INTRODUCTION

Proportionality between the seriousness of the harm, the culpability of the actor, and the severity of punishment constitutes the foundation of the criminal sanction.¹ In its noncapital proportionality analyses, the Supreme Court has primarily emphasized the relationship between the seriousness of the offense or recidivism and the sentence imposed, rather than the culpability of the offender.² By contrast, the Court's death penalty jurisprudence has repeatedly emphasized that defendants must receive an individualized culpability assessment before a state may impose the ultimate penalty.³

The criminal law assumes that rational actors possess free will and choose to violate the law based on their own preferences and values. Because moral blameworthiness provides legitimacy to the criminal sanction, the criminal law must account for the quality of choices made by actors who deviate substantially from its model of personal autonomy. Some nominally responsible actors are not as blameworthy as other offenders, and the criminal law formally or informally mitigates the punishment of those with "diminished capacity." Because the idea of deserved punishment emphasizes culpability and blameworthiness, the criminal law confronts the special cases of those who are criminally responsible and yet manifestly impaired, mentally ill, or developmentally different from competent adult offenders.⁴ The criminal law distinguishes doctrinally between the profound disabilities that fully excuse actors from criminal liability, such as insanity,⁵ which the law defines very narrowly, and doctrines of "diminished responsibility" or "reduced culpability," which allow even seriously impaired actors to be convicted and punished for their crimes.⁶ The relationship between culpability and deserved punishment implicates interrelated notions of blameworthiness, responsibility, and personal accountability. What types of impairments mitigate or reduce criminal culpability? How much impairment must be present to warrant a reduction in severity of sanctions? How are impairments of judgment and culpability to be defined and proved? Should the law assess and treat such impairments individually or categorically?

The Supreme Court most thoroughly explored culpability, proportionality, and deserved punishment in the context of the death penalty because "death is different.",⁷ In decisions involving the culpability of defendants with mental retardation and older adolescents, the Court has reached opposite conclusions about the deserved punishments of each category and produced an anomalous inconsistency.⁸ In 1989, the Court in Penry v. Lynaugh held that mentally retarded defendants could be found as culpable as other criminal offenders facing the death penalty.⁹ Although a plurality of justices in Thompson v. Oklahoma¹⁰ had earlier concluded that fifteen year-old offenders lacked the culpability necessary to impose the death penalty,¹¹ the Court in Stanford v. Kentucky, decided at the same time as Penry, upheld the death penalty for youths who were sixteen or seventeen years of age at the time of their offenses.¹² More recently, the Court in Atkins v. Virginia overruled Penry and held that the Eight Amendment barred states from executing mentally retarded defendants.¹³ Atkins found that mentally retarded defendants lacked the reasoning, judgment, and impulse control necessary to equate their moral culpability with that of ordinary adult criminal defendants.¹⁴ In addition, their mental impairments detracted from the fairness and reliability of capital trials and increased the likelihood of erroneous death sentences.¹⁵

In this Article, I argue that the Court's culpability analyses in Atkins apply equally to the execution of adolescents and should prohibit the practice. Moreover, the rationale of diminished criminal responsibility of adolescents has broader implications for proportionality in sentencing all younger offenders in criminal courts. Part I analyzes the Atkins decision, which relied on empirical and normative justifications to prohibit executing mentally retarded offenders. Empirically, Atkins analyzed state death penalty laws and jury practice and found a national consensus that executing defendants with mental retardation violated "evolving standards of decency." Normatively, the Court examined the psychological and developmental characteristics of mentally retarded offenders that render them less blameworthy than more competent adult offenders. Part II reviews the Court's juvenile death penalty analyses in Thompson and Stanford, follows the framework of Atkins' empirical analysis, and assesses recent legislative and judicial activity regarding execution of sixteen- and seventeen-year-old offenders. Part III builds on Atkins' normative description of developmental characteristics of mentally retarded offenders, compares them with the developmental, psychological, and neuro-biological characteristics of adolescents, and argues that their similar limitations of judgment reduce their culpability as well. Adolescents' limitations in adjudicative competence also increase their risks of erroneous convictions. Based on these empirical and normative comparisons, I argue that Stanford is inconsistent with the Court's more enlightened appraisal of culpability in Atkins and logical consistency should preclude states from executing youths for crimes they committed when sixteen or seventeen years of age. Part IV extends the culpability and proportionality analyses to the sentencing of noncapital young offenders as well. Because adolescents' competence and culpability differ qualitatively from those of adults, courts and legislatures should formally recognize youthfulness as a mitigating factor. I argue for a bright-line, rather than an individualized discretionary approach, because the generic culpability of adolescents differs from that of adults and categorical treatment of penal proportionality reduces the risks of error and injustice in sentencing.

I. CULPABILITY, MENTAL RETARDATION, AND ATKINS

The Supreme Court has interpreted the Eighth Amendment's¹⁶ prohibition on "cruel and unusual punishment" to bar sentences that are "excessive,"¹⁷ that fail to contribute to the penal goals of retribution and deterrence,¹⁸ and that violate "evolving standards of decency."¹⁹ For more than a quarter of a century, the Court has required state death penalty statutes to channel jury discretion and consider the circumstances of the defendant.²⁰ Trial courts must allow defendants to present to the jury any evidence that humanizes them or mitigates their culpability before the jury renders its verdict.²¹ The Court endorses structured, individualized discretion in capital sentencing and only rarely has excluded whole classes of offenders from death eligibility.²²

The Supreme Court in Penry v. Lynaugh²³ held that the Eighth Amendment did not categorically bar executing mentally retarded criminal defendants.²⁴ The Court looked to state statutes as "objective evidence of how our society views a particular punishment today" and found that only two states and the federal government prohibited execution of mentally retarded offenders.²⁵ Even when coupled with the fourteen states that rejected capital punishment, the Court concluded that Penry had failed to "provide sufficient evidence at present of a national consensus" opposed to executing mentally retarded defendants.²⁶ Although the Court rejected Penry's plea for a categorical ban on executing defendants with mental retardation, it remanded his case for individualized reconsideration of his death sentence.²⁷ "[I]t is precisely because the punishment should be directly related to the personal culpability of the defendant that the jury must be allowed to consider and give effect to mitigating evidence relevant to a defendant's character or record or the circumstances of the offense.²⁸ However, the Penry Court acknowledged that "a national consensus against execution of the mentally retarded may someday emerge.²⁹

Thirteen years later, the Court in Atkins v. Virginia³⁰ reconsidered its decision in Penry, found that a national consensus had emerged, and held that executing mentally retarded defendants categorically violated the Eighth Amendment.³¹ The Court used both empirical evidence and normative judgments to support its conclusion that executing mentally retarded offenders violated "evolving standards of decency." It relied on objective indicators of a national consensus, such as state laws and jury practices.³² The justices also relied on their own judgments about diminished culpability and deserved punishment to support their proportionality determination.³³ In its empirical analysis, the Court surveyed the trend of states' laws on the execution of retarded offenders.³⁴ In its normative assessment, the Court drew on several clinical definitions of mental retardation to identify the characteristics of mentally impaired offenders that rendered them qualitatively less culpable than ordinary adult offenders and thus justified the blanket prohibition against executing the mentally retarded.³⁵

First, the Court analyzed death penalty laws regarding the execution of the mentally retarded. While only two states and the Federal government prohibited executing mentally retarded defendants when the Court decided Penry,³⁶ by the time the Court reconsidered its holding in Atkins, sixteen additional states had prohibited the practice, and prohibition bills had passed at least one house in several other states.³⁷

The Court suggested that several other states had not adopted explicit legislation because they had not executed a mentally retarded defendant in decades.³⁸

It is not so much the number of these States that is significant, but the consistency of the direction of change. Given the well-known fact that anticrime legislation is far more popular than legislation providing protections for persons guilty of violent crime, the large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal.³⁹

The Court attributed the states' emerging legislative consensus to the normative recognition that mentally retarded defendants are less culpable or deserving of retributive punishment and less susceptible to the deterrent threat of execution than ordinary offenders.⁴⁰ Atkins examined the penal functions presumably served by the death penalty -- retribution and deterrence --and concluded that executing a mentally retarded defendant accomplished neither goal. Even though states could find mentally retarded offenders competent and punish them for their crimes, they lacked the culpability necessary to justify the ultimate penalty.⁴¹ Similarly, they lacked the deliberative capacity that would respond to the deterrent threat of execution.⁴² Moreover, their developmental limitations substantially increased the likelihood that they erroneously might receive the death penalty.⁴³ Thus, mental retardation simultaneously reduced offenders' culpability and adversely affected their adjudicative competence.

The Court relied on several professional definitions of mental retardation to identify the clinical characteristics that reduced the criminal responsibility and hampered the adjudicative competence of defendants with mental retardation.⁴⁴ Findings of

mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18. . . . Because of their impairments ... they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others .... [Tlhey often act on impulse rather than pursuant to a premeditated plan, and.., in group settings they are followers rather than leaders. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.⁴⁵

In addition to significant subaverage intellectual functioning,⁴⁶ a retarded individual also demonstrates actual disability in "adaptive skill areas" that affect every day life, such as the capacity to use and process information, to reason logically, to control impulses, and to resist peer pressure.⁴⁷ While a low IQ provides one indicator of mental retardation, Atkins emphasized a broader range of social, psychological, and mental skills deficits to justify its conclusion that such offenders lacked the requisite culpability.⁴⁸ The features that Atkins found to reduce culpability of mentally retarded defendants-- possessing, understanding, and using information; exercising impulse control; and responding to negative peer influences⁴⁹-- are normal developmental characteristics of ordinary adolescent offenders as well.⁵⁰

In addition to reducing culpability, mental retardation also adversely affects defendants' adjudicative competence and increases the likelihood that they erroneously might receive the death penalty.⁵¹ Mentally retardation increased defendants' susceptibility to interrogation and proclivity to give false confessions, reduced the assistance they could provide to their lawyers, and adversely affected their demeanor and effectiveness as witnesses.⁵² Because the Court recognized that mental retardation and diminished culpability are matters of degree on a continuum, it left the task to the states to develop legislative definitions and criteria, procedures, and clinical indicators to identify which defendants its categorical ban protected.⁵³

In separate dissenting opinions, Justices Rehnquist and Scalia, each joined by the other and by Justice Thomas, criticized the Court's categorical ban on executing mentally retarded defendants. Justice Rehnquist objected to the proportionality analysis the majority used to find a national consensus against executing mentally retarded offenders.⁵⁴ He insisted that state laws provide the most objective and reliable basis on which to ascertain the existence of a national consensus and to avoid the Justices imposing their own subjective preferences on the states' power to legislate.⁵⁵ He decried the majority's reliance on foreign laws, opinion polls, and the positions of professional and religious groups reported in amici briefs as "a post hoc rationalization for the majority's subjectively preferred result rather than any objective effort to ascertain the content of an evolving standard of decency."⁵⁶ Justice Scalia derided the majority's conclusion as "nothing but the personal views of its [m]embers."⁵⁷ He insisted that legislation provides the only objective basis for identifying a national consensus and disputed the mathematical calculations that the majority used to find a consensus against executing the mentally retarded.⁵⁸

II. CULPABILITY, ADOLESCENCE, AND THE RATIONALE OF THOMPSON AND STANFORD

Characteristics that reduce the culpability of mentally retarded offenders-- susceptibility to peer influences, a propensity to act impulsively without thinking about consequences, and immaturity of judgment-- have relevance to the criminal responsibility of adolescents.⁵⁹ Although earlier decisions adverted to youthfulness as a mitigating factor in capital sentencing,⁶⁰ the Court in Thompson v. Oklahoma⁶¹ analyzed the criminal responsibility of youths older than the common law infancy threshold of age fourteen. Thompson presented the issue of whether executing a fifteen-year-old offender for a heinous murder in which he actively participated violated the prohibition on "cruel and unusual punishments."⁶² A four-justice plurality held that the Eighth Amendment categorically precluded executing youths who were fifteen years of age or younger at the time they committed their offense.⁶³ Justice O'Connor wrote a separate concurrence on the grounds that the Oklahoma legislature may not specifically have considered that fifteen-year-old youths would be death eligible.⁶⁴

As the Court would later in Atkins, the Thompson plurality looked both to objective indicators of "evolving standards of decency," such as state statutes and jury practices and the views of national and international organizations, and to the justices' own subjective sense of "civilized standards of decency" when it conducted its proportionality analysis.⁶⁵ Of the states that explicitly had considered a minimum age for death penalty eligibility, all had established it at sixteen, seventeen, or eighteen years of age.⁶⁶ Similarly, the Court found that juries rarely imposed the death penalty on juveniles.67 Thompson noted that legal, professional, religious, and social organizations-- nationally and internationally-- opposed executing young people.⁶⁸ Moreover, international law and treaties also condemned the practice.⁶⁹ Based on these objective indicators, the Court concluded that executing offenders who committed their crimes before they turned sixteen-years-old was generally abhorrent to the conscience of the community.⁷⁰

In addition to the objective factors, the plurality concluded that "a young person is not capable of acting with the degree of culpability that can justify the ultimate penalty," and vacated Thompson's capital sentence.⁷¹ The justices asserted that

[L]ess culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult.... Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.⁷²

Even though Thompson could be found criminally responsible for his crime, he could not be punished as severely as an adult simply because of his age-- "adolescents as a class are less mature and responsible than adults.⁷³ Even though youths may inflict blameworthy harms, their choices evidence less culpability than do those of adults.⁷⁴ The legal system treats adolescents differently from adults in numerous areas of life-for example, serving on a jury, voting, marrying, driving, and drinking-because of youths' inexperience and immature judgment.⁷⁵ In all these instances, the state acts paternalistically and imposes legal disabilities because of youths' presumptive incapacity to "exercise choice freely and rationally."⁷⁶ It would be inconsistent and cruelly ironic to find juveniles' culpability and criminal capacity equivalent to that of adults for purposes of capital punishment.⁷⁷ The plurality concluded that categorically exempting younger adolescents from the death penalty would not erode the retributive and deterrent justifications for capital punishment.⁷⁸ Some commentators criticized the Court's categorical ban on executing children as contrary to its insistence on individualized consideration of the culpability of offenders.⁷⁹

Justice O'Connor concurred in the reversal of Thompson's capital sentence.⁸⁰ She acknowledged the likelihood of the existence of a national consensus that persons who commit crimes before the age of sixteen should not be executed, but questioned the sufficiency of the evidence to support that conclusion.⁸¹ She noted that every state that had established a minimum age for the death penalty had set it at sixteen years of age or older.⁸² She joined the plurality on the narrower grounds that states with no minimum age for death-eligibility may not have adequately considered the interaction of provisions that waive juveniles of any age for adult criminal prosecution and statutes that permit the state to execute any youth convicted as an adult⁸³ As a result, Oklahoma may not have affirmatively decided to execute very young offenders.⁸⁴

