Document Type

Working Paper

Publication Date

2008

Center/Program

Center for Law and Philosophy

Center/Program

Center for Gender & Sexuality Law

Abstract

In Roper v. Simmons, the Supreme Court confronted a difficult question: Given that being younger than eighteen is merely a proxy for diminished culpability, why not let jurors decide whether youth mitigates the culpability of an individual sixteen- or seventeen-year-old offender? The Court's subtle answer draws on psychological literature about the differences between juveniles and adults, but ultimately depends as much on concerns about the mind of the adult juror as on the distinctive traits of juveniles. Read in its best light, Kennedy's opinion seems to turn on the insight that while age-based classifications are rational - they are a good proxy for various aspects of behavior - particular judgments based on age are not necessarily rational. To the contrary, our judgments based on age may be distorted, or even inverted, because of wrongheaded thoughts and, especially, feelings. In the context of death penalty sentencing, among others, we think we favor youth, and we think we should favor youth, but in reality we may disfavor youth. Kennedy's reasoning thus suggests that, in at least this context, the law must embrace a categorical rule to align how we treat young people under law with how we think we do and should treat them. This understanding of Simmons does not establish the rightness of Kennedy's opinion. But it does suggest that the opinion is supported by a stronger rationale than it fully articulates, a rationale that has implications for other areas of law involving the irrationality of apparently rational categories, such as old-age discrimination. Kennedy's recognition that we may not be as rational about age as we think we are provides further justification for the Court's decision the same Term in Smith v. City of Jackson that disparate impact suits are available under the Age Discrimination in Employment Act.

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