Transforming Juvenile Justice: Making Doctrine Out of Dicta in Graham v. Florida

Jason Zolle

In the late 1980s and 1990s, many state legislatures radically altered the way that their laws treated children accused of crimes. Responding to what was perceived of as an epidemic of juvenile violence, academics and policymakers began to think of child criminals as a "new breed" of incorrigible "superpredators."[1] States responded by making it easier for prosecutors to try and sentence juveniles as adults, even making it mandatory in some circumstances.[2]

Yet in the past decade, the Supreme Court handed down four opinions that limit the states' ability to treat children as adults in the justice system. Roper v. Simmons banned the death penalty for children under eighteen, overruling Stanford v. Kentucky.[3] Graham v. Florida prohibited life without parole ("LWOP") sentences for children under eighteen convicted of non-homicide crimes.[4] J.D.B. v. North Carolina held that a child's age properly factors into the "reasonable person" analysis in determining whether a police officer must give a Miranda warning.[5] And Miller v. Alabama "combined" Roper and Graham to prohibit mandatory LWOP sentences for children under eighteen.[6]

The logic behind these holdings--children's relative lack of maturity, diminished ability to consider the consequences of their actions, and increased capacity to reform their behavior as they age--draws from decades-old Supreme Court precedent.[7] But the broad language used in these four recent cases hints at a new doctrine in which "children are constitutionally different from adults"[8] in the criminal justice system. Most significantly, Graham stated that "criminal procedure laws that fail to take defendants' youthfulness into account at all are flawed."[9]

This Essay focuses specifically on that quotation from Graham (herein­after called "the Graham principle"), which suggests that the Constitution requires criminal procedure laws to allow for consideration of youthful status. Although the Graham principle was technically dicta that swept far more broadly than the Court's holding regarding LWOP sentencing, the Court framed it as an uncontroversial proposition, noting that even the respondent state recognized that "state laws requiring consideration of a defendant's age in charging decisions are salutary."[10] Taking the Graham prin­ciple literally, however, would have radical consequences on the criminal justice system, especially given the number of statutes mandating that juve­niles be treated as adults in certain circumstances.[11]

While I lack the ability to predict how much mileage this phrase of constitutional dicta will have, this Essay posits three ways in which the Graham principle could be spun into new constitutional doctrine. First, this principle could be embedded in the Eighth Amendment, forcing states to rethink their sentencing laws and make youthfulness a mitigating factor in all cases, not just LWOP sentencing. Second, this principle could be incorpo­rated into the procedural component of the due process clause, forcing states to explicitly consider youthfulness in basic criminal procedure decisions such as where and how children are tried. Third, this principle could be broadly conceived of as a substantive due process fundamental right, ema­nating from the "penumbras" of the Eighth and Fourteenth Amendments and reaching all aspects of criminal procedure. With these three avenues open, the time is ripe for advocates to take this phrase from Graham and give it some doctrinal legs to stand on.

I. The Eighth Amendment

The Eighth Amendment is intuitively the most logical home for the Graham principle that criminal procedure laws must take a defendant's youthfulness into account. After all, Graham was an Eighth Amendment case, as was Roper before it and Miller after it. Furthermore, the Supreme Court's focus on youthfulness as a mitigating factor stems from Eighth Amendment cases holding that it would be cruel and unusual to fail to consider youthfulness before imposing the death penalty.[12]

Incorporating the Graham principle into the Eighth Amendment would mean that a sentence would be cruel and unusual if it failed to take "youthfulness into account at all." Courts would be required to consider youthfulness as a mitigating factor in all sentencing decisions, even if it was ultimately rejected. Perhaps youthfulness would even be framed as a partial defense, similar to the use of extreme mental or emotional disturbance or provocation as mitigating factors in criminal law generally.

To be sure, the narrowest reading of Roper, Graham, and Miller is that a court must consider youthfulness only when the death penalty or LWOP are at stake. Prior to Graham, the Court's cruel and unusual punishment jurisprudence recognized a strict distinction between death penalty and non-death penalty cases. For instance, Harmelin v. Michigan refused to overturn an adult's LWOP sentence for cocaine possession, noting, "Our cases creating and clarifying the ‘individualized capital sentencing doctrine' have repeatedly suggested that there is no comparable requirement outside the capital context, because of the qualitative difference between death and all other penalties."[13] While an ambitious reading of Graham might advocate that the distinction between the death penalty and other sentences has vanished, a narrower reading suggests only that LWOP is now considered sufficiently "like" the death penalty to warrant death penalty protections, at least for youth. While that narrow reading would cast doubt on Harmelin, it would not be enough to extend extra protection for juveniles to every situation-just to LWOP sentencing.

