Skip to main content Accessibility help

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

  • Christopher D. Berk


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.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the or variations. ‘’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

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

      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

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

      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

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



Hide All
Archard, David Children: Rights and Childhood. New York: Routledge, 2004.
Barker, Vanessa The Politics of Imprisonment: How the Democratic Process Shapes the Way America Punishes Offenders. New York: Oxford University Press, 2009.
Brewer, Holly By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority. Chapel Hill: UNC Press, 2012.
Buss, EmilyRethinking the Connection Between Developmental Science and Juvenile Justice.” University of Chicago Law Review 76, no. 1 (2009a).
Buss, EmilyWhat the Law Should (and Should Not) Learn from Child Development Research.” Hofstra Law Review 38 (2009b).
Carroll, MaureenTransgender Youth, Adolescent Decisionmaking, and Roper v. Simmons.” UCLA Law Review 56, no. 3 (2009).
Cohen, Elizabeth F. Semi-Citizenship in Democratic Politics. Cambridge; New York: Cambridge University Press, 2009.
Cohen, Howard Equal Rights for Children. Totowa, NJ: Littlefield, Adams, 1980.
Delgado, RichardRotten Social Background: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation.” Law & Inequality 3 (1985).
Desmond, Matthew Evicted: Poverty and Profit in the American City. New York: Crown, 2016.
Dolovich, SharonCruelty, Prison Conditions, and the Eighth Amendment.” New York University Law Review 84, no. 4 (2009).
Dzur, Albert W., Loader, Ian, and Sparks, Richard Democratic Theory and Mass Incarceration. Oxford, UK: Oxford University Press, 2016.
Fagan, JeffreyJuvenile Crime and Criminal Justice: Resolving Border Disputes.” The Future of Children 18, no. 2 (2008), 81118.
Feld, BarryAbolish the Juvenile Court: Youthfulness, Criminal Responsibility, and Sentencing Policy.” The Journal of Criminal Law and Criminology 88, no. 1 (1997): 68136.
Feld, BarryYouth Discount: Old Enough to Do the Crime, Too Young to Do the Time.” Ohio State Journal of Criminal Law 11 (2013).
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.
Gonnerman, JenniferBefore the Law.” The New Yorker, October 2014.
Goodin, Robert E.What Is so Special About Our Fellow Countrymen?Ethics 98, no. 4 (1988): 663–86.
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.
Harcourt, Bernard E.The Invisibility of the Prison in Democratic Theory: A Problem of ‘Virtual Democracy.’The Good Society 23, no. 1 (2014): 616.
Harcourt, Bernard E. Language of the Gun: Youth, Crime, and Public Policy. Chicago: University of Chicago Press, 2006.
Heipt, Wendy S.Girl’s Court: A Gender Responsive Juvenile Court Alternative.” Seattle Journal for Social Justice 13 (2014): 803.
Hockenberry, Sarah, and Puzzanchera, CharlesJuvenile Court Statistics 2014.” National Center for Juvenile Justice. April 2017.
James, Allison, and Prout, Alan, eds. Constructing and Reconstructing Childhood: Contemporary Issues in the Sociological Study of Childhood. Bristol, PA: Falmer Press, 1990.
Jenkins, HenryChildhood Innocence and Other Modern Myths.” In The Children’s Culture Reader, edited by Jenkins, Henry, 140. New York: NYU Press, 1998.
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).
MacDonald, John M., and Chesney-Lind, MedaGender Bias and Juvenile Justice Revisited: A Multiyear Analysis.” Crime & Delinquency 47, no. 2 (2001): 173–95.
Mack, Julian W.The Juvenile Court.” Harvard Law Review 23, no. 2 (1909).
Maroney, Terry A.The False Promise of Adolescent Brain Science in Juvenile Justice.” Notre Dame Law Review 85 (2009): 89.
Miller, Lisa The Myth of Mob Rule: Violent Crime and Democratic Politics. Oxford, UK: Oxford University Press, 2016.
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.
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.
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.
Pfaff, John Locked in: The True Causes of Mass Incarceration and How to Achieve Real Reform. New York: Basic Books, 2017.
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.
Piquero, Alex R., and Steinberg, LaurencePublic Preferences for Rehabilitation Versus Incarceration of Juvenile Offenders.” Journal of Criminal Justice 38, no. 1 (2010): 16.
Posner, RichardForeword: A Political Court.” Harvard Law Review 119, no. 1 (2005): 28102.
Rothman, David J. The Discovery of the Asylum: Social Order and Disorder in the New Republic. New York: Aldine Transaction, 2002.
Scott, Elizabeth S.‘Children Are Different’: Constitutional Values and Justice Policy.” Ohio State Journal of Criminal Law 11 (2013): 71.
Scott, Elizabeth S., and Scott, Robert E.Parents as Fiduciaries.” Virginia Law Review 81, no. 8 (1995): 2401–76.
Scott, Elizabeth, and Steinberg, LaurenceAdolescent Development and the Regulation of Youth Crime.” The Future of Children 18, no. 2 (2008): 1533.
Shapiro, Ian Democratic Justice. New Haven: Yale University Press, 2001.
Silva, Jennifer M.Constructing Adulthood in an Age of Uncertainty.” American Sociological Review 77, no. 4 (2012): 505–22.
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.
Steinberg, LaurenceThe Influence of Neuroscience on U.S. Supreme Court Decisions About Adolescents’ Criminal Culpability.” Nature Reviews Neuroscience 14, no. 7 (2013): 513–18.
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.
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.
Tanenhaus, David S. Juvenile Justice in the Making. New York: Oxford University Press, 2004.
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.
Von Hirsch, Andrew. “Proportionate Sentences for Juveniles: How Different Than for Adults?Punishment & Society 3, no. 2 (2001): 221–36.
Ward, Cynthia. “Punishing Children in the Criminal Law.” Notre Dame Law Review 82, no. 1 (2006): 429.
Yaffe, Gideon. The Age of Culpability: Children and the Nature of Criminal Responsibility. Oxford; New York: Oxford University Press, 2018.
Young, Iris Marion. “Polity and Group Difference: A Critique of the Ideal of Universal Citizenship.” Ethics 99, no. 2 (1989): 250–74.
Zimring, Franklin E. American Juvenile Justice. Oxford; New York: Oxford University Press, 2005.
Graham v. Florida, 130 S. Ct. 2011 (2010).
JDB v. North Carolina, 131 S. Ct. 2394 (2011).
Miller v. Alabama, 132 S. Ct. 2455, 2470 (2012).
Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
Roper v. Simmons, 125 S. Ct. 1183 (2004).
Thompson v. Oklahoma, 108 S. Ct. 2687 (1988).


Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed