A Decade of Change: Roper v. Simmons, Defending Childhood, and Juvenile Justice Policy

Date01 February 2019
Published date01 February 2019
Subject MatterArticles
Criminal Justice Policy Review
2019, Vol. 30(1) 102 –127
© The Author(s) 2016
Article reuse guidelines:
DOI: 10.1177/0887403416648734
A Decade of Change: Roper v.
Simmons, Defending Childhood,
and Juvenile Justice Policy
Peter J. Benekos1 and Alida V. Merlo2
In the last decade, juvenile justice has emerged with more compassion and
child-focused policies. During this time, crime decreased, successful strategies
for prevention and intervention were identified, neuroscience examined the
wiring of the adolescent brain, and the Attorney General established a federal
mandate to recognize and respond to children exposed to violence (CEV). In this
context, the authors identify two developments that contributed to the ongoing
iterations of juvenile justice: Supreme Court decisions that restrict excessive
juvenile punishments and policies that recognize the consequences of childhood
trauma and the importance of relevant treatment. The Supreme Court rationale
in Roper v. Simmons, Graham v. Florida, Miller v. Alabama, and Montgomery v.
Louisiana was instrumental in underscoring that youth are different from adults
and therefore require different sentencing. The second development was a
broader understanding of the scope and consequences of childhood trauma
which renewed support to identify and care for youth exposed to violence.
The authors review the Court’s rationale in moving policy away from harsh
punishment and retribution, the evidence-based support for trauma-informed
treatment of youth, and the limits of Court decisions and policy changes in
reforming juvenile justice.
juvenile justice reform, juvenile policy, Supreme Court decisions, juvenile sanctions,
young offenders, victim advocacy
1Mercyhurst University, Erie, PA, USA
2Indiana University of Pennsylvania, PA, USA
Corresponding Author:
Alida V. Merlo, Indiana University of Pennsylvania, 411 North Walk, Wilson Hall, Indiana, PA 15705, USA.
Email: amerlo@iup.edu
648734CJPXXX10.1177/0887403416648734Criminal Justice Policy ReviewBenekos and Merlo
Benekos and Merlo 103
In 1967, the U.S. Supreme Court ruled that “children are people” who deserve the
constitutional due process protections afforded adults (In re Gault, 1967; Ketcham,
1967; Stansby, 1967). The decision (8-1) was reached in the landmark case In re Gault
(1967) which challenged the wide discretionary authority exercised by courts in cases
dealing with adjudication of errant youth. With Gault, the Court disputed the philoso-
phy of parens patriae and initiated what was described as the beginning of a “consti-
tutional domestication” of the juvenile court as well as the transformation of the
juvenile justice system (Feld, 2002). The requirements that juvenile courts had to com-
ply with constitutional procedures consistent with the Fourteenth Amendment (e.g.,
right to counsel, notice of charges, right to cross-examination, protection from self-
incrimination, and right to record and appeal) were viewed as far-reaching and revolu-
tionary (Dorsen, 2007; Ketcham, 1967).
At the time, it was recognized that state legislatures would have to rewrite statutes
and judges would have to conduct court hearings with more formal procedure in
adherence to constitutional safeguards. After the decision, Stansby (1967) observed,
“The changes will undoubtedly be difficult; they will also almost certainly be benefi-
cial” (p. 1217). Some have argued, however, that the Court’s ruling in Gault and the
accompanying reform efforts did not meet the expectations of ensuring due process or
achieving justice and fairness (Friedman, 2011; Sterling, 2013). Clearly, Gault “did
not serve as a panacea” (Stansby, 1967, p. 1217), and the Court’s reach was limited.
Blitzman (2015) concluded that “the full realization of Gault’s promise of due process
remains aspirational” (p. 3).
Nonetheless, Gault did reveal flaws in the juvenile court which the Court attempted
to address and the decision opened the door for safeguarding rights of children and
youth. Subsequent Court decisions (e.g., Breed v. Jones, 1975; In re Winship, 1970)
extended protections and due process rights, and reinforced that youthful offenders
were shielded by the Constitution. The rise in violent crime in the late 1980s and early
1990s, however, and the moral panic it precipitated, turned the attention of juvenile
justice away from rights and protections to incapacitation and punishment (Merlo,
Benekos, & Champion, 2016). During the superpredator panic, state legislatures
enacted get-tough sentencing that lowered the age of adult jurisdiction, expanded
waiver provisions, and mandated lengthy prison sentences. At least 45 states passed
laws making it easier for youth to be tried and sentenced as adults, including sentences
of life without parole (Mills, Dorn, & Hritz, 2015).
The emphasis on deterrence, incapacitation, and punishment resulted in the con-
finement of more youth in adult jails and prisons. From 1990 to 1999, there was a
10-fold increase in the number of juvenile life without parole sentences (Mills et al.,
2015). After almost four decades of Court efforts to extend due process rights and
constitutional protections to youthful defendants, in the 2000s, the Court was asked to
re-examine whether extreme sentences for youth (e.g., death penalty and life without
parole) violated the Eighth Amendment ban on cruel and unusual punishment. In the
context of evolving standards of decency and neuroscience research, the Court

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