Evolving the Standard of Decency: How the Eighth Amendment Reduces the Prosecution of Children as Adults

Publication year2018
CitationVol. 47 No. 3 Pg. 39
47 Colo.Law. 39
Evolving the Standard of Decency: How the Eighth Amendment Reduces the Prosecution of Children as Adults
Vol. 47, No. 3 [Page 39]
The Colorado Lawyer
March, 2018



The U.S. Supreme Court recently granted juveniles greater Eighth Amendment protections in several path-marking cases, reasoning that juveniles are constitutionally different from adults for purposes of punishment. During the 2012 and 2016 legislative sessions, the Colorado General Assembly responded with expansive changes to how children are prosecuted and sentenced. This article discusses these protections.

Colorado’s juvenile court system was created in 1903 by Denver Judge Benjamin Lindsey, who was appointed to the bench in 1901. Colorado’s system, founded on the premise that children are fundamentally different from adults, is based on a philosophy of rehabilitation rather than punishment.[1] However, this rehabilitative philosophy has not applied to all Colorado children charged with offenses. Since its inception, Colorado’s juvenile court system has statutorily allowed for the prosecution of children in adult courts in certain circumstances.[2]

Over the years, the prosecution of children in adult courts has been transformed. During the early years, the prosecution of children as adults was limited to 16- to 17-year-olds and was allowed only for the most severe offenses.[3] Between 1968 and 2010, Colorado lawmakers passed several laws expanding the circumstances under which children could be prosecuted in adult court; these laws also required the imposition of adult sentences on children prosecuted as adults.[4] Before reforms in 2012, the decision as to whether a child should be prosecuted as an adult was left to the sole discretion of the prosecuting attorney—a process referred to as “direct fling.”[5]

A series of legislative reforms in 2012 and 2016 significantly reduced a prosecutor’s ability to file charges against children in adult criminal court and changed the way the court system must view adolescence in determining punishment.[6] These reforms are consistent with a developing body of social science research and U.S. Supreme Court precedent recognizing significant distinctions between children and adults. This article discusses the research and Eighth Amendment jurisprudence underlying Colorado’s legislative reforms, provides a brief overview of the substance of the reforms, describes available data regarding the impact of the reforms, and identifies outstanding questions.

The Adolescent Brain: A Work in Progress

Extensive cognitive and social science research suggests that because adolescence is a transitory stage, youth matters when determining an appropriate punishment.[7] The U.S. Supreme Court has acknowledged that children are in the process of developing both mentally and physically and are constitutionally different than adults.[8] A basic understanding of this common sense recognition of children’s differences from adults inspired the creation, at the turn of the 20th century, of a separate justice system for juveniles.[9] The founders of Colorado’s juvenile justice system comprehended the prudence of specialized treatment of children by the justice system without the benefit of contemporary research concerning social science or neuroscience.

Research shows that the human brain is not fully developed until a person reaches the mid-20s.[10] While their adolescent brains are still growing, children and young adults are prone to participate in risky behavior.[11] Thanks to advancements in adolescent brain development research, it is now known that “reward pathways” in teen brains are under construction during adolescence and young adulthood.[12] As a result, teens are more likely to make split-second decisions, acting on impulse and without regard for the long-term negative consequences that may result from their actions.[13] As the adolescent brain (specifically, the prefrontal cortex) matures, people develop more control over impulses and can use reason to make better judgments—abilities necessary to make careful decisions when involved in stressful situations.[14] This research and understanding of the characteristics of youth have played an important role in the evolution of the Eighth Amendment as applied to children.

The Eighth Amendment as Applied to Children

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[15] December 15, 2016 marked the 225th anniversary of the ratification of the Eighth Amendment to the U.S. Constitution. Over time, the “cruel and unusual punishment” clause has transformed as it pertains to the punishment of children in criminal courts. Once interpreted to allow the execution of children, this clause now bars mandatory sentences of life without parole for homicide offenses committed by juveniles.

