of Gault illustrate just how unfair the juvenile system could be. See In re Gault, 387 U.S. at 4–7 (recounting the lack of due process Gerald Gault received after he and a friend were picked up by the police for allegedly engaging in lewd telephone calls). Ultimately, if Gault, a fifteen-year-old boy, had been convicted as an adult, he would have been eligible to receive a maximum punishment of a $50 fine or two months’ imprisonment. Id. at 29. But adjudicated as a juvenile delinquent, he faced the possibility of incarceration for the remainder of his minority—up to six years. Id. 104. In re Gault, 387 U.S. at 13. 105. Id. at 28 (“Under our Constitution, the condition of being a boy does not justify a kangaroo court.”). While several state and federal judicial opinions have used the phrase



“engrafted formal trial procedures onto the juvenile court’s individualized treatment sentencing scheme.”106 More specifically, the Court held that juveniles were entitled to the right to notice of charges,107 counsel,108 confrontation and cross-examination,109 and protection against self-incrimination.110 With this decision, the Court turned its back on the paternalistic model of juvenile courts and replaced it with the adversarial model more akin to criminal courts.111 It did so in order to “limit the state, to constrain discretion, and to protect people’s freedom and liberties.”112

Some worried that the infusion of procedural formalities into the juvenile justice system would impair the system’s ability to operate effectively.113 But the Court assured that effectiveness would not be hampered by the system’s “constitutional domestication.”114 As the “primary and indispensable foundation of individual freedom,”115 due process was “a precious gift [that] should not be withheld from children.”116

Where the juvenile courts of the early twentieth century sought to distance themselves from adult criminal courts, Gault marked the beginning of the opposite trend—that is, a

“kangaroo court,” Justice Fortas’s use of the term in Gault is by far the most famous. Parker B. Potter, Jr., Antipodal Invective: A Field Guide to Kangaroos in American Courtrooms, 39 AKRON L. REV. 73, 102 (2006). The phrase is typically used as an invective, impugning the fairness of the tribunal being labeled “kangaroo.” Id. at 74. 106. Feld, supra note 6, at 691. 107. In re Gault, 387 U.S. at 33 (“Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded . . . .”). 108. Id. at 41 (“We conclude that the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency . . . the child and his parents must be notified of the child’s right to be represented by counsel . . . .”). 109. Id. at 57 (“We now hold that, absent a valid confession, a determination of delinquency . . . cannot be sustained in the absence of sworn testimony subjected to the opportunity for cross-examination . . . .”). 110. Id. at 55 (“We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults.”). The Court also addressed Gault’s denial of the right to a transcript of the proceeding and the right to appellate review, but it made no ruling with regards to these rights. Id. at 58; Paulsen, supra note 102, at 236. 111. FELD, supra note 64, at 95. 112. Id. The Gault decision fell within the Warren Court’s larger “due process revolution,” which sought to “expand civil rights, to protect minorities from state officials, to impose the rule of law and procedural restraints on official discretion, and to infuse governmental services with greater equality.” Id. at 96. 113. In re Gault, 387 U.S. at 79–81 (arguing that imposing procedural requirements on juvenile proceedings would be “a long step backwards”). 114. Id. 115. Id. at 20. 116. Paulsen, supra note 102, at 241.



“procedural and substantive convergence of the juvenile and the adult criminal justice systems.”117 This idea, that delinquency proceedings should mimic criminal proceedings, was expounded upon by a number of subsequent Supreme Court cases, such as In re Winship.118 There, the Court held the “beyond a reasonable doubt” standard to be the most appropriate for delinquency proceedings.119 In line with its rationale in Gault, the Court chose the highest standard of proof because it wanted “to protect juveniles against unwarranted convictions, to guard against abuses of governmental power, and to ensure public confidence in the administration of . . . criminal law.”120

The dissent, however, showed concern.121 Chief Justice Burger worried that the majority’s decision further eroded key differences between juvenile courts and traditional criminal courts that made juvenile courts particularly adept at handling “sensitive problems of youthful offenders.”122 Burger perceived the juvenile system restricted enough as is, and he viewed increased procedure and legal formalities as a suffocating force on juvenile courts.123 He even warned the Court of where this dangerous line of jurisprudence may lead: “[E]ach step we take turns the clock back to the pre-juvenile-court era. I cannot regard it as a manifestation of progress to transform juvenile courts into criminal courts, which is what we are well on the way to accomplishing.”124

Despite Chief Justice Burger’s admonition, the Court took up the issue of double jeopardy protections for juveniles five years later in the case of Breed v. Jones.125 Here again, the Court based its reasoning on the “functional equivalence and identical interests of defendants in delinquency proceedings and adult criminal trials.”126

Although the juvenile-court system had its genesis in the desire to provide a distinctive procedure and setting to deal with the problems of youth . . . our decisions in recent years have recognized that there is a gap between the originally

117. FELD, supra note 64, at 98–99. 118. In re Winship, 397 U.S. 358 (1970). 119. Id. at 368. 120. FELD, supra note 64, at 103; see also In re Winship, 397 U.S. at 367. 121. In re Winship, 397 U.S. at 375–76 (Burger, C.J., dissenting). 122. Id. 123. Id. at 376 (“What the juvenile court system needs is not more but less of the trappings of legal procedure and judicial formalism; the juvenile court system requires breathing room and flexibility in order to survive, if it can survive the repeated assaults from this Court.”). 124. Id. 125. Breed v. Jones, 421 U.S. 519, 528–31 (1975). 126. FELD, supra note 64, at 103–04.



benign conception of the system and its realities. . . . [T]he Court’s response to that perception has been to make applicable in juvenile proceedings constitutional guarantees associated with traditional criminal prosecutions.127

Finding the burdens and risks of double jeopardy to be just as prevalent in juvenile proceedings as in adult criminal prosecutions,128 the Court held that the Fifth Amendment’s Double Jeopardy Clause prohibits a state from criminally reprosecuting a youth as an adult after previously convicting him for the same offense in a juvenile delinquency proceeding.129

With this line of jurisprudence, the Court effectively transformed the juvenile court from a “nominally rehabilitative social welfare agency into a formal legal institution.”130 By injecting various procedural formalities into the juvenile courts, the Supreme Court embraced the adversarial model well known to traditional criminal courts, and it acknowledged juvenile offenders as a subgroup of criminal defendants—a view in sharp contrast to the one adopted by the early juvenile justice reformers.131 Additionally, by impugning the parens patriae rationale supporting juvenile courts, the Supreme Court “provided the impetus to reexamine the underlying premises of juvenile courts.”132 Ultimately, that reexamination resulted in a procedural and substantive convergence of juvenile courts with criminal courts,133 rendering obsolete the juvenile court as envisioned by the reformers of the early twentieth century.134

