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Children, Development, and the Troubled Foundations of Miller v. Alabama

Published online by Cambridge University Press:  18 July 2019


While the boundaries between child, adolescent, and adult are difficult to define, there is a consensus that children and adults are different in kind. Extreme acts of violence put pressure on that consensus. Children that kill, for many, create a kind of border problem for juvenile justice. That public opinion tends to align with the general claim that children who break the law should be given a break belies a deeper set of confusions. On what grounds should a seventeen-year-old that kills be treated more leniently than his eighteen-year-old counterpart? For the U.S. Supreme Court majority, the solution is to root its doctrine in a scientifically supported “developmental approach.” This article argues that this approach is philosophically confused. One must abandon, or significantly amend, that dominant understanding to explain how a principled concern with proportional punishment simultaneously justifies and limits the legal response to children that kill. The final pages sketch an alternative account that may be able to address the shortcomings of appeals to development. To punish children as adults, I suggest, is an attempt to reap the benefits of paternalism without bearing the accompanying political, social, and moral costs.

© 2019 American Bar Foundation 

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Archard, David Children: Rights and Childhood. New York: Routledge, 2004.Google Scholar
Barker, Vanessa The Politics of Imprisonment: How the Democratic Process Shapes the Way America Punishes Offenders. New York: Oxford University Press, 2009.CrossRefGoogle Scholar
Brewer, Holly By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority. Chapel Hill: UNC Press, 2012.Google Scholar
Buss, EmilyRethinking the Connection Between Developmental Science and Juvenile Justice.” University of Chicago Law Review 76, no. 1 (2009a).Google Scholar
Buss, EmilyWhat the Law Should (and Should Not) Learn from Child Development Research.” Hofstra Law Review 38 (2009b).Google Scholar
Carroll, MaureenTransgender Youth, Adolescent Decisionmaking, and Roper v. Simmons.” UCLA Law Review 56, no. 3 (2009).Google Scholar
Cohen, Elizabeth F. Semi-Citizenship in Democratic Politics. Cambridge; New York: Cambridge University Press, 2009.CrossRefGoogle Scholar
Cohen, Howard Equal Rights for Children. Totowa, NJ: Littlefield, Adams, 1980.Google Scholar
Delgado, RichardRotten Social Background: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation.” Law & Inequality 3 (1985).Google Scholar
Desmond, Matthew Evicted: Poverty and Profit in the American City. New York: Crown, 2016.Google Scholar
Dolovich, SharonCruelty, Prison Conditions, and the Eighth Amendment.” New York University Law Review 84, no. 4 (2009).Google Scholar
Dzur, Albert W., Loader, Ian, and Sparks, Richard Democratic Theory and Mass Incarceration. Oxford, UK: Oxford University Press, 2016.CrossRefGoogle Scholar
Fagan, JeffreyJuvenile Crime and Criminal Justice: Resolving Border Disputes.” The Future of Children 18, no. 2 (2008), 81118.CrossRefGoogle ScholarPubMed
Feld, BarryAbolish the Juvenile Court: Youthfulness, Criminal Responsibility, and Sentencing Policy.” The Journal of Criminal Law and Criminology 88, no. 1 (1997): 68136.CrossRefGoogle Scholar