The following year, in Stanford v. Kentucky,⁸⁵ the three justices who dissented in Thompson,⁸⁶ joined by Justices O'Connor and Kennedy, mustered a majority to uphold the death penalty for youths who were sixteen or seventeen at the time of their offenses.⁸⁷ While Stanford recognized that juveniles as a class possess less culpability than do adult offenders, the Court's decision rested on the narrow grounds that no clear national consensus existed that such executions violated "evolving standards of decency."⁸⁸ According to Justice Scalia, "statutes passed by society's elected representatives" provide the only reliable indicator of a national consensus and the majority of states that employ capital punishment approve it for youths who were sixteen or seventeen years of age at the time of their offense.⁸⁹ The Court rejected a categorical ban on all such executions because it regarded at least some older adolescents as capable of acting with the culpability necessary to justify the death penalty.⁹⁰ The Court distinguished other types of brightline classifications of youths, for example, the right to vote, drink, or drive, because the criminal justice system provided youths with an individualized culpability assessment prior to imposing the death penalty.⁹¹ Indeed, Justice Scalia erroneously asserted that juvenile court judges made an initial culpability determination prior to transferring youths to criminal court for prosecution as adults.⁹² Because most states now "automatically" prosecute older juveniles charged with capital crimes as adults, courts have relied on Justice Scalia's assertion to invalidate death sentences imposed on youths who did not receive an individualized assessment of their maturity and culpability prior to trial.⁹³ Justice O'Connor concurred to uphold the death penalty for sixteen- and seventeen-year-old offenders because the majority of states that endorsed capital punishment authorized it for those below the age of eighteen.⁹⁴

The four Stanford dissenters reviewed the evidence relied on in Thompson to argue for a national consensus against executing children.⁹⁵ In its calculus, the dissent counted both those states that did not authorize the death penalty for any offender as well as those which restricted it only to those eighteen years of age or older, and found that "the governments in fully 27 of the States have concluded that no one under 18 should face the death penalty" and that "a total of 30 States... would not tolerate the execution" of the sixteen-year-old petitioner in Stanford's companion case.⁹⁶ Unlike the majority, the dissent would consider other "indicators of contemporary standards of decency" besides state laws and jury practices.⁹⁷ The Eighth Amendment requires the Court to conduct an independent proportionality analysis to determine whether a punishment was disproportionate or served the goals of punishment.⁹⁸ Such a proportionality analysis precludes "punishment that is wholly disproportionate to the blameworthiness of the offender,"⁹⁹ and juveniles categorically lacked the requisite culpability for capital punishment.¹⁰⁰ Moreover, the procedural safeguards on which the Stanford majority relied did not adequately address the substantive questions of whether any youth can possess the requisite culpability for execution or whether states accurately can distinguish them from less blameworthy offenders.¹⁰¹

Atkins has revived questions about the constitutionality of executing adolescents. In Patterson v. Texas, the dissent to a denial of a stay of execution of a juvenile urged the Court to reconsider Stanford in light of the "apparent [national] consensus that exists among the States... against the execution of a capital sentence imposed on a juvenile offender."¹⁰² Two months after Patterson, Stanford exhausted his state and federal remedies and filed a final writ of habeas corpus, which the Court denied.¹⁰³ The four justices, who dissented from the denial of the writ, argued that a national consensus had emerged against executing juveniles, and urged the Court to reconsider the issue in light of Atkins.¹⁰⁴ Justice Stevens noted that nearly the same number of states prohibited executing adolescents as proscribed the death penalty for defendants with mental retardation.¹⁰⁵ Justice Stevens also cited recent neurobiological research that indicates that the immature adolescent brain lacked the reasoning abilities of adults.¹⁰⁶ On January 5, 2004, the Supreme Court granted certiorari in Roper v. Simmons to consider again whether the Eighth Amendment bars the execution of offenders for crimes they committed prior to age eighteen.¹⁰⁷

A. The Empirical Foundation of Stanford

Atkins relied on legislative changes and jury behavior as empirical evidence to prohibit states from executing mentally retarded defendants.¹⁰⁸ In the decade and a half since Stanford, several state supreme courts have barred the execution of youths under eighteen,¹⁰⁹ or at least under seventeen years of age.¹¹⁰ In Simmons v. Roper,¹¹¹ the Missouri Supreme Court applied the Supreme Court's Atkins analysis to prohibit execution of a youth for a crime committed at seventeen years of age:

Applying the approach taken in Atkins, this Court finds that, in the fourteen years since Stanford was decided, a national consensus has developed against the execution of juvenile offenders, as demonstrated by the fact that eighteen states now bar such executions for juveniles, that twelve other states bar executions altogether, that no state has lowered its age of execution below 18 since Stanford, that five states have legislatively or by case law raised or established the minimum age at 18, and that the imposition of the juvenile death penalty has become truly unusual over the last decade." ¹¹²

Significantly, the Missouri Supreme Court based its decision on federal constitutional grounds and found that "the Supreme Court would today hold that such executions are prohibited by the Eighth and Fourteenth Amendments."¹¹³ By ruling on the federal, rather than state, constitution, Simmons frontally challenged the continuing vitality of Stanford.¹¹⁴

Simmons replicated the Supreme Court's empirical and normative analyses in Thompson¹¹⁵ and Atkins¹¹⁶ and concluded that the Court today would prohibit executing offenders under the age of eighteen.¹¹⁷ The same legislative trend that Atkins found to provide a "national consensus" against executing mentally retarded defendants also existed with respect to state laws prohibiting executing juveniles.¹¹⁸ Although twenty-one other states theoretically authorized the death penalty for juveniles, only six states had executed a juvenile since the Stanford decision, and only three had done so within the preceding decade.¹¹⁹ Simmons found that national and international professional, social, and religious organizations opposed executing offenders for crimes committed when they were younger than eighteen years of age.¹²⁰ Because of juveniles' reduced culpability, categorically exempting them from the death penalty would not erode the retributive or deterrent functions of the death penalty.¹²¹

* All of the statutes listed in the Atkins v. Virginia column were cited by the Supreme Court in Atkins v. Virginia, 536 U.S. 304, 314-16 (2002), and appear here as in effect at the time Atkins was decided. States designated as "N/A" either permitted execution of the mentally retarded at the time Atkins was decided, or prohibited it but were not cited in that decision.

** The Supreme Court held that the execution of a defendant that was under sixteen years of age when he committed his crime was unconstitutional in Thompson v. Oklahoma, 487 U.S. 815 (1988). States in this column designated as "N/A" do not bar the execution of sixteen and seventeen year olds.

Following the Simmons ruling, two more states-- South Dakota and Wyoming-- passed laws banning the execution of juveniles, and the New Hampshire house and senate also passed a prohibition bill. Of the thirty-eight state death penalty jurisdictions and the two federal government (civil and military) jurisdictions, twenty-one (52.5 %) expressly provide that eighteen years of age is the minimum age for death eligibility, another five (12.5 %) specify seventeen years of age as the minimum age for death eligibility, and fourteen (35 %) use sixteen years of age as the minimum age either by statute or by court ruling relying on Stanford.¹²² Even after Stanford approved executing sixteen or seventeen-year-old offenders, no death penalty state which previously allowed executing only eighteen-year-old offenders lowered its statutory minimum age.¹²³ Like the clear national trend observed in Atkins, states consistently have moved only to raise the minimum age for death eligibility. In the post-Stanford era, several states have adopted or raised their minimum age from sixteen to eighteen,¹²⁴ and several other legislatures have come close to amending their death penalty statutes to prohibit executing juveniles.¹²⁵

The dissent in Atkins and the Thompson Court viewed jury sentencing practices as another indicator of "evolving standards of decency."¹²⁶ Even in states that nominally approve the death penalty for juveniles, juries seldom impose them and states even less frequently carry them out thereby reducing the impetus to amend their laws. Although twenty-two states officially sanctioned the death penalty for juveniles, at the time Simmons v. Roper was decided, only seven states have executed a juvenile during the post-Furman era, and since Stanford, only Texas, Oklahoma, and Virginia have executed youths with any regularity.¹²⁷ In Texas, between 1982 and 2003, of the three hundred and thirteen persons executed, thirteen (4.2 %) were juvenile offenders, and an additional twenty-eight youths remain on death row.¹²⁸ During the same period in Virginia, three (3.4 %) of eighty-nine people executed were juveniles.¹²⁹ The decision by the jury in Virginia to spare the life of seventeen-year-old Washington, D.C.-area sniper, Lee Boyd Malvo, also evidences the erosion of popular support for the practice.¹³⁰

III. ATKINS AND ADOLESCENTS RECONSIDERED: COMPETENCE AND CULPABILITY

The developmental limitations that reduce the culpability of mentally retarded defendants characterize most normal adolescent offenders as well.¹³¹ When states punish young offenders, they assume that adolescents possess sufficient cognitive capacity and volitional controls to hold them responsible and accountable for their criminal behavior.¹³² However, even criminally responsible young offenders deserve less severe penalties than do mature offenders.¹³³ Every other area of law recognizes that young people have limited judgment, are less competent decision-makers because of their immaturity, and require greater protection than do adults.¹³⁴ Applying the same principle of diminished responsibility in the criminal law requires a categorical ban on executing youths and shorter sentences for youths than for adults convicted of the same offenses.

Deserved punishment entails condemnation for making blameworthy choices and imposes proportional 'sentences commensurate with the seriousness of the offense.¹³⁵ Two elements define the seriousness of a crime-harm and culpability.¹³⁶ An offender's age has little bearing on assessments of harm-- the quality of the injury inflicted or the value taken¹³⁷-- but youthfulness and immaturity bear quite directly on the quality of choices, the culpability of the actor, and the moral seriousness of the crime.¹³⁸

In the context of homicide gradations, for example, criminal law arrays actors' culpability and blameworthiness along a continuum from a premeditated killer for hire at one end to the minimally responsible actor barely capable of discerning right from wrong at the other end, even though each caused the same harm.¹³⁹ Assigning sentences proportional to culpability attempts to gauge the actor's location along this continuum of responsibility. Although determinations of culpability reflect complex moral evaluations, judgments about blameworthiness also reflect an actor's response to external factors, such as provocation, and to individual psychological, developmental, or emotional features, subsumed as "diminished responsibility."¹⁴⁰ Because the criminal law presumes free-willed moral actors-those who morally can be blamed for wrong-doing-it deems less culpable those whose capacity to make rational choices or whose ability to exercise self-control is significantly constrained by external circumstances or individual impairments.¹⁴¹ Youthfulness affects the actor's abilities to reason instrumentally and freely to choose behavior, and locates an offender closer to the diminished responsibility end of the continuum than to the fully autonomous free-willed actor.¹⁴²

Criminal responsibility and moral blameworthiness hinge on cognitive and volitional competence. In a framework of deserved punishment, it is unjust to impose the same penalty on offenders who do not possess comparable culpability. Younger offenders are not as blameworthy as adults because they have not yet fully internalized moral norms, developed sufficient empathic identification with others, acquired adequate moral comprehension, or had sufficient opportunity to learn to control their actions.¹⁴³ In short, they possess neither the rationality-- cognitive capacity-- nor the self-control-- volitional capacity-- to justify equating their criminal responsibility with that of adults.

Developmental psychology studies changes across the life-cycle in physical, social, intellectual, and emotional development,¹⁴⁴ and, from its earliest foundation, has posited that young people move through a sequence of stages in legal reasoning and moral decision making.¹⁴⁵ Some of the developmental changes parallel the imputations of responsibility associated with the common law infancy defense, and by mid-adolescence most youths acquire cognitive reasoning capacity roughly comparable to that of adults.¹⁴⁶ When, for example, youths make informed consent decisions for psychotherapy or medical treatment, few bases exist to distinguish between mid-adolescents and adults in terms of the information used or the reasoning processes employed.¹⁴⁷ Studies that equate adolescent and adult cognitive ability derive primarily from informed consent research that emphasizes subjective preferences.¹⁴⁸ But the ability to make hypothetical decisions under structured laboratory conditions with complete information differs significantly from the ability to exercise mature judgment when equipped with incomplete knowledge, under stressful conditions, and with real-life consequences.¹⁴⁹

From a clinical and social policy perspective, there is increasing recognition of the importance of emotions in decision making, relevant to a wide range of risk-taking behaviors. In many ways, this perspective increasingly blurs the traditional boundaries of cognitive vs. emotional processes. This is important because the "decision" to engage in a specific behavior that has long-term health consequences-e.g., smoking a cigarette, drinking alcohol, or engaging in unprotected sex-cannot be completely understood within the framework of "cold" cognitive processes. Cold cognition refers to thinking under conditions of low emotion and/or arousal, whereas hot cognition refers to thinking under conditions of strong feelings or high arousal. The cognitive processes involved in hot cognition may, in fact, be much more important for understanding why people[--especially youths-] make risky choices in real-life situations.¹⁵⁰

While adolescents' cognitive abilities to think and to reason may be comparable to adults', youths' interpersonal context, emotional responsivity, and inexperience affect the quality of their choices and behavior.¹⁵¹

While psycho-social development proceeds through a series of stages, decision-making competencies emerge unevenly rather than as a uniform increase in overall capacity, and young people use different reasoning processes in different task domains.¹⁵² Differences in language ability, knowledge, experience, and culture affect the ages at which youths' various competencies emerge.¹⁵³ Many characteristics of delinquent youths-lower intellectual ability, poverty, social disadvantage, and cultural isolation-further hamper cognitive development and competent legal decision-making.¹⁵⁴

A. Atkins, Adolescents, and Reduced Culpability

Atkins prohibited executing mentally retarded defendants because "their disabilities in areas of reasoning, judgment, and control of their impulses" prevented them from acting "with the level of moral culpability that characterizes the most serious adult criminal conduct."¹⁵⁵ Similarly, adolescents think qualitatively differently than adults, and their poor judgment, psycho-social immaturity, and truncated self-control also require a different criminal sentencing policy.¹⁵⁶ It is important to distinguish between cognitive competencies, which affect decision-making processes, and maturity of judgment, which affects the quality of decisions.

This is so because psycho-social developmental factors influence values and preferences, which in turn shape the cost-benefit calculus, which determines outcomes. The influence of these factors will change as the individual matures and values and preferences changeresulting in different choices.... [T]he intuition is that developmentally linked predispositions and responses systematically affect youthful decision making in ways that may lead to harmful choices.¹⁵⁷

While adolescents possess sufficient cognitive competency to justify some degree of punishment, psycho-social maturity of judgment and temperance provide a broader framework through which to assess their culpability.¹⁵⁸ Most youths lack the maturity of judgment characteristic of adulthood in a variety of areas--- perceptions of risk, appreciation of future consequences, capacity for self-management, and ability to make autonomous choices.¹⁵⁹ Their decision-making preferences and values are in a state of transition, and they are prone to make poorer judgments than they would make several years later.¹⁶⁰

Youths differ from adults in their breadth of experience, short-term versus long-term time perspective, attitude toward risk, impulsivity, and the importance they attach to peer influence.¹⁶¹ These differences are linked to developmental process and affect their qualities of judgment and ability to appreciate the consequences of their actions. These generic developmental differences justify a less punitive stance toward younger offenders, which allows them to survive the mistakes of adolescence.