However, the Graham principle's text is not limited to death penalty or LWOP situations; it references criminal procedure laws generally. Graham also broadly and unqualifiedly states that "[a]n offender's age is relevant to the Eighth Amendment,"[14] which reflects the Court's assertion that incapacitation is a less appropriate penological objective for youth because "incorrigibility is inconsistent with youth."[15] The declaration in Miller that "children are constitutionally different from adults for purposes of sentencing" is not textually limited to death penalty or LWOP contexts either.[16] This unqualified language leaves room for advocates to argue that the more ambitious reading of Graham is the correct one, and that the holdings of these cases extend beyond the LWOP context to all sentencing for youth.

II. Procedural Due Process

Although Graham was an Eighth Amendment sentencing case, the Graham principle could instead be treated as a procedural due process mandate that criminal procedure rules and laws must include mechanisms to consider youthfulness. The strongest recognition of the Graham principle in the Supreme Court's procedural due process jurisprudence is in a set of cases regarding the voluntariness of confessions from minors.

In Haley v. Ohio, a fifteen-year-old boy arrested for robbing a candy store was held in police custody and questioned without counsel from midnight until 5:00 a.m., at which point he broke down and confessed.[17] While the Court stated that "[m]ature men possibly might stand the ordeal," it held that a "mere child . . . cannot be judged by the more exacting standards of maturity," finding that the defendant's confession was coerced in violation of the Fourteenth Amendment.[18] The Court affirmed this holding shortly thereafter under similar facts in Gallegos v. Colorado, stating unequivocally that the minor defendant "cannot be compared with an adult in full possession of his senses," even though he had been convicted of murder as an adult.[19] J.D.B. extended this argument, holding that a child's age properly factors into a "reasonable person" determination as to when a police officer must give a Miranda warning.[20] J.D.B.'s holding is even more significant because youthful status is the only individualized characteristic that matters for Miranda purposes.[21]

Unlike the sentencing cases discussed in Part I, these due process cases establish that youth may require extra protection in the process leading up to conviction, recognizing that children are vulnerable when faced with a justice system that intimidates, overwhelms, and demonizes them. Courts have recognized this vulnerability in other due process contexts as well. For instance, McKeiver v. Pennsylvania held that children in juvenile court do not have a constitutional right to a jury trial, avoiding a "fully adversary process" and preserving the "idealistic prospect of an intimate, informal protective proceeding."[22] Although McKeiver did not mandate that youth defendants receive the special protections of juvenile court, it recognized that the due process clause is construed differently when youth are involved to protect their unique interests. Building on these cases, the mandatory and universal language of the Graham principle would extend these due process holdings and require the justice system to presume that children should be treated with "kid gloves" in other pretrial and trial contexts.

This application of the Graham principle would mandate greater safeguards surrounding the decision to charge a child as an adult. Admittedly, many state and lower federal courts have held that there is no constitutional right to be tried as a juvenile. Following a mentality of "the legislature giveth, the legislature taketh away," they suggest that special treatment for youth defendants "results [only] from statutory authority, rather than from any inherent or constitutional right."[23] As a result, these courts have held that absent any statutory provisions explicitly granting children a property or liberty interest in their juvenile status, the due process clause is not even implicated when a child is treated as an adult in the justice system.[24]

This doctrinal approach to juvenile justice has significantly undercut the seminal Supreme Court case regarding juvenile transfer, Kent v. United States.[25] Kent held that a juvenile defendant could not be transferred to adult court under Washington, D.C., waiver laws without basic procedural guarantees: a hearing, effective assistance of counsel, and a statement of reasons.[26] But state and lower federal courts have narrowed this holding by claiming that these due process requirements were triggered by the presumption of juvenile status in the transfer statute, not by the Constitution. For instance, the North Carolina Supreme Court wrote, "[T]he [U.S.] Supreme Court nowhere stated in Kent that the above factors were constitutionally required,"[27] while a federal judge in the Northern District of Illinois similarly claimed that Kent "did not hold that every juvenile defendant, regardless of the statutory scheme at issue, was entitled to the same right under the Constitution."[28]

