Justice for Emerging Adults after Jones: The Rapidly Developing Use of Neuroscience to Extend Eighth Amendment Miller Protections to Defendants Ages 18 and Older

97 NYU L. Rev. Online 101 (2022)

Harvard Public Law Working Paper No. 22-18

26 Pages Posted: 6 Jun 2022 Last revised: 21 Jul 2022

See all articles by Francis X. Shen

Francis X. Shen

University of Minnesota Law School; MGH Center for Law, Brain & Behavior

Fenella McLuskie

Harvard University - Harvard Law School

Erin Shortell

Harvard University - Harvard Law School

Mariah Bellamoroso

Harvard University, Harvard Law School

Elizabeth Escalante

Tufts University

Brenna Evans

University of Minnesota Law School

Ian Hayes

Harvard College

Clarissa Kimmey

Yale University - Law School

Sarah Lagan

Harvard University, Harvard College, Students

Madeleine Muller

Northwestern University

Jennifer Near

Harvard College

Kailey Nicholson

Harvard College

Job Okeri

University of Minnesota - Minneapolis - School of Law

Ifeoma Okoli

Harvard College

Emily Rehmet

Harvard University - Harvard Law School

Nancy Gertner

Harvard Law School

Robert Kinscherff

William James College

Date Written: June 2, 2022

Abstract

Federal and state court decisions over the past year are reshaping the contours of juvenile justice litigation. At the federal level, the Supreme Court’s recent decision in Jones v. Mississippi left intact the Court’s current commitment to treating age 18 as the dividing line between youth and adult criminal sentencing. If a youth commits a crime at age 17 years, 364 days, 23 hours, 59 minutes, and 59 seconds old, that youth cannot be put to death or receive mandatory life without parole (LWOP). One second later, these constitutional protections disappear. Calling into question this line drawing, litigants across the country are actively leveraging neuroscientific research to argue that emerging adults ages 18 through early 20s should receive the same constitutional protections as those under 18.

While federal courts have not been receptive to this argument, some state courts are. Groundbreaking recent cases in Washington, Illinois, and Massachusetts state courts may signal a potential path forward. In light of these many recent developments, this Essay provides the first empirical analysis of how courts are receiving the argument to raise the age for constitutional protections and introduces a publicly accessible, searchable database containing 494 such cases. The data suggest that at present, Eighth Amendment arguments to categorically extend federal Miller protections to those 18 and above are unlikely to win. At the same time, however, state constitutions and state-level policy advocacy provide a path to expand constitutional protections for emerging adults. We discuss the implications of these trends for the future use of neuroscientific evidence in litigation concerning the constitutionality of the death penalty and LWOP for emerging adults. As this litigation moves forward, we recommend further strengthening connections between litigants and the scientific and forensic communities. Whether at the state or federal level, and whether in courts or legislatures, the record should contain the most accurate and applicable neuroscience.

Keywords: law and neuroscience, neurolaw, Miller, 8th Amendment, adolescent brain, juvenile justice, emerging adult, criminal sentencing

Suggested Citation

Shen, Francis X. and McLuskie, Fenella and Shortell, Erin and Bellamoroso, Mariah and Escalante, Elizabeth and Evans, Brenna and Hayes, Ian and Kimmey, Clarissa and Lagan, Sarah and Muller, Madeleine and Near, Jennifer and Nicholson, Kailey and Okeri, Job and Okoli, Ifeoma and Rehmet, Emily and Gertner, Nancy and Kinscherff, Robert, Justice for Emerging Adults after Jones: The Rapidly Developing Use of Neuroscience to Extend Eighth Amendment Miller Protections to Defendants Ages 18 and Older (June 2, 2022). 97 NYU L. Rev. Online 101 (2022), Harvard Public Law Working Paper No. 22-18, Available at SSRN: https://ssrn.com/abstract=4126374

Francis X. Shen (Contact Author)

University of Minnesota Law School ( email )

Minneapolis, MN
United States

MGH Center for Law, Brain & Behavior ( email )

55 Fruit Street
Boston, MA 02114
United States

Fenella McLuskie

Harvard University - Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

Erin Shortell

Harvard University - Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

Mariah Bellamoroso

Harvard University, Harvard Law School ( email )

United States

Elizabeth Escalante

Tufts University ( email )

Medford, MA 02155
United States

Brenna Evans

University of Minnesota Law School ( email )

United States

Ian Hayes

Harvard College ( email )

Cambridge, MA 02138
United States

Clarissa Kimmey

Yale University - Law School ( email )

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

Sarah Lagan

Harvard University, Harvard College, Students ( email )

Cambridge, MA
United States

Madeleine Muller

Northwestern University ( email )

2001 Sheridan Road
Evanston, IL 60208
United States

Jennifer Near

Harvard College ( email )

Cambridge, MA 02138
United States

Kailey Nicholson

Harvard College ( email )

Cambridge, MA 02138
United States

Job Okeri

University of Minnesota - Minneapolis - School of Law ( email )

229 19th Ave S
Minneapolis, MN 55455
United States

Ifeoma Okoli

Harvard College ( email )

Cambridge, MA 02138
United States

Emily Rehmet

Harvard University - Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

Nancy Gertner

Harvard Law School ( email )

1525 Massachusetts Avenue
Griswold 301
Cambridge, MA 02138
United States

Robert Kinscherff

William James College ( email )

1 Wells Avenue
Newton, MA 02459
United States

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