Less than twenty years ago, the United States Supreme Court ruled that sentencing a child to death is a violation of the Eighth Amendment.1 Since then, the juvenile legal landscape has rapidly evolved with advocates achieving a monumental victory in which the Supreme Court held that children are constitutionally different from adults, recognizing the growing science related to adolescent brain development and its key role in understanding the actions, and reduced culpability, of youth.2 However, following that decision, the political and legal landscape of the Court has again undergone major change, though in a different direction. 3 Now a political minefield, advocates need to once again re-draw the maps to our former victories in order to know which legal challenges have the greatest chance of solidifying crucial protections for our youth. Examining the state of the juvenile legal system today, the authors highlighted in this special edition consider the implications of bad law, like the Jones v. Mississippi decision, and explore entirely new community-based systems that circumvent the need to rely on current law and legal institutions. Here, to preface those articles, I’ll look at the Supreme Court cases that have laid the foundation for the juvenile criminal system as we know it today. Further, I’ll briefly touch on steps advocates can take to challenge the current iteration of the juvenile legal system as we work toward dismantling such institutions of oppression and toward building resources for communities in need.
II. ROPER, GRAHAM, MILLER & LEGACIES
Initially, juvenile courts were designed with the goal of rehabilitation and addressing the needs of the child in order to guarantee their future success.4 Crimes were viewed not as an inherent failure of the child, but rather a failure of society.5 This system, created and emboldened to act in loco parentis, grew into the institutionalized,6 formalized, and paternalistic system we know today. Without standardized protections for our youth, concerns grew that juvenile proceedings were harming rather than helping kids.7 As a result, in 1967, the first case to solidify constitutional protections for youth accused of committing crimes was in In re Gault.8 Gault was revolutionary for its time, holding that the Due Process Clause of the Fourteenth Amendment also applies to children in the criminal legal system.9 Importantly, those protections included a child’s right to counsel. 10
Post-Gault, the influence of politics and racism in the late 1980s and early 1990s bore and advanced the “superpredator” myth – a theory that by the year 2010 there would be “an estimated 270,000 more young predators on the street than in 1990.”11 As a result of reactionary legislation passed in many states, more children were subjected to harsh criminal penalties, laying the groundwork for Roper v. Simmons.12 In Roper, the Supreme Court considered whether it was cruel and unusual punishment for a child to be sentenced to death for their crimes.13 In a 5-4 decision the Court held it was, after considering its recent decision in Atkins, 14 societal norms, and the fundamental differences between young people and adults.15 Just five years later, the logic of Roper and the comparison of juvenile life without the possibility of parole (JLWOP) to the death penalty surfaced in the case of Graham v. Florida.16
In Graham, the Court acknowledged studies on brain development and the unique characteristics of youth in holding that a meaningful opportunity for release must be afforded to kids who are sentenced to JLWOP for non-homicide offenses.17 Two years later, that logic was extended to all youth via the decision in Miller v. Alabama.18 Thus, Graham and Miller were landmark cases. Before these decisions, a minor defendant’s fate was sealed, no matter their age, if they were convicted of a crime carrying a life sentence pursuant to a statutory mandate.19 The Court held that mandatory imposition of LWOP is impermissible under the Eighth Amendment without consideration of the mitigating factors of youth, including the reduced culpability of young offenders; the capacity for rehabilitation; susceptibility to outside pressure; and a weaker ability to appreciate the consequences of their actions relative to adults.20 Advocates, likening a sentence of LWOP to the death penalty, secured a win and powerful language from the Court. The holding emphasized that a sentence of LWOP should be reserved only for the worst offenders, implying a need for a child to be deemed “incorrigible” before such a sentence could be imposed.21 Four years later, in Montgomery v. Louisiana, the Court clarified that Miller’s holding applied to any child ever sentenced to JLWOP – including the now-adults sentenced as minors who have spent a majority of their lives incarcerated.22 Again, the Court grounded its decision in powerful language, suggesting that a finding akin to “permanent incorrigibility” be present in order to subject a young person to the harsh sentence of JLWOP.23
Graham, Miller, and Montgomery were revolutionary cases in the field of juvenile law that were decided in a period of only six years. Kids were finally being recognized for what they were – kids.
Following this series of victories for minor defendants, the most recent Supreme Court decision regarding children’s criminal rights felt like a devastating blow. Decided in 2021, the Court stated in Jones v. Mississippi that while Miller and Montgomery were still good law, states were not required to issue a finding that a child was permanently incorrigible before imposing a sentence of JLWOP.24 Some states that borrowed the Court’s “permanent incorrigibility” standard now walked back those decisions.25 Although Jones stripped the language of “permanent incorrigibility” from advocates’ toolkits, the overstatement of Jones’s damage, including by Justice Sonia Sotomayor,26 is in and of itself arguably more harmful to the movement than Jones itself. Graham, Miller, and Montgomery remain good law;27 however, inflating the impact of Jones could call the legacy of those cases into doubt. For example, youth advocates should be cautious not to use language that could be perceived by a court, or opposing counsel, as agreeing with the extent of Jones’s reach. Instead, advocates should focus on emphasizing the protections established for children in Graham and its progeny to minimize the harm/impact of the Jones decision.28 With the hand that we are now dealt, it is our role as advocates to bring the fight for our youth closer to home, challenging and honing policies in local forums, while also strengthening the odds of success and reform incrementally.