1. Risky Behavior

Young people act more impulsively, exercise less self-control, more frequently fail adequately to calculate long-term consequences, and therefore engage in more risky behavior than do adults.¹⁶³ Risky behavior may be developmentally necessary for adolescents to acquire the skills needed to negotiate successfully the transition to adulthood.¹⁶⁴ Adolescents need to learn to function independently of parental caretakers.¹⁶⁵ Acquiring these skills entails certain characteristic behaviors such as "increases in peer-directed social interactions and elevations in novelty-seeking and risk-taking behaviors."¹⁶⁶

This developmental transition is disruptive and entails opportunities for growth as well as dangers. "Adolescents are risk takers. Relative to individuals at other ages, human adolescents as a group exhibit a disproportionate amount of reckless behavior, sensation seeking and risk taking ... "¹⁶⁷ Compared to adults, adolescents generally underestimate the magnitude or probability of risks, use a shorter time-frame, and focus on opportunities for gains rather than possibilities of losses.¹⁶⁸ The greater prevalence of accidents, suicides, and homicides as causes of death of the young reflects greater "risk-taking" behavior.¹⁶⁹ Criminal behavior is a particularly risky form of behavior, and every theory of crime attempts to account for its greater prevalence during adolescence.¹⁷⁰

Risk entails a chance of loss, as well as gain, and risky behavior exposes the actor to potential adverse consequences.¹⁷¹ A decisionmaker must identify possible outcomes, identify consequences that may follow from each option, evaluate the desirability of positive or negative results, estimate the likelihood of those various events occurring, and make a choice to optimize outcomes.¹⁷² Adolescents may approach these decision-making steps differently than adults when they engage in riskier behavior. Youths may possess or use different amounts of information when they make decisions.¹⁷³ Unlike informed consent studies conducted under laboratory conditions, in less-structured, real life circumstances, adolescents simply may know less about risks than do adults.¹⁷⁴ They may perceive fewer alternative options than do adults.¹⁷⁵ Young people may discount negative future consequences because they have more limited experience. Disadvantaged youths, in particular, may feel a sense of "futurelessness," fatalism, and despair, which inclines them to discount future consequences even more than do other teenagers.¹⁷⁶

Even when adolescents possess and use comparable information, they may assign different subjective values to the alternative consequences.¹⁷⁷ Youths may weigh benefits and consequences differently and discount negative future consequences in ways that skew the quality of their choices.¹⁷⁸ In some instances, youths simply may estimate negative consequences of risky behavior as having lower probabilities of occurring than do adults. In other cases, youths' subjective valuations of risks and consequences may cause them to make different choices than adults.¹⁷⁹ In addition, adolescents may weigh the consequences of not engaging in risky behaviors differently than adults.¹⁸⁰ Youths' unrealistic optimism and feelings of "invulnerability" and "immortality" further contribute to risk-taking behavior.¹⁸¹

A predisposition toward sensation-seeking inclines adolescents to seek exciting and novel activities. Risk-taking can be fun, and successful experiences may enhance self-esteem.¹⁸² Youths seek novelty and take risks as part of the process of separating from family and becoming autonomous.¹⁸³ They experience more difficulty controlling their impulses than do adults because of physiological changes, mood volatility, and predisposition toward sensation-seeking.¹⁸⁴ Youths engage in risky behavior for the excitement of the "adrenaline rush.¹⁸⁵ As a result of habituation, they may require more intense and novel stimuli to achieve the desired affect.¹⁸⁶ "[D]ecision-making sequences regarding risky behavior in adolescence cannot be fully understood without considering the role of emotions, with key aspects of these 'decision' processes involving interactions between thinking and feeling processes."¹⁸⁷ Adolescents' predisposition toward risk reflects generic developmental processes rather than malevolent personal choices.

2. Peer Group Influences

Atkins noted that mentally retarded offenders are followers in groups; similarly, adolescents also respond to peer group influences more readily than do adults.¹⁸⁸ Adolescents typically commit their crimes in a group context, and group-offending puts normally law-abiding youth at greater risk to commit crimes and reduces their ability publicly to withdraw.¹⁸⁹ The social setting of adolescent offending increases youths' difficulty with resisting peer pressure.¹⁹⁰ Indeed, adolescents' proclivity toward risk-taking and susceptibility to peer influences likely interact to produce even riskier behavior in a group setting.¹⁹¹ In some social contexts, youths' struggles to achieve autonomy and to define a social identity may require adherence to subcultural norms that provide powerful pressures to engage in criminal activity.¹⁹² Because of the social setting of youth crime, young people need time, experience, and opportunities to develop the ability to make independent judgments and to resist peer influence.¹⁹³ While an inability to resist peer pressure does not excuse criminal conduct, youths who have not yet learned to manage peer relations successfully are not as responsible for their behavior as we hold adults to be.¹⁹⁴

3. Communities and Dependence

Children depend on adults to care for them and to enable them to develop the capacity for positive behavior and moral action.¹⁹⁵ The ability to exercise self-control is the outcome of a socially constructed developmental process in which families, schools, and communities share responsibility.¹⁹⁶ Community structures affect the conditions within which young people grow, interact with peers, and experience the risks of criminal involvement.¹⁹⁷ Neighborhoods characterized by weak informal social controls provide greater opportunities for criminal activity and contribute to the higher crime rates in inner-city areas.¹⁹⁸

Community settings also affect youths' opportunities to learn and practice responsible behavior.¹⁹⁹ Unlike presumptively mobile adults, juveniles' dependency limits their ability to escape from criminogenic environments.²⁰⁰

4. Adolescent Brain and Neurobiology

Developmental psychologists consistently report differences between the thinking and behavior of children, adolescents, and adults. Recent neuroscience research suggests that these behaviors reflect more fundamental dissimilitude in brain development, biological maturation, and intellectual functioning.²⁰¹ In short, a "hard-science" explanation may exist for the "soft-science" observations of social scientists.²⁰² Neurobiological evidence suggests that the human brain does not achieve physiological maturity until the early twenties and that adolescents simply do not have the same physiologic capability as adults to make mature decisions or to control impulsive behavior.²⁰³

The frontal lobe comprises the largest portion of the brain, and the prefrontal cortex of the frontal lobe functions as the "chief executive officer" and controls most advanced cerebral functions.²⁰⁴ These "executive functions" include impulse control, reasoning, abstract thinking, imagining, planning behavior, and anticipating consequences.²⁰⁵ Brain maturation influences "affect regulation" and the ability to control emotions and behavior.²⁰⁶

Magnetic Resonance Imaging (MRI) studies provide cross-sectional images of the brain and enable neuroscientists to study longitudinal changes in brain structure and function.²⁰⁷ In the womb and during the first eighteen months of life, the human brain consists primarily of gray matter that is composed of neurons.²⁰⁸ A neuron is the basic nerve cell. Dendrites are branch-like protrusions from the neurons that receive electrochemical impulses from other nerve cell. Axons are transmitters to conduct electrochemical impulses from one neuron to the next.²⁰⁹ A process of myelination occurs in which the myelin, a fatty white substance, forms a sheath that surrounds and insulates the axons of certain neurons, gives it a white appearance, and allows for more rapid and efficient neurotransmission.²¹⁰ The brain transmits information through electrochemical impulses and myelination functions like insulation and enhances the speed of the electrochemical impulse.²¹¹

Although the human brain attains its adult weight by early childhood, during the first two decades, it undergoes separate processes of dendritic pruning or loss, and grey matter conversion into white matter through myelination. "[C]ortical grey and cerebral white matter volumes are quite dynamic throughout childhood," with a loss of grey volume and a corresponding gain in white volume associated with age.²¹² The neural connections or synapses that the brain uses are retained, or etched for specific sensory, motor, and intellectual functions, and those that are not exercised are shed and discarded or "pruned.,²¹³ During childhood and in early adolescence, the brain undergoes simultaneous processes of "pruning" and myelination.²¹⁴ In early childhood, the portions of the brain that receive sensory input-the occipital and parietal lobes-myelinate initially to transmit sensory information more efficiently to the temporal and frontal lobes.²¹⁵ During adolescence, the brain undergoes a second period of rapid "pruning" accompanied by further myelination.²¹⁶ The separate and distinct processes of pruning and myelination are critical to proper brain function because dendritic pruning affects cognitive functioning and reasoning ability, while myelin insulation affects the rapidity and quality of brain activity.²¹⁷ Because the process of myelination occurs approximately from the back of the brain to the front, the shift from gray matter to white matter in the frontal cortex and the corresponding abilities to process information quickly, to control behavior, and to suppress impulses develop more slowly, and maturation is completed only in the late teens and early twenties.²¹⁸ As a result, the portions of the adolescent brain that mediate sensory input and language functions mature earlier than the portions in the frontal lobe governing "executive functioning" capacities.²¹⁹

The part of the brain called the amygdala-the lymbic system located at the base of the brain-is responsible for instinctual or "gut reactions" such as "fight or flight."²²⁰ Functional magnetic resonance imaging reveals that teenagers rely more heavily than adults on the amygdala and less heavily on the prefrontal cortex when responding to stressful stimuli.²²¹ Thus, adolescent reactions to fear-evoking stimuli appear to be more instinctual responses rather than the product of cognitive processes.²²² One recent study of MRI imaging of adolescent brains reported that

[i]n regions of frontal cortex, we observed reduction in gray matter between adolescence and adulthood, probably reflecting increased myelination in peripheral regions of the cortex that may improve cognitive processing in adulthood.... Neuropsychological studies show that the frontal lobes are essential for such functions as response inhibition, emotional regulation, planning and organization. Many of these aptitudes continue to develop between adolescence and young adulthood.... Thus, observed regional patterns of static versus plastic maturational changes between adolescence and adulthood are consistent with cognitive development.²²³

Many adolescents' decisions about risky behavior appear to be more a function of "gut reactions" than of conscious thought processes.²²⁴ Just as organic features produce the developmental characteristics of mentally retarded defendants, similarly, the behaviors of adolescents may²²⁵ have a significant neurobiological component.

Although this section focuses primarily on deserved punishment and adolescents' reduced culpability, the Supreme Court in Atkins and Thompson noted that mentally retarded and younger offenders also were less susceptible than rational adult actors to the deterrent threat of capital punishment.²²⁶ Whether substantive changes in criminal law doctrines or liability produce any deterrent effect on criminal behavior remains controverted.²²⁷ However, all of the developmental characteristics that render adolescent offenders less culpable-- impaired judgment and reasoning, limited impulse control, and susceptibility to peer influences-- also reduce the likelihood that the threat of execution or draconian sentences will have any appreciable deterrent effect on younger offenders decisions to commit crimes.²²⁸

B. Atkins, Adolescents, and Adjudicative Competence

In addition to their reduced culpability, the Supreme Court in Atkins noted that the developmental disabilities of defendants with mental retardation also reduced their competence to stand trial and adversely affected the fairness and reliability of criminal proceedings.²²⁹ As states transfer more and younger offenders for adult prosecution, criminal courts increasingly encounter more youths whose immaturity and developmental limitations also pose difficult questions about their adjudicative competence.

In reaction to significant increases in the juvenile arrest rates for violent crimes in the late 1980s and early 1990s, virtually every state revised its transfer laws to prosecute more juveniles in criminal court.²³⁰ Changes in waiver statutes use offense criteria either as guidelines to control and limit judicial discretion, to guide prosecutorial charging decisions, or automatically to exclude serious offenses from juvenile court jurisdiction.²³¹ Changes in waiver laws reflect a cultural and legal reconceptualization of youths from innocent and dependent children to responsible, adult-like offenders, and criminal sentencing laws typically provide no formal recognition of youthfulness once states transfer a juvenile to criminal court.²³² When states try youths as adults, criminal court judges sentence them as if they are adults, imposing the same length sentences, sending them to the same prisons, and executing them for the crimes they committed as children.²³³

Waiver reforms that lower the age of transfer eligibility to fourteen years of age or even younger present criminal courts with many youths whose developmental immaturity, rather than-or in addition tomental illness, presents significant issues of adjudicative competence as well as diminished responsibility.²³⁴ The influx of more young juveniles into criminal courts raises questions about their ability to understand the trial process and to make critical legal decisions.²³⁵

Adjudicative competence refers to a person's ability to understand the nature and consequences of legal proceedings, to make decisions, and to assist counsel.²³⁶ A defendant must be able to understand the purpose of the trial process, to provide information to and process information from counsel, to reason appropriately, and realistically to apply that information to the legal situation she confronts.²³⁷ Competence is necessary to assure the legitimacy of the criminal process, to reduce the risk of erroneous convictions, and to protect the dignity and autonomy of the defendant.²³⁸ Because criminal courts employ a low standard of competence and threshold for criminal liability, recognizing the diminished responsibility of youth as grounds for mitigation of punishment becomes even more imperative.²³⁹

Typically, defendants' mental illness or developmental disability provides reasons to question their competence to stand trial and their ability to understand proceedings and to assist counsel.²⁴⁰ However, developmental immaturity also may render juveniles incompetent to stand trial.²⁴¹ Juveniles' questionable competence does not derive necessarily from mental illness or disability, but rather from generic developmental limitations which affect their ability to communicate, to reason and understand, and to exercise judgment and make sound decisions. Although a relaxed standard of competence may be appropriate for delinquents tried in juvenile court, youths tried in criminal court must demonstrate an adult standard of competence.²⁴²

While competence focuses primarily on the ability to understand and reason, youths' immaturity of judgment also affects their decisionmaking capability. Research evaluating adolescents' and young adults' competence to participate in their trials found significant differences in understanding and judgment.²⁴³ Most youths younger than thirteen or fourteen years of age lacked even basic competence either to understand or to meaningfully participate in their defense.²⁴⁴ Many youths younger than sixteen years of age lacked competence either to stand trial as adults or to make legal decisions without the assistance of counsel, and many older youths exhibited substantial impairment.²⁴⁵ Moreover, youths' limited time-perspective, emphasis on short-term versus long-term consequences, and concerns about peer approval cause them to make immature decisions relative to those of adults.²⁴⁶ One recent study reported that:

[A]pproximately one fifth of 14- to 15-year-olds are as impaired in capacities relevant to adjudicative competence as are seriously mentally ill adults who would likely be considered incompetent to stand trial by clinicians who perform evaluations for courts.... Not surprisingly, juveniles of below-average intelligence are more likely than juveniles of average intelligence to be impaired in abilities relevant for competence to stand trial. Because a greater proportion of youths in the juvenile justice system than in the community are of below-average intelligence, the risk for incompetence to stand trial is therefore even greater.²⁴⁷

Atkins noted that the disabilities of mentally retarded defendants adversely affected their competence to stand trial, reduced the assistance they could provide to their lawyers, and impaired their demeanor and effectiveness as witnesses.²⁴⁸ Atkins also found that mental retardation exposed such defendants to the dangers of erroneous convictions because of their greater susceptibility to interrogation techniques and the concomitant dangers of false confessions.²⁴⁹ The same concerns about the dangers of erroneous convictions exist with respect to the competence of adolescents.²⁵⁰ Juveniles' diminished understanding of rights, confusion about trial processes, limited language skills, and inadequate decision-making abilities increase their vulnerability to interrogation tactics and their likelihood of giving false confessions.²⁵¹

Juveniles are less able than adults to exercise their Miranda rights and exhibit a significant tendency to comply with authority, such as by confessing to police.²⁵²

When the Supreme Court in In re Gault applied the privilege against self incrimination to delinquency proceedings,²⁵³ the "warning" safeguards developed in Miranda v. Arizona²⁵⁴ became available to juveniles. Courts evaluate juveniles' waivers of Fifth Amendment rights and the voluntariness of any confessions by assessing whether the they made a "knowing, intelligent, and voluntary" waiver under the "totality of the circumstances.²⁵⁵ Even before Miranda and Gault, the Supreme Court had cautioned trial judges to closely scrutinize the impact of youthfulness and inexperience on the validity of waivers and the voluntariness and reliability of confessions.²⁵⁶ However, the Court in Fare v. Michael C. retreated from its earlier concern that youthfulness might increase suggestibility and vulnerability to coercion²⁵⁷ and endorsed the adult "totality of the circumstances" test as the standard by which to evaluate the admissibility of juvenile confessions.²⁵⁸ The "totality" approach provides trial judges with discretion to protect youths who lack capacity or who succumb to police coercion without unduly limiting police ability to interrogate juveniles.²⁵⁹

Fare declined to give children greater procedural protection than adults.²⁶⁰ Instead, the Court insisted that children must invoke their legal rights with adult-like technical precision and denied that young people lacked the ability to exercise or validly waive their rights.²⁶¹ The Court explicitly rejected the view that developmental or psychological differences between juveniles and adults required different rules or special procedural protections during interrogation.²⁶²

Despite Fare's endorsement of the "totality" approach, reasons exist to question whether a typical juvenile can waive her rights in a "knowing, intelligent, and voluntary" manner. Evaluation studies indicate that most juveniles who receive a Miranda warning do not understand it well enough to exercise or waive their rights²⁶³ Juveniles most frequently misunderstood the advisory that they had the right to consult with an attorney and to have one present during interrogation.²⁶⁴ Younger juveniles exhibited even greater difficulties understanding their rights.