Such a conclusion is debatable because Kent clearly stated that its holding was "required by the statute read in the context of constitutional principles relating to due process."[29] Kent also contains general language that "there is no place in our system of law for reaching a result of such tremendous consequences [trying a juvenile as an adult] without ceremony [due process]."[30] Yet if Graham's statement that "criminal procedure laws that fail to take defendants' youthfulness into account at all are flawed" is taken literally, the current doctrine is in serious jeopardy. The Graham principle could modify this doctrine in one of two ways: by constitutionally requiring states to grant defendant children an interest in their juvenile status, or by suggesting that the Constitution itself inherently grants children such an interest. Either way, that protected interest could only be deprived through due process.

In essence, the Graham principle treats Kent's due process holding as the constitutional mandate it initially seemed to be. State laws that require children to be tried as adults or that give prosecutors unfettered discretion to make that decision without any explicit consideration of youthfulness would be unconstitutional. Laws that automatically treat sixteen- or seventeen-year-olds as adults would also be unconstitutional, as Roper explicitly drew the line for juvenile status at age eighteen.[31]

Indeed, the Court may already be heading down this path. In Chief Justice Roberts's dissent in Miller, he hyperbolically stated, "Unless confined, the only stopping point for the Court's analysis would be never permitting juvenile offenders to be tried as adults."[32] Though this statement misses Miller's fundamental point that LWOP sentences for youth are not necessarily unconstitutional-they just cannot be mandatorily imposed-Roberts is correct to the extent that a procedural due process reading of these cases suggests that it is unconstitutional to ever require a court to try a juvenile as an adult.

III. Substantive Due Process

A third way to construe the broad language of the Graham principle is as a substantive due process fundamental right that a defendant's youthfulness must be considered at some point in the criminal process. Under this approach, the cases discussed above are best understood as specific applications of that fundamental principle. In other words, to parallel the approach taken by Justice Douglas in the seminal case Griswold v. Connecticut, the Graham principle would lie in the "penumbras" of the Eighth (Eddings, Graham, Miller) and Fourteenth (Haley, Kent, J.D.B.) Amendments.[33]

To be sure, a large body of scholarly and judicial work critiquing substantive due process jurisprudence questions the doctrinal basis for Griswold's penumbras rationale. As recently as 2009, the Supreme Court reiterated that it is "reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended."[34] Nevertheless, the language of the Graham principle is not tethered to any particular constitutional provision or constitutional context, so there is a logical appeal to conceive of it as a broad principle emanating from several parts of the Constitution. And while advancing a new substantive due process right is disfavored, the Court has not hesitated to recognize such rights when necessary, asserting that "[h]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry."[35]

Characterizing the Graham principle as a substantive due process fundamental right would require courts to apply strict scrutiny to criminal procedure laws that fail to take youthfulness into account.[36] This would yield similar results to both the procedural due process and Eighth Amendment rules discussed above, requiring explicit considerations of juvenile status in transfer decisions and other aspects of pretrial, trial, and sentencing.


This is an exciting time for advocates who would like to see additional safeguards for juveniles in the justice system, as the Supreme Court is consistently painting with broad strokes in favor of children's rights. Of course, it remains to be seen how these cases will fare in state and lower federal courts. For example, Michigan courts have split on how to implement Miller: one Michigan Court of Appeals panel rejected its retroactive application,[37] while a federal judge in the Eastern District of Michigan concluded to the contrary.[38] We have already seen how state and lower federal courts can quickly narrow far-reaching decisions like Kent.

Nevertheless, Graham's declaration that "criminal procedure laws that fail to take defendants' youthfulness into account at all are [constitutionally] flawed" provides a principle for advocates to sink their teeth into, and creative lawyers can take this idea and run with it. This Essay suggests three ways to incorporate the Graham principle into constitutional doctrine: as a component of the Eighth Amendment, procedural due process, or substantive due process. Under each approach, every child would be treated as a child absent a sufficient reason to do otherwise. To borrow language from Chief Justice Roberts's concurrence in Graham, "Not every juvenile . . . will prevail under this approach. Not every juvenile should. But all will receive the protection that the [Constitution] requires."[39]

* J.D. Candidate, May 2014, University of Michigan Law School. I would like to thank Deborah LaBelle of the Juvenile Life Without Parole Initiative, whose mentorship with regard to progressive lawyering provided the inspiration for this Essay. I would also like to thank Anlyn Addis for letting me bounce ideas off of her as I researched this topic.