127. Breed, 421 U.S. at 528–29. 128. Id. at 531. 129. Id. at 541. 130. FELD, supra note 64, at 80, 103–04. This assertion, however, should not be overstated because the Supreme Court did not impose every traditional procedural safeguard on the juvenile system. Id. at 104. For instance, in McKeiver v. Pennsylvania, a plurality of the Court failed to extend the right to a jury trial to the adjudicative stage of juvenile courts. McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971). McKeiver represented a major setback for juvenile delinquents and stood as somewhat of an anomaly in this line of jurisprudence. Marrus, supra note 75, at 1334. Cases like Gault and Winship held procedural protections to be compatible with the juvenile courts, whereas McKeiver argued that the right to a jury trial would “disrupt juvenile courts, substantially alter their informal practices, and bring ‘the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial.’” FELD, supra note 64, at 105–07 (quoting McKeiver, 403 U.S. at 550). 131. FELD, supra note 64, at 106–07. 132. Id. at 107. 133. Feld, supra note 6, at 691–92. 134. Butts & Mears, supra note 70, at 174.



IV. A PUNITIVE IMPERATIVE: THE DECADES AFTER GAULT

A. Public Opinion and the Media

Although the Supreme Court may not have intended “to alter the juvenile court’s therapeutic mission . . . [the subsequent] legislative, judicial, and administrative responses to Gault [and its progeny] have modified the court’s jurisdiction, purpose, and procedures.”135 One of the chief driving forces behind such changes came from the public’s perception of juvenile offending, which appeared to be increasingly serious and violent in the decades after Gault.136 “[T]he ominous increase in juvenile crime,” observed FBI Director Louis Freeh, “coupled with population trends portend future crime and violence at nearly unprecedented levels.”137 Taking this fear to the polls, voters passed a number of state propositions “allowing greater numbers of juveniles to be tried as adults.”138

Public leaders quickly weighed in on the issues, often decrying the juvenile institution. For instance, Los Angeles County District Attorney Gil Garcetti stated, “We need to throw out our entire juvenile justice system . . . [and] replace it with one that both protects society from violent juvenile criminals and efficiently rehabilitates youths who can be saved—and can differentiate between the two.”139

Alfred Regnery, President Reagan’s Administrator of the Office of Juvenile Justice and Delinquency Prevention, argued that juvenile offenders were “criminals who happen to be young, not children who happen to commit crimes.”140 He further contended that delinquents were “getting away with

135. Feld, supra note 6, at 691. 136. Richard E. Redding, Naomi E. Sevin Goldstein & Kirk Heilbrun, Juvenile Delinquency: Past and Present, in JUVENILE DELINQUENCY 3, 5 (Kirk Heilbrun et al. eds., 2005). 137. Linnet Myers, Crime Decrease Flashes Warning: Youth Offenses Signal Dangers for the Future, CHI. TRIB., Nov. 19, 1995, at 3. Juvenile homicide rates more than doubled in the United States between 1985 and 1993. Redding, Goldstein & Heilbrun, supra note 136, at 5. Not all, however, were convinced of the crime statistics and trends. Michael Welch, Melissa Fenwick & Meredith Roberts, Primary Definitions of Crime and Moral Panic: A Content Analysis of Experts’ Quotes in Feature Newspaper Articles on Crime, 34 J. RES. CRIME &

DELINQ. 474, 483 (1997). For instance, Howard Snyder, director of systems research at the National Center of Juvenile Justice in Pittsburgh, noted how “[t]he figures wiggle from year to year like the stock market . . . . Crime has been up so high, you’d expect it to go back down.” Fox Butterfield, Serious Crimes Fall for Third Year, but Experts Warn Against Seeing Trend, N.Y. TIMES, May 23, 1995, at A14. 138. Redding, Goldstein & Heilbrun, supra note 136, at 5. A 1993 Gallup Poll showed 73% of respondents favored trying violent juveniles as adults. Id. at 6. 139. Richard Lacayo, When Kids Go Bad, TIME, Sept. 19, 1994, at 60, 61. 140. Redding, Goldstein & Heilbrun, supra note 136, at 6.



murder . . . and that rehabilitation was a folly.”141 Congressman Bill McCollum of Florida, who was a key sponsor of a bill that permitted thirteen-year-olds to be tried as adults in federal court, concluded that “in America today, no population poses a greater threat to public safety than juvenile criminals.”142

Just as the media had sensationalized the problem of juvenile delinquency in the years following World War II,143 the media in the decades following Gault once again played a key role in fanning the juvenile justice fire.144 The media advocated a “get tough” approach by highlighting cases of “violent juvenile crime and persistent news reports of violence in the schools.”145 The New York Times quoted Georgia Governor Zell Miller as saying that juvenile offenders “are not the Cleaver kids soaping up some windows . . . . These are middle school kids conspiring to hurt their teacher, teenagers shooting people and committing rapes, young thugs running gangs and terrorizing neighborhoods and showing no remorse when they get caught.”146 Even Rolling Stone chimed in, noting how the public perceived young criminals to be “crazier, with more bravado and less conscience.”147

The press coverage of the juvenile violence “epidemic” reached a high point when Time magazine ran a cover story profiling one particularly troubled youth named “Yummy” Sandifer.148 Yummy, an eleven-year-old member of the Black Disciples gang, engaged in a myriad of criminal activities from theft to fighting to burning cars.149 Yummy’s behavior could

141. Id. (internal quotation marks omitted). 142. Id. 143. See supra text accompanying note 80. 144. Redding, Goldstein & Heilbrun, supra note 136, at 6. 145. Id. 146. Richard L. Berke, Governors’ ’94 Message: Crime, Crime and Crime, N.Y. TIMES, Jan. 24, 1994, at B6. No term better encapsulates this view of juvenile offenders than “superpredator,” a popular buzzword introduced in 1995 by John J. Dilulio, Jr., a professor at Princeton University. Thomas F. Geraghty & Steven A. Drizin, Charting a New Course for Juvenile Justice: Listening to Outsiders, 90 J. CRIM. L. & CRIMINOLOGY 363, 366 (1999). The word described “a coming army of ‘morally impoverished’ youths who ‘for as long as their youthful energies hold out . . . will do what comes ‘naturally’: murder, rape, rob, assault, burglarize, deal deadly drugs and get high.’” Id. (quoting John J. Dilulio, Jr., The Coming of the Super-Predators, WKLY. STANDARD, Nov. 27, 1995, at 23). Once coined, the mainstream media used the term incessantly. Id. 147. Tina Rosenberg, On the Row, ROLLING STONE, Oct. 5, 1995, at 56, 60. 148. Redding, Goldstein & Heilbrun, supra note 136, at 6; Nancy R. Gibbs, Murder in Miniature, TIME, Sept. 19, 1994, at 54, 56. “Yummy averaged a felony per month for the last year and a half of his life; 23 felonies and five misdemeanors in all.” Id. at 58. 149. Gibbs, supra note 148, at 58. Tragically, Yummy accidentally shot and killed a fourteen-year-old girl when he was attempting to fire at rival gang members. Id. at 56. Becoming a liability to the gang as police descended upon them two weeks later, Yummy



hardly be considered an anomaly.150 “We see this 100 times a week,” said public guardian Patrick Murphy.151 Yummy’s situation, then, represented but one piece of a much larger problem of juvenile crime, a problem the media readily promulgated.152

