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Graham v. Florida: Justice Kennedy’s Vision of Childhood and the Role of Judges


Tamar R. Birckhead


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

October 19, 2010

Duke Journal of Constitutional Law & Public Policy, Vol. 6, 2010
UNC Legal Studies Research Paper No. 1694788

Abstract:     
This short essay examines Graham v. Florida, the United States Supreme Court decision holding that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. This essay argues that Justice Anthony Kennedy’s majority opinion is grounded not only in Roper v. Simmons, which invalidated the death penalty for juvenile offenders on Eighth Amendment grounds, and Kennedy v. Louisiana, which held that the Eighth Amendment prohibited the death penalty for the offense of rape of a child, but in Establishment Clause cases set in the context of public schools and Fourteenth Amendment Due Process Clause cases upholding parental notification requirements for teenagers seeking abortions. Whereas many journalists and scholars consider Justice Kennedy a “legal pragmatist” who lacks an overarching philosophy to guide his decision-making, in each of these opinions his view of childhood and the proper role of judges is consistent: children and adolescents are unformed works in progress, in the midst of both character and brain development, who are particularly susceptible to direct as well as indirect forms of coercion. As a result, according to Justice Kennedy, when determining what liberty interests are protected by the United States Constitution, the role of judges and the courts is to ensure that youth mitigates rather than aggravates. Further, although juvenile justice advocates have heralded Graham as a clear victory, the opinion may raise as many questions as it seeks to answer.

Number of Pages in PDF File: 15

Keywords: Eighth Amendment, United States Supreme Court, criminal law, criminal procedure, juvenile life without parole, judges, children’s rights

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Date posted: October 21, 2010 ; Last revised: June 13, 2011

Suggested Citation

Birckhead, Tamar R., Graham v. Florida: Justice Kennedy’s Vision of Childhood and the Role of Judges (October 19, 2010). Duke Journal of Constitutional Law & Public Policy, Vol. 6, 2010; UNC Legal Studies Research Paper No. 1694788. Available at SSRN: http://ssrn.com/abstract=1694788

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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