Law, College of


Date of this Version



TENNESSEE LAW REVIEW, Vol. 83:455 (2016)


Copyright (c) 2016 Martin R. Gardner.


To understand the potential scope of the Court's implicit conclusion that the punishment of adolescents is unconstitutional unless a meaningful opportunity for rehabilitation is afforded, it is necessary to carefully distinguish and clarify the distinction between the conflicting concepts of punishment and rehabilitation. I therefore begin Part I by analyzing this distinction. Since the logic of the Court's decisions impacts the punishment of adolescents in both the juvenile and criminal justice contexts, I contrast the two systems in Part II by tracing the development of the juvenile court movement from its original rehabilitative origins towards an increasingly punitive model, dispensing dispositions traditionally found only in the criminal system. In Part III, I discuss the Court's Eighth Amendment cases from which the right to an opportunity for rehabilitation emerges, examining in Part IV this right's implications for juveniles within the criminal justice system, showing specifically that juvenile offenders are now entitled to: (1) systematically less punishment than that imposed on adults committing the same offenses; (2) a robust individualized presentencing hearing, taking into account, among other things, the offender's amenability to rehabilitation; (3) a disposition in the juvenile system if, at the pre-sentencing hearing, the offender is deemed to be amenable to rehabilitation and the juvenile system affords the best opportunity for its realization; and (4) a sentence offering a realistic possibility for rehabilitation and parole if the offender is deemed not amenable to rehabilitation at the presentencing hearing. In Part V, I explore the ramifications of the right to a meaningful opportunity for rehabilitation for the juvenile system, concluding: (1) that rehabilitative juvenile justice systems are now constitutionally mandated; (2) that for all juveniles charged with criminal offenses, jurisdiction must now originate in juvenile court with transfer to criminal court permitted only if a juvenile court judge finds that an accused is not amenable to rehabilitation within the juvenile system; and (3) for punishment within the juvenile system, the same judicial hearing and parole release requirements applicable to criminal court punishment are now equally required. Finally, in Part VI, I show that these manifestations of the right to a meaningful opportunity for rehabilitation are not waiveable by juvenile offenders and that implementation of this right would require considerable reform of current practices in both the criminal and juvenile systems.