TABLE OF CONTENTS INTRODUCTION I. BACKGROUND A. Centuries of Recognizing the Impact of Youthfulness on Culpability B. Finding Youthfulness in Psychology and Neuroscience C. Attaining Eighth Amendment Significance 1. Roper v. Simmons 2. Graham v. Florida 3. Miller v. Alabama II. DISCUSSION A. Overextending the Data B. Criminal Punishment Not Comparable to Affirmative Rights to Engage in "Adult" Conduct C. Undermining Penological Justifications 1. Retribution 2. Deterrence 3. Incapacitation 4. Rehabilitation III. A PROPOSED SOLUTION A. Presumption of Youthfulness 1. Mandatory and Irrebuttable for Defendants Under Eighteen 2. Permissive and Rebuttable for Defendants Up to Age Twenty-Five B. Addressing Concerns 1. Simply a Delayed Bright Line? 2. Sacrificing Judicial Efficiency? 3. Inviting Uncertainty and Unwarranted Sentencing Inconsistency? CONCLUSION INTRODUCTION
Age, rather than death, has come to define the Supreme Court's Eighth Amendment jurisprudence. (1) In three decisions over the last nine years, the Court has significantly altered the criminal sentencing landscape by doling out constitutional, categorical discounts on capital and noncapital punishment for those who had not yet celebrated their eighteenth birthdays at the time of their crimes. (2) The Court rejected capital punishment for those under eighteen, (3) then life without parole in nonhomicide cases, (4) and most recently, the Court held that the Eighth Amendment prohibits mandatory life without parole sentences. (5) Each decision has turned on attributes, or factors, inherent in youth that the Court has found make those under eighteen less culpable for their crimes under the Eighth Amendment. (6) They include offenders' (1) lack of maturity and underdeveloped sense of responsibility, (2) vulnerability to negative influences and limited control over their environment, and (3) lack of characters that can be rehabilitated. (7)
These factors have not been surmised simply from precedent or common sense. Rather, the Court has relied on scientific and sociological studies to support its finding that these three characteristics are inherent among those under eighteen, (8) reduce that group's culpability, and accordingly reduce the punishments that society can justly impose. (9) But the Court's reliance on such evidence overextends its usefulness. Neuroscientific and psychological data on which the Court has relied does not identify a bright-line age at which these three factors no longer lessen culpability. (10) Their resulting impact on penological justifications supporting legitimate punishment, which have also been central to the Court's holdings, similarly does not hinge on an offender having a particular number of candles on his birthday cake. The Court itself has previously recognized the shallow truth of age, holding youth to be "more than a chronological fact" and instead "a time and condition of life when a person may be most susceptible to influence and to psychological damage." (11) Still, since Roper v. Simmons, the Court has resolved to categorically and increasingly mitigate punishment based on youthfulness via the Eighth Amendment only when offenders are under eighteen. While the Court in Roper acknowledged and discounted the limitations of its bright-line rule, (12) the Miller Court did not address the issue.
This Comment aims to seize on the Miller Court's silence and demonstrate the inequity in drawing a bright line at eighteen for considering youthfulness in mitigating punishment under the Court's logic. Given both the scientific impossibility of identifying a precise age at which characteristics of youthfulness cease, and the Court's repeated recognition that these very factors impact culpability and preclude just punishment, (13) the current approach cannot stand. Instead, this Comment argues that if the way to address the increasingly punitive orientation of criminal justice remains one of protecting youthful defendants through the Eighth Amendment, then the same consideration of youthfulness that has been deemed constitutionally relevant for those under eighteen must also be available for equally youthful (14) defendants over eighteen to assert when they face equally harsh and irrevocable sentences.
While considerable literature discusses sentencing policy for young offenders, this Comment focuses on the Supreme Court's trio of categorical decisions to examine the justifications for a bright-line rule and, ultimately, to lend support for defendants' abilities to seek out the mitigating force of youthfulness up to age twenty-five. By continuing to categorically exclude those over eighteen in homage to society's traditional demarcation point of adulthood, the Court loses sight of the exceptionality of criminal punishment compared to other rights-allocating areas of the law, such as voting. Furthermore, setting a bright line at eighteen unjustly disregards offenders over eighteen who, in many instances, would likewise be deemed less responsible under the scheme of justifications the Court has set forth.
