“A Plain Denial”: Reclaiming Equal Protection in American Juvenile Law

Authors

Addie C. Rolnick
David S. Tanenhaus
Justin Iverson
Danielle L. Silvestri

Abstract

Juvenile courts are based on the premise that children are different from adults and should therefore be treated differently. Children may be treated more informally by courts, punished for different purposes, and brought before the court for different behaviors. Since In re Gault, the Supreme Court has been clear that there are limits to how different juvenile courts can be. Juveniles are entitled to many of the same procedural protections as adult criminal defendants, although the Court has preserved some procedural differences where it has determined that their benefit is outweighed by the need to preserve the informality, flexibility, and confidentiality of juvenile courts. While the Court has mainly applied the Fifth Amendment’s due process guarantee in these cases, Justice Black’s concurrence in Gault noted that “it would be a plain denial of equal protection of the laws—an invidious discrimination—to hold that others subject to heavier punishments could, because they are children, be denied these same constitutional safeguards.” Since then, litigants in state and lower federal courts have challenged juvenile laws and procedures by arguing that they violate the Equal Protection Clause. While equal protection arguments may appear facially inconsistent with the “children are different” rhetoric underpinning juvenile courts today, they can be an important tool for protecting children’s rights. “Different” is usually understood to mean “more lenient,” but a deferential constitutional standard may also cloak state actions that harm children, intentionally or unintentionally. As Justice Black suggested, robust review under the Equal Protection Clause is necessary to ensure that, when it comes to children, states are striking the correct balance between protection and rights. This Article systematically reviews equal protection claims in juvenile delinquency cases. Some courts have shown a willingness to carefully consider the specific reasons for different treatment in a particular context and to strike down laws that discrimination against children irrationally, or require sufficient procedural safeguards to avoid unfairness. We argue that equal protection provides an opportunity to thoroughly examine the tension between equality and difference that has long animated conversations about juvenile court; it is an argument that advocates should continue to make and that courts should carefully engage, regardless of the level of scrutiny applied. While courts are likely to reach similar conclusions in many cases as they do when using either the due process or cruel and unusual punishment frameworks, equal protection arguments apply to all aspects of juvenile law, not just delinquency procedure and extreme punishments, including decisions to sanction certain conduct and the decisions to deny children certain rights. Equal protection arguments thus provide an opportunity to link the jurisprudence and theory of juvenile delinquency courts with that of children’s constitutional rights more generally.

Recommended Citation

Addie C. Rolnick, David S. Tanenhaus, Justin Iverson, and Danielle L. Silvestri, “A Plain Denial”: Reclaiming Equal Protection in American Juvenile Law, 49 SEATTLE U. L. REV. 58 (2025).