B. Legislative Response

The rise in juvenile crime rates in the 1980s and early 1990s, coupled with the public’s desire for more punitive responses to such crime, led state and federal lawmakers to enact legislation with the intent of “getting tough” on juvenile crime.153 For instance, under the Reagan administration, the National Advisory Committee for Juvenile Justice and Delinquency Prevention154 recommended discontinuing grants to states that were used for “deinstitutionalization of status offenders.”155 Hoping to target the worst juvenile offenders, the committee justified its recommendation based on the belief that the juvenile justice system had placed too much concern with protecting juvenile offenders at the expense of society and its victims.156 Moreover, this new “get tough” approach was particularly noticeable in the Comprehensive Crime Control Act of 1984, which established a “determinate sentencing system with no parole and limited credit for good time.”157

State policymakers, like their federal counterparts, increasingly viewed the juvenile court as too lenient of an institution.158 They questioned the effectiveness of rehabilitation, going so far as to say that some “serious juvenile offenders are beyond rehabilitation and must be incarcerated” in order to keep

was shot and killed by fellow members. Id. Somewhat ironically, all of these events transpired in Cook County, Illinois—the birthplace of the juvenile court. Id.; see also supra text accompanying note 28 (stating that Illinois established the first-ever juvenile court in Cook County in 1899). 150. Gibbs, supra note 148, at 57. 151. Id. at 56–57. 152. Id. at 56; see also Redding, Goldstein & Heilbrun, supra note 136, at 6 (discussing press coverage of juvenile crime). 153. Redding, Goldstein & Heilbrun, supra note 136, at 5. 154. C. Aaron McNeece & Sherry Jackson, Juvenile Justice Policy: Current Trends and 21st-Century Issues, in JUVENILE JUSTICE SOURCEBOOK: PAST, PRESENT, AND FUTURE 41, 44 (Albert R. Roberts ed., 2004). 155. Id. 156. Id. 157. Nancy Fox Kaden, Sentencing, 73 GEO. L.J. 671, 672 (1984); McNeece & Jackson, supra note 154, at 44. 158. Redding, Goldstein & Heilbrun, supra note 136, at 5.



the community safe.159 As a result, between 1992 and 1997, an overwhelming number of states modified their juvenile laws and procedures in order to make their juvenile justice systems more punitive in nature.160

In terms of culpability, state lawmakers perceived a negligible distinction between juvenile offenders and adult criminals.161 Consequently, many new state laws lowered the age at which a juvenile could be transferred to adult court.162 Others expanded the list of crimes for which a juvenile could be transferred, and some simply made the transferring process easier.163 With these changes, the late 1980s and early 1990s witnessed more and more youth offenders transferred from juvenile courts to criminal courts for prosecution as adults.164

The growing punitive mentality also manifested itself in state juvenile codes’ statements of purpose, which many legislatures amended.165 These revised statutes “de-emphasized rehabilitation and the child’s best interests” and gave more attention to “public safety, punishment, and accountability.”166

159. Id. But see Kristin Henning, Juvenile Justice After Graham v. Florida: Keeping Due Process, Autonomy, and Paternalism in Balance, 38 WASH. U. J.L. &

POL’Y 17, 21 (2012) (“[J]udges and policymakers did not fully abandon rehabilitation in the ‘due process era’ and still viewed youth as less mature and less deserving of punishment than adults.”). 160. McNeece & Jackson, supra note 154, at 42; accord HOWARD N. SNYDER &

MELISSA SICKMUND, NAT’L CTR. FOR JUVENILE JUSTICE, JUVENILE OFFENDERS AND

VICTIMS: 1999 NATIONAL REPORT 89 (1999). 161. Redding, Goldstein & Heilbrun, supra note 136, at 5. 162. McNeece & Jackson, supra note 154, at 44. 163. Id. 164. Feld, supra note 6, at 692; see also Donna M. Bishop & Scott H. Decker, Punishment and Control: Juvenile Justice Reform in the USA, in INTERNATIONAL

HANDBOOK OF JUVENILE JUSTICE 3, 16 (Josine Junger-Tas & Scott H. Decker eds., 2006) (“[N]early every state and the federal jurisdiction amended its juvenile codes in the 1990s to transfer greater numbers of juveniles to criminal court for prosecution and punishment as adults.”); PATRICK GRIFFIN ET AL., OFFICE OF JUVENILE JUSTICE &

DELINQUENCY PREVENTION, TRYING JUVENILES AS ADULTS: AN ANALYSIS OF STATE

TRANSFER LAWS AND REPORTING 1 (2011), available at https://www.ncjrs.gov/ pdffiles1/ojjdp/232434.pdf. 165. FELD, supra note 64, at 251; see also ELLEN MARRUS & IRENE MERKER

ROSENBERG, CHILDREN AND JUVENILE JUSTICE 27–30 (2d ed. 2012) (noting the shift in juvenile justice code purpose statements). 166. FELD, supra note 64, at 251 (internal quotation marks omitted). To appreciate just how much the focus of the juvenile justice system has changed since its inception, it is useful to compare the more modern statements of purpose with the benevolent statement of purpose of the act creating the first juvenile court in 1899:

[t]o secure for each minor . . . such care and guidance, preferably in his own home, as will serve the moral, emotional, mental, and physical welfare of the minor and the best interests of the community; to preserve and strengthen the minor’s family ties whenever possible, removing him from the custody of his parents only when his welfare or safety or the protection of the public



For example, Texas’s juvenile code included as one of its purposes, “to promote the concept of punishment for criminal acts.”167 Kansas’s code stated its goal as “promot[ing] public safety [and] hold[ing] juvenile offenders accountable for such juvenile’s behavior.”168 And Indiana’s juvenile code sought to “enforc[e] the legal obligations children have to society.”169 Despite the differences in language, all of these purpose statements reflected a philosophical shift in how society viewed the juvenile system.170 Becoming ever more skeptical of the system’s efficacy, society and its laws placed more emphasis on punishment and recognized that the approach to juvenile justice should no longer be completely child-centered.171

C. Judicial Response

The shifting landscape of juvenile crime and public opinion also spurred a shift in how courts responded to juvenile delinquency.172 In imposing sentences on juveniles, judges increasingly relegated the needs of the child, choosing instead to hand down sentences based on just deserts.173 As with state legislatures, courts embraced the notion that punishment constituted an appropriate purpose of juvenile courts’ dispositions.174 For instance, the Washington Supreme Court asserted that punishment can constitute treatment, adopting the legislature’s view that “accountability for criminal behavior, the prior criminal activity and punishment commensurate with age, crime and criminal history does as much to rehabilitate, correct and direct an errant youth as does the prior philosophy of focusing upon the particular characteristics of the individual juvenile.”175

cannot be adequately safeguarded without removal; and, when the minor is removed from his own family, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should be given by his parents.