As a class, juveniles younger than fifteen years of age failed to meet both the absolute and relative (adult norm) standards for comprehension .... The vast majority of these juveniles misunderstood at least one of the four standard Miranda statements, and compared with adults, demonstrated significantly poorer comprehension of the nature and significance of the Miranda rights.²⁶⁵

Although younger juveniles exhibited significantly poorer comprehension than did comparable adults, the level of understanding by youths sixteen and older, although more similar to that of adults, left much to be desired.²⁶⁶ Even if juveniles abstractly understand the words of the Miranda warning, they may not appreciate the significance and function of their rights.²⁶⁷ Research conducted under laboratory conditions may fail to capture the social context and stressful conditions associated with actual police interrogation.²⁶⁸

Adolescents have difficulty grasping the basic concept of a "right"²⁶⁹ as an entitlement that they can exercise without adverse consequences. Children question whether law enforcement officials will punish them if they exercise their rights.²⁷⁰ Societal expectation of youthful obedience to authority and youths' inferior social status relative to adults render juveniles more vulnerable to police interrogation techniques.²⁷¹ Many people from traditionally disempowered communities, such as females, African-Americans, and youth, pragmatically use indirect speech patterns to avoid conflict when dealing with authority figures.²⁷² People with lower social status than their interrogators typically respond more passively, talk more readily, acquiesce to police suggestions more easily, and speak less assertively.²⁷³ Thus, Fare's requirement that youths invoke Miranda rights with adult-like precision contradicts the normal social reactions and verbal styles of most delinquents.

Juveniles' lack of understanding and vulnerability to coercion raise questions about the adequacy of the Miranda warning as a procedural safeguard to prevent youths from giving unreliable or false confessions.²⁷⁴ Deceptive interrogation techniques may be especially effective when employed against the young and inexperienced.²⁷⁵ Interrogation tactics such as presenting false evidence, using leading questions, and adopting police interpretations are more likely to induce juveniles to give false or inaccurate confessions than adults.²⁷⁶ The coercive context of interrogation and youths' limited understanding and verbal skills render young offenders more likely to comply with authority, to acquiesce in police interpretations, to fill in gaps through fabrication, to tell police what they think they want to hear, and to give unreliable and false confessions.²⁷⁷ Immaturity and suggestibility increase the likelihood of false confessions.²⁷⁸ Youths are also less able than adults to think strategically and to appreciate the consequences of admissions, and are more likely than adults to assume responsibility out of a misguided feeling of loyalty to peers.²⁷⁹ Aggressive questioning by police further increases the likelihood of false confessions, and instances abound of juveniles confessing to homicides and other serious crimes that they did not commit.²⁸⁰ Although younger offenders are at greatest risk, even older youths evidence a heightened risk of giving false confessions.²⁸¹ Juveniles' lack of competence and vulnerability to coercive interrogation increase the risks of false confessions and erroneous convictions.

IV. YOUTH POLICY AND CRIME POLICY: CAPITAL PUNISHMENT AND LWOP SENTENCES

Youths' immature judgment, limited self-control, and inability to appreciate fully the consequences of their behavior reduce their degree of criminal responsibility and deserved punishment. While young offenders possess sufficient understanding and culpability to hold them accountable for their acts, their crimes are less blameworthy than those of adults, justifying a categorically different sentencing policy.²⁸² Similarly, youths' diminished adjudicative competence increases the likelihood of false confessions and erroneous convictions. The Court's reasoning in Atkins and the analogous developmental limitations of adolescents should ban imposition of the death penalty. Penal proportionality and the reduced culpability of youth also should preclude sentences of Life Without Parole (LWOP) and even of lengths equivalent to those of adult offenders. As a matter of sentencing policy, there is no principled basis on which to distinguish between the diminished responsibility of youth that precludes the death penalty and the reduced culpability that warrants shorter sentences for all serious crimes.²⁸³ And, it is the reality of draconian sentences, rather than the risk of execution, that faces far more irresponsible young offenders.

The case of Lionel Tate graphically illustrates the hazards of disproportionality and adjudicative incompetence when states try young offenders as adults in criminal court. The grand jury indicted twelve-year-old Tate for first-degree murder for the brutal injuries he inflicted on a six-year-old girl.²⁸⁴ Under Florida's waiver law,²⁸⁵ Tate's indictment for a capital crime required the state to prosecute him as an adult, and his conviction of first degree murder required the judge to impose a mandatory sentence of life in prison without parole.²⁸⁶ The Florida Court of Appeals reversed his conviction, holding that the trial judge should have conducted a competency hearing to determine whether Tate understood the consequences of proceeding to trial and whether he was able to assist counsel prior to and during the trial.²⁸⁷ However, it rejected Tate's contention that imposing a mandatory LWOP sentence on a twelve-year-old child was disproportionate or constituted "cruel and unusual punishment."²⁸⁸

For two decades the Supreme Court has struggled with the question of whether the Eighth Amendment's prohibition on cruel and unusual punishment contains a "narrow proportionality principle" that "applies to noncapital sentences."²⁸⁹ The Court in Rummel v. Estelle²⁹⁰ held that it did not violate the Eighth Amendment for a State to sentence a three-time offender to life in prison with the possibility of parole.²⁹¹ Subsequently, in Solem v. Helm²⁹² the Court held that the Eighth Amendment prohibited a sentence of "life without possibility of parole" for a repeat offender convicted of a minor property crime.²⁹³ Solem identified three factors that a court must consider to determine whether a sentence is so disproportionate that it violates the Eighth Amendment: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions."²⁹⁴ However, in Harmelin v. Michigan²⁹⁵ a fractured Court rejected a proportionality challenge and upheld a sentence of life without possibility of parole for a first-time offender convicted of a drug offense.²⁹⁶

In his concurrence in Harmelin, Justice Kennedy asserted that "[t]he Eighth Amendment proportionality principle also applies to noncapital sentences."²⁹⁷ His concurrence has emerged as the operative test for disproportionality and holds that the Eighth Amendment prohibits "only extreme sentences that are 'grossly disproportionate' to the crime."²⁹⁸ While conceding that the contours of the proportionality principle are unclear, Kennedy identified four factors-- the primacy of legislative judgments about penalties, the multiplicity of legitimate penal objectives, the limited role for federal oversight of state sentencing schemes, and the requirement that objective factors inform federal proportionality review-- to enable a court to determine whether a penalty is "grossly disproportionate."²⁹⁹ Recently, the Court in Ewing v. California³⁰⁰ upheld the imposition of a sentence of twenty-five years to life under California's "three-strike" sentencing statute for the theft of three golf clubs.³⁰¹

Given the imprecision of the Supreme Court's interpretation of the proportionality principle in noncapital cases, courts have struggled with its application to LWOP sentences imposed on juvenile offenders.³⁰² Although proportionality emphasizes the relationship between the seriousness of the crime and the sentence imposed, courts focus almost exclusively on the gravity of the crime rather than the culpability of the actor who caused the harm when they assess seriousness.³⁰³ In Harris v. Wright,³⁰⁴ Judge Alex Kozinski rejected Harris' Eighth Amendment challenge to a mandatory LWOP sentence imposed on a fifteen-year-old convicted of murder.³⁰⁵ Kozinski emphasized that proportionality analyses are strictly circumscribed to instances of "gross disproportionality"³⁰⁶ and insisted

Youth has no obvious bearing on this problem: If we can discern no clear line for adults, neither can we for youths. Accordingly, while capital punishment is unique and must be treated specially, mandatory life imprisonment without parole is, for young and old alike, only an outlying point on the continuum of prison sentences. Like any other prison sentence, it raises no inference of disproportionality when imposed on a murderer.³⁰⁷

By emphasizing only the gravity of the offense and the harm caused, rather than the culpability of the offender, courts engage in circular reasoning-serious crimes are serious-and thereby exclude considerations of moral blameworthiness from the proportionality inquiry.³⁰⁸

Although Stanford established sixteen as the minimum age at which states can impose the death penalty, for noncapital sentencing, the Court has not set any minimum age for imposing sentences of life without parole on younger offenders.³⁰⁹ Youthfulness may be a relevant factor, albeit not a controlling one, when courts assess culpability.³¹⁰ However, courts only conduct proportionality analyses when sentences are "grossly disproportionate" to the seriousness of the crime rather than to the culpability of the criminal. They routinely uphold LWOP and other very lengthy sentences imposed on very young offenders and rebuff claims that youthfulness is a mitigating factor that should trump mandatory sentences.³¹¹ Indeed, for some perverse reasons, courts may treat youthfulness as an aggravating, rather than mitigating, factor.³¹²

Although it reversed the trial court on competency grounds, the appellate court in Tate v. State "reject[ed] the argument that a life sentence without the possibility of parole is cruel or unusual punishment on a twelve-year-old child."³¹³ In State v. Green,³¹⁴ the North Carolina Supreme Court approved a mandatory sentence of life imprisonment imposed on a thirteen-year-old convicted of a first-degree sexual offense.³¹⁵ The Green court noted that many states transfer very young offenders to criminal court for adult prosecution,³¹⁶ that age is a factor that may be considered but is not dispositive "in determining whether a punishment is grossly disproportionate to the crime,"³¹⁷ and that retribution and incapacitation are appropriate sentencing goals even for young offenders.³¹⁸ In Hawkins v. Hargett,³¹⁹ the Tenth Circuit Court of Appeals approved sentences totaling 100 years for burglary, rape, and robbery imposed on a juvenile for crimes committed when he was thirteen years of age.³²⁰ State courts routinely approve sentences of life-- with or without possibility of parole-- or for extremely long periods of time imposed on thirteen-, fourteen-, or fifteen-year-old youths, whether those youths were convicted of murder or other crimes.³²¹ Few courts ever invalidate lengthy sentences imposed on young offenders for being disproportional.³²²

A. Youthfulness as a Mitigating Factor in Sentencing

The Constitution does not require state legislatures to recognize or courts to implement a principle of youthfulness as a mitigating factor in sentencing except for the death penalty. The Court never has read the Eighth Amendment to preclude imposition of an LWOP sentence on a twelve-year-old. However, regardless of what the Constitution requires, state legislators and courts should explicitly adopt and apply such a principle as part of a fair and just youth sentencing policy. As a matter of crime policy, youths' developmentally diminished responsibility and limited adjudicative competence render them less culpable than adult offenders; as a matter of youth policy, adolescence is a period of rapid growth and transition, and youths are "works in progress" who have not yet become the people they will be as adults.³²³ Youths learn by doing, make mistakes as a by-product of gaining experience, and need protection from the worst consequences of their immature judgment.³²⁴ Youths have a different developmental trajectory from mentally retarded offenders, and with normal maturation they eventually can learn to act responsibly.

A youth and crime policy must manage the risks that youths pose to themselves and to others, and reduce the harm that the justice system inflicts on them as they make the transition to adulthood. A policy to preserve young people's life chances for the future when they will be able to make more responsible choices must protect them from the full penal consequences of their present poor decisions. It holds them accountable because they are somewhat culpable and yet mitigates the severity of sentences because their choices entail less blameworthiness than do those of adults.³²⁵

Penal proportionality dictates shorter sentences for youth because of diminished responsibility. While criminal law presumes autonomous choices by free-willed actors, adolescents have not yet acquired experience, self-control, and maturity of judgment to validate such a presumption. Even if a youth is criminally responsible for causing a particular harm, the law should not treat her choices as the moral equivalents of an adult's and impose the. same sentence.³²⁶ Political sound-bites---"Adult crime, adult time," or "Old enough to do the crime, old enough to do the time"-- provide simplistic answers to complex moral and legal questions.

Youths' normal tendency to make poor decisions reveals less about their subjective character and blameworthiness than do the criminal choices that adults make.³²⁷ Youth is a time of experimentation and exploration, and youths' character remains somewhat unformed and malleable.³²⁸ Like other forms of risky behavior, most adolescent criminality is transitional and normal, and does not indicate a serious commitment to a criminal career.³²⁹ Penal policy should recognize the rapidity and volatility of development during adolescence and avoid draconian sanctions.³³⁰

A protective youth policy would avoid life destructive consequences and provide young people with "room to reform."³³¹ Youth is a period of "semi-autonomy," exploration, and risk taking and teenagers require a "learner's permit" to learn to make responsible choices without suffering fully for the consequences of their mistakes. The ability to make responsible choices is learned behavior and adolescence is the period during which youths learn to control their impulses and to exercise self-control.³³² Unlike the defendants in Atkins, juveniles can learn to be responsible, and youth and crime policy should provide them with that opportunity.

