Juvenile Remorselessness: An Unconstitutional Sentencing Consideration


Juvenile courts abandoned their rehabilitative roots long ago. While the 1967 Supreme Court decision In re Gault granted youth the right to counsel and other protections at the adjudicatory phase, the decision did nothing to protect youth from increasingly punitive punishments. From 1976 to 2005, states executed twenty-two individuals for crimes they committed before turning eighteen-years-old.  While the death penalty has since been banned for crimes committed as juveniles, over 1,500 youth are currently serving life sentences without the possibility of parole. A juvenile conviction can effectively end an offender’s life.

Furthermore, judges in juvenile courts are not required to have any training or background in working with youth. Consequently, judges’ decisions often reflect consideration only of the immediate situation and conduct of the young people before them. They rely on untrained perceptions of youths’ behaviors in court to sentence youthful offenders. One factor commonly relied upon to increase juvenile sentences is a youth’s failure to express remorse.

The use of remorse in adult criminal courts has a long history. Expression ofremorse is frequently cited as a mitigating sentencing factor, especially in capital cases. Conversely, a defendant’s lack of remorse may lead to a more certain conviction and a harsher sentence. Contemporary use of remorse reflects what some scholars have referred to as the “individual badness model,”‘ in which remorselessness offers judges a proxy for determining a defendant’s blameworthiness and potential for rehabilitation. According to this model, a seemingly remorseless individual is considered to have failed to adopt societal expectations and express the appropriate amount of sorrow. Thus, one can presume that she is unwilling to alter her future behavior and cannot berehabilitated. When applied to juveniles, however, this model’s justification foraggravating sentences does not hold up under scrutiny.

In 2005, the Supreme Court banned the death penalty for juveniles in Roper v. Simmons. The Court relied heavily on psychological studies that recognize youth as immature, susceptible to peer pressure, and unformed in character, and thus inherently less culpable for their actions than adult offenders. Five years later, in Graham v. Florida, the Court again acknowledged the impact of youthful immaturity on culpability when extending the Roper considerations to ban life without parole (LWOP) sentences for non-homicide juvenile offenders.

Graham reflects a turning point in juvenile sentencing. The Court extended special protections to juveniles, not because LWOP was similar to the death penalty, but rather because the condition of youth is unique and thus warrants special protections, namely the consideration of developmental immaturity in applying punishment. Decisions following Graham, notably Miller v. Alabama, have extended these principles to other realms of juvenile sentencing and criminal procedure. In the eyes of the Supreme Court, youth truly are different.

Despite the Supreme Court’s recognition that youth are different, however, juvenile courts routinely aggravate sentences due to perceived remorselessness, thereby treating youthful offenders like adults. Problems with this practice abound. As an initial matter, adult perceptions of juvenile remorselessness are fraught with error. Behaviors that judges cite as demonstrating a lack of remorse often indicate a juvenile’s developmental immaturity and susceptibility to sociological pressures.  Behavior perceived to indicate remorselessness is thus unlikely to accurately reflect a juvenile’s internal emotions.

This article argues that the use of remorselessness to aggravate juvenile sentences is unconstitutional. Even if perceptions of juvenile behavior accurately indicated a youth’s genuine emotional state, the reasoning in Roper that youth are developmentally different than adults undermines the penological justifications for using remorselessness at sentencing. Due to juveniles’ unformed character, determinations about their future dangerousness are necessarily arbitrary.  Similarly, sentences that rely on a juvenile’s failure to express societally appropriate responses to a situation merely punish developmental immaturity and what often might be a natural reaction to the social pressures that inhibit youth from expressing remorse in the courtroom.

Following this introduction, Part II of this article explores the use ofremorse in sentencing adults. Part III analyzes recent Supreme Court decisions affecting juvenile sentencing. The line of cases from Thompson v. Oklahoma to Miller v. Alabama suggests that the Court now recognizes a juvenile’s procedural due process right to have the particularities of youth considered in sentencing. Part IV then describes and discusses the use of perceived remorselessness as a sentencing factor in juvenile courts. This discussion illustrates how the same rationales that justify using remorse to aggravate sentences for adult offenders are used in juvenile courts as well. Part V explains the unique difficulties of accurately perceiving juvenile remorselessness and the predictive problems that follow. Finally, this article concludes that the use ofremorse as an aggravating sentencing factor is arbitrary, erroneous, and unfounded when applied to juveniles, in both juvenile and adult courts, and thus violates a juvenile’s constitutional protections against being punished without consideration ofher youthful status.

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