Id. (quoting ILL. ANN. STAT. ch. 37, ¶ 701-2 (West 1972)). 167. TEX. FAM. CODE ANN. § 51.01(2)(A) (West 1996). 168. KAN. STAT. ANN. § 38-1601 (2000). 169. IND. CODE ANN. § 31-6-1-1 (LexisNexis 1980). 170. FELD, supra note 64, at 252. 171. Id. 172. Redding, Goldstein & Heilbrun, supra note 136, at 7. The most salient example of the judicial response to the juvenile justice dilemma is the U.S. Supreme Court’s 1989 decision in Stanford v. Kentucky. See infra Part V (summarizing the history of the juvenile death penalty in the United States). 173. Feld, supra note 6, at 692 (“Proportional and determinate sentences based on the present offense and prior record, rather than the ‘best interests’ of the child, dictate the length, location, and intensity of intervention.”). 174. FELD, supra note 64, at 252. 175. State v. Lawley, 591 P.2d 772, 773 (Wash. 1979).



Similarly, the Nevada Supreme Court endorsed punishment as an appropriate purpose of the state’s juvenile courts: “By formally recognizing the legitimacy of punitive and deterrent sanctions for criminal offenses juvenile courts will be properly and somewhat belatedly expressing society’s firm disapproval of juvenile crime and will be clearly issuing a threat of punishment for criminal acts to the juvenile population.”176

To summarize, the American juvenile justice system began at the turn of the twentieth century with benevolent ideals.177 It served as a model to the rest of the world, focusing on the needs of the child and advocating a rehabilitative solution.178 However, over time the system exhibited a number of inherent flaws requiring Supreme Court intervention in the 1960s.179 These decisions infused the juvenile court with procedural safeguards, making juvenile courts look more like adult criminal courts.180 In the ensuing decades, the United States experienced a juvenile violence “epidemic,” fueled by crime statistics, public opinion, and the media.181 In response, the nation embraced a “get tough” approach to juvenile crime and demanded more punitive measures.182 State and federal governments obliged by amending their laws and juvenile codes.183 Courts also adopted the nation’s pro-punishment sentiment. This is evinced most clearly by the U.S. Supreme Court’s decision in Stanford v. Kentucky—the controlling case on juvenile death penalty until 2005.184

176. In re Seven Minors, 664 P.2d 947, 950 (Nev. 1983). 177. See supra Part II (detailing the founding of the American juvenile justice system). 178. See supra notes 37–47 and accompanying text (describing the focus of the early juvenile justice system and listing a number of countries that mirrored America’s juvenile justice reforms). 179. See supra text accompanying notes 68–74, 99–104 (describing the institutional flaws of the juvenile justice system and the Supreme Court’s ultimate intervention). 180. See supra Part III.B (summarizing the Supreme Court cases that afforded juvenile offenders greater procedural protections). 181. See supra Part IV.A (exploring the social atmosphere that contributed to a shift in juvenile justice policy in the United States). 182. See supra note 138 and accompanying text (noting the national consensus that called for trying juvenile offenders as adults). 183. See supra Part IV.B (addressing the legislative response to the perceived juvenile justice epidemic). 184. Stanford v. Kentucky, 492 U.S. 361, 380 (1989) (holding that capital punishment for juvenile offenders did not violate the Eighth Amendment’s prohibition against cruel and unusual punishment), abrogated by Roper v. Simmons, 543 U.S. 551 (2005).



V. BRIEF HISTORY OF THE JUVENILE DEATH PENALTY IN THE UNITED STATES

Tracing the tumultuous past of the American juvenile justice system demonstrates the difficulty in developing an effective system.185 Additionally, this background helps explain why the United States displayed such reluctance in altering its juvenile sentencing practices, which are the subject of this Part.

Prior to its abolishment in 2005, the juvenile death penalty had long been a feature of America’s criminal punishment scheme.186 The United States inherited the practice via the criminal law of England and other European countries that supported the idea that anyone over age seven could possess criminal intent and therefore be sentenced to death.187 While there is considerable debate as to whether children were actually executed during America’s early history,188 it is believed that the first American execution of a juvenile offender took place at Plymouth Colony in 1642.189 By 1900, ninety-five juvenile offenders had been executed, and the practice continued even after the creation of the juvenile justice system at the turn of the twentieth century.190 Over the course of American history, roughly 365 individuals have been executed for crimes committed while juveniles.191

The Supreme Court approved of the juvenile death penalty in Stanford v. Kentucky in 1989.192 In an opinion authored by Justice Scalia, the Court held that capital punishment does not constitute cruel and unusual punishment when imposed on a person who murders at age sixteen or older.193 Justice Scalia

185. See supra Parts II–IV (chronicling America’s struggle to find a balance between a rehabilitative ideal and a punitive imperative). 186. Curtis A. Bradley, The Juvenile Death Penalty and International Law, 52 DUKE

L.J. 485, 492 (2002). 187. Victor L. Streib, Death Penalty for Children: The American Experience with Capital Punishment for Crimes Committed While Under Age Eighteen, 36 OKLA. L. REV. 613, 614 (1983). The U.S. Supreme Court acknowledged this view of children’s liability in Gault: “At common law, children under seven were considered incapable of possessing criminal intent. Beyond that age, they were subjected to arrest, trial, and in theory to punishment like adult offenders.” In re Gault, 387 U.S. 1, 16 (1967). 188. Streib, supra note 187, at 615. “Much of the debate seems to be confused by the use of relatively vague terms such as ‘children’ and ‘adolescents,’ and by infrequent reporting of the age of the offender on the date of the crime or the execution.” Id. 189. Bradley, supra note 186, at 493. 190. Id. “From 1900 to 1930, 77 [juvenile offenders] were executed for crimes committed while under the age of eighteen.” Id. 191. Id. 192. Stanford v. Kentucky, 492 U.S. 361, 380 (1989) (affirming judgments in the Supreme Court of Kentucky and the Supreme Court of Missouri), abrogated by Roper v. Simmons, 543 U.S. 551, 574 (2005). 193. Id.



