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Hastings Law Journal

Abstract

In this Article, the author applies the basic principles of Kantian retributive justice to the eighth amendment issue posed by the use of the death penalty against juveniles. The author contends that the debate over the retributive value of the juvenile death penalty has mistakenly focused solely on whether such a punishment is cardinally proportional to the culpability of the juvenile offender. The author argues that retributive justice also imposes an important, theoretically related requirement that punishments satisfy ordinal proportionality. According to the author, a "bright line" prohibition of the juvenile death penalty, based on chronological age, would violate ordinal proportionality. The author concludes that the Supreme Court, in the pending juvenile death penalty cases, should reject a bright line approach in favor of either retaining the current discretionary sentencing system or adopting a set of rebuttable presumptions with respect to the murderer's age.

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