The original understanding of the Eighth Amendment focused only on the particular methods of punishment, allowing legislatures wide discretion to define punishments without regard to whether a defendant was a juvenile or an adult.[16] The clause was interpreted to forbid “punishments of torture,”[17] punishments involving “a lingering death,”[18] and punishments with a purpose of “infict[ing] unnecessary pain,”[19] without consideration of whether a punishment was excessive. This wide latitude granted to state legislatures led to the execution of hundreds of children and the lengthy imprisonment of thousands more throughout the United States.[20] The first juvenile known to be executed in America was Tomas Graunger, who was put to death after being found guilty of bestiality in 1642 in Plymouth Colony, Massachusetts.[21] Since that time, an estimated 364 juveniles have been put to death, including George Stinney, who was electrocuted when he was 14, and James Arcene, who was put to death for a crime committed when he was 10.[22]

Initially, the Eighth Amendment allowed for the death penalty as an appropriate punishment for a wide array of offenses. Until 1826, all felonies, except mayhem and petty larceny, were punishable by death.[23] The “cruel and unusual punishment” clause was originally understood to forbid only punishment outside of that proscribed by the common law tradition; whether a punishment was disproportionate was not considered.[24]

Eighth Amendment jurisprudence gradually evolved to incorporate the concept that a punishment can be unconstitutional if it is disproportionate.[25] In 1910, the U.S. Supreme Court reasoned: “Time works changes, brings into existence new conditions and purposes. Therefore a principle, to be vital, must be capable of wider application than the mischief which gave it birth.”[26] The Court stated for the first time that the “cruel and unusual punishment” clause “may acquire meaning as public opinion becomes enlightened by a humane justice.”[27]In 1958, the U.S. Supreme Court recognized t hat the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[28]

It was another 24 years before the Court began to apply this conception of the Eighth Amendment to cases involving children. In Eddings v. Oklahoma, the Court vacated the death sentence imposed upon a 16-year-old, recognizing that “youth is more than a chronological fact.”[29] The Court in Eddings did not directly confront the constitutionality of executing children, but rather for the first time constitutionalized the mitigating qualities of youth through the Eighth Amendment.[30] However, the U.S. Supreme Court was still closely divided on the application of the “cruel and unusual punishment” clause to children, as seen in two subsequent decisions. Six years later, in 1988, a plurality of the Court in Thompson v. Oklahoma held that the Eighth Amendment categorically bars the execution of children who committed crimes when they were 15 years old or younger.[31] The very next year, a different plurality in Stanford v. Kentucky held that the clause did not forbid the execution of people who committed offenses when they were 16 years old or older.[32] The concurring vote in each case came from Justice O’Connor, who in 1988 held on very narrow grounds that a person who was “below the age of 16 at the time of their offense may not be executed under the authority of a capital punishment statute that specifies no minimum age at which the commission of a capital crime can lead to the offender’s execution.”[33] In 1989, O’Connor concluded that “it is sufficiently clear that no national consensus forbids the imposition of capital punishment on 16- or 17-year-old capital murderers.”[34]

The Court ultimately left the question of the application of the Eighth Amendment to children unsettled for another 17 years. In those 17 years, public opinion gradually shifted toward abolishing the execution of juvenile ofenders, as evidenced through legislative enactments.[35] In 2005, the U.S. Supreme Court followed suit and began a consistent and unified move toward recognizing that the Eighth Amendment creates a constitutional mandate that requires a punishment to consider the mitigating qualities of youth. In Roper v. Simmons, Justice Kennedy overruled Stanford v. Kentucky (an opinion in which he had joined) and held that the Eighth Amendment categorically bars the execution of a person who committed any offense under the age of 18.[36]

Roper was founded on the notion that the appropriateness of punishments can evolve based on the “progress of a maturing society.”[37]This progress can lead society to conclude that some punishments are so disproportionate as to be categorically cruel and unusual, which is expressed in legislative enactments and state practices forbidding certain punishments.[38]

In three subsequent cases, the Court expanded the application of the Eighth...

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