Notion that “Kids are Different” Takes Hold in Youth Justice Policy Reform

2005 – Roper v. Simmons: U.S. Supreme court rules that it is cruel and unusual punishment to impose the death penalty on people for crimes committed when they were younger than 18.

“[F]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Roper v. Simmons, 543 U. S. 551, 570 (2005). 

2010 – Graham v. Florida: U.S. Supreme Court rules that life-without-parole sentences imposed on children for non-homicide offenses are unconstitutional.

“‘(J)uvenile offenders cannot with reliability be classified among the worst offenders.’ “ Graham v, Florida, 130 S. Ct. 2011, 2026 (2010), quoting Roper, 543 U.S., at 573.“Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults. Id. 

2011 -- J.D.B. v. North Carolina: U.S. Supreme Court establishes that youth status matters in areas of youth justice beyond the context of harsh sentencing policies when it imposed the requirement that law enforcement officials must consider the age of a suspect in determining whether Miranda warnings should be issued.

“Children generally are less mature and responsible than adults; they often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them; and they are more vulnerable or susceptible to . . . outside pressures than adults.  J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403 (2011) (internal quotation marks omitted).

2012 – Miller v. Alabama: U.S. Supreme Court rules that the imposition of a mandatory life without parole sentence on someone convicted of a crime as a child violates the 8^th Amendment ban on cruel and unusual punishment.

“Youth is more than a chronological fact. It is a time of immaturity, irresponsibility, impetuousness[,] and recklessness. It is a moment and condition of life when a person may be most susceptible to influence and to psychological damage.  And its signature qualities are all transient.” Miller v. Alabama, 132 S. Ct. 2455, 2467 (2012) (internal quotation marks omitted).    

If there was uncertainty seven years ago when the U.S. Supreme Court abolished the death penalty for children, or in 2010 when it ruled that life-without-parole sentences imposed on youth for non-homicide crimes are unconstitutional, it should be clear by now that this is a new day for youth justice reform.

Our nation’s highest court has held three times in the last three years that child status is relevant to matters of justice and the law. The message that “kids are different” has been established by the Court, scientific research and, increasingly, among liberal and conservative policymakers alike. As a result, the parameters for how we treat children in the U.S. justice system are forever changed.

Just as we consider the unique characteristics of young people when making decisions about when they are allowed to volunteer for military for service, drive, serve on juries or register to vote, we also must consider these differences in the context of youth justice policies. Laws that treat children like adults and ignore relevant factors related to their status as children — their lessened culpability, their unique vulnerability to peer pressure, their lack of understanding of the consequences of their actions and impulse control, and their particular capacity for rehabilitation— can no longer be justified.

The Court has scaled back some of the misguided policymaking of the 1980s and 1990s, when upticks in crime among youth led criminologists and other opinion leaders to predict a major wave of violent crime by “juvenile superpredators.” Policymakers reacted with fear-based “tough on crime” policy reforms making it easier to try children as adults and making more extreme sentences available to them.

These juvenile crime waves never materialized, and the superpredator theory has been debunked and acknowledged as inaccurate by the same criminologists who brought credibility to it. In addition, many of those criminologists have since emphasized the need for rehabilitation rather than harsh penalties to appropriately hold youth accountable and improve public safety.  This is the direction in which the pendulum is now swinging.

Policymakers and opinion leaders across the political spectrum have recently called for age-appropriate reforms to laws that ignore the differences between children and adults. These have included the New York Times, President Jimmy Carter, and conservative former lawmakers Newt Gingrich and Pat Nolan. Earlier this month, the Attorney General’s Task Force on Children Exposed to Violence, which is co-chaired by Joe Torre, Major League Baseball Executive Vice President of Baseball Operations, recommended in its report that the United States “stop treating juvenile offenders as if they were adults, prosecuting them as adults in adult courts, incarcerating them as adults, and sentencing them to harsh punishments that ignore their capacity to grow.” (See Recommendation 6.9, page 124).

As we look to the New Year, I am heartened that the notion that “kids are different” is taking hold. Policymakers who have been reticent to do so are realizing now that it is time to rethink policies that require youth to be tried and sentenced as adults and those that allow children to be incarcerated in adult jails and prisons, without consideration of their unique characteristics as children. Such policies are no longer tolerable. I am hopeful we can learn from the advances of the last decade and that this new day, and the new year, will bring about meaningful practices and policies that hold youth accountable for the harm they have caused in age-appropriate ways that help to rehabilitate them and prepare them for reintegration into society.