You Have the Right to Remain a Child: The Right to Juvenile Treatment for Youth in Conflict with the Law

Abstract

The growing criminalization of youth in the U.S. requires new legal approaches. This article proposes recognition of a substantive right to juvenile treatment to prevent or limit prosecutors from pushing youth into the adult criminal justice system. In making the case for a right to juvenile treatment, the article re-conceptualizes the Supreme Court’s children’s rights jurisprudence, provides a comparative international and foreign law perspective on the rights of youth and contributes to growing scholarship considering how the Court deals with difference. Other scholars have argued that Roper v. Simmons and its progeny support Eighth Amendment challenges to imposing adult sentences on youth. My article contends that Roper’s reasoning supports challenges to state laws that allow or require that youth be criminally charged as adults for offenses committed when they where under 18. Because of recognized fundamental differences between youth and adults, including youth’s evolving cognitive capacity, vulnerability to harm, and capacity to grow and develop, when a youth is charged with a criminal offense, different rules and enhanced protections are required to fully respect her or his constitutional rights. The article places the treatment of youth in conflict with the law within the broader context of Supreme Court precedents and historic U.S. legal recognition of inherent differences between youth and adults. These cases are often interpreted to hold that youth and children enjoy fewer constitutional protections. I argue that youth accused of crimes have the same constitutional rights as adults and that their youth status requires enhanced rights protections, including specialized judicial proceedings and facilities and dispositions oriented towards development and rehabilitation. To support this approach, the article includes a comprehensive summary of international law standards on the rights of the child and comparative information about the treatment of youth accused of crimes in other countries.