Feld, BarryYouth Discount: Old Enough to Do the Crime, Too Young to Do the Time.” Ohio State Journal of Criminal Law 11 (2013).Google Scholar
Gardner, Margo, and Steinberg, LaurencePeer Influence on Risk Taking, Risk Preference, and Risky Decision Making in Adolescence and Adulthood: An Experimental Study.” Developmental Psychology 41, no. 4 (2005): 625.CrossRefGoogle Scholar
Gonnerman, JenniferBefore the Law.” The New Yorker, October 2014.Google Scholar
Goodin, Robert E.What Is so Special About Our Fellow Countrymen?Ethics 98, no. 4 (1988): 663–86.CrossRefGoogle Scholar
Grisso, Thomas, Steinberg, Laurence, Woolard, Jennifer, Cauffman, Elizabeth, Scott, Elizabeth, Graham, Sandra, Lexcen, Fran, Reppucci, N. Dickon, and Schwartz, RobertJuveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants.” Law and Human Behavior 27, no. 4 (2003): 333.CrossRefGoogle ScholarPubMed
Harcourt, Bernard E.The Invisibility of the Prison in Democratic Theory: A Problem of ‘Virtual Democracy.’The Good Society 23, no. 1 (2014): 616.CrossRefGoogle Scholar
Harcourt, Bernard E. Language of the Gun: Youth, Crime, and Public Policy. Chicago: University of Chicago Press, 2006.CrossRefGoogle Scholar
Heipt, Wendy S.Girl’s Court: A Gender Responsive Juvenile Court Alternative.” Seattle Journal for Social Justice 13 (2014): 803.Google Scholar
Hockenberry, Sarah, and Puzzanchera, CharlesJuvenile Court Statistics 2014.” National Center for Juvenile Justice. April 2017. Scholar
James, Allison, and Prout, Alan, eds. Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood. Bristol, PA: Falmer Press, 1990.Google Scholar
Jenkins, HenryChildhood Innocence and Other Modern Myths.” In The Children’s Culture Reader, edited by Jenkins, Henry, 140. New York: NYU Press, 1998.Google Scholar
Leo, Richard A., and Drizin, Steven A.The Problem of False Confessions in the Post-DNA World.” North Carolina Law Review 82, no. 3 (2004).Google Scholar
MacDonald, John M., and Chesney-Lind, MedaGender Bias and Juvenile Justice Revisited: A Multiyear Analysis.” Crime & Delinquency 47, no. 2 (2001): 173–95.CrossRefGoogle Scholar
Mack, Julian W.The Juvenile Court.” Harvard Law Review 23, no. 2 (1909).CrossRefGoogle Scholar
Maroney, Terry A.The False Promise of Adolescent Brain Science in Juvenile Justice.” Notre Dame Law Review 85 (2009): 89.Google Scholar
Miller, Lisa The Myth of Mob Rule: Violent Crime and Democratic Politics. Oxford, UK: Oxford University Press, 2016.CrossRefGoogle Scholar
Miller, Riane N., and Applegate, Brandon K.Adult Crime, Adult Time? Benchmarking Public Views on Punishing Serious Juvenile Felons.” Criminal Justice Review 40, no. 2 (2015): 151–68.CrossRefGoogle Scholar
Moffitt, Terrie E.Life-Course-Persistent and Adolescence-Limited Antisocial Behavior: A 10-Year Research Review and a Research Agenda.” In Causes of Conduct Disorder and Juvenile Delinquency, edited by Lahey, Benjamin B., Moffitt, Terrie E., and Caspi, Avshalom, 4975. New York: Guilford Press, 2003.Google Scholar
Palmeri, AnnChildhood’s End: Toward the Liberation of Children.” In Whose Child? Children’s Rights, Parental Authority, and State Power, edited by Aiken, William and LaFollette, Hugh, 105–23. Totowa, N.J.: Rowman; Littlefield, 1980.Google Scholar
Pfaff, John Locked in: The True Causes of Mass Incarceration and How to Achieve Real Reform. New York: Basic Books, 2017.Google Scholar
Piquero, Alex, Fagan, Jeffrey, Mulvey, Edward P., Steinberg, Laurence, and Odgers, CandiceDevelopmental Trajectories of Legal Socialization Among Serious Adolescent Offenders.” The Journal of Criminal Law & Criminology 96, no. 1 (2005): 267.Google ScholarPubMed
