THE KIDS ARE NOT ALRIGHT: ENDING THE UNCONSTITUTIONAL RELIANCE ON JUVENILE CONDUCT TO ENHANCE FEDERAL CRIMINAL SENTENCES

Abstract

Under the U.S. Sentencing Guidelines’ recidivism provisions, prior judgments can be used to enhance a federal defendant’s advisory sentence and block relief from draconian mandatory minimums. This includes past offenses the defendant committed before age 18—whether the individual was prosecuted as an adult or as a juvenile. The use of pre-18 conduct to enhance later adult sentences is both constitutionally suspect and bad policy. First, the practice stands in tension with the U.S. Supreme Court’s juveniles-are-different line of cases that has recognized that “children are constitutionally different from adults in their level of culpability.” Second, the way in which the Guidelines draw a line between juvenile and adult priors generates unequal treatment between similarly situated defendants based on geography and race, a result at odds with the Guidelines’ “primary goal” of eliminating unwarranted sentencing disparities. Third, because juvenile systems in many states impose punitive sanctions while denying young people the right to a jury trial, the Guidelines enhance sentences based on convictions obtained in violation of the Sixth Amendment. Now that the U.S. Sentencing Commission is back in action following a three-and-a-half-year hiatus, this article recommends that the Commission amend the Guidelines to prohibit the use of offenses committed before age 18 to enhance advisory sentences. While those changes are pending, criminal defense attorneys and judges should implement training sessions to educate themselves about the flaws in the Guidelines so they can adjust their advocacy and sentencing decisions accordingly.