the Supreme Court recognized that “[t]he personality traits of juveniles are more transitory, less
Five years later, the Supreme Court went a step further, holding that a life sentence without the
possibility of parole violates the Cruel and Unusual Punishment Clause of the Eighth
Amendment.37 In its reasoning, the Court pointed to the differences in juvenile development:
“[D]evelopments in psychology and brain science continue to show fundamental differences
between juvenile and adult minds . . . . Juveniles are more capable of change than adults are, and
their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions
Most recently, the Supreme Court held that an officer must take a child’s age into account
when determining whether a child is in custody and, consequently, entitled to a Miranda warning.39
The majority emphasized that a reasonable child who is questioned by police may respond
differently than a reasonable adult who is also questioned by police.40 To support its conclusion,
the Court cited cognitive and psychological differences between juveniles and adults, stating that
they “often lack the experience, perspective, and judgment to recognize and avoid choices that
could be detrimental to them . . .”41
E. Moving Forward
The Supreme Court’s recent shift to a more moderate line of thinking illustrates its willingness
to take into account data on the cognitive differences between children and adults. From 1899
through 1967, the legal system’s chief goal was rehabilitation, while from 1967 into the 1990s its
primary focus was punishment and deterrence.42 The Gault Court recognized that the juvenile
system had failed to look out for the best interests of the child, and sought to afford the same
procedural protections that were provided to adults.43 However, the pendulum swung the other
way when legislatures and policy makers tried to erase the distinction between juveniles and adults
with phrases such as “adult time for adult crime.”44 The moderate approach avoids both errors,
recognizing that juveniles are developmentally different than adults. However, the question still
36 Id. at 569–70. The Court went on to further explain differences between adults and juveniles guilty of criminal
The reality that juveniles still struggle to define their identity means it is less supportable to conclude
that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.
From a moral standpoint it would be misguided to equate the failings of a minor with those of an
adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. Indeed,
“[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of
youth are transient; as individuals mature, the impetuousness and recklessness that may dominate
in younger years can subside.”
Id. at 570 (quoting Johnson v. Texas, 509 U.S. 350, 368 (1993)).
37 See Graham v. Florida, 560 U.S. 48, 74 (2010).
38 Id. at 74–75 (quoting Roper, 543 U.S. at 570).
39 J.D.B. v. North Carolina, 131 S.Ct. 2394, 2406 (2011).
40 Id. at 2402–03.
41 Id. at 2403 (quoting Bellotti v. Baird, 443 U.S. 622, 635 (1979)).
42 See supra notes 14–27 and accompanying text (providing a brief history of these time periods).
43 See supra notes 22–27 (discussing the Court’s decision in In re Gault).
44 Scott & Steinberg, supra note 14, at 806. See supra notes 28–32 (delving into society’s attitude toward juveniles
during this time).