Juveniles Are Not So Different: The Punishment of Juveniles and Adults at the Crossroads

Abstract

The “juveniles are different” doctrine is gaining ground in America. It holds that children, unlike adults, should not receive merciless punishments like life without parole given their immaturity, impulsivity, and limited brain development. The doctrine’s impact has been both significant and modest because it operates in an exceptionally repressive context considering the advent of mass incarceration. Unless construed more broadly, it may help rationalize draconian sentences for adults and cement the status quo. This Article offers a wider historical and comparative perspective. Over time age has recurrently served to legitimize punitiveness toward children or adults. America has oscillated between deeming that juveniles deserve fewer rights than adults, that they deserve more rights or that they should essentially be treated the same. After diverse paradigm shifts, mass incarceration led to a downward-leveling process whereby juveniles were punished just as ruthlessly as adults. “Juveniles are different” was a reaction to this trend, although punitive assumptions undergird its rigid age carve-outs. This Article calls for a new phase: an upward-leveling process under which juveniles’ emerging right to be free from merciless punishments would apply to everyone. This is the norm in other Western democracies, which have gravitated toward universal human rights and moderate punishment. A broader outlook may spell the difference between a conception of “juveniles are different” casting adults as irredeemable and a stepping stone toward meaningful systemic reform.