A youth sentencing policy would impose shorter sentences than for older offenders simply because of juveniles' immaturity and diminished culpability. Youths' diminished responsibility has broader sentencing policy implications than just prohibiting their execution. Although the Court's proportionality analyses focus on the death penalty, the principle of youthful reduced culpability should mitigate the severity of all penalties-capital, LWOP, mandatory minimum, and sentence lengths. Formal mitigation of punishment based on youthfulness applies equally to capital and noncapital sentences and recognizes reduced culpability without excusing criminal conduct.³³³

Adolescents as a class characteristically make poorer choices than do adults because of normal physical, neurobiological, psychological, and developmental processes. As the Supreme Court repeatedly has recognized,

youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly "during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment" expected of adults.³³⁴

A sentencing policy that recognizes this simple, developmental truism would protect young people from the full consequences of their bad decisions.³³⁵

B. Youthfulness as an Individualized or Categorical Mitigating Factor: The Virtue of Bright-lines

Atkins, Thompson, and Stanford hinged, in part, on whether judges and juries should decide questions of culpability and mitigation on an individual or categorical basis. Sentencing laws typically eschew categorical bright-lines and consider questions of mitigation individually, and, in non-capital cases, trial judges, rather than juries, typically make sentencing decisions.³³⁶ For example, courts ordinarily evaluate youthfulness not simply in chronological terms, but as part of a broader inquiry into maturity, culpability, and blameworthiness.³³⁷ However, in Bryant v. State,³³⁸ the Court of Appeals of Maryland concluded that while non-chronological factors are relevant to an adult capital defendant's degree of maturity and experience,

the closer his or her chronological age is to the eighteen year old baseline... [the more] such factor alone tends to support the establishment of immaturity and inexperience and, hence, triggers the need to consider youthful age as a mitigator. Thus, youthful age as a mitigating circumstance is determined, in the first instance, by the chronological age of the defendant, abiding evidence of atypical or unusual maturity and experience that bears on the weight to be accorded that mitigator in the ultimate weighing.³³⁹

While other factors may provide evidence of maturity and experience, the closer a youth is to the minimum age of adult responsibility, the greater the weight the court should assign to it as a mitigating factor.340

The crucial question is whether to treat youths' developmental disabilities categorically or to try to gauge culpability individually. Both reliability and efficiency dictate treating youthfulness categorically. Optimally, legal line-drawing classifies all members of a class who possess a certain characteristic on one side and those without that characteristics on the other. Given human variability and measurement error, every classification necessarily involves some risk of treating similar cases dissimilarly. Death penalty decisions, for example, attempt to distinguish defendants who are less culpable from those who do deserve to receive the death penalty.³⁴¹ Stanford regarded age as an imperfect indicator of diminished criminal responsibility, and allowed states and juries to individualize culpability assessments and to identify those few juveniles who were as blameworthy as death-eligible adults.³⁴² In this instance, however, a bright-line rule based on age is preferable to a system of guided discretion because in balancing the risks of error, a rule that erroneously spares the life of an occasional, potentially culpable adolescent still will produce less aggregate injustice than a discretionary system that improperly finds more undeserving youths death-eligible.

Penal proportionality requires a rough equivalency between a defendant's culpability and the punishment imposed.³⁴³ Adolescents' reduced criminal responsibility represents a normative valuation about deserved punishment rather than a technical legal judgment about whether a particular youth possessed the mens rea defined in the criminal statute.³⁴⁴ Despite the judicial and legislative preference to individualize, a sentencing policy that integrates youthfulness, reduced culpability, and penal proportionality should provide all younger offenders with categorical reductions of adult sentences.³⁴⁵ Treating youthfulness as a formal mitigating factor represents a social, moral, and criminal policy judgment about diminished culpability rather than an individualized clinical or psychiatric evaluation and asserts that no adolescent deserves to be executed or sentenced as severely as an adult.³⁴⁶

There are two reasons to prefer bright-lines to discretionary judgments and to treat youthfulness as a categorical mitigating factor. The first is the inability reliably and efficiently to identify "maturity" and adult-like culpability among offending youths.³⁴⁷ The second is the inevitable tendency to subordinate abstract considerations of youthfulness to the reality of a horrific crime.³⁴⁸ Procedural safeguards and individualized assessments are inadequate to achieve either objective. Of course, youthful development is highly variable and a few youths may be mature and blameworthy prior to becoming eighteen years of age while many others will not have attained maturity even as young adults.³⁴⁹ The question is whether clinical tools or objective indicators exists with which to distinguish young offenders with culpability equivalent to that of the most culpable adults from the much larger subset of young offenders lacking such culpability. Because the vast majority of youths below age eighteen lack the culpability of adults, efforts to identify those few who may be fully responsible will founder on the inherent difficulties of defining, much less measuring, immaturity and will introduce a systematic bias that will redound to the disadvantage of the many less-blameworthy youths.³⁵⁰ A bright-line approach avoids the greater risk of error inherent in discretionary culpability assessments.³⁵¹ Categorical treatment of all youths that approximately corresponds to their developmental characteristics reduces the risk of error of punishing the less culpable as severely as if they were responsible adults.³⁵² Although some offenders older than age eighteen also may lack the criminal responsibility we ascribe to adults, age eighteen provides a natural legal divide because so many other competence-related rules already draw the line there.

Youthful mitigation represents a legal construct and a normative judgment about deserved punishment that does not correspond with any psychiatric diagnosis or developmental analogue about which an expert could usefully testify.³⁵³ Unlike the insanity defense which exculpates because a mental disease impairs reason and self-control,³⁵⁴ youthfulness as a mitigating factor does not require the sentencing authority to decide whether antecedent forces, such as a mental illness, caused the youth's behavior. Rather, it conclusively presumes that young people's criminal choices are inherently constrained and differ qualitatively from those of adults.

The Supreme Court in Atkins categorically barred executing defendants with mental retardation, but then remitted to the states the most difficult tasks of developing the clinical indicators and procedures with which to identify those defendants whom its rule protected. By contrast, a categorical mitigation of sentences for youthfulness requires only a birth certificate to prove age and eligibility for mitigation. A "youth discount" provides fractional reductions of sentences based on age-as-a-proxy-for culpability.³⁵⁵ It provides a reasonable and objective basis for mitigation that avoids the conceptual and administrative difficulties of more subjective and individualized defenses-diminished responsibility,³⁵⁶ "rotten social background,"³⁵⁷ "social toxin,"³⁵⁸ and "social adversity"³⁵⁹-- that assert external determinants or deficiencies of character excuse or mitigate the degree of criminal liability.

Shorter sentences recognize that young offenders' choices differ qualitatively from those of adults and enable them to survive their serious mistakes with a semblance of life chances intact.³⁶⁰ They also recognize that the same-length sentences impose a greater "penal bite" on younger offenders than they do on their older counterparts.³⁶¹ A formal mitigation of punishment based on youthfulness avoids inflicting disproportionately harsh penalties on less culpable offenders without excusing their criminal conduct.

Youthfulness constitutes a categorical form of diminished responsibility because young people as a group make choices that differ qualitatively from those of adults. States should adopt an explicit "youth discount" in sentencing based on the idea of a sliding scale of criminal responsibility.³⁶² The research evidence is strongest that the maturity of judgment and adjudicative competence of the youngest adolescents is qualitatively lower than that of typical adult offenders. As a result, a fourteen-year-old offender might receive a sentence that was twenty-five percent of the length of the adult penalty, a sixteen-year-old defendant would receive one that was half as long as an adult sentence, and an eighteen-year-old adult would receive the full penalty as presently occurs. The particulars of the "discount rate" reflect youth and crime policy judgments about the extent to which adolescents differ from adults socially and developmentally, and to what degree those factors deserve categorical mitigated consideration. The deeper discounts for younger offenders correspond to their greater developmental limitations and their more limited opportunities to learn to exercise self-control.³⁶³ Because reduced culpability provides the rationale for youthful mitigation, younger adolescents bear less responsibility and deserve proportionally shorter sentences than older youths.

V. CONCLUSION

The deficits in adaptive social skills that defined mental retardation in Atkins-reduced abilities to understand and use information, to engage in logical reasoning, to control impulses, and to resist peer pressures-are features of normal adolescents. Because adolescents manifest reduced criminal responsibility as a result of normal developmental processes, the Court should use Roper v. Simmons to revisit Stanford and correct its error. Both empirically and normatively, the two categories of offenders are legally and morally indistinguishable, and the Court should endorse a categorical prohibition on executing juveniles.

Reconsidering the applicability of the death penalty for juveniles provides an opportunity to think more comprehensively about adolescent criminal responsibility and adjudicative competence. Once the Court recognizes that adolescents possess less criminal culpability than do ordinary adult offenders simply because they are young and immature, then no reason exists to restrict this principle to only capital sentences. Although the Court has resisted extending constitutional proportionality principles to noncapital sentencing out of concerns for federalism and deference to legislative autonomy, state courts and legislatures should formally recognize youthfulness as a categorical mitigating factor in all criminal sentencing statutes. The quality of youths' judgments differs qualitatively from that of adults' and bears directly on their degree of criminal responsibility. Youths have a very different developmental trajectory than defendants with mental retardation and are better able to learn from their mistakes and to learn to act more responsibly in the future. In addition, a successful transition to adulthood requires youths to learn to be responsible even though they sometimes will make serious errors of judgment. Sound youth policy and crime policy support formally recognizing youthfulness as a mitigating factor in sentencing.

Finally, states should set a minimum age of eligibility for criminal prosecution at no less than fifteen or sixteen years of age. The substantial body of developmental research on adolescent immaturity and adjudicative competence indicates that most fourteen- to sixteen-year-old youths are substantially impaired relative to adults and lack adjudicative competence. Trying and sentencing such youths as adults increases the likelihood of erroneous convictions and undermines the legitimacy of the criminal justice system. Ultimately, public officials and policy makers have to recognize that the same principle that prevails in every other legal domain also applies to youths who commit crimes kids are different.

Summary

The criminal justice system's foundation rests on the principle of proportionality, which dictates a balance between the gravity of the harm, the culpability of the offender, and the severity of the punishment. While the Supreme Court has primarily focused on the offense's seriousness and recidivism in noncapital cases, its death penalty jurisprudence emphasizes individualized culpability assessments before imposing the ultimate penalty.

This article argues that the Court's culpability analyses in Atkins v. Virginia, which barred states from executing mentally retarded defendants, are equally applicable to the execution of adolescents. The article analyzes the Atkins decision, exploring its empirical and normative justifications, and compares them with the developmental characteristics of adolescents. It further discusses the implications of this rationale for sentencing all younger offenders in criminal courts.

The author contends that the Court's decision in Stanford v. Kentucky, upholding the death penalty for youths aged sixteen or seventeen, is inconsistent with the more enlightened appraisal of culpability in Atkins. The article argues that the Court should revisit Stanford and prohibit states from executing youths for crimes committed when they were sixteen or seventeen years old. Furthermore, the author advocates for a bright-line approach in sentencing, acknowledging the generic culpability differences between adolescents and adults, and emphasizing that categorical treatment of penal proportionality reduces the risk of error and injustice in sentencing.

I. CULPABILITY, MENTAL RETARDATION, AND ATKINS

The Supreme Court has interpreted the Eighth Amendment's prohibition against "cruel and unusual punishment" to preclude sentences that are excessive, fail to contribute to the penal goals of retribution and deterrence, and violate "evolving standards of decency." For over two decades, the Court has required state death penalty statutes to channel jury discretion and consider the defendant's circumstances.

The Supreme Court in Penry v. Lynaugh held that the Eighth Amendment did not categorically bar the execution of mentally retarded criminal defendants. The Court looked to state statutes as "objective evidence of how our society views a particular punishment today" and found that only two states and the federal government prohibited the execution of mentally retarded offenders. While Penry failed to demonstrate "sufficient evidence at present of a national consensus" against executing mentally retarded defendants, the Court acknowledged that "a national consensus against execution of the mentally retarded may someday emerge."

Thirteen years later, the Court in Atkins v. Virginia reconsidered its decision in Penry and found that a national consensus had emerged, holding that executing mentally retarded defendants categorically violated the Eighth Amendment. The Court relied on both empirical evidence and normative judgments to support its conclusion that executing mentally retarded offenders violated "evolving standards of decency." It relied on objective indicators of a national consensus, such as state laws and jury practices. The justices also relied on their own judgments about diminished culpability and deserved punishment to support their proportionality determination.

In its empirical analysis, the Court surveyed the trend of states' laws on the execution of retarded offenders. The Court attributed the states' emerging legislative consensus to the normative recognition that mentally retarded defendants are less culpable or deserving of retributive punishment and less susceptible to the deterrent threat of execution than ordinary offenders. Atkins examined the penal functions presumably served by the death penalty -- retribution and deterrence --and concluded that executing a mentally retarded defendant accomplished neither goal.

The Court relied on several professional definitions of mental retardation to identify the clinical characteristics that reduced the criminal responsibility and hampered the adjudicative competence of defendants with mental retardation. The Court found that defendants with mental retardation, due to their disabilities, had diminished capacities to understand and process information, communicate, engage in logical reasoning, control impulses, and understand the reactions of others. The Court concluded that while these deficiencies did not warrant an exemption from criminal sanctions, they did diminish their personal culpability.

II. CULPABILITY, ADOLESCENCE, AND THE RATIONALE OF THOMPSON AND STANFORD

Characteristics that reduce the culpability of mentally retarded offenders, such as susceptibility to peer influences, a propensity to act impulsively without thinking about consequences, and immaturity of judgment, have relevance to the criminal responsibility of adolescents.

In Thompson v. Oklahoma, the Court analyzed the criminal responsibility of youths older than the common law infancy threshold of age fourteen. A four-justice plurality held that the Eighth Amendment categorically precluded executing youths who were fifteen years of age or younger at the time they committed their offense. The Court looked to both objective indicators of "evolving standards of decency" and to the justices' own subjective sense of "civilized standards of decency." The Court concluded that executing offenders who committed their crimes before they turned sixteen-years-old was generally abhorrent to the conscience of the community.

The plurality concluded that "a young person is not capable of acting with the degree of culpability that can justify the ultimate penalty," and vacated Thompson's capital sentence. The justices asserted that "adolescents as a class are less mature and responsible than adults." Even though youths may inflict blameworthy harms, their choices evidence less culpability than do those of adults. The plurality concluded that categorically exempting younger adolescents from the death penalty would not erode the retributive and deterrent justifications for capital punishment.

The following year, in Stanford v. Kentucky, the Court upheld the death penalty for youths who were sixteen or seventeen at the time of their offenses. While Stanford recognized that juveniles as a class possess less culpability than do adult offenders, the Court's decision rested on the narrow grounds that no clear national consensus existed that such executions violated "evolving standards of decency." The Court rejected a categorical ban on all such executions because it regarded at least some older adolescents as capable of acting with the culpability necessary to justify the death penalty.

A. The Empirical Foundation of Stanford

Atkins relied on legislative changes and jury behavior as empirical evidence to prohibit states from executing mentally retarded defendants. In the decade and a half since Stanford, several state supreme courts have barred the execution of youths under eighteen, or at least under seventeen years of age. In Simmons v. Roper, the Missouri Supreme Court applied the Supreme Court's Atkins analysis to prohibit execution of a youth for a crime committed at seventeen years of age.

The Missouri Supreme Court found that, in the fourteen years since Stanford was decided, a national consensus had developed against the execution of juvenile offenders, as demonstrated by the fact that eighteen states now bar such executions for juveniles, that twelve other states bar executions altogether, that no state has lowered its age of execution below 18 since Stanford, that five states have legislatively or by case law raised or established the minimum age at 18, and that the imposition of the juvenile death penalty has become truly unusual over the last decade.

Significantly, the Missouri Supreme Court based its decision on federal constitutional grounds and found that "the Supreme Court would today hold that such executions are prohibited by the Eighth and Fourteenth Amendments." By ruling on the federal, rather than state, constitution, Simmons frontally challenged the continuing vitality of Stanford.

