Constitutionally Different: A Child’s Right to Substantive Due Process

Kent v. United States required trial courts to conduct an individualized assessment before transferring a juvenile defendant to criminal jurisdiction. Several decades later, in Miller v. Alabama, the Supreme Court prohibited imposing life without parole sentences upon youth offenders without first conducting an individualized assessment. The latter holding also pronounced that juveniles are constitutionally different from adults, finding support in social science, developmental psychology and neuroscience advancements. This same body of adolescent behavioral research casts fundamental fairness concerns on a transferred youth’s ability to effectively participate in other parts of the justice process when removed to criminal court. Whereas due process and the Eighth Amendment have fully draped constitutional juvenile issues to date, my Article proposes that substantive due process more aptly secures a youth offender’s liberty interests when battling disadvantages attributable to their youthfulness traits as experienced throughout the entire justice process—from adequate representation, to transfer, to trial participation, to the sentencing phase. At present, fourteen states absolutely deprive juveniles of an individualized assessment at any juncture in the justice process, including at the initial jurisdictional transfer determination. This Article contributes the first holistic analysis for recognizing the constitutional difference between juveniles and their adult counterparts at critical adjudicatory points, not only at transfer or the sentencing stage, through a substantive due process framework