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

15 Pages Posted: 21 Oct 2010 Last revised: 13 Jun 2011

Tamar R. Birckhead

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

Date Written: October 19, 2010

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.

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

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: https://ssrn.com/abstract=1694788

Tamar Birckhead (Contact Author)

Yale Law School ( email )

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

HOME PAGE: http://https://www.law.yale.edu/tamar-birckhead

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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