made clear from the beginning of the opinion that the majority’s Eighth Amendment analysis would not be looking beyond this nation’s borders for persuasive authority.194 Instead, the majority examined state and federal death penalty laws and practices and concluded that there was no national consensus against the execution of juvenile offenders.195 Accordingly, the Court deemed the practice constitutional.196

With this decision, the United States, which had once led the world in its unique approach to juvenile justice, now stood in opposition to an international community that heavily frowned upon capital punishment for juveniles.197 But given the nation’s social and political climate of the time, it came as no surprise that the Supreme Court adhered to a myopic view on the issue and dismissed international authority as wholly unpersuasive.198

VI. GETTING THE UNITED STATES BACK ON TRACK: ROPER, GRAHAM, AND MILLER

One scholar has commented that the United States often insists on its own version of children’s rights, and consequently its own unique constitutional concepts, rejecting attempts to frame questions of rights in international human rights terms. It could be said that the U.S. is unusually firm in its desire to ‘go it alone’ when it comes to the rights of children.199

The United States turned away from its history as a juvenile justice pioneer when other countries around the world started reforming their juvenile justice systems beginning in the 1980s.200 But with the Supreme Court’s recent string of decisions, starting with Roper v. Simmons in 2005, the United States has finally started to catch up with the rest of the world in terms of sentencing juvenile offenders.

194. See id. at 369 n.1 (“[I]t is American conceptions of decency that are dispositive, rejecting the contention . . . that the sentencing practices of other countries are relevant.”). 195. Id. at 369–73. 196. Id. at 380. 197. See Executions of Juveniles Since 1990, supra note 7 (observing that since 1990, only nine countries have executed juvenile offenders: the United States, China, the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, Sudan, and Yemen). 198. See supra Part IV (describing the social climate in the post-Gault era that pressured legislatures and judiciaries to adopt more punitive measures in the juvenile system). 199. SARA DILLON, INTERNATIONAL CHILDREN’S RIGHTS 649 (2010). 200. Geraldine Van Bueren, A Curious Case of Isolationism: America and International Child Criminal Justice, 18 QUINNIPIAC L. REV. 451, 451 (1999).



A. Roper v. Simmons

In this landmark case, the Court revisited the issue it had previously decided in Stanford, ultimately overturning that decision.201 The facts in Roper are gruesome, involving a premeditated murder committed by a seventeen-year-old defendant, Christopher Simmons.202 The unapologetic defendant openly bragged and told his friends about the murder shortly after the incident.203 After being arrested, Simmons confessed to the crime and was later tried as an adult and sentenced to death.204

Despite the horrific facts, the Supreme Court found the imposition of capital punishment on those younger than eighteen to be irreconcilable with the Eighth Amendment.205 Of particular intrigue in this opinion is the majority’s use of international authority in its decision.206 Justice Kennedy, writing for the majority, found confirmation for the Court’s decision in the “stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”207 Although “[t]his reality does not become controlling . . . . at least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of cruel and unusual punishments.”208 The Court went on to discuss the United

201. Roper v. Simmons, 543 U.S. 551, 574 (2005) (“These considerations mean Stanford v. Kentucky should be deemed no longer controlling on this issue.”). 202. Id. at 556. Simmons (age seventeen at the time) and his friend Charles Benjamin (age fifteen) entered the victim’s home in the middle of the night and used “duct tape to cover her eyes and mouth and bind her hands.” Id. They put the victim “in her minivan and drove to a state park,” at which point they bound her with electrical wire and “wrapped her whole face in duct tape.” Id. at 556–57. Simmons and Benjamin then threw the victim from a bridge, where she drowned in the water below. Id. at 557. 203. Id. 204. Id. at 557–58. 205. Id. at 568. The majority began by considering the “objective indicia of consensus,” finding that a majority of states rejected juvenile execution and that the national trend had consistently favored its abolition. Id. at 567. Then, by examining psychological and social studies suggesting that a juvenile’s underdeveloped mental capacity limited the deterrent and retributive aims of capital punishment, the majority invoked its “own independent judgment” to hold that capital punishment was unconstitutionally disproportionate for a juvenile convicted of first-degree murder. Id. at 564, 569–75. 206. See A. Mark Weisburd, Roper and the Use of International Sources, 45 VA. J. INT’L L. 789, 791–94 (2005) (commenting on the use of international sources in the three main opinions of Roper). 207. Roper, 543 U.S. at 575. 208. Id. (internal quotation marks omitted). Justice Scalia authored a dissent that strongly criticized the majority for allowing international sources to lend support to its decision. Id. at 622–28 (Scalia, J., dissenting).



Nations Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, the United Kingdom’s abolition of juvenile capital punishment, and the “overwhelming weight of international opinion against the juvenile death penalty.”209 While certainly not the sole justification for the Court’s holding, international sources undoubtedly played a significant role.210

B. Graham v. Florida

Eliminating the juvenile death penalty marked the Supreme Court’s first major step towards getting the United States back on track with the rest of the world in terms of sentencing adolescent offenders.211 Five years later, the Court took another step in the right direction with Graham v. Florida, which addressed the issue of life without parole (LWOP) for juvenile offenders committing non-homicide offenses.212

The case involved a troubled youth, Terrance Graham, who by age thirteen had been involved with alcohol, tobacco, and even marijuana.213 At age seventeen and while on probation for armed burglary and attempted armed-robbery,214 Graham “violated his probation by committing a home invasion robbery, by possessing a firearm, and by associating with persons engaged in criminal activity.”215 He received the maximum sentence on all charges, resulting in a life sentence without the possibility of parole.216

209. Id. at 576–78 (majority opinion). Justice Kennedy found the United Kingdom’s example particularly instructive “in light of the historic ties between our countries and in light of the Eighth Amendment’s own origins.” Id. at 577. 210. Weisburd, supra note 206, at 792. For instance, both the European Union and England filed a brief of amici curiae in support of Simmons. Brief of Amici Curiae the European Union and Members of the International Community in Support of Respondent, Roper, 543 U.S. 551 (No. 03-633) [hereinafter European Union Brief]; Brief for the Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae in Support of Respondent, Roper, 543 U.S. 551 (No. 03-633) [hereinafter Human Rights Brief]. The briefs drew authority from treaties and customary international law, highlighted the shared value systems between the United States and Europe, and noted that “[f]rom the beginning, the laws of the United States have been informed and shaped by laws and opinions of other members of the international community.” Human Rights Brief, supra, at 3–5; see also European Union Brief, supra, at *6–26. 211. See Roper, 543 U.S. at 575 (noting that the United States was the only country in the world that continued to give “official sanction to the juvenile death penalty”). 212. Graham v. Florida, 560 U.S. 48, 52–53 (2010). 213. Id. at 53. 214. Id. at 53–55. Graham, who had committed these crimes at age sixteen, pled guilty to both these charges under a plea agreement and was sentenced to concurrent three-year terms of probation. Id. at 53–54. 215. Id. at 55. 216. Id. at 57. Florida had done away with its parole system, which meant that a defendant sentenced to life had no opportunity for release unless he was granted



