Youth Always Matters: Replacing Eighth Amendment Pseudoscience with an Age-Based Ban on Juvenile Life Without Parole.

AuthorDuncan, Hannah

NOTE CONTENTS INTRODUCTION 1938 1. INTRACHILDHOOD CLASSIFICATIONS 1941 A. The Child Study Movement 1943 B. The Juvenile Justice System 1945 C. The War on Crime's Research Agenda 1948 II. JUVENILE LIFE WITHOUT PAROLE 1951 A. The Doctrinal Dilemma 1953 B. The Miller Factors 1959 1. Chronological Age and Its Hallmark Features 1964 2. A Child's Family and Home Environment 1969 3. Circumstances of the Offense 1974 4. Incompetencies Associated with Youth 1979 5. Possibility of Rehabilitation 1982 III. REMEDIES 1990 A. Sentencing a Child, Not a Crime 1990 B. Challenging the Myth of "Incorrigibility" 1995 C. Legislative Advocacy 1998 1. The Incarcerated Children's Advocacy Network 1999 2. The Juvenile Restoration Act 2002 3. Strengthening Protections for Native American Youth 2005 CONCLUSION 2009 APPENDIX: CASES CITING JONES AS OF OCTOBER 22, 2021 2012 INTRODUCTION

The United States is the only country in the world that sentences juveniles to life without parole. (1) Over the last decade, the Supreme Court has issued a series of decisions that place some restrictions on sentencers' ability to impose irrevocable punishment on youth (2) under eighteen. (3) However, the Supreme Court has yet to find that all sentences of juvenile life without parole violate the Eighth Amendment. (4) Requiring sentencers to identify and separate children eligible for irrevocable punishment perpetuates pseudoscientific assumptions about a young person's capacity to change.

A summary of the Court's recent decisions provides context for this Note's conclusion that the United States should join other nations and ban sentences of life without parole for all juveniles. In Miller v. Alabama and Montgomery v. Louisiana, the Supreme Court recognized that a defendant's youth diminishes "'the penological justifications' for imposing life without parole." (5) Miller thus required sentencers "to take into account how children are different" before imposing mandatory sentences of life without parole. (6) However, neither Miller nor Montgomery abolished juvenile life sentences; instead the Court instructed sentences to distinguish between "the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption." (7) For children whose crimes reflect "permanent incorrigibility," the Court did not bar irrevocable punishment. (8) By making a constitutional distinction between these two groups of children, Miller and Montgomery encouraged sentencers to draw artificial distinctions among youth eligible for categorical protection.

On April 22, 2021, the Supreme Court retreated even further from Miller and Montgomery's constitutional guarantee. Rather than ban all juvenile life sentences, Jones v. Mississippi held that sentencers need not make a separate factual finding that a juvenile is permanently incorrigible before imposing irrevocable punishment. (9) In so ruling, the Court clarified that very little was required to uphold Miller 's ban on mandatory life-without-parole sentences; Jones insisted that mere "consideration of youth" satisfied the Eighth Amendment. (10) But, regardless of whether Jones requires a formal fact-finding process, or simply affirmed the vague distinction between "transient immaturity" and "permanent incorrigibility," its deference to judicial discretion permits sentencers to rely on discriminatory and inconsistent criteria to separate "irredeemable youth" from those who may eventually be released from prison.

This Note places Jones into context by examining how pseudoscientific definitions of youth evolved from racist theories during the Progressive Era and persist in the Court's incomplete ban on juvenile life-without-parole sentences." Part I describes the history of intrachildhood classifications in the Child Study Movement and the juvenile justice system. It highlights racist assumptions embedded within eighteenth- and nineteenth-century developmental science, which permitted perceptions of deviance to outweigh the relevance of youth.

