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The Age of the Child: Interrogating Juveniles After Roper v. Simmons

66 Pages Posted: 9 Sep 2007 Last revised: 7 Aug 2008

Tamar R. Birckhead

Yale Law School; University of North Carolina at Chapel Hill School of Law


With its recent decision in Roper v. Simmons, invalidating the imposition of the death penalty on offenders who were younger than 18 when their crimes were committed, the U.S. Supreme Court has heralded a major shift in the perspective of the legal system - and the culture at large - towards adolescents who commit crimes. Invoking social science research as well as a "common sense" understanding of the differences between teenagers and adults, the Court found that as a categorical matter, juveniles are not as culpable as adults and, thus, cannot be classified among the "worst offenders," deserving of the most severe punishment. Yet, in writing for the majority, Justice Kennedy did not base the Court's decision solely on the developmental differences between juveniles and adults or on the arguably stereotyped - and romantic - notion of youth as immature, unpredictable works in progress. His emphasis was also on the grave difficulty - the impossibility, even - of maintaining confidence in a system that relies on human beings, with all their frailties and prejudices, to determine whether the ultimate punishment should be imposed upon society's most violent 16 and 17-year-olds. Simmons explicitly recognizes - and draws a bright line to counteract - the all-too-human tendency to objectify violent juvenile offenders, to consider their youth as an aggravating factor in the calculus, and to perceive and judge them through the lens of stereotype and bias.

This article focuses on the way in which implicit bias - seeing the 'type' or 'category' of the person instead of the three-dimensional reality - relates not only to how capital jurors perceive juvenile offenders but also to how law enforcement views the juvenile suspect. It explores how Simmons informs a new approach by both law enforcement and the courts to the questioning of juvenile suspects, one that is consistent with what recent studies have revealed about the ways in which adolescents experience interrogation and is also consistent with the law's approach to the questioning of another group of minors - those who are witnesses or alleged victims of crime. It argues that the time has now come to apply the principal bases of Simmons to the area of juvenile interrogation, and it concludes with proposals aimed at changing the culture behind the questioning of adolescents with reforms and strategies for legislators and judges as well as for police officers and community groups.

Suggested Citation

Birckhead, Tamar R., The Age of the Child: Interrogating Juveniles After Roper v. Simmons. Washington and Lee Law Review, Vol. 65, 2008; UNC Legal Studies Research Paper No. 1013162. Available at SSRN:

Tamar R. Birckhead (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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University of North Carolina 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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