New Term for U.S. Supreme Court Prompts Reflection on Children's Rights

[image via Michael Kappel on Flickr]

Since 1917, the first Monday in October has been the official opening day of the annual term of the United States Supreme Court. For the first time in many years, there are no cases currently set for review that raise large questions about children’s status under the Constitution. So … it seems like a good time to pause and reflect on how children and youth have fared in recent years.

As it turns out, quite well. As longtime advocates for children’s rights, we at Juvenile Law Center see much to celebrate. And, because we have a long view, we also see trends and swings in how the Court has addressed children under various provisions of the Constitution. We will focus on a survey of recent key developments under the Fourth, Fifth and Eighth Amendments.

The most recent cluster of cases looked at the status of youth in both the juvenile justice system and the adult criminal justice system. Sentencing has been a key focus for the Court. Since 2005, the Court banned the imposition of our country’s two most severe sentences on children—the death penalty (Roper v. Simmons) and life without parole (Graham v. Florida)—either categorically or in part. The death penalty has been categorically banned, as has a sentence of life without parole in non-homicide cases. Just last term, the Court banned mandatory life without parole sentences for juveniles convicted of homicide, declining to bar them outright given its expressed expectation that such a sentence should be rare and “uncommon” (Miller v. Alabama; Jackson v. Hobbs).

All three sentencing cases plowed new ground under the Eighth Amendment’s ban on cruel and unusual punishment, striking sentencing options for juveniles that remain available—and constitutional—for adults. While the Eighth Amendment is deemed an especially dynamic amendment in constitutional law—its meaning changes over time as societal views of the morality of certain punishments change—there seems little question that youth increasingly occupy a special place along this moral continuum.

In 2011, the Court held, for the first time, that a suspect’s juvenile status was relevant to the determination about whether the suspect needed to be Mirandized before police interrogation could proceed (J.D.B. v. North Carolina).  Here again, the Court refused to allow children to be cloaked in adult garb—at least where the constitutional rights at stake implicate fundamental liberty interests following allegations of delinquent/criminal conduct. J.D.B. was a Fifth/Fourteenth Amendment case, asking squarely how a reasonable juvenile would interpret their freedom of movement—i.e., their freedom to leave—when subjected to police questioning. While the “reasonable child” is well known in civil tort law, her emergence in the juvenile/criminal justice system may well have the most far-reaching implications for youths’ criminal responsibility and culpability going forward.

The Fourth Amendment also got the Court’s attention in several cases, mostly involving searches of students by school officials. In two cases decided in 1995 (Vernonia School District v. Acton) and 2002 (Board of Education v. Earls), the Court opened the door to widespread, suspicionless and random drug testing of all students who elected to participate in any extra-curricular activities, from school sports programs to such diverse offerings as chess club, marching band, and Future Farmers of America. The Court accepted the schools’ arguments that such searches were necessary both to deter and root out drug use by students, whether or not there was any evidence that drug use was occurring in the school district. This willingness to loosen the Fourth Amendment’s strictures for students hit a road bump in 2009, when the Court stopped a school district practice of strip searching middle school students in the absence of individualized suspicion (Safford Unified School District v. Redding). Interestingly, with the Court’s decision last term in Florence v. Board of Freeholders, upholding a jail’s strip search policy as applied to adults charged with minor misdemeanor offenses, the stage may be set for yet another opportunity to extend the Supreme Court’s ‘kids are different’ jurisprudence; at least one case is currently pending before the United States Court of Appeals for the Sixth Circuit challenging the strip-searching of juveniles in a juvenile detention center.

What does this recent Supreme Court constitutional approach to children suggest about the future? That we will continue to see both state and federal courts struggle to sort out this ‘new normal’ paradigm of children’s rights, where we reserve a corner of the Constitution for these still developing, still-in-transition young people who must be protected and empowered all at once: protected so that the harms we tolerate for adults are minimized or eliminated in the case of children, but also empowered to ensure that they have tools to enforce the protections due them.

In the 1960s, we witnessed a due process revolution for children involved in the justice system, with the Supreme Court systematically guaranteeing children nearly all of the same key, procedural due process guarantees emblematic of our adult criminal justice system. Those cases dramatically reshaped the modern juvenile justice system. The 1990s saw the numbers of children tried as adults rise exponentially, posing new challenges for the Court that led to the recent reconfiguration of acceptable sentencing policies for juveniles. Now, new research has forced a re-evaluation of children’s legal status, demonstrated by the Court’s increasing resistance to treat children the same as adults.

Looking ahead, children’s exposure to and use of new technologies will offer a new round of assessment and analysis, as states work to figure out what new lines must be drawn in the boundless world of the web and internet. It’s up to children’s advocates to help frame this dialogue and continue to shape the solutions.

This much we know. It turns out that the 1990s adage of ‘adult time for adult crime’ doesn’t work for juveniles; they actually can’t be transformed supernaturally—and prematurely—into adults by state legislatures before nature, biology, and the passage of time dictate when the line to adulthood has been crossed. The successes that kids have had in the Supreme Court in recent years are in large measure because the Court realizes that constitutional law must recognize the laws of nature.