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December 20, 2013

"Sentencing Juveniles: Eliminate the Bright-Line Rule of Majority"

The title of this post is the title of this new article by Katie Ryan Van Camp just now appearing on SSRN. Here is the abstract:

The United States Supreme Court’s often stated view that “death is different” has led to a line of decisions in which the Court carved out categorical Eighth Amendment exceptions for certain groups.  These cases hold that courts should not give the death penalty to individuals within those groups.  In Atkins v. Virginia, for example, the leading case within the “death is different” line, the Court held that the death penalty was not an appropriate punishment for mentally retarded offenders because it constituted cruel and unusual punishment in violation of the Eighth Amendment.  The Court continued to carve out exceptions for certain groups including juveniles.

Then the Court’s view regarding the Eighth Amendment’s prohibition against cruel and unusual punishment evolved.  No longer was “death” the only “different;” now, juveniles could be considered “different.”  Following Roper, in which the Court held that sentencing juveniles — those under the age of eighteen — to death constituted cruel and unusual punishment in violation of the Eighth Amendment, a line of cases emerged in which the Court continued to carve out more exceptions for juveniles.

In each of these landmark decisions, the Court has found that to be considered a juvenile, the individual must be under the age of majority.  As found in Roper, and consistently followed in the other decisions within this line of cases, the age of majority is eighteen. Although the Court acknowledged that there are some juveniles under the age of majority who have attained a level of maturity “some adults will never reach” and “the qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” the Court drew a line.  Thus, the age of majority is a bright-line rule.

Heeding the Court’s own words, it should recognize that juveniles who are aged seventeen and those aged eighteen arguably are no different.  Research also suggests this to be true. This article argues, therefore, that because of the uncertainty surrounding “juvenile” brain development and because the bright-line rule of majority prevents courts from determining if an individual under the age of eighteen, the age of majority, has the requisite culpability deserving of the categorically excluded punishments, the Court should eliminate the bright-line rule of majority.  Further, although the majority of juveniles should not receive certain categorically excluded harsh punishments, a few should still receive those punishments, and it should be an option for all.

Part I of this article serves as background on the bright-line rule of majority and its application in “juveniles are different” cases.  Part II of this article argues that the Court should eliminate the bright-line rule of majority.  Part III of this article proposes a solution to the bright-line rule problem; that is, a case-by-case analysis should decide cases involving juveniles with age being another sentencing factor considered.  Age will thus act as an aggravating or mitigating factor in the sentencing phase of the criminal proceeding. Finally, Part IV of this article explains why a case-by-case analysis considering age as a sentencing factor is better than a bright-line rule of majority and addresses the potential counter-arguments to this proposal.

December 20, 2013 at 09:25 AM | Permalink


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What a coincidence. I was having a discussion with a colleague about the age of majority just this morning. The fact is that the age of majority is a social fiction that has no basis in the psychology of juvenile development. That does not mean that such a fiction is misguided or wrong because there is an argument that a line has to be drawn somewhere. The point that I made to my acquaintance is that the line is already so legally blurry who cares if we blur it some more? Once we take an honest look at the matter we quickly see that the "bright line" is anything but bright and is in fact legally gray and riddled with exceptions upon exceptions that are arbitrary and capricious. The whole issue in my mind had become a damn mess. It real basis lies in the push and shove of interest group politics, not in any rational thought process.

Posted by: Daniel | Dec 20, 2013 1:13:43 PM

It seems to me that there should be no distinction between adults and juveniles as to risk. But there should be such a distinction as to accountability. Speaking of accountability, a percentage formula should be adopted as a matter of public policy.

Posted by: Tom McGee | Dec 20, 2013 1:35:20 PM

Author wants the leniency of Miller to age 25 for the murderers. No pity nor leniency for the victims.

Posted by: Supremacy Claus | Dec 23, 2013 9:42:13 AM

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