III. ATKINS AND ADOLESCENTS RECONSIDERED: COMPETENCE AND CULPABILITY

The developmental limitations that reduce the culpability of mentally retarded offenders characterize most normal adolescent offenders as well. When states punish young offenders, they assume that adolescents possess sufficient cognitive capacity and volitional controls to hold them responsible and accountable for their criminal behavior. However, even criminally responsible young offenders deserve less severe penalties than do mature offenders. Applying the same principle of diminished responsibility in the criminal law requires a categorical ban on executing youths and shorter sentences for youths than for adults convicted of the same offenses.

Deserved punishment entails condemnation for making blameworthy choices and imposes proportional sentences commensurate with the seriousness of the offense. Two elements define the seriousness of a crime: harm and culpability. An offender's age has little bearing on assessments of harm but youthfulness and immaturity bear quite directly on the quality of choices, the culpability of the actor, and the moral seriousness of the crime.

Criminal responsibility and moral blameworthiness hinge on cognitive and volitional competence. In a framework of deserved punishment, it is unjust to impose the same penalty on offenders who do not possess comparable culpability. Younger offenders are not as blameworthy as adults because they have not yet fully internalized moral norms, developed sufficient empathic identification with others, acquired adequate moral comprehension, or had sufficient opportunity to learn to control their actions. In short, they possess neither the rationality-- cognitive capacity-- nor the self-control-- volitional capacity-- to justify equating their criminal responsibility with that of adults.

A. Atkins, Adolescents, and Reduced Culpability

Atkins prohibited executing mentally retarded defendants because "their disabilities in areas of reasoning, judgment, and control of their impulses" prevented them from acting "with the level of moral culpability that characterizes the most serious adult criminal conduct." Similarly, adolescents think qualitatively differently than adults, and their poor judgment, psycho-social immaturity, and truncated self-control also require a different criminal sentencing policy.

While adolescents possess sufficient cognitive competency to justify some degree of punishment, psycho-social maturity of judgment and temperance provide a broader framework through which to assess their culpability. Most youths lack the maturity of judgment characteristic of adulthood in a variety of areas--- perceptions of risk, appreciation of future consequences, capacity for self-management, and ability to make autonomous choices. Their decision-making preferences and values are in a state of transition, and they are prone to make poorer judgments than they would make several years later.

Youths differ from adults in their breadth of experience, short-term versus long-term time perspective, attitude toward risk, impulsivity, and the importance they attach to peer influence. These differences are linked to developmental process and affect their qualities of judgment and ability to appreciate the consequences of their actions. These generic developmental differences justify a less punitive stance toward younger offenders, which allows them to survive the mistakes of adolescence.

1. Risky Behavior

Young people act more impulsively, exercise less self-control, more frequently fail adequately to calculate long-term consequences, and therefore engage in more risky behavior than do adults. Risky behavior may be developmentally necessary for adolescents to acquire the skills needed to negotiate successfully the transition to adulthood. Adolescents need to learn to function independently of parental caretakers. Acquiring these skills entails certain characteristic behaviors such as "increases in peer-directed social interactions and elevations in novelty-seeking and risk-taking behaviors."

This developmental transition is disruptive and entails opportunities for growth as well as dangers. "Adolescents are risk takers. Relative to individuals at other ages, human adolescents as a group exhibit a disproportionate amount of reckless behavior, sensation seeking and risk taking ... " Compared to adults, adolescents generally underestimate the magnitude or probability of risks, use a shorter time-frame, and focus on opportunities for gains rather than possibilities of losses. The greater prevalence of accidents, suicides, and homicides as causes of death of the young reflects greater "risk-taking" behavior. Criminal behavior is a particularly risky form of behavior, and every theory of crime attempts to account for its greater prevalence during adolescence.

Risk entails a chance of loss, as well as gain, and risky behavior exposes the actor to potential adverse consequences. A decisionmaker must identify possible outcomes, identify consequences that may follow from each option, evaluate the desirability of positive or negative results, estimate the likelihood of those various events occurring, and make a choice to optimize outcomes. Adolescents may approach these decision-making steps differently than adults when they engage in riskier behavior. Youths may possess or use different amounts of information when they make decisions. Unlike informed consent studies conducted under laboratory conditions, in less-structured, real life circumstances, adolescents simply may know less about risks than do adults. They may perceive fewer alternative options than do adults. Young people may discount negative future consequences because they have more limited experience. Disadvantaged youths, in particular, may feel a sense of "futurelessness," fatalism, and despair, which inclines them to discount future consequences even more than do other teenagers.

Even when adolescents possess and use comparable information, they may assign different subjective values to the alternative consequences. Youths may weigh benefits and consequences differently and discount negative future consequences in ways that skew the quality of their choices. In some instances, youths simply may estimate negative consequences of risky behavior as having lower probabilities of occurring than do adults. In other cases, youths' subjective valuations of risks and consequences may cause them to make different choices than adults. In addition, adolescents may weigh the consequences of not engaging in risky behaviors differently than adults. Youths' unrealistic optimism and feelings of "invulnerability" and "immortality" further contribute to risk-taking behavior.

A predisposition toward sensation-seeking inclines adolescents to seek exciting and novel activities. Risk-taking can be fun, and successful experiences may enhance self-esteem. Youths seek novelty and take risks as part of the process of separating from family and becoming autonomous. They experience more difficulty controlling their impulses than do adults because of physiological changes, mood volatility, and predisposition toward sensation-seeking. Youths engage in risky behavior for the excitement of the "adrenaline rush." As a result of habituation, they may require more intense and novel stimuli to achieve the desired affect. "[D]ecision-making sequences regarding risky behavior in adolescence cannot be fully understood without considering the role of emotions, with key aspects of these 'decision' processes involving interactions between thinking and feeling processes." Adolescents' predisposition toward risk reflects generic developmental processes rather than malevolent personal choices.

1. Peer Group Influences

Atkins noted that mentally retarded offenders are followers in groups; similarly, adolescents also respond to peer group influences more readily than do adults. Adolescents typically commit their crimes in a group context, and group-offending puts normally law-abiding youth at greater risk to commit crimes and reduces their ability publicly to withdraw. The social setting of adolescent offending increases youths' difficulty with resisting peer pressure. Indeed, adolescents' proclivity toward risk-taking and susceptibility to peer influences likely interact to produce even riskier behavior in a group setting. In some social contexts, youths' struggles to achieve autonomy and to define a social identity may require adherence to subcultural norms that provide powerful pressures to engage in criminal activity. Because of the social setting of youth crime, young people need time, experience, and opportunities to develop the ability to make independent judgments and to resist peer influence. While an inability to resist peer pressure does not excuse criminal conduct, youths who have not yet learned to manage peer relations successfully are not as responsible for their behavior as we hold adults to be.

1. Communities and Dependence

Children depend on adults to care for them and to enable them to develop the capacity for positive behavior and moral action. The ability to exercise self-control is the outcome of a socially constructed developmental process in which families, schools, and communities share responsibility. Community structures affect the conditions within which young people grow, interact with peers, and experience the risks of criminal involvement. Neighborhoods characterized by weak informal social controls provide greater opportunities for criminal activity and contribute to the higher crime rates in inner-city areas.

Community settings also affect youths' opportunities to learn and practice responsible behavior. Unlike presumptively mobile adults, juveniles' dependency limits their ability to escape from criminogenic environments.

1. Adolescent Brain and Neurobiology

Developmental psychologists consistently report differences between the thinking and behavior of children, adolescents, and adults. Recent neuroscience research suggests that these behaviors reflect more fundamental dissimilitude in brain development, biological maturation, and intellectual functioning. In short, a "hard-science" explanation may exist for the "soft-science" observations of social scientists. Neurobiological evidence suggests that the human brain does not achieve physiological maturity until the early twenties and that adolescents simply do not have the same physiologic capability as adults to make mature decisions or to control impulsive behavior.

The frontal lobe comprises the largest portion of the brain, and the prefrontal cortex of the frontal lobe functions as the "chief executive officer" and controls most advanced cerebral functions. These "executive functions" include impulse control, reasoning, abstract thinking, imagining, planning behavior, and anticipating consequences. Brain maturation influences "affect regulation" and the ability to control emotions and behavior.

Magnetic Resonance Imaging (MRI) studies provide cross-sectional images of the brain and enable neuroscientists to study longitudinal changes in brain structure and function. In the womb and during the first eighteen months of life, the human brain consists primarily of gray matter that is composed of neurons. A neuron is the basic nerve cell. Dendrites are branch-like protrusions from the neurons that receive electrochemical impulses from other nerve cell. Axons are transmitters to conduct electrochemical impulses from one neuron to the next. A process of myelination occurs in which the myelin, a fatty white substance, forms a sheath that surrounds and insulates the axons of certain neurons, gives it a white appearance, and allows for more rapid and efficient neurotransmission. The brain transmits information through electrochemical impulses and myelination functions like insulation and enhances the speed of the electrochemical impulse.

Although the human brain attains its adult weight by early childhood, during the first two decades, it undergoes separate processes of dendritic pruning or loss, and grey matter conversion into white matter through myelination. "[C]ortical grey and cerebral white matter volumes are quite dynamic throughout childhood," with a loss of grey volume and a corresponding gain in white volume associated with age. The neural connections or synapses that the brain uses are retained, or etched for specific sensory, motor, and intellectual functions, and those that are not exercised are shed and discarded or "pruned." During childhood and in early adolescence, the brain undergoes simultaneous processes of "pruning" and myelination. In early childhood, the portions of the brain that receive sensory input-the occipital and parietal lobes-myelinate initially to transmit sensory information more efficiently to the temporal and frontal lobes. During adolescence, the brain undergoes a second period of rapid "pruning" accompanied by further myelination. The separate and distinct processes of pruning and myelination are critical to proper brain function because dendritic pruning affects cognitive functioning and reasoning ability, while myelin insulation affects the rapidity and quality of brain activity. Because the process of myelination occurs approximately from the back of the brain to the front, the shift from gray matter to white matter in the frontal cortex and the corresponding abilities to process information quickly, to control behavior, and to suppress impulses develop more slowly, and maturation is completed only in the late teens and early twenties. As a result, the portions of the adolescent brain that mediate sensory input and language functions mature earlier than the portions in the frontal lobe governing "executive functioning" capacities.

The part of the brain called the amygdala-the lymbic system located at the base of the brain-is responsible for instinctual or "gut reactions" such as "fight or flight." Functional magnetic resonance imaging reveals that teenagers rely more heavily than adults on the amygdala and less heavily on the prefrontal cortex when responding to stressful stimuli. Thus, adolescent reactions to fear-evoking stimuli appear to be more instinctual responses rather than the product of cognitive processes. One recent study of MRI imaging of adolescent brains reported that "[i]n regions of frontal cortex, we observed reduction in gray matter between adolescence and adulthood, probably reflecting increased myelination in peripheral regions of the cortex that may improve cognitive processing in adulthood.... Neuropsychological studies show that the frontal lobes are essential for such functions as response inhibition, emotional regulation, planning and organization. Many of these aptitudes continue to develop between adolescence and young adulthood.... Thus, observed regional patterns of static versus plastic maturational changes between adolescence and adulthood are consistent with cognitive development."

Many adolescents' decisions about risky behavior appear to be more a function of "gut reactions" than of conscious thought processes. Just as organic features produce the developmental characteristics of mentally retarded defendants, similarly, the behaviors of adolescents may have a significant neurobiological component.

B. Atkins, Adolescents, and Adjudicative Competence

In addition to their reduced culpability, the Supreme Court in Atkins noted that the developmental disabilities of defendants with mental retardation also reduced their competence to stand trial and adversely affected the fairness and reliability of criminal proceedings. As states transfer more and younger offenders for adult prosecution, criminal courts increasingly encounter more youths whose immaturity and developmental limitations also pose difficult questions about their adjudicative competence.

In reaction to significant increases in the juvenile arrest rates for violent crimes in the late 1980s and early 1990s, virtually every state revised its transfer laws to prosecute more juveniles in criminal court. Changes in waiver statutes use offense criteria either as guidelines to control and limit judicial discretion, to guide prosecutorial charging decisions, or automatically to exclude serious offenses from juvenile court jurisdiction. Changes in waiver laws reflect a cultural and legal reconceptualization of youths from innocent and dependent children to responsible, adult-like offenders, and criminal sentencing laws typically provide no formal recognition of youthfulness once states transfer a juvenile to criminal court. When states try youths as adults, criminal court judges sentence them as if they are adults, imposing the same length sentences, sending them to the same prisons, and executing them for the crimes they committed as children.

Waiver reforms that lower the age of transfer eligibility to fourteen years of age or even younger present criminal courts with many youths whose developmental immaturity, rather than-or in addition to-mental illness, presents significant issues of adjudicative competence as well as diminished responsibility. The influx of more young juveniles into criminal courts raises questions about their ability to understand the trial process and to make critical legal decisions.

Adjudicative competence refers to a person's ability to understand the nature and consequences of legal proceedings, to make decisions, and to assist counsel. A defendant must be able to understand the purpose of the trial process, to provide information to and process information from counsel, to reason appropriately, and realistically to apply that information to the legal situation she confronts. Competence is necessary to assure the legitimacy of the criminal process, to reduce the risk of erroneous convictions, and to protect the dignity and autonomy of the defendant. Because criminal courts employ a low standard of competence and threshold for criminal liability, recognizing the diminished responsibility of youth as grounds for mitigation of punishment becomes even more imperative.

Typically, defendants' mental illness or developmental disability provides reasons to question their competence to stand trial and their ability to understand proceedings and to assist counsel. However, developmental immaturity also may render juveniles incompetent to stand trial. Juveniles' questionable competence does not derive necessarily from mental illness or disability, but rather from generic developmental limitations which affect their ability to communicate, to reason and understand, and to exercise judgment and make sound decisions. Although a relaxed standard of competence may be appropriate for delinquents tried in juvenile court, youths tried in criminal court must demonstrate an adult standard of competence.

While competence focuses primarily on the ability to understand and reason, youths' immaturity of judgment also affects their decisionmaking capability. Research evaluating adolescents' and young adults' competence to participate in their trials found significant differences in understanding and judgment. Most youths younger than thirteen or fourteen years of age lacked even basic competence either to understand or to meaningfully participate in their defense. Many youths younger than sixteen years of age lacked competence either to stand trial as adults or to make legal decisions without the assistance of counsel, and many older youths exhibited substantial impairment. Moreover, youths' limited time-perspective, emphasis on short-term versus long-term consequences, and concerns about peer approval cause them to make immature decisions relative to those of adults. One recent study reported that "[A]pproximately one fifth of 14- to 15-year-olds are as impaired in capacities relevant to adjudicative competence as are seriously mentally ill adults who would likely be considered incompetent to stand trial by clinicians who perform evaluations for courts.... Not surprisingly, juveniles of below-average intelligence are more likely than juveniles of average intelligence to be impaired in abilities relevant for competence to stand trial. Because a greater proportion of youths in the juvenile justice system than in the community are of below-average intelligence, the risk for incompetence to stand trial is therefore even greater."

Atkins noted that the disabilities of mentally retarded defendants adversely affected their competence to stand trial, reduced the assistance they could provide to their lawyers, and impaired their demeanor and effectiveness as witnesses. Atkins also found that mental retardation exposed such defendants to the dangers of erroneous convictions because of their greater susceptibility to interrogation techniques and the concomitant dangers of false confessions. The same concerns about the dangers of erroneous convictions exist with respect to the competence of adolescents. Juveniles' diminished understanding of rights, confusion about trial processes, limited language skills, and inadequate decision-making abilities increase their vulnerability to interrogation tactics and their likelihood of giving false confessions.

