The title of this post is the title of a notable new law review essay by Professor Elizabeth Scott of Columbia Law School, which is forthcoming in the Ohio State Journal of Criminal Law. The article is posted and available via SSRN.
Here is the abstract:
This essay explores the importance of Miller and two earlier Supreme Court opinions rejecting harsh sentences for juveniles for Eighth Amendment jurisprudence and for juvenile crime regulation. It argues that the Court has broken new ground with these opinions in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles’ non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing that the Court has embraced a developmental model of youth crime regulation and elevated this approach to one that is grounded in constitutional values and principles. This approach represents a forceful repudiation of the punitive law reforms of the late 20th century, when the relevance of adolescents’ developmental immaturity to justice policy was either ignored or rejected. The opinions offer four key lessons for lawmakers. The first is that juvenile offenders are different from and less culpable than adults and should usually be subject to more lenient criminal sanctions. The second lesson is that decisions to subject juveniles to adult prosecution and punishment should be “unusual” and individualized — made by a judge in a transfer hearing and not by categorical legislative waiver. The third lesson is that sanctions should focus on maximizing young offenders’ potential for reform and the fourth is that developmental science can guide and inform juvenile crime regulation in useful ways. These four lessons, formulated by our preeminent legal institution and embodying constitutional values, are likely to have a profound influence on the future direction of youth crime regulation.