III. POST-JONES, PRE-ABOLITION: Where do we go from here?
The articles in this publication call special attention to the unique crossroads at which advocates in the juvenile legal field find themselves today. Examining what Graham’s assurance of a “meaningful opportunity” entails, Eilidh Currie explores the current landscape of the juvenile legal field post-Jones in her article, What is a “Meaningful Opportunity?”: Disparities in Youth Sentencing as Courts Test the Constitutional Floor. The article laments the Jones ruling and draws much-needed attention to the unfulfilled promise of Miller and Montgomery for children who were sentenced to de facto life sentences. Next, Shreya Vijay, the author of Exploring Community-Based Alternatives to Youth Incarceration, imagines subverting the current system altogether and explores what alternatives exist for kids entrapped in the criminal legal system. Using an abolitionist framework, Vijay acknowledges community concerns, the societal challenges faced by our youth, and the models that can allow for positive growth and change. Here, I argue that in this transformative period of juvenile law, advocates should continue to capitalize on the momentum of system reform – despite Jones – and call attention to the unconstitutional action of caging children under the guise of rehabilitation. The practice of incarcerating youth is unsustainable; the institutions holding these children often violate state, federal, and constitutional mandates;30 In challenging these institutions post-Jones, advocates should forge their suits locally, ground their arguments in state constitutions, and use well settled law to exploit the systemic flaws of the carceral institution as applied to youth.
Despite disrupting the momentum of the juvenile reform movement, the Jones decision is important in at least two other ways. First, it did not overturn Miller and Montgomery.31 Second, in dicta, the Court reiterated that states have the authority to expand upon the mandates of Miller, noting that Miller and Montgomery are the constitutional floor.32 As we turn our attention to the states and institutions imprisoning our children, advocates must look to methods that advance the pro-youth sentiments and constitutional protections established in the Miller cases without disrupting this precarious precedent.
Challenging policies upholding the cradle-to-prison pipeline
One foundational step that advocates can take to deconstruct the current iteration of the juvenile legal system is to challenge policies that directly feed into the cradle-to-prison pipeline.33 One of the most overt examples of criminalizing youth behavior and contributing to the pipeline is school-based arrests, made possible by the presence of police officers in schools.34 There is no evidence that having police officers in schools makes the school environment safer.35 Despite this fact, the “double punishment” of school-based arrests and subsequent judicial proceedings continue to be utilized and contribute to the further oppression of marginalized communities in the criminal legal system.36
Another concerning entryway for children into the juvenile system is the widespread, un-spoken policy of criminalizing poverty. Fines and fees are levied in nearly every state against the youth who interact with the juvenile legal system.37 One study found that “[a]pproximately one million youth appear in juvenile court each year,” making approximately one-million children potentially liable to paying debt imposed by the juvenile courts.38 When youth and their families are unable to pay these fees, such as those imposed for court expenses, public defenders, or GPS monitoring, their fundamental rights and liberties can be implicated – even at times before a court has adjudicated the child delinquent. 39 The imposition of fines and fees ensures that some youth remain incarcerated and exposed to the danger of carceral institutions, for no other reason than their inability to make such payments.40
Challenging either or both of these policies will serve to undermine the cradle-to-prison pipeline and decrease the volume of children being held by the carceral state. These policies are often local or state-based41 and require innovative, localized litigation to mount an initial attack against harm perpetuated by youth incarceration.
Treating youth as youth
Part of treating kids as the young people they are involves upholding codified protections for those youth and acknowledging the rampant abuse and neglect to which children are subjected in many carceral institutions.42 One example of a legal challenge that attacks the carceral institution without directly challenging the constitutionality of imprisoning youth is education-based lawsuits. Historically, juvenile detention facilities have been documented to provide little to no educational services for youth.43 By statute, juvenile correctional facilities are required to provide an education for children who are incarcerated comparable to the educational services that children who remain in their communities receive.44 Further, there is an over-representation of children with disabilities in juvenile detention facilities, an issue which such institutions are required to address according to statutes like the Individuals with Disabilities Education Act (IDEA).45 Unfortunately, many carceral institutions fall short of providing our children with the education to which they are statutorily entitled.46 Compelling these institutions to provide legally mandated education to kids serves at least two goals. First, the services for those children will be met as required and kids will have an opportunity to learn despite their incarcerated status, which will better prepare them for life after prison. Second, it forces an acknowledgment of the costs and resources necessary to provide services to youth, which can create a greater incentive to look at alternatives to incarceration.
Furthermore, without thoroughly examining all the various challenges that children in the carceral system face, I acknowledge the abuse and neglect these children often experience while incarcerated. To this day, children are subjected to solitary confinement.47 Violence and assault from staff run rampant at detention centers.48 The abuse occurring in detention facilities are often systemic, and in fact twenty-nine states and the District of Columbia have a documented history of abuse in state-funded facilities.49 Challenging these institutions’ policies and procedures using local laws and constitutions can help secure wins for children throughout the state and draw attention to the unfit environment of those institutions for our youth.
IV. CONCLUSION
Even in a system tainted by bias and racism, the institutionalization of the juvenile legal system is its fatal flaw. By its nature, even the best juvenile courts and the most well-intentioned legal actor could inhibit the potential of a child to succeed by subjecting that child to repeated interactions with the court.50 These interactions often label youth as delinquent and reinforce that status,51 compound on pre-existing trauma,52 and contribute to the negative legal socialization of youth.53 The inherently traumatic environment of courts and the dangerous and harmful environment of youth detention centers serve as a reminder that any resolution that is not actively working toward the abolition of the system we know today falls woefully short of meeting the needs of our children. I hope that this preface and the following articles create a thoughtful discussion about where the challenges lie in the juvenile criminal system currently and how we can work together to carve a pathway toward a system that helps – rather than hurts – our kids.