Juveniles are less able than adults to exercise their Miranda rights and exhibit a significant tendency to comply with authority, such as by confessing to police.

When the Supreme Court in In re Gault applied the privilege against self incrimination to delinquency proceedings, the "warning" safeguards developed in Miranda v. Arizona became available to juveniles. Courts evaluate juveniles' waivers of Fifth Amendment rights and the voluntariness of any confessions by assessing whether the they made a "knowing, intelligent, and voluntary" waiver under the "totality of the circumstances. Even before Miranda and Gault, the Supreme Court had cautioned trial judges to closely scrutinize the impact of youthfulness and inexperience on the validity of waivers and the voluntariness and reliability of confessions. However, the Court in Fare v. Michael C. retreated from its earlier concern that youthfulness might increase suggestibility and vulnerability to coercion and endorsed the adult "totality of the circumstances" test as the standard by which to evaluate the admissibility of juvenile confessions. The "totality" approach provides trial judges with discretion to protect youths who lack capacity or who succumb to police coercion without unduly limiting police ability to interrogate juveniles.

Fare declined to give children greater procedural protection than adults. Instead, the Court insisted that children must invoke their legal rights with adult-like technical precision and denied that young people lacked the ability to exercise or validly waive their rights. The Court explicitly rejected the view that developmental or psychological differences between juveniles and adults required different rules or special procedural protections during interrogation.

Despite Fare's endorsement of the "totality" approach, reasons exist to question whether a typical juvenile can waive her rights in a "knowing, intelligent, and voluntary" manner. Evaluation studies indicate that most juveniles who receive a Miranda warning do not understand it well enough to exercise or waive their rights. Juveniles most frequently misunderstood the advisory that they had the right to consult with an attorney and to have one present during interrogation. Younger juveniles exhibited even greater difficulties understanding their rights.

Although younger juveniles exhibited significantly poorer comprehension than did comparable adults, the level of understanding by youths sixteen and older, although more similar to that of adults, left much to be desired. Even if juveniles abstractly understand the words of the Miranda warning, they may not appreciate the significance and function of their rights. Research conducted under laboratory conditions may fail to capture the social context and stressful conditions associated with actual police interrogation.

Adolescents have difficulty grasping the basic concept of a "right" as an entitlement that they can exercise without adverse consequences. Children question whether law enforcement officials will punish them if they exercise their rights. Societal expectation of youthful obedience to authority and youths' inferior social status relative to adults render juveniles more vulnerable to police interrogation techniques. Many people from traditionally disempowered communities, such as females, African-Americans, and youth, pragmatically use indirect speech patterns to avoid conflict when dealing with authority figures. People with lower social status than their interrogators typically respond more passively, talk more readily, acquiesce to police suggestions more easily, and speak less assertively. Thus, Fare's requirement that youths invoke Miranda rights with adult-like precision contradicts the normal social reactions and verbal styles of most delinquents.

Juveniles' lack of understanding and vulnerability to coercion raise questions about the adequacy of the Miranda warning as a procedural safeguard to prevent youths from giving unreliable or false confessions. Deceptive interrogation techniques may be especially effective when employed against the young and inexperienced. Interrogation tactics such as presenting false evidence, using leading questions, and adopting police interpretations are more likely to induce juveniles to give false or inaccurate confessions than adults. The coercive context of interrogation and youths' limited understanding and verbal skills render young offenders more likely to comply with authority, to acquiesce in police interpretations, to fill in gaps through fabrication, to tell police what they think they want to hear, and to give unreliable and false confessions. Immaturity and suggestibility increase the likelihood of false confessions. Youths are also less able than adults to think strategically and to appreciate the consequences of admissions, and are more likely than adults to assume responsibility out of a misguided feeling of loyalty to peers. Aggressive questioning by police further increases the likelihood of false confessions, and instances abound of juveniles confessing to homicides and other serious crimes that they did not commit. Although younger offenders are at greatest risk, even older youths evidence a heightened risk of giving false confessions. Juveniles' lack of competence and vulnerability to coercive interrogation increase the risks of false confessions and erroneous convictions.

IV. YOUTH POLICY AND CRIME POLICY: CAPITAL PUNISHMENT AND LWOP SENTENCES

Youths' immature judgment, limited self-control, and inability to appreciate fully the consequences of their behavior reduce their degree of criminal responsibility and deserved punishment. While young offenders possess sufficient understanding and culpability to hold them accountable for their acts, their crimes are less blameworthy than those of adults, justifying a categorically different sentencing policy. Similarly, youths' diminished adjudicative competence increases the likelihood of false confessions and erroneous convictions. The Court's reasoning in Atkins and the analogous developmental limitations of adolescents should ban imposition of the death penalty. Penal proportionality and the reduced culpability of youth also should preclude sentences of Life Without Parole (LWOP) and even of lengths equivalent to those of adult offenders. As a matter of sentencing policy, there is no principled basis on which to distinguish between the diminished responsibility of youth that precludes the death penalty and the reduced culpability that warrants shorter sentences for all serious crimes. And, it is the reality of draconian sentences, rather than the risk of execution, that faces far more irresponsible young offenders.

The case of Lionel Tate graphically illustrates the hazards of disproportionality and adjudicative incompetence when states try young offenders as adults in criminal court. The grand jury indicted twelve-year-old Tate for first-degree murder for the brutal injuries he inflicted on a six-year-old girl. Under Florida's waiver law, Tate's indictment for a capital crime required the state to prosecute him as an adult, and his conviction of first degree murder required the judge to impose a mandatory sentence of life in prison without parole. The Florida Court of Appeals reversed his conviction, holding that the trial judge should have conducted a competency hearing to determine whether Tate understood the consequences of proceeding to trial and whether he was able to assist counsel prior to and during the trial. However, it rejected Tate's contention that imposing a mandatory LWOP sentence on a twelve-year-old child was disproportionate or constituted "cruel and unusual punishment."

For two decades the Supreme Court has struggled with the question of whether the Eighth Amendment's prohibition on cruel and unusual punishment contains a "narrow proportionality principle" that "applies to noncapital sentences." The Court in Rummel v. Estelle held that it did not violate the Eighth Amendment for a State to sentence a three-time offender to life in prison with the possibility of parole. Subsequently, in Solem v. Helm the Court held that the Eighth Amendment prohibited a sentence of "life without possibility of parole" for a repeat offender convicted of a minor property crime. Solem identified three factors that a court must consider to determine whether a sentence is so disproportionate that it violates the Eighth Amendment: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." However, in Harmelin v. Michigan a fractured Court rejected a proportionality challenge and upheld a sentence of life without possibility of parole for a first-time offender convicted of a drug offense.

In his concurrence in Harmelin, Justice Kennedy asserted that "[t]he Eighth Amendment proportionality principle also applies to noncapital sentences." His concurrence has emerged as the operative test for disproportionality and holds that the Eighth Amendment prohibits "only extreme sentences that are 'grossly disproportionate' to the crime." While conceding that the contours of the proportionality principle are unclear, Kennedy identified four factors-- the primacy of legislative judgments about penalties, the multiplicity of legitimate penal objectives, the limited role for federal oversight of state sentencing schemes, and the requirement that objective factors inform federal proportionality review-- to enable a court to determine whether a penalty is "grossly disproportionate." Recently, the Court in Ewing v. California upheld the imposition of a sentence of twenty-five years to life under California's "three-strike" sentencing statute for the theft of three golf clubs.

Given the imprecision of the Supreme Court's interpretation of the proportionality principle in noncapital cases, courts have struggled with its application to LWOP sentences imposed on juvenile offenders. Although proportionality emphasizes the relationship between the seriousness of the crime and the sentence imposed, courts focus almost exclusively on the gravity of the crime rather than the culpability of the actor who caused the harm when they assess seriousness. In Harris v. Wright, Judge Alex Kozinski rejected Harris' Eighth Amendment challenge to a mandatory LWOP sentence imposed on a fifteen-year-old convicted of murder. Kozinski emphasized that proportionality analyses are strictly circumscribed to instances of "gross disproportionality" and insisted "Youth has no obvious bearing on this problem: If we can discern no clear line for adults, neither can we for youths. Accordingly, while capital punishment is unique and must be treated specially, mandatory life imprisonment without parole is, for young and old alike, only an outlying point on the continuum of prison sentences. Like any other prison sentence, it raises no inference of disproportionality when imposed on a murderer."

By emphasizing only the gravity of the offense and the harm caused, rather than the culpability of the offender, courts engage in circular reasoning-serious crimes are serious-and thereby exclude considerations of moral blameworthiness from the proportionality inquiry.

Although Stanford established sixteen as the minimum age at which states can impose the death penalty, for noncapital sentencing, the Court has not set any minimum age for imposing sentences of life without parole on younger offenders. Youthfulness may be a relevant factor, albeit not a controlling one, when courts assess culpability. However, courts only conduct proportionality analyses when sentences are "grossly disproportionate" to the seriousness of the crime rather than to the culpability of the criminal. They routinely uphold LWOP and other very lengthy sentences imposed on very young offenders and rebuff claims that youthfulness is a mitigating factor that should trump mandatory sentences. Indeed, for some perverse reasons, courts may treat youthfulness as an aggravating, rather than mitigating, factor.

Although it reversed the trial court on competency grounds, the appellate court in Tate v. State "reject[ed] the argument that a life sentence without the possibility of parole is cruel or unusual punishment on a twelve-year-old child." In State v. Green, the North Carolina Supreme Court approved a mandatory sentence of life imprisonment imposed on a thirteen-year-old convicted of a first-degree sexual offense. The Green court noted that many states transfer very young offenders to criminal court for adult prosecution, that age is a factor that may be considered but is not dispositive "in determining whether a punishment is grossly disproportionate to the crime," and that retribution and incapacitation are appropriate sentencing goals even for young offenders. In Hawkins v. Hargett, the Tenth Circuit Court of Appeals approved sentences totaling 100 years for burglary, rape, and robbery imposed on a juvenile for crimes committed when he was thirteen years of age. State courts routinely approve sentences of life-- with or without possibility of parole-- or for extremely long periods of time imposed on thirteen-, fourteen-, or fifteen-year-old youths, whether those youths were convicted of murder or other crimes. Few courts ever invalidate lengthy sentences imposed on young offenders for being disproportional.

A. Youthfulness as a Mitigating Factor in Sentencing

The Constitution does not require state legislatures to recognize or courts to implement a principle of youthfulness as a mitigating factor in sentencing except for the death penalty. The Court never has read the Eighth Amendment to preclude imposition of an LWOP sentence on a twelve-year-old. However, regardless of what the Constitution requires, state legislators and courts should explicitly adopt and apply such a principle as part of a fair and just youth sentencing policy. As a matter of crime policy, youths' developmentally diminished responsibility and limited adjudicative competence render them less culpable than adult offenders; as a matter of youth policy, adolescence is a period of rapid growth and transition, and youths are "works in progress" who have not yet become the people they will be as adults. Youths learn by doing, make mistakes as a by-product of gaining experience, and need protection from the worst consequences of their immature judgment. Youths have a different developmental trajectory from mentally retarded offenders, and with normal maturation they eventually can learn to act responsibly.

A youth and crime policy must manage the risks that youths pose to themselves and to others, and reduce the harm that the justice system inflicts on them as they make the transition to adulthood. A policy to preserve young people's life chances for the future when they will be able to make more responsible choices must protect them from the full penal consequences of their present poor decisions. It holds them accountable because they are somewhat culpable and yet mitigates the severity of sentences because their choices entail less blameworthiness than do those of adults.

Penal proportionality dictates shorter sentences for youth because of diminished responsibility. While criminal law presumes autonomous choices by free-willed actors, adolescents have not yet acquired experience, self-control, and maturity of judgment to validate such a presumption. Even if a youth is criminally responsible for causing a particular harm, the law should not treat her choices as the moral equivalents of an adult's and impose the same sentence. Political sound-bites---"Adult crime, adult time," or "Old enough to do the crime, old enough to do the time"-- provide simplistic answers to complex moral and legal questions.

Youths' normal tendency to make poor decisions reveals less about their subjective character and blameworthiness than do the criminal choices that adults make. Youth is a time of experimentation and exploration, and youths' character remains somewhat unformed and malleable. Like other forms of risky behavior, most adolescent criminality is transitional and normal, and does not indicate a serious commitment to a criminal career. Penal policy should recognize the rapidity and volatility of development during adolescence and avoid draconian sanctions.

A protective youth policy would avoid life destructive consequences and provide young people with "room to reform." Youth is a period of "semi-autonomy," exploration, and risk taking and teenagers require a "learner's permit" to learn to make responsible choices without suffering fully for the consequences of their mistakes. The ability to make responsible choices is learned behavior and adolescence is the period during which youths learn to control their impulses and to exercise self-control. Unlike the defendants in Atkins, juveniles can learn to be responsible, and youth and crime policy should provide them with that opportunity.

A youth sentencing policy would impose shorter sentences than for older

Summary

The criminal justice system in the United States is built on the principle of proportionality, which states that punishment should be in line with the seriousness of the crime and the culpability of the offender. While this principle is well-established in the realm of capital punishment, the relationship between culpability and deserved punishment has been less thoroughly explored in the context of non-capital offenses. The Supreme Court’s decision in Atkins v. Virginia banned the execution of mentally retarded defendants, recognizing that their diminished capacity for reasoning, judgment, and impulse control rendered them less morally culpable than ordinary adults. This article argues that the Court's culpability analyses in Atkins apply equally to the execution of adolescents and should prohibit the practice. Furthermore, the article argues that adolescents' diminished culpability has broader implications for the sentencing of all younger offenders in criminal courts.

I. CULPABILITY, MENTAL RETARDATION, AND ATKINS

The Supreme Court’s interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishment extends to sentences that are excessive, fail to contribute to the penal goals of retribution and deterrence, and violate evolving standards of decency. The Court has consistently required state death penalty statutes to channel jury discretion and consider the circumstances of the defendant. Trial courts must allow defendants to present evidence that humanizes them or mitigates their culpability.

While the Court initially upheld the execution of mentally retarded defendants in Penry v. Lynaugh, thirteen years later in Atkins v. Virginia it reversed this decision, concluding that a national consensus had emerged against the practice. The Court relied on both empirical and normative justifications for its conclusion. Empirically, it observed a trend of states passing laws prohibiting the execution of mentally retarded offenders and a decrease in the execution of such individuals. Normatively, the Court examined the psychological and developmental characteristics of mentally retarded offenders that render them less blameworthy than more competent adults.

The Court identified several clinical characteristics of mentally retarded individuals that diminish their personal culpability: significant subaverage intellectual functioning, limitations in adaptive skills such as communication, self-care, and self-direction, diminished capacities to understand and process information, communicate, abstract from mistakes, learn from experience, engage in logical reasoning, control impulses, and understand the reactions of others.

