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

• Author: Peter J. Benekos,Alida V. Merlo
• Date: 01 February 2019
• DOI: 10.1177/0887403416648734
• Published date: 01 February 2019
• Subject Matter: Articles

https://doi.org/10.1177/0887403416648734

Criminal Justice Policy Review

2019, Vol. 30(1) 102 –127

© The Author(s) 2016

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DOI: 10.1177/0887403416648734

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Article

A Decade of Change: Roper v.

Simmons, Defending Childhood,

and Juvenile Justice Policy

Peter J. Benekos1 and Alida V. Merlo2

Abstract

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.

Keywords

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

research-article2016

Benekos and Merlo 103

Introduction

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