Culpable Kids

When a child commits a crime, how do states determine if that child is culpable? There are procedural rules that determine the forum for a minor’s trial and doctrines that limit children’s exposure to the most severe sentencing. But when it comes to culpability, states employ the same substantive law whether the defendant is 50 or 15. As this Article explains, that approach is profoundly flawed. In the early 21st century, in a series of cases known as the Miller trilogy, the United States Supreme Court established that youth are fundamentally different from adults and state sentencing practices must recognize that fact. This Article argues that all of the constitutionally significant ways in which children are different for purposes of punishment are equally relevant to kids’ culpability. As a result, when kids are charged with a crime, the substantive law should be tailored to recognize their status as minors. This Article proceeds in five Parts. Part II provides a brief overview of how the criminal system delineates juvenile from adult culpability, highlighting that these distinctions are procedural rather than substantive. Part III outlines the core Eighth Amendment cases in which the Supreme Court developed its “kids are different” jurisprudence. Parts IV and V are the heart of the Article and argue that, because “kids are different,” when they are charged with a crime, the substantive law should be tailored to recognize their status as minors. Part IV articulates necessary substantive changes to criminal law when it comes to the state’s burden to prove the elements of a crime. Part V demonstrates how the law should account for the defining features of youth when kids mount affirmative defenses. Part VI addresses both conceptual and implementation-related challenges to my proposal. Finally, by way of Conclusion, I argue that tinkering with the sentencing of minors in adult court is an insufficient response to the fundamental ways in which youth are different from adults. Instead, states should tackle head-on the issue of culpable kids through revised substantive law as I suggest herein.