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The United States Supreme Court Adopts a

Reasonable Juvenile Standard in J.D.B. v. North

Carolina for Purposes of the MirandaCustody

Analysis: Can a More Reasoned Justice

System for Juveniles Be Far Behind?

By Marsha L. Levick and Elizabeth-Ann Tierney*

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501

II. The Reasonable Person Standard. . . . . . . . . . . . . . . . . . . . . . . . . 504a. Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504

b. The Reasonable Person Standard and Children: Kids

Are Different. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506

III. Roper v. Simmonsand Graham v. Florida: Evolving

Juvenile Justice Doctrine Informs J.D.B. v. North Carolina . 507

IV. From Miranda v. Arizona to J.D.B. v. North

Carolina . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509

V. J.D.B. v. North Carolina: The Facts and the

Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512

VI. Reasonableness Applied: Justifications, Defenses, and

Excuses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 517

a. Duress Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518

b. Justified Use of Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 520

c. Provocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521

d. Negligent Homicide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523

e. Felony Murder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524

VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526

I. INTRODUCTION

The reasonable person in American law is as familiar to us as an old

shoe. We slip it on without thinking; we know its shape, style, color, and

size without looking. Beginning with our first-year law school classes in

torts and criminal law, we understand that the reasonable person provides a

* Marsha L. Levick is the Deputy Director and Chief Counsel for Juvenile Law Center, anational public interest law firm for children, based in Philadelphia, Pennsylvania, which Ms.Levick co-founded in 1975. Ms. Levick is a graduate of the University of Pennsylvania andTemple University School of Law. Elizabeth-Ann LT Tierney is the 2011 Sol and HelenZubrow Fellow in Childrens Law at the Juvenile Law Center. LT is a graduate of BrownUniversity and N.Y.U. School of Law.

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502 Harvard Civil Rights-Civil Liberties Law Review [Vol. 47

measure of liability and responsibility in our legal system.1 She informs our

notions of excuse or mitigation in criminal law,2the legality of police con-

duct during arrest or interrogation,3 and the boundaries of negligence or

recklessness in civil law.4 She is an idealized person whose actionsas

reflected in her idealized intelligence, educational background, judgment,experience, and temperament5display appropriate regard for both her in-

terests and the interests of others.6 The common-law reasonable person

was initially formulated without reference to children. The recognition that

the reasonable person standard failed to capture the distinct attributes of chil-

dren and youth first surfaced in civil law. In tort law, for example, all Amer-

ican jurisdictions apply a different standard in order to measure the

negligence of childrenthat of a reasonable person of like age, intelli-

gence, and experience under like circumstances.7

1 See generallyPeter Westen,Individualizing the Reasonable Person in Criminal Law, 2CRIM. L. & PHIL. 137 (2008).

2 See, e.g., MODELPENALCODE 2.09, 3.04, 210.3(1)(b), 210.4 (1962) (duress, use offorce in self-protection, manslaughter, and negligent homicide).

3 See, e.g., United States v. Mendenhall, 446 U.S. 544, 554 (1980) (holding that a personhas been seized within the meaning of the Fourth Amendment only if, in view of all of thecircumstances surrounding the incident, a reasonable person would have believed that he wasnot free to leave).

4 See, e.g., RESTATEMENT (SECOND) OFTORTS 283 (1965).5 Peter Westen describes this idealized concept of reasonableness:

[R]easonableness is not an empirical or statistical measure of how average mem-bers of the public think, feel, or behave. Average is not the same as right or appro-priate. Regrettably, average persons have been known to think, feel, and behavevery differently from the way the polity to which they are duty-bound believes theyshould, and when they do, they are answerable to the polity for their failings.Rather, reasonableness is a normative measure of ways in which it is right for per-sons to think, feel or behaveor, at the very least, ways in which it is not wrongforthem to do so.

