How Recent US Supreme Court Decisions Have Affected Youths’ Rights in the Justice System

Reclaiming Futures
Robert Schwartz, Esq.
March 29, 2012

On March 26, 2012, Harvard Law School’s Civil Rights-Civil Liberties Law Review, with Juvenile Law Center and the Milbank Foundation, sponsored a colloquium on constitutional law in the wake of three recent U.S. Supreme Court decisions involving the rights of youth involved in the justice system. All three cases suggest that the country has turned a constitutional corner—that youth matters in the interpretation of the Bill of Rights and the Fourteenth Amendment’s Due Process Clause.

Roper v. Simmons (2005) held that the death penalty was unconstitutional for youth who were under age 18 at the time of their crimes. Graham v. Florida (2010) held that a sentence of life without parole was also unconstitutional for youth under 18 who were convicted of non-homicide crimes. J.D.B. v. North Carolina (2011) held that a “reasonable child” standard should be used to determine whether a youth would have believed he was “in custody,” a requirement that triggers Miranda warnings.

Panelists—who wrote or co-wrote articles that will appear later this year in Volume 47 of the CR-CL Law Review—predicted what lay around the bend.

NYU Law School Professor Martin Guggenheim called Graham “the most significant juvenile justice case advancing children’s rights” since the Supreme Court decided In re Gault in 1967. Gault established that the 14th Amendment applies to children, and gave juveniles a right to counsel at trial. Guggenheim argued that Graham “has deep implications far beyond the immediate reach of its holding.” Graham, Guggenheim suggested, changed the rules involving the Eighth Amendment, which prohibits cruel and unusual punishment. It “will come to stand for what is special about children.” In particular, Graham will require that differences between juveniles and adults be considered at sentencing, and that it will be unconstitutional to have a mandatory sentence for juveniles that is the same as that for adults. Guggenheim argues that the reasoning of Graham would establish a substantive due process right of juveniles to be treated differently as well as a procedural due process right to have a hearing about the proportionality of a proposed sentence.

Juvenile Law Center Deputy Director and Chief Counsel Marsha Levick spoke about the implications of J.D.B. She said that while a “reasonable child” standard has been used in civil law—for example, in the area of negligence—it has not, before J.D.B., been applied in criminal law. J.D.B. held, “for the first time, that the test for determining whether or not a juvenile suspect”—in J.D.B.’s case, a 13 year old interrogated by four adults in a closed room in school—“would have felt free to terminate a police interrogation would be evaluated from the perspective of a 'reasonable juvenile.'” Levick noted that J.D.B.’s holding requires Miranda’s “custody” requirement to “be evaluated through the lens of a reasonable juvenile.” She said that J.D.B. was a natural sequel to Roper and Graham, and drew on the same developmental literature that had been developed over time by the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice. That research—which Justice Sotomayor said reinforced common sense—also supports application of a “reasonable juvenile” standard in other aspects of the criminal law. The notion of ‘reasonableness’ has been recognized as mitigating or minimizing criminal responsibility under certain circumstances. For example, this standard would apply in the area of justifications, defenses and excuses such as duress, justified use of force, provocation, negligent homicide and felony murder. Levick’s paper was co-authored with Juvenile Law Center Zubrow Fellow Elizabeth-Ann Tierney.

Nova Law School Professor Michael Dale presented a paper on procedural due process issues associated with the right to counsel for adolescents in child welfare cases and in delinquency cases. Dale first argued that dependent teens exposed to the child welfare system (which deals with abuse, neglect and status offenses) have a constitutional right to counsel. These teens are at risk of traumatic out-of-home placements, or staying in an unsafe home. Their interests are similar to those that led the Supreme Court to grant children charged with delinquency a right to counsel in Gault. A constitutional right to counsel for dependent teens is supported by the Supreme Court’s three-part Mathews v. Eldridge (1976) test, which looks at the private interest, the risk of error, and the government’s interest (including cost). In delinquency cases, Dale argued that a delinquent youth’s right to counsel, as a constitutional matter, should be unwaivable. Dale distinguished Supreme Court rulings giving adults a right to represent themselves at trial, and noted that waiver of counsel is almost always prelude to a plea. Counsel is particularly important, given the developmental literature on youths’ deficits in weighing risks or thinking long-term, and the substantial collateral consequences that now flow from delinquency adjudications. Dale presented a paper that was authored by Juvenile Law Center attorneys Jennifer Pokempner and Riya Saha Shah; Defender Association of Philadelphia attorney Mark Houldin; Juvenile Law Center’s Executive Director Robert Schwartz, and Dale.

Drafts of the papers as well as a video link of the colloquium can be found here.

Robert Schwartz co-founded Juvenile Law Center in 1975 and has been its executive director since 1982.

This article was originally published by Reclaiming Futures. It is reprinted here with permission.

*Photo at top from Left to Right: Honorable Jay D. Blitzman, Chief Justice, Middlesex County Juvenile Court; Michael J. Dale, Professor of Law, Nova Southeastern University Law Center; Marsha Levick, Deputy Director and Chief Legal Counsel, Juvenile Law Center; Martin Guggenheim, Professor of Law, New York University Law School

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