Christopher Berk

In Miller v. Alabama, the U.S. Supreme Court held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment, grounding its reasoning in claims about adolescent development, diminished culpability, and reduced moral responsibility. This article offers a critical examination of the developmental foundation of the Court’s juvenile sentencing jurisprudence. While developmental psychology and neuroscience play an increasingly central role in constitutional punishment doctrine, the article argues that these appeals are philosophically unstable and normatively incomplete. The article identifies two core problems with the developmental approach. First, developmental arguments rely on empirically coarse and morally underdetermined generalizations about maturity that struggle to justify categorical distinctions in criminal responsibility. Second, by treating childhood as a natural developmental stage rather than a political and legal status, the Court obscures the normative choices that structure children’s exclusion from full civic participation while subjecting them to coercive criminal authority. Drawing on philosophy of law, political theory, and theories of punishment, the article advances an alternative justification for limiting extreme punishment of children. It argues that special protections for juveniles are best grounded not in developmental deficits alone, but in the democratic obligations a polity incurs when it governs individuals who lack full political standing. On this view, to punish children as adults is to claim the authority of equal responsibility while withholding the conditions of political membership that make such responsibility legitimate. The article concludes by suggesting that reframing juvenile punishment around democratic legitimacy and fiduciary obligation, rather than developmental science, offers a more coherent and durable normative foundation for constitutional limits on punishment, while preserving the moral distinctiveness of childhood.

Punishment and democracy appear to exacerbate each other’s worst features. The institutions and moral intuitions used to punish those that break the law can hollow out civic participation, distort the electorate, and undermine core democratic values. Likewise, many have argued the decentralized character of democracy is a key, albeit indirect, cause of increasingly punitive public policies that are divorced from any reasonable penological purpose. Given the effects of electoral politics, many have called for the separation, or general insulation, of state punishment from public influence. However, recent empirical work on punitive attitudes and institutional design has begun to chip away at this common sense. This article contextualizes and qualifies the various mechanisms of policy feedback and public opinion formation thought by political theorists to undermine democratic participation in penal institutions and makes a normative case that insulating the public from penal law actively sustains injustice.

This article examines a largely forgotten experiment in prison democracy that took place at the Massachusetts Correctional Institution at Walpole in 1973, when incarcerated people assumed responsibility for many aspects of institutional governance following a prison officer strike. Drawing on extensive archival materials produced by civilian observers, inmate leaders, and correctional staff, the article reconstructs the politics of inmate participation during this period of self-rule and situates the Walpole episode within broader debates about democracy, punishment, and political exclusion. The analysis contrasts two competing interpretive frameworks. A dominant liberal narrative treats inmate participation as a symptom of administrative failure or institutional breakdown, reinforcing the view that incarcerated people lie outside the democratic demos. Against this view, the article recovers an alternative radical narrative that understands inmate self-governance as an instance of participatory democracy operating under conditions of custody. During the Walpole experiment, prisoners deliberated collectively, elected representatives, managed labor and resources, and enforced norms of order and discipline, challenging assumptions that democratic practices are incompatible with penal institutions. By tracing how political solidarity, deliberation, and accountability emerged within a maximum-security prison, the article argues that inmate participation cannot be dismissed as either mob rule or mere managerial improvisation. Instead, the Walpole case reveals how democratic practices may function as a form of civic education and raises fundamental questions about the relationship between penal legitimacy, democratic inclusion, and the carceral state. The article concludes by suggesting that revisiting historical experiments in prison democracy can illuminate contemporary debates about punishment, mass incarceration, and the democratic boundaries of political membership.