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October 28, 2016

Two timely new commentaries in light of our Graham-based discussions of "legal" adulthood

I have been quite amused to see these two headlines on two notable commentaries published since our last class:

The first of these articles starts this way:

Consider three young people: An 18-year-old who can vote, but can’t legally buy a beer; a 21-year-old who can drink, but is charged extra to rent a car; and a 25-year-old who can rent a car at the typical rate, but remains eligible for his parents’ health insurance.

Which one is an adult? All of them? None of them? Some of them? Or does it depend on the individual?

These questions are newly salient in the criminal justice system.

October 28, 2016 in Aggravators and mitigators, Class activities, Theories of punishment | Permalink


I agree with the author that we should decrease the voting age. I think the author makes a good point that many of the concerns people put forward for lowering the voting age (e.g.- kids will only vote like their parents or won’t understand policy) are equally as salient for adult voters and cannot be used as an excuse to limit “children’s suffrage.” If there is anything this election makes clear, people do not vote based solely on policy and often vote against their own policy interests.

However, I am not sure I support some of the methods for giving voting rights to children. I do not like the idea of giving parents a vote for their kids. I think that undermines some of the author’s arguments about increased engagement. If young people are not actually able to go in to the polls and cast the ballot, I doubt the effect of increased engagement later on would be as strong. In addition, it seems inherently wrong to value a child’s vote in 10ths because I do think on some level that sends a message that they are valued less as people/citizens. Also, our country’s history of fractioning votes to certain groups (i.e.- African slaves were counted as 3/5’s of a person in the constitution) makes me think we should not echo one of the most embarrassing points in our nation's history.

Finally, I think the author’s argument in connecting age to sex discrimination is flawed because he does not explain why he is comparing these groups. There is some disconnect in the comparison because sex and race are protected and quasi-protected classes due to their status as discrete and insular minorities. However, age and aging is something that everyone experiences at some point and therefore is not a discrete and insular minority. See e.g. Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (1999).

Posted by: Karin Nordstrom | Nov 9, 2016 8:57:57 AM

I agree with Dana Goldstein that the time has come to reassess who constitutes an adult--at least for sentencing purposes. The reasoning underlying Graham supports this conclusion.

In Graham, the Majority held that a juvenile offender can't be sentenced to life without parole for a non-homicide crime. Graham stands for the proposition that "the concept of proportionality is central to the 8th Amendment." Graham v. Florida, 560 U.S. 48, 59 (2011). Furthermore, the proportionality of a punishment should not be measured by past historical precedent, but rather through "the evolving standards of decency marked by a maturing society." Id. at 58.

Young people today marry older, have children later, and are significantly less likely to obtain gainful long-term employment than prior generations. Moreover, recent scientific research supports the hypothesis that brain maturation continues long after one reaches the age of the majority, and instead extends into one's twenties and thirties. Knowing what we know now, it is exceedingly cruel to treat a teenager as an adult for sentencing purposes, as their immature brains are less capable of assessing the risks and consequences of their actions. Therefore teenagers are less morally culpable than their adult offenders.

Additionally, if the ultimate goal of criminal punishment is to reduce crime, treating juveniles harshly appears to be counterproductive. Doyle and Aizer's research suggests that juvenile incarceration results in a significant decrease in the odds that juvenile offender completes high school, as well as increased rates of recidivism and adult incarceration. Anna Aizer et al. Juvenile Incarceration, Human Capital and Future Crime: Evidence from Randomly-Assigned Judges, NBER Working Paper No. 19102 (June 2013).

While there is no doubt that we should reassess sentencing for juvenile offenders, the problem becomes where to draw the line. While brain maturation continues up to the age of 30, the level of maturity from individual to individual often varies. The tension between individual and equal justice that permeates so much of criminal law is readily apparent here. Giving the same punishment to two individuals who are the same age, but possess different levels of mental maturity, seems to fly in the face of individual justice. At the same time, it is almost impossible to separate juveniles who pose a constant threat to society from juveniles who exhibit a momentary lapse in judgment and are capable of rehabilitation.

As a starting point, I propose a blanket ban on treating anyone under the age of 18 as an adult for sentencing purposes. While I think that there is a decent argument for extending this ban beyond the age of 18, I also believe this to be currently untenable. Treating everyone under the age of 18 as a juvenile for sentencing purposes represents the first step in acknowledging scientific advances that show teenagers who commit crimes are not as morally culpable as their adult counterparts.

Posted by: Sean Klammer | Nov 13, 2016 4:44:23 PM

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