Westen, supra note 1, at 138 (citations omitted); id.at 138 n.7 (citing examples of ways inwhich average persons act unlawfully, including driving in excess of speed limits, download-

ing copyrighted material from the internet, avoiding taxes, and using controlled substances).6 ARTHURRIPSTEIN, EQUALITY, RESPONSIBILITY, AND THELAW192 (Gerald Postema ed.,

1999).7 J.D.B. v. North Carolina, 131 S. Ct. 2394, 2404 (2011) (citing RESTATEMENT(THIRD) OF

TORTS 10 cmt. b (2005)). See also RESTATEMENT(SECOND) OFTORTS 283A (1965) (pro-viding for standard of conduct for children of a reasonable person of like age, intelligence,and experience under like circumstances, and grounding this relaxed standard in the notionthat a child is defined as a person of such immature years as to be incapable of exercising the

judgment, intelligence, knowledge, experience, and prudence demanded by the standard of thereasonable man applicable to adults). A relaxed standard of conduct for children reflects thefollowing principle:

[A] standard of conduct demanded by the community for the protection of othersagainst unreasonable risk . . . must be the same for all persons, since the law canhave no favorites; and yet allowance must be made for some of the differences be-tween individuals, the risk apparent to the actor, his capacity to meet it, and thecircumstances under which he must act.

RESTATEMENT (SECOND) OFTORTS 283 cmt. c (1965) (emphasis added).

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2012] Reasonable Juvenile Standard 503

In the criminal law, however, the acknowledgment that children and

youth differ from adults in the very domains that give definition to the rea-

sonable personeducation, judgment, and experiencehas generally failed

to take hold. Juveniles seeking to invoke the traditional defenses available

to adults, such as self-defense, provocation, or recklessness, are forced to doso without regard for their distinct developmental characteristics.8 Histori-

cally, courts have measured the reasonableness of police conduct, or the rea-

sonableness of a juveniles conduct in response to the behavior of law

enforcement, against the same reasonable person standard applied to adults.9

In J.D.B. v. North Carolina, the United States Supreme Court consid-

ered the case of a thirteen-year-old middle-school student who was removed

from class and interrogated about burglaries in his neighborhood by four

adults, including a police investigator and a uniformed school resource of-

ficer, in a closed-door conference room.10 The Court held, for the first time,that the test for determining whether or not a juvenile suspect would have

felt free to terminate a police interrogationthat is, the test for determining

whether or not the juvenile was in custody such that he should have re-

ceivedMirandawarnings at the outset of the interrogationmust be evalu-

ated through the lens of a reasonable juvenile, rather than a reasonable

adult.11 In this Article, we explore the implications of this holding and sug-

gest that the Courts recognition of a reasonable juvenile standard for the

purposes of theMirandacustody analysis augurs a broad shift in the analysis

of a juveniles guilt, criminal responsibility, and conduct across a wide spec-trum of American criminal law.

This Article begins with an explanation of the reasonable person stan-

dard and its application to various areas of law. It then explains how chil-

dren deviate from the normal model of reasonable behavior due to different

cognitive and emotional capacities. Section III discusses how the Supreme

Courts recent recognition that children are distinct from adults in Roper v.

Simmons12and Graham v. Florida13led to the Courts shift inJ.D.B. Section

IV reviews the concept of custodial interrogationand how the coercive

8 See, e.g., People v. Juarez, No. B214315, 2011 WL 2991530, at *7 (Cal. Ct. App. July25, 2011) ([T]he standard to be applied in deciding criminal culpability for a homicide or indeciding between voluntary and involuntary manslaughter turns on whether a defendants ac-tions were those of a reasonable person, not the actions of a reasonable juvenile. (citingWalker v. Superior Court, 47 Cal. 3d 112, 13637 (1988))); see also State v. Alford, No.A071025, 2008 WL 4006657, at *4 (Minn. Ct. App. Sept. 2, 2008) (holding that jury waspr