[1]. See, e.g., William J. Bennett, John J. DiIulio, Jr., & John P. Walters, Body Count: Moral Poverty. . .and How to Win America's War Against Crime and Drugs 27 (1996).

 [2]. Patrick Griffin et al., Office of Juvenile Justice and Delinquency Prevention, Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting 9 (2011) (Juvenile Offenders and Victims National Report Series), available at

 [3]. 543 U.S. 551, 575, 578-79 (2005), rev'g Stanford v. Kentucky, 492 U.S. 361 (1989).

 [4]. 130 S. Ct. 2011, 2034 (2010).

 [5]. 131 S. Ct. 2394, 2398-99 (2011).

 [6]. 132 S. Ct. 2455, 2460 (2012).

 [7]. See Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) (holding that youthful status "must be" a mitigating factor in death penalty sentencing); Haley v. Ohio, 332 U.S. 596, 599 (1948) (holding that a minor's confession was coerced in violation of the Fourteenth Amendment because a "mere child . . . cannot be judged by the more exacting standards of maturity [of an adult]").

 [8]. Miller, 132 S. Ct. at 2464.

 [9]. Graham, 130 S. Ct. at 2031 (emphasis added).

 [10]. Id.

 [11]. See, e.g., Ga. Code Ann. § 15-11-30.3 (2012); Ohio Rev. Code Ann. § 2152.10 (2012); Mich. Comp. Laws § 769.1 (2009).

 [12].  Johnson v. Texas, 509 U.S. 350, 367 (1993); Eddings, 455 U.S. at 115-16.

  [13]. 501 U.S. 957, 995 (1991).

 [14]. Graham v. Florida, 130 S. Ct. 2011, 2031 (2010).

 [15]. Id. at 2029 (citing Workman v. Commonwealth, 429 S.W.2d 374, 378 (Ky. App. 1968)).

 [16]. Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012).

 [17]. 332 U.S. 596, 597-98 (1948).

 [18]. Haley, 332 U.S. at 599, 601.

 [19]. 370 U.S. 49, 54 (1962).

 [20]. J.D.B. v. North Carolina, 131 S. Ct. 2394, 2399 (2011).

 [21]. Id. at 2409 (Alito, J., dissenting).

 [22]. 403 U.S. 528, 545 (1971).

 [23]. State v. B.B., 17 A.3d 30, 34 (Conn. 2011) (citation omitted); see, e.g., People v. Hana, 504 N.W.2d 166, 175 (Mich. 1993).

 [24]. See, e.g., Woodard v. Wainwright, 556 F.2d 781, 785 (5th Cir. 1977); State v. Angilau, 245 P.3d 745, 750 (Utah 2011).

 [25]. 383 U.S. 541 (1966).

 [26]. Kent, 383 U.S. at 554.

 [27]. State v. Green, 502 S.E.2d 819, 827 (N.C. 1998).

 [28]United States ex rel. Carter v. Transcoso, No. 10 C 1270, 2011 WL 1636994, at *11 (N.D. Ill. Apr. 28, 2011), aff'd sub nom. Carter v. Thompson, 690 F.3d 837 (7th Cir. 2012), cert. denied 133 S. Ct. 887 (2013).

 [29]. Kent, 383 U.S. at 557 (emphasis added).

 [30]. Id. at 554.

 [31]. Roper v. Simmons, 543 U.S. 551, 573 (2005).

 [32]. Miller v. Alabama, 132 S. Ct. 2455, 2482 (2012) (Roberts, C.J., dissenting).

 [33]. Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

 [34]. Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 72 (2009) (citation omitted).

 [35]. Lawrence v. Texas, 539 U.S. 558, 572 (2003) (citation omitted).

 [36]. Id. at 593 (noting that fundamental liberty interests can only be restricted by laws "narrowly tailored to serve a compelling state interest") (citation omitted).

 [37]. People v. Carp, 828 N.W.2d 685, 714 (Mich. Ct. App. 2012).

 [38]. Hill v. Snyder, No. 10-14568, 2013 WL 364198, at *2 (E.D. Mich. Jan. 30, 2013).

 [39]. Graham v. Florida, 130 S. Ct. 2011, 2039 (2010) (Roberts, C.J., concurring).

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