Fallacious Reasoning: Revisiting the Roper Trilogy in Light of the Sexual-Abuse-to-Prison Pipeline.

• Author: Marquardt, Marjory Anne Henderson

Introduction I. The Roper Trilogy II. The Sexual-Abuse-to-Prison Pipeline A. Gender Disparity of Sexual Abuse and Its Effect on Adolescent Development B. Sexual Abuse as a Pipeline to Prison C. The Impact of the Roper Trilogy III. Policy Recommendations to Disrupt the Pipeline A. Mens Rea Analysis B. Expert Qualifications and Jury Instructions C. Status Offenses D. Upcriming and Net Widening Conclusion Introduction

For decades, the Supreme Court has recognized that cases involving juvenile defendants should be treated differently from cases involving adult defendants. While juveniles have a right "to appropriate notice, to counsel, to confrontation ..., and the privilege against self-incrimination," other constitutional protections may not be available. (1) In general, the juvenile court system differs from that for adult criminal defendants because of its "informality, flexibility, [and] speed." (2) So, for example, juveniles are not entitled to a jury. (3) And juvenile judges act more in a parental capacity than do judges in adult criminal cases. (4) These examples conform to the principle espoused by Justice Breyer that it would it would be "fallacious reasoning" to "uncritically" apply adult law to children.5 This Note will review how this "fallacious reasoning" admonition concerns the application of law to fundamentally different groups of children.

In a trilogy of cases decided from 2005 to 2012, the Supreme Court revamped its "children are different" principle and broke from precedent by prohibiting certain types of punishment for children. First, in Roper v. Simmons, the Court ruled that children were categorically different from adults for the purpose of sentencing and prohibited capital punishment for children who committed crimes while under eighteen years old. (6) Then, in Graham v. Florida, the Court held juvenile life without parole (JLWOP) unconstitutional for nonhomicidal crimes using the same "children are different" reasoning. (7) Finally, the Court extended Graham's prohibition on mandatory JLWOP to include homicidal crimes in Miller v. Alabama, (8) a holding the Court later made retroactive in Montgomery v. Louisiana. (9) These cases caused tectonic shifts in sentencing, but the principle that children are different sweeps more broadly than sentencing practices or even rules of criminal procedure. As Miller acknowledged, "none of what [Graham] said about children--about their distinctive (and transitory) mental traits and environmental vulnerabilities--is crime-specific." (10) The self-conscious breadth of the decisions combined with the breadth of the underlying principle--that children are different in terms of criminal culpability--set the stage for broad policy changes.

In the wake of the trilogy, academic research seized on technical changes to the administration of juvenile justice. (11) Much of this research examined the meaning of Graham's promise for juveniles to have a "meaningful opportunity to obtain release." (12) Within this area of research, some scholars looked at the likelihood of juveniles obtaining parole in the context of current parole practices. (13) Other scholars queried whether sentences over a certain period of time, such as ninety years, without opportunity for parole constituted a de facto life sentence rendering them unconstitutional. (14) In a similar vein, many scholars seized on Miller's promise that a sentence of life without parole will be "random if not rare" and explored procedural changes to guarantee this assurance. (15) Before Montgomery, many scholars homed in on whether Miller was retroactive. (16) After Montgomery, scholars looked at the state of the Miller's implementation. (17)

Finally, the trilogy invited many scholars to explore a capacious reading of the cases and potential sentencing changes. (18) Some scholars looked at whether the trilogy should eliminate mandatory minimum sentences for juveniles. (19) Others reviewed how the trilogy could affect the analysis of confinement conditions. (20) Still others looked at transfer practices for juveniles between the juvenile and adult criminal systems and how the Roper trilogy might make these transfers more difficult. (21)

This Note takes a different tack. It concentrates on the Roper trilogy's central idea that a child's unique level of socioemotional ability and cognitive functioning affect culpability and are relevant to both criminal liability and punishment. The significance of these factors is particularly evident in the context of minors who have suffered trauma. No scholars to date have examined the implications of the trilogy in this setting. This Note examines the Roper trilogy's applicability to girls who have been sexually abused as minors and subsequently swept into the criminal justice system, the so-called sexual-abuse-to-prison pipeline." Although many other childhood experiences could be relevant to the "children are different" principle that underlies Roper and its progeny, sexual abuse is a unique type of trauma because of its pernicious effects. (22) And this Note focuses on girls' experience because the connection between girls experience higher rates of sexual abuse compared to boys. (23) Moreover the connection between girls with histories of sexual abuse and their subsequent involvement in the criminal justice system is more pronounced than is the connection for boys. (24) This is particularly true for girls of color.