Following this Introduction, Part I of this Comment provides background regarding the relationship between youthfulness and culpability. First, it sketches its historical foundations, describing both the early common law infancy defense and the rise and fall of the rehabilitative juvenile justice model. Second, it describes the biological underpinnings of youthfulness that have been documented through psychological and neuroscientific study. Third, it shows how the Supreme Court has given this evidence Eighth Amendment significance.
Part II then raises three key issues with the Court's bright line at eighteen. It highlights the lack of scientific support for a categorical line, describes the Court's improper comparison to other rights-allocating areas of the law, and demonstrates how penological justifications for punishment can be similarly undermined for youthful defendants over eighteen.
Finally, Part III argues that the Court should make the mitigating effect of youthfulness available to youthful offenders between the ages of eighteen and twenty-five by recasting its categorical line as a presumption. Under such a scheme, defendants up to eighteen years old would be irrebuttably presumed youthful, while defendants between the ages of eighteen and twenty-five could seek to show that they meet the Court's "youthful" criterion and likewise deserve protection from irrevocable sentences.
CENTURIES OF RECOGNIZING THE IMPACT OF YOUTHFULNESS ON CULPABILITY
The correlative relationship between youthfulness and culpability has long been recognized through the concept of infancy. (15) By the seventeenth century, English common law held that children under the age of seven could not be punished for any crime. (16) Those aged seven and under were irrebuttably presumed to lack the mental capacity to form the criminal intent necessary for justly imposing punishment. (17) While individuals between ages seven and thirteen were additionally presumed incapable of forming that intent, (18) proof that the child knew his act was wrong could rebut the presumption. (19) After the U.S. Bill of Rights was adopted, the common law rebuttable presumption of incapacity to commit felonies for youth between ages seven and thirteen remained in force, but "adult" punishments, such as execution, could theoretically be imposed on anyone over the age of seven. (20)
These gradations based on age reflected the importance of a guilty conscience for criminal punishment. To constitute a complete crime, "cognizable by human laws," Blackstone wrote, "there must be, first, a vicious will; and secondly, an unlawful act consequent upon such vicious will." (21) If a jury confronted a defendant incapable of committing a felony, Sir Matthew Hale advised that it could find that he committed the act but was not of sound mind, or that he could not discern between good and evil. (22) Determining culpability in this way reflected the understanding that developmental differences prevented very young offenders from forming criminal intent. (23) When offenders then passed the minimum threshold of competence, their diminished responsibility could still render them less culpable. (24) Defendants aged seven to fourteen were presumed to possess a natural incapacity to be guilty of crimes, which the state could rebut upon individualized determinations of capacity. (25) For this group of defendants, therefore, "[t]he capacity of doing ill, or contracting guilt," as Blackstone put it, was "not so much measured by years and days, as by the strength of the delinquent's understanding and judgment." (26)
Around the turn of the nineteenth century, recognition of youth developmental differences took on a new character. Progressive reformers, (27) animated by worsening household conditions and scholarly reconceptualization of childhood, (28) sought to establish separate courts to adjudicate young offenders (29)--sometimes as old as twenty-one. (30) The new courts' aim was to treat young offenders rather than punish them. (31) As such, a concern for youth welfare took precedence over concerns with their offenses. (32) The courts exercised states' parens patriae authority (33) to emphasize treatment, supervision, and control in place of traditional, punitive criminal procedures. (34) Because punishment and blameworthiness largely had no place in this rehabilitative model of justice, issues regarding youthfulness and culpability received little attention for much of the twentieth century. (35)
That changed by the late 1980s with skyrocketing juvenile crime rates. Between 1980 and 1994, the number of juvenile arrests for violent offenses climbed 64% and juvenile arrests for murder specifically jumped 99%. (36) Media coverage of crime also exploded, (37) and state legislatures responded in near universality. (38) Over a period of just three years from 1992 to 1995, forty...