The Atkins decision not only recognizes the reduced culpability of mentally retarded offenders but also acknowledges their increased susceptibility to interrogation techniques and false confessions, which in turn can lead to erroneous convictions. The Court's decision to ban the execution of mentally retarded defendants is grounded in both the recognition of their reduced culpability and the potential for unfair and unreliable trials.

II. CULPABILITY, ADOLESCENCE, AND THE RATIONALE OF THOMPSON AND STANFORD

The developmental limitations that reduce the culpability of mentally retarded offenders—susceptibility to peer influences, impulsivity, and immaturity of judgment—are also relevant to the criminal responsibility of adolescents.

In Thompson v. Oklahoma, the Supreme Court analyzed the criminal responsibility of youths older than fourteen years of age, ultimately concluding that executing a fifteen-year-old offender for a heinous murder violated the prohibition on cruel and unusual punishments. The Court relied on both objective indicators of evolving standards of decency, such as state statutes, jury practices, and the views of national and international organizations, and its own subjective sense of civilized standards of decency. The Court found that executing offenders who committed their crimes before they turned sixteen years of age was generally abhorrent to the conscience of the community.

The Court also concluded that adolescents lack the culpability necessary to justify the death penalty. It argued that juveniles are less mature and responsible than adults, and that their inexperience, less education, and less intelligence make them less able to evaluate the consequences of their conduct while at the same time they are more apt to be motivated by mere emotion or peer pressure than is an adult.

However, in Stanford v. Kentucky, the Supreme Court upheld the death penalty for youths who were sixteen or seventeen at the time of their offenses. The Court rejected a categorical ban on all such executions, arguing that at least some older adolescents are capable of acting with the culpability necessary to justify the death penalty.

This inconsistency between Thompson and Stanford is highlighted by the fact that since Stanford, several state supreme courts have barred the execution of youths under eighteen, or at least under seventeen years of age. The Missouri Supreme Court in Simmons v. Roper specifically applied the Atkins analysis to prohibit the execution of a youth for a crime committed at seventeen years of age.

Simmons further challenged the continuing vitality of Stanford by relying on federal constitutional grounds and concluding that the Supreme Court would today hold that such executions are prohibited by the Eighth and Fourteenth Amendments.

The legislative trend towards prohibiting the execution of juveniles, the infrequency of such executions in practice, and the views of national and international professional, social, and religious organizations all point to a national consensus against the practice. This consensus, combined with the recognition of adolescents' reduced culpability, suggests that the Stanford decision is outdated and inconsistent with current standards of decency.

III. ATKINS AND ADOLESCENTS RECONSIDERED: COMPETENCE AND CULPABILITY

The developmental limitations that reduce the culpability of mentally retarded offenders also characterize most normal adolescent offenders. While adolescents may possess sufficient cognitive competency to justify some degree of punishment, their psycho-social maturity of judgment and temperance provide a broader framework through which to assess their culpability.

Adolescents differ from adults in their breadth of experience, short-term versus long-term time perspective, attitude toward risk, impulsivity, and the importance they attach to peer influence. These differences, linked to developmental processes, affect their qualities of judgment and ability to appreciate the consequences of their actions.

1. Risky Behavior: Adolescents act more impulsively, exercise less self-control, and engage in more risky behavior than adults. This risk-taking behavior may be developmentally necessary for adolescents to acquire the skills needed to negotiate successfully the transition to adulthood. However, adolescents often underestimate the magnitude or probability of risks, use a shorter time-frame, and focus on opportunities for gains rather than possibilities of losses, making them more susceptible to the negative consequences of risky behavior.

2. Peer Group Influences: Adolescents typically commit their crimes in a group context, and group-offending puts normally law-abiding youth at greater risk to commit crimes and reduces their ability publicly to withdraw. The social setting of adolescent offending increases youths' difficulty with resisting peer pressure.

3. Communities and Dependence: Adolescents depend on adults to care for them and to enable them to develop the capacity for positive behavior and moral action. Community structures affect the conditions within which young people grow, interact with peers, and experience the risks of criminal involvement.

4. Adolescent Brain and Neurobiology: Recent neuroscience research suggests that adolescents simply do not have the same physiologic capability as adults to make mature decisions or to control impulsive behavior. This is due to the fact that the human brain does not achieve physiological maturity until the early twenties. The frontal lobe, which controls executive functions such as impulse control, reasoning, abstract thinking, planning behavior, and anticipating consequences, matures more slowly than other parts of the brain.

A. Atkins, Adolescents, and Reduced Culpability

The Atkins decision recognized that mentally retarded defendants are less able to understand and process information, to engage in logical reasoning, to control impulses, and to resist peer pressures. These are precisely the characteristics that also define the developmental stage of adolescents.

The Atkins court’s reasoning about the reduced culpability of mentally retarded defendants should therefore be extended to include adolescents.

B. Atkins, Adolescents, and Adjudicative Competence

The Atkins court also recognized that the developmental disabilities of mentally retarded defendants adversely affected their competence to stand trial, increasing the likelihood of false confessions and erroneous convictions. These same concerns exist with respect to the competence of adolescents. Juveniles' diminished understanding of rights, confusion about trial processes, limited language skills, and inadequate decision-making abilities increase their vulnerability to interrogation tactics and their likelihood of giving false confessions.

The Supreme Court's decision in Fare v. Michael C. endorsed the adult "totality of the circumstances" test as the standard by which to evaluate the admissibility of juvenile confessions. However, research suggests that even when juveniles receive a Miranda warning, they often do not understand it well enough to exercise or waive their rights. This, combined with the fact that juveniles are more likely to comply with authority and more vulnerable to deceptive interrogation techniques, increases the likelihood of false confessions and erroneous convictions.

IV. YOUTH POLICY AND CRIME POLICY: CAPITAL PUNISHMENT AND LWOP SENTENCES

The case of Lionel Tate illustrates the hazards of disproportionality and adjudicative incompetence when states try young offenders as adults in criminal court. Tate, twelve years old at the time, was convicted of first-degree murder and sentenced to life in prison without parole. This case highlights the need for a sentencing policy that takes into account adolescents' reduced culpability and recognizes that draconian sentences, such as LWOP, are disproportionate and potentially cruel and unusual punishments for young offenders.

While the Supreme Court has struggled with the question of whether the Eighth Amendment's prohibition on cruel and unusual punishment applies to noncapital sentences, Justice Kennedy's concurrence in Harmelin v. Michigan has emerged as the operative test for proportionality. This test holds that the Eighth Amendment prohibits only extreme sentences that are "grossly disproportionate" to the crime.

However, courts have often failed to consider the culpability of the offender when assessing the proportionality of noncapital sentences. Instead, they have focused primarily on the gravity of the crime. This has resulted in the upholding of lengthy sentences, including LWOP, for very young offenders.

A. Youthfulness as a Mitigating Factor in Sentencing

While the Constitution does not explicitly require state legislatures to recognize or courts to implement a principle of youthfulness as a mitigating factor in sentencing, such a principle is necessary for a fair and just youth sentencing policy. Youths' developmentally diminished responsibility and limited adjudicative competence render them less culpable than adult offenders. They deserve to be held accountable for their actions, but their sentences should reflect their reduced culpability and the need for opportunities for rehabilitation.

A youth and crime policy must manage the risks that youths pose to themselves and to others while also reducing the harm that the justice system inflicts on them as they make the transition to adulthood.

B. Youthfulness as an Individualized or Categorical Mitigating Factor: The Virtue of Bright-lines

The question of whether to treat youths' developmental disabilities categorically or to try to gauge culpability individually is a complex one. While sentencing laws typically consider questions of mitigation individually, a categorical approach based on age is preferable to a system of guided discretion because it reduces the risk of punishing the less culpable as severely as if they were responsible adults.

The inherent difficulties of defining and measuring immaturity make it difficult to reliably and efficiently identify "maturity" and adult-like culpability among offending youths. Additionally, the tendency to subordinate abstract considerations of youthfulness to the reality of a horrific crime can lead to unjust outcomes.

A bright-line approach avoids the greater risk of error inherent in discretionary culpability assessments. Treating youthfulness as a formal mitigating factor avoids the conceptual and administrative difficulties of more subjective and individualized defenses.

V. CONCLUSION

The article concludes that adolescents' developmental limitations render them less culpable than adults, making them deserving of less severe penalties than their older counterparts. The Supreme Court should revisit Stanford v. Kentucky and correct its inconsistency with Atkins v. Virginia, prohibiting the execution of all juveniles.

The Court's recognition of adolescents' reduced culpability should extend beyond the death penalty and be formally acknowledged in all criminal sentencing statutes. Formal mitigation of punishment based on youthfulness applies equally to capital and noncapital sentences. States should adopt an explicit "youth discount" in sentencing based on a sliding scale of criminal responsibility, with younger adolescents receiving proportionally shorter sentences.

Ultimately, a successful youth policy and crime policy require a recognition of the developmental differences between adolescents and adults. Adolescents are different, and this difference should be reflected in the way they are treated by the criminal justice system.

Summary

This article examines the Supreme Court's rulings on the culpability of defendants with mental retardation and adolescents in the context of the death penalty. It argues that the Court's rationale in Atkins v. Virginia, which prohibited the execution of mentally retarded defendants, applies equally to the execution of adolescents and should be extended to prohibit the practice. The article further explores the broader implications of this principle for sentencing all younger offenders.

I. CULPABILITY, MENTAL RETARDATION, AND ATKINS

The Eighth Amendment prohibits "cruel and unusual punishment" which includes sentences that are excessive or violate "evolving standards of decency." In Atkins v. Virginia, the Supreme Court ruled that executing mentally retarded defendants violates the Eighth Amendment because they lack the culpability of ordinary adult offenders. The Court considered both empirical evidence, like state laws and jury practices, and normative judgments about diminished culpability.

II. CULPABILITY, ADOLESCENCE, AND THE RATIONALE OF THOMPSON AND STANFORD

The Court previously ruled in Thompson v. Oklahoma that the Eighth Amendment prohibits the execution of offenders who were fifteen years of age or younger at the time of their crime. However, in Stanford v. Kentucky, the Court upheld the death penalty for youths who were sixteen or seventeen at the time of their offenses, arguing that there was no clear national consensus against such executions.

A. The Empirical Foundation of Stanford

Since Stanford, several states have barred the execution of youths under eighteen, and the Missouri Supreme Court, in Simmons v. Roper, concluded that the Supreme Court would today hold that such executions are prohibited. The court relied on the same empirical evidence used in Atkins, finding a national consensus against executing juveniles.

III. ATKINS AND ADOLESCENTS RECONSIDERED: COMPETENCE AND CULPABILITY

The article argues that the developmental limitations that reduce the culpability of mentally retarded defendants also apply to adolescents. Both groups share characteristics like susceptibility to peer influence, a propensity to act impulsively, and immaturity of judgment, which justify a less punitive approach to sentencing.

A. Atkins, Adolescents, and Reduced Culpability

Adolescents possess different cognitive abilities and maturity of judgment than adults, making them less culpable for their crimes. They are more prone to risky behavior, more susceptible to peer influence, and have less developed frontal lobes, which are essential for decision-making and impulse control.

B. Atkins, Adolescents, and Adjudicative Competence

The article argues that the diminished adjudicative competence of adolescents also increases the risk of erroneous convictions. Adolescents are less able than adults to understand legal proceedings, exercise their Miranda rights, and resist interrogation tactics that can lead to false confessions.

IV. YOUTH POLICY AND CRIME POLICY: CAPITAL PUNISHMENT AND LWOP SENTENCES

The article argues that the same principle of diminished responsibility that prohibits the death penalty for juveniles should also apply to life without parole (LWOP) sentences and other lengthy sentences. It critiques the courts' narrow focus on the gravity of the offense rather than the culpability of the offender when assessing proportionality.

A. Youthfulness as a Mitigating Factor in Sentencing

The article argues that states should explicitly recognize youthfulness as a mitigating factor in all criminal sentencing, imposing shorter sentences for juveniles based on their diminished responsibility and developmental needs. This would provide a "youth discount" to ensure that young offenders do not face the same severity of punishment as adults.

B. Youthfulness as an Individualized or Categorical Mitigating Factor: The Virtue of Bright-lines

The article argues that bright-line rules based on age are preferable to individualized assessments of culpability. Categorical treatment of youthfulness reduces the risk of error and injustice in sentencing.

V. CONCLUSION

The article concludes by calling for a categorical prohibition on executing juveniles, arguing that the developmental limitations of adolescents are analogous to those of mentally retarded defendants. It further argues that states should formally recognize youthfulness as a mitigating factor in all criminal sentencing, including LWOP sentences, and set a higher minimum age for criminal prosecution.

Summary

This article explores the concept of criminal culpability and its application in sentencing young offenders. It argues that the Supreme Court's decision in Atkins v. Virginia, which prohibited the execution of mentally retarded defendants, applies equally to adolescents and should extend to prohibit the execution of juveniles.

I. CULPABILITY, MENTAL RETARDATION, AND ATKINS

The Atkins decision relied on both empirical and normative justifications to ban the execution of mentally retarded offenders. It found a national consensus against this practice, citing state laws and jury behavior. The Court also concluded that mentally retarded defendants lack the same level of culpability as ordinary adults because of their cognitive and emotional limitations.

II. CULPABILITY, ADOLESCENCE, AND THE RATIONALE OF THOMPSON AND STANFORD

The Supreme Court has grappled with the issue of juvenile death penalty in cases like Thompson v. Oklahoma and Stanford v. Kentucky. While Thompson suggested that executing a 15-year-old offender was unconstitutional, Stanford upheld the death penalty for those 16 or 17 years old.

III. ATKINS AND ADOLESCENTS RECONSIDERED: COMPETENCE AND CULPABILITY

The article argues that the developmental limitations that reduce the culpability of mentally retarded defendants also apply to adolescents. Young people are more impulsive, less able to consider long-term consequences, and more susceptible to peer influences. These characteristics make them less blameworthy than adults. Furthermore, adolescents' brains are still developing, making them less capable of rational decision-making.

IV. YOUTH POLICY AND CRIME POLICY: CAPITAL PUNISHMENT AND LWOP SENTENCES

The article criticizes the current approach to sentencing juvenile offenders. It highlights the case of Lionel Tate, a 12-year-old who received a life sentence without parole for murder. It argues that such harsh sentences are disproportionate and fail to take into account the developmental differences between youth and adults.

A. Youthfulness as a Mitigating Factor in Sentencing

States should explicitly recognize youthfulness as a mitigating factor in sentencing, the article contends. This would reflect the fact that young people are less culpable than adults and deserve less severe punishments. A "youth discount" should be applied to sentences, with younger adolescents receiving greater reductions.

B. Youthfulness as an Individualized or Categorical Mitigating Factor: The Virtue of Bright-lines

The article advocates for a categorical approach to mitigating sentences for youthfulness. It argues that individualized assessments of maturity and culpability are unreliable and tend to focus on the severity of the crime rather than the offender's age and development. A bright-line rule based on age is a more reliable and just way to ensure that younger offenders are not punished as harshly as adults.

V. CONCLUSION

The article concludes that the Supreme Court should overturn Stanford and prohibit the execution of juveniles. It also calls for states to formally recognize youthfulness as a mitigating factor in all criminal sentencing, arguing that doing so is essential for a fair and just youth and crime policy.