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November 18, 2013

"The Jurisprudence of Death and Youth: Now the Twain Should Meet"

The title of this post is the title of this notable new article by Janet Hoeffel now available on SSRN. Here is the abstract:

The Supreme Court recently married its "death is different" death penalty jurisprudence and its burgeoning "children are different too" jurisprudence to apply Eighth Amendment death penalty jurisprudence to juvenile non-death sentences in Graham v. Florida and Miller v. Alabama.  This Article argues that the (practically non-existent) jurisprudence of juvenile transfer should travel further down this comparative road paved by the Court and insist that juvenile transfer proceedings be subject to the same scrutiny exercised over capital punishment proceedings.  While Eighth Amendment process need not be literally incorporated into juvenile transfer proceedings, it should be adopted through the Due Process Clause.

The parallels between the death penalty and juvenile transfer are striking.  Both involve a decision to expose a person to the most severe set of penalties available to the relevant justice system: a death sentence for adults in adult court; a transfer to adult court for youth in juvenile court.  The decision to send an adult to his death is a decision to end his life; the decision to send a juvenile to adult court is a decision to end his childhood.  Both decisions signify a life not worth saving, and therefore, both decisions are to apply to the "worst of the worst."  As a result of the finality and seriousness of their consequences, both processes should require the strictest of procedures for reliable imposition of those consequences.

While the Court’s jurisprudence on procedures for imposing death is not a model, the Court has, at least, worked both to narrow who is subject to the death penalty and to reduce the potential for arbitrary and capricious imposition of death through procedures for guided discretion.  The lessons learned in that context can be applied to improve juvenile transfer procedures that allow transfer of a child to adult court based on the unfettered and arbitrary discretion of a judge or, worse, a prosecutor.  Furthermore, death penalty jurisprudence applied in capital cases, and as applied in Graham and Miller, leads to the conclusion that juvenile transfer laws allowing automatic transfer of a child to adult court, without an individualized consideration, violates due process.

November 18, 2013 at 10:47 AM | Permalink


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Also on the death penalty front, Justice Sotomayor had a notable dissent among the orders handed down today. Alito also had one on a habeas matter.

Posted by: Joe | Nov 18, 2013 10:54:30 AM

"The parallels between the death penalty and juvenile transfer are striking."

Now there's a sentence that could only be written by a legal academic with a career history in criminal defense.

And sure enough.

Ask an intelligent laymen whether there are "striking parallels" between getting executed and getting tried in adult court for an adult crime, and what you'll get is a look of total bewilderment.

Posted by: Bill Otis | Nov 18, 2013 11:37:00 AM

I love Prof. Berman. He is trying to provoke us by posting outrageously stupid items. I bite every time.

Posted by: Supremacy Claus | Nov 19, 2013 12:14:41 AM

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