The Supreme Court held in a 6–3 decision that sentencing juvenile offenders to life without parole for nonhomicide offenses constitutes cruel and unusual punishment in violation of the Eighth Amendment.217 For the first time, the Court imposed a categorical prohibition on a noncapital sentence for an entire class of offenders.218 Consequently, states must now give the juvenile offender at least “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”219

Like in Roper, the majority once again turned to international sources for persuasive authority in its holding.220 Justice Kennedy, writing for the majority, argued that “[t]here is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.”221 While noting that the positions of “other nations and the international community are not dispositive as to the meaning of the Eighth Amendment,” the majority asserted that they are nonetheless relevant.222

As was the case with the juvenile death penalty in Roper, Justice Kennedy found that the United States once again “‘[stood] alone in a world that has turned its face against’ life without parole for juvenile nonhomicide offenders.”223 In particular, he pointed to the fact that only eleven nations authorized life without parole for juvenile offenders, and only two, the United States and Israel, imposed the punishment in practice.224 With this international consensus against juvenile LWOP in hand, the Court bolstered its conclusion that sentencing juveniles to life without parole for nonhomicide crimes equates to cruel and unusual punishment.225

executive clemency. Id.; see also FLA. STAT. ANN. § 921.002(1)(e) (West 2006) (“The provisions of chapter 947, relating to parole, shall not apply to persons sentenced under the Criminal Punishment Code.”). 217. Graham, 560 U.S. at 74. 218. Id. at 102 (Thomas, J., dissenting). 219. Id. at 75 (majority opinion). This holding does not mean that states can never impose LWOP sentences on juveniles; they just cannot impose such sentences at the outset. Id. 220. Id. at 80. 221. Id. 222. Id. 223. Id. at 81 (quoting Roper v. Simmons, 543 U.S. 551, 577 (2005)). 224. Id. at 80. Justice Kennedy proceeded to note that even if Israel allows LWOP sentences for juveniles, it does not seem to impose such sentences for nonhomicide crimes. Id. 225. Id. at 81–82.



C. Miller v. Alabama

Miller, the Supreme Court’s most recent opinion on juvenile sentencing, held that mandatory LWOP sentences for juveniles violate the Eighth Amendment regardless of the crime.226 The Miller decision consolidated two separate cases involving two different defendants, each one committing his respective crime at age fourteen.227 Both defendants received life without parole sentences pursuant to their respective states’ mandatory sentencing schemes.228

In its rationale, the Court emphasized that “juveniles have diminished culpability and greater prospects for reform.”229 As a result, juveniles “are less deserving of the most severe punishments.”230 Relying heavily on both Roper and Graham,231 the Court concluded that the mandatory sentencing schemes at issue did not adequately take into account the unique characteristics of juvenile offenders, i.e., their diminished culpability.232 Accordingly, the Court declared such schemes unconstitutional.233 While Miller may not be as groundbreaking as either Roper or Graham, the effect of its holding is far from inconsequential, given that “[t]he majority of [juvenile LWOP] sentences are imposed in states in which judges are obligated to sentence individuals without consideration of any factors relating to a juvenile’s age or life circumstances.”234

226. Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012). The Court did not hold that a state could never sentence a juvenile who commits murder to LWOP; rather, a state may do so only after a judge or jury has had the opportunity to consider mitigating circumstances. Id. at 2475. 227. Id. at 2461–63. The defendant in one case, Evan Miller, had committed murder in the course of arson. Id. at 2462–63. The defendant in the other case, Kuntrell Jackson, had committed capital felony murder and aggravated robbery. Id. at 2461. 228. Id. at 2461–63. Miller was sentenced pursuant to ALA. CODE §§ 13A-5-40(a)(9), 13A-6-2(c) (LexisNexis 2005). Miller, 132 S. Ct. at 2463. Jackson was sentenced pursuant to ARK. CODE ANN. § 5-4-104(b) (Supp. 2013). Id. at 2461. 229. Id. at 2464. 230. Id. (quoting Graham v. Florida, 560 U.S. 48, 68 (2010)). 231. Id. (“In Roper, we cited studies showing that ‘[o]nly a relatively small proportion of adolescents’ who engage in illegal activity ‘develop entrenched patterns of problem behavior.’ And in Graham, we noted that ‘developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds’—for example, in ‘parts of the brain involved in behavior control.’” (quoting Roper v. Simmons, 543 U.S. 551, 570 (2010); Graham, 560 U.S. at 68)). 232. Id. at 2466 (“[T]hese laws prohibit a sentencing authority from assessing whether the law’s harshest term of imprisonment proportionately punishes a juvenile offender.”). 233. Id. at 2464. 234. ASHLEY NELLIS, THE SENTENCING PROJECT, THE LIVES OF JUVENILE LIFERS: FINDINGS FROM A NATIONAL SURVEY 3 (2012), available at http://sentencingproject.org/ doc/publications/jj_The_Lives_of_Juvenile_Lifers.pdf.



The Miller decision raises an interesting observation. Although the opinion draws heavily from Graham and Roper, it deviates from those opinions when it comes to relying on international standards for persuasive authority.235 In fact, Miller makes no mention whatsoever of any international sources or standards.236 This is somewhat puzzling given the Graham and Roper majorities’ conspicuous reliance upon international authority.237 Justice Kagan, writing for the majority, could have easily applied the same rationale, seeing as the international consensus against juvenile LWOP encompasses both mandatory and discretionary schemes, irrespective of the crime committed.238

Does the Miller majority’s omission of international authority signify a shift in its Eighth Amendment jurisprudence, one that disregards international standards? That argument has certainly been made.239 After all, it is not as though the majority minimized the role of international norms in its opinion; it completely eliminated them.240 Another plausible explanation could be that the Court felt that it had already sufficiently established its juvenile sentencing precedent based on foreign norms and therefore felt no reason to raise them again.241 Simply citing to Roper and Graham would suffice.242 Should the Supreme Court take up another case involving juvenile sentencing, it will be interesting to see whether the Court returns to the international community for support.243

