Known Unknowns: Legislating for a Juvenile's Reformative Uncertainty

• Publication year: 2021
• Citation: Vol. 97

97 Nebraska L. Rev. 334. Known Unknowns: Legislating for a Juvenile's Reformative Uncertainty

Known Unknowns: Legislating for a Juvenile's Reformative Uncertainty

Tiffani N. Darden(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 334

II. Juvenile Sentencing: The Eighth Amendment in Focus ................................................. 338
A. Indeterminacy as an Evolving Standard in Juvenile Sentencing ........................................ 339
B. Reconciling Constitutional Norms and State Policy . 343
C. Detangling Proportionality and Term-of-Years Sentences ......................................... 347
D. State Courts Interpret the Constitutional Fault Lines ............................................. 350

III. States Delineate the Scope and Implement Policy ...... 354
A. The Science Advantage: Recognizing Youth Deficiencies & Its Consequences ................... 354
B. Age Matters: Commonsense Supplemented with Expert Opinion .................................... 358

IV. The Undulating Public Response to Juvenile Crime . . . . 362
A. The Road to Finding National Consensus .......... 363
B. The Gatekeepers to Criminal Court ................ 368

V. Avoiding Social Ignorance ............................. 373
A. The Forgotten Political Carve-Out ................. 373
B. Translating a Constitutional Norm into State Level Policy ............................................. 377

VI. Conclusion ............................................ 381

I. INTRODUCTION

Three landmark decisions drastically changed the sentencing standards for juvenile offenders. In Roper v. Simmons(fn1) and Miller v. Alabama,(fn2) the Supreme Court held that states may not impose the death

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penalty and mandatory life without parole sentences in cases with juvenile defendants. These cases vanquished the most severe consequences for youthful criminal behavior. Most recently, Montgomery v. Louisiana retroactively applied the Miller opinion.(fn3) The majority clarified that the prohibition against mandatory life without parole prior to conducting an individualized assessment was a substantive rule fulfilled through procedural means because juveniles are constitutionally different from adults.(fn4) The intermediate case of Graham v. Florida(fn5) also speaks volumes about the newfound influence of adolescent development research on constitutional law. In each opinion, the Court drew heavily on social science, developmental psychology, and neuroscience research to make a final determination on the constitutional outer-boundaries of juvenile sentencing.

The Eighth Amendment's evolving standard, in light of the juvenile sentencing cases, cannot tolerate mandatory sentences imposed without an individualized assessment. The U.S. Supreme Court solidified the norm that juveniles are constitutionally different from adults.(fn6) After Graham and Miller, states began to revisit their punishment priorities, but they need to dig deeper in seeking a balance between retribution and rehabilitation. This will necessarily include a shift from harsher punishment to mitigation and effective intervention. Procedural safeguards, such as those identified in Miller, permit state legislatures to leave individualization to courts and executive agencies under a grant of deferential decision-making. In order to effect change, however, state legislatures must delineate the full scope of juvenile sentencing guidelines.

The Supreme Court applies a two-part test under the Eighth Amendment's "cruel and unusual punishment" clause.(fn7) The Court first discerns whether a national consensus exists to justify an evolving standard, and then the Court discerns its own judgment.(fn8) In the juvenile sentencing context, an observer could argue that the Court's sound judgment on the issue takes priority over societal sentiments. Moreover, history demonstrates that the national consensus is susceptible to moral panic and ripples in public opinion. Protection against such criticisms required the Graham and Miller majorities to affirm the legitimacy of research and the role to be played by experts in juvenile criminal behavior. The Court's decision to anchor its holdings in social science, developmental psychology, and scientific advancements erects a structural deterrent against unwieldy ideological whims.

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Juvenile offenders are constitutionally different from their adult counterparts.(fn9) This constitutional revelation, interpreted and applied differently across statehouses, deserves greater depth in its implication. In this Article, I argue that when reviewing juvenile sentences in criminal courts, the Supreme Court's Eighth Amendment analysis should treat the national consensus prong as subordinate to its own judgment based on social science, developmental psychology, and neuroscience research advancements. It's a decision-making model that more fully protects a constitutional norm. The Supreme Court slated a path for juvenile offenders confronting the death penalty and life without parole, but term-of-years sentences remain unscathed by these pronouncements. Even to pass rational basis review, state legislatures should have to consider the evidence-based, constitutional difference between juveniles and adults before enacting criminal sentencing statutes affecting minor defendants. Accordingly, all mandatory sentencing statutes imposed against transferred juvenile offenders, if equivalent to their adult counterparts without an individualized assessment, are unconstitutional.

This Article argues that the Supreme Court's juvenile sentencing cases sketch a process for constitutional legislation. The reasoning and dicta used to support these holdings rested on two pillars: evidence-based sentencing and deference to experts. The central learnings of those pillars are that children are malleable and can change. Such conclusions have been tracked and affirmed in Supreme Court cases for over twenty years, and they exemplify the practice of relying less on common sense and more on reliable advancements in psychology and neuroscience. Juvenile sentencing cases also resemble children policies in public education and institutionalization. Despite these constitutional reforms, state judges continue imposing lengthy sentences on juvenile offenders.

This Article provides arguments for upending mandatory sentences across the board for juveniles transferred to criminal court. State legislators must revisit juvenile sentencing practices to ensure the constitutional principle that "juveniles are constitutionally different from adults."(fn10) As it stands, the cursory proportionality review given to anything less than death and life without parole sentences, which grants great deference to state policymakers, may no longer withstand constitutional muster for juvenile offenders. The arguments herein propose that the Court and state legislatures alike must consider and prioritize evidence-based youthfulness traits over a social consensus meant to survey the citizenry's conscience in the moment. The proposed shift to evidence-based policy making would run

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congruent with establishing policies in public education and juvenile institutionalization.

Blended sentencing provides a model for structuring statutes in line with these constitutional cases. Twenty-nine states implement state legislative mitigation through blended sentencing statutes.(fn11) Thirteen implement only criminal blended sentencing statutes, and ten implement juvenile and criminal blended sentencing statutes.(fn12) This Article does not propose blended sentencing as a preferred solution. Instead, it argues that blended sentencing variants are structurally capable of encompassing both the building blocks of developmental research and deference to experts for policy and implementation. Moreover, robust systems would normalize the specialization of crafting juvenile dispositions and criminal court sentencing.

Part II reviews the Supreme Court's Eighth Amendment cases specific to juvenile sentencing, as well as term-of-years sentences. The juvenile sentencing pronouncements find their justification in social science, developmental psychology, and neuroscience advancements. In contrast, the Eighth Amendment review for term-of-years sentences of less than life without parole defer to state policymakers under a rational basis review. The discussion also covers the divergent interpretations in state courts and legislatures to the Supreme Court's own judgment that juveniles are constitutionally different from their adult counterparts.

Part III explores the challenges that states face to enact juvenile sentencing laws and policies that epitomize the Court's evolving view on juvenile criminal culpability. Every state must prioritize penological goals for youthful offenders in alignment with constitutional norms. These sentencing boundaries should also advance the opinions of adolescent behavioral experts. Nonetheless, states may still maintain space to define the nuances.

Part IV considers how the Supreme Court's reliance on expert opinions to inform its own judgment on the cruel and unusual punishment issue for youth should take precedence over any national consensus analysis based on public sentiment.

Finally, Part V proposes that blended sentencing, a '90s political compromise, may breathe constitutional life into under-utilized...