Furthermore, a shift towards focusing on girls' experiences with the juvenile justice system provides a welcome reorientation away from the longstanding focus of juvenile justice policy and research on boys. Yet this Note does not foreclose further understanding of boys' experience of sexual abuse and subsequent incarceration. As Monique Morris emphasizes, "all girls experience injustice, and all of it matters. Boys, specifically boys of color, are incarcerated at unjustifiable rates. And that matters too. But addressing any of these shouldn't come at anyone else's expense." (25) Gender needs to play a larger role in the analysis of the criminal justice system and its need for reform. We cannot simply, as Morris puts it,

add ribbons and bows to a program, strategy, or agenda that has been developed in response to the circumstances of young men and assume that it will work for young women. Just because young women and girls are affected by similar conditions as their male counterparts doesn't mean that they experience these conditions in the same way. (26) The Roper trilogy recognized the legal significance of the unique experience of children compared with adults. But the juvenile justice system must also attend to the unique experience of sexually abused girls when determining their criminal liability and punishment so that we do not hold them responsible for behaviors beyond their control. The traditional focus on boys and men is particularly in need of reorientation in light of the fact that incarceration rates for girls are now growing faster than rates for boys. (27)

This Note also invites further research on the effects of sexual abuse on trans, nonbinary, and gender nonconforming youth. On average, individuals who identify as LGBTQ experience higher levels of sexual abuse as children in comparison to non-LGBTQ individuals. (28) And adolescents who identify as LGBTQ are disproportionately involved in the juvenile justice system. (29) So far, research on the sexual-abuse-to-prison pipeline has not thoroughly investigated the connection between the sexual abuse of trans, nonbinary, and gender non-conforming young people and subsequent rates of incarceration. Thus, this Note will directly address the experiences of cisgender girls with an urgent call for scholars to expand research into the experiences of LGBTQ adolescents as well as heterosexual cisgender boys and how those experiences affect subsequent rates of entry into the juvenile justice system.

Part I provides an overview of the Roper trilogy (Roper, Graham, and Miller) and other related cases (Montgomery and J.D.B.). While these cases state narrow holdings, their underlying principles have implications for the entire juvenile justice system by making a child's cognitive, psychological, and emotional maturity legally relevant. Nothing about these cases and the principles they espouse suggests that they are limited to the capital punishment, JLWOP, and Miranda contexts. And so, given the broad legal foundations and expansive rationales, their application to the sexual-abuse-to-prison pipeline is not only appropriate, but necessary.

Part II describes the connection between childhood sexual abuse of girls and their subsequent involvement in the juvenile justice system--the so-called sexual-abuse-to-prison pipeline." (30) A shattering 2015 report establishes that sexual abuse is one of the primary predictors of the subsequent rate of crime commission for young women. (31) And yet these subsequent crimes--often in the form of "survival crimes," (32) technical violations, (33) status offenses, (34) and mutually combative intra-familial disputes (35)--are disproportionately low risk and better dealt with outside of the criminal justice system. (36) Thus, at present, the criminal justice system does far too little to account for the consequences of childhood abuse for girls and far too much to punish them for actions tied to the traumatic effects of sexual abuse. Furthermore, the disparate rate at which girls of color are caught in the sexual-abuse-to-prison pipeline must be squarely and directly addressed to disrupt this vicious cycle of incarcerating girls on account of past trauma. (37)

Part III examines reforms that can disrupt the pipeline. Jenny Carroll's extensive work applying the Roper trilogy to mens rea analysis, as well as to expert qualifications and jury instruction, readily applies to the sexual-abuse-to-prison pipeline. Altering the mens rea analysis to take into account the...