235. See Miller, 132 S. Ct. at 2461–75 (making no mention of international standards, laws, treaties, norms, rules, or declarations). 236. Id. 237. See Graham v. Florida, 560 U.S. 48, 80–82 (2010) (discussing international opinion on the issue before the court); Roper v. Simmons, 543 U.S. 551, 575 (2005) (stating that the Court often looks to international opinion when interpreting the Eighth Amendment’s prohibition on cruel and unusual punishment). 238. See Graham, 560 U.S. at 80–81 (observing the international consensus against LWOP for juveniles under all circumstances). The Court cannot claim ignorance to these arguments either because several amici curiae raised them in their support briefs. See e.g., Brief of the American Bar Association as Amicus Curiae in Support of Petitioners at 24–25, Miller, 132 S. Ct. 2455 (Nos. 10-9646, 10-9647); Brief of Amici Curiae Amnesty Int’l, et al. in Support of Petitioners at 15–28, Miller, 132 S. Ct. 2455 (Nos. 10-9646, 10-9647). 239. See Charles D. Stimson & Jonathan Levy, The Mysterious Disappearance of International Law Arguments from Juvenile Sentencing in Miller v. Alabama, LEGAL

MEMORANDUM (Heritage Found., D.C.), Aug. 22, 2012, at 1, available at http://www.heritage.org/research/reports/2012/08/mysterious-disappearance-of-international-law-arguments-from-juvenile-sentencing-in-miller-v-alabama (contending that the conspicuous absence of foreign and international law in Miller “may signal a welcome shift in the Court’s jurisprudence”). 240. See Miller, 132 S. Ct. at 2461–75 (lacking any direct reference to international views on the subject matter). 241. Stimson & Levy, supra note 239, at 5. 242. Id. 243. The Supreme Court has not limited its use of international authority to only Eighth Amendment cases. For example, the Supreme Court looked beyond America’s



Either way, this is not the last we have heard of the juvenile sentencing issue.244

VII. ELIMINATING JUVENILE LIFE WITHOUT PAROLE

One common notion underlies the Supreme Court’s three most recent decisions on juvenile sentencing: juveniles are different.245 Sadly, our laws have not always reflected this seemingly simple conclusion.246 Nevertheless, the winds of American juvenile justice are shifting.247 Roper, Graham, and Miller have begun to put the United States back in line with the rest of the world.248 Instead of stopping here, the United States should harness that momentum and categorically abolish juvenile life without parole, thereby taking one more positive step in its quest to regain its status as a leader in juvenile justice.

One need not look beyond the Supreme Court’s recent troika of juvenile sentencing cases to support the notion that juvenile

borders in deciding the landmark Fourteenth Amendment case, Lawrence v. Texas. Lawrence v. Texas, 539 U.S. 558, 572–73 (2003). In that decision, the Court drew upon a case from the European Court of Human Rights to bolster its holding that Texas’s anti-sodomy law was unconstitutional. Id. at 257–73, 578. For an in-depth discussion on how the U.S. Supreme Court has employed international law in its jurisprudence, see generally Rex D. Glensy, The Use of International Law in U.S. Constitutional Adjudication, 25 EMORY INT’L L. REV. 197, 235–44 (2011). 244. See Craig S. Lerner, Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases, 20 GEO. MASON L. REV. 25, 30 (2012) (contending that the Miller opinion “falls short” of clarity concerning important sentencing mandates and that instead “[t]his is left for lower courts to mull over”). 245. See Miller, 132 S. Ct. at 2464 (“Roper and Graham establish that children are constitutionally different from adults for purposes of sentencing.”). In particular, the Court has noted three main gaps between juveniles and adults. Roper v. Simmons, 543 U.S. 551, 569 (2005). First, juveniles have a “lack of maturity and an underdeveloped sense of responsibility,” which can lead to recklessness, impulsivity, and heedless risk-taking. Id. (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)). Second, juveniles “are more vulnerable or susceptible to negative influences and outside pressures,” including family and peers, and they have “less control . . . over their own environment.” Id. Third, a juvenile’s character “is not as well formed as that of an adult,” and his personality traits “are more transitory, less fixed.” Id. at 570. 246. See supra Part IV (discussing how the post-Gault era created laws that treated juveniles more like adults). 247. See e.g., J.D.B. v. North Carolina, 131 S. Ct. 2394, 2399 (2011) (holding that a child’s age is a relevant consideration in the Miranda custody analysis); Graham v. Florida, 560 U.S. 48, 82 (2010) (holding that juvenile life without parole for nonhomicide offenses violates the Eighth Amendment); Roper, 543 U.S. at 568 (prohibiting the death penalty for defendants who committed their crimes before age eighteen). 248. See supra note 211 and accompanying text (asserting that the Roper holding banning the juvenile death penalty complied with international consensus); supra notes 220–25 and accompanying text (explaining that the Graham holding eliminating juvenile LWOP for nonhomicide crimes complied with international norms); supra note 238 and accompanying text (pointing toward international support for the Miller holding against mandatory life without parole sentences for juveniles).



LWOP should be done away with in its entirety.249 Like in Roper, Graham, and Miller, the Court would anchor its analysis in the Eighth Amendment.250 At the heart of this amendment lies the notion of proportionality.251 Proportionality means that a punishment must not only fit the crime but also the offender.252 When a mismatch exists between the punishment and the offender, the Supreme Court has found such punishments cruel and unusual and has created categorical prohibitions against them.253

Such a mismatch exists between juvenile offenders and life without parole. Juveniles are incapable of being the worst type of offenders because their culpability is inherently limited.254 This notion formed the basis of our juvenile justice system at its founding255 and has resurfaced in the Court’s most recent decisions.256 Because of this diminished culpability, juveniles are simply “less deserving of the most severe punishments.”257

This leads to the question of whether life without parole is severe enough to warrant a categorical prohibition. The reasoning in Graham proves instructive on this question.258 While death may be “unique in its severity and irrevocability,”259 life without parole shares enough similarities with the death penalty to justify putting them in a class apart from all other

249. See Robert Johnson & Chris Miller, An Eighth Amendment Analysis of Juvenile Life Without Parole: Extending Graham to All Juvenile Offenders, 12 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 101, 101 (2012) (“[T]he abolition of juvenile life without parole sentences in all cases . . . is a logical extension of the analytical framework articulated in Roper and Graham.”). 250. Miller, 132 S. Ct. at 2463; Graham, 560 U.S. at 58–59; Roper, 543 U.S. at 560. 251. Graham, 560 U.S. at 59. 252. Miller, 132 S. Ct. at 2463 (“‘[P]unishment for crime should be graduated and proportioned’ to both the offender and the offense.” (quoting Roper, 543 U.S. at 560) (internal quotation marks omitted)). 253. See Roper, 543 U.S. at 568 (prohibiting the death penalty for defendants who committed their crimes before age eighteen); see also Atkins v. Virginia, 536 U.S. 304, 321 (2002) (prohibiting the death penalty for mentally retarded criminals). 254. Miller, 132 S. Ct. at 2464; see also Roper, 543 U.S. at 569 (“[J]uvenile offenders cannot with reliability be classified among the worst offenders.”). 255. See supra Part II (exploring the foundational principles of the early American juvenile justice system). 256. See Graham, 560 U.S. at 69 (“[A] juvenile offender who did not kill or intend to kill has a twice diminished moral culpability. The age of the offender and the nature of the crime each bear on the analysis.”). 257. Id. at 68. 258. See Miller, 132 S. Ct. at 2458 (noting how Graham’s reasoning “implicates any life-without-parole sentence for a juvenile, even as its categorical bar relates only to nonhomicide offenses”). 259. Gregg v. Georgia, 428 U.S. 153, 187 (1976).



