Toward a Theory of Procedural Justice for Juveniles

Tamar R. Birckhead

University of North Carolina (UNC) at Chapel Hill - School of Law

Buffalo Law Review, Vol. 57, No. 5
UNC Legal Studies Research Paper No. 1463034

Courts and legislatures have long been reluctant to make use of the data, findings, and recommendations generated by other disciplines when determining questions of legal procedure affecting juveniles, particularly when the research has been produced by social scientists. However, given the United States Supreme Court’s recent invocation of developmental psychology in Roper v. Simmons, which invalidated the juvenile death penalty, there is reason to believe that such resistance is waning. In 2005 the Simmons Court found, inter alia, that based on research on adolescent development, juveniles are not as culpable as adults and, therefore, cannot be classified among the “worst offenders,” deserving of the ultimate penalty. In the 2009–10 term, the Court will take up the arguably related question of the constitutionality of life imprisonment without the possibility for parole for juvenile offenders, making it likely that social psychology will play a role yet again in a Supreme Court decision.

This Article critically examines the ways in which courts have determined whether juveniles should be granted certain procedural rights, and it argues that rather than subscribe to the wooden concept of quid pro quo or utilize a completely subjective balancing approach, courts should allow social science research related to adolescents and conceptions of procedural justice to inform the decision. It analyzes United States Supreme Court case law that has addressed this issue and discusses a recent Kansas Supreme Court case that rejects precedent but fails to shift the juvenile justice paradigm. It then examines empirical studies in the area of procedural justice theory, exploring how children and adolescents develop ties to the law and legal actors and demonstrating a causal relationship between juveniles’ perceptions of fairness and their likelihood of reoffending. It argues that social science research provides a useful lens through which to analyze whether specific procedural rights should be granted to juveniles. This Article begins the task of applying procedural justice theory in the context of delinquency court, examining for the first time how the theory could frame the debate over whether juveniles have a constitutional right to a jury trial as well as other procedural protections. It concludes by acknowledging the limits of procedural justice theory as applied to juveniles, and it raises questions and offers caveats for moving ahead.

Number of Pages in PDF File: 72

Keywords: criminal law and procedure, juveniles, procedural justice, social science research, jury trial, recidivism, law and society

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Date posted: August 31, 2009  

Suggested Citation

Birckhead, Tamar R., Toward a Theory of Procedural Justice for Juveniles. Buffalo Law Review, Vol. 57, No. 5; UNC Legal Studies Research Paper No. 1463034. Available at SSRN: http://ssrn.com/abstract=1463034

Contact Information

Tamar R. Birckhead (Contact Author)
University of North Carolina (UNC) at Chapel Hill - School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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