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October 24, 2010

"Graham v. Florida: Justice Kennedy’s Vision of Childhood and the Role of Judges"

The title of this post is the title of this new piece authored by Professor Tamar Birckhead and available via SSRN. Here is the abstract:

This short article examines Graham v. Florida, the United States Supreme Court decision holding that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime.  This article argues that Justice Anthony Kennedy’s majority opinion is grounded not only in Roper v. Simmons, which invalidated the death penalty for juvenile offenders on Eighth Amendment grounds, and Kennedy v. Louisiana, which held that the Eighth Amendment prohibited the death penalty for the offense of rape of a child, but in Establishment Clause cases set in the context of public schools and Fourteenth Amendment Due Process Clause cases upholding parental notification requirements for teenagers seeking abortions.

Whereas many journalists and scholars consider Justice Kennedy a “legal pragmatist” who lacks an overarching philosophy to guide his decision-making, in each of these opinions his view of childhood and the proper role of judges is consistent: children and adolescents are unformed works in progress, in the midst of both character and brain development, who are particularly susceptible to direct as well as indirect forms of coercion; as a result, when determining what liberty interests are protected by the United States Constitution, the role of judges and the courts is to ensure that youth mitigates rather than aggravates. Further, although juvenile justice advocates have heralded Graham as a clear victory, the opinion may raise as many questions as it seeks to answer.

October 24, 2010 at 08:49 PM | Permalink


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One despairs.

Adolescence is a period of superior mental function compared to all others. IQ test performance peaks.

One is maturing away from childhood developmental problems, such as ADHD.

One has not yet entered the period of risk for adult problems. Adolescents have a lower crime rate than young adults. The adolescent brain is more intact than the adult brain, and has more neurons in it.

They lack the responsibilities and experiences of teens of 100 years ago, to infantilize them. This serves to funnel them into that babysitting service, high school, rather than jobs filled by the lawyer clients, union members, at falsely elevated wages.

Posted by: Supremacy Claus | Oct 24, 2010 11:55:40 PM

Pragmatist? Really? Who thinks that? Does anyone who is not firmly on one side a "pragmatist"? Kennedy is not someone that comes off that way. He's no O'Connor or Breyer. He has firm opinions and is quite sure of himself. And, it is quite true that he is consistent in respect to teens, from abortions to religion to crime, he treats them differently from adults.

Posted by: Joe | Oct 26, 2010 11:03:33 AM

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