punishments.260 Life without parole “alters the offender’s life by a forfeiture that is irrevocable.”261 It also “deprives the convict of the most basic liberties without giving hope of restoration.”262 A juvenile sentenced to LWOP is likely to spend “more years and a greater percentage of his life in prison than an adult offender.”263 Succinctly put, LWOP “means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.”264 Thus, little question exists as to the severity of LWOP.265 Consequently, imposing such harsh punishments on juveniles, who are inherently less culpable, creates a mismatch that contravenes the core of the Eighth Amendment.266 In accord, the Supreme Court should hold all LWOP sentences for juveniles unconstitutional given the disproportionality of such sentences.267

If the Supreme Court’s jurisprudence on juvenile sentencing serves as any indication, proportionality would serve as only one of many justifications for striking down juvenile LWOP.268 While the myriad ways in which the Court could justify its decision have been addressed elsewhere,269 this Comment wants to give attention to one source in particular: international authority. As

260. Graham, 560 U.S. at 69–70. 261. Id. at 69. 262. Id. at 69–70. The Court acknowledged that an individual sentenced to LWOP could be restored to society via executive clemency, but it argued that this remote possibility does nothing to mitigate the inherent harshness of the punishment. Id. 263. Id. at 70. As the Court aptly put it, “A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.” Id. 264. Id. (quoting Naovarath v. State, 779 P.2d 944, 944 (Nev. 1989)). 265. See Harmelin v. Michigan, 501 U.S. 957, 996 (1991) (asserting that life imprisonment without parole is “the second most severe [sentence] known to the law”). 266. See supra text accompanying notes 254–65 (advancing the argument that life without parole constitutes a disproportionate sentence when imposed on juvenile offenders). 267. See Johnson & Miller, supra note 249, at 121 (calling LWOP “a punishment that presupposes mature culpability and an inability to change”). 268. See Graham, 560 U.S. at 58–82 (holding unconstitutional juvenile LWOP for nonhomicide offenders based on proportionality grounds, the punishment’s inability to serve penological goals, and international standards); see also Roper v. Simmons, 543 U.S. 551, 564–78 (2005) (striking down the death penalty for juvenile offenders based on proportionality grounds, a national consensus opposed to juvenile death penalty, the punishment’s failure to serve penological interests, and international standards). Besides proportionality, the Court would likely emphasize life without parole’s inability to serve any legitimate penological interests, including deterrence, rehabilitation, incapacitation, and retribution. Johnson & Miller, supra note 249 at 115–21. 269. See Johnson & Miller, supra note 249, at 102–21 (addressing justifications for striking down juvenile LWOP such as judicial precedent, public opinion, and penological goals such as deterrence and rehabilitation).



discussed above, juvenile LWOP should be abandoned pursuant to the proportionality requirement of the Eighth Amendment. To bolster that conclusion, the Court should look to the international community just as it did in Graham and Roper.270 In particular, the Court should not ignore the fact that the United States stands alone in sentencing children to life without parole.271

Moreover, the Court should acknowledge documents like the United Nations Convention on the Rights of the Child (CRC), which has been ratified by every nation except the United States and Somalia.272 The CRC confirms that “[n]either capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”273 Opponents may point out that neither this U.N. agreement nor international law in general binds the United States in any way, but this argument misses the mark.274 The relevant inquiry is not whether such authority binds the United States, but rather whether juvenile LWOP constitutes cruel and unusual punishment.275 On that point, “the overwhelming weight of international opinion against” life without parole for juvenile offenders can provide “significant confirmation” for the Supreme Court’s decision to categorically abolish juvenile LWOP.276 While the international consensus against juvenile LWOP does not become controlling, it still provides a valuable lens through which the Court can and should interpret the Eighth Amendment.277

VIII. CONCLUSION

Over a century ago, the United States stood as a world leader in juvenile justice.278 But as time progressed, the United States fell behind other nations, losing sight of the fundamental

270. Graham, 560 U.S. at 80–82 (discussing international opinion on life without parole for nonhomicide juvenile offenders); Roper, 543 U.S. at 575–78 (discussing international opinion concerning capital punishment for juveniles). 271. Juvenile Life Without Parole, supra note 7 (reporting that there are no known recent cases where LWOP has been imposed on juveniles except those in the United States). 272. Roper, 543 U.S. at 576. 273. Convention on the Rights of the Child, art. 37(a), Nov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990). 274. Graham, 560 U.S. at 81. 275. Id. 276. Id. (quoting Roper, 543 U.S. at 578). 277. See Roper, 543 U.S. at 575 (asserting that international opinion is an important factor to consider). 278. Annino, supra note 10, at 474.



differences between juveniles and adults.279 Fortunately, this regression would not last forever. “[W]hile our laws may at times lag behind our best natures, in the end they catch up to our core values.”280

In recent years, the United States has slowly started catching up with the rest of the world, evinced by the Supreme Court’s decisions in Roper, Graham, and Miller.281 But to regain its status as a leader in juvenile justice, more must be done.282 This Comment has argued that one such measure would be to categorically prohibit the imposition of juvenile life without parole.283 Such a position comports not only with our own Eighth Amendment jurisprudence, but also with the entire international community.284 As a nation that prides itself on being a global power, the United States can no longer neglect its juvenile justice identity without risking greater harm to society as a whole.285

Patrick N. McMillin

279. See supra Part IV (discussing the way in which the United States’ juvenile justice system turned away from a rehabilitative ideal and adopted a punitive philosophy). 280. Bill Clinton, Op-Ed., It’s Time to Overturn DOMA, WASH. POST, Mar. 8, 2013, at A17. 281. See supra Part VI (summarizing the U.S. Supreme Court’s decisions in Roper, Graham, and Miller). 282. See Juvenile Life Without Parole, supra note 7 (noting that the United States stands alone in sentencing juveniles to life without parole). 283. See supra Part VII (advancing the case for adopting a categorical rule against juvenile life without parole). 284. See supra Part VII (explaining why juvenile life without parole is inconsistent with the Eighth Amendment and international authority). 285. See SHOEMAKER & WOLFE, supra note 29, at 41 (“It is important to recognize that the juvenile justice system . . . does not exist in a vacuum. Instead, it is embedded within U.S. society; as such, it reflects the problems and worries, the strengths and weaknesses, and the uncertainties and contradictions of the wider culture.”).

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