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

This article argues the Supreme Court’s recognition that children “are different than adults” creates a substantive due process right for every child to have an individualized assessment of their youthfulness at all critical junctures of a juvenile court proceeding, including transfer hearings. The article reviews transfer hearing statutes across the country and also analyzes fourteen states use direct file statutes to file young people’s cases in adult court, which the author suggests “absolutely deprive [youth] of an individualized assessment at any juncture in the justice process, including at the initial jurisdictional transfer determination.” Relevant language from the article includes: “The Supreme Court’s categorization of children as constitutionally different from adults recognizes a salient concept that should affect any contact a minor may have with the criminal courts. This is a substantive due process right requiring affirmative action from states that transfer jurisdiction for those accused while under eighteen years old to adult courts. All fifty states exercise the right to remove children from juvenile jurisdiction, but fourteen states currently administer wholly unconstitutional systems. In these states, there is no juncture at which a [young person] receives an individualized assessment before or during sentencing. This is an unconstitutional “absolute deprivation” considering their age status. The individualized assessment oversight should begin when the state seeks to transfer a [young person] to criminal jurisdiction.”