Piquero, Alex R., and Steinberg, LaurencePublic Preferences for Rehabilitation Versus Incarceration of Juvenile Offenders.” Journal of Criminal Justice 38, no. 1 (2010): 16.CrossRefGoogle Scholar
Posner, RichardForeword: A Political Court.” Harvard Law Review 119, no. 1 (2005): 28102.Google Scholar
Rothman, David J. The Discovery of the Asylum: Social Order and Disorder in the New Republic. New York: Aldine Transaction, 2002.Google Scholar
Scott, Elizabeth S.‘Children Are Different’: Constitutional Values and Justice Policy.” Ohio State Journal of Criminal Law 11 (2013): 71.Google Scholar
Scott, Elizabeth S., and Scott, Robert E.Parents as Fiduciaries.” Virginia Law Review 81, no. 8 (1995): 2401–76.CrossRefGoogle Scholar
Scott, Elizabeth, and Steinberg, LaurenceAdolescent Development and the Regulation of Youth Crime.” The Future of Children 18, no. 2 (2008): 1533.CrossRefGoogle ScholarPubMed
Shapiro, Ian Democratic Justice. New Haven: Yale University Press, 2001.Google Scholar
Silva, Jennifer M.Constructing Adulthood in an Age of Uncertainty.” American Sociological Review 77, no. 4 (2012): 505–22.CrossRefGoogle Scholar
Steiker, Carol S., and Steiker, Jordan M.Miller v. Alabama: Is Death (Still) Different?Ohio State Journal of Criminal Law 11, no. 1 (2013): 3756.Google Scholar
Steinberg, LaurenceThe Influence of Neuroscience on U.S. Supreme Court Decisions About Adolescents’ Criminal Culpability.” Nature Reviews Neuroscience 14, no. 7 (2013): 513–18.CrossRefGoogle ScholarPubMed
Steinberg, Laurence, et al.Around the World, Adolescence Is a Time of Heightened Sensation Seeking and Immature Self-Regulation.” Developmental Science 21, no. 2 (2017): 113.Google ScholarPubMed
Steinberg, Laurence, and Scott, Elizabeth. “Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty.” American Psychologist 58, no. 12 (2003): 1009.CrossRefGoogle ScholarPubMed
Tanenhaus, David S. Juvenile Justice in the Making. New York: Oxford University Press, 2004.Google Scholar
Ulmer, Jeffery T., and Steffensmeier, Darrell. “The Age and Crime Relationship: Social Variation, Social Explanations.” In The Nurture Versus Biosocial Debate in Criminology: On the Origins of Criminal Behavior and Criminality, edited by Beaver, Kevin M., Barnes, J.C., and Boutwell, Brian B., 377–96. USA: SAGE Publications, 2014.CrossRefGoogle Scholar
Von Hirsch, Andrew. “Proportionate Sentences for Juveniles: How Different Than for Adults?Punishment & Society 3, no. 2 (2001): 221–36.Google Scholar
Ward, Cynthia. “Punishing Children in the Criminal Law.” Notre Dame Law Review 82, no. 1 (2006): 429.Google Scholar
Yaffe, Gideon. The Age of Culpability: Children and the Nature of Criminal Responsibility. Oxford; New York: Oxford University Press, 2018.CrossRefGoogle Scholar
Young, Iris Marion. “Polity and Group Difference: A Critique of the Ideal of Universal Citizenship.” Ethics 99, no. 2 (1989): 250–74.CrossRefGoogle Scholar
Zimring, Franklin E. American Juvenile Justice. Oxford; New York: Oxford University Press, 2005.CrossRefGoogle Scholar
Graham v. Florida, 130 S. Ct. 2011 (2010).CrossRefGoogle Scholar
JDB v. North Carolina, 131 S. Ct. 2394 (2011).Google Scholar
Miller v. Alabama, 132 S. Ct. 2455, 2470 (2012).Google Scholar
Montgomery v. Louisiana, 136 S. Ct. 718 (2016).Google Scholar
Roper v. Simmons, 125 S. Ct. 1183 (2004).CrossRefGoogle Scholar
Thompson v. Oklahoma, 108 S. Ct. 2687 (1988).CrossRefGoogle Scholar

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