Part II begins by discussing the Supreme Court's recent efforts to provide youth with categorical protection based on a young person's chronological age. Part II then explains how Miller, Montgomery, and Jones broke from this trend by permitting sentencers to separate irredeemable youth from those who are "transient[ly] immatur[e]." (12) Specifically, Part II analyzes records from sentencing and resentencing hearings in which sentencers imposed sentences of life without parole against juveniles in nine states and the Federal District of Arizona. (13) These examples are intended to be illustrative and are not representative. (14) Taken together, they help illuminate legal and scientific fallacies underlying the Court's imposition of extreme sentences on children. As the number of juvenile life-without-parole sentences increases each year, trends across jurisdictions highlight harmful assumptions embedded within the Court's purportedly age-based protections. (15)

Finally, Part III suggests strategies to overcome the inadequacy of existing protections and argues that an age-based ban against life without parole is necessary to prevent discrimination from infecting a sentencer's discretion. The Supreme Court's departure from chronological age as the "bright line" barring excessive punishment has made it impossible for sentencers to condemn juveniles to death in prison without violating the Eighth Amendment. (16)


    The Court's pseudoscientific system of classification emerged from eighteenth-and nineteenth-century developmental science. Enlightenment Era thinkers and evolutionary theorists classified children as either innocent or irredeemable based on social status, race, or intellectual ability. (17) These classifications caused particular harm to Black and Native children. (18) Importing scientific language to justify social taxonomies, criminologists and social scientists identified a subgroup of children as "subhuman," (19) "deviant," (20) and "delinquent." (21) When academic institutions endorsed unfounded theories as empirical science, these "dangerous youth" were detained and punished at disproportionate rates. (22)

    By focusing on the history of the Child Study Movement, the development of the juvenile justice system, and the War on Crime's research agenda, Part I explains how and why the Supreme Court's recent efforts to distinguish among groups of adolescents perpetuate discriminatory classifications and depart from developmental science.

    1. The Child Study Movement

      The history of the Child Study Movement provides one example of how racial, religious, and moral beliefs led to distorted perceptions of childhood. (23) In the eighteenth and nineteenth centuries, experimental psychologists treated children's anatomy as a window into the nature of human progress. In an effort to establish developmental "norms," child psychologists in Europe and the United States began measuring children's height, weight, head size, arm length, and growth rate. (24) In addition to measuring children's bodies, social scientists and medical doctors in the late nineteenth century conducted studies of African and Indigenous bodies to prove racial superiority as a biological fact. (25) In so doing, these researchers collapsed the distinctions between scientific classification and racial taxonomy: by comparing nonwhite children to "savage races," childhood studies reinforced the belief that nonwhite children represented a different class of children altogether, which placed them outside the boundaries of "normal" development. (26)

      Several schools of thought contributed to the birth of the Child Study Movement in the late nineteenth century. (27) G. Stanley Hall, one of the founders of this movement, toured the United States to describe his theory of recapitulation and its bearing on child development. (28) Later identified as the "father of adolescence," Hall argued that "the child and the race are each keys to each other," and explained that "degeneration of mind and morals is usually marked by morphological deviations from the normal." (29) Hall analogized child psychological development to the evolution of mankind, which tracked a Darwinian process from the less evolved "savage races" to a fully realized--and civilized--adulthood. (30)

      Hall's contributions to child psychology and developmental science influenced subsequent research, and informed public policy. Although later scientists critiqued Hall's methods as deficient, Hall's conclusions about racial classification and its relevance for identifying the "causation of crime" remained entrenched. In the same era that Harvard, Yale, and Princeton established child development programs to research and explain the differences between children and adults, the Illinois legislature passed the Juvenile Court Act and established the first juvenile justice system in 1899. (31) In this way, childhood studies intersected with a burgeoning progressive movement, which sought to "rehabilitate" wayward children by providing a subgroup of juveniles with support, guidance, and intervention from the state. (32)

    2. The Juvenile Justice System

      The motivating impulse of the juvenile justice system was to separate youth from the "corrupting influence" of adults in the criminal justice system. (33) However, not all children were considered amenable to this intervention. (34) Just as the Child Study Movement adopted scientific language to justify racial classification, the juvenile justice system created a distinct class of "incorrigible" children, whose criminal status served as proof of their moral and physical maldevelopment. (35)

      The history and practice of transferring certain children into adult custody reveals the long-term consequences of racial classification within the social sciences. To be sure, race did not provide the only metric to guide juvenile...

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