The Age of the Child: Interrogating Juveniles after Roper v. Simmons

I. IntroductionDuring the past century, there have been several significant shifts in the legal system's approach towards juvenile crime.1 By the 189Os, the emerging science of child development had been embraced by reformers and child welfare experts alike and along with it the concept that "adolescents were 'more like infants in their nature and needs than they were like adults' and should be treated like children."2 The establishment in 1899 of the country's first juvenile court reflected this new understanding of the limitations of children and adolescents.3 This innovative Chicago institution came to symbolize the shift from a system in which offenders as young as seven-years-old were tried and sentenced as adults to one which sought to protect juveniles during the "storms of adolescence" and which championed rehabilitation-not punishment-as its ultimate goal.4Other swings of the pendulum were to follow, and by the 1950s, the system was under attack yet again, with critics asserting that juveniles were receiving neither effective rehabilitative treatment nor appropriate procedural safeguards under theparenspatriae (surrogate parent) approach of the courts.5 The lack of due process protections afforded to juveniles, combined with the concomitant failure of juvenile courts either to reduce crime or rehabilitate young offenders, led to the U.S. Supreme Court's 1967 landmark case, In re Gault,6 which granted juveniles the right to counsel and the privilege against self-incrimination.7 Gault opened the door for a second period of reform, as legislators and courts worked to craft a model of juvenile justice that provided adequate procedural protections while also emphasizing both personal accountability and rehabilitation.8 By the 198Os, with the perceived increase in juvenile crime and the resulting public demand for harsher penalties for juveniles at increasingly younger ages, the political will to sustain a separate system for youth had all but disappeared.9 Since that time, we have seen a third wave of juvenile justice reform that has brought us even further from the goal of rehabilitation, with states transferring more juveniles into the adult system, thereby increasing the severity and length of their prison terms.10With its decision in Roper v. Simmons,11 invalidating the imposition of the death penalty on offenders who were younger than eighteen when their crimes were committed,12 the Court has, perhaps, heralded yet another shift in the perspective of the legal system-and the culture at large-towards adolescents who commit crimes. Invoking social science research13 as well as a "common sense" understanding of the differences between teenagers and adults,14 the majority found that as a categorical matter, juveniles are not as culpable as adults and thus, cannot be classified among the "worst offenders," deserving of the most severe punishment.15 With its recognition of the evolving nature of juveniles' identity, character, and personality traits and their resulting capacity for emotional growth and maturation, Simmons found it morally "misguided" to equate the failings of minors with those of adults.16 Overruling its 1989 decision in Stanford v. Kentucky,17 which upheld the death penalty for sixteenand seventeen-year-olds, and relying instead on its 1988 decision in Thompson v. Oklahoma,18 which prohibited the death penalty for offenders fifteen-yearsold and younger, the Court called for consistency between the rights that we deny to individuals under the age of eighteen and the responsibilities that we assign to them.19 In many ways, the opinion implicitly barkened back to the approach of the country's first juvenile court when the judge's focus was not on the audacity or savagery of the crime, but on the potential for reforming young offenders.20Yet, in writing for the majority, Justice Kennedy did not base the Court's decision solely on the developmental differences between juveniles and adults or on the arguably stereotyped and romantic notion of youth as immature, unpredictable works in progress. …